Murray v Commissioner of Police
[2018] QDC 96
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- Unreported Judgment
- Murray v Commissioner of Police[2018] QDC 96
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Murray v Commissioner of Police[2018] QDC 96
Murray v Commissioner of Police[2018] QDC 96
DISTRICT COURT OF QUEENSLAND
CITATION: | Murray v Commissioner of Police [2018] QDC 96 |
PARTIES: | MURRAY, Rohan Lee (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | 3478/17 |
DIVISION: | Appellate |
PROCEEDING: | s 222 Appeal, Justices Act 1886 (Qld) |
ORIGINATING COURT: | Magistrates Court, Brisbane |
DELIVERED ON: | 1 June 2018 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 May 2018 |
JUDGE: | Butler AM SC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – Justices Act 1886 (Qld), s 222 – appellant convicted on his own plea of serious assault upon a corrective services officer – whether sentence excessive – whether parole eligibility date correctly set. Justices Act 1886 (Qld) s 222 Penalties and Sentences Act 1992 (Qld) ss 9(10), 9(11), 156A, 160F Robinson Helicopter Co Inc v McDermott [2016] HCA 22 Forrest v Commissioner of Police [2017] QCA 132 White v Commissioner of Police [2014] QCA 121 Teelow v Commissioner of Police [2009] QCA 84 House v The Queen (1936) 55 CLR 499 R v Ball [2000] QCA 46 R v Currie [2008] QCA 192 R v Murray [2014] QCA 250 |
COUNSEL: | The appellant appeared on his own behalf L Soldi for the respondent |
SOLICITORS: | The appellant appeared on his own behalf Office of the Director of Public Prosecutions for the respondent |
- [1]This is an appeal pursuant to s 222 of the Justices Act 1886 (Qld) against a sentence imposed in the Magistrates Court at Brisbane on 18 August 2017. The appellant was sentenced to a head sentence of 12 months’ imprisonment cumulative upon sentences he was already serving. His parole eligibility date was set at a date 19 months after his date of sentence on the present offence. The appellant submits that the sentence was excessive and in particular that the point at which the parole eligibility date was set constituted a sentencing error.
Appeal
- [2]A notice of appeal was filed on 13 September 2017 stating the ground that “the sentence imposed was manifestly excessive”. A certificate of readiness filed on 13 February 2018 and signed by the appellant stated the following as matters in issue:
- the head sentence was excessive in the circumstances;
- the date ordered for parole eligibility was excessive in the circumstances;
- the sentence imposed was not adequately moderated to account for the totatality principle;
- the sentence imposed is not adequately moderated to account for the appellant having pleaded guilty;
- the sentence imposed was not adequately moderated to account for the appellant’s poor health;
- indigenous prisoners were over represented in correctional centres; and
- the term of imprisonment was not suspended.
The matters listed in the certificate of readiness pick up the argument contained in an outline of argument filed by the appellant on 21 December 2017.
Appeal principles
- [3]An appeal to the District Court under section 222 of the Act is an appeal by way of rehearing. The task of the Appellant Court in conducting an appeal by way of rehearing was recently explained by the High Court in Robinson Helicopter Co Inc v McDermott as follows:
“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 erred in fact or law.”[1]
- [4]The judge should consider the evidence led before the magistrate “paying due regard to the advantage the learned magistrate had in seeing the witnesses give evidence, to determine for himself the facts of the case and the legal consequences that follow from such findings fact”.[2]
- [5]Ordinarily, to succeed on such an appeal, especially an appeal against sentence, an appellant must establish some legal, factual or discretionary error by the sentencing court.[3]Those principles are consistent with those adopted by the Court of Appeal in Teelow v the Commissioner of Police[4]as applying to appeals against the exercise of discretion.[5]In Teelow the Court of Appeal was considering an appeal to the District Court against sentence.
The offence
- [6]The facts before the Magistrates Court at sentence were set out in an agreed schedule of facts tendered before the magistrate. A copy of the exhibit did not find its way to the court file but the respondent produced a copy at the appeal and the appellant agreed that it was a true copy of the schedule before the court below. The facts in that schedule are accurately summarised in the respondent’s outline as follows:
“On 4 August 2016 the appellant was a prisoner at the Wolston Correctional Centre. The complainant Michael Petrovic worked there as a custodial corrections officer. Mr Petrovic told the appellant that he would not be allowed to attend a scheduled elders meeting that day. As he tried to explain the reason for this decision the appellant threatened and swore at Mr Petrovic. He spat at Mr Petrovic’s face and clenched his fist. His aggression and abuse continued as he was restrained by other officers and escorted away.”
- [7]Following the incident the complainant was disease and infection tested with the results returning a negative result.
- [8]The learned magistrate sentenced the appellant to 12 months’ imprisonment cumulative upon the sentences he was already serving. Her Honour fixed his parole eligibility date as at 16 March 2019. That date meant that the appellant would not be eligible for parole for another 19 months. The eligibility date was set at a point of three months prior to his previous fulltime release date and three years and nine months after his previously existing parole eligibility date, the appellant having continued to be in custody past his existing eligibility date at the time he was sentenced.
Appellant’s submisions
- [9]The appellant spoke on his own behalf at the appeal. He submitted that the learned magistrate had erred in setting his parole eligibility date so far into the future. He emphasised he was already serving eight years imprisonment which was increased by 12 months under the sentence. He submitted that the new eligibility date was four years from the previous eligibility date set by a court. He said that the sentence imposed gave him no benefit for his timely plea of guilty or his serious heart condition.
- [10]The appellant submitted that the cumulative sentence imposed should be suspended rather than a parole eligibility date being set. He argued this would give him a definite release date and moderate the severity of the very long term of imprisonment he has to serve.
Respondent’s submissions
- [11]It is conceded on behalf of the respondent that the setting of a parole eligibility date 19 months from sentence when the head sentence was only 12 months’ imprisonment, resulted in a sentence that was excessive.
- [12]However, the respondent submits that the cumulative term of 12 months’ imprisonment is not of itself excessive and is consistent with comparable sentencing decisions by the Court of Appeal. Furthermore, it is submitted that the appellant is not a suitable candidate for a suspended sentence as his demonstrated recidivism and disregard for court orders indicates he requires supervision within the community.
- [13]It is submitted on behalf of the respondent that the appeal be allowed only to the extent that the appellant be eligible for immediate parole. This submission was based on the conclusion that at the time of sentence in the Magistrates Court an appropriate order would have been for the appellant to become eligible for parole after a further four months in custody.
Material before Magistrates Court
- [14]The appellant had legal representation in the Magistrates Court. In that court both parties relied upon the schedule of facts already referred to. An 11 page criminal history was placed before the court. It commences with property offending in 1998 and convictions for numerous property and drug offences follow.
- [15]In 2005 the appellant was convicted of sexual assaults for which he received a head sentence following appeal of 15 months’ imprisonment. Property offending continued with numerous terms of imprisonment being imposed. In August 2011 the appellant was convicted of robbery with actual violence whilst armed in company and in October 2013 he was convicted of grievous bodily harm against his partner. For most of his adult life he has been in and out of prison.
- [16]Mitigating circumstances were also placed before the Magistrate’s Court by the appellant’s legal representative. He had a difficult and violent childhood and after being taken into care he was subjected to sexual abuse. His medical condition was also before the magistrate. He suffered heart attacks resulting in his having a pacemaker implanted. He also received 3 days in solitary confinement as internal punishment for the spitting. He later apologised to the officer, expressed remorse at the time of sentence and entered a timely plea of guilty.
The Magistrate’s reasons for decision
- [17]The learned magistrate in giving detailed reasons had regard to all the relevant considerations. Her Honour detailed fully the circumstances of the appellant’s childhood, domestic violence, consistent and persistent sexual abuse, the lack of a father figure and drug use.
- [18]Her Honour referred to his criminal history and the sentencing remarks in the Supreme Court in relation to the grievous bodily harm offence. The remarks emphasised the savagery and serious consequences for the complainant in that case.
- [19]Her Honour took into account his plea of guilty, three days spent in solitary confinement and positive conduct as an artist in the prison. Her Honour also referred to his health issues. He was 37 years of age at the time of sentence.
- [20]The learned magistrate correctly identified the need to balance the mitigating factors, including his difficult childhood, with the need for deterrence. Reference was made to the circumstance of the offending, the risks involved in spitting and his serious criminal history. Her Honour emphasised the need to protect the safety of those who work in the confined prison environment. A sentence of 12 months’ imprisonment with parole eligibility set at 16 March 2019 was imposed.
Consideration
- [21]The effect of the head sentence imposed by the learned magistrate was to increase the overall term from eight to nine years. Her Honour was correct in concluding that a cumulative sentence was necessary. Indeed any sentence of imprisonment to be imposed was required to be cumulative due to it having been committed while the appellant was in a correctional institution: s 156A Penalties and Sentences Act 1992(Qld).
- [22]The respondent submits that the term of 12 months imprisonment is not excessive. The respondent referred to two cases, R v Ball[6]and R v Currie.[7]The first of those cases involved a prisoner punching an officer in the face causing bruising and a small laceration amounting to bodily harm. He was 40 years old with an extensive criminal history for dishonesty and assault. A sentence of 12 months’ imprisonment cumulative upon his existing sentences was upheld, particularly bearing in mind his lack of remorse and his prior criminal history. The Court of Appeal observed that comparable sentences demonstrated that a slightly lesser penalty could have been imposed. The facts of R v Currie involved spitting in a corrective services officer’s face with spittle going into his eye and mouth. A cumulative sentence of 12 months’ imprisonment was imposed. The court did not give detailed attention to that aspect of the sentence but was satisfied that there was no sentencing error.
- [23]In R v Murray[8]the Court of Appeal considered a number of sentencing decisions in relation to spitting on police officers. While Murraywas being dealt with under a recently amended provision which sets the maximum penalty at 14 years where the victim is a police officer, the court referred to a number of previous decisions from a time when the maximum penalty was seven years. Sentences of six months’ imprisonment were imposed in a number of those matters. However on analysis it seems to me each of them had mitigating factors which are not present in the case of this mature offender with a lengthy criminal history, including two serious offences involving violence.
- [24]I am satisfied, following consideration of those appeal decisions and balancing the need for deterrence against the mitigating factors in this case, that at the time of sentence before the Magistrates Court, a cumulative term of 9 to 12 months would have fallen within the permissible sentencing discretion of the Magistrate.
- [25]It is, however, the other component of the sentence which is called into question. The prosecutor conceeds that the learned magistrate erred in setting the parole eligibility date 19 months from the date of sentencing for this offence. I am satisfied that concession is properly made. Section 160F of the Penalties and Sentences Act 1992 provides as follows:
“(2)When fixing a date under this division as the date an offender is to be released on parole or is to be eligible for release on parole, the date fixed by the court must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment.”
- [26]Here the period of imprisonment was a period of 9 years. The earlier sentences of 8 years having been increased by a further 12 months. In arriving at the point at which parole eligibility should be set it is necessary for the court to have regard to the totality of the sentence and to take into account any benefit the defendant should receive following a timely plea of guilty. The effect of the sentence imposed below was to set the eligibility date very late in the period of imprisonment. In my view that gave insufficient weight to issues of totality and to the guilty plea.
- [27]Here it is conceded that the appellant entered a timely plea of guilty; his sentence must incorporate a benefit for that timely plea. In addition it is appropriate that any punishment by way of solitary confinement be taken into account. It seems to me that the head sentence of 12 months’ imprisonment did not incorporate any allowance for the timely plea as the comparable sentencing decisions indicate that the term was towards the higher end of the permissible sentencing discretion.
- [28]Furthermore, it is necessary to ensure that the sentence imposed reflects the overall criminality of the offending behaviour. Although assault by spitting is a serious offence, nevertheless the sentence must not exceed what is “just and appropriate”. These considerations apply to the setting of a parole eligibility date, particularly in a case such as this where a lengthy term of actual imprisonment will have been served at that point.
- [29]Of course, a relevant aggravating factor is the appellant’s serious criminal history including offences of violence. The sentencing principle in this regard is to be found in sub-sections (10) and (11) of s 9 of the Penalties and Sentences Act 1992 (Qld):
“(10) In determining the appropriate sentence for an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to –
- (a)the nature of the previous conviction and its relevance to the current offence; and
- (b)the time that has elapsed since the conviction.
- (10)Despite sub-section (10), the sentence imposed must not be disproportionate to the gravity of the current offence.”
- [30]The latter subsection serves to remind that care must be taken when sentencing for a further offence to bear in mind that it is the particular offence charged that is being penalised.
- [31]Having taken all these matters into consideration I am satisfied that the imposition of a parole eligibility date set so far in the future resulted in the sentencing process falling into error. It follows that I must sentence afresh undertaking an independent assessment of the material placed before the Magistrate’s Court.
- [32]The appellant contended that the additional term of imprisonment should be imposed as a wholly suspended sentence so as to not impede his eventual release into the community. I am not persuaded that in the circumstances of this case a suspended sentence is an appropriate sentencing option. The offence of spitting in the face of a Corrective Services officer within a prison is behaviour that requires both general and specific deterrent sentencing. A cumulative term of imprisonment is necessary to achieve that aim. Assulting an officer by spitting has serious consequences for the victim. Here the officer had to undergo testing and await the results. Discipline must be maintained within the prison. I do not consider that a wholly suspended cumulative term would provide sufficient deterrence. Furthermore, having regard to the appellant’s lengthy and serious criminal history I accept the respondent’s submission that any period of imprisonment the appellant is likely to serve within the community should be subject to appropriate supervision to minimise potential for reoffending. I decline to accept the submission that a suspended sentence should be imposed.
- [33]Approaching the sentencing task afresh on the basis of the material before the Magistrate’s Court, I consider that an appropriate order at the time of original sentence would have been a cumulative sentence of 9 to 12 months’ imprisonment with a parole eligibility date set 4 months from the date of sentence. At the time of sentence the appellant had been in custody for a long period since his court appointed parole eligibility date. Serving four further months in custody before he may apply for parole would constitute a real additional impost but nevertheless extend a benefit for the timely plea.
- [34]Some nine months have passed since the time of sentence and at this point of time the earliest a parole eligibility date may be set is at the date of delivery of this decision. Should the sentence only be varied by granting immediate parole eligibility the appellant will be disadvantaged as against what was, in my view, the sentence that ought to have been originally imposed. I propose to take that consideration into account in the sentence I will now deliver by moderating the cumulative term that I would otherwise have imposed. Accordingly, the appellant’s sentence will be varied by imposing a cumulative term of 6 months imprisonment with the parole eligibility date set as at today.
- [35]The orders of the court will be:
- The appeal against sentence is allowed.
- The sentence of the Magistrates Court imposed on 18 August 2017 is set aside;
- The appellant is sentence to imprisonment for 6 months cumulative upon the sentence imposed on 29 October 2013; and
- The appellant’s parole eligibility date is fixed as 1 June 2018.