Norwood v Queensland Police Service
[2018] QDC 170
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- Unreported Judgment
- Norwood v Queensland Police Service[2018] QDC 170
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Norwood v Queensland Police Service[2018] QDC 170
Norwood v Queensland Police Service[2018] QDC 170
DISTRICT COURT OF QUEENSLAND
CITATION: | Norwood v Queensland Police Service [2018] QDC 170 |
PARTIES: | DAVID WILLIAM NORWOOD (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
APPEAL NO: | 86/17 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Townsville |
DELIVERED ON: | 24 August 2018 |
DELIVERED AT: | Cairns |
HEARING DATE: | 3 August 2018 |
JUDGE: | Morzone QC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 – conviction – Assault occasioning bodily harm – Failure to stop motor vehicle – mode of hearing of appeal – whether sentence manifestly excessive – whether manifestly excessive to order all terms of imprisonment to be served cumulatively – where it was open to order that part of the offending be served concurrently Legislation Justices Act 1886 (Qld) ss 222, s 223(1) & 227 Penalties and Sentences Act 1992 (Qld) ss 155, 156, 156A, 160F Police Powers and Responsibilities Act 2000 (Qld) s 754 Cases Chevathen v Queensland Police Service [2016] QDC 270 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 The Queen v Baker [2011] QCA 104 The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 206 |
COUNSEL: | N Rees for the Respondent |
SOLICITORS: | The Office of Director of Public Prosecutions for the respondent The appellant appeared in person. |
- [1]On 16 April 2018 the appellant was convicted after pleading guilty in the Magistrates Court held in Cairns, and sentenced to 9 months and 50 days imprisonment to be served concurrently with each other but cumulative on a pre-existing sentence of 18 months having reoffended on court ordered parole. A parole eligibility date was set for 16 October 2018. He was also disqualified from driving for 2 years.
- [2]The unrepresented appellant now appeals against his sentence.
- [3]Both parties provided outlines of argument, and made further submissions on the hearing of a bail application, which was allowed. In light of my consideration of the merits of the appeal, the parties were invited to expedite the appeal hearing to today.
- [4]The appeal proceeded with supplementary submissions. I made orders allowing the appeal and resentencing the appellant, with these reasons to follow.
Background
- [5]I summarise the facts relied upon for the offending as follows.
- [6]For charge 1 of assault occasioning bodily harm - on 14 December 2017 the appellant slapped the complaint’s head after he denied the appellant’s accusation that he’d stolen his money. The appellant continued to threaten the complaint - to knock his teeth out and shoot him, and then took his keys, before giving him three weeks to pay, and leaving. The nature of the offences include actual bodily harm done to the complainant causing him to attend the Ingham Hospital and the applicant’s threats of further violence towards the complainant and others if his requests were not complied with.
- [7]For charge 2 of failing to stop for police - the appellant failed to stop for police driving an unmarked car after sounding sirens and lights for a period. He drove at speed, avoided tyre deflation devices and left the car. He was aggressive when apprehended.
- [8]The appellant pleaded guilty to the offending after his solicitor was granted leave to withdraw. It is apparent from the transcript that the appellant considered it expedient to proceed ‘to get it over and done with’, despite his overt failure to grasp his jeopardy of a cumulative term of imprisonment, and delayed parole release.
- [9]The appellant has an extensive criminal history across three states including offences of violence, including 12 prior convictions of assault, four with bodily harm, and re-offending only eight days after his release on parole.
- [10]He was released on court ordered parole on 6 December 2017, which was suspended on 13 December 2017 two days before the re-offending (for absence from his bail address) and he was returned to prison on 15 December 2017 due to him being incommunicado with authorities. He was liable to serve up to 8 months of his term imprisonment until the full time expiry of the sentence of 15 August 2018.
- [11]The applicant was sentenced on 16 April 2018 in the Townsville Magistrates Court as follows:
- (a)9 months imprisonment for assault occasioning bodily harm (charge 1);
- (b)50 days imprisonment for fail to stop motor vehicle (charge 2);
- (c)2 year disqualification from holding or obtaining a driver’s licence.
- (d)The terms of imprisonment were ordered to be served concurrently with each other, but cumulatively on a previous sentence having reoffended while on court ordered parole.
- (e)A parole eligibility date was set for 16 October 2018 being after 2 months served on the sentence.
Appeal Grounds
- [12]The appellant contends that the sentence is manifestly excessive. He argued that the magistrate erred because:
- He proceeded in circumstances where the appellant was mentally impaired and without representation;
- He should have imposed a parole release date (in lieu of a parole eligibility date) in circumstances where the parole had been suspended at the time of the re-offending;
- He should have made the sentences concurrent with, and not cumulative on, the pre-existing incomplete sentence;
- The effective period of imprisonment was 1 year and 9 months with parole eligibly on 16 October 2018 being excessive and disproportionate to the offending.
Mode of Appeal
- [13]The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).
- [14]Pursuant to s 223 of the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. Here the appellant provided further evidence in support of his assertions of impaired mental health and state at the relevant time.
- [15]The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.[1]
- [16]This court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.[2]
- [17]
"It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
- [18]
“In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.”
- [19]The decisions distinguished cases of specific error and manifest excess. Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed. By contrast, an error may not be discernible; but the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
Whether sentence should proceed despite mental impairment without representation
- [20]The appellant’s appeal is limited to sentence as a consequence of his plea of guilty, but it may be arguable that his plea was affected by his misunderstanding of the charges and the consequences of his plea. But this was first raised on this application, with short notice to the prosecution. It is unnecessary for me to deal with that argument.
Imposition of parole eligibility date in lieu of a parole release date
- [21]It also seems unnecessary to deal with the imposition of a parole eligibility date since the Verdict and Judgment Record was apparently amended by the Magistrate (without notice to the appellant) to change the parole eligibility date to a release date. Although I’m doubtful that the amendment could be effected administratively (without notice to the defendant), I opine that a parole release date was open and appropriate.[5]
Whether sentence manifestly excessive
- [22]The main issue in this case is whether the magistrate should have imposed cumulative sentences, and whether the sentence is crushing and disproportionate, and manifestly excessive.
- [23]The head sentences for both offences seem unremarkable. The unusual feature of this case is the effect of cumulative sentences after taking account of the mandatory minimum sentence for the failure to stop prescribed in s 754(2)(2)(b) of the Police Powers and Responsibilities Act 2000 (Qld) as follows:
“A minimum penalty of 50 penalty units or 50 days imprisonment served wholly in a corrective services facility.”
- [24]In relation to this aspect the magistrate sought to give effect to this by requiring the appellant to serve 2 months of his later sentence cumulative with the pre-existing sentence due to expire on 16 August 2018. The total period in custody would be 14 months before his parole release, on an effective cumulative head sentence of 17 months since his return to custody.
- [25]Section 156A of the Penalties and Sentences Act 1992 (Qld) provides for cumulative orders of imprisonment in particular circumstances as follows:
- (1)This section applies if an offender—
- (a)is convicted of an offence—
- (i)against a provision mentioned in schedule 1; or
- (ii)of counseling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in schedule 1; and
- (b)committed the offence while—
- (i)...
- (ii)released on post-prison community based release under the Corrective Services Act 2000 or released on parole under the Corrective Services Act 2006; or
- (iii)….
- (2)A sentence of imprisonment imposed for the offence must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve.
- [26]The offence of assault occasioning bodily harm (charge 1) is caught by schedule 1 and s 156A(1)(a)(i) of the Penalties and Sentences Act 1992 (Qld). Therefore by operation of s 156A(2) the sentence must be ordered to be served cumulatively.
- [27]However, the same cannot be said of charge 2 Failure to Stop being an offence against s 754(2) of the Police Powers and Responsibilities Act, and not an offence of violence caught by schedule 1 and s 156A(1)(a)(i) of the Penalties and Sentences Act 1992 (Qld).
- [28]It seems to me that the appellant has strong grounds to argue that the learned magistrate wrongly proceeded on the basis he was obliged to order that the sentences for both counts 1 and 2 be served cumulatively on the pre-existing sentence due to the appellant reoffending on court ordered parole. His Honour was only obliged to make the sentence for count 1 cumulative, but not so for the sentence for count 2.
- [29]It was open for the magistrate to order the sentence for count 2 to be served concurrently on the pre-existing sentence by virtue of s 156 of the Penalties and Sentences Act 1992 (Qld). However, his Honour did not purport to do so, nor did he seem to consider making that sentence or make such orders concurrent on the pre-existing sentence ensuring that the appellant would properly serve at least the mandatory minimum period of 50 days in actual custody.[6]A failure to explicitly consider these matters in order to determine whether a total sentence is just and appropriate bespeaks an error in the exercise of the sentencing discretion.[7]
- [30]For these reasons, in my respectful view, the trial magistrate proceeded on a wrong principle and erred in exercising the discretion. The result embodied in the orders in my respectful opinion was unreasonable or plainly unjust.
- [31]In the circumstances, the appeal ought to be allowed and the sentence warrants correction to reflect the overall criminality and gravity of the current offending.
Re-sentence
- [32]I have set out the pertinent matters above, and considered the evidence before the court below. The appellant, with now stable mental health, has elected to proceed with the hearing and re-sentence.
- [33]It seems to me that the sentences imposed of each charge are within a permissible range, with the head sentence of 9 months appropriately moderated to take account of the cumulative effect of the sentence.
- [34]Section 160F of the Penalties and Sentences Act 1992 (Qld) requires that there only be 1 parole eligibility or release date and that date must relate to the offender’s period of imprisonment, as opposed to a particular term of imprisonment. The “period of imprisonment” is defined to mean the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether to be served cumulatively or concurrently.
- [35]Further, it must also be borne in mind that the ambit of the totality principle has been extended as explained in The Queen v Beattie, ex parte Attorney-General (Qld)[8]by Philip McMurdo J (as he then was) as follows:
“The principle has also been extended in the sentencing of an offender who is then serving an existing sentence. In such a case, ‘the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable’.”
- [36]The relevant period of imprisonment here is 17 months being the aggregate of the balance of his pre-existing sentence being the aggregate of 8 month and 9 months of the sentence imposed by the magistrate. Having regard to the considerations of totality a parole release would have been somewhat less than the period already served.For these reasons, the appellant has shown exceptional circumstances to warrant his resentence.
Order
- [37]I allow the appeal, set aside the orders made by the Magistrates Court and substitute the following orders:
- (a)For charge 1 - assault occasioning bodily harm, the appellant is sentenced to 9 months imprisonment, to be served cumulatively with the sentence imposed on 6 December 2017;
- (b)For charge 2 - failed to stop motor vehicle, the appellant is sentenced to 50 days imprisonment, to be served concurrently with the sentence imposed on 6 December 2017;
- (c)A parole release date is set for 3 August 2018;
- (d)The appellant is disqualified from holding or obtaining a driver’s licence for 2 years.
Judge DP Morzone QC
Footnotes
[1] Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, [5] and McDonald v Queensland Police Service [2017] QCA 255, [47].
[2] House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519.
[3] (1936) 55 CLR 499, 504 and 505.
[4] Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111, [130] per Hayne J (minority).
[5] Chevathen v Queensland Police Service [2016] QDC 270.
[6] Penalties and Sentences Act 1992 (Qld) s 155.
[7] Cf. The Queen v Baker [2011] QCA 104 at [47] Atkinson J (with whom the President and Lyons J agreed), affirmed by The Queen v Kendrick [2015] QCA 27 at [54].
[8] The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 2006 at [19]. Mill v The Queen [1988] 166 CLR 59 at 56 – 57 and The Queen v Crofts [1999] 1 Qd R 386 at 387.