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Baker v Queensland Police Service QDC 258
DISTRICT COURT OF QUEENSLAND
DAVID WILLIE BAKER
QUEENSLAND POLICE SERVICE
196 of 2019
Appeal under s 222 Justices Act 1886
Magistrates Court, Cairns
17 December 2019
13 December 2019
CRIMINAL LAW – APPEAL – PROCEDURE – POWER TO BRING APPEAL – POWERS OF COURT ON APPEAL – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the appellant’s notice of appeal was filed five weeks late – where the delay was not significant – where the delay was caused by the appellant’s attempts to seek advice from a number of legal services – whether it is in the interests of justice to grant the extension sought
CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant was sentenced for charges of contravention of a domestic violence order, possessing dangerous drugs and failure to appear– where a suspended sentence was activated in full – where the appellant was sentenced to a total period of 22 months imprisonment with a parole release date after serving nine months – where the appellant had a lengthy and poor criminal history – where the appellant appeals the sentence pursuant to section 222 Justices Act 1886 – whether the sentence imposed was manifestly excessive
Justices Act 1886 (Qld) s 222, s 224
Penalties and Sentences Act 1992 (Qld) s 147
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Barbaro v The Queen (2014) 253 CLR 58
R v Dinh  QCA 231
R v Dwyer  QCA 117
R v Frame  QCA 9
Hili v The Queen (2010) 242 CLR 520
House v The King (1936) 55 CLR 499
R v Jackson  QCA 103
R v Lawley  QCA 243
R v MCT  QCA 189
Norbis v Norbis (1986) 161 CLR 513
R v O'Malley  QCA 130
R v Pham (2015) 256 CLR 550
RJD v the Commissioner of Police  QDC 147
Ross v Commissioner of Police  QCA 96
R v Sabine  QCA 36
SAE v Commissioner of Police  QDC 254
R v Smith  QCA 179
R v Sprott; Ex parte Attorney-General (Qld)  QCA 116
R v Tait  2 Qd R 667
R v Walsh  QCA 391
R v Williams  QCA 276
The appellant appeared on his own behalf
The Office of the Director of Public Prosecutions for the respondent (S Shaw)
- The appellant pleaded guilty in the Magistrates Court at Cairns on 29 August 2019 to six offences:
- one charge of contravention of a domestic violence order (aggravated offence). He was convicted and sentenced to 12 months imprisonment. Pre-sentence custody of 112 days was declared as time served under the sentence.
- four charges of possessing dangerous drugs, for which he was convicted and sentenced on each to one month’s imprisonment. Pre-sentence custody of 112 days was declared as time served under the sentence.
- one charge of failure to appear in accordance with an undertaking. A conviction was recorded and no further penalty was imposed.
- The sentences of imprisonment were ordered to be served concurrently with each other but cumulatively on a suspended sentence which was activated in full. On 2 February 2018 the appellant had been sentenced to 15 months imprisonment, suspended after five months. The offending in question was committed during the two year operational period. The appellant was dealt with for the breach at the same time as being sentenced for the above offences.
- The total period of imprisonment imposed by Magistrate Pinder was one of 22 months, comprising the head sentence of 12 months to be served cumulatively with the ten months remaining on the suspended sentence. A parole release date was fixed at 9 February 2020, after the applicant had served nine months. That was between one third and one half of the total period of imprisonment.
- The appellant applies, pursuant to sections 222 and 224(1)(a) of the Justices Act 1886 (Qld), for an extension of time within which to file a notice of appeal and seeks to appeal against all sentences on the ground that they are manifestly excessive.
- For the reasons that follow, I would allow the application for an extension of time to appeal but dismiss the appeal.
Application for extension of time to appeal
- The application was filed about five weeks late.
- In considering whether to exercise its discretion to extend time, the Court will consider whether there is any good reason shown to account for the delay, and whether it is in the interests of justice overall to grant the extension sought. The appeal’s prospects of success may be relevant to the second consideration, but it is not expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not. Other relevant factors may include prejudice to the respondent and the length of the delay.
- Here the delay was not particularly lengthy.
- The reason for the delay was explained in the Notice of Application and confirmed by the self represented appellant on hearing. Immediately after being sentenced and while in custody, the appellant sought advice from his solicitors, the Aboriginal and Torres Strait Islander Legal Service. When that was unsuccessful, he contacted the Prisoner’s Legal Service, and then Legal Aid Queensland. He filed the application for extension of time and a notice of appeal himself. By the time of the first return date, legal aid had been granted for the purposes of investigating whether the appeal had merit. However he was later advised that he would be unlikely to receive legal aid for the appeal. The appellant then elected to proceed with the appeal self represented and appeared in person.
- The respondent accepted that the appellant had given an adequate explanation for the delay.
- The respondent did not point to any prejudice suffered by it in granting the extension sought.
- I indicated that I would allow the extension of time and hear submissions on the merits of the appeal. The appellant had also filed an application for appeal bail. I adjourned that application and heard the appeal shortly after its first return date. I indicated to the appellant that I would deliver my decision within a couple of days.
- The appellant made oral and written submissions, all of which I have considered. It is unnecessary for me to consider the bail application in light of my final orders.
The suspended sentence
- In February 2018 the appellant pleaded guilty to two counts of assault occasioning bodily harm, one count of public nuisance and one count of possessing dangerous drugs, all committed on 8 December 2017.
- The assaults involved two separate incidents of gratuitous street violence against strangers. The first involved the appellant lashing out with his right fist and striking a 16 year old in the left cheek for getting in his way. The second involved the appellant punching an adult man to his right temple, using a closed fist.
- For each of the assaults occasioning bodily harm, the appellant was convicted and sentenced to 15 months imprisonment, to be suspended after serving five months, for an operational period of two years. For the public nuisance, he was convicted and sentenced to one month’s imprisonment suspended for an operational period of two years. The sentences were to be served concurrently. Pre-sentence custody of 56 days was declared. For possessing dangerous drugs, he was convicted and no further penalty was imposed.
Circumstances of the offending
- The appellant reoffended within about four months of release. The breach offending was not confined to a single date or incident. He committed the six offences the subject of this appeal on four separate dates over an eight month period between September 2018 and May 2019. All of those offences were committed during the operational period of the suspended sentence.
- On 13 July 2017 a domestic violence order was made against the appellant and in favour of the aggrieved, a woman he was in a domestic relationship with. After his release from custody, on 17 September 2018, the appellant contravened that order. He was at a house with the aggrieved. He “snapped” at her. She went outside to roll a smoke. He approached her and accused her of calling the police. She said she was just playing a game on her phone. They had an argument. The appellant hit the aggrieved in the top lip by flicking her with his right hand. She felt pain. It caused a small cut to her lip. The appellant left the address but returned a short time later. He was holding a crate and threatened to bash her dog. Later the same evening, they had another argument. The aggrieved ran down the street and called police. Police attended and the aggrieved provided a statement. They observed swelling on her lip.
- The appellant was located on 29 November 2018. He denied being at the address and denied hitting the aggrieved. He was charged and denied bail.
- On 14 March 2019 the appellant was walking down a street at 3:45am. When stopped by police he dropped a clip seal bag from his pocket. It contained a small amount of cannabis and 0.3 grams (three points) of methylamphetamine crystal. He was charged with two charges of possessing a dangerous drug and given a notice to appear.
- On 17 April 2019 the appellant entered an undertaking to appear in the Magistrates Court on the contravention of a domestic violence order. He failed to appear on that date and a warrant was issued for his arrest.
- On 9 May 2019 police located the appellant on a street patrol. When he saw police he ran and dropped clip seal bags out of his pocket. He was caught and searched. He exhibited signs consistent with methylamphetamine use. In his backpack were two small clip seal bags containing one gram of cannabis and 0.1 grams of methylamphetamine. He told police he was an ice user who injected the drug. He was arrested and refused bail.
- The most serious of those offences was the contravention of domestic violence order (aggravated offence), which had a maximum penalty of five years imprisonment.
- The appellant was 41 years old at the date of the offending and 42 at sentence.
- He had a 9 page criminal history commencing in 1994 involving regular offending (almost every year) over more than 20 years. It included multiple previous convictions for offences of violence and domestic violence, as well as wilful damage, possession of a knife in a public place, possessing dangerous drugs, obstruct police, breaches of community based orders, carnal knowledge, public nuisance, failing to comply with reporting requirements, using a carriage service to make a threat, and breaches of bail.
- Relevantly, his history at the date of sentence included:
- one conviction for grievous bodily harm (2010);
- eight convictions for assault occasioning bodily harm (in 1995, 2003, 2004, 2005, 2008, 2017);
- several convictions for breaches or contraventions of a domestic violence order (in 2001 and 2004) and domestic violence offences in 2016;
- five convictions for common assault (in 2002, 2005, 2008, 2016);
- two convictions for serious assault on a person over 60 years (in 2011);
- several convictions for possessing dangerous drugs or utensils or pipes (in 1998, 2000, 2005, 2007, 2017).
- He had been sentenced to terms of imprisonment many times. The longest were imposed by the District Court: in 2009 for assault occasioning bodily harm committed in 2008 (two years and six months imprisonment); in 2012 for grievous bodily harm committed against his brother in 2010 (four years imprisonment); and in 2012 for serious assault on a person over 60 committed in 2011 (two years imprisonment). The most recent domestic violence offences were committed in 2016 (wilful damage and common assault) against a former partner.
Submissions on sentence and sentencing remarks
- The appellant was legally represented on sentence.
- The appellant’s solicitor expressly conceded that it would not be unjust to activate the suspended sentence in full, because the breach offending involved violence and the appellant had a criminal history of violent offending.
- The prosecutor submitted that the sentence should be imposed cumulatively on the suspended sentence. The appellant’s solicitor said “I wouldn’t necessarily submit against it being cumulative. … But if it’s cumulative, then I can simply address you and submit to you in terms of how your Honour reflects that in terms of totality.”
- The prosecutor submitted that it was not an early plea because the appellant failed to appear at the hearing of the matter and the aggrieved was summonsed. He submitted that the parole release date should be set at between one third and one half.
- With respect to the head sentence, the appellant’s solicitor did not submit for a specific range for the new offences, only that the sentence would be ameliorated because of the cumulative nature of the suspended sentence activation.
- The appellant’s solicitor noted that the domestic relationship the subject of the contravention had ended. He said that the appellant accepted that he had a problem with substance abuse and had done courses while on remand to address that. The appellant’s solicitor submitted that the parole release date would be set at one third. But he accepted that it was open to the court to set the appellant’s parole date between one third and a half, which was what the Magistrate proposed during submissions and ultimately imposed.
- The Magistrate’s sentencing remarks were comprehensive, comprising four pages. He took into account all of the relevant statutory factors. It is not suggested that he overlooked any relevant consideration. He characterised the offending as a serious contravention. He accurately summarised the appellant’s criminal history. In mitigation, he expressly took into account the appellant’s plea of guilty (albeit noting that it was a late plea), the appellant’s problems with substance abuse, that the appellant had done courses for substance abuse while in custody, that on his release he proposed to abstain from alcohol and drugs, and that he had expressed a desire to rekindle a relationship with his 14 year old daughter. The Magistrate observed that, in the light of the appellant’s maturity and his “atrocious” criminal history, no more than modest weight would be given to his prospects of rehabilitation.
- The Magistrate referred to the two decisions provided to him: SAE v Commissioner of Police  QDC 254 and RJD v the Commissioner of Police  QDC 147. He considered that those authorities supported a head sentence of 15 months imprisonment. He expressly stated that he moderated or ameliorated that sentence back to one of 12 months imprisonment because it was to be imposed cumulatively on the activated suspended sentence of 10 months. He observed that because it was a late plea and the appellant had an appalling criminal history of violence, he was not entitled to the significant discount of fixing parole at one third of the sentence. He set a parole release date after the appellant had served nine months.
Submissions to this Court
- The sole ground of appeal is that the sentence was “manifestly excessive”. In accordance with section 222(2)(c), properly, the ground of appeal is that the punishment was excessive.
- The appellant raised a number of matters in his written outline, which was prepared without the benefit of legal advice. To the extent some of those are not relevant grounds or matters of law, I do not intend to refer to them.
- Relevantly, the appellant submitted that the Magistrate erred in placing too much weight on his criminal history and failed to take into account the mitigating circumstances, and that the sentence was excessive in all the circumstances.
- I will deal with each of those numbered paragraphs in turn.
- The fact that this was the appellant’s first contravention against this particular woman is not a matter in his favour. What is relevant is that he had previously been convicted on earlier occasions of breaching domestic violence orders and of domestic violence offences, but continued to reoffend.
- The challenge to the sentence of one month imprisonment for the possession offences is academic because the appellant had already served the full term of that sentence in the pre-sentence custody which was declared. In any event, it was not an excessive sentence given that he had previous convictions for drug offending, that the four offences involved both methylamphetamine and cannabis, and that he possessed them on two separate occasions.
- Contrary to the appellant’s submission, the Magistrate expressly took into account the mitigating factors including that the appellant had completed a substance abuse course while on remand, and that he hoped to abstain from drugs on release.
- The appellant’s submission that the assault on his partner did not justify ordering him to serve the whole of the suspended imprisonment (because it was not the same offence as the original offence) is misconceived. Any offence punishable by imprisonment breaches a suspended sentence. In dealing with an offender for an offence committed during the operational period of a suspended sentence, the starting point is that the court must order the offender to serve the whole of the suspended imprisonment, unless it is of the opinion it would be unjust to do so: sections 147(1)(b) and (2). In deciding whether it would be unjust, the court must have regard to the matters in subsection (3), relevantly:
- whether the subsequent offence is trivial having regard to—
- the nature of the offence and the circumstances in which it was committed; and
- the proportion between the culpability of the offender for the subsequent offence and the consequence of activating the whole of the suspended imprisonment; and
- the antecedents and any criminal history of the offender; and
- the prevalence of the original and subsequent offences; and
- anything that satisfies the court that the prisoner has made a genuine effort at rehabilitation since the original sentence was imposed, including, for example—
- the relative length of any period of good behaviour during the operational period; …
- the degree to which the offender has reverted to criminal conduct of any kind; and
- the motivation for the subsequent offence; and
- the seriousness of the original offence, including any physical or emotional harm done to a victim and any damage, injury or loss caused by the offender; and
- any special circumstance arising since the original sentence was imposed that makes it unjust to impose the whole of the term of suspended imprisonment.
- The appellant’s solicitor conceded that it was appropriate to activate the suspended sentence and order that the appellant serve the whole of the suspended imprisonment. That was an appropriate concession in all the circumstances. The original offending was serious and involved physical harm to two separate victims. The subsequent offending was not trivial. The breach offending involved six separate offences, one of which also involved physical harm to a victim. There was no “special circumstance” arising since the original offence that made it unjust to impose the whole of the remaining term of suspended imprisonment.
- The appellant’s submissions that he was not given the chance to be heard in his defence and that he was denied procedural fairness have no merit. He was legally represented on sentence. He entered pleas of guilty and does not seek to set aside those pleas. His solicitor made oral submissions. The sentencing hearing started at 10:50am and, according to the transcript, took about 36 minutes. The Magistrate proceeded directly to sentence. His sentencing remarks were careful, comprehensive and disclose no error.
- Finally, the appellant’s reference to not reoffending for seven months appears to be a miscalculation. According to his criminal history, he was sentenced in February 2018 but he would have been released, taking into account his pre-sentence custody, in May 2018.
- It remains to consider whether, when all the appropriate considerations are weighed, the sentence fell outside the range of the proper sentencing discretion.
- Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.
- The result of the impugned sentence must be “unreasonable or plainly unjust” and the appellate court must infer that in some way there has been “a failure to properly exercise the discretion which the law reposes in the court of first instance”.
- This Court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review. It must be shown that the discretion miscarried.
- It is not a sufficient basis for this Court to intervene that this Court might have struck a different balance between the competing considerations which had to be weighed in the exercise of the discretion.
- To succeed in such an appeal the appellant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no one “right” penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of fact or law.
- It is well established that comparable cases do not mark the outer bounds of permissible sentencing discretion with numerical precision.
- To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’. Consistently with the accepted understanding that there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.
- Past decisions in other cases are not determinative of the sentence in this case and they do not set a “range” of permissible sentences. However, they may assist in understanding how the various relevant factors should be treated in deciding the sentence.
- An approach which seeks to grade the criminality involved in cases by a close comparison of aggravating and mitigating circumstances, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process.
The cases cited as comparable cases
- The Magistrate was referred to the decisions in SAE v Commissioner of Police  QDC 254 and RJD v the Commissioner of Police  QDC 147.
- RJD was a younger defendant with a lengthy criminal history but he had fewer previous convictions for offences of violence than the appellant. RJD assaulted the complainant before leaving and then returning to threaten her further. RJD’s assault involved him pushing the complainant, causing her to fall against and break a window. When asked to do so, RJD apologised and left the premises. The complainant sustained no injuries from the assault, unlike the complainant in this case. RJD later returned, verbally abused the complainant and threatened to kill her. His sentence of 18 months imprisonment, to be served cumulatively on a sentence of 15 months imprisonment he was serving for reoffending while on parole, was not disturbed on appeal. The court observed at paragraph  that “the various competing factors favour a sentence in the range of 18 months to two years before any consideration of amelioration of the length mitigation.” The sentence of 18 months imprisonment was upheld in that case, although described as harsh.
- SAE was sentenced to nine months’ imprisonment for contravention of a domestic violence order. It was imposed cumulatively on a six month suspended sentence which had been activated in full, resulting in an effective head sentence of 15 months with parole after one third, or five months. SAE punched his partner in the head while she was asleep. He verbally abused her. She tried to escape. He punched her in the head and ribs and threatened her. He offended two days after receiving a wholly suspended sentence of six months for assault occasioning bodily harm against the same aggrieved. Although the offending was more serious, SAE was much younger than the appellant and had a significantly less serious criminal history. He entered an early plea. The sentence was not disturbed on appeal.
- Those cases do not support the appellant’s submission that the sentence was beyond the range of appropriate sentencing discretion for the overall criminal conduct, taking into account the following features:
- the appellant was a mature man with a lengthy and poor criminal history that included previous convictions for violent offending and drug offending;
- he offended within months of being released on a suspended sentence imposed for offences of violence against two separate victims;
- the contravention of a domestic violence order offence involved a course of conduct that comprised actual violence in the form of a single blow, a later return to the premises and a threat to her dog, and a further argument which caused the aggrieved to run down the street and call police. It was not trivial or at the lowest end of the range for this offence;
- the appellant did not cooperate with police or make any admissions;
- he failed to appear and a warrant was issued;
- he continued to offend after being arrested;
- when approached for the drug offences, he attempted to flee;
- although he pleaded guilty, it was a late plea; and
- the head sentence imposed reflected the total criminality of all the offending, with lesser concurrent sentences for the other offences.
- In circumstances where the sentence imposed accords with the submission made on behalf of the appellant to the sentencing judge, that is also an obstacle to an argument that there is manifest excess.
- The Magistrate was conscious of the need to adjust the sentence to take into account that it was imposed cumulatively. I accept the prosecutor’s submission that although it was only a three month adjustment, the degree of moderation was still within range for a defendant with a long history of violence, who committed further serious domestic violence on a suspended sentence for violence.
- I also do not accept the appellant’s submission that the setting of a parole release date between one third and one half made the sentence excessive.
- There is no rule or requirement that parole be set at one third of the term of imprisonment, although it is a common practice to do so. As a matter of principle, the just and appropriate sentence, including the portion which the period to be served in prison bears on the whole term, is to be fixed with reference to all the circumstances of the particular case, rather than by the application of some rule of thumb in a way that would unduly confine a sentencing judge’s discretion. The extent to which the plea of guilty is taken into account in mitigation will vary depending on the circumstances of the case.
- During the sentencing submissions, the appellant’s solicitor conceded that the plea of guilty was not an early plea. The matter was listed for trial and he failed to appear on the hearing, causing him to be remanded and giving rise to the charge of failing to appear for which he was sentenced. The mitigating factors were expressly taken into account, as was the appellant’s criminal history, in setting the parole release date.
- In the absence of any other mitigating factors, it was within the sentencing discretion to set the parole release date later than the customary one third.
- Because of the appellant’s criminal history, personal deterrence was a significant factor, as was general deterrence, denunciation and protection of the community.
- I conclude that the sentence was not outside the sentencing discretion. It was not manifestly excessive.
- The appeal should be dismissed.
- He also made the following arguments:
- the contravention offence was his first breach of a domestic violence order against this particular complainant;
- the drug offence was his first offence for possession of methylamphetamine;
- the Magistrate did not take into account that he had completed a short substance abuse course on remand;
- he did not commit another serious offence of assault occasioning bodily harm so as to justify “restarting” the whole ten months of the suspended sentence;
- he was not given the chance to be heard in his defence and was denied procedural fairness;
- the court did not take into account the seven months he was out on the suspended sentence between February 2018 and September 2018.
 R v Tait  2 Qd R 667, 668 .
 The respondent’s submissions on appeal referred to 0.1grams but the schedule of facts tendered on sentence refers to one gram.
 TS of submissions on sentence 1-8.
 R v Pham (2015) 256 CLR 550, 559  (citations omitted), recently reaffirmed in the recent decision of Ross v Commissioner of Police  QCA 96 .
 Hili v The Queen (2010) 242 CLR 520, 538 . See also R v Williams  QCA 276 .
 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.
 R v Lawley  QCA 243 .
 R v Jackson  QCA 103 .
 Barbaro v The Queen (2014) 253 CLR 58, 74 ; R v MCT  QCA 189 .
 R v Sprott; Ex parte Attorney-General (Qld)  QCA 116 .
 R v MCT  QCA 189 .
 R v Smith  QCA 179 .
 R v O'Malley  QCA 130 .
 R v Dwyer  QCA 117 .
 R v Frame  QCA 9 ; R v Walsh  QCA 391 , recently quoted with approval by Morrison JA in R v Sabine  QCA 36 .
 R v Dinh  QCA 231.
- Published Case Name:
David Willie Baker v Queensland Police Service
- Shortened Case Name:
Baker v Queensland Police Service
 QDC 258
17 Dec 2019