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- Unreported Judgment
Richardson v Commissioner of Police QDC 102
DISTRICT COURT OF QUEENSLAND
Richardson v Commissioner of Police  QDC 102
COMMISSIONER OF POLICE
Richlands Magistrates Court
9 April 2018 (ex tempore)
9 April 2018
Farr SC DCJ
CRIMINAL LAW – APPEAL – Justices Act 1886 – section 222 – appeal against sentence – where the appellant pleaded guilty to one count of common assault in a public place whilst adversely affected by an intoxicating substance and was sentenced to six months imprisonment – whether the sentence imposed was manifestly excessive – whether appropriate weight was given to the appellant’s criminal history – whether appropriate regard was given to the mitigating circumstances – whether the sentence was within an appropriate range
Justices Act 1886 (Qld) s 222, s 225
Batts v Queensland Police Service  QDC 161
D Caruana for the appellant
M Whelan for the respondent
Russo Lawyers for the appellant
Director of Public Prosecutions (Qld) for the respondent
- On the 18th of January this year, the appellant was sentenced, on his own plea of guilty, in the Richlands Magistrates Court in respect of an offence of common assault in a public place whilst adversely affected by an intoxicating substance. He represented himself at that hearing. He was sentenced to six months imprisonment and ordered to undertake 40 hours of community service within 12 months. A parole eligibility date was made, that being the 16th of March 2018. That is a period of imprisonment of two months.
- The offence the subject of this matter occurred on the 12th of December 2017. At that time, the appellant was on parole for a sentence of nine months imprisonment, which was imposed in the Brisbane Magistrates Court on the 23rd of June 2017. That was for an offence of assault occasioning bodily harm with a circumstance of aggravation. He had served 55 days of pre‑sentence custody at the time that he was sentenced for that matter, and that was declared, and his parole release was ordered to be immediate. The full-time discharge date in respect of that matter was the 30th of January 2018.
- That parole automatically cancelled upon he being sentenced to another period of imprisonment, that is, for the offence that is the subject of this appeal, pursuant to section 209, subsections (1) and (2) of the Corrective Services Act of 2006. The effect of that cancellation is that the appellant was required to serve the unexpired portion of the sentence calculated pursuant to the legislation.
- He had been returned to custody due to a parole suspension, I assume, on the 3rd of January 2018 in respect of – arising from the matter that is the subject of this appeal, and after – well, as at the time of his sentence on the 18th of January, he still had 34 days of that prior sentence to serve, which, in fact, he did serve. That period of imprisonment ended on the 22nd of February, and from that day until now, he has been in custody in respect – in relation to only the charge that is the subject of this appeal. That is a period of 46 days. It should be noted that the six‑month term of imprisonment imposed on the 18th of January was not ordered to be served cumulatively in respect of that earlier sentence, notwithstanding that there might have been that option open.
- Insofar as the circumstances of the offence the subject of this appeal, the appellant approached the complainant, an 18 year old male, and demanded a cigarette. The complainant stated that he didn’t have any cigarettes, and the appellant then started to verbally abuse the complainant and made mention of being an associate of a motorcycle gang. The complainant walked away from the appellant into a nearby McDonald’s fast‑food store. The appellant yelled at the victim, “Don’t walk away from me,” before slapping the complainant in the back of the head. The appellant then followed the complainant into that store before confronting him again, and at that time, the appellant grabbed the complainant by the head and shook him. At that time, the manager of the store intervened and removed both persons from the premises.
- On the 30th of December last year, after being made aware that police were looking for him, the appellant turned himself in to the Richlands Police Station. He admitted to assaulting the complainant but stated that he couldn’t remember much of the incident due to his being heavily intoxicated at the time. But he said that he confronted the complainant after the complainant called his partner a slut, and he said that that was no excuse for beating up the kid. As I read the facts from the court below, his allegation in that regard was not accepted by the prosecution, nor by the court.
- Insofar as the standards that need to be met on an appeal such as this, section 222, subsection (2)(c) of the Justices Act 1886 provides that:
“...if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.”
- An appeal is generally a rehearing on the evidence given in the original proceeding. I note, though, that new evidence may be adduced at an appeal, but there is no such application in this matter. The appellant must show that the magistrate’s decision was a result of a legal, factual or discretionary error in accordance with the statements of relevance made in Teelow v The Commissioner of Police  2 Qd R 489, paragraph 4, principles relating to sentence appeals, also those that are well known and have been enunciated in House v The King  55 CLR 499, and it is an oft‑quoted passage from that decision that I won’t repeat for the purposes of these remarks today.
- Section 225 of the Justices Act gives the District Court a range of powers to confirm, set aside or vary the order appealed from as the Court considers just, and I note that the passage that I referred to in Teelow v The Commissioner of Police has also been referred to by the appellant in the course of his submissions at paragraphs 3 and 4, and, again, I won’t repeat those paragraphs for the purposes of these ex tempore remarks.
- The appellant has appealed on the grounds that the sentence was manifestly excessive. There was also a second ground of appeal that the sentence was not known to law, but that ground of appeal is not persisted with, and the appeal in respect of that ground is dismissed. In his outline of argument, the appellant has identified the following errors that are alleged in the sentencing process: (1) that the magistrate gave too much weight to the appellant’s criminal history; (2) that the magistrate failed to have proper regard to the mitigating circumstances; and (3) that he imposed a sentence outside the range of appropriate sentences, and, accordingly, it is a sentence infected by a latent error.
- Insofar as the appellant’s criminal history is concerned, it, of course, was tendered at the hearing below. It was three pages in length and contained, inter alia, offences of obstruct or assault police, breaches of bail and a number of applications for fine option orders, some of which were subsequently breached. The most relevant offence on his criminal history was an entry from the 23rd of June 2017 where, on that occasion in the Brisbane Magistrates Court, he was sentenced in respect of that charge that I’ve already mentioned, of assault occasioning bodily harm with a circumstance of aggravation, and was given that sentence of nine months imprisonment, with the declaration of 55 days of pre‑sentence custody having already been served.
- The effect of that sentence was that the appellant was subject to parole until the 30th of January 2018, and he, therefore, breached that parole in the commission of the offence the subject of this appeal. The appellant submits that his Honour deemed this to be the predominant factor when sentencing the appellant, noting that his Honour opened his remarks with the following passage:
“All right. Well, the problem for you is that in addition to the penalty I am going to impose, which, obviously, given the fact that you are on parole, is going to involve imprisonment –”
and it went on from there. There can be no doubt that the appellant’s antecedents are relevant when determining the appropriate sentence, and that prior conviction was clearly a relevant consideration when determining the appropriate sentence for the matter at hand. It is well settled, though, that an offender’s criminal history cannot be given so much weight that the penalty imposed for the offence is disproportionate to the offence itself. In that regard, I refer to Veen v The Queen (No. 2)  164 CLR 465 at 477.
- Insofar as the subject matter is concerned, the offence at hand was a relatively minor example of an assault. As I have said, it consisted of a slap and what appeared to be a brief period of shaking the complainant after grabbing him around the head. There is nothing – no evidence before the court to indicate that any injury or meaningful pain was occasioned to the complainant, although it would undoubtedly have been frightening for him.
- The respondent has, quite properly, drawn my attention to the fact that there are, nevertheless, some aggravating features of the conduct that make this offence more serious than just a minor assault. The offending conduct involved the appellant, while intoxicated, targeting a younger complainant, the appellant himself being about 40 years of age; that it occurred in a public place and was accompanied with verbal abuse and actual violence; that it was somewhat prolonged in that the appellant persisted in following the complainant into the fast‑food store when the complainant was clearly attempting to disengage from him; and that he did not desist of this conduct voluntarily but, rather, it was stopped by a member of the public.
- The learned magistrate in the court below, in my view, correctly noted that it was unprovoked and gratuitous violence, of course, in a public place. The respondent has submitted that the most serious aggravating feature was that the appellant committed this offence of violence whilst he was on parole for an offence of violence. The respondent refers to the following remark by the learned magistrate in the course of his sentencing remarks:
“Obviously, you realise the offending is aggravated by virtue of the fact that you were on parole for an assault occasioning bodily harm, so I am sure you understand perfectly well why a sentence of imprisonment is the only appropriate penalty. If you commit another offence of violence, particularly whilst you are on parole for an offence of violence, then you cannot really expect anything different.”
- The appellant has submitted that the offending, absent the appellant’s criminal history, would not have warranted a term of imprisonment, and I think there can be little doubt in that regard at all. An offender with no prior history would likely have been sentenced to some type of fine together with the obligatory community service order that is required under the legislation and which was imposed on this occasion. The appellant has submitted that whilst the appellant’s history meant that deterrence and community protection loomed larger than might otherwise be the case, it should, nevertheless, have not led the learned magistrate to imprison the appellant.
- I should note as well that on the issue of public protection, it is not without relevance that the offence that resulted in the appellant being sentenced to nine months imprisonment back in June of last year occurred in November of 1999, some 18 years earlier. That really is his only prior conviction for an offence of violence, certainly one of any note, and that lengthy passage of time significantly diminishes the weight that need be given to the consideration of public protection. It was not a matter that was referred to in the course of submissions in the court below, nor in the course of his Honour’s remarks.
- As I’ve already noted, the appellant represented himself at the hearing in the court below via video link from custody. He entered his plea of guilty on the first return of the matter, so it is a plea at the earliest possible time, and he had, of course, as I’ve indicated, turned himself in to the police and made full admissions to the offending conduct. During his submissions to the court below, the appellant informed the learned magistrate that he was (a) disappointed in himself and remorseful; (b) was intoxicated when he committed the offence and said that it was only the second time that he had consumed alcohol whilst he had been subject to that parole order; (c) that he had had a problem with alcohol for all of his life; (d) that he had been consulting with the alcohol and drugs service and had found it helpful; and (e) that he had been in – that he was in full‑time work prior to having been returned to custody.
- The appellant submits that his Honour, in failing to inquire further as to any of those submissions or make any challenge to anything that was said, was in error in some way. It’s submitted that after the appellant stated that he had been in full‑time employment – is something that warranted further inquiry if the magistrate was contemplating requiring the appellant to serve a significant period of time in custody. I note, though, of course, that he had already been returned to custody some 15 days prior to his appearance on that occasion and that he still had a substantial – potentially, a substantial period of time to serve on that other sentence. That diminishes the weight of that submission to some extent.
- I have no doubt that the appellant’s submission that he was remorseful was genuine given that it was supported by his admissions to the police, the fact that he’d turned himself in and had entered a plea of guilty at the earliest possible opportunity. There was also some material before the court indicating that he was making steps towards rehabilitation, including the obtaining of counselling and having obtained employment, all of which provided some hope that he might not continue to further offend and be able to overcome his alcohol problem.
- When sentencing, though, the learned magistrate made multiple references to the appellant’s criminal history and to the fact that he had breached his parole, but, by way of contrast, his comments relating to the mitigating features were very brief. It must be noted that the submissions made to him in that regard were also very brief. The magistrate’s comments were limited to the following passages:
“Well, I’ve taken into account your plea of guilty.”
“So in relation to the offence itself, I have taken into account what you have said, your expression of remorse, and I have taken into account the matters I am required to pursuant to section 9 of the Penalties and Sentences Act.”
- Whilst those passages are brief, as I say, they simply reflect the very brief submissions that were made to him by the appellant himself. It is quite clear the appellant did himself no favours by representing himself in this matter, and it is difficult to discern error on the part of the magistrate simply due to the brevity of those comments.
- Ultimately, the predominant submission of the appellant is that when one has regard to the relatively minor nature of the offence, the penalty which was imposed failed to have regard to – appropriate regard to the mitigating factors and was manifestly excessive in all of the circumstances.
- I have been referred during the course of submissions to a number of what are said to be comparable decisions to assist me in determining this matter. I’ll briefly refer to those decisions in summary form now.
- There was the matter of Cox v The Commissioner of Police  QDC 220, which was before his Honour Judge Robertson. That matter involved two counts of common assault. There were two assaults on a neighbour in an apartment building on separate occasions. On the first occasion, the offender abused the victim and struck that person in the jaw with an open hand, which was unprovoked, and on the second occasion, the offender kicked the victim multiple times in the leg whilst the victim was blocking him from using the lift. Not‑guilty pleas were entered on – in relation to that matter, and I note that the offender had a criminal history, which included a recent assault against the same victim. The consequence of that matter was that the offender was convicted and fined $600 for both offences, which was not disturbed on appeal.
- In Quirk v Steginga  QDC 304, before his Honour Judge Irwin, the matter involved one count of common assault and a breach of a bail undertaking. The offender was only 18 years of age at the time of the offence and had a criminal history, which included a prior conviction for assault or obstruct police. In this particular matter, the defendant was – the offender was intoxicated, and he abused and threatened the complainant on a train and punched her five times in the head and was on top of the complainant when she fought him off. There was some evidence that the complainant was injured to some degree and was upset. The offender entered a plea of guilty and cooperated at interview. He was sentenced at first instance to three months imprisonment with 12 months probation and ordered to pay $500 compensation, but on appeal, that was set aside, and he was placed on probation for a period of 12 months.
- In Batts v Queensland Police Service  QDC 161, before his Honour Judge Durward SC, it again involved one count of common assault. In that matter, the offender slapped the victim in the face. He pleaded not guilty. Sorry. She pleaded not guilty. She was older than the victim. The offender’s daughter had already assaulted the victim prior to that slap taking place, but the defendant was not a party to that. She had some criminal history but nothing for violence. A $2000 fine at first instance was found to be manifestly excessive and reduced to $600 on appeal.
- And, finally, in Di Vita v Queensland Police Service  QDC 230, before his Honour Judge Rackemann, the matter involved one count of common assault. It was a road‑rage incident. It involved verbal abuse and the throwing of punches which connected to the victim’s face and a headbutt to the victim’s nose. He pleaded guilty and had no history of violent offending. He was ordered to perform 180 hours of community service and pay $1000 in compensation, and that was not disturbed on appeal.
- The respondent has drawn my attention to some distinguishing features between those matters and this, and, of course, it is true to say that no two matters are ever alike. In respect of the matter of Cox v The Commissioner of Police, it’s been submitted, and I note, that Cox had a previous conviction for an assault against the same victim, but the respondent submits that Cox presented with a less serious criminal history than this appellant as he had not been sentenced to a period of imprisonment previously, and he did not commit offences whilst he was the subject of parole for an offence of violence.
- In Quirk v Steginga, the fact that the offender was just 18 years of age was said to be a significant distinguishing feature, and I agree. And, again, that person was not subject to parole at the relevant time. It is submitted in respect of the matter Batts v Queensland Police Service that it involved less prolonged conduct by someone who had no criminal history for violence and was not on parole. And, finally, Di Vita v Queensland Police Service – whilst involving more serious conduct, it is noted that Di Vita had no criminal history for offences of violence and, again, was not on parole.
- The respondent has submitted whilst some of the cases referred to involved more serious conduct, the decisions don’t involve a mature offender with a comparable criminal history to that of the appellant and that they don’t involve offenders who were, at the time of the offence, on parole for like offending.
- Taking all those matters into account, and notwithstanding those distinguishing features, it is, nevertheless, quite apparent that the sentence imposed in this case is manifestly excessive and, in and of itself, is demonstrative of error. I note, tellingly – and this is not meant as a criticism in any way – that the respondent has not provided any comparable decisions to support its position.
- Given that that is the view that I have taken in respect of this matter, it is, of course, appropriate for this court to sentence afresh. Given that the defendant has now served 46 days of imprisonment referable only to this offence and that as a consequence of the commission of this offence, he was required to serve a further period of imprisonment after his parole suspension and cancellation for that earlier offence, something which is, of course, relevant to the determination of an appropriate sentence in the overall picture, it is my view that the appropriate sentence now is that he be sentenced to that period of 46 days that he has served to the present time that is referable only to this matter.
- So the order of the court is:
- The sentence of six months imprisonment with a parole release – sorry – a parole eligibility date of the 16th of March 2018, which was imposed on the 18th of January 2018 at the Richlands Magistrates Court, is set aside;
- Instead, the appellant is sentenced to 46 days imprisonment;
- I declare that that period of 46 days imprisonment – sorry. I note that the defendant has served 46 days imprisonment from the 22nd of February to the 8th of April 2018, and I declare that to be time served under the sentence that I have just imposed;
- The community service order of 40 hours that was imposed on the 18th of January is to remain as ordered.
- Published Case Name:
Richardson v Commissioner of Police
- Shortened Case Name:
Richardson v Commissioner of Police
 QDC 102
09 Apr 2018