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Ruhland v Commissioner of Police[2020] QDC 265

Ruhland v Commissioner of Police[2020] QDC 265

DISTRICT COURT OF QUEENSLAND

CITATION:

Ruhland v Commissioner of Police [2020] QDC 265

PARTIES:

HENDRIKUS RUHLAND

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO:

836 of 2020

DIVISION:

Criminal

PROCEEDING:

Appeal

DELIVERED ON:

23 October 2020

DELIVERED AT:

District Court of Brisbane

HEARING DATE:

9 October 2020

JUDGE:

Dann DCJ

ORDER:

  1. Appeal is allowed in part.
  2. The decision of Magistrate Daley made 6 March 2020 is varied so that it is declared that the three days spent in pre sentence custody between 3 March 2020 and 5 March 2020 be deemed time already served under the sentence.
  3. The decision of Magistrate Daley made on 6 March 2020 is otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – whether the learned Magistrate’s sentencing discretion was miscarried – whether the learned Magistrate erred in taking into account circumstances that established a separate offence – whether the appellant was sentenced on the basis of his past sexual offences – whether there was a failure to consider and apply the principles in s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) – where the appellant’s pre-sentence custody time was not declared – appeal allowed in part

LEGISLATION:

Criminal Code 1899 (Qld) ss 4, 210, 469

Justices Act 1886 (Qld) ss 222(1), 222(2)(c), 223, 225

Penalties and Sentences Act 1992 (Qld) ss 9(2)(a), 9(2)(a)(i), 9(2A), 159A

Criminal Procedure Act 1986 (NSW) s 33(2)

CASES:

McDonald v Queensland Police Service [2018] 2 Qd R 612, cited

Fox v Percy (2003) 214 CLR 118, cited

Ross v Commissioner of Police [2018] QDC 99, followed

Rongo v Commissioner of Police [2017] QDC 258, cited

Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 91 ALJR 1063, cited

R v Lawley [2007] QCA 243, cited

House v The King (1936) 55 CLR 499, followed

R v Castle; Ex parte Attorney-General (Qld) [2014] QCA 276, cited

R v McConnell [2018] QCA 107, cited

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

Norbis v Norbis (1986) 161 CLR 513, cited

R v Callow [2017] QCA 304, cited

Markarian v The Queen (2005) 228 CLR 357, cited

R v Frith [2017] QCA 143, cited

De Simoni v The Queen (1981) 147 CLR 383, cited

The Queen v D [1996] 1 Qd R 363, cited

R v de Silva [2007] QCA 301, cited

Veen v The Queen (No 2) (1988) 164 CLR 465, followed

Fleming v The Queen [1998] HCA 68, cited

Skorka v Hartley; Skorka v Kurtz [2011] QCA 116, applied

R v Hooper; ex parte Cth DPP [2008] QCA 308, followed

Kentwell v R (2014) 252 CLR 601, followed

COUNSEL:

T A Ryan of Counsel for the appellant

B Scarrabelotti (legal officer) for the respondent

SOLICITORS:

A W Bale & Son Solicitors for the appellant

Office of the Director of Public Prosecutions for the respondent
  1. [1]
    On 6 March 2020, in the Magistrates Court at Brisbane, Mr Ruhland pleaded guilty to one offence of wilful damage pursuant to s 469 of the Criminal Code 1899 (Qld) (‘Code’).  He was sentenced to four months imprisonment with a parole release date of 14 April 2020 after serving five and a half weeks.
  1. [2]
    This is an appeal against the sentence imposed by the learned Magistrate, on the basis that it was excessive. The appellant’s solicitor had submitted before the Magistrate that the appropriate sentence was a fine. As the sentence had been entirely served prior to the appeal being heard, the appellant’s counsel’s submission was that the utility of the appeal lay in the sentence imposed properly reflecting the gravity of the offending.

Nature of the appeal against sentence on a plea of guilty

  1. [3]
    A right of appeal is a creature of statute and the nature of that right depends on the construction of the statute concerned.[1]
  1. [4]
    The right of appeal is conferred by s 222(1) of the Justices Act 1886 (Qld) (‘Justices Act’). As this is an appeal against sentence on a plea of guilty, s 222(2)(c) of the Justices Act applies. It provides that where a defendant pleads guilty, a person may only appeal on the sole ground that a fine, penalty or punishment was excessive or inadequate.
  1. [5]
    Section 223 of the Justices Act provides that the appeal is by way of a rehearing on the original evidence on the record.[2] On such an appeal, the Court is required to conduct a real review of the material before the magistrate and the magistrate’s reasons.[3]  Section 225 empowers a judge to confirm, set aside or vary an appealed order or make any other order considered just. 
  1. [6]
    In Ross v Commissioner of Police,[4] Judge Muir referred to various decisions of this Court at [10] and then set out the principles relevant to an appeal such as this. I agree with her views[5] that the applicable principles are:
  1. (a)
    The crucial question for the Court on this appeal is whether the sentence is excessive;
  1. (b)
    The successful demonstration of error, whilst it may not guarantee success on the appeal, may explain why the sentence was excessive;[6] and
  1. (c)
    If there is a misapplication of principle or an accused has been sentenced by reference to an erroneous understanding of the principles which inform a just sentence, there is no good reason not to correct the error and determine the correct sentence according to law.[7]
  1. [7]
    In R v Lawley,[8] which was an appeal against a sentence (albeit one imposed by the District Court), the Court of Appeal observed that the sentence imposed by the learned sentencing judge involved the exercise of a discretion which the Court may not interfere with unless an error of the kind identified in House v The King[9] has occurred. It is not a sufficient basis for the Court to intervene that the Court might have struck a different balance between the competing considerations which had to be weighted in the exercise of the discretion.[10]
  1. [8]
    Simply having a different opinion about how the discretion should be exercised does not justify a review.[11] In R v Callow at [36],[12] Morrison JA reinforced what Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen:[13]

“Furthermore, there is no one 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 relevant statutory regime.”

  1. [9]
    In referring to Markarian, Boddice J said in R v Frith at [35]:[14]

“In any event, that the sentence imposed on the applicant was higher than imposed in another factual circumstance does not establish manifest excessiveness. A particular fact situation does not support a single correct decision. The sentencing discretion involves an allowance of flexibility in the exercise of that discretion.”

  1. [10]
    In written submissions,[15] the appellant foreshadowed seeking leave to add further grounds to the appeal, which the respondent indicated in written submissions,[16] was not opposed. After raising with both counsel the terms of s 222(2)(c) of the Justices Act, no amended notice of appeal was filed. The matter proceeded on the basis that the various arguments made in the outlines and oral submissions were all made in ultimate support of the ground in s 222(2)(c) of the Justices Act that the sentence was excessive. 

The proceedings before the Magistrate and the sentencing remarks

  1. [11]
    On 6 March 2020, the appellant pleaded guilty in the Brisbane Magistrates Court to one charge of wilful damage that alleged the following:

“On 28 February 2020, at Capalaba in the State of Queensland one Hendrikus Joseph Ruhland wilfully and unlawfully damaged property, namely door of men’s toilet cubicle.”

  1. [12]
    The appellant was sentenced on the basis that he had used a sharpie pen to write the following words on the door of the men’s toilet cubicle at the Capalaba Park Shopping Centre:

“Head today, Friday, the 28th February at library across the road 12:00-12:30 any age.”

  1. [13]
    The prosecutor informed the Court that:
  1. (a)
    Police were alerted to the presence of those words written on the door and the appellant was observed at the male toilet facility at the library across the street.
  1. (b)
    In the course of the investigation of the wilful damage offence, the police ascertained that the defendant was a reportable offender under the Dangerous Prisoners (Sexual Offenders) Act and that he had been so since March 2010 and there was a 10 year reporting obligation on the defendant. It related to earlier sexual offences from the 1980s and 1990s against young children, predominately boys and the acts related to sexual conduct in public toilets.[17]
  1. (c)
    Detectives liaised with the appellant’s case worker from Queensland Corrective Services and that person told them that, whilst the appellant initially denied he was responsible for the graffiti, the appellant made admissions “a few days ago” that he was hoping to engage in sexual acts with male persons of any age in those toilets. The CCTV footage was then reviewed from the shopping centre and it showed the appellant had been there, then on the couch outside the toilet facilities for some time and then he had returned to the toilet cubicle.[18]
  1. (d)
    The appellant had a lengthy criminal history for sexual offences against children, predominantly boys, and that some of those offences occurred in public toilets. The appellant’s criminal history was tendered.[19]
  1. [14]
    The solicitor for the appellant made submissions:
  1. (a)
    As to the appellant’s age and receipt of the aged pension.
  1. (b)
    That he had been released from custody in 2010 and been subject to a supervision order ever since, and it had restricted his ability to work or socialise.
  1. (c)
    That he had spent time in custody since 3 March 2020.
  1. (d)
    He had received threats from others in the watch house because they had seen an ankle bracelet.
  1. (e)
    He had made admissions, ultimately, to his case officer and police.
  1. (f)
    He had no history of property damage.
  1. (g)
    The property damage (being the writing with a pen) could be easily removed with methylated sprits, was removable at little cost and was not extensive.
  1. (h)
    Her instructions were that ‘any age’ did not mean the appellant was seeking to engage in acts with a child.
  1. (i)
    It was not open to the learned Magistrate to impose an actual term of imprisonment in relation to the charge.
  1. (j)
    The appellant had had no offending for a period of seven years from 2013.
  1. (k)
    The Crown was making inquiries to have the matter brought on before the Supreme Court in relation to a warrant which may likely see the appellant returned to custody in any event.
  1. (l)
    The charge being preferred was a wilful damage charge and the circumstances attached to it.
  1. (m)
    Whilst she didn’t disagree with the learned Magistrate’s comments that the Court had to take into account the context of the offence, that needed to be weighed up in light of the other factors she had already made submissions on.
  1. [15]
    It is apparent from the transcript that the matter came on before the learned Magistrate on a busy day and one other matter was interposed during the hearing of the sentence which took, according to the transcript, in the order of 20 minutes. The material is very confined: the transcript of the hearing is only 10 pages. There was no schedule of facts. The Magistrate stood the matter down to consider it.
  1. [16]
    The single page sentencing remarks reveal that the learned Magistrate took into account the following matters:
  1. (a)
    the early plea of guilty;
  1. (b)
    the fact that the appellant had no previous history of wilful damage;
  1. (c)
    the appellant was 74 years old and an aged pensioner;
  1. (d)
    the appellant made admissions to the police and to his supervisor;
  1. (e)
    that the actual wilful damage was writing in pen and could be removed reasonably easily; and
  1. (f)
    the surrounding context for the offence.

The arguments on appeal

  1. [17]
    The appellant put four arguments in support of the appeal:
  1. The exercise of the sentencing discretion miscarried because the learned Magistrate impermissibly took into account circumstances that established a separate offence which did not form part of the offence of which the appellant was convicted.
  1. The exercise of the sentencing discretion miscarried in that the appellant was sentenced on the basis of his past sexual offences.
  1. The exercise of the sentencing discretion miscarried because of a failure to consider and apply the principles in s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) (‘PS Act’).
  1. The exercise of the sentencing discretion miscarried because the appellant’s pre-sentence custody time was not declared under s 159A of the PS Act.
  1. [18]
    I deal with each of the arguments on the appeal.

(1) The exercise of the sentencing discretion miscarried because the learned Magistrate impermissibly took into account circumstances that established a separate offence which did not form part of the offence of which the appellant was convicted

  1. [19]
    The appellant argues that the learned Magistrate failed to apply the principles in De Simoni v The Queen,[20] and The Queen v D,[21] and treated the appellant’s conduct for the charged offence as “much more serious” by reason of the conduct for the uncharged offence of procuring the commission of the offence of an indecent treatment of a minor under s 210 of the Code.[22] In oral submissions, this argument crystallised as an argument that the Magistrate sentenced the appellant for the offence of attempting to procure a child to engage in acts in contravention of s 210 of the Code. This was said to be a breach of the principle that no one should be convicted of an offence of which he has not been convicted.[23] The appellant’s submission was that he should have been sentenced for the act of defacing the toilet, not the content of the words he in fact wrote, which was in fact what had occurred. 
  1. [20]
    The respondent’s submission was that the acts of graffiting the invitation for oral sex with persons of any age and attending the library toilet were too remote to constitute an attempt pursuant to section 4 of the Code. This is because the elements of an ‘attempt’ include that he ‘begins to put the intention into execution by means adopted to its fulfilment’ and this has not occurred. Rather, what had occurred was preparation for an offence, and the appellant’s conduct did not amount to the beginning of the offence of indecent treatment of a child,[24] because there was no child present. Consequently, the respondent submitted there was no failure to comply with De Simoni because the facts taken into consideration at sentence did not establish a separate offence. 
  1. [21]
    The solicitor for the appellant before the learned Magistrate accepted that the Magistrate could have reference to the context of the wilful damage.[25] The context which the Magistrate had canvassed with the solicitor for the appellant was that the appellant was at the toilets and he was a reportable offender.[26] The submissions for the appellant below were, relevantly, that he had no previous history of property damage,[27] the damage was not extensive and was removable at little cost,[28] the appellant had no history of offending for seven years,[29] and the effect of the charge was that it may likely result in the appellant being returned to custody.[30] 
  1. [22]
    The learned Magistrate said the following in the sentencing remarks:

“It is what was written on, and the circumstances attached to it, make this a much more serious charge, because he is actually inviting an invitation to sex for anybody, because he says “of any age”, including children and he has a previous history of dealing with children…

This was reported quite quickly and the police have him actually going over to the toilet where he put his invitation at the time and he was in the toilets…

This is a serious breach, given the circumstances surrounding it: that he actually went to the toilets and was waiting there at the toilets…”

  1. [23]
    It appears from these passages that the learned Magistrate’s reasoning proceeded by way of reference to:
  1. (a)
    The content of the graffiti which is the subject of the wilful damage charge;
  1. (b)
    The location of the graffiti on the door of a public toilet;
  1. (c)
    The fact that the appellant was located by police at the place he had directed the person to by the terms of the graffiti; and
  1. (d)
    The appellant’s criminal history. 
  1. [24]
    It is not apparent from this reasoning that the learned Magistrate has fallen into the error alleged by the appellant. There was, as the respondent points out, no evidence to sustain the elements of the separate offence before the Magistrate for which the appellant contends. Further, it is clear from the observations on the transcript by the Magistrate that the Magistrate specifically stated no reference could be had to uncharged acts (relating to, apparently, other comments which were also on the same toilet)[31] and that the Magistrate was alive to the need to sentence the appellant to the offence with which he was charged and not some other uncharged offence.[32] There is no error shown on this ground.

(2) The exercise of the sentencing discretion miscarried because the learned Magistrate sentenced the appellant to a fresh penalty for past sexual offences 

  1. [25]
    A sentencing judge is permitted to take into account an antecedent criminal history of an offender in determining the sentence to be imposed but it cannot give such weight as to increase a sentence beyond that which is proportionate as to do so would be to impose a fresh penalty for past offences.[33] Further, however, the antecedent criminal history is relevant to whether the instant offence is an uncharacteristic aberration or whether the offender has manifested, in his commission of the offence, a continuing attitude to disobedience to 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 into account the antecedent history when it illuminates the moral culpability of the offender or shows dangerous propensity or a need to deter the offender or other offenders from committing further offences of a like kind.[34]
  1. [26]
    The learned Magistrate received a copy of the appellant’s criminal history and the offences which she regarded as important in terms of antecedents are set out in the decision. They include convictions a decade apart for indecent dealing with a boy under 14[35], breaching a supervision order, maintaining an unlawful relationship with a child, and breaches of the supervision order and a suspended term of imprisonment.
  1. [27]
    It is apparent from her reasons that she regarded these offences as demonstrating a continuing attitude to disobedience to the law, the appellant’s dangerous propensity and that deterrence and protection of society were present in her mind. Her reasons record that the comment which constitutes the wilful damage is an invitation to sex for anybody including children and, as a matter of fact, the police actually found the appellant in the toilets the subject of the comment within the timeframe specified in the comment. That is a permissible use of the antecedent criminal history and the factual matrix around the offending.
  1. [28]
    The learned Magistrate did not err in the sentence she imposed below by imposing a fresh penalty for the past sexual offences of the appellant.

(3) The exercise of the sentencing discretion miscarried because of the failure to consider and apply the principles in s 9(2)(a) PS Act

  1. [29]
    Before the learned Magistrate, the defence contended (without authorities) that it was not open to impose a term of actual imprisonment for the offending whilst the prosecution’s submission (again without authorities) was for a sentence of actual imprisonment with actual time and submitted for a sentence of four months to do six weeks.
  1. [30]
    The transcript reveals that neither party nor the learned Magistrate referred to s 9(2)(a) of the PS Act at any stage of the sentence hearing or the decision.
  1. [31]
    The appellant referred the Court in oral argument to the following statement in Fleming v The Queen:[36]

“… if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. … The other possibility is that the principle was not applied, with the result that, … there has been an error of law … unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded.”

  1. [32]
    That statement is made in relation to s 33(2) of the Criminal Procedure Act 1986 (NSW) which provided that when a judge was conducting a criminal trial as a judge alone trial, a judgment must include the principles of law applied by the judge and the findings of fact on which the judge relied.[37] As the observation has arisen in the context of that specific statutory framework, I am not persuaded that it is directly of assistance to this case.
  1. [33]
    Plainly, however, s 9(2)(a) of the PS Act contains a relevant sentencing principle, which is, that a sentence of imprisonment should be imposed only as a last resort and a sentence that allows the offender to stay in the community is preferable.[38] Where it applies, it may be accepted that reasonable judicial minds may differ in determining whether a sentence of imprisonment is required as a last resort.[39] The principle applied in this case because the offence the appellant pleaded to was not an offence within the ambit of s 9(2A) of the PS Act.
  1. [34]
    The relevant part of the decision under appeal is as follows:

“This is a serious breach, given the circumstances surrounding it; that he actually went to the toilets and was waiting there at the toilets. So I am giving him a term of imprisonment …”[40]

  1. [35]
    Where the sentence has been given ex tempore, some imprecision of language in those circumstances may be regarded as of less significance than otherwise.[41] 
  1. [36]
    However, here, the gravamen of the learned Magistrate’s statement concerns the seriousness of the particular offence. There is no consideration given to the fact the offence is a property offence and, therefore, one where the PS Act provides as a principle that a sentence of imprisonment is a sentence of last resort.[42]
  1. [37]
    Given the fact s 9(2)(a)(i) of the PS Act has not been adverted to at any stage of the submissions or the decision and the brevity of the sentencing remarks overall, I find that it is not apparent s 9(2)(a) of the PS Act was considered by the learned Magistrate. As such, there is an error which may go to the exercise of the sentencing discretion and whether the sentence was excessive within the meaning of s 222(2)(c) of the Justices Act.

(4) The exercise of the sentencing discretion miscarried because of the failure to declare time spent in presentence custody

  1. [38]
    The Crown conceded that the learned Magistrate erred in failing to declare the three days the appellant had served in pre-sentence custody. The transcript of the hearing reveals that the Magistrate was advised by the solicitor appearing for the appellant that “he had spent since 3 March in custody” but no pre-sentence custody certificate was provided to the Magistrate and no submission was made to the Magistrate that the time was to be declared pursuant to s 159A of the PS Act.
  1. [39]
    The dispute between the parties in oral submissions was whether, assuming this was the only error, this necessitated the re-exercise of the sentencing discretion or, rather, was a matter which should be corrected. As I am proceeding to re-exercise the discretion in any case, I will take this into account in the re-exercise of the discretion.

Re exercise of the discretion

  1. [40]
    Having identified error, it is my duty to resentence unless, in the separate and independent exercise of my discretion, I conclude that no different sentence should be passed.[43] If, in the independent exercise of my discretion I conclude the same or a greater sentence is the appropriate sentence, I am not required to resentence.[44]
  1. [41]
    The appellant provided the Court with the decision of Duffy v Police,[45] a decision of Richards DCJ, which was an appeal against a sentence for one count of wilful damage under the Corrective Services Act. The offender there was a sentenced prisoner, who had marked graffiti in black marker on the wall of her cell at the Brisbane Womens’ Correctional Centre. The content of the graffiti is not identified. The damage was $300 for cleaning and repainting. The Crown conceded the sentence was manifestly excessive in the circumstances. There was a plea of guilty. The offender suffered from a genetic disorder with consequent significant behavioural and emotional problems: indeed she was noted as having borderline intellectual functioning. She was unlikely to get parole because of various matters including those matters. She had been seeing a psychologist in goal on a regular basis, was medication compliant and had been trying to do programmes offered to her. Richards DCJ set aside the sentence of six months imprisonment cumulative on her existing prison sentence for offending which her Honour noted “could only be described as minor” and sentenced her to six weeks imprisonment concurrent with the existing term of her imprisonment. The facts of this case, particularly the attributes of the defendant identified in the sentence remarks and the concession of the Crown to the appeal, mean that is cannot be considered a comparable case.
  1. [42]
    The Crown provided the Court with two instances of sentences for wilful damage, not on the basis that either authority was comparable, but as illustrations to demonstrate that there are examples of significant sentences of imprisonment being imposed for offences involving wilful damage and there is a broad range of penalty possible. I have read each of the sentencing remarks of R v Chapman of Everson DCJ on 14 January 2013 on Indictment 475 of 2012 and sentencing remarks of R v Watson of Lynham DCJ on 13 February 2019 on Indictment 466 of 2018. Whilst sentences of imprisonment of six months cumulative on an existing sentence and 14 months with a parole release date after four months were imposed respectively, the facts of each are very far removed from the matters involved here to serve any particular purpose of analysis. They demonstrate no more than that there can be significant periods of imprisonment for the offence of wilful damage depending on the facts of the matter.   
  1. [43]
    The appellant in this case was to be sentenced for the offence of wilful damage. The elements of the offence are wilfully and unlawfully damaging property.
  1. [44]
    The specific mechanisms of the conduct was writing on a toilet door with a sharpie pen, causing minimal damage. These facts are at the lower end of the scale of offending. The damage caused to the toilet would not have taken much expense to rectify, because the graffiti could be removed or painted over with relative ease and minimal expense.[46]
  1. [45]
    However, the matter cannot stand in such a simply put way, because context is relevant as was conceded by the solicitor for the appellant below. The facts show the existence of a potentially significant risk to children. Not only was the comment an invitation to participate in sex with the appellant, its terms (by the words “any age”) suggest that this could have involved children, had there been any who had responded to the comment. Further, the appellant was at the nominated location during the time proposed in the writing and that place was a library, which is a place where children may well be located (although there was no evidence before the Magistrate or me of any children being present). There is, however, an inference arising from these facts that the appellant was hoping by the making of the graffiti, to have a sexual encounter and that sexual encounter may have involved a child. This inference has then to be assessed in its context.
  1. [46]
    The appellant was on a supervision order in relation to sexual offending against children and he had a criminal history for sex offending against children. These matters were relevant to his character generally, that is, his attitude of disobedience to the law, which made the matter more serious generally in that regard. They were also factors relevant to the risk associated with the particular offending. There was also the evidence of his admission that he was hoping to engage in sexual acts with male persons,[47] although there was a dispute as to whether those acts would involve children.[48] Putting this dispute to one side, there is still, by reason of the actual words used, a risk of harm to children. The appellant’s solicitor before the learned Magistrate accepted that it was more serious than a tagging of some sort of nature of graffiti.[49] Balanced against that is the appellant’s early plea of guilty.
  1. [47]
    The maximum penalty for the offence was imprisonment for five years.[50]
  1. [48]
    The purposes for which a sentence may be imposed are those contained in s 9(1) of the PS Act. In this case, factors of general deterrence and specific deterrence are relevant, as are denunciation of the conduct and protection of the Queensland community from the offender, being the appellant. The appellant submitted before me that, by reason of the commission of the offence, the appellant was liable to be dealt with by the Supreme Court for breach of the supervision order pursuant to section 43AA of the Dangerous Prisoners (Sexual Offenders) Act 2003.[51] Accepting that this is so, that does not detract from my role to sentence the appellant for the offence he committed.
  1. [49]
    This was a matter where, if express consideration had been given to s 9(2)(a) of the PS Act, in my view, it was open to the learned Magistrate to conclude that a sentence of imprisonment should be considered. This is because of the nature of the offence the appellant was charged with, the surrounding context, including the location of the appellant at the toilets in the library during the time his graffiti said he would be there, that the appellant was subject to a supervision order at the time he committed the offence and the appellant’s criminal history involving significant sexual offending against children.
  1. [50]
    It follows that I am not persuaded that the learned Magistrate made any error in the exercise of her discretion when determining the period of imprisonment or general approach to the parole release date for the appellant in this case which rendered the sentence excessive.
  1. [51]
    The Crown conceded that three days spent in pre-sentence custody were declarable. As already noted, however, the sentence has been served. The appeal should be allowed on the limited basis that the learned Magistrate should have declared pursuant to s 159A of the PS Act the time already served.
  1. [52]
    I have the power in section 225 of the Justices Act to vary the order below and I will do so to this limited extent. Otherwise, in my view, the sentence was within the range open to the learned Magistrate and was, in fact, appropriate in the circumstances of this particular case.

Orders

  1. [53]
    The following order is made:
  1. The appeal is allowed in part.
  1. The decision of Magistrate Daley made 6 March 2020 is varied so that it is declared that the three days spent in pre sentence custody between 3 March 2020 and 5 March 2020 be deemed time already served under the sentence.
  1. The decision of Magistrate Daley made on 6 March 2020 is otherwise confirmed.

Footnotes

[1]McDonald v Queensland Police Service [2018] 2 Qd R 612 per Bowskill J at [9] with reference to Fox v Percy (2003) 214 CLR 118 at [20].

[2]McDonald v Queensland Police Service [2018] 2 Qd R 612. There is a further power to give leave to adduce new evidence in s 223(2) of the Justices Act but that does not arise here.

[3]McDonald v Queensland Police Service [2018] 2 Qd R 612 per Bowskill J at [47].

[4][2018] QDC 99.

[5]Ross v Commissioner of Police [2018] QDC 99 at [10]-[14].

[6]Rongo v Commissioner of Police [2017] QDC 258 at [23]-[24] per Devereaux SC DCJ (as is Honour the Chief Judge then was).

[7]Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 91 ALJR 1063 at 1074-1075.

[8][2007] QCA 243.

[9](1936) 55 CLR 499 at 504-505.

[10]R v Lawley [2007] QCA 243 at [18] per Keane JA (As His Honour then was) Williams JA and Mullins J (As her Honour then was) concurring; see also R v Castle; Ex parte Attorney-General (Qld) [2014] QCA 276 at [20]; R v McConnell [2018] QCA 107

at [15] per Fraser JA. Sofronoff P and Philippides JA concurring.

[11]Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, at 176–178; Norbis v Norbis (1986) 161 CLR 513, [517]-[519].

[12][2017] QCA 304.

[13](2005) 228 CLR 357 at 371.

[14][2017] QCA 143.

[15]Appellant’s outline of submissions at [8].

[16]Respondent’s outline of submissions at [3].

[17]Transcript of hearing day 1, page 4, lines 13-19.

[18]Transcript of hearing day 1, page 4, lines 33- 43.

[19]Transcript of hearing day 1, page 6, line 22.

[20](1981) 147 CLR 383.

[21][1996] 1 Qd R 363.

[22]Appellant’s submissions at [15].

[23]De Simoni v The Queen (1981) 147 CLR 383 at 389 per Gibbs CJ.

[24]Relying on a passage in R v de Silva [2007] QCA 301 at [21].

[25]Transcript day 1, page 10, line 18.

[26]Transcript day 1, page 8, lines 22-25.

[27]Transcript day 1, page 7, lines 17 and 20-21.

[28]Transcript day 1, page 8, lines 10-11 and 21-23.

[29]Transcript day 1, page 9, lines 37-38 and 20.

[30]Transcript day 1, page 9, lines 39-42.

[31]Transcript day 1, page 8, lines 32-41.

[32]Transcript day 1, page 5, line 34.

[33]Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 per Mason CJ, Brennan, Dawson and Toohey JJ.

[34]Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 per Mason CJ, Brennan, Dawson and Toohey JJ.

[35]It is apparent from the criminal history that, in respect of some of these offences in 1988, the appellant was sentenced to six and a half years imprisonment and in respect of some of the later offences, the appellant was sentenced to 13.5

years imprisonment. This level of sentence suggests the offending which gave rise to the supervision order was very serious.

[36][1998] HCA 68 at [30] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ.

[37]The provision is set out in full at [23] of the Court’s decision.

[38]Skorka v Hartley; Skorka v Kurtz [2011] QCA 116 at [42].

[39]Skorka v Hartley; Skorka v Kurtz [2011] QCA 116 at [43].

[40]Transcript of decision page 2, lines 37-39.

[41]R v Hooper; ex parte Cth DPP [2008] QCA 308 at [23] per Mackenzie AJA, Cullinane and Jones JJ concurring.

[42]Section 9(2)(a)(i) Penalties and Sentences Act 1992 (Qld).

[43]Kentwell v R (2014) 252 CLR 601 at 615 per French CJ, Hayne, Bell and Keane JJ. 

[44]Kentwell v R (2014) 252 CLR 601 at 615 per French CJ, Hayne, Bell and Keane JJ. 

[45][2009] QDC 296.

[46]There was no actual evidence of the cost to remove the graffiti.

[47]Transcript day 1, page 4, lines 37-38.

[48]Transcript day 1, page 7, lines 19-21, and 45-47.

[49]Transcript day 1, page 9, lines 1-3.

[50]Section 469(1) Criminal Code 1899 (Qld).

[51]On 6 March 2020, the Supreme Court made a declaration that the supervision order the appellant was subject to was extended to 10 May 2020. This arose out of matters arising prior to the offence the subject of this appeal:Attorney

-General for the State of Queensland v Ruhland [2020] QSC 33 at [8]. 

Close

Editorial Notes

  • Published Case Name:

    Ruhland v Commissioner of Police

  • Shortened Case Name:

    Ruhland v Commissioner of Police

  • MNC:

    [2020] QDC 265

  • Court:

    QDC

  • Judge(s):

    Dann DCJ

  • Date:

    23 Oct 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated (1981) 148 C.L.R 170
2 citations
Jump To
Cite 1 - (1981) 148 C.L.R 170
Cite 2 - (1981) 148 C.L.R 170
Attorney-General v Ruhland(2020) 3 QR 449; [2020] QSC 33
1 citation
Jump To
Cite 1 - [2020] QSC 33
Duffy v Police [2009] QDC 296
1 citation
Jump To
Cite 1 - [2009] QDC 296
Fleming v The Queen [1998] HCA 68
2 citations
Jump To
Cite 1 - [1998] HCA 68
Cite 2 - [1998] HCA 68
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Kentwell v The Queen (2014) 252 CLR 601
3 citations
Jump To
Cite 1 - (2014) 252 CLR 601
Cite 2 - (2014) 252 CLR 601
Cite 3 - (2014) 252 CLR 601
Markarian v The Queen (2005) 228 CLR 357
2 citations
Jump To
Cite 1 - (2005) 228 CLR 357
Cite 2 - (2005) 228 CLR 357
McDonald v Queensland Police Service[2018] 2 Qd R 612; [2017] QCA 255
4 citations
Jump To
Cite 1 - [2018] 2 Qd R 612
Cite 2 - [2018] 2 Qd R 612
Cite 3 - [2018] 2 Qd R 612
Cite 4 - [2018] 2 Qd R 612
Norbis v Norbis (1986) 161 C.L.R., 513
2 citations
Jump To
Cite 1 - (1986) 161 C.L.R., 513
Cite 2 - (1986) 161 C.L.R., 513
Public Prosecutions (Vic) v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063
2 citations
Jump To
Cite 1 - (2017) 91 ALJR 1063
Cite 2 - (2017) 91 ALJR 1063
R v Callow [2017] QCA 304
2 citations
Jump To
Cite 1 - [2017] QCA 304
Cite 2 - [2017] QCA 304
R v Castle; ex parte Attorney-General [2014] QCA 276
2 citations
Jump To
Cite 1 - [2014] QCA 276
Cite 2 - [2014] QCA 276
R v D [1996] 1 Qd R 363
2 citations
Jump To
Cite 1 - [1996] 1 Qd R 363
Cite 2 - [1996] 1 Qd R 363
R v De Silva [2007] QCA 301
2 citations
Jump To
Cite 1 - [2007] QCA 301
Cite 2 - [2007] QCA 301
R v De Simoni (1981) 147 C.L.R., 383
3 citations
Jump To
Cite 1 - (1981) 147 C.L.R., 383
Cite 2 - (1981) 147 C.L.R., 383
Cite 3 - (1981) 147 C.L.R., 383
R v Frith [2017] QCA 143
2 citations
Jump To
Cite 1 - [2017] QCA 143
Cite 2 - [2017] QCA 143
R v Hooper; ex parte Director of Public Prosecutions (Cth) [2008] QCA 308
2 citations
Jump To
Cite 1 - [2008] QCA 308
Cite 2 - [2008] QCA 308
R v Lawley [2007] QCA 243
3 citations
Jump To
Cite 1 - [2007] QCA 243
Cite 2 - [2007] QCA 243
Cite 3 - [2007] QCA 243
R v McConnell [2018] QCA 107
2 citations
Jump To
Cite 1 - [2018] QCA 107
Cite 2 - [2018] QCA 107
Rongo v Commissioner of Police [2017] QDC 258
2 citations
Jump To
Cite 1 - [2017] QDC 258
Cite 2 - [2017] QDC 258
Ross v Commissioner of Police [2018] QDC 99
3 citations
Jump To
Cite 1 - [2018] QDC 99
Cite 2 - [2018] QDC 99
Cite 3 - [2018] QDC 99
Skorka v Hartley [2011] QCA 116
3 citations
Jump To
Cite 1 - [2011] QCA 116
Cite 2 - [2011] QCA 116
Cite 3 - [2011] QCA 116
Veen v The Queen [No 2] (1988) 164 CLR 465
3 citations
Jump To
Cite 1 - (1988) 164 CLR 465
Cite 2 - (1988) 164 CLR 465
Cite 3 - (1988) 164 CLR 465

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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