Sullivan v Queensland Police Service
[2020] QDC 220
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- Unreported Judgment
- Sullivan v Queensland Police Service[2020] QDC 220
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Sullivan v Queensland Police Service[2020] QDC 220
Sullivan v Queensland Police Service[2020] QDC 220
DISTRICT COURT OF QUEENSLAND
CITATION: | Sullivan v Queensland Police Service [2020] QDC 220 |
PARTIES: | TOM HENRY SULLIVAN (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO: | Appeal No. 104 of 2020 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Cairns |
DELIVERED ON: | 4 September 2020 |
DELIVERED AT: | Cairns |
HEARING DATE: | 21 August 2020 |
JUDGE: | Morzone QC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - conviction – breach of bail condition – whether sentencing discretion otherwise miscarried resulting in a sentence that is too heavy and lies outside the permissible range – whether failure to have regard to the principle that imprisonment is a sentence of last resort and a sentence that allows the offender to stay in the community is preferable – whether court proceeded on an erroneous factual basis, namely, that the bail condition which the appellant had breached had been imposed by a court - sentence found manifestly excessive. Legislation Justices Act 1886 (Qld) ss 222, 223(1) Penalties & Sentences Act 1992 (Qld) ss 9(1) & (2), 48, 144 Cases Allesch v Maunz (2000) 203 CLR 172 ARS v Queensland Police Service [2018] QDC 103 Dwyer v Calco Timbers (2008) 234 CLR 124 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 60 Lovell v Lovell (1950) 81 CLR 513 R v Morse (1979) 23 SASR 98 Veen v The Queen (No. 2) (1988) 164 CLR 465 Warren v Coombes (1979) 142 CLR 531 |
COUNSEL: | C Tessmann for the appellant N Crane for the respondent |
SOLICITORS: | Aboriginal & Torres Strait Islander Legal Service for the appellant The Office of the Director of Public Prosecutions for the respondent |
- [1]On 25 May 2020, the appellant was convicted in the Magistrates Court held in Cairns after pleading guilty to one charge of breaching a bail condition. He was sentenced to one month imprisonment, partly suspended for an operational period of 12 months after serving two days in presentence custody in the watch house.
- [2]The appellant now appeals his sentence on the ground that it is manifestly excessive because:
- The learned magistrate’s sentencing discretion otherwise miscarried resulting in a sentence that is too heavy and lies outside the permissible range.
- The learned magistrate failed to have regard to the principle that imprisonment is a sentence of last resort and a sentence that allows the offender to stay in the community is preferable.
- The learned magistrate proceeded on an erroneous factual basis, namely, that the bail condition which the appellant had breached had been imposed by a court.
- [3]This appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave.[1] 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.[2] 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.
- [4]This court ought not to 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”.[4]
- [5]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, these are not sufficient justifications for review; it must be shown that the discretion miscarried resulting in a manifestly excessive sentence.[5] 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.[6]
- [6]
"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."
- [7]
“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.”
- [8]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 may be manifestly excessive as being too heavy and lie 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.
Did the learned magistrate fail to have regard to the principle that a sentence of imprisonment is one of last resort and preference is for a sentence served in the community?
- [9]Section 9(2) of the Penalties and Sentences Act 1992 (Qld) requires that the court have regard to various sentencing considerations including in s 9(2)(a) that:
“(a) principles that –
- (i)a sentence of imprisonment should only be imposed as a last resort; and
- (ii)a sentence that allows the offender to stay in the community is preferable; …”
- [10]The appellant relies upon the absence of any acknowledgement of that fundamental principle either during the hearing or during his sentencing reasons. He submitted that the learned magistrate appeared to treat imprisonment as a starting point for this offence and could not be persuaded to the contrary.
- [11]The learned magistrate was apparently unpersuaded by either the prosecutor or defence who both submitted in favour of a fine. As to the prosecutor’s submission that “a fine was within range” and “might serve as a salutary reminder that he does need to comply”, the learned magistrate remarked that “a fine’s not accepted on my view, Ms Howard. It requires more than that”.[9] It may be inferred that his Honour was intimating that imprisonment (as being more than a fine) was warranted, but his Honour did not say so, nor did he express any concluded view about the appropriateness of any other non-custodial sentences at that stage. It was not until the conclusion of the defence submissions also in support of a fine, including that imprisonment was a last resort for the offending, that the learned magistrate made plainer the proposed custodial sentence. The following exchange occurred:
DEFENCE: Your Honour, …. He has been in the watchhouse now for over 48 hours and spent two nights in custody. Your Honour my submission is that is quite a significant deterrent - significant punishment for his conduct. It is, your Honour, ultimately an offence against the Bail Act that is not violent, so imprisonment remains one of last resort. Ultimately, in all circumstances given – the circumstances in which this has occurred, who he is, and his lack of history, your Honour, my submission is a fine – given he spent more than 48 hours in custody - is the appropriate outcome. He is in receipt of a New Start Allowance, and I’d ask your Honour to take that into account. He doesn’t have any dependent children but has two others that he has some contact with. Your Honour, my submission is that given the history and given no malintent, a custodial sentence would be out of range in the circumstances. Your Honour, unless I can be of…
BENCH: Thank you. With respect, I disagree with you, Mr Tessman, but that’s a matter I’ll explain to Mr Sullivan.
- [12]It seems to me that his Honour had the benefit of the defence submissions eluding to the effect of the sentencing principal s 9(2)(a) but he expressly disagreed with the submission as to its effect, apparently fixed on a sentence of imprisonment. In his explanation to the defendant during the sentencing remarks, his Honour did not refer to the principle or provide any specific reasoning applying the principle. He did explain (to the defendant) that protection of the community and, implicitly, both general and personal deterrence were significant factors in the circumstances of this case.
- [13]These are undoubtedly pertinent considerations for offences of breach of bail, however, the question is whether they are sufficiently enlivened such that no other community-based sentence is appropriate in the circumstances of the case.
- [14]The appellant was on bail for three alleged separate offences of sexual assault involving three female complainants who were unknown to each other. The appellant was released on conditional bail by the Cairns watchhouse on 9 May 2020 with a condition that he not go to Springfield Crescent in Manoora. At about 12.15pm on Saturday 23 May 2020 the appellant was walking along Springfield Crescent and appeared to be looking in the opposite direction of police officers patrolling the street. He was intercepted by police officers, identified himself, and admitted he had breached his bail condition by visiting his ‘brother’ on that street. He was arrested and remanded in the watchhouse. It was uncontested that the appellant attended the street to visit and assist a close friend that he identifies as a brother and that suffers from mental health conditions, by providing him with takeaway food.
- [15]The providence of the condition is unknown. There was no evidence that the condition was on the same street as the alleged offending, or whether it was associated with a complainant or other witness.
- [16]The appellant’s criminal history extended from 2010 until 2019 ranging in seriousness, including: robbery with actual violence in company (2010), public nuisance (2010), enter premises to offend (2x 2010, 2012, 5x 2015) and three attempts (2013), breaches of probation (2011, 2012), beach of a community service order (2012), wilful damage (3x 2011), possessing tainted property (2011), contravening a direction (2012, 2019), burglary to offend (2012, 3x 2015), unlawful use of a motor vehicle (2x 2012), fail to stop motor vehicle (2012), possessing a house breaking implement (2013), stealing (2013, 2014, 2x 2015), unlawful entry of a vehicle (2013), fraud – dishonestly obtains property (3x 2015), Possessing drug utensils (2015, 2018), Assault or obstruct police (2015), Trespass – entering and remaining in a dwelling or yard (2015) and possession of dangerous drugs (2019).
- [17]It is trite law that the appellant’s criminal history is a relevant matter for the proper exercise of the sentencing discretion. Further, s 9(10) provides:
“In determining the appropriate sentence for an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to –
- (a)the nature of the previous conviction and its relevance to the current offence;
- (b)the time that has elapsed since the conviction.”
- [18]Subsection (11) provides:
“Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence.”
- [19]Clearly enough, the provisions reflect the common law as it stood and proclaimed in Veen v The Queen (No. 2)[10] as follows:
“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences; Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Applied by Cooper J (with whom Kneipp and Shepherdson JJ agreed) in R v Aston [No 2] [1991] 1 Qd R 375.”
- [20]Relevantly here, the defendant has no past offences of a sexual nature or of breaching bail. Nor could his past breaches of orders be said to be contemporary. At best, when he was about 19 and 20, he breached sentencing orders, being three breaches of probation – twice in 2011 and once in 2012, and one beach of a community service order in 2012.
- [21]The defendant was 28 when he was before the court on this occasion. By the time of his sentence he had spent 2 days in presentence custody in the watchhouse.
- [22]Against this background, it is hard to glean how these matters in the circumstances of the case negatived all other community-based sentences such that imprisonment, the sentence of last resort, was the only appropriate order for his breach of bail then before the court. It seems to me that a sentence of imprisonment as the sentence of last resort is disproportionate to the gravity of the instant offence. Indeed, it seems to me that a modest fine was well within rage.
- [23]Therefore, I respectfully conclude that the learned magistrate did not have sufficient regard to the principle that a sentence of imprisonment is one of last resort and prefer a sentence to be served in the community.
Did the learned magistrate erroneously proceed on the basis that the defendant breached court ordered bail?
- [24]The appellant contends that the learned magistrate sentenced the appellant on the erroneous factual basis that the court imposed the bail condition that he not attend the specified street.
- [25]The learned magistrate did make reference to the ‘court’ and the ‘magistrate’ explaining matters, to impress on the defendant the court’s reliance on his promise to the court to assess risk and grant bail while protecting the community. After pronouncing sentence and during the course of “going though [the bail] with you again because I’m worried that you may not have fully understood what was going on”, his Honour affirmed that it was “watchhouse bail” imposed by a police officer and not in court. Having clarified the matter, his Honour then sought to retract some of his remarks saying: “Okay. I take some of that back, Mr Sullivan.”
- [26]It seems to me that the learned magistrate did mistake the facts as he was seeking to effectively communicate with the defendant. This provides some explain for his heightened perception of the defendant’s disregard for court orders, but I see no relevant distinction between the different forms of bail, in any event. All grants of bail warrant strict obedience.
- [27]Therefore, whilst the learned Magistrate was initially mistaken, once he acknowledged the true genesis of bail, it was apparently not a fact material to his consideration of imposing the penalty, and he did not change the sentence.
The learned magistrate’s sentencing discretion otherwise miscarried resulting in a sentence that is too heavy and lies outside the permissible range.
- [28]In addition to any specific error, the appellant relies upon both the time of the 1 month term of imprisonment, and the order that it be suspended for a period of 12 months, being manifestly excess because:
- no fact or submission was properly placed before the sentencing magistrate to suggest this was a more serious example of breaching a bail condition, such as that the underlying offences were particularly serious, that the breach caused harm to particular victims, or that the appellant had a history for offences similar in nature to that for which he had been placed on bail;
- it was arguably a less serious example of a breach of bail: the condition was arguably excessive and the appellant’s conduct was not nefarious and was for the purpose of assisting another;
- the appellant entered an early plea of guilty and cooperated with authorities;
- the appellant had no prior breaches of the Bail Act and so personal deterrence was not an especially relevant factor;
- the starting point for this offence is not one of imprisonment; and
- the prosecutor at sentence did not seek a penalty beyond a fine.
- [29]The respondent points to the learned magistrate’s acknowledgment that protection of the community is a relevant purpose, in the context of a bailee for alleged sexual offences deliberately flouting conditions of bail designed to reduce his risk of re-offending. It is also argued that other matters enlivened the discretion to weigh personal and general deterrence heavily, in particular, demonstrated propensity for breaching court orders and committing serious offences, and the need for strict adherence to bail conditions for charges involving serious sexual offences being treated with the upmost seriousness. The respondent further argued that whilst 48 hours in custody is such that it might be a deterrent to first-time offenders, the appellant is not of that category. His Honour could safely conclude a further suspended period would be sufficient to deter the appellant from breaching his bail conditions into the future.
- [30]A court may order that a term of imprisonment be suspended pursuant to s 144 of the Penalties and Sentences Act 1992 (Qld), however, may only do so if is satisfied that a term of imprisonment would be appropriate in the circumstances and suspending the term is appropriate.[11]
- [31]As I discussed above, whilst the sentence of imprisonment might be within range, I do not accept that it the appropriate order as a last resort. This is supported by consideration of all of the matters that are relevant to fixing the sentence, particularly the nature of breach of bail offending and, whist not the function of this court to reconcile all comparatives, the appellant has identified some which provide a benchmark against which the appropriateness the sentence can be gauged.
- [32]In Chidgey v Commissioner of Police [2016] QDC 224 the appellant was convicted after trial of the offence of breaching a bail condition by failing to report to a police station on a particular day. His criminal history contained a prior entry for two summary offences and did not contain any offences against the Bail Act. On appeal it was held that the fine of $1500 initially imposed was manifestly excessive and he was re-sentenced him to a fine of $250.
- [33]In ARS v Queensland Police Service [2018] QDC 103 the 36 year old appellant pleaded guilty to one charge of failing to appear contrary to s 33 of the Bail Act 1980 (Qld). He was sentenced to seven days imprisonment suspended after having served two days (with two days declared as time served) for an operational period of 6 months. He was a full time worker with an income of $750 per week, and had appeared at court on several occasions. He had some more dated and recent minor offences, but he was already on bail for breaching a bail condition at the time of this offence. On a successful appeal he was convicted but not further punished.
- [34]Having regard to his Honour’s remarks and characterisation of the bail for alleged sexual offending, the appellants past offending and the nature and extent of the offending before him, it seems to me that his Honour allowed extraneous matters to overwhelm his sentencing discretion. Whilst it is not clear how reached the result embodied making imprisonment orders of last resort, that result, in my respectful opinion was unreasonable or plainly unjust as being outside the permissible range of sentences.
- [35]The resultant sentence is manifestly excessive, and I will allow the appeal.
Resentence
- [36]Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion.
- [37]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 section 9 of the Penalties and Sentences Act 1992 (Qld).
- [38]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 maximum penalty of a term of imprisonment for two years or 40 penalty units, with due regard to the factors of general and, as appropriate, personal deterrence. For this offending, as discussed, it is critical that imprisonment should only be imposed as a last resort and a sentence that allows the appellant to stay in the community is preferable.
- [39]The appellant is an indigenous man. He was 28 years old at the time of the offending and when originally sentenced. He resides two streets away from Springfield Crescent with his parents. His past record of adult offending extends to five pages of a criminal history which includes dated breaches of court orders when he was aged 19 and 20, but he has no prior sexual offending or breaches of bail. The appellant’s offending in this instance is of a low order breach for altruistic purposes in deliberate disobedience of his bail conditions. It seems to me that against a background an immature disregard for court orders, attitude of disobedience of the law with a particular focus on the need for retribution, personal and general deterrence and protection of the community - a more severe penalty than 2 days served in presentence custody is warranted. This could be met by the additional imposition of a fine commensurate with his limited financial means and capacity. This approach will accord with the principle in s 9(2) of the Penalties and Sentence Act 1999 (Qld) after taking into account the 2 days already served in the watchhouse awaiting sentence.
- [40]In determining the amount of the fine and the way in which it is to be paid, due regard ought to be given in this case to the appellant’s financial circumstances and any burden a fine may have on him.[12] He continues to receive social security payments in the form of JobSeeker Payment (formerly Newstart Allowance), with no foreseeable prospect of employment, and seeks to pay by arrangement over time.
- [41]I think a fine of $250 is just and appropriate.
Order
- [42]For these reasons, I will allow the appeal, set aside the orders made by the Magistrates Court and substitute an order that the defendant be fined $250 to be paid by 4 September 2021. I will direct Registrar to refer payment arrangements to the State Penalties Enforcement Registry.
Footnotes
[1]Justices Act 1886 (Qld), ss 222 & 223.
[2]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].
[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]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.
[5]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.
[6]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.
[7]House v The King (1936) 55 CLR 499, 504 and 505.
[8]Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111, [130] per Hayne J (minority).
[9] Transcript of Hearing, affidavit of Peter Andrew Haarsma, page 7/26.
[10]Veen v The Queen (No. 2) (1988) 164 CLR 465 at [14].
[11]Penalties and Sentences Act 1992 (Qld), s 144(1), (2) & (4) discussed in ARS v Queensland Police Service [2018] QDC 103 at [42] citing R v H (1993) 66 A Crim R 505, 510 and R v Ford [2008] SASC 46 at [51].
[12]Penalties and Sentences Act, s 48.