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Richardson v Queensland Police Service[2019] QDC 257

Richardson v Queensland Police Service[2019] QDC 257

DISTRICT COURT OF QUEENSLAND

CITATION:

Richardson v Queensland Police Service  [2019] QDC 257

PARTIES:

RALPH NATHANAEL RICHARDSON

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO:

APPEAL NO. 169 of 2019

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

13 December 2019

DELIVERED AT:

Cairns

HEARING DATE:

20 November 2019

JUDGE:

Morzone QC DCJ

ORDER:

  1. Appeal allowed;
  2. Set aside the orders made by the Magistrates Court setting a parole eligibility date and substitute the order setting the parole release date of 26 December 2019.

CATCHWORDS:

CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 – conviction – [offence] – mode of hearing of appeal – error of law – whether sentence manifestly excessive.

Legislation

Corrective Services Act 2006 (Qld)

Criminal Code 1899 (Qld) s 398

Justices Act 1886 (Qld)

Penalties and Sentences Act 1992 (Qld).

Transport Operations (Road Use Management) Act 1995 s79(2A), 78(1)(a)

Cases

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170.

Allesch v Maunz (2000) 203 CLR 172

Dwyer v Calco Timbers (2008) 234 CLR 124

Forrest v Commissioner of Police [2017] QCA 132, 5 & 6

fox v Percy (2003) 214 CLR 118;;

Gronow v Gronow (1979) 144 CLR.

House v The King (1936) 55 CLR 499.

Johnstone v the Commissioner of Police [2019] QDC 109.

Kentwell v R (2014) 252 CLR 60.

Lowe v The Queen (1984) 154 CLR 606.

Lovell v Lovell (1950) 81 CLR 513.

Lythgoe v Queensland Police Service [2009] QDC 108

McDonald v Queensland Police Service [2017] QCA 255, [47].

Mill v The Queen [1988] 166 CLR 59

Norbis v Norbis (1986) 161 CLR 513.

White v Commissioner of Police [2014] QCA 121

Queensland Police Service v Gregory [2010] QDC 388.

R v Lomass (1981) 5 A Crim R 230;

R v Morse (1979) 23 SASR 98;

R v McIntosh [1923] St R Qd 278;

R v Vaughn [2005] QCA 348

Souvils v Commissioner of Police [2011] QDC 274.
Teelow v Commissioner of Police [2009] QCA 84
The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 2006.
The Queen v Crofts [1999] 1 Qd R 386.
Warren v Coombes (1979) 142 CLR 531;

COUNSEL:

R. Logan for the Appellant

T. Grasso for the Rrespondent

SOLICITORS:

Queensland Police Service for the Appellant

Legal Aid Queensland for the Rrespondent

  1. [1]
    The appellant is aggrieved and now appeals against the sentence imposed on 17 September 2019 by the Magistrates Court in Mareeba of an effective 9 months of imprisonment for offences of stealing, driving whilst over the no alcohol limit, and disqualified driving, with a parole eligibility date of 16 March 2020.
  1. [2]
    The appellant now appeals his sentence on the grounds it is manifestly excessive because of the timing of the parole eligibility date.
  1. [3]
    Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered.

Background

  1. [4]
    The appellant was sentenced on 29 March 2018 for 20 offences and released on court-ordered parole that day. His parole was suspended on 23 May 2018 for reoffending, and he was returned to custody on 17 July 2018. He was subsequently convicted and sentenced for a further 17 unrelated offences on 26 July 2018, and his court ordered parole was automatically cancelled by operation of law.
  1. [5]
    The appellant was released on board-ordered parole on 2 July 2019.
  1. [6]
    On 17 August 2018, the appellant was intercepted by police while driving in Atherton. He provided a sample of his breath with an alcohol concentration of 0.043 grams per 210 litres of breath (Charge 1). The defendant was not the holder of a licence as he was disqualified by court order (Charge 2). Police located four unopened bottles of alcohol in the defendant’s car which he had stolen from a liquor store (Charge 3).
  1. [7]
    The parole order was suspended on 19 August 2018, due to reoffending (subject of this appeal) and he was returned to custody on 22 August 2019, to continue to serve the sentence due to expire on 26 December 2019.
  1. [8]
    The appellant was convicted on his plea of guilty on 17 September 2019, and sentenced as follows:

#

Offence

Section

Maximum penalty

Penalty imposed

1

Driving etc. while over no alcohol limit but not over general alcohol limit

79(2A)Transport Operations (Road Use Management) Act1995

14 penalty units or 3 months imprisonment

1 month imprisonment

Disqualified from obtaining or holding a Queensland driver licence for 3 months

2

Disqualified driving

78(1)(a)Transport Operations (Road Use Management) Act 1995

60 penalty units or 18 months imprisonment

9 months imprisonment

Disqualified from obtaining or holding a Queensland driver licence for 3 years

3

Stealing

398 Criminal Code

5 years imprisonment

4 months imprisonment

  1. [9]
    The sentences of imprisonment were ordered to be served concurrently with each other, but cumulatively on the term of imprisonment already being served and due to expire on 26 December 2019.
  1. [10]
    The 9 month head sentence is due to expire on 25 September 2020.
  1. [11]
    Since the defendant re-offended while on parole, the board-ordered parole order was also automatically cancelled, and the learned magistrate set a parole eligibility date of 16 March 2020.
  1. [12]
    When sentencing the appellant, the learned magistrate highlighted:
  1. The principles in section 9 Penalties and Sentences Act, specifically that imprisonment is of the last resort and considered the appellant’s matter to be at that point;
  2. The appellant’s consistent criminal history involving previous convictions for stealing;
  3. The appellant’s traffic history which involved three (3) earlier disqualified driving offences;
  4. The Court authority of HUI which was said to be authority “that the Magistrates Court needs to take these matters seriously when people commit this type of offending, that is disqualified driving and drink driving repeatedly.[1]
  5. The appellant’s offending was on parole, and he had been taken back to custody on 22/08/2019. His sentence was to expire on 26/12/2019 and as such the sentence ought to be made cumulatively;
  6. There was little benefit in showing leniency in the setting the parole eligibility date, as the appellant continues to commit offences. In making this remark the sentencing Magistrate referred to Justice Jerrard in R v Vaughn;[2] and
  7. The appellant was not a fit and proper person to hold a licence.

Grounds of Appeal

  1. [13]
    The appellant appeals against the sentence in reliance on the grounds that it is manifestly excessive because:
  1. The Magistrate did not have regard to the appellant’s total period of imprisonment when setting the parole eligibility date; and
  2. The effective sentence should have been no more than 6 months imprisonment.
  1. [14]
    However, a new ground emerged during the appeal hearing, namely that the learned magistrate erred in imposing a parole eligibility date rather than a parole release date.

Mode of Appeal

  1. [15]
    The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).  Section 222(1) relevantly provides:

“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”

  1. [16]
    Pursuant to s 223 of the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave.  Section 223 provides:

“(1)   An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.

evidence) if the court is satisfied there are special grounds for giving leave.

  1. However, the District Court may give leave to adduce fresh, additional or substituted evidence (new
  1. If the court gives leave under subsection (2), the appeal is—
  1. by way of rehearing on the original evidence; and
  2. on the new evidence adduced.”
  1. [17]
    For an appeal by way of rehearing "the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error,”[3] and thereby resulting in a manifestly excessive sentence.
  1. [18]
    The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.[4] 
  1. [19]
    Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.[5]

Appeal against Sentence

  1. [20]
    This court ought not interfere with a sentence unless it is manifestly excessive, that is, beyond the acceptable scope of judicial discretion or “so outside the appropriate range as to demonstrate inconsistency and unfairness.[6] 
  1. [21]
    Even if the appellate court finds that the sentence was at the extreme end of a permissible range, or has a different opinion about the way in which the discretion should be exercised, are not sufficient justifications for review; it must be shown that the discretion miscarried resulting in a manifestly excessive sentence.[7]  In that context, it may be vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.[8]
  1. [22]
    The High Court held in House v. The King[9] that:

“It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

  1. [23]
    The High Court in Kentwell v R[10] held:

“In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.  By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.”

  1. [24]
    The decisions distinguished cases of specific error and manifest excess. Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed. By contrast, an error may not be discernible; but the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.

Parole eligibility or release date

  1. [25]
    During the appeal hearing, the parties accepted that the magistrate erred in imposing a parole eligibility date because the appellant did not re-offend during the period of the parole order, and a parole release date was mandated. I agree.
  1. [26]
    Pursuant to s 160A, ss 160B to 160D are the only law under which a court may make an order for the release of an offender on parole. Section 160B of the PSA is relevant to this appeal
  1. [27]
    Section 160B of the PSA provides:

“(2)  If the offender has a court ordered parole order cancelled under the Corrective Services Act 2006, section 205 or 209 during the offender’s period of imprisonment, the court must fix the date the offender is eligible for parole.

  1. (3)
    If subsection (2) does not apply, the court must fix a date for the offender to be released on parole.”
  1. [28]
    Relevantly here, s 160B applies if an offender has a court ordered parole order cancelled under 209 of the Corrective Services Act 2006 (Qld).  This is distinguished from other species of parole orders that may be granted by the parole board under s 194.  Section 194(1) provides that:

“(1)A parole board may, by a parole order—

  1. (a)
    release any prisoner on parole, if the board is satisfied that exceptional circumstances exist in relation to the prisoner; or
  2. (b)
    release an eligible prisoner on parole.”
  1. [29]
    Therefore, the appellant was not subject of a court ordered parole order as required by s 160B(2). In those circumstances, since subsection (2) does not apply, the magistrate was required to fix a date for the offender to be released on parole pursuant to s 160B(3) of the PSA.  Section 160F of the PSA relevantly provides:

“(1) One of the objects of sections 160A to 160E is to ensure that at any one time there is only one parole release date or parole eligibility date in existence for an offender.

  1. (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.”
  1. [30]
    I respectfully conclude that the magistrate erred by fixing a parole eligibility date and should have fixed a parole release date. This alone dictates that the appeal be allowed, and the imposition of an appropriate parole release date.

Totality in sentencing

  1. [31]
    Section 160F of the PSA requires that there only be 1 parole eligibility or release date and that date must relate to the offender’s period of imprisonment, as opposed to a particular term of imprisonment.  “Period of imprisonment” is defined in s 4 as:

“The unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether–

  1. ordered to be served concurrently or cumulatively; or
  2. imposed at the same time or different times; 
and includes a term of imprisonment.”
  1. [32]
    This is consistent with the ambit of the totality principle in Mill v The Queen[11] and The Queen v Crofts,[12], as explained in The Queen v Beattie, ex parte Attorney-General (Qld)[13] by Philip McMurdo J (as he then was) as follows:

“The principle has also been extended in the sentencing of an offender who is then serving an existing sentence. In such a case, ‘the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable’.”

  1. [33]
    It is common ground that the defendant committed the subject offending while released on parole pending. Since the preconditions in s 156A(1)(a)(i) and s 156A (1)(b)(ii) are satisfied, a cumulative sentence is mandated by s 156A(2) of the Corrective Services Act 2006 (Qld)
  1. [34]
    Therefore, the period of imprisonment will start from the appellant’s pre-sentence custody since his return to imprisonment on 22 August 2019, and with the term of imprisonment imposed for the current offending starting on 26 December 2019.

Excessive imprisonment

  1. [35]
    The appellant further argues that the effective sentence should have been no more than 6 months imprisonment.
  1. [36]
    The appellant was 22 years of age and was a single man. He is a seasonal famer worker but was receiving the Newstart Allowance and had new employment lined up. It was an early plea of guilty. The stolen goods were recoverable and in on-sellable condition.
  1. [37]
    The appellant has a relevant criminal history at the time of sentence, commencing in 201, including sentences to periods of imprisonment on four occasions since 2015. He has 21 convictions for stealing, and one for attempted stealing. He also had 11 convictions for unlawful use of a motor vehicle, and one for failing to stop a motor vehicle. He was dealt with for two breaches of a probation order, two breaches of a community service order, and nine offences against the Bail Act 1980.  The appellant was on parole at the time he committed the subject offending and had only been on parole for approximately six weeks. The subject offending was the second occasion the appellant breached a parole order for the same period of imprisonment, resulting in his parole order being cancelled for the second time.[14]
  1. [38]
    The appellant also had a relevant traffic history at the time of sentence, including:

Date of conviction

Offence

Penalty

29/07/2015

Unlicensed driving

Fined $1000

25/05/2016

Unlicensed driving

Disqualified for 1 month

26/05/2016

Fail to stop motor vehicle

Disqualified for 2 years

6 months imprisonment

10/08/2017

Disqualified driving

Fined $750

Disqualified for 2 years

19/11/2017

Disqualified driving

1 month imprisonment

Disqualified for 2 years

28/11/2017

Drive under the influence of liquor

Fined $200

04/12/2017

Disqualified driving

Disqualified for 2 years

3 months imprisonment

  1. [39]
    The appellant submits that if the Court fashioned the order to be served cumulatively, than the sentence ought to have been reduced to no more than 6 months, with a parole eligibility date at one third of the aggregate period: Souvils v Commissioner of Police [2011] QDC 274; Lythgoe v Queensland Police Service [2009] QDC 108; Queensland Police Service v Gregory [2010] QDC 388; and Johnstone v the Commissioner of Police [2019] QDC 109.
  1. [40]
    By reference to these comparative cases, I think that the sentence is excessive taking into account: the more serious features of the appellant’s offending; his antecedents committing the offences while on parole; having already breached an earlier parole order by reoffending; repeated breaches of community based orders; having a more serious and lengthy criminal history; having a more serious and relevant traffic history; and also being sentenced for the offence of stealing.
  1. [41]
    I opine that the effective sentence of nine months imprisonment is just and appropriate, and I will not alter that aspect of the sentence.

Conclusion

  1. [42]
    For these reasons, in my respectful view, the trial magistrate erred in exercising the sentencing discretion by acting upon a wrong principle by imposing a parole eligibility date instead of a parole release date set having regard to the period of imprisonment.

Resentence

  1. [43]
    Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion in setting a new parole release date.
  1. [44]
    The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act 1992 (Qld) is to punish an offender to an extent or in a way that is just in all of the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, make it clear that the community denounces the conduct in the offending and to protect the community.  The relevant factors to which the court must have regard are in the subsequent subsections of s 9 of the Penalties and Sentences Act 1992 (Qld).
  1. [45]
    It is trite to say that the appropriate sentence will depend on the particular circumstances of the offending and the degree of culpability of the offender. The nature of the penalty, in the form of a fine, provides little by way of rehabilitation, particularly in circumstances where its payment is likely to be unattainable and, therefore, there would be little motivation to do so. The gravity of this offending can also be gleaned by the relative minimum and maximum penalties, with due regard to the factors of general and, as appropriate, personal deterrence. For this offending, it is relevant that imprisonment should only be imposed as a last resort and a sentence that allows the appellant to stay in the community is preferable.
  1. [46]
    I do set a parole release date in view of the defendant’s plea of guilty, cooperation with the police and prosecution, his criminal history and like offending, the time that he has spent in custody serving out his previous sentence since 22 August 2019, and pending this appeal, as well as his various roles in the offending and his cooperation bringing about the charges. Further, I take into account his age.
  1. [47]
    It seems to me that it is appropriate in all the circumstances that I set a parole release date at 26 December 2019, which equates to about one third of his total period of imprisonment.

Order

  1. [48]
    For these reasons, I allow the appeal, I set aside the orders made by the Magistrates Court setting a parole eligibility date and substitute the following order of setting the parole release date of 26 December 2019.

Judge DP Morzone QC

Footnotes

[1]The case HUI referred to has not been able to be located.

[2]R v Vaughn [2005] QCA 348.

[3]Allesch v Maunz (2000) 203 CLR 172, [22] – [23] followed in Teelow v Commissioner of Police [2009] QCA 84, [4]; White v Commissioner of Police [2014] QCA 121, [8], McDonald v Queensland Police Service [2017] QCA 255, [47]; contrast Forrest v Commissioner of Police [2017] QCA 132, 5.

[4]Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255, [47].

[5]White v Commissioner of Police [2014] QCA 12, [5]-[8]; Forrest v Commissioner of Police [2017] QCA 132, 5 & 6; McDonald v Queensland Police Service [2017] QCA 255, [47].

[6]R v Morse (1979) 23 SASR 98; R v Lomass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v The Queen (1984) 154 CLR 606.

[7]Lovell v Lovell (1950) 81 CLR 513 at 519 per Latham CJ, 533-534 per Kitto J; see also Gronow v Gronow (1979) 144 CLR at 519, 525, 534 and 537.

[8]House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519

[9](1936) 55 CLR 499, 504 and 505.

[10]Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111, [130] per Hayne J (minority).

[11]Mill v The Queen [1988] 166 CLR 59.

[12]The Queen v Crofts [1999] 1 Qd R 386 at 387.

[13]The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 2006 at [19].

[14]Pre-sentence custody certificate.

Close

Editorial Notes

  • Published Case Name:

    Richardson v Queensland Police Service

  • Shortened Case Name:

    Richardson v Queensland Police Service

  • MNC:

    [2019] QDC 257

  • Court:

    QDC

  • Judge(s):

    Morzone DCJ

  • Date:

    13 Dec 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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