Price v Queensland Police Service
[2017] QDC 31
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- Price v Queensland Police Service[2017] QDC 31
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Price v Queensland Police Service[2017] QDC 31
Price v Queensland Police Service[2017] QDC 31
DISTRICT COURT OF QUEENSLAND
CITATION: | Price v Queensland Police Service [2017] QDC 31 |
PARTIES: | SHAYNE MATTHEW PRICE (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 201/16 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Southport |
DELIVERED ON: | 27 February 2017 |
DELIVERED AT: | Southport |
HEARING DATE: | 13 February 2017 |
JUDGE: | Kent QC DCJ |
ORDER: |
|
CATCHWORDS: | MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld), against sentence – where it was contended by the appellant that the sentence imposed was manifestly excessive when its global effect was considered – where it was alleged the Magistrate failed to give sufficient weight to: the issue of the appellant’s long standing drug addiction and the factors leading to it; his early plea of guilty; and the consideration that no property was outstanding – whether the sentence of the Magistrate should be set aside Criminal Code Act 1899 (Qld), s 335(2) Penalties and Sentences Act 1992 (Qld), s 108B, s 160B Justices Act 1886 (Qld), s 222 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited Lacey v The Attorney General (Qld) (2011) 242 CLR 573; [2011] HCA 10, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, considered R v Bojovic [2002] 2 Qd R 183; [1999] QCA 206, considered R v Cowie [2005] 2 Qd R 533; [2005] QCA 223, considered R v Hammond [1997] 2 Qd R 195; [1996] QCA 508, cited R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365, considered R v Ungvari [2010] QCA 134; cited Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited |
COUNSEL: | A McDougall for the appellant E Brackin (sol) for the respondent |
SOLICITORS: | Alan Dick 888 Law for the appellant Office of the Director of Public Prosecutions for the respondent |
- [1]This is an appeal brought pursuant to s 222 of the Justices Act 1886 (Qld) against a sentence imposed by a Magistrate at Southport. The sentence is said to be manifestly excessive in all the circumstances.
The sentence imposed
- [2]The appellant pleaded guilty to six charges, including: enter premises and commit an indictable offence therein; wilful damage; two charges of common assault in a public place whilst intoxicated; going armed so as to cause fear; and possession of a knife in a public place. He was sentenced to two and a half years imprisonment for the enter premises charge and lesser concurrent terms for the others, with a parole release date after 12 months from the time he first went into custody, and 200 hours community service. It is contended that this sentence is manifestly excessive, the learned sentencing Magistrate not having applied sufficient weight to one or more of the mitigating circumstances.
Background
- [3]At about 3.45pm on 23 April 2016, the appellant entered a jewellery store at Burleigh Heads, removed a hammer from a bag he was carrying and smashed a display case before removing three items of jewellery collectively valued at $26,000. Two staff members were inside the store and in fear.
- [4]After stealing the items, the appellant left the store and a staff member of a neighbouring store was threatened by him. Several members of the public, including an off duty police officer, then subdued the appellant, restraining him and disarming him. During the struggle the appellant was bleeding from his nose and head and screamed at people that he had AIDS. The two offences of common assault relate to this struggle.
- [5]The appellant had a limited Queensland criminal history, but which included a stealing offence from 23 July 2015 where he was sentenced to four months’ imprisonment with immediate parole. He had a lengthy New South Wales criminal history; indeed, the document recording this runs to some 44 pages. He has a large number of offences of a property type nature and has been sentenced to imprisonment on several occasions, the longest being three years’ imprisonment in 2007 for aggravated break and enter. He also has, relevantly, a conviction on 27 May 2003 in the “central local court” in New South Wales for an offence described as “used offensive weapon to prevent lawful detention” which, it is submitted by the Crown prosecutor, is similar to the conduct in the present case.
- [6]The appellant was 45 years of age at the time of the offending. On his behalf, it was submitted before the learned sentencing Magistrate:
- (a)his mother suicided in 1990 when he was 19 years of age;
- (b)he developed an addiction to drugs including a lengthy addiction to heroin, but completed an 18 month drug rehabilitation program after having been imprisoned in New South Wales in 2014 (this, of course, pre-dates the present offending);
- (c)he had various medical conditions and had been dealt with pursuant to the Mental Health Act in New South Wales – as appears on his criminal history;
- (d)he had been treated for bipolar disorder, anxiety, anti-social disorders, hepatitis C and post-traumatic stress disorders some of which were evident in family history;
- (e)he had been involved in a work place accident where a forklift had rolled causing injury;
- (f)he had served 82 days on remand which was declarable;
- (g)he had been admitted on two occasions to rehabilitation clinics prior to the offending and was assaulted on both occasions when attempting to recover property from where he was staying;
- (h)all of the property the subject of the offence was recovered and it was said that the complainant was not out of pocket. It is unclear who bore the loss of the damage caused.
Appellant’s Submissions
- [7]Reference was made to comparable sentences including R v Suthern [1992] QCA 320; Daniel Lawrence Moss v Queensland Police Service [2011] QDC 309; and Smith v Commissioner of Police [2012] QDC 048. At the end of the day, on this appeal, it was not strongly argued that the head sentence imposed by the learned Magistrate of two and a half years was manifestly excessive. Rather, complaint was made as to the overall effect of the sentence which was two and a half years’ imprisonment with a parole release date after 12 months (rather than the 10 months, which would be a mathematical one third of the head sentence), together with the mandatory community service order being set at 200 hours.[1]It is said the overall effect of the sentence is that it is manifestly excessive.
- [8]One of the primary submissions on behalf of the appellant is that the learned Magistrate failed to give sufficient weight to: (a) the issue of the appellant’s long standing drug addiction and the factors leading to it; (b) his early plea of guilty; and (c) the consideration that no property was outstanding.
- [9]Reliance was placed on R v Hammond,[2]where the court considered the relevance of drug addiction. The court made the following observation at p 199-200:
The true relevance of drug addiction is a factor contributing to the commission of crime and its effect in the sentencing process has never been adequately explained. In our view it is a factor that may help an offender to the extent of showing that his or her descent into the crime in question was a secondary consequence of desperation produced by a human weakness rather than a primary choice. It may be inferred in many cases (and the present case is very much in point) that the offender would almost certainly never have become a thief but for loss of control of an ordered life through drug addiction. The proposition that the results of drug addiction are self-inflicted is half true and therefore dangerous. The offender must of course be held responsible for his or her own actions. The drug addiction is not an excuse; but it is a factor that may tell the court that the real weakness of character is that of a drug addict rather than that of a robber. That may be by no means inconsequential. It is however a two-edged factor; it may also tell the court that rehabilitation is going to be difficult.
- [10]The appellant essentially submits that the learned Magistrate could not have placed sufficient weight on the mitigating factors as it is self-evident that the sentence overall is manifestly excessive. Reliance is also placed on the clear principle that an early plea of guilty should be recognised in mitigation of penalty.[3]It is described as a positive obligation for a sentencing court to take into account a guilty plea and offenders should be encouraged to plead guilty by an appropriate reduction in the sentence that would have otherwise been imposed.
Respondent’s Submissions
- [11]The respondent, Queensland Police Service, submits that the learned Magistrate gave appropriate weight to all relevant factors in the appellant’s favour and the sentence is not manifestly excessive. It is submitted that, on an appeal of this kind, intervention on the basis that a sentence is manifestly excessive is not justified simply because the result arrived at is different, even markedly different from other sentences that have been imposed in other cases[4]or that the appellate court may have imposed a different sentence at first instance.[5]These propositions are clearly correct. As the prosecution submits, manifest error “arises because the sentence imposed is out of the range of sentences that could have been imposed” such that the sentencing discretion must have miscarried.[6]
- [12]The prosecution submits that there is no identifiable error in the sentencing process nor is the sentence imposed outside the exercise of a sound sentencing discretion.
- [13]As to the reliance on the drug addiction, the respondent concedes that it is relevant but argues it was taken into account by the Magistrate. It is submitted that there were no supporting materials or reports in relation to the appellant’s drug addiction or other health conditions. It is argued the learned Magistrate took all this into account and gave these matters the appropriate weight. This was balanced against the extremely serious nature of the offence including his serious conduct in struggling with members of the public who were attempting to arrest him.
- [14]As to the guilty plea, it is pointed out that the Magistrate said the pleas of guilty were a “very large mitigating circumstance for all the reasons I have given”.[7]
- [15]The prosecution submits, in summary, that the appeal should fail because the sentence is not shown to be manifestly excessive. It is submitted that the drug addiction, which is a relevant factor, was taken into account by the learned Magistrate; further that he similarly took into account the early plea of guilty; the lack of substantial loss is not a large feature, but nevertheless it was given appropriate weight and the sentence generally conformed with comparable sentences and proper sentencing principles. In relation to the community service, it was pointed out that the appellant expressed his ability to perform community service through his legal representative and it was mandatory pursuant to the legislation.
Discussion
- [16]As the hearing of the appeal proceeded, the nature of the challenge to the sentence was somewhat refined. It may be summarised as follows:
- (a)although the head sentence was a heavy one, it may be difficult to arrive at a conclusion that it was beyond the permissible range, given the serious nature of the offence, particularly the aftermath in the appellant’s attempts to escape;
- (b)nevertheless, the sentence as a whole is manifestly excessive, given that despite the mitigating circumstances, the non-parole period is set at more than the usual one third mark; and in conjunction with this, the community service order imposed on a prisoner who had already served 12 months’ imprisonment, an obligation to complete an amount of community service which was towards the upper end of the range of available orders, during a period when he was also supervised on parole.
- [17]The proper approach to sentencing is to regard it as an integrated process in which extra mandatory statutory features fall to be exercised as a part of, and not separately from, the conclusion of the process of arriving at a just sentence.[8]
- [18]This is to be distinguished from such other approaches to sentencing as a “two-step” process or, as it has sometimes been expressed, an “instinctive synthesis”.[9]
- [19]Many of the discussions along these lines, including those in R v McDougall & Collas, are involved with discretionary powers under the sentencing legislation such as the discretion to make a serious violent offence declaration. The Court of Appeal has been at pains to set out the principle that such a discretion should be exercised judicially and with regard to the consequences of making such a declaration. The overall punishment to be imposed should be arrived at having regard to the making of any such declaration, or alternatively not doing so. Where a discretionary declaration is made, the critical question is whether the sentence arrived at is manifestly excessive in the circumstances. For example, a just sentence which is the result of a balancing exercise may require a lower sentence for a declared serious violent offence.[10]
- [20]In my view these principles apply by analogy to the present situation in that the effect of s 108B of the Penalties and Sentences Act was to mandate the imposition of a community service order upon the appellant, however the quantum of such order remained a matter for the exercise of the sentencing discretion as part of an integrated process.
- [21]The same can be said of his Honour’s decision to impose a parole release date pursuant to s 160B of the Penalties and Sentences Act. It was mandatory for his Honour to do so, however the choice of the date, and therefore its relationship to the head sentence, was a matter for the exercise of the sentencing discretion as part of an integrated process, having regard to all relevant factors including the mandatory obligation under s 108B.
- [22]His Honour, in his sentencing remarks, exposed his reasoning for the parole release date at p 5, saying that it was not to be at the usual one third mark “due to your appalling behaviour in trying to make your escape and due to the many like offences in your history”. This indicates: (a) the usual release date would be the one third mark; (b) it was delayed due to his actions in trying to escape and also because of his history. His Honour did not really, in my view, expose his reasoning process in arriving at the figure of 200 hours community service.
- [23]All of these matters were part of the sentencing process and when looked at as a whole, I am of the view that the result – a head sentence towards the top of the range, a parole release date higher than one third thereof, and a high amount of community service – is manifestly excessive, demonstrating that the sentencing discretion has miscarried.
- [24]In reaching this conclusion, I recognise that the appellant’s criminal history was rightly regarded as appalling, and had at least one disturbingly similar entry. Further his conduct in trying to escape was serious. However: (a) it is trite to observe that he was to be dealt with not for his criminal history but for the present offending, and (b) his actions in trying to escape included the two counts of assault, for which he was sentenced, thus to rely on that feature further in setting a higher parole release date for all the sentences may be seen as a second punishment for the same conduct. Further, the community service was also towards the top of the range, and this is also part of the integrated sentence. Thus, although the head sentence is not outside an acceptable range, the sentence as a whole is manifestly excessive for the reasons outlined above.
- [25]Having concluded that the sentence is in error in the way identified, it falls to re-exercise the sentencing discretion afresh. Taking into account all of the circumstances discussed above, in my view, the appropriate sentence is two and a half years imprisonment, with a parole release date after 10 months, that is, 27 February 2017. This is in recognition of the mitigating factors, particularly those set out in paragraph [8] above. In relation to the mandatory community service order, this will be imposed for a period of 80 hours, that is, one third of the maximum. This is because the appellant was also imprisoned for those offences, and the community service will be performed whilst he is also on parole. The other aspects of the sentence, that is, the head sentences for each of the offences will be unchanged as is the declaration of pre-sentence custody.
- [26]Thus the orders will be:
- (a)The appeal is allowed and the sentences below set aside, only as to the parole release date and the community service order;
- (b)The appellant’s new parole release date is 27 February 2017;
- (c)The mandatory community service order for the two counts of common assault will be for 80 hours;
- (d)The other aspects of the sentence, that is, the head sentences for each of the charges and the declaration of pre-sentence custody, are unchanged.
Footnotes
[1] Imposed pursuant to s 335(2) of the Criminal Code and s 108B of the Penalties and Sentences Act 1992.
[2] [1997] 2 Qd R 195.
[3]R v Ungvari [2010] QCA 134, [31].
[4]Wong v The Queen (2001) 207 CLR 584, [58].
[5]Lacey v The Attorney General (Qld) (2011) 242 CLR 573.
[6]Hili v The Queen (2010) 242 CLR 520, [60].
[7] Decision p 2, LL 10-11.
[8] See R v McDougall & Collas [2007] 2 Qd R 87, 95; R v Bojovic [2002] 2 Qd R 183; R v Cowie [2005] 2 Qd R 533, 537-538.
[9] See Markarian v The Queen (2005) 228 CLR 357, 370-375.
[10] See R v McDougall and Collas [2007] 2 Qd R 87, 96.