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- Unreported Judgment
LAR v Queensland Police Service QDC 105
DISTRICT COURT OF QUEENSLAND
LAR v Queensland Police Service  QDC 105
QUEENSLAND POLICE SERVICE
23 February 2018 (ex tempore)
23 February 2018
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant appealed sentences imposed by the learned magistrate – where nine months’ imprisonment was imposed for common assault – whether the sentence imposed was manifestly excessive – whether the learned magistrate erred by not having sufficient regard to ss. 9(3) and 13 Penalties and Sentences Act – whether the learned magistrate erred by failing to have regard to the principles of rehabilitation
Penalties and Sentences Act 1992 (Qld)
Forrest v Commissioner of Police  QCA 132
McDonald v Queensland Police Service  QCA 255
R v Amituanai  78 A Crim R 588
R v Clumpoint  QCA 199
R v Milano; ex parte Attorney-General  2 Qd R 186
D. Posner for the appellant
W. Slack for the respondent
Aboriginal and Torres Strait Islander Legal Service for the appellant
Office of the Director of Public Prosecutions for the respondent
- The appellant, LAR, appeals in respect of the following sentences imposed by the learned magistrate at Mornington Island Magistrates Court on 12 October 2017:
- commit public nuisance – convicted and fined $150;
- possess utensils used in connection with a drug offence – convicted and fined $150; and
- common assault – convicted and sentenced to nine months imprisonment, with a parole release date of 11 January 2017 (i.e. three months).
- Mr Posner, who appears by video link for the appellant, clarified that the appeal, as pursued, relates only to the sentenced imposed on the common assault and no complaint is made in reality about the fines imposed on the public nuisance and possession of utensil charges.
Grounds of appeal
- The appellant’s grounds of appeal are as follows:
- the sentence imposed was manifestly excessive;
- the learned sentencing magistrate erred by not having sufficient regard to s.13 of the Penalties and Sentences Act;
- the learned sentencing magistrate erred by failing to have regard to s.9(3) of the Penalties and Sentences Act; and
- the learned sentencing magistrate erred by failing to have regard to the principles for rehabilitation.
- The appellant was granted appeal bail and was released on 14 December 2017, which, by my calculations, is a period of 63 days, or approximately two months.
- As I’ve identified, although included in the notice of appeal, the appellant takes no issue in his outline of submissions in respect of the fines imposed, which, of course, were unremarkable. The reasons, therefore, are directed only to the sentence of 9 months imprisonment imposed on the offence of common assault.
- In McDonald v Queensland Police Service  QCA 255, Bowskill J (with whom Fraser & Philippides JJA agreed) restated the basis of an appeal to the District Court from the Magistrates Court in these terms:
It is well established that, on an appeal under s 222 [Justices Act 1886] by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error. [citations omitted].
- Further, in Forrest v Commissioner of Police  QCA 132, Sofronoff P (with whom Gotterson & Morrison JJA agreed) stated:
…an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case.
- The police prosecutor at sentence outlined the facts as follows:
If I turn to the common assault firstly. The defendant is [LAR], born in ’82. Victim in this matter is [NAME DELETED], born in ’63 – son and mother relationship. 7.50, Saturday 11th of February 2017 at [STREET ADDRESS DELETED], Mornington Island. The defendant has returned to the address, entered his house. The defendant has walked over to the victim, kicked her in the face using his foot. The victim has awoken, screamed out for help. A number of persons heard the screams, gone into the house. The defendant has walked outside. One [NAME DELETED] has called police. Police from MorningtonIsland arrived a short time later to the victim walking out of the front door, upset, crying for help. Her demeanour was fearful and upset. The defendant came out walking from the side of the house, shouting words to the effect of “I didn’t do nothing”.
Police obtained a version from the victim. The defendant was given his rights and cautioned [indistinct] stated words to the effect of “I didn’t do nothing”. The following charges, your Honour, flow from that incident. During the disturbance [indistinct] gave information to the police the defendant was smoking gunja [indistinct] out the back of the house. The police conducted a search of the back – located a water pipe. Namely – they described it – a bucket bong made from a container and a soft-drink bottle. Had a [indistinct] cannabis. Had – soft-drink bottle had residue on the inside. Present at the property – the defendant stated “Yeah, that’s mine. I love my weed.” While the defendant was standing in the street, speaking – public nuisance. The defendant has yelled out “You’re a cocksucker. You’re a cunt. You’re all bullshit liars.” Level of voice could be clearly heard by victim and witnesses inside the house.
- The prosecution at sentence tendered the appellant’s six page criminal history, but specifically disavowed making any submission on penalty.
- Although the criminal history was tendered, and was the subject of submissions, and was referred to in the learned magistrate’s sentencing remarks, it was not marked as an exhibit, nor was it retained on the Magistrates Court files. I express my gratitude to Mr Slack, who, on being advised of this, was able to provide a copy of the criminal history, to enable this appeal to proceed. With respect, there is a fundamental obligation on a judicial officer conducting a sentence proceeding (or trial for that matter) to mark as exhibits and retain on the file any material tendered by prosecution or defence, so that an appellant court can be properly appraised of what material was before a judicial officer at sentence. To do otherwise is, in my view, a significant failure to adequately carry out one of the mandatory tasks of a judicial officer in such circumstances.
- The criminal history demonstrates that the appellant has an extensive history littered primarily with street offences and some more serious charges, that the appellant has breached community service and was dealt with on 19 July 2000, breached probation and was dealt with on 20 September 2006, was dealt with for breach of suspended sentence on 17 June 2008, again for a further breach of suspended sentence on 8 June 2011, convicted but not further punished for an assault or an obstruct police in Mount Isa Magistrates Court on 16 October 2014, and convicted of a contravention of a domestic violence order at Mornington Island on 13 December 2016, for which he was sentenced to 40 hours community service.
- The appellant’s counsel at sentence submitted that the appellant’s criminal history had a contravention of a domestic violence order “that was not against the victim here” [ie not against the appellant’s mother]; submitted that the history was “mostly public nuisances, some traffic matters and [indistinct]”, and endorsed the learned magistrate’s observation that there was “not much with violence, it seems”. With respect, a careful analysis of the criminal history would indicate that at best there might have been some very low level of violence associated with what is either an assault/obstruct police for which the defendant was sentenced on 16 October to a conviction but not further punished, and the circumstances of the contravention of the domestic violence order to a person not the appellant’s mother resulted in a penalty of 40 hours community service. In essence, although a constant and repeated pattern of primarily street level offences is reflected in the criminal history, it does not reflect a criminal history involving violence of any significance at all.
- The appellant’s counsel submitted by way of sentence for a period of probation; alternatively a period of imprisonment, wholly suspended, but when the learned magistrate pointed out that the appellant had previously breached suspended sentences on two occasions, submitted for a prison sentence with immediate parole.
- It should be noted that the appellant was originally charged with assault occasioning bodily harm, but after a case conference prior to the sentence taking place, the matter proceeded as a plea to common assault. At transcript p. 1-5, the learned magistrate appears to enquire of the appellant’s solicitor the reason for the prosecution decision to proceed on the common assault charge. With respect, the learned magistrate was constrained by the charge on which the prosecution chose to proceed, and it was entirely appropriate for the appellant’s solicitor to be as circumspect as he was in response to the learned magistrate. No submissions were made on behalf of the appellant, which were inconsistent with his plea to common assault, and it was in my view not appropriate for the learned magistrate to seek to enquire behind the charge proffered by the prosecutor, to which the defendant pleaded guilty upon being charged from the bench. No submissions were made on behalf of the appellant as to the actual sentence to be imposed (other than a general submission that any jail sentence should be wholly suspended or subject to immediate parole). No comparatives were handed up or referred to by the appellant’s solicitor, nor, as I have identified, by the police prosecutor. In fairness to both, I can indicate that I have extensively reviewed the unreported decisions of the Queensland Court of Appeal and the Queensland District Court, and I was unable to identify any comparatives which appeared to be of any particular relevance to the circumstances of this offending.
- The learned magistrate’s sentencing remarks are brief, and can be quoted in full:
Stand up, thanks, [LAR]. Now, today you are to be sentenced on one count of common assault, and that carries a maximum penalty of three years. You have pleaded guilty today, and there has been a – it has taken a little while to get to this point. You were originally charged with assault occasioning bodily harm. That has been reduced to a common assault. The matter was set for hearing and has turned into a plea today.
I must say, I am not sure how to treat the plea given that the reality is, I suppose, he [sic] is charged today and pleads today, but I do not know that I can ignore the process that leads to this point. But there is no trial, the witness and the mother has [sic] not been called or had to give evidence, nor been subject to cross-examination, and there should be some reward for that fact.
The circumstances of the offence are very troubling. How a son can kick his mother in the face or in the head is beyond me, but you managed to do that, and it is clear that there was no immediate contrition on your part. Do – you suggested to everyone who would listen to you that you had done nothing, but, clearly, you did kick her in the head. Any cooperation with or assistance given to law enforcement agencies in the investigation of offences must be taken into account. The making of a true confession is one such factor; however that is not present in your case.
I do take into account in your favour your plea of guilty. I take into account those matters that were raised – that there was no evidence needed to be called from the witness. I have mentioned the degree of cooperation and assistance. I accept there is remorse on your part evidenced by the plea of guilty. You are a man who is now 36 years of age, 35 at the time of offending. I beg your pardon. 34 at the time of offending, 35 now. You have previously – your character is impugned by history, both traffic and criminal. You have previously served terms of imprisonment. Your responses to community based orders have been patchy. There are – breaches appear on your traffic and criminal history, and the suspended sentences have not provided a sufficient deterrent to you.
The purposes for which I am imposing this sentence are to punish you to an extent and in a way that is just in the circumstance, to provide conditions that I [indistinct] help you to be rehabilitated, to deter you and to deter others from committing this or a similar offence, to make it clear that the community acting through the Court denounces the sort of conduct in which you were involved and to protect the Queensland community from you.
In this instance, there is a strong need for deterrence and denunciation. A mother in her own house should not feel or – should feel safe and, certainly, immune from attacks by her, and the community demands that the Court denounces the sort of conduct in which you were involved. I have had regard to the serious nature of the offence, your previous criminal history, previous sentencing options, which provided no deterrent, detrimental effect that this must have had on the victim and the prevalence of the offence in the community.
So for the offence of common assault you are convicted. The conviction is recorded. You are sentenced to nine months imprisonment. I fix a parole release date of the 11th of January 2018, which, in my view, adequately reflects the plea of guilty and the timeliness of that plea. For the possession of the utensils, you are convicted and fined $150. The property is forfeited. And for the public nuisance you are convicted and fined $150. The fines are referred to SPER.
- It is useful, in addressing the grounds of appeal, to deal firstly with grounds 2-5, before returning to address ground 1.
- It was submitted that the learned magistrate failed to have sufficient regard to the Penalties and Sentences Act, which requires a guilty plea to be taken into account.
- With respect, the learned magistrate took into account the plea of guilty at decision 1-2 namely:
You were originally charged with assault occasioning bodily harm. That has been reduced to a common assault. The matter was set for hearing and has turned into a plea today.
- Further the learned magistrate referred in the next passage to:
I must say I’m not sure how to treat the plea.
- And at decision p.3, lines 2-4, stated:
I fix a parole release date of the 11th of January 2018 which in my view adequately reflects the plea of guilty and the timeliness of that plea.
- I consider the early plea of guilty to the common assault was clearly acknowledged by the learned magistrate and this ground fails.
- It is submitted that the learned magistrate placed too much weight on the appellant’s criminal history.
- At decision p.2, line 27 – lines 27-31, the learned magistrate said:
You have previously – your character is impugned by your history, both traffic and criminal. You have previously termed – served terms of imprisonment. Your responses to community based orders have been patchy. There are – breaches appear on your traffic and criminal history, and the suspended sentences have not provided a sufficient deterrence to you.
- Further at decision p.2, lines 43-46, the learned magistrate said:
I have had regard to the serious nature of the offence, your previous criminal history, previous sentencing options, which provided no deterrent, detrimental effect that this must have had on the victim and the prevalence of the offence in the community.
- With respect, in the context of the appellant’s criminal history (and it would seem the appellant’s traffic history, which again was not marked as an exhibit on the original sentence), it is clear that the learned magistrate was entitled to take into account the nature and extent of the prior offending, and the poor response to various sentences imposed, including both community based orders and suspended sentences. The appellant has not demonstrated any error in the learned magistrate’s approach to the criminal history and this ground fails.
- It is submitted that the learned magistrate failed to have regard to s.9(3) Penalties and Sentences Act. No detail was provided in respect of this ground, which clearly fails for lack of specificity.
- It is submitted that the learned magistrate failed to have regard to the principles of rehabilitation.
- I accept, with respect, that no submissions were made by defence counsel at the original sentence in respect of the appellant’s personal antecedents. This is in my view a significant lapse in the presentation of a plea in mitigation. The only assistance the learned magistrate received was his observation that the appellant appeared to be under the influence of something at the time of the office, an observation affirmed by the appellant’s solicitors at sentence.
- The learned magistrate was left to infer what he could from the appellant’s criminal history, and he proceeded to place the appellant on parole after serving a-third of the head sentence. With respect, this does not represent failure to have regard to the principles of rehabilitation, particularly given the lack of assistance provided to the learned magistrate by counsel for the defendant at the original sentence.
- This ground of appeal fails.
- It was submitted that the sentence imposed was manifestly excessive.
- The learned magistrate, in the absence of any comparatives from prosecution or defence, appears to have arrived at the sentence imposed (nine months imprisonment), based on the following passage:
The purposes for which I am imposing the sentence that will punish you to an extent and in a way that is just in the circumstances, to provide conditions that I [indistinct] help you to be rehabilitated, to deter you and to deter others from committing this or a similar offence, to make it clear that the community acting through the court denounces the sort of conduct in which you were involved, and to protect the Queensland community from you.
In this instance there is a strong need for deterrence and denunciation. A mother in her own house should not feel or – should feel safe and, certainly, immune from attacks by her son, and the community demands that the court denounces the sort of conduct in which you were involved. I have had regard to the serious nature of the offence, your previous criminal history, previous sentencing options, which provided no deterrent, detrimental effect that this must have had on the victim, and the prevalence of the offence in the community.
- The appellant, on appeal, relies on the decision in R v Clumpoint  QCA 199. That matter was an appeal against conviction; it involved three common assaults, and the imposition of a sentence of nine months on each count, concurrent with one another, but to be served cumulatively on a then existing sentence; and in the context of an appellant with a criminal history containing four assaults, 12 convictions in total, including several sentences of imprisonment. In my view it is not helpful in the context of the factual matrix of the appeal before me, other than perhaps providing in a very broad sense some measure of the high water mark for common assaults.
- Conversely, the respondent has been unable to refer me to any authorities, but has submitted that the maximum penalty for common assault is three years, the penalty imposed in this case was less than a third of the maximum, and was on that basis unexceptional. With respect, again that was not particularly helpful in respect of dealing with this ground. As I have noted previously, however, my own research have been unable to identify any comparative at either Court of Appeal level or District Court appellant level which would provide any greater assistance in respect of the appropriate penalty be imposed.
- I note that R v Milano; ex parte Attorney-General  2 Qd R 186, 189 is authority for the proposition that the error of the sentence in court may be demonstrated by the manifest excessiveness of the sentence imposed, ie whether the sentence is outside the sound exercise of the sentencing court’s discretion.
- In the context of my review of unreported appeal decisions in the District Court and the Court of Appeal, it is the situation where this court has to look at the sentence imposed, and decide whether that sentence was (in the R v Milano sense) outside the sound exercise of the sentencing court’s discretion.
- I note the following relevant factors:-
- The charge was common assault.
- No injury was alleged - (in R v Amituanai  78 A Crim R 588, 589) the court stated (Pincus JA) “[f]or reasons which are evidence enough, the offender will find that his punishment may depend on the extent of the damage the victim happens to sustain.”)
- The mechanism was a kick.
- The complainant was the appellant’s mother.
- The appellant has significant and extensive criminal history, but with only one previous breach of domestic violence (circumstances which were unspecified but did not relate to the complainant in this matter), and one previous assault or obstruct police officer, for which no conviction was recorded, but otherwise no offences of violence whatsoever. There were of course, as I have identified, two breaches of community based orders and two previous breaches of suspended sentences.
- In that context, given the appellant’s plea of guilty to the charge of common assault (substituted for the original charge of assault occasioning bodily harm), and despite the paucity of personal antecedents to which I have previously referred, I consider the sentence of nine months to be clearly outside the sound exercise of the sentencing discretion whilst not in any way seeking to detract from the learned sentencing magistrates appropriate denunciation the utter unacceptability of a defendant kicking his mother in the head in these circumstances.
- Ordinarily, I would consider the appropriate sentence to have been imposed would have been a jail sentence of no more than three months. However as I have identified, the defendant served 63 days before being released on appeal bail, which is of course well in excess of the usual one-third of a head sentence, if it were pitched at three months. In the circumstances then, I consider it is appropriate that in this case the defendant’s sentence be fixed at time served with an appropriate declaration.
- Accordingly I make the following orders:
- Appeal granted;
- Set aside the sentence of nine months imprisonment for the offence of common assault imposed at Mornington Island Magistrates Court on 12 October 2017;
- Substitute a sentence of 63 days imprisonment;
- Declare the period between 12 October 2017 and 14 December 2017, a total of 63 days imprisonment, as time served;
- Otherwise affirm the sentence imposed by the learned magistrate at Mornington Island Magistrates Court on 12 October 2017.
- Published Case Name:
LAR v Queensland Police Service
- Shortened Case Name:
LAR v Queensland Police Service
 QDC 105
23 Feb 2018