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- Unreported Judgment
Hoger v Commissioner of Police QDC 145
DISTRICT COURT OF QUEENSLAND
Hoger v Commissioner of Police  QDC 145
COMMISSIONER OF POLICE
Magistrates Court at Toowoomba – Date of Sentence: 13 April 2018
31 July 2018 (ex tempore)
31 July 2018
The appeal is dismissed.
CRIMINAL LAW – APPEAL AGAINST SENTENCE – where the appellant pleaded guilty to one count of stealing, two counts of possessing instructions for producing dangerous drugs, one count of possession of a knife in a public place and other offences – where the appellant was sentenced to six months, two months and one month imprisonment respectively – whether the sentence was manifestly excessive – whether the structure of the sentence resulted in a crushing sentence – whether leave should be given to adduce further evidence regarding prospects of parole
R Peters (sol) for the respondent
Appellant was self-represented
Director of Public Prosecutions for the respondent
- This is an appeal under s 222 of the Justices Act 1886 (Qld) against a number of sentences imposed in the Magistrates Court in Toowoomba on 13 April 2018.
- The appellant was sentenced on his own pleas of guilty. The sentences imposed were as follows:
Date of offence
Criminal Code, s 398
6 months imprisonment
Summary Offences Act 2005, s 11(1)
Trespass – entering or remaining in dwelling or yard
1 month imprisonment
Summary Offences Act 2005, s 16
Unlawful possession of suspected stolen property
2 months imprisonment
Weapons Act 1990, s 51(1)
Possession of a knife in a public place
1 month imprisonment
Drugs Misuse Act, s 8A
Publishing or possessing instructions for producing dangerous drugs
2 months imprisonment
Drugs Misuse Act, s 10(2)(b)
Possess utensils or pipes etc that had been used
Convicted and not further punished
Criminal Code Act 1995 (Cth), s 471.1(1)
Theft – mail receptacles/articles/postal messages
Fined $300.00 and referred to SPER
Drugs Misuse Act, s 8A
Publishing or possessing instructions for producing dangerous drugs
2 months imprisonment
Criminal Code, s 408D(1)
Obtain or deal with another entity’s identification information for purpose of committing or facilitating commission of an indictable offence
6 months imprisonment
Criminal Code, s 408C(1)(B)
Fraud – dishonestly obtains property from another
6 months imprisonment
- The learned Magistrate fixed a parole eligibility date of 26 May 2018 in respect of all of the charges.
Grounds of Appeal
- The Notice of Appeal records that the appellant only appeals against the sentences imposed with respect to possession of a knife, stealing and publishing or possessing instructions for producing dangerous drugs.
- The grounds of appeal listed in the Notice of Appeal were:
“Severity of sentence
Totallity (sic) of sentence”
- The appellant expanded upon the grounds for appeal in his written outline. In summary, in his written outline the appellant submits:
- (a)the penalty for the stealing offence is excessive in light of comparative sentences, the criminality of the offending and monetary value of the offence;
- (b)the penalty for the possession of a knife offence should have been dealt with by way of fine or bond so as not to activate an automatic cancellation of the parole order resulting in 54 days’ time not served;
- (c)the six month head sentence should have been dealt with by way of suspension or should have had an earlier full time date;
- (d)the magistrate was not aware that it takes four to six months to get approval for parole;
- (e)the magistrate was not aware that the appellant does not have appropriate accommodation and as such will not be granted parole; and
- (f)the magistrate did not intend for the appellant to serve the whole six months imprisonment.
- The appellant submits that the sentences should be restructured so that he is released on the hearing date for this appeal.
- At the hearing of the appeal, I clarified with Mr Hoger those matters that were of concern to him. It seemed to me that there were other offences that carried a sentence of six months imprisonment that may mean that his appeal was futile in terms of his ultimate position that he ought be released today.
- At the hearing, Mr Hoger clarified that he no longer sought to have the Court consider whether the sentence imposed with respect to publishing or possessing instructions for producing dangerous drugs was manifestly excessive, but he did wish the Court to consider whether the sentences for each of those offences for which a six months imprisonment had been ordered were manifestly excessive. He also still maintained that the one-month imprisonment for possession of a knife in a public place was manifestly excessive.
- In addition, Mr Hoger submitted that the structure of the sentence ought to have been a suspended sentence or, at the very least, a partially suspended sentence, and he maintained his submissions with respect to the difficulties posed with respect to prospects of parole.
- As such, the issues sought to be agitated by the appellant relate to:
- (a)the failure to take account of the appellant having no prospect of being granted parole;
- (b)whether the sentence for possession of a knife was manifestly excessive;
- (c)whether the head sentence of six months for stealing, obtain or deal with another entity’s identification information for purpose of committing or facilitating commission of an indictable offence and fraud was manifestly excessive; and
- (d)whether the sentences ought to have been suspended (either wholly or partially).
Nature of Appeal
- Section 222(2)(c) of the Justices Act 1886 provides that where a person has pleaded guilty, the sole ground for appeal is that the “punishment was excessive or inadequate”.
- Under s 223 of the Justices Act 1886, the appeal is by way of rehearing on the evidence given before the Magistrates Court. It involves a review of the record of proceedings below, rather than a completely fresh hearing, subject to the grant of leave, on special grounds, to adduce fresh, additional or substituted evidence.
- To succeed on an appeal against a Magistrate’s exercise of sentencing discretion, the appellant must establish an error of the type identified in House v The King (1936) 55 CLR 499, 504-5;  HCA 40. It is not enough that this court considers that, had it been in the position of the Magistrate, it would have taken a different course.
- Where it is alleged that a sentence is manifestly excessive or manifestly inadequate, appellate intervention is not justified simply because the result arrived at is markedly different from other sentences that have been imposed in other cases: Wong v The Queen (2001) 207 CLR 584, 605-6 ;  HCA 64.
- As was observed by Chesterman JA in R v Jackson  QCA 103 at :
“The cases do suggest that the applicant has been punished severely. That, however, does not dispose of the application. To succeed the applicant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no one “right” penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of fact or law.”
- Manifest error arises if the sentence is beyond the range of sentences that could have been imposed: it is revealed by a consideration of all of the matters that are relevant to fixing the sentence: Hili v The Queen (2010) 242 CLR 520, 539 ;  HCA 45.
Circumstances of the offending in respect of which the appeal is brought
- On 11 October 2017, the appellant was located by police at a powered shed at the back of an unoccupied house in Toowoomba. This is the trespass offence.
- The appellant had plugged his mobile phone into a power point in the shed and was charging the phone. That is the basis for the stealing offence.
- The appellant was in possession of a backpack that contained a number of items. Inside the backpack was a small plastic container holding several memory cards. The memory cards contained two PDF documents detailing how to produce dangerous drugs, namely Methylamphetamine and LSD. These are the two offences of possessing instructions.
- Also in the backpack were eight different bank cards in various names and a pension card belonging to a person unknown to the appellant. That is the unlawful possession of suspected stolen property offence.
- The appellant had opened mail belonging to another without permission. He was located with this mail. That forms the basis for the mail theft offence.
- The possess utensils offence was founded on the fact that the appellant had a used glass meth pipe in his backpack.
- When police first attended, they asked for the appellant’s details. He provided an incorrect name, “Gary Wright”, and an address. Subsequent enquiries by police into the incorrect name revealed that Gary Wright had been a victim of a burglary on 28 August 2017. Gary Wright’s drivers licence and bank cards had been taken. The appellant acquired and used these cards to open a Commonwealth Bank account in Mr Wright’s name on 11 September 2017. These facts form the basis for the using identification information and fraud offences.
- The facts for the possession of a knife were that on 10 August 2017, police intercepted the appellant on a street in Toowoomba. The police officers intercepted the appellant because they saw him drop a small flick knife into some bushes. The appellant claimed ownership of the knife and claimed he had gotten rid of it when he saw police coming.
- The prosecutor at sentence placed these facts of the offending on the record.
Antecedents of the appellant
- The appellant has a relevant and extensive eight page Queensland criminal history with similar offences; namely property, drug, knife possession and dishonesty type offences. The appellant has had sentences of imprisonment imposed on four occasions, has been subject to parole on three occasions and has spent considerable time in custody.
- The appellant has appeared in Queensland Magistrates Courts on 14 occasions and in the Queensland District Court on one occasion.
- On 22 May 2017, the appellant was sentenced for breaching a probation order as well as a large number of property, dishonesty, and knife possession offences. The court imposed a concurrent term of 12 months and a cumulative term of one month to be served at the end of the concurrent term pursuant to section 33(4) of the Bail Act 1980. The court fixed a parole release date of 24 July 2017.
- The appellant committed the knife possession, obtain identification and fraud offences while subject to parole. The parole order was suspended on 3 October 2017 and cancelled on 5 October 2017. The remainder of the offending occurred whilst the appellant was at large on 11 October 2017.
- The combined effect of the suspension of the parole order on 3 October and the appellant being at large until 11 October is to cause a further eight days to be added to his full-time date for those offences such that the full-time date at without the subject offences became 27 April 2018.
- The appellant currently has a full time release from custody date of 12 October 2018.
Prospects of parole
- Mr Hoger wishes the Court to have regard to the fact that there were other circumstances that the Magistrate was not aware of with respect to a parole application. He submits that there is a lengthy process for an application of parole; that the process takes four to six months to be approved; and he says that he does not have what the parole board considers appropriate accommodation.
- There was no evidence of these matters, or submissions about them, before the learned Acting Magistrate.
- Section 223(2) of the Justices Act 1886 provides:
“However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.”
- In Pavlovic v Commissioner of Police  QCA 134, the Court of Appeal considered s 223(2) of the Justices Act 1886. It relevantly observed at :
“In explaining why leave should not be granted, the learned District Court judge cited the “three main considerations” described by Gibbs CJ in Gallagher v The Queen as being relevant to a determination of “whether a miscarriage of justice has occurred because evidence now available was not led at the trial.” It is clear that the reference in s 223(2) of the Justices Act to “special grounds” indicates that there must be good reason identified to justify a departure from the application of the rule in s 223(1) that an appeal under s 222 of the Justices Act is “by way of rehearing on the evidence given in the proceedings before the justices”. While Gallagher did not involve consideration of s 223 of the Justices Act, it is nonetheless a useful guide for the purposes of identifying the kind of “special grounds” which might be said to justify the grant of leave under s 223(2).”
- The Court of Appeal went on to identify the three main considerations referred to in Gallagher v The Queen (1986) 160 CLR 392 as:
- (a)whether the evidence relied on could, with reasonable diligence, have been produced by the accused at trial;
- (b)whether the evidence is apparently credible (or at least capable of belief); and
- (c)whether the evidence might reasonably have lead a tribunal of fact to return a different verdict.
- I am not satisfied that it is appropriate that I give leave to adduce fresh evidence. There are a number of reasons. The first is that there is, in fact, no evidence of the matters referred to by the appellant. There is also no indication that the evidence could not have been produced by the appellant at the original hearing. It had not been raised by the solicitor for the appellant at first instance.
- In any event, these matters do not demonstrate that the sentences were manifestly excessive.
- As was observed by Jackson J in R v Bliss  QCA 229 at :
“The applicant is concerned that he will not be released on parole either on the date on which he becomes eligible or afterwards. However, that is not a proper basis upon which to challenge the sentence: R v Weeding  QCA 311, . The legislation confers the discretionary power to make a parole order on a parole board, not on this Court.”
- A similar observation was made by McMurdo P at  where she said:
“This means the applicant is now eligible to apply for release on parole. He stated below and in this Court that he has no prospect of parole because of his poor history. It is, of course, a matter for the parole board to determine if and when he is released on parole.”
- In this case, the order of the magistrate was one that included setting a parole eligibility date. A parole eligibility date was the only option open to the magistrate, not a parole release date. This is because of section 160B of the Penalties and Sentences Act 1992. Unless no period of imprisonment was ordered with respect to any of the offences, then by operation of section 160B of the Penalties and Sentences Act, the Court was bound to only fix a date that the appellant was eligible for parole. This is because of earlier sentences imposed on the appellant.
- On 22 May 2017 in the Kingaroy Magistrates Court, the appellant had been sentenced to 12 months imprisonment as well as a cumulative sentence of one month for a failure to appear in accordance with an undertaking under the Bail Act. With respect to those sentences, 63 days had already been served, commencing on the 20th of March 2017. The full time date under those sentences was the 19th of April 2018. The sentences the subject of this appeal were dealt with by the Toowoomba Magistrates Court on the 13th of April 2018.
Should the sentences have been suspended?
- The appellant submits that all three head sentences should be greatly reduced and partially suspended or structured another way that sees him released today, as he has served over half of his sentences already and should not have to serve the remaining full-time balance. He also submits that they should have been structured differently because he had to serve the remainder of his original balance of parole.
- As I have already mentioned, if a sentence of imprisonment was to be imposed, a parole eligibility date was –the only option because the subject offending occurred while on parole.
- In R v Hill  QCA 177, Applegarth J observed:
“It is well-established that the combined effect of an original sentence and a sentence which is imposed for a later offence ought not be such as to make them a “crushing” burden:
“The combined effect of resurrecting the [original] sentence … and imposing a sentence for the later offence, ought not be such as to make them a ‘crushing’ burden on the respondent. At the same time it would plainly be an error so to structure the later sentence as to disregard the commission of yet another offence of the same description in the course of his parole.”
- The terms of imprisonment were concurrent rather than cumulative. It was open to the Acting Magistrate to impose cumulative terms. The appellant has had the benefit of concurrently serving the remaining period of parole, save the term for failing to appear under the Bail Act 1980, with the terms imposed by the learned Acting Magistrate. The Acting Magistrate considered the time that appellant had already spent in custody, although it could not be declared. At the original sentence, the solicitor for the appellant noted that it was likely that he would have to serve the balance of any term.
- The learned Acting Magistrate imposed terms of imprisonment that were not more severe in all of the circumstances.
Was the penalty for the possessing a knife offence excessive?
- The appellant submits that the knife offence could be dealt with by a fine or a bond. This is not the relevant question. The question is whether a period of one month imprisonment is manifestly excessive.
- The appellant originally submitted that the sentence should have been a fine or bond, so as not to activate the further accumulation of 54 days on top of the sentence he was serving. Corrective Services have since corrected an error that it had made in the calculation of the appellant’s full time date. As such, this submission is no longer pressed.
- The appellant, in his oral submissions, did however submit that he considered the sentence of one month for the knife offence to be excessive having regard to conversations he has had with others while in custody with respect to the sentence those others received with respect to similar offences.
- The maximum penalty for the offence is one year imprisonment. The penalty imposed was one month imprisonment. The learned Acting Magistrate specifically referred to three previous instances of knife possession offences. The appellant committed the offence while subject to parole. This is an aggravating feature.
- Having regard to the previous instances of knife possession offences, I don’t regard a sentence of one month imprisonment to be manifestly excessive. It is within range.
- While the submission with respect to activating the previous sentence is no longer pressed, I accept the submissions made by the respondent that the activation of an unserved period of an existing sentence is a consequence of committing offences on parole while subject to such offences. The activation is effectively punishment with respect to those offences, not punishment with respect to the like offence the subject of the Acting Magistrate’s sentence on 13 April 2018.
Was the head sentence of six months manifestly excessive?
- Each of these offences attracted a sentence of six months. While not specifically stated in those terms by the Magistrate, it seems that these were the head sentence that reflected the overall criminality of the conduct of the appellant.
- The appellant has not provided any relevant cases or decisions of the Court that show that the penalty imposed is manifestly excessive or outside of the permissible range.
- The appellant’s criminal history is a relevant feature at sentence. As was held by the High Court in Veen v R (No 2) (1988) 164 CLR 465 at 488:
“The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.”
- The Acting Magistrate took into account the applicant’s criminal history, noting the length of the history, the previous sentences of imprisonment, that the history was made up of primarily dishonesty-type offending, and that the offences were committed on parole.
- The Acting Magistrate considered the circumstances of the offending. The solicitor for the applicant noted that the previous stealing offences were more serious than the fresh offences before the Court. The Acting Magistrate noted the low value of the stealing, and took into account the applicant’s history of like nature. The Acting Magistrate noted that the offences relating to the use of a person’s identity were “rather serious”.
- The applicant’s pre-sentence custody was taken into account, although it could not be declared. The Acting Magistrate stated that he had considered all matters stated in s 9 and s 11 of the Penalties and Sentences Act 1992, and the Acting Magistrate was “satisfied it is appropriate, no more severe in all the circumstances, that you should be sentenced to a term of imprisonment.”
- Were the only offence that the appellant was to be dealt with for the offence of stealing electricity, the sentence for that offence I may have considered the sentence to be manifestly excessive. However, the Magistrate, as I have already noted, had other things that were to be taken into account. Those matters included a consideration of the overall criminality of the appellant, and the significant criminal history.
- Having taken all of those matters into consideration, the head sentence imposed with respect to stealing, obtaining identification information and fraud could not be said to be manifestly excessive.
- For the reasons give, the appeal is dismissed.
- Published Case Name:
Hoger v Commissioner of Police
- Shortened Case Name:
Hoger v Commissioner of Police
 QDC 145
31 Jul 2018