Trott v Commissioner of Police
[2018] QDC 165
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- Unreported Judgment
- Trott v Commissioner of Police[2018] QDC 165
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Trott v Commissioner of Police[2018] QDC 165
Trott v Commissioner of Police[2018] QDC 165
DISTRICT COURT OF QUEENSLAND
CITATION: | Trott v Commissioner of Police [2018] QDC 165 |
PARTIES: | WAYNE ANTHONEY TROTT (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 1187/18 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 13 September 2018 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 August 2018 |
JUDGE: | Farr SC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL – Justices Act 1886 – section 222 – appeal against sentence – where appellant convicted of one charge of unlawful use of a motor vehicle, one charge of driving a motor vehicle while driver licence is suspended, one charge of stealing, one charge of burglary and commit indictable offence, and one charge of fraud – where appellant sentenced to periods of imprisonment the longest of which was two years and a parole eligibility date was ordered – whether the sentence imposed was excessive – where sentences were ordered to be served concurrently with each other and with a sentence of 18 months imprisonment previously imposed – whether parole release date should have been set – whether the relevant parole date should have been set at one third of the head sentence Justices Act 1886 (Qld) s 222, s 223, s 225 Penalties and Sentences Act 1992 (Qld) s 160B Bode v Commissioner of Police [2018] QCA 186 Fox v Percy (2003) 214 CLR 118 Mbuzi v Torcetti [2008] QCA 231 McDonald v Queensland Police Service [2017] QCA 255 R v Kitson [2008] QCA 86 Robinson Helicopter Company Inc v McDermott [2016] HCA 22 Stevenson v Yasso [2006] QCA 40 |
COUNSEL: | J P Feely for the appellant E Duncan (sol) for the respondent |
SOLICITORS: | Emerson Criminal Law for the appellant Director of Public Prosecutions for the respondent |
- [1]The appellant was sentenced in the Brisbane Magistrates Court on 15 March 2018 after entering pleas of guilty to the following charges:
Charge 1: Unlawful use of a motor vehicle on 14 September 2017
Charge 2: Offensive driving while relevant drug is present in blood or saliva on 14 September 2017
Charge 3: Driving a motor vehicle while driver licence is suspended on 14 September 2017
Charge 4: Stealing on 14 September 2017
Charge 5: Burglary and commit indictable offence on 28 September 2017; and
Charge 6: Fraud on 2 October 2017.
- [2]He was sentenced as follows:
- In relation to each of Charges 1, 4, 5 and 6: 2 years imprisonment;
- In relation to Charge 3: 6 months imprisonment;
- In relation to Charge 2: convicted and not further punished – conviction recorded.
- [3]A parole eligibility date was set at 15 November 2018. In relation to Charge 5 he was also ordered to pay the complainant restitution in the amount of $5,000. In relation to Charges 2 and 3 he was disqualified from holding or obtaining a driver licence for a total of 2 years.
- [4]At the time of sentence the appellant was a serving a sentence of 18 months imprisonment with a parole release date set at 3 April 2018, such sentence being imposed on 3 October 2017 in the Brisbane Magistrates Court. The sentences of imprisonment imposed on 15 March 2018 were to be served concurrently with each other and with the sentence imposed on 3 October 2017. The parole release date of 3 April 2018 was varied to the parole eligibility date of 15 November 2018.
- [5]The appellant has appealed the sentences in relation to the terms of imprisonment imposed in respect of Charges 1, 3, 4, 5 and 6.
Circumstances of offences
- [6]On 14 September 2017, the appellant unlawfully took a motor vehicle from an address in South Brisbane. Later that day he was intercepted in that car by police. He made admissions to taking the car and stealing some tools which had been in the back of the utility. (Charge 1: unlawful use of a motor vehicle; Charge 4: stealing). The police also conducted a saliva test on the appellant and he tested positive for cannabis and methamphetamine (Charge 3: driving while relevant drug is present). The police also determined that the appellant was driving while his licence was suspended (Charge 4: driving while licence is suspended). The appellant was issued with a Notice to Appear.
- [7]On 28 September 2017, whilst on bail, the appellant broke into the complainant’s house. He stole headphones, a mountain bike and other items worth approximately $5,000 (Charge 5: burglary and commit indictable offence).
- [8]On 2 October 2017, the appellant attended a Cash Converters store and sold the complainant’s headphones. He signed a declaration stating that the headphones were his (Charge 6: fraud).
- [9]The appellant’s DNA was found at the point of entry in relation to the burglary offence.
Appellant’s antecedents
- [10]The appellant was born on 17 October 1969. He is currently 48 years of age and was 47 years of age at the time of the offending conduct.
- [11]He has a lengthy criminal history dating back to 1987. It includes 42 previous convictions for breaking and entering/burglary type offences. He has previously been sentenced on three separate occasions to 3 years imprisonment after being convicted of burglaries and other dishonesty and drug offences. These convictions occurred in the Brisbane District Court on 14 December 2006, Cleveland Magistrates Court on 20 December 2006 and in the Ipswich Drug Court on 15 September 2011.
- [12]Of significance is the appellant’s conviction on 3 October 2017. The appellant was sentenced to a head sentence of 18 months imprisonment with a parole release date set at 3 April 2018. On that occasion he was convicted of two charges of burglary and commit indictable offence, one charge of enter premises and commit indictable offence by break, fraud, stealing and minor drug offences.
- [13]Over the years the appellant has been sentenced to the full range of sentencing options including fines, probation, community service, fully suspended sentences, intensive drug rehabilitation orders and many terms of actual imprisonment.[1]
- [14]During submissions, the appellant’s legal representative handed up a copy of a psychiatric report by Dr Beech dated 27 October 2017. This report had been prepared for a personal injury action which is yet to proceed.
- [15]In that report Dr Beech noted the following:
“There is a significant antecedent childhood history of maternal neglect, some undisclosed family abuse, learning problems and borderline intellectual functioning, and the early onset of childhood disruptive behaviours. The latter progressed to early onset Conduct Disorder and from there to early juvenile delinquency. He estimates that since the age of 12 years he has spent the large majority of his life in some form of institutional care, and he has a significant criminal history, and significant time in prison as an adult.
…
In my opinion Mr Trott has:
- Anti-social Personality Disorder
- Borderline Intellectual Functioning
- Polysubstance Dependence and Abuse
- Post-traumatic Stress Disorder
…
The PTSD relates to three factors: undisclosed family concerns, physical violence at Wilson, and sexual assault at Westbrook.[2]In my opinion, the sexual assault at Westbrook is likely to have been the most prominent cause of the PTSD because it involved coerced sexual assault and anal rape. He would have been vulnerable to this though because of the earlier physical assaults at Wilson, and the vulnerabilities that flowed from the antecedent family and idiosyncratic personal factors.”[3]
Ground of appeal
- [16]The appellant’s ground of appeal is that the sentences imposed were excessive. He further submits that the magistrate made the following errors which resulted in or were directly or indirectly relevant to the imposition of excessive sentences:
- The magistrate erred in law in failing to set a parole release date;
- The magistrate erred by failing to consider the aggregate sentence and failed to apply the principle of totality; and
- The magistrate erred by setting a parole eligibility date beyond one third of the period of imprisonment without giving adequate reasons for doing so or allowing the parties to be heard.
Standard to be met on appeal
- [17]Section 222(1) of the Justices Act 1886 provides for the appellant’s right of appeal to the District Court. Subsection (2)(c) provides that if a defendant pleads guilty, then there may only be an appeal on the ground that the punishment or penalty was excessive or inadequate. Section 223 provides that such an appeal, relevant to this matter, is by way of rehearing on the original evidence on the record. Section 225 empowers a judge to confirm, set aside or vary an appealed order, or make any other order considered just.
- [18]
“The ‘rehearing’ does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
The forgoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. On the other, it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witness credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a long interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
…
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, although [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect.”
- [19]In Stevenson v Yasso, McMurdo P observed that the District Court judge in his appellate jurisdiction “was required to make his own determination of the issues on the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.”[6]
- [20]In Mbuzi v Torcetti, Fraser JA relevantly observed that “the judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and draw his or her own conclusions.”[7]
- [21]In McDonald v Queensland Police Service, Bowskill J (with whom Fraser and Philippides JJA agreed) said:[8]
“It is well established that, on an appeal under s 222 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.” (footnotes omitted)
- [22]
“A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.”
Issue 1: the magistrate erred in law and misconstrued section 160B of the Penalties and Sentences Act 1992 by failing to set a parole release date
- [23]This issue is conceded by the respondent.
- [24]The learned magistrate imposed terms of imprisonment in respect of the offending and purported to proceed under Part 9 Division 3 of the Penalties and Sentences Act 1992 which includes the following provision:
“160B Sentence of 3 years or less and not a serious violent offence or sexual offence
- (1)This section applies if neither section 160C nor 160D applies.
- (2)If the offender has had a court ordered parole order cancelled under the Corrective Services Act 2006, section 205 or 209 during the offender’s period of imprisonment, the court must fix the date the offender is eligible for parole.
- (3)If subsection (2) does not apply, the court must fix a date for the offender to be released on parole.”
- [25]It is accepted that neither section 160C nor section 160D have application. It is also accepted that section 160B(3) does have application. Notwithstanding the mandatory nature of section 160B(3), the magistrate failed to order a parole release date.
- [26]The effect of this failure is that a period of imprisonment was imposed that failed to give the appellant the certainty of a set release date as required by law. Of course, such an error could and should have been corrected by the reopening of the sentence pursuant to section 188 of the Penalties and Sentences Act 1992. Whilst such a course is the obvious remedy for this error, it did not happen in this case for reasons I fail to understand. Nevertheless, given that the matter is now before this court, it is in the interests of justice that it be dealt with here. The absence of a set release date in my view, renders the sentence imposed below as excessive and unjust because it may result in the appellant serving longer than he should if the provisions of section 160B(3) had been complied with. In fact, given his criminal history, such an outcome is likely.
- [27]Given this conclusion, it now falls to me to make my own determination of the issues on the evidence, whilst ensuring that I give due deference and attach a good deal of weight to the magistrate’s view.
Sentence considerations
- [28]The following matters are of relevance:
- the appellant’s mature age;
- his lengthy and relevant criminal history which demonstrates that he is a recidivist offender;
- considerations of personal deterrence, just and appropriate punishment, public denunciation and community protection are highly relevant;
- previous sentences have failed to deter the appellant from offending;
- rehabilitation is unlikely given his age, criminal history and the opportunities he has been given in the past by various courts to assist in that regard
- the seriousness of the offending conduct; and
- the fact that he offended whilst on bail for similar offences.
- [29]In his favour is the fact that he pleaded guilty and cooperated with the administration of justice.
- [30]Also, I accept that totality considerations apply. In that regard the learned magistrate took the view that a sentence of 2 years imprisonment to be served concurrently with a sentence then being served gave due consideration to that issue. The effect of that sentence was to extend the overall period of imprisonment by approximately 11 months. In my view, such an approach is appropriate given the circumstances of this matter. In fact, it might be seen to be somewhat lenient.
- [31]Counsel for the appellant has conceded that a 2 year head sentence falls within the appropriate range but submits that it should then have been reduced by a period of 162 days, being the period of time that the appellant had served since the imposition of the sentence on 3 October 2017 up until his sentence on 15 March 2018. For part of that time, he was, according to the presentence custody certificate[11]also held on remand for two of the offences the subject of this appeal (driving while relevant drug is present etc. and unlawful use of a motor vehicle).
- [32]Whilst that is an issue of relevance, in my view such a reduction is not warranted, given that he was serving a term of imprisonment for other offences during that time. Furthermore, given the seriousness of the subject offences, a sentence of 2 years imprisonment is distinctly moderate. The imposition of a 2 year concurrent sentence does not result in an overall sentence that is disproportionate to the offending conduct nor result in a sentence which is crushing. In other words, I am not persuaded that it offends the “totality principle”[12]and it appears to me to be the appropriate sentence in all the circumstances.
- [33]The appellant has also submitted that even if the head sentence was not considered to be excessive, the “parole eligibility date” of 15 November 2018 results in an excessive outcome as it results, even if converted to a parole release date, in the appellant having to serve 13 months and 12 days imprisonment. It is submitted that an appropriate order, given that the appellant pleaded guilty to these charges, would allow for the appellant’s release after a period of approximately 10 months, that is, approximately one third of the total head sentence.
- [34]Whilst pleas of guilty are often recognised by courts by orders that allow offenders to be released or to be considered eligible for release from incarceration after serving one third of the head sentence, that is not a statutorily mandated approach. In that regard, the appellant’s reliance on comments made in R v Kitson[13]are of no relevance. In this matter, the appellant’s mature age, his disgraceful, relevant and lengthy criminal history and the fact that he offended whilst on bail are particularly significant to the determination of the degree of leniency that ought to apply. As I have said, considerations such as protection of the community and personal deterrence have particular relevance in this matter. Giving such weight and due deference as ought be given to the magistrate’s apparent view on sentence, I again do not find myself disagreeing with her approach. I am, for the reasons stated, of the view that a non-parole period of the length ordered in the court below is appropriate. Quite simply, the appellant’s antecedents are such that he cannot expect the same leniency to apply to him as would apply to someone who has a less serious criminal history. Furthermore, the appellant’s plea of guilty to each of the charges has been appropriately recognised by the imposition of a moderate head sentence.
- [35]For these reasons I concur with the orders made in the court below other than for the imposition of a parole eligibility date.
Orders
- The appeal is allowed only to the extent that the ‘parole eligibility date’ of 15 November 2018 is set aside;
- A parole release date of 15 November 2018 is ordered in substitution thereof;
- Otherwise the appeal is dismissed.
Costs
- [36]In the circumstances it is appropriate to make no order as to costs.
Footnotes
[1] Exhibit 3 – criminal history.
[2] This is in reference to the Sir Leslie Wilson Youth Detention Centre and the Westbrook Training Centre. (footnote added)
[3] The learned magistrate failed to mark Dr Beech’s report as an Exhibit.
[4] (2003) 214 CLR 118.
[5] At [22]-[23], [25].
[6] [2006] QCA 40 at [36].
[7] [2008] QCA 231 at [17].
[8] [2017] QCA 255 at [47].
[9] [2018] QCA 186 at [42]. These observations were made in his dissenting judgment where he considered that the District Court judge hearing an appeal from the Magistrates Court against conviction after trial did not conduct a rehearing as was required by s 223 of the Justices Act.
[10] (2016) 90 ALJR 679, 686-687; [2016] HCA 22 at [43].
[11] From 09.11.2017.
[12] See Mill v The Queen (1988) 166 CLR 59; R v Kendrick [2015] QCA 27.
[13] [2008] QCA 86.