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Selesele v Commissioner of Police[2020] QDC 342

Selesele v Commissioner of Police[2020] QDC 342

DISTRICT COURT OF QUEENSLAND

CITATION:

Selesele v Commissioner of Police [2020] QDC 342

PARTIES:

ALEXANDA SELESELE

(Appellant)

v

COMMISSIONER OF POLICE

(Respondent)

FILE NO/S:

2165 of 20

DIVISION:

Appellate

PROCEEDING:

Appeal against sentence 

ORIGINATING COURT:

Richlands Magistrates Court

DELIVERED ON:

28 October 2020 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

28 October 2020

JUDGE:

Dearden DCJ

ORDER:

  1. The notice of appeal filed by the appellant on 29 July 2020 be amended to include the grounds of appeal referred to in paragraph 1 of the appellant’s outline of submissions (exhibit 1).
  2. The appeal be allowed.
  3. Set aside the sentence of nine months imposed in respect of the charge of assault occasioning bodily harm, imposed at Richlands Magistrates Court on 29 July 2020.
  4. Resentence the appellant to two years probation, subject to the conditions of Penalties and Sentences Act s. 93.  The appellant must report to the probation and parole office at Inala Probation Office within two business days.
  5. Set aside the order that the three months suspended sentence imposed on 21 December 2018 for disqualified driving be served cumulatively, and order that it be served concurrently with all other sentences.
  6. Fix a parole release date at 28 October 2020.
  7. Declare, pursuant to Penalties and Sentences Act s. 159A, that the time served between 29 July 2020 and 4 August 2020, being six days, be declared as time served in respect of all sentences of imprisonment.
  8. Otherwise, confirm the sentences imposed at Richlands Magistrates Court on 29 July 2020.
  9. The respondent is to pay the appellant’s costs of the appeal in the amount of $1800.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – WHETHER ERRORS ESTABLISHED – Whether the sentence was manifestly excessive – Whether the learned magistrate erred by ordering the activated suspended sentence be served upon the term of imprisonment imposed for the offence of disqualified driving – Whether the learned magistrate erred by impermissibly taking into account that the appellant had never held a driver licence when it was not charged as a circumstance of aggravation – Whether the learned magistrate placed insufficient weight on the personal circumstances of the appellant – Whether the learned magistrate placed undue weight on the principle of general deterrence in respect of violent offending

LEGISLATION:

Justices Act 1886 (Qld) ss 222, 223

Penalties and Sentences Act 1992 (Qld) ss 9, 93, 147(1)(b), 159A

Police Powers and Responsibilities Act 2000 (Qld) s. 791(2))

CASES:

McDonald v Queensland Police Service [2017] QCA 255

Forrest v Commissioner of Police [2017] QCA 132

R v Chard; ex parte Attorney-General [2004] QCA 372

R v Amituanai [1995] 78 A Crim R 588; [1995] QCA 80

Motteram v Toohey [2010] QDC 180

Dempsey v Commissioner of Police [2010] QDC 155

Payne v Commissioner of Police [2015] QDC 294

COUNSEL:

JP Feely for the appellant 

N Kljaic for the respondent

SOLICITORS:

Cridland Hua for the appellant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    This is an appeal against sentences imposed by the learned magistrate at Richlands Magistrates Court on 29 July 2020 in respect of the appellant, Alexanda Selesele, in relation to the following offences:–
  1. (1)
    Assault occasioning bodily harm (18/7/2019);
  1. (2)
    Driving of a motor vehicle without a driver licence – disqualified by court order (7/1/2020).
  1. [2]
    The sentence imposed was as follows:–
  1. (1)
    Assault occasioning bodily harm – convicted and sentenced to nine months imprisonment;
  1. (2)
    Disqualified driving – convicted and sentenced to six months imprisonment;
  2. (3)
    Suspended sentence of three months imposed on 21 December 2018 activated in full, to be served cumulatively on the sentence for disqualified driving;
  3. (4)
    Disqualified from holding or obtaining a driver licence for three years;
  4. (5)
    Compensation (for the complainant in the assault occasioning bodily harm charge) ordered in the amount of $657.80, referred to SPER;
  5. (6)
    Parole release date fixed at 29 October 2020.

Grounds

  1. [3]
    The appellant’s notice of appeal sets out a single ground of appeal, namely:–
  1. (1)
    The sentence was manifestly excessive in all the circumstances.
  1. [4]
    The appellant seeks leave to add the following additional grounds of appeal, namely:
  1. (2)
    The learned magistrate erred by ordering the activated suspended sentence be served upon the term of imprisonment imposed for the offence of disqualified driving;
  2. (3)
    The learned magistrate erred by impermissibly taking into account that the appellant had never held a driver licence when it was not charged as a circumstance of aggravation;
  3. (4)
    The learned magistrate placed insufficient weight on the personal circumstances of the appellant;
  4. (5)
    The learned magistrate placed undue weight on the principle of general deterrence in respect of violent offending.  (Exhibit 1, para 1).
  1. [5]
    The respondent does not oppose leave being granted, is not taken by surprise and, accordingly, leave is granted to add the additional four grounds of appeal.

The law – appeals

  1. [6]
    This is an appeal pursuant to Justices Act 1886 (Qld) (‘Justices Act’), s. 222, and proceeds by way of a rehearing (Justices Act s. 223).
  1. [7]
    In McDonald v Queensland Police Service [2017] QCA 255, [47], Bowskill J stated:

It is well established that, on an appeal under [Justices Act] s. 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.  Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.  [Citations deleted.]

  1. [8]
    In Forrest v Commissioner of Police [2017] QCA 132, p. 4, Sofronoff P stated:–

...an appellant court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case.

Background

  1. [9]
    In respect of the assault occasioning bodily harm charge, the appellant and his partner attended a shop at Redbank Plaza Shopping Centre in respect of the repair of an electronic device. There was a conversation and, without warning, the appellant struck the complainant employee to the side of the head causing him to fall to the ground, hitting his head on a plaster wall, leaving hair lodged in the wall. The complainant suffered pain to his jaw, head, neck and shoulder area, and required an x-ray and other hospital treatment, costing $657.80 which, apparently, was not able to be bulk-bulled (affidavit of Tania-Maree Richardson affirmed 9 October 2020, exhibit A, sentence submissions t.1-2-t.1-4).
  1. [10]
    In respect of the disqualified driving charge, the appellant was intercepted on 7 January 2020 in Rudd Street, Inala, driving a red Jeep Cherokee, on way to Oxley Train Station to pick up his then pregnant partner. The defendant had been disqualified on 21 December 2018 (incorrectly noted in the transcript as 2019) for three years, operable to 21 December 2021 (affidavit of Tania-Maree Richardson affirmed 9 October 2020, exhibit A, sentence submissions t.1-4).
  1. [11]
    Relevantly, the appellant’s traffic history (sentence exhibit 3) revealed the following:–

Date

Charges

Result

  1. (a)
     

8/2/2018

Unlicensed drive

(14/1/2018)

Fined $800

Disqualified three months

  1. (b)
     

16/5/2018

Disqualified drive

Fined $700

Disqualified two years

  1. (c)
     

21/12/2018

Disqualified drive

Convicted and sentenced to three

months imprisonment

Disqualified three years

  1. [12]
    The only matter on the appellant’s criminal history (sentence exhibit 2) was a charge of contravene direction or requirement (Police Powers and Responsibilities Act 2000 (Qld) s. 791(2)) from 14 January 2018, for which he was fined $800, with a conviction recorded, on 8 February 2018 (at the same time that he was dealt with for the offence of unlicensed drive indicated above on his traffic history).
  1. [13]
    The submissions on sentence by the appellant’s counsel noted, among other things:–
  1. (a)
    the appellant was 23;
  1. (b)
    had been in a relationship for five years;
  1. (c)
    his pregnant partner was due to give birth in August 2020;
  1. (d)
    he had a grade 12 education;
  1. (e)
    he had commenced (but not completed) a Diploma of Business;
  1. (f)
    he had a work history which included working in warehousing and for a logistics firm;
  1. (g)
    as at the date of sentence, he had completed three-quarters of a Diploma of Youth Work.  (Affidavit of Tania-Maree Richardson affirmed 9 October 2020, exhibit A, sentencing submissions 1-7).
  1. [14]
    In respect of the assault occasioning bodily harm charge, the appellant’s counsel submitted that the facts included that the appellant’s partner’s new iPad had had a cracked screen, had been taken in for repair and $258 paid in advance, there was then an argument with an employee of the shop about the failure to provide the repaired iPad; the appellant had then overreacted and punched the complainant (affidavit of Tania-Maree Richardson affirmed 9 October 2020, exhibit A, sentencing submissions t.1-7, l 8).
  1. [15]
    In respect of the disqualified driving charge, the appellant’s counsel submissions included that the appellant’s partner had finished work early; she had stomach pains in early pregnancy; was on way to her general practitioner; her father was unable to pick her up at the Oxley Train Station as originally arranged; the appellant made the “silly decision” to drive to collect her, although then currently disqualified (affidavit of Tania-Maree Richardson affirmed 9 October 2020, exhibit A, sentencing submissions t.1-9).
  1. [16]
    A notice of appeal was filed on 29 July 2020 and appeal bail was granted by Rinaudo DCJ on 4 August 2020 after the appellant had spent six days in custody.

Discussion

  1. [17]
    Ground 2 – The learned magistrate erred by ordering the activated suspended sentence be served upon the term of imprisonment for the offence of disqualified driving.
  1. [18]
    The learned magistrate sentenced the defendant, in respect of the disqualified driving charge, and the breach of suspended sentence in respect of a previous disqualified driving charge, as follows:–

In the first part, for the disqualified driving charge, you are sentenced to six months imprisonment and you are disqualified from holding or obtaining a driver licence for a further three years.  I activate the wholly suspended term which was imposed on the 21st of December 2018.  It is just to do so.  It is the same offence, whilst disqualified.  You never had a licence.  That is three months.  That will be cumulative.  That makes a head sentence of nine months.  And your parole release date is going to be the 29th of October 2020.

(Affidavit of Tania-Maree Richardson affirmed 9 October 2020, exhibit A, decision t5, ll 29-35).

  1. [19]
    The appellant submits (exhibit 1, paras 10-12) and the respondent concedes (exhibit 2, para 9) that an order requiring the suspended term be served at the expiration of the sentence imposed in respect of disqualified driving, is an error of law, relying on the decision of R v Chard;  ex parte Attorney-General [2004] QCA 372, [7] per Williams J.
  1. [20]
    It follows that the appellant falls to be resentenced in respect of the disqualified drive charge, and the activated suspended sentence.
  1. [21]
    With respect, although it was not unjust to order the appellant serve the whole of the three months suspended sentence imposed on 21 December 2018, given that the appellant had committed the further disqualified driving offence only seven months later (Penalties and Sentences Act 1992 (Qld) (‘Penalties and Sentences Act’) s. 147(1)(b)), there was, in my view, absolutely no basis to make the six month sentence cumulative on the activated suspended sentence of three months.  That was, in my view, clearly a sentencing error, which resulted in a sentence that was overall manifestly excessive.  The activated three months sentence from 21 December 2018 should be served concurrently with the sentence of six months imposed in respect of this appeal for disqualified driving arising from the events of 7 January 2020.
  1. [22]
    In the circumstances, it therefore becomes unnecessary to consider ground 3.

Grounds 1, 4 and 5

  1. [23]
    Ground 1 – The sentence was manifestly excessive in all the circumstances.
  1. [24]
    Ground 4 – The learned magistrate placed insufficient weight on the personal circumstances of the appellant.
  1. [25]
    Ground 5 – The learned magistrate placed undue weight on the principle of general deterrence in respect of violent offending.
  1. [26]
    These three grounds of appeal can all conveniently be dealt with collectively.
  1. [27]
    In sentencing the appellant for the assault occasioning bodily harm count, the learned magistrate said:

As for the assault occasioning bodily harm, taking into account the injuries, which do not seem significant when having read the statements, but still there was significant force involved and the complainant had some ongoing fear about you returning and committing a similar act, I think a term of imprisonment of nine months is also appropriate to deter others, in particular, from this kind of offending.

(Affidavit of Tania-Maree Richardson affirmed 9 October 2020, exhibit A, decision p.5, ll 37-41).

  1. [28]
    In my view, the learned magistrate, without considering (and ruling out) alternative sentences, imposed a substantial prison term for a young offender, with no relevant criminal history, a good education and good work history, who is about to become a first-time father, and required him to serve three months of actual custody. Again, with respect, such a sentence clearly demonstrates a significantly undue weight on general deterrence, without appropriate consideration for the other relevant provisions of the Penalties and Sentences Act s. 9(1), noting, of course, that due effect always has to be given to Penalties and Sentences Act s. 9(2A), which provides that imprisonment is not a sentence of last resort for an offence of violence).
  1. [29]
    The injuries sustained by the complainant in respect of the assault occasioning bodily harm were, the learned magistrate noted, relatively minor, which is always a matter relevant to sentence (see R v Amituanai [1995] 78 A Crim R 588;  [1995] QCA 80).
  1. [30]
    There are, in my view, a wide range of penalties available for first-time violent offenders throwing a single punch, causing bodily harm, but with relatively minor injuries, and to impose a nine month jail sentence, with three months of actual custody to serve, in those circumstances is, I consider, clearly manifestly excessive, and bespeaks sentencing error. Whether that error was by failing to impose a proportionate sentence, by placing undue weight on general deterrence, by placing too little weight on the appellant’s personal circumstances and antecedents, or for that matter by impermissibly fettering his sentencing discretion in moving immediately to a consideration of a custodial sentence without consideration of the other alternatives, is a moot point. In my view, error has been demonstrated.
  1. [31]
    The decisions referred to by Mr Feely on behalf of the appellant are single judge appeal decisions of this court. They are, of course, not binding, but of significant assistance in the appeal before me today. Those decisions include Motteram v Toohey [2010] QDC 180;  Dempsey v Commissioner of Police [2010] QDC 155 (where a sentence of two years probation with conviction recorded was upheld on appeal);  and Payne v Commissioner of Police [2015] QDC 294, [19] where Robertson DCJ identifies the impermissible fettering of discretion, when a sentencing magistrate declined to consider a community based order in the circumstances of that case.
  1. [32]
    With respect, the learned magistrate’s sentencing remarks indicate that other sentencing alternatives (including community based orders) apparently received no consideration, and the learned magistrate moved immediately to the imposition of a nine months prison sentence, which rather curiously paralleled the erroneous construction, or impermissible combination, of the disqualified drive sentence of six months and the activated three months suspended sentence for the appellant’s previous disqualified driving conviction. I have no hesitation, then, in concluding that the learned magistrate fell into error, through one or more of the mechanisms that I previously outlined.
  1. [33]
    Clearly, the custodial sentence should be set aside, and an alternative sentence imposed in respect of the assault occasioning bodily harm charge. Mr Feely, for the appellant contends for a lengthy probation order to continue well past the parole order, for which he contends on the effective six month sentence in respect of the disqualified driving.

Conclusion

  1. [34]
    In my view, such a sentence is well calibrated both to the nature and circumstances of the assault, as well as the circumstances of the appellant, and still sends the appropriate messages of both general and personal deterrence, recognises the personal antecedents of the appellant, in particular, the lack of relevant criminal history, and the various other matters that I have outlined above.
  1. [35]
    It follows that the appeal should be granted and the appellant resentenced. Mr Feely has provided a draft, but as will become obvious, the draft will be followed only in part and I will outline the resentence as I see it in the circumstances.

Orders

  1. [36]
    I make the following orders:–
  1. (1)
    The notice of appeal filed by the appellant on 29 July 2020 be amended to include the grounds of appeal referred to in paragraph 1 of the appellant’s outline of submissions (exhibit 1).
  2. (2)
    The appeal be allowed.
  3. (3)
    Set aside the sentence of nine months imposed in respect of the charge of assault occasioning bodily harm, imposed at Richlands Magistrates Court on 29 July 2020.
  4. (4)
    Resentence the appellant to two years probation, subject to the conditions of Penalties and Sentences Act s. 93.  The appellant must report to the probation and parole office at Inala Probation Office within two business days.
  5. (5)
    Set aside the order that the three months suspended sentence imposed on 21 December 2018 for disqualified driving be served cumulatively, and order that it be served concurrently with all other sentences.
  6. (6)
    Fix a parole release date at 28 October 2020.
  7. (7)
    Declare, pursuant to Penalties and Sentences Act s. 159A, that the time served between 29 July 2020 and 4 August 2020, being six days, be declared as time served in respect of all sentences of imprisonment.
  8. (8)
    Otherwise, confirm the sentences imposed at Richlands Magistrates Court on 29 July 2020.
  9. (9)
    The respondent is to pay the appellant’s costs of the appeal in the amount of $1800.
Close

Editorial Notes

  • Published Case Name:

    Selesele v Commissioner of Police

  • Shortened Case Name:

    Selesele v Commissioner of Police

  • MNC:

    [2020] QDC 342

  • Court:

    QDC

  • Judge(s):

    Dearden DCJ

  • Date:

    28 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
Dempsey v Commissioner of Police [2010] QDC 155
2 citations
Jump To
Cite 1 - [2010] QDC 155
Cite 2 - [2010] QDC 155
Forrest v Commissioner of Police [2017] QCA 132
2 citations
Jump To
Cite 1 - [2017] QCA 132
Cite 2 - [2017] QCA 132
McDonald v Queensland Police Service[2018] 2 Qd R 612; [2017] QCA 255
2 citations
Jump To
Cite 1 - [2017] QCA 255
Cite 2 - [2017] QCA 255
Motteram v Toohey [2010] QDC 180
2 citations
Jump To
Cite 1 - [2010] QDC 180
Cite 2 - [2010] QDC 180
Payne v Commissioner of Police [2015] QDC 294
2 citations
Jump To
Cite 1 - [2015] QDC 294
Cite 2 - [2015] QDC 294
R v Amituanai (1995) 78 A Crim R 588
2 citations
Jump To
Cite 1 - (1995) 78 A Crim R 588
Cite 2 - (1995) 78 A Crim R 588
R v Chard; ex parte Attorney-General [2004] QCA 372
2 citations
Jump To
Cite 1 - [2004] QCA 372
Cite 2 - [2004] QCA 372
The Queen v Amituanai [1995] QCA 80
2 citations
Jump To
Cite 1 - [1995] QCA 80
Cite 2 - [1995] QCA 80

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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