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Reynolds v Commissioner of Police[2019] QDC 159

Reynolds v Commissioner of Police[2019] QDC 159

DISTRICT COURT OF QUEENSLAND

CITATION:

Reynolds v Commissioner of Police [2019] QDC 159

PARTIES:

KURT ANDREW REYNOLDS

(Appellant)

v

COMMISSIONER OF POLICE

(Respondent)

FILE NO/S:

MAG-00172674/18(6); D878/2019

DIVISION:

 

PROCEEDING:

Criminal Appeal

ORIGINATING COURT:

Magistrates Court at Caboolture

DELIVERED ON:

29 August 2019

DELIVERED AT:

Townsville

HEARING DATE:

9 August 2019

JUDGE:

McGill SC DCJ

ORDER:

Appeal allowed in part.  Sentences of imprisonment for the charges of unlawful use of a motor vehicle and stealing set aside.  In lieu thereof, for the unlawful use of a motor vehicle charge, a sentence of 16 months imprisonment, to be served concurrently with the sentences of imprisonment imposed on 18 February 2019 but cumulatively on the imprisonment then being served, be substituted; and for the stealing charge, an order that the appellant be not further punished be substituted.  Appeal otherwise dismissed. 

CATCHWORDS:

CRIMINAL LAW – Sentence – cumulative sentence – application of totality principle – allowance for plea of guilty – parole eligibility date past half way through period of imprisonment – whether factual error in sentence. 

Justices Act 1886 s 222.

Allesch v Maunz (2000) 203 CLR 172 – cited.

Barbaro v R (2014) 253 CLR 58 – cited.

Baxter v R (2007) 173 A Crim R 284 – cited.

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 – cited.

Commissioner of Police v Al Shakarji [2013] QCA 319 – cited.

Dinsdale v R (2000) 202 CLR 321 – applied.

Fox v Percy (2003) 214 CLR 118 – cited.

House v R (1936) 55 CLR 499 – cited.

Kentwell v R (2014) 252 CLR 601 – cited.

Markarian v R (2005) 228 CLR 357 - cited.

McDonald v Queensland Police Service [2017] QCA 255 – applied.

Postiglione v R (1997) 189 CLR 295 – cited.

R v Chatters [2008] QCA 233 – considered.

R v Cutajar (1995) 85 A Crim R 280 – cited.

R v Hardie [2014] QCA 82 – considered.

R v Harrison [1997] QCA 474 – considered.

R v Herbert [2013] QCA 62 – considered.

R v Langford [1996] QCA 77 – considred.

R v Lawley [2007] QCA 243 – cited.

R v Matue [2009] QCA 216 – considered.

R v Nagy [2004] 1 Qd R 63 – cited.

R v PBD [2019] QCA 59 – cited.

R v Parker [2002] QCA 403 – applied.

R v Potter [2019] QCA 162 – cited.

R v Randall [2019] QCA 25 – cited.

R v Rowe [2011] QCA 372 – considered.

R v Thiemann [2015] QCA 195 – considered.

Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 – cited.

Rowe v Kemper [2009] 1 Qd R 247 – cited.

Shambayati v Commissioner of Police [2013] QCA 57 – cited.

Veen v R [No 2] (1988) 164 CLR 465 – cited.

Walker v Davlyn Homes Pty Ltd [2003] QCA 565 – cited.

White v Commissioner of Police [2014] QCA 121 – cited.

COUNSEL:

A Beard (solicitor) for the appellant.

B Park for the respondent.

SOLICITORS:

Legal Aid Queensland for the appellant.

Office of the Director of Public Prosecutions for the respondent.

  1. [1]
    This is an appeal against the sentence imposed on the appellant on 18 February 2019 in the Magistrates Court at Caboolture. The appellant pleaded guilty to three counts of receiving tainted property, one count of stealing, one count of obstructing a police officer in the performance of duties, one count of possessing property suspected of having been used in connection with the commission of a drug offence, one count of possessing dangerous drugs, one count of unlawful possession of restricted drugs, one count of unlawful use of a motor vehicle and one count of bringing stolen goods into Queensland. He was sentenced in respect of the charge of unlawful use of a motor vehicle to a head sentence of 18 months imprisonment.
  1. [2]
    He received lesser terms of 12 months imprisonment for bringing stolen property into Queensland, nine months imprisonment for a charge described in the sentencing remarks as receiving of a car,[1] six months imprisonment for receiving a bag,[2] three months imprisonment each for stealing, possession of a dangerous drug and obstructing police, and one months imprisonment each for receiving a number plate and possession of scales.  For possession of a restricted drug he was convicted but not further punished.  Those sentences were made concurrent inter se, but cumulative on the imprisonment then being served.  A parole eligibility date of 29 June 2020 was fixed.  An order was made for forfeiture of the scales. 

General principles

  1. [3]
    The appeal is brought under the Justices Act 1886, s 222, and is by way of rehearing on the record.  Neither party sought leave to lead further evidence: s 223.[3]  On an appeal by way of rehearing, it is necessary for me to consider the evidence and make up my own mind, particularly in relation to matters involving the drawing of inferences from primary facts.[4]  In the proceeding before me, the onus is on the appellant to show that there was some error in the decision under appeal.[5]  As this is an appeal against sentence, the principles in House v R (1936) 55 CLR 499 at 504 – 5 apply: it must appear that some error has been made in the exercise of the sentencing discretion.[6]  If the appellant can show that there was some specific error in the exercise of the sentencing discretion, it is necessary then to consider whether that led to a sentence which was excessive.  That depends on whether the appeal court, in the exercise of its own sentencing discretion, would or would not impose a lower sentence.[7]  If an error can be demonstrated only by showing that the sentence was manifestly excessive, the appeal court, in the exercise of its sentencing discretion, will necessarily reduce the sentence. 

Grounds of Appeal

  1. [4]
    The ground of appeal stated in the notice of appeal was that the sentence was manifestly excessive. In an outline filed on behalf of the appellant it was said that the sentence was excessive for three reasons:
  1. (a)
    the Magistrate failed appropriately to mitigate the head sentence in the light of the cumulative nature of the sentence imposed;
  1. (b)
    the Magistrate erred in failing to apply a “synthetic” approach to sentencing;
  1. (c)
    no benefit was afforded for the plea of guilty.
  1. [5]
    It is convenient to deal with the second proposition first. It was submitted that the Magistrate had failed to apply the approach of instinctive synthesis in sentencing as required by decisions of the High Court.[8]  The basis of this submission was that the Magistrate, after listing the sentences imposed on the appellant, then said that in the light of his criminal history he was “not satisfied that a sentence other than a cumulative sentence is appropriate in all the circumstances.”  It was submitted that this indicated that the Magistrate had considered whether the sentences were to be served cumulatively with the current imprisonment separately from the question of what sentences should be imposed.  In my view, however, there is no reason to draw that conclusion simply from the structure of the sentencing remarks. 
  1. [6]
    Although the process of instinctive synthesis does require a court to produce a single sentence, which means covering all of the elements and features of the particular sentencing being carried out overall, while simultaneously considering all relevant factors, sentencing remarks, which function as reasons for the sentence imposed, cannot be expressed in such a fashion. In order to make them coherent and comprehensible, it is necessary that they deal with the various relevant factors sequentially. What the Magistrate has done in this case was no more than that. Indeed, to list the various individual sentences of imprisonment imposed for the particular offences, and then to say whether they are to be served concurrently or cumulatively or some combination of both, strikes me as a natural way of expressing, the relevant parts of the sentence being imposed overall, in a way which the defendant and others can understand. There is no reason to assume from this format that the question of whether the sentence should be cumulative has been considered independently of the question of what head sentences should be imposed.
  1. [7]
    Apart from this, the Magistrate previously said on p 2 at line 23, that he had taken into account a period spent in custody prior to sentence which was not declarable in the ultimate sentence, and also said at line 46:

“I note that in giving you the ultimate sentence today, which will of course be a term of imprisonment, that I have to consider what would be a crushing sentence when I consider the circumstances in relation to cumulative sentences those circumstances in relation to the need to set a parole eligibility date and the circumstances where even at the end of any term of imprisonment you are going to be returned to New South Wales to face the ultimate sentence in relation to other offending down there.”[9]

  1. [8]
    Apart from this, during the sentencing hearing the prosecutor had made the submission that any custodial sentence imposed should be cumulative on the current custodial sentence, where he noted that parole had been suspended and that there was no declarable time: p 7. The solicitor for the appellant before the Magistrate conceded that some form of imprisonment was the only option. The solicitor later at p 11 submitted that, if the sentence for the further offending was cumulative:

“My only issue would be is whether it would be crushing on my client considering the time he still has remaining on his parole orders.  And I’d submit it’s open for the court to consider a parole eligibility today if your Honour was minded to do so. …If not today, your Honour, I’d ask for one third or less of the overall sentence.”

  1. [9]
    It is clear that a cumulative sentence was at least raised as a consideration during the sentencing hearing and submissions were made about it, and the point was made about the issue of totality. In that context, there is no reason to interpret the sentencing remarks as suggesting that the Magistrate has erred in relation to the approach to sentence by impermissibly considering the issue of whether the sentences were to be served cumulatively independently from the length of those sentences.

Benefit of Plea

  1. [10]
    The third matter argued was that there was no benefit given for the plea of guilty. The Magistrate at the start of his sentencing remarks said that there was an early plea of guilty, and that he had reduced the sentence he would otherwise have imposed because of that. I interpret that as indicating that the head sentence had been reduced. That is recognised as a legitimate way to take into account a plea of guilty; indeed, in the light of the defendant’s criminal history, it might be thought that he would have some difficulty in obtaining parole, bearing in mind that the court could only set a parole eligibility date, this was a method of giving credit for the plea of guilty which may well have been of more use to the defendant than an early parole eligibility date. The real issue here is whether the head sentence in fact imposed for this additional imprisonment was manifestly excessive in the context where it was imposed cumulatively on the sentence of imprisonment already being served, and where it had been reduced to take into account the plea of guilty. That is a matter conveniently dealt with under the first matter advanced in submissions on behalf of the appellant.

Criminal History

  1. [11]
    Before considering other issues it is relevant to summarise the circumstances in which the offending was committed, and the criminal history of the defendant. They are inter-related because the offending arose from offences committed by the defendant in New South Wales at a time when he was serving a term of imprisonment in that State. The appellant was born on 1 July 1978 at Newcastle, and was 40 years old at the time of these offences; he has since turned 41. His New South Wales criminal history was Exhibit 5 before the Magistrate, but included Children’s Court matters, which I must ignore. It appears that in July 2000 he was sentenced to a term of imprisonment for disqualified driving, reduced on appeal in October 2000 to nine months imprisonment with a non-parole period of six months. At the same time he was given 12 months imprisonment with a non-parole period of eight months for what appears to be the equivalent of dangerous operation of a motor vehicle.
  1. [12]
    In June 2001 he was sentenced to 16 months imprisonment each for what appear to be the equivalent of unlawful use of a motor vehicle, and breaking, entering and stealing. There were a number of further offences in New South Wales, for some of which imprisonment was imposed, up to 2009. In Queensland, in January 2005, he was placed on a suspended term of imprisonment for disqualified driving, and in March 2005 for breach of that condition he was ordered to serve part of the suspended term, namely three days. In April 2012, he was before the District Court in Brisbane for offences of robbery with actual violence whilst armed, arson of a motor vehicle, burglary and committing an indictable offence, unlawful use of a motor vehicle (five charges), receiving tainted property, stealing, two counts of dangerous operation of a vehicle, two counts of unlawful use of a motor vehicle, and a number of summary offences. A head sentence of five years was imposed, suspended for five years after serving his 198 days of pre-sentence custody.
  1. [13]
    In 2013, he was before the Magistrates Court at Cleveland for possessing dangerous drugs and other offences including unlawful use of a motor vehicle. Then in December 2013, he was before the Cleveland Magistrates Court for possessing dangerous drugs and other offences including unlawful use of a motor vehicle, for which he received a head sentence of 18 months imprisonment, apparently suspended for three years after the 248 days he had served in pre-sentence custody. On 18 July 2014, he was before the District Court for breach of the suspended sentences imposed on 27 April 2014. The criminal history is rather puzzling because it records him as being re-sentenced for the original offences to three years imprisonment with parole release after three months. He was also dealt with for breach of the suspended imprisonment imposed on 18 December 2013 in the Magistrates Court, for which he was sentenced to the rising of the court.
  1. [14]
    On 16 June 2016, he was before the Brisbane District Court for arson, breaking and entering a dwelling with intent, attempted unlawful use of a motor vehicle, serious assault, and a number of summary offences including further offences of unlawful use of a motor vehicle. He was sentenced to a head sentence of three and a half years imprisonment on the arson charge, and ordered to serve the suspended imprisonment imposed on 27 April 2012 and the balance of the suspended sentence imposed on 18 December 2013. All the sentences were made concurrent, 288 days pre-sentence custody was declared, and a parole eligibility date was fixed 12 months later.
  1. [15]
    It is not clear when he received parole, but he was at liberty on 27 January 2018 when he stole a couple of items from a service station at Mango Hill, one of the matters dealt with. On 14 May 2018 he was dealt with in New South Wales for driving while disqualified, driving with an illicit drug present in the blood, disobeying a police direction, stealing a motor vehicle and driving dangerously while being pursued by police. He was given a head sentence of seven months and lesser concurrent terms, backdated to commence on 1 April 2018, I expect when he went into custody. This imprisonment was due to conclude on 31 October 2018, but on 7 September 2018, while the defendant was in custody at the Mid North Coast Correctional Centre, he and a fellow inmate took some car keys from a kitchen worker at the prison and used them to steal a car which they then drove to Queensland. The appellant’s lawyer in the Magistrates Court said that his client walked out of the kitchen of the prison with a set of keys, entered the vehicle and drove to Queensland: p 10.
  1. [16]
    The explanation offered for this was that he had had recent news about the death of a family member, and his children had been removed from their mother and placed into care. That involved the commission of offences in New South Wales. Those offences of course were not before the Magistrate in Caboolture, but the fact that all of the Queensland offending which was before him occurred after the appellant had escaped from lawful custody in New South Wales (a point about which there was no dispute before the Magistrate) was relevant to the criminality of that offending, as was the fact that it all occurred while he was on parole in respect of the offences dealt with in the District Court in Brisbane on 16 June 2016.

Circumstances of the Offending

  1. [17]
    The circumstances of the offending for which the appellant was sentenced were that, when the stolen car was brought into Queensland, it involved the offence of bringing stolen goods into Queensland, and when it was then driven in Queensland this was the offence of unlawful use of a motor vehicle. On 11 September 2018 an Audi Q5 motor vehicle was stolen from the owner’s home in the late afternoon. The following day the vehicle was located, and some time later police found the defendant in parkland nearby where he was found to be in possession of the key to the vehicle. This was the basis of the charge of receiving tainted property in the form of the car. He was also found to be in possession of property which had been stolen from a handbag taken from a car at a time when it was left open, in particular certain identification cards and a quantity of cash. That was the charge of receiving tainted property namely the contents of the handbag.
  1. [18]
    When the stolen vehicle was located near where the appellant was located it had a Queensland number plate on it which had been stolen from another car a few days earlier; this was the third charge of receiving tainted property. When the appellant was searched after he was arrested he was found in possession of a set of scales, a quantity of the illegal drug Buprenorphine, and a quantity of the restricted drug Tramadol and Diazepam for which he could not give a valid excuse. In addition he had obstructed his arrest, first by attempting to walk away, and then by waving his arms around to avoid being handcuffed, which was the charge of obstructing police. Finally, there was an old offence, the stealing charge, based on his taking two items from a service station store on 27 January 2018 which he had not paid for, though he had paid for other items purchased at that store at that time.

Parole Eligibility Date

  1. [19]
    There was one other specific matter relied on, which was that the parole eligibility date was set at 29 June 2020, which was the date which the Magistrate had been informed, and had apparently accepted, was the appellant’s fulltime release date from the imprisonment he was currently serving. The defendant was arrested on 12 September 2018, and immediately his parole was suspended.  He had since then been serving more of the term of imprisonment imposed on 16 June 2016.  As at 18 February 2019, the date of sentence, he had been in custody for 160 days which was not declarable as it was time spent serving the previous sentence.  The head sentence of 18 months cumulative on the existing sentence was therefore 18 months cumulative on twenty-one and a half months that had to be served between the date of arrest and the fulltime release date, a total of thirty nine and a half months.  The parole eligibility date had therefore been set at about 54 per cent of the period of imprisonment to be served as a result of the head sentence imposed.  It follows that there was no recognition of the plea of guilty in fixing an early parole eligibility date.  That is consistent with the Magistrate’s statement that he was taking the early plea of guilty into account in fixing the length of the sentence. 
  1. [20]
    The mere fact that the effect of what happened was that the appellant received a parole eligibility date after serving half of the aggregate cumulative sentence did not mean that the overall sentence imposed was manifestly excessive. That is shown by three decisions of the Court of Appeal where sentences with parole eligibility above 50 per cent of the overall period of imprisonment as a result of a cumulative sentence were not interfered with on that ground. In R v Matue [2009] QCA 216 parole eligibility was at 80 per cent of the period of imprisonment overall, and four months into the cumulative 18 month sentence, but the court held there was no operative error.  In R v Rowe [2011] QCA 372 Mullins J with whom the other members of the court agreed said that in such circumstances the choice of a parole eligibility date is not analogous to such a choice for an offender who has pleaded guilty without the complication of being subject to an existing term of imprisonment. 
  1. [21]
    In R v Herbert [2013] QCA 62 Fraser JA with whom the other members of the court agreed said:

“It is apparent that the most significant factor in the setting of the parole eligibility beyond the midpoint of the overall term was that the applicant committed a separate series of offences while on parole and despite having been imprisoned under the earlier sentence.  That approach was conventional and certainly within the sentencing judge’s discretion.”

In that matter the parole eligibility date was fixed after 54 per cent of the whole period of imprisonment.  In the circumstances, there is no justification in treating this feature as a circumstance indicating either a specific error, or as something which in itself renders the sentence manifestly excessive. 

  1. [22]
    It was also submitted that the combination of a sentence of eighteen months’ imprisonment to be served cumulatively, and such a parole release date, had the effect that the overall sentence was manifestly excessive. That was the sentence imposed, and whether it was manifestly excessive has to be determined taking into account all aspects of the sentence. It will be apparent, however, from what follows that I do not consider that the overall sentence was manifestly excessive. It does not follow, however, that the appeal should be dismissed. There is still the question of whether there was a specific error which vitiated the exercise of the sentencing discretion.

Error in Full Time Release Date

  1. [23]
    On the hearing of the appeal it was agreed that the Magistrate had been misinformed that the fulltime release date for the current sentence was 29 June 2020, and that in fact it was 29 August 2020. In addition, the effect of imposing a cumulative head sentence of 18 months on the existing sentence meant that the period of imprisonment became 41.5 months overall, rather than 39.5 months. One of the grounds on which an Appeal Court can interfere with the exercise of a sentencing discretion is if the sentencing court proceeds on the basis of a material misunderstanding of fact.[10]  The effect of this error in my opinion was to produce a material misunderstanding as to the factual position of the appellant.  Although the period of two months is not very long in the light of either the overall period of imprisonment, or the period of imprisonment prior to the parole release date, in my opinion the capacity for the error to produce an extra two months actual imprisonment for the appellant than the Magistrate intended means that the error must be regarded as a material one.[11]  In those circumstances, I consider it is necessary for me to exercise the sentencing discretion afresh, applying the principles in House v R.[12]
  1. [24]
    It is important to recognise the principle of totality when a sentence is imposed cumulatively on the existing period of imprisonment,[13] and that must be acknowledged, as indeed it was by the Magistrate.  It does not follow however that it is necessary, in order to take totality into account, to reduce the head sentence to the extent necessary so as to produce a period of imprisonment which would have been produced had the sentence been made concurrent; to require that would be to deprive the discretion to order that the sentence be served cumulatively of any content.[14]  Equally, in circumstances where a person is in custody which is not declarable because during that period another sentence is being served for which the defendant was on parole at the time of the fresh offending, it is not appropriate to give the defendant when sentencing for the fresh offending the full benefit of that undeclarable time.  In some circumstances, it is appropriate to give a defendant being sentenced the full benefit of undeclarable time,[15] but this is not one of them.  At the date of sentencing, the appellant had in fact a little over 18 months more of his existing sentence to run.  But it is not appropriate to consider whether the sentence for the new offending was manifestly excessive simply by reference to the head sentence which would have been the equivalent of the sentence that was imposed if the head sentence had instead been made concurrent with the current term of imprisonment.  That is not the correct approach to the application of the totality principle.
  1. [25]
    The maximum penalty for unlawful use of a motor vehicle is imprisonment for seven years. The offence of unlawful use of a motor vehicle can be committed in a wide variety of circumstances; there was however nothing about the circumstances of the offence in the present case which made it a particularly minor or trivial example of the offence. There is also the consideration that the defendant had in his criminal history in Queensland 10 previous convictions for unlawful use of a motor vehicle and four for attempted unlawful use of a motor vehicle, leaving aside any equivalent offences committed in New South Wales.[16]  The offences dealt with by the District Court on 16 June 2016, for which he was on parole at the time of this offending, included the four attempted unlawful use of a motor vehicle charges, though those sentences, each of which was for one year, had expired prior to the time when this further offending occurred.  In December 2013 when he was before the Cleveland Magistrates Court for various offences he was sentenced to 18 months’ imprisonment for each of two counts of unlawful use of a motor vehicle.  Further, the present offences occurred while he was on parole and at a time when he had escaped from lawful custody, both of which were significant aggravating circumstances.  As well the appellant had a lengthy criminal history for other offences, including more serious offences. 
  1. [26]
    I was referred to the decision in the Court of Appeal in R v Harrison [1997] QCA 474, where the court declined to interfere with a sentence of two years’ imprisonment for unlawful use of a motor vehicle.  The applicant in that case had a significant criminal history including for similar offences, and McPherson JA with whom the other members of the court agreed it was said that the sentence was consistent with the level one would expect in the circumstances for this offence having regard to the applicant’s prior criminal record.  There are distinguishing features of that decision.  The offence was charged with the circumstance of aggravation that the vehicle was used with intent to commit an offence, namely stealing a handbag, for which the applicant was also sentenced.  The applicant suffered from an organic personality disorder caused by frontal lobe damage associated with previous accidents.  The aggravating circumstances of breach of parole and escape from lawful custody were not present. 
  1. [27]
    In R v Chatters [2008] QCA 233 the court dismissed an application for leave to appeal against the sentence, imposed for unlawful use of a motor vehicle and dangerous operation of a vehicle, of 18 months’ imprisonment cumulative on a term of five years’ imprisonment, of which the applicant had almost two years left to serve.[17]  The head sentence of 18 months was in respect of both counts, but the judgment of the Court of Appeal focused on the dangerous operation offence, and there was no particular consideration of the sentence as one for unlawful use of a motor vehicle.
  1. [28]
    In R v Langford [1996] QCA 77 the applicant was sentenced to five years imprisonment for the unlawful use of a motor vehicle, three years for escaping from custody, served concurrently, and a further six months for a second count of escaping from custody to be served cumulatively.  Those sentences were in turn made cumulative on a sentence then being served for other offences, for which there was at that time a fulltime release date of 19 April 2003.[18]  There was a recommendation for parole from 31 December 2000.  The unlawful use occurred in the context of the escape from lawful custody, and was followed almost immediately by a high speed police chase followed by a significant collision.  The offences were somewhat old, but that was due to his having been in the meantime serving a term of imprisonment in New South Wales for offences subsequently committed there.  The Court of Appeal analysed the sentence of five years in the context of the overall criminality of counts one and two, which was worse overall than the criminality of the current appellant, as was the criminal history of that applicant.  He was 24 when he began a series of continuing offences, for which he had been essentially continuously in custody, except when he had escaped, for the previous six years.  The sentence was regarded as not inconsistent with the proper application of the totality principle. 
  1. [29]
    In R v Hardie [2014] QCA 82 the applicant was sentenced to 12 months imprisonment cumulative on a sentence already being served, and a further 10 months cumulative for other offences, including stealing a car, committed after he had escaped.  The court said the 10 months sentence was significantly moderated because of considerations of totality, and that overall the additional 22 months was not manifestly excessive, even though a parole eligibility date was fixed only 12 months before the ultimate full-time release date. 
  1. [30]
    In R v Thiemann [2015] QCA 195 the applicant had been sentenced to 18 months imprisonment for unlawful use of a motor vehicle, and other, shorter, concurrent sentences for other offences, including threatening violence.  The offences were committed while he was on parole, and that offence required a cumulative sentence, but not the others.  The appeal was allowed so as to make only that sentence cumulative, on the basis that the sentencing judge had apparently not intended to do so anyway.  That offender was 26, and had a criminal history, but shorter than that of the present appellant. He also showed prospects of rehabilitation. 
  1. [31]
    In the present case there is the further consideration that the additional offences for which the appellant was sentenced did not result in any additional period of overall imprisonment, though all but one were also committed while he was on parole and had on this occasion escaped from custody, and as a result of his having come in the vehicle into Queensland, so there was that element of connection between them. In those circumstances the head sentence could well reflect the appellant’s overall criminality within this particular bout of offending.[19]  For that reason it is not a matter of considering the offence of unlawful use of a motor vehicle in isolation.
  1. [32]
    If there were not the complications of the plea of guilty and the application of the totality principle, I consider that a head sentence of three years’ imprisonment for unlawful use of a motor vehicle, in the context of all the relevant offending, would be appropriate. A conventional allowance for the plea of guilty by a reduction of head sentence would produce a sentence of two years’ imprisonment.[20]  I consider the principle of totality would not require a further reduction in the sentence by more than a further six months.[21]  However, if I were now to impose that sentence on appeal it would produce a sentence more severe than the one the Magistrate thought he was imposing, in that the head sentence would be two months longer.  It would not be right for me to produce that result on a defendant’s appeal. 
  1. [33]
    The appropriate course is therefore for me to impose on appeal a sentence which produces the result that the Magistrate thought that he was producing, and I expect would have produced had he not been misinformed about the full-time release date of the sentence currently being served. I will therefore allow the appeal for the purpose of making that adjustment, which produces a further two months’ reduction, which can also be seen as an additional allowance of two months for considerations of totality. I would not, in the exercise of my independent sentencing discretion, impose a more lenient sentence than that on the appellant.
  1. [34]
    There is one final matter. The offence of stealing, for which a sentence of three months imprisonment was imposed, was not part of this series of offences, and even with the aggravating circumstances that the appellant was on parole, and his criminal history, did not justify a sentence of three months imprisonment. That sentence will be set aside, and in lieu the appellant will be convicted, a conviction will be recorded, but the appellant will not be further punished.[22]  That sentence was manifestly excessive, in all the circumstances, particularly the limited value of what was stolen. 

Footnotes

[1]  One of the counts of receiving tainted property involved receiving a car. 

[2]  Another involved receiving the contents of a stolen handbag. 

[3]  The affidavit of Thompson filed 30 April 2019 Exhibit ST-4 was apparently not before the Magistrate.  Neither party referred to it, and it is incomprehensible to me, so I have ignored it. 

[4] Fox v Percy (2003) 214 CLR 118 at [22] – [25]; Rowe v Kemper [2009] 1 Qd R 247 at [3] – [5]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7]; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at [43], [57]; McDonald v Queensland Police Service [2017] QCA 255 at [47].

[5]Allesch v Maunz (2000) 203 CLR 172 at [23]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [16]; Walker v Davlyn Homes Pty Ltd [2003] QCA 565 at [9]; Shambayati v Commissioner of Police [2013] QCA 57 at [23]; White v Commissioner of Police [2014] QCA 121 at [8]; McDonald v Queensland Police Service [2017] QCA 255 at [47].

[6] R v Lawley [2007] QCA 243 at [18]. 

[7]Kentwell v R (2014) 252 CLR 601 at [35]; R v PBD [2019] QCA 59 at [33]. 

[8] Markarian v R (2005) 228 CLR 357; Barbaro v R (2014) 253 CLR 58. 

[9]  This was the situation, but I do not consider that it required any specific additional moderation of the sentence being imposed.  A court should assume that when that occurs the New South Wales court will properly apply the totality principle. 

[10]Dinsdale v R (2000) 202 CLR 321 at [58] per Kirby J, with whom Gaudron and Gummow JJ agreed.  See also Baxter v R (2007) 173 A Crim R 284 at [60]. 

[11]  By contrast, if the error was two days, or even perhaps two weeks, instead of two months it would not be material.

[12]  See R v Parker [2002] QCA 403 at [11], [12], where something similar occurred.   

[13] Postiglione v R (1997) 189 CLR 295 at 308. 

[14] R v Cutajar (1995) 85 A Crim R 280 at 283-4 per McPherson JA. 

[15]  For example, where the time in custody has been in respect of the offences for which he is being sentenced, and for other matters not yet dealt with.

[16]  For the significance of prior offences, see Veen v R [No 2] (1988) 164 CLR 465 at 476. 

[17]  The sentence of five years had been suspended after serving two years, but further offending occurred on the day the applicant was released from custody, and he went back into custody, where he had remained for over a year before he was sentenced. 

[18]  The date of sentencing does not appear in the ex-tempore decision of the Court of Appeal, but I assume it was sometime in 1995.

[19] R v Nagy [2004] 1 Qd R 63 at [39]. 

[20] R v Randall [2019] QCA 25 at [43].  The mitigating effect of cooperation with the police was not present. 

[21]  These calculations are set out, not as an exercise of the sentencing discretion, but for the purpose of illustration of how a sentence of 18 months imprisonment would be consistent with a plea of guilty and considerations of totality. 

[22]  An appeal court can reduce a shorter concurrent term of imprisonment even if the head sentence is not altered: R v Potter [2019] QCA 162. 

Close

Editorial Notes

  • Published Case Name:

    Reynolds v Commissioner of Police

  • Shortened Case Name:

    Reynolds v Commissioner of Police

  • MNC:

    [2019] QDC 159

  • Court:

    QDC

  • Judge(s):

    McGill DCJ

  • Date:

    29 Aug 2019

Appeal Status

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

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