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CSN v The Queensland Police Service[2019] QDC 43

CSN v The Queensland Police Service[2019] QDC 43

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

CSN v The Queensland Police Service [2019] QDC 43

PARTIES:

CSN
(Appellant)

v

THE QUEENSLAND POLICE SERVICE
(Respondent)

FILE NO/S:

D254/18

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to Section 222 of Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court Southport

DELIVERED ON:

3 April 2019

DELIVERED AT:

Southport

HEARING DATE:

25 March 2019

JUDGE:

McGinness DCJ

ORDER:

Appeal allowed. Sentence varied to 2 months imprisonment suspended forthwith for operational period of 2 months.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE - SENTENCE MANIFESTLY EXCESSIVE – SUMMARY OFFENCE - OBSTRUCT POLICE – where the applicant pleaded guilty to an offence that he obstructed police – whether the offence was amongst the most serious of obstruct police charges – whether the sentence imposed was manifestly excessive in all the circumstances

LEGISLATION:

Justices Act 1886 (Qld), section 222

Domestic and Family Violence Protection Act 2012 (Qld)

Domestic and Family Violence Protection Rules 2014, (Qld)  rule 12

Police Powers and Responsibilities Act 2000 (Qld), sections 12, 790

Criminal Code Act 1899 (Qld), section 340

Penalties and Sentences Act 1992 (Qld), section 9(2)

CASES:

Forrest v Commissioner of Police [2017] QCA 132

R v Ikin [2007]QCA 224

House v R (1936) 55 CLR 499

COUNSEL:

J McInnes for the appellant

I Quinn (solicitor) for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Office of the Director of Public Prosecutions for the respondent

Background

  1. [1]
    On 16 August 2018, at the Southport Magistrates Court, the appellant pleaded guilty to one charge obstruct a police officer. The appellant was sentenced to 4 months imprisonment with immediate parole release.
  1. [2]
    A notice of appeal was filed on 16 August 2018. The original grounds of appeal identified were that the sentence imposed was manifestly excessive; and the sentencing discretion miscarried because the learned Magistrate placed too much reliance on an allegation of an uncharged act and the appellant’s criminal history.[1]
  1. [3]
    At the appeal hearing, the appellant’s counsel abandoned all grounds except the ground the sentence imposed was manifestly excessive.

The law

  1. [4]
    The appellant appeals under s 222 of the Justices Act 1886 (Qld). Relevantly, s 222(2)(c) of the Act provides that, on an appeal against sentence, the appeal is on the ground that the punishment or penalty imposed is excessive or inadequate.  The appeal is by way of re-hearing of the original evidence given in the proceedings.[2]  Insofar 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 which renders the sentence excessive, or that the sentence is so unreasonable or plainly unjust in the circumstance to give rise to an inference that the discretion has miscarried.[3]

Facts placed before the Magistrate

  1. [5]
    On 26 April 2018, police attended the appellant’s address at about 10.40pm to serve him with a police protection notice under the Domestic and Family Violence Protection Act 2012 (Qld). It had been alleged that the appellant had previously made threats to kill his ex-wife and daughter. When the appellant came to the door and police began to explain the police protection notice to the appellant, he became aggressive and verbally abusive towards them. The appellant retreated into his bedroom and closed the door. He said words to the effect “Kick the door down. You’ll have to arrest me.”
  1. [6]
    Police made attempts to de-escalate the situation however the appellant continued to be verbally abusive and barricaded the door.
  1. [7]
    The appellant then left his bedroom and approached the police. The appellant had his left hand behind his back and the police feared he may have been armed due to information they had received. The appellant was not in fact armed, but police were not aware of this. Due to this behaviour and their knowledge of his previous history, the police feared a risk of serious injury.[4]They produced a Taser and told him to calm down. The defendant went back into his bedroom.
  1. [8]
    Police requested further assistance from other police crews and cordoned off the house. Other police attended. A dog handler entered the house. They discovered the appellant had fled the property. At about 11.30pm, (45 minutes after police had first arrived), the appellant rang one of the females at the residence. He told her he was not going to be served with anything and was throwing his phone away.
  1. [9]
    The appellant returned to the property where he was confronted by police. He continued to be abusive. He was approached by the dog handler and other police. He was told to get on the ground which he did. He was restrained and arrested for obstructing police. Police attempted to explain the protection notice to the appellant as he sat in the back of the police vehicle. The appellant blocked his ears. The police then issued the appellant with a notice to appear and transported him to Robina Hospital.[5]

The appellant’s antecedents

  1. [10]
    The appellant’s criminal history commenced as a child in 1993. As an adult, the appellant has prior convictions from 1997 for offences including wounding, assault, stealing with violence, dishonesty and drug offences. Additionally, the appellant’s criminal history includes breaching domestic violence orders; common assault, and stalking.
  1. [11]
    The appellant has relevant prior convictions which include:

Sentence Date

Offence

Result

10.06.2004

Assault officer in execution of duty

$400 fine

10.06.2004

Assault officer in execution of duty

12 month bond

10.06.2004

Intimidate police officer in execution of duty

Bond & 12 months supervision by probation office with condition to accept counselling and medication as directed

12.12.2006

Resist officer in the execution of their duties

Rising of the court

12.12.2006

2 x assault officer in the execution of their duties

4 months imprisonment (on each offence)

Prosecution submissions at sentence

  1. [12]
    The prosecution outlined the facts of the appellant’s offending and tendered the appellant’s prior New South Wales criminal history. The prosecution made no submissions as to penalty, however drew the Magistrate’s attention to the maximum penalty for the offence, namely 6 months imprisonment.

Defence submissions at sentence

  1. [13]
    The defence noted the appellant was aged 39 years, he had a 9 year old daughter, and that he had been on a disability support pension from the age of about 20.[6]
  1. [14]
    The defence highlighted the appellant’s past exposure to physical and sexual abuse as a child while in juvenile detention for which he had apparently been compensated in some measure.[7]The defence submitted these events had impacted significantly upon the appellant’s life to the extent that he has “multiple problems”.[8]
  1. [15]
    It was submitted that the appellant was disoriented when police arrived because he had been asleep prior to the incident. The appellant was fearful of people in authority (particularly uniformed people of authority) due to his past history of abuse. The defence submitted these matters provided some explanation for his behaviour that night.[9]
  1. [16]
    It was submitted that, although the appellant had numerous prior convictions in New South Wales, he had not offended since moving to Queensland.[10]The defence tendered a letter from senior case manager, Mr Campbell, at Kalwun Health Service. The letter confirmed the service had provided mental health support and counselling to the appellant since September 2017, and would continue to do so. The author stated the service had sought clarification of the appellant’s prior diagnoses due to sexual assault and long term incarceration. The appellant had been previously diagnosed with severe social anxiety, depression, verbal aggression, poor impulse control, self-harm and suicidality.  Mr Campbell considered the appellant had engaged well during counselling, had demonstrated the ability to avoid similar situations, was willing to continue to engage and was motivated to continue to address his mental health issues.
  1. [17]
    The appellant was living in stable rented accommodation with a new girlfriend. After rental payments he was left with $200 a fortnight to live on. The defence submitted that a fine be imposed because the obstruction of police was at the lower end of seriousness and because of the appellant’s psychological issues.[11]When the Magistrate asked why he should not impose imprisonment, the appellant’s solicitor submitted that if imprisonment was to be imposed, the Magistrate would suspend it forthwith having regard to the fact the obstruction did not involve physical violence and was motivated by fear. The defence solicitor, however, maintained his submission that the obstruct offence was at the lower end of the scale of seriousness and even having regard to the appellant’s history, a fine should be imposed. 

Magistrate’s reasons

  1. [18]
    The Magistrate stated he took into account the appellant’s timely plea of guilty, and his attendance at the Kelwun Health Service. The Magistrate told the appellant he needed to continue his treatment with Kelwun. The Magistrate appeared to accept the appellant had fears concerning people in authority due to past experiences. The Magistrate informed the appellant that, although the he was scared of people in authority, he must appreciate that the police also feared the appellant, having regard to the allegations of threats he had made to his wife and to his behaviour when they attended his residence, irrespective of whether the allegations were true or not.[12] 
  1. [19]
    The Magistrate stated he could, and did, take into account the appellant’s lengthy New South Wales criminal history as an adult. He stated the courts had given the appellant “lots of opportunities to deal with his past issues”.
  1. [20]
    The Magistrate rejected the submission that the obstruction of police was at the lower end of seriousness. He regarded it to be “amongst the most serious of obstruct police charges, given the facts presented here and the escalation of the situation.”[13]
  1. [21]
    Having regard to the severity of the offence, the facts presented and the escalation of the situation, the Magistrate sentenced the appellant to 4 months imprisonment with an immediate parole release. The Magistrate stated that this sentence was given to allow the appellant liberty, provided he did not re-offend and to ensure he was supervised for the period of time.

Appellant’s submissions

  1. [22]
    The appellant submits that the sentence imposed is manifestly excessive and the Magistrate overestimated the seriousness of the appellant’s offending behaviour.
  1. [23]
    The appellant, during the appeal hearing, enlightened the court about the procedure involved in police serving a police protection notice. Service of a notice under the Domestic and Family Violence Protection Rules 2014 (Qld) only requires police to hand the notice to the appellant, or leave it at the appellant’s residence after informing the appellant what it was.[14]Police could have left the appellant’s home after doing so, however police remained at the appellant’s residence. The appellant sensibly concedes that the police officers’ decision to remain at the appellant’s residence and to call in reinforcements was totally understandable. Police no doubt did so, because of the appellant’s loud and aggressive behaviour and because of their unfounded fears that he may have been armed. The appellant submits however, that the obstruction was relatively minor because the appellant did not threaten police, did not produce a weapon or claim he had one, rather he retreated to his room. He then took the opportunity to flee for a period of time before returning.
  1. [24]
    The appellant concedes his criminal history is considerable and includes some serious offences, however, submits the current offence is of a considerably less serious nature.The appellant had not offended in a similar manner for 12 years, and his last conviction for any offence was two years prior to this offence.[15]
  1. [25]
    The appellant submits that the Magistrate did not adequately explain his reasoning for imposing a term of imprisonment;[16]and a sentence of imprisonment should only be imposed as a last resort.[17]The appellant submits that other community based rehabilitative orders were open and should have been imposed, particularly in light of the appellants specific set of circumstances.[18]
  1. [26]
    The appellant submits the appellant should have been sentenced to a non-custodial penalty, for example, a period of probation or, if a term of imprisonment was imposed, it should not have been greater than a period of 2 months imprisonment with immediate release on parole.

Respondent’s submissions

  1. [27]
    The respondent submits that the appeal should be dismissed as the sentence imposed was not excessive having regard to the circumstances of the offence and the appellant’s criminal history.
  1. [28]
    The respondent submits the Magistrate did not err in determining the circumstances of the offence amounted to a serious example of the offence of obstruct police.

Consideration

  1. [29]
    The issue is whether the sentence that the Magistrate imposed was excessive having regard the circumstances of the offending, the appellant’s antecedents, his prior criminal history, his mental health issues, his steps to rehabilitate and the other relevant sentencing principles and guidelines.
  1. [30]
    The appellant was charged with obstruct police under s 790 Police Powers and Responsibilities Act 2000 (Qld). The maximum penalty is 6 months imprisonment. The more serious charge of assault or obstruct police under s 340 Criminal Code Act 1899 (Qld) was discontinued against the appellant and the less serious charge substituted. 
  1. [31]
    The offence had serious features. These included the nature of the appellant’s verbal abuse, the fact he barricaded himself in the bedroom, his actions of leaving the property and saying he would continue to refuse service of the protection order. I consider this was not a trivial example of the offence. However, I consider the Magistrate’s description of the offence as “amongst the most serious of obstruct police charges”[19]was, with respect, an error of fact which led to the sentence imposed being excessive. I therefore re-sentence the appellant.
  1. [32]
    The appellant did not physically struggle with police. Once he returned to the house, police told him to get on the ground and he complied. The appellant was not armed. The unchallenged evidence before the court was that the appellant reacted the way he did because of his mental health history and his fear of police due to his mistreatment as a child by persons in authority. The offending was serious for the reasons referred to previously. The nature of the offending, however, must be viewed against the appellant’s background of sexual abuse as a child at the hands of figures of authority in a custodial setting and his apparent mental health issues at the time he offended. Other relevant factors include his genuine efforts to receive treatment and rehabilitate though the Kelwun Health Service.
  1. [33]
    A fine was not a sufficient penalty and the appellant did not realistically have the financial means to pay one. Because of his criminal history, financial circumstances and particularly because of his continuing efforts to rehabilitate, a probation or community service order would have been within range. He has now finished serving the 4 month term of imprisonment on parole. A probation order would therefore be an added penalty at this late stage. I therefore intend to vary the order originally imposed by reducing the sentence to one of 2 months imprisonment suspended forthwith for an operational period of 2 months. This may, at first glance, be mistaken for tinkering which an appeal court must be astute to avoid, however to reduce the sentence to 2 months is to reduce it by one half the original sentence which is a substantial reduction.[20]

Order

  1. [34]
    Appeal allowed. Sentence varied to 2 months imprisonment suspended forthwith for operational period of 2 months (backdated to date of original sentence).

 

Footnotes

[1] Appellant’s outline of submissions, para 15.

[2] Forrest v Commissioner of Police [2017] QCA 132.

[3] R v Ikin [2007]QCA 224 at [6]

[4] Transcript of sentence submissions, p 7, l 5.

[5] Transcript of sentence submissions, p 7, ll 30-35.

[6] Transcript of sentence submissions, p 8, ll 40-43.

[7] Transcript of sentence submissions, p, ll 44-45.

[8] Transcript of sentence submissions, p 9, l 2.

[9] Transcript of sentence submissions, p 9, ll 31-35.

[10] Transcript of sentence submissions, p 9, ll 7.

[11] Transcript of sentence submissions, p 10, l 14 and Appellant’s Outline of Submissions, p 5.

[12] Transcript of decision, p 2, ll 16-20.

[13] Transcript of decision, p 7, l 6.

[14] Rule 12, Domestic and Family Violence Protection Rules 2014 (Qld)

[15] Appellant’s outline of submissions, para 16.4.

[16] Appellant’s Outline of Submissions, para 16.12.

[17] Penalties and Sentences Act 1992 (Qld) s 9(2).

[18] Appellant’s Outline of Submissions, para 16.12.

[19] Sentencing Remarks p 7, l 5

[20] For comparison see R v King [2008] QCA 1

 

Close

Editorial Notes

  • Published Case Name:

    CSN v The Queensland Police Service

  • Shortened Case Name:

    CSN v The Queensland Police Service

  • MNC:

    [2019] QDC 43

  • Court:

    QDC

  • Judge(s):

    McGinness DCJ

  • Date:

    03 Apr 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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