Osborne v Commissioner of Police
[2020] QDC 249
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- Unreported Judgment
- Osborne v Commissioner of Police[2020] QDC 249
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Osborne v Commissioner of Police[2020] QDC 249
Osborne v Commissioner of Police[2020] QDC 249
DISTRICT COURT OF QUEENSLAND
CITATION: | Osborne v Commissioner of Police [2020] QDC 249 |
PARTIES: | PAT EKAHOE OSBORNE (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 1367 of 2020 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court of Queensland |
DELIVERED ON: | 30 September 2020 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 September 2020 |
JUDGE: | Loury QC DCJ |
ORDER: |
|
COUNSEL: | T Thorp for the appellant T Little, solicitor, for the respondent |
SOLICITORS: | Phillips Lawyers for the appellant Office of the Director of Public Prosecutions (Qld) for the respondent |
- [1]The appellant pleaded guilty in the Magistrates Court to three offences all committed on 13 January 2020. They were forcible entry, wilful damage and assault occasioning bodily harm. He was sentenced on 11 March 2020 for assault occasioning bodily harm to two years imprisonment with a fixed parole release date after he had served eight months of that sentence. He was convicted and not further punished in relation to the other two offences.
- [2]The appellant filed a notice of appeal and an application for an extension of time within which to appeal on 13 May 2020. His notice of appeal indicates that he wants to appeal his conviction and sentence. At the hearing of this matter counsel for the appellant confirmed that her instructions were to abandon the appeal against conviction and proceed only with the appeal against sentence.
- [3]The appellant’s reasons for not appealing within time are that he did not receive correspondence notifying him of his right to appeal the decision until after the passing of the 28 day time limit. Upon receiving a recommendation for a solicitor from another inmate, the appellant attempted to make contact with that solicitor. Mr Phillips, the applicant’s solicitor has affirmed that contact was made with him on 21 April 2020 by the appellant’s sister. The first available tele-conference that he was able to secure to speak with the appellant was on 4 May 2020. Mr Phillips acted quickly upon receiving instructions on 11 May 2020 to proceed with the application and filed the application and notice of appeal on 13 May 2020.
- [4]The delay is not a long one. During this period visits to the correctional centre were suspended due to the COVID-19 pandemic. I consider that good reason has been given for the delay.[1] The respondent concedes that the sentence is excessive. It is appropriate to extend time within which to appeal to 13 May 2020.
Circumstances giving rise to the offences
- [5]The appellant believed that Ms MB was his girlfriend. Ms MB was in fact in a relationship with the complainant. On the date of the offence the complainant telephoned the appellant and told him that he was the person in a relationship with Ms MB. He was aggressive towards the appellant. The appellant said “you are the person who beats up girls and I’m going to take your head off.”
- [6]The appellant was then driven to the complainant’s house. He approached the front door, banged on it and said “I’m going to kill you, cunt”; “You want war, brother? You got war.” The complainant approached his front door holding a knife which he had been using to prepare food. A verbal argument ensued at the front door. The appellant became enraged and ripped the screen door off the hinges. He lunged at the complainant grabbing him around the shirt. Each of the appellant and complainant were cut with the knife during the struggle. The appellant’s lip and cheek were cut, the complainant’s hand was cut.
- [7]Both the appellant and complainant fell down a small flight of stairs with the appellant landing on top of the complainant. He put his left elbow and forearm around the complainant’s neck and pressed it into the complainant’s neck such that the complainant’s face started to turn purple. The appellant continued to threaten the complainant saying “I will kill you, cunt”. Ms MB attempted to pull the appellant from the complainant. He did not stop his attack until police arrived.
- [8]The complainant sustained significant bruising to his neck.
- [9]The appellant was treated at the hospital. Upon release later that night he was arrested. He was interviewed and said that he had been looking after Ms MB’s children during the holidays when she was at work. The children and Ms MB had told him that there had been episodes of domestic violence committed by the complainant upon her. He went to the complainant’s house to talk to him about his behaviour and to protect the children.
Submissions made on the appellant’s behalf
- [10]The appellant was thirty years old and came to Australia from New Zealand in 2006. He had the support of his mother and sister who attended court. He had worked as a labourer until he sustained a back injury. He required the use of walking aids as a result and was due to have an operation to have his spine fused on 29 April 2020.
- [11]His intention in attending the complainant’s house was to have Ms MB and the children removed.
- [12]The appellant suffered a significant injury to his face and was left with a scar as a result. Upon discharge from the hospital he was admitted to a mental health unit at another hospital for a period of three weeks. He was receiving treatment and medication for depression and was regularly seeing his general practitioner at the time of the sentence.
- [13]The appellant had four previous convictions for breaching a domestic violence order. Those breaches were not constituted by acts of violence on the part of the appellant but rather by the sending of text messages in order to locate his son whom he had not seen for four years prior to his sentence.
- [14]The appellant made full admissions to the police and spared the victim the necessity of having to give evidence.
The decision of the Magistrate
- [15]The matter was adjourned overnight. Upon resumption of the matter the appellant’s representative submitted that the appellant was admitted to the mental health unit of a hospital immediately following his commission of the offences and had been seeing a psychologist once a week since his release.
- [16]The learned Magistrate during the course of submissions indicated that he could not have regard to the fact that the appellant might be subject to deportation as a consequence of his convictions.
- [17]The learned Magistrate took into account the nature and circumstances of the offences. He took into account the application of section 9(2)(a) of the Penalties and Sentences Act 1992 that a period of imprisonment was a sentence of last resort and that a sentence that allowed the appellant to remain in the community was preferable. He took into account that the appellant had previous convictions for breaching protection orders although acknowledged that they did not involve violence.
- [18]The learned Magistrate considered the comparable decisions of R v Fitzgerald[2] and R v Buckley.[3] He considered that there were many more mitigating factors present in the decision of Fitzgerald than applied to the appellant, although he did not articulate what those circumstances were. He referred, in that context, to the belief on the part of the appellant that he was in a relationship with Ms MB.
- [19]The learned Magistrate considered that the offending involved vigilantism. He referred to the appellant’s concerns for the children. He took into account the extent of the injuries and the sustained nature of the attack. He considered the attack to have been premeditated, sustained and involved choking the complainant. He considered that there was a strong need for deterrence in circumstances where the offending involved a home invasion.
- [20]The learned Magistrate adopted a global approach to sentencing, imposing the head sentence on the most serious offence of assault occasioning bodily harm which took into account the forcible entry and wilful damage.
Consideration
- [21]The appellant appeals pursuant to section 222 of the Justices Act 1986. Such an appeal is by way of rehearing on the evidence before the Magistrate together with any new evidence adduced by leave.[4] This Court’s appellate powers are only exercisable where the appellant can demonstrate that having regard to all the evidence now before the Court, that the order, the subject of the appeal, is the result of some legal, factual or discretionary error.[5] As this is an appeal against the exercise of a sentencing discretion, in order to succeed, the appellant must satisfy the Court that the learned Magistrate acted upon a wrong principle, allowed an extraneous or irrelevant matter to affect him, operated under a mistake of fact or did not take into account a material consideration.[6] It is not enough that I might have imposed a different sentence. It must appear that there has been some error into the exercise of the discretion. Such an error will be evident where the sentence is plainly unreasonable or unjust.
- [22]The appellant argues that the learned Magistrate did not take into account the appellant’s plea of guilty and failed to take into account any of the mitigating factors. In particular it is argued that the learned Magistrate made no reference to the appellant’s mental health problems and back injury all of which would make his experience in a custodial environment more onerous than for someone without those conditions. It is also argued that the learned Magistrate failed to take account of the injury the appellant suffered during the course of the altercation or that the appellant believed that Ms MB and her children were victims of domestic violence. He also failed to take account of the context in which the offending occurred and failed to consider the effect of the likely cancellation of the appellant’s visa. It also argued that the learned Magistrate placed too much weight on the appellant’s prior convictions.
- [23]The respondent has conceded that the learned Magistrate failed to take into consideration the appellant’s mental health condition, the appellant’s injuries, and his mistaken belief. The respondent further concedes that the sentence imposed was excessive having regard to the authorities of R v Fitzgerald;[7] R v Denham; ex parte Attorney-General[8] and R v Ross.[9] Accordingly it is submitted that I ought to exercise the discretion afresh.
- [24]The appellant relies upon new evidence for the purpose of the re-exercise of the sentencing discretion.
- [25]It should be noted that contrary to the statement of the learned Magistrate, this was not a case in which the principle referred to in section 9(2)(a) of the Penalties and Sentences Act 1992 applied. As the offence involved the use of violence against another person subsection (2A) of section 9 applied.
- [26]In sentencing an offender to whom subsection 2A applies it is necessary for the court to have primary regard to:
- the risk of physical harm to any members of the community if a custodial sentence is not imposed;
- the need to protect any members of the community from that risk;
- the personal circumstances of the victim;
- the circumstances of the offence including any injury, loss or damage resulting from the offence;
- the nature and extent of the violence used;
- any disregard for the interests of public safety;
- the past record of the appellant including any attempted rehabilitation and the number of previous offences of any type committed;
- the antecedents, age and character of the appellant;
- any medical, psychiatric, prison or other relevant report; and
- anything else about the safety of members of the community that is relevant.
- [27]There is no reference to any of the mitigating factors that existed in the reasons of the learned Magistrate. That does tend to suggest that he failed to take into account those factors. Of most relevance were the appellant’s physical injuries, a matter likely to make his time in prison more onerous than for someone without that injury. Additionally, the learned Magistrate did not have regard to the likely consequence of the appellant’s conviction on his visa which was a relevant matter in the circumstances of this case.
- [28]Accordingly, it is necessary to resentence the appellant. Given that I am undertaking that process it is necessary to have regard to any new evidence which impacts upon the exercise of my discretion.
- [29]That evidence relied upon is as follows:
- on 18 January 2020 the appellant was referred to the Prince Charles Hospital by a general practitioner. He was said to be experiencing suicidal ideation. It appears that he was discharged later the same night.
- a report from a spinal surgeon dated 24 September 2019 sets out the appellant’s physical injury and prognosis. It states that he suffered a work related injury to his lower back on 24 June 2019. His prognosis was guarded. Whilst there had been some improvement in his symptoms nonetheless there remained considerable dysfunction and multilevel lumbar deterioration. It was not expected that his injury would have stabilised until six months following the date of the injury.
- a report from the same spinal surgeon dated 7 November 2019 which indicated that the appellant had made no progress. He was feeling depressed and was using a crutch to assist his mobility. Surgery was recommended which would involve a form of fusion and decompression. His prognosis was considered poor. The report indicates that the appellant has congenital and degenerative changes in his lumbar spine.
- a report from an orthopaedic surgeon commissioned by WorkCover dated 25 November 2019. That author opines that the appellant is a poor candidate for spinal fusion for a number of reasons. His pain was disproportionate to the nature of the mechanism of injury and the radiological findings. The appellant was medicated for depression and was a heavy smoker. The author considered that the appellant’s condition was a result of a pre-existing injury and the natural process of degenerative changes.
- a letter from a clinical psychologist which indicates that the appellant had been referred for treatment for depression and anxiety on 10 December 2019.
- a discharge summary from the Caboolture hospital dated 1 February 2020. The appellant had been transferred from another hospital (likely the Prince Charles Hospital) on 18 January 2020 and discharged from Caboolture on 1 February 2020. The reason for admission was suicidal ideation in the context of pain and other psychosocial stressors. The principal diagnosis was situational crisis with the secondary diagnosis being antisocial personality disorder and substance abuse disorder (cannabis). It was said that there was a temporal link between the appellant’s increased pain and the decline in his mental health.
- a discharge summary from the Caboolture hospital dated 15 January 2020. The appellant was admitted on 14 January and discharged on 15 January. He was admitted because he took an intentional overdose of his pain medication.
- a letter from a clinical psychologist dated 18 January 2020 which indicates that the appellant was referred for treatment of anxiety and depression.
- documents from WorkCover the relevance of which is unknown.
- a letter from the Department of Home Affairs to the appellant indicating this his visa has been cancelled.
- a medical report from Woodford Corrections Health which indicates that the appellant voluntarily elected to use a wheelchair fulltime since late March 2020 instead of mobilising with crutches. The wheelchair was not recommended or prescribed by Queensland Health. The letter also sets out the medication that the appellant receives.
- a document which appears to be the appellant’s response to the Department of Home Affairs and a request for revocation of his mandatory visa cancellation. The basis appears to be that the appellant’s family all reside in Australia and that he will have nowhere to live if returned to New Zealand. He indicates that he will not be able to cope with life in New Zealand without his mother, brothers and sister.
- [30]None of this documentation was placed before the learned Magistrate despite the vast majority of it being available as at the date of the sentence. That may be because the appellant chose to use the services of a duty lawyer despite the serious nature of the charges.
- [31]The comparable decisions provide some guidance as to the appropriate penalty bearing in mind the differences in the offending and the circumstances of the offender. Importantly, all three comparable decisions were made at a time when a sentence of imprisonment was a sentence of last resort. That is not the case for the appellant.
- [32]Denham, which was decided in 2003, was sentenced to 12 months imprisonment to be served by way of an intensive correction order for offences of burglary, assault occasioning bodily harm and breach of a domestic violence order. He was also ordered to pay compensation to the complainant in the amount of $1000. The applicant in that matter pushed the door open and struggled with the respondent before hitting him to the face four or five times, causing his nose to bleed. He had a previous conviction for assault occasioning bodily harm. He had undertaken counselling with a psychologist and it was said that he had promising prospects of rehabilitation. The penalty was considered compassionate.
- [33]Fitzgerald was decided in 2004 again at a time where the principles relevant to the exercise of the discretion were different. The applicant pleaded guilty to entering a dwelling with intent by breaking and assault occasioning bodily harm. The sentence imposed of 21 months, suspended after serving six months for three years, was considered by the then Chief Justice as moderate. It was said that the background to the applicant’s offending was uncommon. He had no prior convictions and the complainant had been his best friend. The complainant and the applicant’s wife had a sexual relationship after a threesome between them. The applicant was resentful, angry and hurt at the relationship. He had taken an overdose of sleeping tablets and remained depressed after discharge from hospital. He invaded the complainant’s home and assaulted him whilst threatening to kill him and choked him until he lost consciousness. The applicant had not reoffended in 18 months since being charged, had obtained employment and had assumed control of his son who was in need of strong parental guidance with beneficial results. The attack was consistent with the applicant’s admission that he was in a rage probably when his judgement was clouded by his then existing depressed state. The period of actual imprisonment was considered short by McKenzie J and reflected a larger discount for factors in the applicant’s favour. The appeal was dismissed.
- [34]The decision of Ross also involved the application of different sentencing principles. He was sentenced to 18 months imprisonment with a parole release date after serving six months. He pleaded guilty to burglary by breaking in the night with violence, in company, while armed and stealing. The offences occurred at 2:00 am. The applicant armed himself with a plastic oar and hit the complainant on the forearm. His co-offender had commenced the assault and kicked the complainant in the testicles. The applicant also picked up a spear gun although did not use it. The complainant was able to remove the intoxicated applicant and his co-offender from his house. He was 26 and had no prior convictions and a good work history. He produced good character references which were to the effect that the offending was an aberration. He offered to play compensation. The discussion in the judgment does not deal with the head sentence. Rather, the argument related to the period to be served in actual custody. That was said to be “by no means excessive”.
- [35]In my view the appropriate head sentence for the appellant’s offending is one of 18 months imprisonment. The appellant’s conduct in choking the complainant was particularly serious. Such conduct is inherently dangerous. The complainant’s face was described as turning purple as a result of the appellant’s assault. The offending was properly described as involving an element of vigilantism. That also means that deterrence is particularly important to the exercise of my discretion.
- [36]Whilst the appellant was cut on the face during the altercation that was not done intentionally by the complainant. He was attacked at a time when he was making dinner and had a knife in his hand as a consequence. Whilst the appellant attended at the hospital in relation to his injury there is no evidence before me that the injury has had any lasting consequences. It was not so serious as to be said to act as a deterrent to the appellant from re-offending because it serves to remind him of his conduct nor did it leave him with some disability or affliction. Accordingly, the injury does not serve in any way the purposes of deterrence or retribution.[10] It is of limited relevant to the exercise of my discretion.
- [37]The appellant’s mental health condition and physical injuries are matters that are relevant to the exercise of my discretion. The appellant’s physical injury in particular is likely to make his time in custody more onerous. He required the use of crutches at the time of his sentence. He has a significant degenerative back condition which requires surgery. Whilst his use of a wheelchair in prison appears to be a voluntary choice of his own and not because of any medical requirement or physical limitation, nonetheless I accept that the condition of his back is a relevant matter to the exercise of my discretion.
- [38]The evidence that has been produced in relation to the appellant’s mental health difficulties is not sufficient for me to make any determination as to the impact of that condition/s on his time in custody. Whilst he appears to have some level of vulnerability, there is no evidence of any diagnosis other than situational crisis and anti-social personality disorder. There is no suggestion he is unable to be treated in a custodial environment.
- [39]The significance of the status of the appellant’s visa is a relevant consideration to sentence. As was said in R v Norris; ex parte Attorney-General[11] “..if the risk of deportation following a sentence to a term of imprisonment greater than 12 months is capable of assessment by the sentencing court, then it may be shown by evidence to be relevant to the sentence in two ways; firstly, it may well mean that the burden of imprisonment will be greater than for someone who faces no risk of deportation; and secondly, in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia.”
- [40]Whilst it is not appropriate to adjust a sentence to defeat, avoid or circumvent the action of some other authority lawfully acting with the limits of a proper discretion, it is appropriate to take into account that the appellant has lived in Australia with all of his family since 2006 and that his visa has been cancelled, so he does face deportation. Those factors mean that a sentence of imprisonment that the appellant must serve is of a greater burden to him than someone not facing deportation.
- [41]Additionally, the real possibility of deportation is relevant to the structure of the sentence. It is appropriate in circumstances where the appellant will not be released on parole for the sentence to be suspended.
- [42]Taking all of these matters into account including that the appellant’s plea of guilty which was entered at the first reasonable opportunity, I would have reduced the period of actual custody that I required the appellant to serve to four months imprisonment.
- [43]Now that the appellant has in fact served more than six months of his sentence I will reduce the head sentence to 12 months imprisonment and order it be suspended after the appellant has served 202 days for an operational period of two years.
Orders
- [44]My orders are:
- Extend time for filing the notice of appeal to 13 May 2020.
- Appeal against conviction dismissed.
- Leave to adduce new evidence is granted.
- Appeal allowed.
- Set aside the sentence imposed in the Magistrates Court on the offence of assault occasioning bodily harm.
- Order that the appellant be imprisoned for a period of 12 months suspended after he has served 202 days for an operational period of two years.
Footnotes
[1]R v Tait [1999] 2 Qd R 667 at [5].
[2] [2004] QCA 241.
[3] [2014] QCA 98.
[4]Justices Act 1886 s 223.
[5]Allesch v Maunz (2000) 203 CLR 172 [22] – [23].
[6]House v The King (1936) 55 CLR 499.
[7] [2004] QCA 241.
[8] [2003] QCA 74.
[9] [2012] QCA 247.
[10]R v Hannigan [2009] 2 Qd R 33; R v Crawford [2020] QCA 68.
[11] [2018] 3 Qd R 420 at 427.