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  4. Moore v Queensland Police Service - [2018] QDC 192

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Moore v Queensland Police Service[2018] QDC 192

Moore v Queensland Police Service[2018] QDC 192

DISTRICT COURT OF QUEENSLAND

CITATION:

Moore v Queensland Police Service [2018] QDC 192

PARTIES:

STEVEN JEREMY MOORE
(Appellant)

v

QUEENSLAND POLICE SERVICE
(Respondent)

FILE NO/S:

1755/18

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

20 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2018 and 13 September 2018, further submissions filed 14 September 2018 and 18 September 2018

JUDGE:

Williamson QC DCJ

ORDER:

  1. Appeal allowed.
  2. The sentence and orders of the Magistrates Court at Richlands on 19 April 2018 are set aside and the orders set out in paragraphs [3] and [4] of these reasons for judgment are substituted in lieu.

CATCHWORDS:

CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – where appeal under s. 222 of Justices Act 1886 –  where applicant convicted of seventeen offences on plea of guilty – where sentence imposed to be cumulative upon current sentence being served by applicant – whether totality principle taken into account – whether sentence excessive

COUNSEL:

Ms E. B. Strofield for the Appellant

Ms R. Aldas for the Respondent

SOLICITORS:

Legal Aid Queensland for the Appellant

Office of the Director of Public Prosecutions for the Respondent

Introduction

  1. [1]
    On 19 April 2018, Mr Moore pleaded guilty to seventeen offences in the Magistrates Court at Richlands. The head sentence imposed to reflect the criminality of all of the offending was three years imprisonment. A parole eligibility date of 18 April 2019 was fixed. It was ordered the sentence be cumulative upon an earlier sentence imposed on 1 August 2017 in the Brisbane Magistrates Court. Mr Moore was also disqualified absolutely from holding or obtaining a driver’s licence.
  1. [2]
    Mr Moore appeals against the sentence imposed on 19 April 2018 on the basis that it is excessive. The appeal right exercised is that conferred under s. 222(2)(c) of the Justices Act 1886. It is contended that the sentence imposed is excessive because it does not take into account the totality principle in circumstances where the sentence imposed was cumulative to an earlier sentence imposed on 1 August 2017. Mr Moore was sentenced on this earlier date for thirty-three offences to which he pleaded guilty. A head sentence of two and a half years imprisonment was imposed. Parole release was fixed at 8 October 2017. As a consequence of the sentence imposed on 19 April 2018, the aggregate sentence imposed was a term of five and a half years imprisonment. Parole eligibility was fixed at a point greater than the one third mark (about 42%) of the aggregate sentence.
  1. [3]
    For the reasons that follow, the appeal is allowed and the sentence and orders of the Magistrates Court at Richlands on 19 April 2018 are set aside. The following sentence and orders, as tabulated, are imposed in lieu:

No.

Offence

Penalty

  1.  

Receiving tainted property

2 years imprisonment

  1.  

Unlawful entry of a motor vehicle

2 years imprisonment

  1.  

Enter premises with intent to commit an indictable offence

2 years imprisonment

  1.  

Stealing

2 years imprisonment

  1.  

Unlawful use of a motor vehicle

2 years imprisonment

  1.  

Unlawful use of a motor vehicle

2 years imprisonment

  1.  

Fraud

18 months imprisonment

  1.  

Receiving tainted property

2 years imprisonment

  1.  

Driving of a motor vehicle with a driver’s licence disqualified by court order

18 months imprisonment

  1.  

Offences involving registration certificates

Convict, but not further punish

  1.  

Dangerous operation of a vehicle

2 years imprisonment

  1.  

Attempted Fraud

18 months imprisonment

  1.  

Attempted Fraud

18 months imprisonment

  1.  

Enter dwelling with intent by break

2 years imprisonment

  1.  

Driving of a motor vehicle with a driver’s licence disqualified by court order

18 months imprisonment

  1.  

Assault or obstruct police officer

Convict, but not further punish

  1.  

Contravene direction or requirement

Convict, but not further punish

  1. [4]
    The penalties tabulated above are to be served concurrently, but all cumulative to the sentence imposed on 1 August 2017. Further, parole eligibility is fixed at 26 September 2018 and Mr Moore is disqualified absolutely from holding or obtaining a driver’s licence.

Background

  1. [5]
    On 19 April 2018, Mr Moore pleaded guilty to, and was sentenced for seventeen offences committed over a period of 19 days in late October to mid November 2017. The seventeen offences and penalties imposed at first instance were as follows:
  1. (a)
    two counts of receiving tainted property – 2 years imprisonment for each count;
  1. (b)
    one count unlawful entry of a motor vehicle – 2 years imprisonment for each count;
  1. (c)
    two counts of unlawful use of a motor vehicle – 3 years imprisonment for each count;
  1. (d)
    one count of enter premises with intent to commit an indictable offence – 3 years imprisonment;
  1. (e)
    one count of stealing – 2 years imprisonment;
  1. (f)
    one count of fraud – 2 years imprisonment;
  1. (g)
    two counts of attempted fraud - 2 years imprisonment for each count
  1. (h)
    two counts of driving a motor vehicle without a driver’s licence disqualified by court order – 18 months imprisonment for each count;
  1. (i)
    one count of offence involving registration certificates – convicted, but not further punished;
  1. (j)
    one count of dangerous operation of a vehicle – 2 years imprisonment;
  1. (k)
    one count of enter dwelling with intent by break – 3 years imprisonment;
  1. (l)
    one count of assault or obstruct police officer - convicted, but not further punished; and
  1. (m)
    one count of contravene direction or requirement - convicted, but not further punished.
  1. [6]
    The sentence imposed included an order that convictions were recorded. Further, it was ordered that all terms of imprisonment were to be served cumulatively upon the sentence of imprisonment currently being served by Mr Moore. The sentence imposed on 1 August 2017 involved a head sentence of two and a half years imprisonment for thirty three offences committed over a period of about three months in the latter half of 2016. The thirty three offences for which Mr Moore was sentenced on 1 August 2017 were as follows:
  1. (a)
    one count of enter premises and commit indictable offence by break;
  1. (b)
    one count of unlawful use of a motor vehicle;
  1. (c)
    five counts of stealing;
  1. (d)
    one count of failing to take reasonable care and precautions in respect to a syringe;
  1. (e)
    twelve counts of fraud;
  1. (f)
    two counts of possess tainted property;
  1. (g)
    four counts of unlawful possession of suspected stolen property;
  1. (h)
    one count of possessing a dangerous drug;
  1. (i)
    one count of possession of implements that were used in relation to particular offences;
  1. (j)
    three counts of attempted fraud;
  1. (k)
    one count of receiving tainted property; and
  1. (l)
    one count of failing to appear in accordance with undertaking.
  1. [7]
    The offences for which Mr Moore was sentenced on 1 August 2017 and 19 April 2018 involved like offending. The offending, in both cases, is fairly described as a crime spree by a mature man with a relevant criminal history. Mr Moore has an extensive criminal history extending to 10 pages for drug, property and dishonesty offences. His criminal history reveals that, prior to 1 August 2017, he had been sentenced on a number of occasions for entering premises to commit an indicatable offence by break as well as robbery with actual violence, possessing dangerous drugs and unlawful use of a motor vehicle. There is a significant gap in Mr Moore’s criminal history between April 2010 and November 2015. The offending that has occurred post November 2015 has not involved circumstances of violence. The criminal history does not include an earlier conviction for dangerous operation of a motor vehicle.
  1. [8]
    The sentence hearing on 19 April 2018 proceeded on the basis of a schedule of facts. The schedule reveals that the offending, fairly described again as a crime spree, occurred over a period of 19 days. It was an aggravating feature of the offending that the offences were committed while Mr Moore was on parole. He had been released on parole some 8 to 13 days prior to the commission of the first offence for which he was sentenced. The offending did not involve any violence.
  1. [9]
    The circumstances of the offending can be summarised as follows, namely Mr Moore:
  1. (a)
    stole three motor vehicles, two of which were stolen while the owners were loading the vehicles at their homes;
  2. (b)
    was in possession of stolen property taken from one of the motor vehicles stolen by him;
  3. (c)
    entered a café that was temporarily closed and stole a Samsung Galaxy S6 mobile phone, $130 cash, bank cards, drivers licence and health care cards;
  4. (d)
    did not pay for fuel used in connection with stolen motor vehicles;
  5. (e)
    attempted to pay for fuel used in connection with stolen motor vehicles with stolen bank cards;
  6. (f)
    was in possession of stolen car registration plates he had altered to vary the registration numbers;
  7. (g)
    drove stolen motor vehicles without a driver’s licence in circumstances where his licence had been disqualified by Court order;
  8. (h)
    drove one of the stolen motor vehicles erratically. He drove at speed overtaking a car on the shoulder of the road. He also drove the vehicle on the wrong side of the road whilst going through a roundabout towards oncoming traffic. The car was driven to a highway where he nearly side swiped another car and swerved from one side of the highway to another nearly hitting three cars; and
  9. (i)
    drove a stolen vehicle to a house he did not live at. He opened the garage went inside, and walked back out a short time later. When approached, he said he was looking for water. When police arrived, he refused to get out of the stolen vehicle. He was arrested and provided a fake name to police.
  1. [10]
    Mr Moore was remanded in custody on 2 November 2017. At the time of the sentence hearing on 19 April 2018 he had served 168 days (approximately 5 and a half months) of non-declarable pre-sentence custody.

Submissions at first instance and sentencing remarks

  1. [11]
    The transcript of the sentence hearing reveals that no submissions were made on behalf of the prosecution. The Magistrate heard short oral submissions from the solicitor appearing for Mr Moore. She informed the Court about Mr Moore’s age, level of education (year 8) and country of birth, being New Zealand.
  1. [12]
    An explanation was offered for the offending. It was submitted that Mr Moore’s drug of choice was heroin, but he started to use crystal methamphetamine in October or November of 2017 for a period of three to four days leading up to some of the offences. The following submission was made to the Magistrate:

“At the time of the most recent offending, being the dangerous operation of a vehicle, he instructs that he was in a state of drug-induced psychosis. He has been clean from drugs since being in custody.”

  1. [13]
    As to Mr Moore’s criminal history, it was submitted on his behalf:

“Your Honour will note from his criminal history that he has spent the majority of his life in custody. He instructs that he has now become institutionalised. Whenever he does get released from custody, he experiences a sense of anxiety. He starts to thin out and he then goes back to using heroin to calm down. Since being in custody, he has been prescribed medication to use to assist with this instead of to use (sic) drugs. He instructs that it feels like it’s helping, but he won’t know for sure until he is released from custody. Since 2001, the longest period of time that he spent out of custody was between 2014 and 2016.”

  1. [14]
    The Magistrate’s attention was drawn to the fact that Mr Moore had been in custody for a period of five and a half months and this time could not be declared. It was submitted that pre-sentence custody could nonetheless be taken into account in the manner contemplated by the Court of Appeal’s decision in R v Maksoud [2016] QCA 115.
  1. [15]
    At no stage were comparable decisions put before the Magistrate for his consideration as to penalty. The following submission was made on Mr Moore’s behalf as to the head sentence to be imposed:

“…In my submission, a period of 18 months to two years would be appropriate. It’s also my submission that a period of two and a half years would not be with – out of range. But in terms of setting a parole eligibility date, it’s my submission that your Honour could set it earlier, taking into account the five and a half months that he has now spent in custody, although not declarable.”

  1. [16]
    During the course of oral submissions, the Magistrate made a number of observations relevant to the sentence to be imposed by him. In response to the submissions with respect to penalty the Magistrate said:

“Well, any sentence I’m going to impose is going to be cumulative on his current one”

And:

“Well, why would that be appropriate when, for his last spree, he got two and a half years on the 1st of August of last year and these offences were all committed straight after he was released on parole?”

And:

“So – but again, you’ve got two and a half years for, effectively, the totality of his criminality for his last spree, so why would he get just the same again for more offending? I mean, when I read the facts of this, I had half a mind to – in my view, if he had been sentenced up at the District Court, he would be looking at four plus for all of this, having regard to his history and the aggravating circumstances and the seriousness of the offending.”

And:

“And I propose to disqualify him absolutely as well…. Well, I don’t think any of us want to be on the road with him, really.”

  1. [17]
    The Magistrate’s sentencing remarks were delivered immediately upon the completion of oral submissions. The sentencing remarks state the Magistrate, in the exercise of the sentencing discretion, took into account:
  1. (a)
    Mr Moore’s plea of guilty;
  2. (b)
    Mr Moore’s criminal history and the need to protect the community from him;
  3. (c)
    the number of offences;
  4. (d)
    the nature and seriousness of the offending;
  5. (e)
    an aggravating feature of the offending - the offences were committed in breach of parole only a short time after being released from prison;
  6. (f)
    Mr Moore was liable to serve an existing sentence, namely that imposed by order of 1 August 2017 involving a two and a half year term of imprisonment;
  7. (g)
    Mr Moore’s personal circumstances and explanation for the offending, being crimes fuelled by a drug addiction;
  8. (h)
    the need to impose a penalty that provides both specific and general deterrence; and
  9. (i)
    “totality”.
  1. [18]
    As to the last matter mentioned above, the word totality appears on seven occasions in the Magistrate’s sentencing remarks. The manner in which the totality principle was said to be taken into account appears from the following passages in the sentencing remarks:

“All right. Stand up, please. (sic) Take into account your pleas of guilty and reduce the penalty I would have otherwise imposed. I have also taken into account totality of the sentences that I am going to impose. And in my view, had – I was in two minds as to whether or not these matters could be adequately dealt with in this Court, having regard to the aggravating – serious aggravating feature that you committed these offences within a couple of months of having been sentenced to two and a-half (sic) years imprisonment for similar offending and had barely been released on parole when these offences were committed.

I have taken totality into account by deciding that my jurisdiction being limited to three years – that will adequately deal with both personal and general deterrence and proper level of punishment and totality, by the head sentence being confined to that level. But I am erring on the side of caution. It – having regard to the totality of the sentences, particularly when regard is had to the fact that these sentences I impose are going to be cumulative on your current sentence – then in my view, it is presently sufficient…”

And later in the remarks where it was said:

“Having regard to the fact that you committed these offences so soon after having been released on parole for significant offending of a like nature, the – and the totality of the – or should I say the accumulation of the criminality of all of the offences in this case indicates, in my view, that ahead sentence of three years imprisonment is required to adequately reflect all of the aggravating circumstances and the totality of the criminality. And as I have indicated, I am going to make that order cumulative on your current sentence, which is only appropriate in circumstances having regard to the fact they were committed so soon after your release on parole. And, in fact, as the pre-sentence custody certificate indicates, most of them were committed while you are – while you are a – fact (sic) a serving prisoner whose parole has been cancelled. So that is also a significant aggravating feature…”

  1. [19]
    The sentencing remarks reveal the head sentence of three years imprisonment was attached to four charges, namely the single charge of enter dwelling with intent by break for which the maximum penalty was life imprisonment, the single charge of enter premises with intent to commit an indictable offence, for which the maximum penalty was fourteen years imprisonment, and the two charges of unlawful use of a motor vehicle for which the maximum penalty was seven years imprisonment.
  1. [20]
    As I have already observed, the Magistrate fixed a parole eligibility date at 18 April 2019. The sentence remarks reveal the date for parole eligibility was identified by fixing a date that was one year after the sentence date. The sentencing remarks record that this date was selected because:

“I fix a parole eligibility date at the 18th of April 2019, in other words, after you have served one-third of the sentence that I am imposing today.”

Nature of the appeal

  1. [21]
    This is an appeal under s. 222(2)(c) of the Justices Act 1886 which provides:

“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.”

  1. [22]
    Having regard to s. 222(2)(c) and Mr Moore’s Notice of Appeal, the sole issue to be determined is whether the penalty imposed on 19 April 2018 was excessive. As to what this requires in order to succeed, I respectfully agree with Devereaux SC DCJ who in Rongo v Commissioner for Police [2017] QDC 258 said:

“[22]  My view of it is that the purpose of that provision is to focus the appellate proceeding on whether the sentence imposed was excessive. Whether a sentence is “manifestly excessive” can be assessed against various criteria. They are collected neatly in R v Morse [1979] 23 SASR 98. King CJ, with whom the other two members of the court agreed, said:

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime; the standards of sentencing customarily observed with respect to the crime; the place which the criminal conduct occupies in the scale of seriousness of crimes of that type; and the personal circumstances of the offender.

[23]  It seems to me, then, that the focus in this and many appeals brought to this court on attempting to demonstrate an error in the exercise of the sentencing discretion is not misguided but slightly misplaced. The real question is whether the sentence was excessive, so that, although the appellant may argue that the magistrate made a certain error, the success of the appeal does not depend on persuading the appeal court on that point. On the other hand, successfully demonstrating an error does not guarantee success of the appeal, because, in each case, the question is whether the sentence was excessive.”

(emphasis added)

  1. [23]
    The submissions filed on behalf of Mr Moore raise one issue for determination: whether the sentence truly reflects that the totality principle was taken into account given the sentence imposed was to be served cumulatively upon the earlier and existing sentence imposed on 1 August 2017. The issue calls for an examination of the sentencing remarks to determine if, and how, the totality principle was applied by the Magistrate, particularly, whether the principle was applied having regard to the “top and bottom” of the sentence imposed.
  1. [24]
    Before turning to deal with these matters, I pause to observe that the sentencing remarks, in my view, reveal that the Magistrate erred in three respects relevant to the issues before this Court for determination. The three errors are as follows.
  1. [25]
    First, the sentencing remarks and transcript of oral submissions reveal the Magistrate proceeded on the premise it was open to him to impose a cumulative sentence as a matter of discretion. That was not the correct position. It was uncontroversial in argument before me that s. 156A of the Penalties and Sentences Act 1992 obliged the Magistrate to impose a cumulative sentence because Mr Moore was convicted of an offence against a provision mentioned in Schedule 1 of the Act[1] and the offence was committed while he was on parole.
  1. [26]
    Second, in circumstances where totality was a live issue, it is expected that the sentencing remarks will identify the period of pre-sentence custody served, if any, to explain how, and in what way, that feature had been taken into account in the exercise of the sentencing discretion. The sentencing remarks do not identify the pre-sentence custody period served by Mr Moore. The remarks do not explain if, and how, this factor was taken into account.
  1. [27]
    The pre-sentence custody period equated to five and a half months. The requirement to have regard to this pre-sentence custody period was mandated by s. 9(2)(j) of the Penalties and Sentences Act 1992.
  1. [28]
    Third, the sentencing remarks reveal the parole eligibility date was fixed at the one-third mark of the sentence imposed. Upon closer inspection, the date fixed was not equivalent to the one third mark of the three year head sentence imposed. The sentence imposed was cumulative and would not start until 27 June 2019, being the end date of the earlier sentence being served by Mr Moore. The date fixed by the Magistrate precedes the end date for the earlier sentence by a little over two months.
  1. [29]
    In practical terms, by fixing a parole eligibility date at 18 April 2019, the Magistrate fixed a parole eligibility date that was equivalent to Mr Moore serving two years and four months of a five and a half year sentence. This equates to a period of 42% of the total sentence being served before Mr Moore can apply for parole. No reasons were given by the Magistrate for the departure from the usual rule that parole is given at the one third mark to reflect the plea of guilty. The absence of reasons is explained by the error that the Magistrate thought the date fixed was the one-third mark of the sentence imposed by him.

The totality principle: cumulative sentences

  1. [30]
    It was common ground the totality principle was relevant to the exercise of the Magistrate’s sentencing discretion because the sentence to be imposed was to be cumulative upon an earlier sentence already imposed on Mr Moore. A useful starting point is the Full Court’s decision in R v Williams [1995] QCA 522 (joint judgment of Macrossan CJ, Davies and Pincus JJA) where it was said:

“Whenever cumulative sentences are being imposed, even in relation to offences committed years apart, it is necessary to consider whether the total term which the prisoner may serve under the sentence is excessive.”

  1. [31]
    This statement is consistent with ss. 9(2)(k), (l) and (m) of the Penalties and Sentences Act 1992 (Qld). These provisions of the Act mandate that a sentencing Court must have regard to the combined effect of an original sentence and a sentence for a later offence. Of particular relevance to this case is ss. 9(2)(l) and (m).
  1. [32]
    Ms Strofield submitted that the particular aspect of the totality principle applicable to this case is that articulated in Postiglione v The Queen (1997) 189 CLR 295. A helpful statement of principle for present purposes appears in the judgment of McHugh J at 307-308 where his Honour said:

“The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.

…

Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.”

  1. [33]
    Ms Aldas appeared for the Respondent. In the context of a general statement of the totality principle, she drew attention to the recent decision of R v Hill [2017] QCA 177 where Applegarth J (with whom Sofronoff P and Atkinson J agreed) at [35] said:

“[35] 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 be plainly 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.’[2]

As Williams J (as his Honour then was) observed in R v Kiripatea:

‘The sentence imposed should not be a crushing one, and there is good reason for avoiding a sentence which would effectively destroy any hope a prisoner may have for rehabilitation.’…”

  1. [34]
    As to the present case, the authorities establish the sentence imposed on Mr Moore on 19 April 2018 should not have been a “crushing” one and should reflect the criminality of the entirety of the offending, including the offending for which a two and a half year term of imprisonment was imposed on 1 August 2017. This required the sentencing discretion to be exercised having regard to the aggregate of the sentences imposed as well as the period to be served for parole eligibility. Further, it also required the discretion to be exercised conscious of the need to impose a sentence which was not an affront to the community given the seriousness of the offending, coupled with Mr Moore’s criminal history and recidivism.

Was the sentence imposed excessive?

  1. [35]
    The sentence imposed by the Magistrate was excessive. This is the consequence of the combination of the following three matters.
  1. [36]
    First, the central issue to be determined in this appeal is whether the sentence imposed at first instance was excessive. This calls for a careful examination of the Magistrate’s sentencing remarks to ascertain if, and how, the totality principle was reflected in the sentence imposed.
  1. [37]
    Section 10(1) of the Penalties and Sentences Act 1992 requires a court to state its reasons for a sentence including a term of imprisonment or suspended imprisonment. The sentence imposed at first instance included a term of imprisonment thereby engaging s. 10(1). As to the nature of sentencing remarks, Wilson AJA in R v Hyatt [2011] QCA 55 at [11] said:

“It is desirable that sentencing remarks be succinct, sharply focussed and expressed in a way likely to resonate with the offender, the victim and the public at large. They also have to be able to withstand the scrutiny of appellate courts. The reasons for structuring a sentence in a particular way should ordinarily appear in the sentencing remarks, and a sentencing court may more readily infer error when reasons are not expressed.”

  1. [38]
    It has also been said that reasons given by a sentencing judge for choosing a particular structure of sentence in preference to others, and for explaining the length of the sentence, need not be elaborate or long. It is enough if the remarks reveal, even in outline, why the particular sentence was imposed: see R v Doraho [2011] QCA 29, per Chesterman JA at [19].
  1. [39]
    The reasons given by the Magistrate in my view are insufficient to determine how the principle of totality was applied in the circumstances of Mr Moore’s case. The remarks use the word “totality” seven times but I am not able to discern what the Magistrate understood that to mean in principle, nor discern how the principle was applied to the sentence. The remarks do not disclose if, why, and how the head sentence was moderated to reflect that it was to be served cumulatively with an earlier sentence. There is no discussion in the remarks as to how the principle of totality impacted, if at all, upon striking the parole eligibility date. The absence of reasons is suggestive in this case that the totality principle was not applied correctly and has resulted in the imposition of a sentence that is excessive.
  1. [40]
    To assist, I had regard to the transcript of oral argument to ascertain whether the exchanges as between the bench and Mr Moore’s solicitor provide amplification of the sentencing remarks: see R v Doraho [2011] QCA 29, [19]. This is an exercise which is to be approached cautiously as was highlighted by Wilson AJA in R v Hyatt [2011] QCA 55 where her Honour at [13] said:

“The extent to which an appeal court may have regard to exchanges between the bench and counsel in amplification of the reasons given when passing sentence was not explored on this application. I think a cautious approach is warranted. Exchanges between the bench and counsel are designed to draw out and test submissions, and remarks made by a judge during such exchanges are often at odds with a conclusion at which he or she ultimately arrives after hearing both sides and giving their submissions due consideration. In my respectful opinion a practice of relying unduly on exchanges between the bench and counsel should not be allowed to develop.”

  1. [41]
    The transcript of oral argument provides no amplification of how the totality principle featured in the exercise of the discretion. Rather, the transcript of argument, assuming it is treated as an amplification of the sentencing remarks, only serves to reinforce that the sentencing discretion miscarried.
  1. [42]
    The transcript reveals that the Magistrate approached the exercise of the discretion on the footing that the sentence imposed on 1 August 2017 was a benchmark against which the sentencing discretion was to be exercised. That is to say, the head sentence to be imposed by the Magistrate had to be at least the same, or greater than the sentence imposed on 1 August 2017 because the circumstances of the offending involved like offences and occurred a very short time after Mr Moore was released on parole.
  1. [43]
    To approach the exercise of the sentencing discretion on the basis that there is a logical progression requiring the imposition of progressively heavier sentences was wrong in principle. In R v Aston (No.2) (1991) 1 Qd R 375 at 382, Cooper J (with whom Kniepp and Shepherdson JJ agreed) said:

“There is thus no arithmetic or logical progression that requires the imposition of progressively heavier sentences leading ultimately to an indeterminate sentence of life imprisonment. On each occasion a sentence is imposed on the basis of the court’s attempting to achieve and balance the various purposes of criminal punishment which are set out in the citation from Veen [No.2] above…”

  1. [44]
    Second, the head sentence of three years attached to four offences. No authorities were put before the Magistrate to establish that a head sentence of this duration was within range. The sentencing remarks do not explain, either in detail or by way of outline, how the three year term of imprisonment was arrived at by the Magistrate.
  1. [45]
    Both Ms Strofield and Ms Aldas put a number of authorities before this Court to assist with respect to the range of sentences imposed for similar offending. The submissions made on behalf of Mr Moore and the Respondent proceeded on the footing that R v Hill [2017] QCA 177 was the closest comparable to this case.
  1. [46]
    Hill was sentenced on his own plea of guilty to twenty seven offences committed while on parole. He was 29 years of age at the time of the offences and 31 at the time of the appeal and had an extensive criminal history. The head sentence imposed at first instance was three years imprisonment cumulative on a 14 year term of imprisonment. The sentence attached to the most serious offending involving one count of burglary and stealing and one count of dangerous operation of a motor vehicle with a circumstance of aggravation. The offending involved breaking and entering into a home whilst the complainant and children were home. A handbag was stolen. The dangerous operation of a motor vehicle involved Hill driving at high speeds to flee from police and crossing double white lines when overtaking other vehicles. He was unlicensed and ultimately crashed the vehicle.
  1. [47]
    On appeal, the sentence at first instance in Hill was set aside and a cumulative term of two years imprisonment was imposed to recognise the totality principle and to take into account a period of 16 months spent in pre-sentence custody.
  1. [48]
    The moderation of the sentence from three to two years occurred in circumstances where the earlier sentence being served by Hill was a term of 14 years imprisonment for a series of armed robberies.
  1. [49]
    There are a number of features of Hill that are common to Mr Moore’s case. At the time of the offending, both were mature men with extensive criminal histories. Both men are fairly characterised as recidivists. The offending in both cases occurred while on parole. In my view, however, Hill is more serious than the present case. Hill was charged with more serious offending and there were a greater number of offences overall. Mr Moore, unlike Hill, did not steal any property. He entered a garage of a home and left shortly afterwards without taking property.
  1. [50]
    Hill does not, in my view, support a head sentence in this case of three years nor does it support an aggregate sentence of five and a half years for all fifty offences. It supports the proposition that three years was a relevant starting point for the head sentence, but not the end point. Consideration needed to be given to an aggregate head sentence of five and a half years to ensure it was not a crushing sentence on Mr Moore. The Magistrate did not expressly undertake this task. If that task is undertaken, it is my view the head sentence should be moderated downwards from the starting point of three years to a period of two years, leaving an aggregate sentence of four and a half years. A sentence of this duration would, in my view, appropriately reflect the criminality of all fifty offences as well as Mr Moore’s age, criminal history and the offending having occurred some 8 to 13 days after he had been released on parole.
  1. [51]
    Hill does not assist with the extent of the moderation, if any, to be given to Mr Moore’s head sentence to reflect that it is to be served cumulatively with the sentence imposed on 1 August 2017. This is because the moderation in Hill occurred in circumstances where the earlier sentence imposed was 14 years imprisonment. Rather, assistance is obtained from other authorities about which submissions were made. One such case is that of R v Walsh [2014] QCA 209.
  1. [52]
    At first instance Walsh was sentenced on his own plea of guilty for 45 offences committed over a period of three weeks. The offending included thirteen counts of burglary, eighteen counts of unlawfully using a motor vehicle, and four counts of stealing. Walsh had a serious criminal history and committed the offences nine weeks after his release on parole. At first instance, Walsh was sentenced to a three year term of imprisonment cumulative upon an earlier and existing sentence of two years and one month imprisonment. The aggregate sentence equated to a term of imprisonment of five years and one month.
  1. [53]
    On appeal, the head sentence was reduced from three to two years, equating to an aggregate sentence of four years and one month imprisonment. The head sentence was moderated on appeal from an initial period of four years to two years to reflect two things: (1) the sentence was moderated by a period of one year (from four to three years) because the sentence was to be served cumulatively on the expiration of an earlier existing sentence; and (2) the sentence was further moderated by a period of one year (from three to two years) given Walsh’s significant cooperation with police and the administration of justice as well as his personal factors (youth and deprived background).
  1. [54]
    As was conceded by Ms Aldas, the offending in Walsh is objectively more serious than the present case. However, three features of Walsh must be noted. First, Walsh was a young man of 19 years of age at the time of the offending and sentence. Second, Walsh made significant admissions to police such that 39 of the 42 counts were entirely based on his own admissions. Third, Walsh was not charged, like Mr Moore, with dangerous operation of a motor vehicle. In my view, even if an allowance was made for these three features in Walsh, it does not suggest that an aggregate sentence of five and half years fell within the range of the sentencing discretion at first instance for Mr Moore.
  1. [55]
    In my view, Walsh is of assistance in the circumstances of this case. It assists in demonstrating that a sentence of three years imprisonment, as a starting point was within range before a moderation to reflect the sentence was to be served cumulatively upon an earlier sentence. Walsh also assists with the extent of moderation that is open. A moderation of one year was given for the cumulative aspect of the sentence. That is what I consider to be an appropriate moderation in this case.
  1. [56]
    A head sentence of two years for Mr Moore, in my view, achieves an appropriate balance between the imposition of a sentence that reflects both specific and general deterrence as against the need to avoid a crushing sentence and the risks that flow from such a sentence. As was observed by Applegarth J in Hill at [47]:

“…An excessive sentence which is “crushing” upon the applicant risks his ceasing attempts to improve his education, address the underlying causes of his criminality and generally rehabilitate himself. It risks producing a prisoner who, upon his release, poses a greater danger to the community than a prisoner who is not completely institutionalised.”

  1. [57]
    Third, as I observed earlier, the sentencing remarks reveal that the Magistrate did not identify the period served by Mr Moore in pre-sentence custody. Further, the remarks reveal an error with respect to the identification of the parole eligibility date. These errors, in combination, mean in my view that the Magistrate did not apply the totality principle to the “bottom” of the sentence imposed to ensure it was not a crushing one. As a consequence, the sentence imposed was excessive.

Re-exercise of the sentencing discretion

  1. [58]
    For the reasons given above, it is my view that the head sentence to be imposed should be reduced from three to two years, resulting in an aggregate cumulative sentence of four and a half years. This will attach to the charges of enter dwelling with intent by break, enter premises with intent by break and unlawful use of a motor vehicle.
  1. [59]
    Mr Moore will also be sentenced to 2 years imprisonment with respect to the charge of dangerous operation of a motor vehicle. This is the first time he has been convicted of this offence and a heavy penalty (that is 2 years or greater) would only have been called for, in my view, if Mr Moore had previously been convicted of the same offence[3]and the circumstances of the offending involved a police chase or an attempt to evade capture by the police at speed. Those facts are not features of this case.
  1. [60]
    Shorter terms of imprisonment will be imposed for the balance of the offences, save for those where Mr Moore will be convicted but not further punished. This applies to the charges with respect to the offences involving registration certificates, assault/obstruct police and contravention of a direction/requirement.
  1. [61]
    With respect to parole eligibility, it will be fixed at 26 September 2018 pursuant to s. 160B(2) of the Penalties and Sentences Act 1992 (Qld). Again, looking at the sentences as an aggregate, this would mean that Mr Moore is eligible to apply for parole after serving 22 months of a 54 month sentence. This date represents more than the usual one third of the sentence (to reflect the guilty plea). That is appropriate given Mr Moore’s age and criminal history. It is also appropriate given the offences were committed by Mr Moore only a short period after being released on parole. There was no evidence about Mr Moore’s rehabilitation that would suggest positive steps had been taken by him to offset the combination of these features that result in the fixing of a parole eligibility date later than the one third mark. Setting a parole eligibility date at a point that is greater than the one third mark of the head sentence is supported by R v Hyatt [2011] QCA 55 and R v Hawdon [2011] QCA 219.
  1. [62]
    The term of imprisonment imposed will be cumulative with the earlier sentence imposed on 1 August 2017. This is to reflect the requirements of s. 156A of the Penalties and Sentences Act 1992 and that the offences are of a similar character to those dealt with on 1 August 2017, and were committed by Mr Moore while on parole.

Conclusion

  1. [63]
    The appeal is allowed. The sentence and orders of the Magistrates Court at Richlands of 19 April 2018 are set aside. The sentence and orders set out in paragraphs [3] and [4] of these reasons for judgment are imposed in lieu.

Footnotes

[1]  See item 32 in Schedule 1 referring to s. 328A of the Criminal Code, dangerous operation of a vehicle.

[2] R v Cutajar (1995) 85 A Crim R 280 at 283 per McPherson JA.

[3]  See for example R v Paton [2011] QCA 34, [21] where a three year term was imposed where offender had three previous convictions for the same offence.

Close

Editorial Notes

  • Published Case Name:

    Moore v Queensland Police Service

  • Shortened Case Name:

    Moore v Queensland Police Service

  • MNC:

    [2018] QDC 192

  • Court:

    QDC

  • Judge(s):

    Williamson DCJ

  • Date:

    20 Sep 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Postiglione v The Queen (1997) 189 CLR 295
1 citation
Jump To
Cite 1 - (1997) 189 CLR 295
R v Aston (No 2) [1991] 1 Qd R 375
1 citation
Jump To
Cite 1 - [1991] 1 Qd R 375
R v Cutajar; ex parte A-G (Qld) (1995) 85 A Crim R 280
1 citation
Jump To
Cite 1 - (1995) 85 A Crim R 280
R v Doraho [2011] QCA 29
2 citations
Jump To
Cite 1 - [2011] QCA 29
Cite 2 - [2011] QCA 29
R v Hawdon [2011] QCA 219
1 citation
Jump To
Cite 1 - [2011] QCA 219
R v Hill [2017] QCA 177
2 citations
Jump To
Cite 1 - [2017] QCA 177
Cite 2 - [2017] QCA 177
R v Hyatt [2011] QCA 55
3 citations
Jump To
Cite 1 - [2011] QCA 55
Cite 2 - [2011] QCA 55
Cite 3 - [2011] QCA 55
R v Maksoud [2016] QCA 115
1 citation
Jump To
Cite 1 - [2016] QCA 115
R v Morse (1979) 23 SASR 98
1 citation
Jump To
Cite 1 - (1979) 23 SASR 98
R v Paton [2011] QCA 34
1 citation
Jump To
Cite 1 - [2011] QCA 34
R v Walsh [2014] QCA 209
1 citation
Jump To
Cite 1 - [2014] QCA 209
Rongo v Commissioner of Police [2017] QDC 258
1 citation
Jump To
Cite 1 - [2017] QDC 258
The Queen v Williams [1995] QCA 522
1 citation
Jump To
Cite 1 - [1995] QCA 522

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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