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Sauney v Commissioner of Police[2019] QDC 200

Sauney v Commissioner of Police[2019] QDC 200

DISTRICT COURT OF QUEENSLAND

CITATION:

Sauney v Commissioner of Police [2019] QDC 200

PARTIES:

LINDSAY JAMES SAUNEY

(Appellant)

v

COMMISSIONER OF POLICE

(Respondent)

FILE NO/S:

D52/19

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Mackay

DELIVERED ON:

16 October 2019

DELIVERED AT:

Mackay

HEARING DATE:

14 October 2019

JUDGE:

Farr SC DCJ

ORDER:

  1. Allow the appeal to the extent of varying orders made on 31 May 2019 by ordering that the concurrent terms of imprisonment totalling 6 months be served cumulatively upon the activated suspended sentence of three months.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant was sentenced in the Magistrate Court at Mackay – where the appellant was sentenced, inter alia, to 6 months imprisonment for each of one count of stealing, one count of wilful damage and one count of possessing a dangerous drug – where the appellant claims that the learned acting magistrate erred in determining the seriousness of these charges – whether the sentence was manifestly excessive.

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the learned acting magistrate ordered that the suspended sentence of 3 months be served cumulatively on the other sentences imposed – where the appellant submits that the suspended term should have been ordered to be served concurrently – whether the sentence was manifestly excessive.

COUNSEL:

S Byrne for the appellant

E Coker for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

Background

  1. [1]
    The appellant was sentenced after entering pleas of guilty in the Magistrates Court at Mackay on 31 May 2019 for a number of offences. The facts of the offences are found in the sentencing schedule which is attached. The penalties imposed were as follows:

Date

Offence

Sentence

Between 03-08-2018 and 19-09-2019

Stealing

6 months imprisonment

Between 03-08-2018 and 19-09-2018

Wilful damage

6 months imprisonment

13-10-2018

Failed to take reasonable care of needle/syringe

14 days imprisonment

13-10-2018

Possess dangerous drug

6 months imprisonment

25-11-2018

Unlicensed driving

Disqualified 3 months, 1 month imprisonment

25-11-2018

Obstruct police officer

1 month imprisonment

04-12-2018

Unlicensed driving

1 month imprisonment

04-12-2018

Evasion offence

3 months imprisonment, 2 years disqualification

12-12-2018

Failure to appear in accordance with undertaking

1 month imprisonment

12-12-2018

Failure to appear in accordance with undertaking

Convicted and not further punished

25-05-2019

Possess property suspected of having been used in connection with the commission of a drug offence

14 days imprisonment

25-05-2019

Obstruct police officer

3 months imprisonment

25-05-2019

Obstruct police officer

3 months imprisonment

  1. [2]
    The learned acting magistrate also activated the whole of a suspended 3 month term of imprisonment, which was imposed in the Mackay Magistrates Court on 20 September 2018 for offences of assault/obstruct police and receiving tainted property. The magistrate ordered that all of the offences, with the exception of the Bail Act term of imprisonment of 1 month, and the 3 month suspended sentence, be served concurrently.  The appellant was ordered to serve the 1 month term of imprisonment for the breach of bail charge and the 3 month term of imprisonment for breaching the suspended sentence cumulatively upon each other and upon the other sentences imposed that day.  Therefore, the appellant was sentenced to an overall term of imprisonment of 10 months with a parole eligibility date set after 3 months.  He has now appealed against that sentence pursuant to s 222 of the Justices Act 1886 on the ground that the “sentences imposed were harsh, excessive and oppressive in the circumstances”. 

Standard to be met on appeal

  1. [7]
    An appeal pursuant to s 222 of the Justices Act 1886 is an appeal by way of rehearing on the original evidence,[1] and new evidence where leave has been granted to adduce such evidence.[2]  Section 222 requires the District Court to conduct a real review of the record, the evidence before the magistrate, and any additional evidence adduced with leave.[3]  As stated in Forrest v Commissioner of Police:[4]  “[A]n appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case.” 
  1. [8]
    Accordingly, the court is required to review the exhibits tendered before the learned acting magistrate and the transcript of the hearing. As noted by the Court of Appeal in R v Allen:[5] “It is well settled that to establish that a sentence is manifestly excessive, it is insufficient to show it to be markedly different from sentences in other cases.  What must be established is that there must have been a misapplication of principle by the sentencing judge or that the sentence is ‘unreasonable or plainly unjust’.”[6] 

The appellant’s criminal history

  1. [10]
    The appellant has a 15 page criminal history. Starting in 1996, the appellant has been dealt with on 41 occasions for over 100 offences and breaches of orders, including breaches of bail, breaches of intensive correction orders, breaches of fine orders, breaches of probation, breaches of domestic violence orders, breaches of suspended sentences, as well as for offences of a sexual nature involving children, offences of violence, drug related offences, dishonesty offences and fraud related offences. The offences the subject of this appeal were committed whilst the appellant was on parole and subject to a suspended sentence.  No action was taken by the authorities in relation to the appellant’s offending whilst on parole.  The appellant has previously been dealt with by way of fines, probation, parole, suspended sentences, intensive correction orders and actual terms of imprisonment. 

Submissions and consideration

Stealing and wilful damage

  1. [13]
    The appellant has submitted that the learned acting magistrate erred in determining the seriousness of these two charges. He submits that they were not serious offences and should have resulted in a penalty of no more than 3 months imprisonment. In support of that argument, the appellant suggests that because the Department of Corrective Services did not take action against the appellant pursuant to ss 200 and 267 of the Corrective Services Act 2006 and/or regulation 44 of the Corrective Services Regulation 2017It is not necessary to detail those provisions in this decision as that submission is without merit.  The inferred view of an unknown departmental officer is not relevant to a court’s determination as to the objective seriousness of offending conduct.  The items the subject of these two charges were provided to the appellant prior to his release on parole to allow authorities to monitor his movements.  His removal of the bracelet and the disposal of the other equipment was, inferentially, done to avoid such monitoring.  That is the gravamen of the offending conduct which renders it objectively serious.  The appellant’s cutting of the plastic strap goes directly to his disregard of the orders of the court and undoubtedly was designed to overcome the efforts of the parole authorities to monitor a recidivist offender whilst he was on parole.  Such offending goes to the appellant’s ongoing disregard for the opportunities repeatedly provided to him by various courts as alternatives to imprisonment.  In the past three years, the appellant has been dealt with in relation to property offences to terms of imprisonment of 6 months and 3 months as well as a fine of $400.00.  Furthermore, this does not take into account his more dated offending of a similar nature.  In my view the magistrate’s discretion did not miscarry in sentencing the appellant to 6 months imprisonment.  I found support for that conclusion in the case of Hoger v Commissioner of Police.[7] In Hoger, the offender was sentenced for a number of offences which included an offence of stealing.  The offence of stealing related to him stealing electricity by charging his mobile phone whilst trespassing on another’s property.  For that charge he was sentenced to 6 months imprisonment.[8]  The offender was a mature man who had an eight page criminal history for similar offending and had been imprisoned on four prior occasions and had appeared in the criminal courts on 15 prior occasions.  Kefford DCJ, in refusing the appeal, noted that, if the stealing offence had been dealt with in isolation, the sentence may have been deemed manifestly excessive, however; consideration of his overall criminality and his extensive criminal history rendered the head sentence not manifestly excessive.[9]  The appellant in the present matter has a more extensive and serious criminal history.  His offending conduct though reveals a comparable degree of criminality to that in Hoger. 

Possession of dangerous drugs

  1. [23]
    The possession of dangerous drug charge relates to the appellant’s possession of 0.456 grams of methylamphetamine. The appellant has submitted that given that he only has four prior drug related convictions for relatively minor matters, that a sentence of 6 months imprisonment is excessive.  I note though, that the appellant was sentenced to 3 months imprisonment for a charge of possession of a dangerous drug in 2016 in addition to being fined for each of the other drug related charges that appear in his criminal history.  The appellant relies on Taylor v Brady,[10] in support of his submission.  In Taylor v Brady, the appellant was convicted at first instance of possessing 1 gram of cannabis, a schedule 2 drug and was sentenced to 6 months imprisonment, as well as being sentenced to 1 month imprisonment for each of the offences of stealing, possession of a pipe using in connection with smoking a dangerous drug and two counts of failing to appear.  The offender in that matter had a lengthy and relatively serious criminal history.  On appeal, the head sentence in that matter was varied from 6 months to 4 months imprisonment.  The appellant’s offending in this matter is more serious than that in Taylor v Brady.  Methylamphetamine is of course a schedule 1 drug whereas cannabis falls within schedule 2.  It seems to me that a 6 month term of imprisonment in this matter sits comfortably with the sentence imposed in Taylor v Brady and is not indicative of error on the part of the learned acting magistrate. 

Suspended sentence

  1. [30]
    The appellant has submitted that the learned acting magistrate’s discretion miscarried when he ordered that the suspended sentence of 3 months imprisonment be served cumulatively on the other sentences that he imposed that day. It is submitted that the magistrate should have ordered that suspended term of imprisonment be served concurrently with the terms of imprisonment that he imposed for the substantive offences that were being dealt with at the time in order to ensure that the overall sentence was not crushing[11] and taking into account considerations of totality.  The respondent has submitted that the ordering of the suspended 3 month term of imprisonment to be served cumulatively did not result in the imposition of a crushing sentence.  As noted in R v Kendrick:[12]Azzopardi[13] identified that a sentence is said to be ‘crushing’ when it is of such a length that it would provoke a feeling of helplessness in the applicant if and when he or she is released, or which would result in the destruction of any reasonable expectation of useful life after release.  Whilst the need to avoid a sentence of that character is separate and distinct from the need to have regard to the principle of totality, nonetheless as a matter of practicality, the two principles are often conflated, and considered together.” 
  1. [34]
    In my view, by extending the sentence from 7 months to 10 months imprisonment, the sentence did not become crushing. In respect of totality, the setting of the parole eligibility date at less than one-third is evidence of a proper consideration of the total effect of the sentence on the appellant and an appropriate recognition of all mitigating factors. There is one matter however that requires correction.  The learned acting magistrate erred when he ordered the appellant to serve the suspended term of 3 months imprisonment cumulatively on the other sentences he imposed that day.  The correct approach would have been for the sentences imposed for the substantive offences to be served cumulatively upon the activated 3 month suspended term of imprisonment which should have been ordered to commence immediately. Whilst such a variation does not affect the overall sentence, it nevertheless complies with decided authority.[14]   The decision as to whether to order that the suspended term of imprisonment be served concurrently or cumulatively was a matter which fell within the discretion of the learned acting magistrate.  He was quite entitled to make the order that he made.[15]  Alternatively, he could have imposed a greater sentence on the most serious of the charges the appellant was facing, taking into account the fact that he committed such offences whilst he was the subject of a suspended term of imprisonment.  Either course should properly have resulted in a sentence of the length which was ultimately imposed by the learned acting magistrate.  It follows that I am not persuaded that the overall sentence imposed by the learned acting magistrate was excessive in the circumstances nor can I discern any House v The King type error on the part of the sentencing magistrate.[16] 

Orders

  1. [38]
    Appeal allowed to the extent of varying the orders made on 31 May 2019 by:
  1. (a)
    ordering that the concurrent terms of imprisonment totalling 6 months for the substantive offences be served cumulatively upon the activated suspended sentence of three months.  

Footnotes

[1] Justices Act 1886, s 223(1). 

[2]  Ibid, s 223(3). 

[3]McDonald v Queensland Police Service [2017] QCA 255. 

[4]  [2017] QCA 132. 

[5]  [2018] QCA 126. 

[6]  Citing House v The King (1936) 55 CLR 499 at 505. 

[7]  [2018] QDC 145. 

[8]  He was also sentenced to 6 months imprisonment to be served concurrently for one charge of fraud and one charge of obtain or deal with another entity’s identification information for the purpose of committing or facilitating the commission of an indictable offence. 

[9]  [61]-[62]. 

[10]  [2007] QDC 357. 

[11] Fischer v Hansen [2009] QDC 175. 

[12]  [2015] QCA 27. 

[13] Azzopardi v The Queen [2011] 35 VR 43. 

[14] R v Chard; ex parte A-G (QLD) [2004] QCA 372; R v Waters [1998] Qd R 442; F v Fifita [2004] QCA 201; R v Gander [2005] QCA 45.

[15]  Subject to the correction I have outlined above. 

[16]  With the exception of the imposition of the suspended term of imprisonment to be served cumulatively. 

Close

Editorial Notes

  • Published Case Name:

    Sauney v Commissioner of Police

  • Shortened Case Name:

    Sauney v Commissioner of Police

  • MNC:

    [2019] QDC 200

  • Court:

    QDC

  • Judge(s):

    Farr DCJ

  • Date:

    16 Oct 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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