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- Unreported Judgment
Mallory v Commissioner of Police QDC 54
DISTRICT COURT OF QUEENSLAND
Mallory v Commissioner of Police  QDC 54
DAVID WILLIAM MALLORY
THE COMMISSIONER OF POLICE
3 March 2017, ex tempore
3 March 2017
Bowskill QC DCJ
1. The appeal is allowed.
2. The sentences imposed by the Magistrate on 14 April 2016 for the four charges of failure to appear in accordance with a bail undertaking are set aside. In relation to these charges, the appellant is convicted, but not further punished.
3. The sentence imposed by the Magistrate on 14 April 2016 for the one charge of return of cancelled positive notice, being a fine of $200, in default eight days’ imprisonment, three months to pay, is confirmed.
4. The sentences imposed by the Magistrate on 14 April 2016 on all remaining charges dealt with on that day are varied as follows:
(a) In respect of each of the charges of receiving tainted property (September 2013), possessing tainted property (November 2013), possessing dangerous drugs (September 2013) and possessing dangerous drugs (October 2013), the defendant is sentenced to 3 months’ imprisonment, to be wholly suspended, for an operational period of 12 months;
(b) In respect of the remaining charges (23 charges of breach of bail condition, fail to take care or precautions in respect of syringe or needle, possess utensils or pipes), having regard to the sentence otherwise imposed, the appellant is convicted but not further punished.
CRIMINAL LAW – appeal against sentence – where the appellant pleaded guilty to a number of offences, including four charges of failure to appear in accordance with a bail undertaking under s 33 of the Bail Act 1980 – where a month before the sentence the appellant had been sentenced in the District Court to 3 years’ imprisonment, with parole release fixed after 12 months – where the Magistrate was informed that the appellant had spent 43 days in pre-sentence custody which was declarable under s 159A of the Penalties and Sentences Act 1992 – where the appellant was sentenced to 14 days’ imprisonment on each of the failure to appear charges, and 3 months’ imprisonment on all the other charges, a cumulative total of 5 months’ imprisonment, which was wholly suspended for an operational period of 2 years - whether the sentences imposed by the Magistrate were manifestly excessive – whether the Magistrate erred in finding that he could not declare the time spent in custody, if he intended to suspend the terms of imprisonment being imposed by him – whether the Magistrate erred in suspending the terms of imprisonment imposed in respect of the failure to appear charges, which by force of s 33(4) of the Bail Act were required to be cumulative on one another, and on the other sentences imposed on the same day, and on the District Court sentence the appellant was already serving
Bail Act 1980, s 33(4)
Penalties and Sentences Act 1992, ss 144, 154, 156, 159A
T Zwoerner for the Appellant
M Fowke for the Respondent
Legal Aid Queensland for the Appellant
Office of the Director of Public Prosecutions for the Respondent
- David Mallory appeals under section 222 of the Justices Act 1861 against the sentence imposed on him by a Magistrate at Beenleigh on 14 April 2016. By his notice of appeal as originally filed on 9 May 2016, Mr Mallory appealed only against the sentences imposed on him on that day for four charges of failing to appear in accordance with his bail undertaking, in breach of section 33 of the Bail Act 1980. However, without objection from the Commissioner of Police, Mr Mallory has today sought to file an amended notice of appeal which states that the appeal is against all of the sentences imposed on 14 April. I have given leave for that amended notice of appeal to be filed today. The outlines of argument that were filed by the parties, respectively in December 2016 and January 2017, dealt with all of the issues, so it is not the case that any party was taken by surprise.
- The basis of Mr Mallory’s appeal is that the sentences which the Magistrate imposed on 14 April were manifestly excessive. As framed on behalf of Mr Mallory, no particular error in terms of principle is identified as having been made by the Magistrate. However, what Mr Mallory argues is that it is the case that on the facts of this matter, the Magistrate’s decision was unreasonable or plainly unjust such that this Court ought to infer that there has been a failure to properly exercise the sentencing discretion. Reference in this regard is made to House v R (1936) 55 CLR 499 at 505.
- The offences that the Magistrate was sentencing Mr Mallory for on 14 April were numerous. They included 23 breaches of bail conditions. Those were committed between March and May 2015, as well as between December 2014 and March 2015, and between 8 May and 25 May 2015. Also a charge of receiving tainted property committed in about September 2013, which related to a ride-on mower. The four failure to appear charges, which were committed on two separate dates: 18 November 2013 and 5 December 2103. Although there were only two days on which Mr Mallory failed to appear in Court as required, the reason there were four charges is that he had been ordered to do that, in each case, on two separate dates by two separate orders.
- The offences also included some drug offences, including a charge of possessing dangerous drugs from September 2013, which was a jar of Ritalin tablets; a charge on that same date of failing to take reasonable care in respect of a syringe; another charge of possessing dangerous drugs on 28 October 2013, which was an unquantified amount of amphetamine; and also, on that day, possessing a utensil which was some kind of bottle. There was another charge of possessing tainted property from 9 November 2013, which related to, again, an unquantified amount of money. And there was one other charge, described as return of cancelled positive notice, committed in March 2014, which related to failing to return a blue card when required. In respect of that, Mr Mallory was fined because a sentence of imprisonment was not appropriate.
- In respect of the failure to appear offences, Mr Mallory was sentenced to 14 days on each charge, cumulative on each other and the other sentence imposed. In respect of all the other offences, other than the return of cancelled positive notice, Mr Mallory was sentenced to 3 months imprisonment. The total, cumulative term was said to be 5 months imprisonment, which was wholly suspended, for an operational period of 2 years.
- To put this matter into context, in February 2014 Mr Mallory committed some other serious offences, including robbery with personal violence, entering premises with intent to commit an indictable offence and assault. He was sentenced for those on 3 March 2016 in the District Court at Beenleigh. He was sentenced on the most serious of those, the robbery charge, to three years’ imprisonment with a parole release date fixed at 2 March 2017, so after 12 months of that three-year sentence.
- So by the time these sentences were imposed in the Magistrates Court, which was 14 April 2016, that sentence had been imposed and the appellant, Mr Mallory, was in custody serving that sentence.
- On 16 November 2016, Mr Mallory’s appeal against that District Court sentence was allowed and the sentence on the robbery charge was reduced to 18 months, with his parole release date fixed at the date of judgment, 16 November 2016. The full-time date of Mr Mallory’s sentence would therefore be 3 September 2017, but he was released on parole on 16 November 2016.
- Mr Mallory does have a criminal history which was before the Magistrate. He was born in 1975. He has a criminal history starting in about 1993, so when he was about 18, which includes entries for possessing dangerous drugs, stealing, various breaches of orders; in 2008, convictions for entering premises and committing an indictable offence, for which he was sentenced to 12 months’ imprisonment but given immediate release on parole; further drug convictions; and then, of course, the conviction I have referred to of robbery in March 2016.
- So he was not a young man appearing before the Magistrate, with a relevant criminal history for previous drug offences, as well as offences of breaching orders; although, it is appropriate to say, he does not appear to have previously been dealt with for failure to appear or breach of bail orders.
- On my reading of the sentencing submissions before the Magistrate and the decision of the Magistrate, taking into account the number of offences committed by Mr Mallory over the period of time being dealt with, the nature of them, in particular the receiving tainted property and drug charges, but also, relevantly, the number of times on which this gentleman had breached his bail conditions as well as failed to appear in accordance with his bail undertaking – taking those into account, in light of his criminal history and his age and other circumstances, I am unable to form the view on that basis that the decision of the Magistrate was unreasonable or unjust such as to lead to the inference that an error must have been made.
- However, having looked at the submissions and the decision, I am concerned that there are two other errors that have been made.
- Firstly, the Magistrate was told at the sentencing hearing that Mr Mallory had served 43 days in pre-sentence custody which was declarable under section 159A of the Penalties and Sentences Act 1992 in relation to the offences the Magistrate was dealing with. However, the Magistrate expressed the view that he could not declare that time, because he was proposing to suspend the terms of imprisonment that he was going to be imposing on that day.
- Neither the Crown Prosecutor who appeared on that day, nor the solicitor for the defendant, submitted that that was an incorrect approach. And, indeed, in the submissions filed in this Court on this appeal that seems to have been endorsed as a correct approach.
- In my view, that is not the correct approach. Under section 159A of the Penalties and Sentences Act, subsection (1) provides that:
“If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence, and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.”
- Subsection 159A(2) then provides, relevantly, in (c) that subsection (1) does not apply to “imprisonment that has been wholly suspended”; and in (d) that subsection (1) does not apply to “the suspended part of imprisonment partly suspended”.
- But there is no reason why the Magistrate could not have declared the 43 days in custody under section 159A(1) as time served under the sentence he was then imposing, and then have suspended, effectively, the balance of the term he was imposing, after 43 days. That would then give the defendant the benefit of the time he had served as time served under the actual sentence but still result in him not having to serve any additional time.
- There are a couple of complications that arise in relation to that matter. The first is that it has been drawn to my attention today, by reference to exhibit 1 in this appeal, that the pre-sentence custody certificate handed to the Magistrate on the day of sentence did not actually identify the time and the dates for pre-sentence custody. That is inconsistent with section 159A(4A), which requires the prosecuting authority to give the court a pre-sentence custody certificate to help the sentencing court in dealing with that matter.
- The second matter is that when you look at the reasons given by the Magistrate, his Honour says that he has taken the 43 days into account, when imposing the head sentence. Now, it may be inferred from that that his Honour may have imposed a higher sentence of imprisonment if he had been going to declare the time. For reasons that will become apparent in how I propose to deal with this appeal, it is not necessary for me to form a final view about that. It suffices for me to say that it seems to me that there was an error, as identified, in the reasoning process of the Magistrate – that is, that he could not declare the time when he intended to otherwise suspend the term of imprisonment.
- The other error that I would, respectfully, consider has been made relates to the cumulative sentences imposed for the failure to appear in accordance with bail undertaking offences. In relation to those, the Magistrate imposed periods of 14 days for each of those four charges. The effect of section 33(4)(a) of the Bail Act 1980 is that each of those terms of 14 days’ imprisonment was required to be cumulative on one another, and also on the other term or terms of imprisonment being imposed by the Magistrate on that day, and also on the period of imprisonment the defendant was then serving under the District Court sentence.
- The language used in section 33(4)(a) is in terms that the “first mentioned term of imprisonment”, that is, the term being imposed on a charge of failing to appear:
“… shall take effect from the expiration of the deprivation of liberty of the defendant pursuant to a term of imprisonment –
- (i)imposed upon the defendant pursuant to this section or a law of the Commonwealth or the State at the same time as the first mentioned term of imprisonment is imposed; or
- (ii)which the defendant is serving pursuant to this section or a law of the Commonwealth or the State at the time the first mentioned term of imprisonment is imposed.”
- What the magistrate did in imposing the sentences on Mr Mallory was sentence him to those cumulative periods of 14 days each on the four offences, and also sentence him to three months’ imprisonment on all of the other charges. I will come back to say something about that in a minute. But that came to about a total of five months, which was then suspended for a period of two years. It does not seem to me, when one has regard to the Penalties and Sentences Act provisions, that it is appropriate or practical to suspend a term of imprisonment which is a cumulative one, such as is the effect of section 33(4) of the Bail Act.
- I say that, having regard to sections 154 and 156 of the Penalties and Sentences Act. Section 154(1) provides that, relevantly:
“Except as provided in sections 156(1) …, a term of imprisonment –
- (a)on conviction on indictment – starts on the day the court imposes imprisonment on the offender; and
- (b)on a summary conviction – starts at the beginning of the offender’s custody for the imprisonment.”
- Then section 156(1) provides that:
- (a)an offender is serving, or has been sentenced to serve, imprisonment for an offence; and
- (b)is sentenced to serve imprisonment for another offence;
the imprisonment for the other offence may be directed to start from the end of the period of imprisonment the offender is serving or has been sentenced to serve.”
- Putting to one side for the moment what the effect of section 154(1)(b) is, as to when a term of imprisonment on a summary conviction starts, it is clear that for a cumulative order of imprisonment, the term of imprisonment does not start until the end of the period of imprisonment the offender is serving or has been sentenced to serve.
- That being the case, when you go back to section 144, dealing with when sentences of imprisonment may be suspended, that section gives the court power to order that a term of imprisonment be suspended but, under subsection 144(5), requires that the court must state an operational period during which the offender must not commit another offence punishable by imprisonment if they are to avoid being dealt with under section 146 for the suspended sentence. And subsection 144(6) provides that the operational period starts on the day the order is made. So there is an anomaly there where a purported operational period imposed on the day of sentence starts on the day of sentence but, in fact, the cumulative sentence does not start until sometime in the future, which seems to me to be problematic.
- The one other matter that I had not raised with counsel, which has occurred to me as I have been articulating these reasons is that in the Magistrate’s reasons his Honour did impose separate periods of imprisonment on each of the charges of failure to appear, of 14 days for each, which his Honour noted was automatically cumulative. But then his Honour said:
“For the remaining matters, you are convicted and sentenced to a period of three months’ imprisonment.”
- Arguably, his Honour has also erred in that regard because of the requirement when imposing imprisonment for an offence to deal separately with each charge, rather than in a global sense (see R v Crofts  1 Qd R 386). I do not place too much emphasis on that because of the view I have otherwise formed about how this appeal should be dealt with but I note that in passing.
- The culmination of all of these issues is that, in my view, there has been error made in the exercise of the sentencing discretion by the learned Magistrate. It then falls to this court to re-exercise the sentencing discretion. In doing that, I am conscious that Mr Mallory, having been successful in his appeal against the District Court sentence, was released on parole on 16 November 2016 and he will be subject to that parole order until, I think, 3 September 2017 or thereabouts.
- It does not appear to me that, in a general sense, the sentences imposed by the Magistrate were manifestly excessive when you take into account the history of Mr Mallory in the circumstances. But in terms of resentencing him as a result of this appeal, what seems to me to be just in all the circumstances is that, in respect of the failure to appear charges, given the complication that I have highlighted in relation to suspending a term of imprisonment of that kind, which is cumulative, what I would propose to do instead is take into account, although not formally declare, the 43 days that Mr Mallory spent in custody, which I think is from 20 January until 2 March 2016 and, having regard to that period of time, convict him of those four failure to appears but not further punish him. I am taking into account the 43 days spent in custody, without formally declaring them, because they are not declarable in relation to the failure to appears, according to exhibit 2.
- The sentence in respect of the return on cancelled positive notice, I would simply affirm.
- In relation to each of the two counts of possessing dangerous drugs and each of the two counts of possess / receive tainted property, I would affirm the Magistrate’s sentence for three months imprisonment and I would also affirm that it be wholly suspended, but vary the operational period to 12 months, rather than two years.
- In respect of each of the other charges – so that is the charge of possessing utensils or pipes, the various breaches of bail and the failure to take a precaution in relation to a needle or syringe (that is, each of the other charges other than the two possessing dangerous drugs and the possess /receive tainted property offences), it seems to me, in light of the three months being imposed on the others, it would not be inappropriate to convict and not further punish on those.
- I am distinguishing those because it does seem to me that although globally that three month period of imprisonment for all those other charges is not excessive or unreasonable, it probably in its own right is not appropriately imposed on the breach of bail charges and not disposing of a syringe charges.
- The reason I have couched it in terms of varying the order is that I do not want there to be any suggestion of something starting from today.
 See R v Mallory  QCA 296.
 See s 225(1) of the Justices Act, which provides that, on the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just; and s 225(4), which provides that an order made under s 225(1) has effect as if it had been made by whoever made the appealed order.
- Published Case Name:
Mallory v Commissioner of Police
- Shortened Case Name:
Mallory v Commissioner of Police
 QDC 54
03 Mar 2017