Adcock v QPS[2021] QDC 116

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 29 March 2021, the appellant was convicted after a plea of guilty in the Magistrates Court held in Cairns, of 15 offences including serious assault police officer, wilful damage, disobedience, obstruct police and bail offences.  The court imposed concurrent sentences with an effective sentence of nine months imprisonment with a parole release date after serving three months in prison. 
2. [2]
   The appellant now appeals the head sentence on the grounds that it is manifestly excessive, in particular, nine months imprisonment for charge 5, serious assault police committed on 16 April 2020 and six months imprisonment for charge 7 being another serious assault police committed on 28/05/2020.  The appellant argues that the sentencing Magistrate misapplied the comparative authorities and inflated the gravity of the appellant’s criminal history to reach a manifestly excessive sentence.  Notwithstanding the submission below, she now contends that the sentence should not exceed six months.
3. [3]
   The respondent opposes the appeal.
4. [4]
   Whilst the overall effective sentence of nine months with three months actual imprisonment before release on parole is harsh, it is at the high end of the permissible range and not demonstrably manifestly excessive.  It seems to me that the sentencing court took proper account of the appellant’s criminal history and matters of totality when considering the comparative cases. 
5. [5]
   For these reasons, I dismiss the appeal against sentence.

Appeal against sentence

6. [6]
   The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).  Pursuant to s  223 of the Act, the appeal is by way of rehearing on the original evidence.  However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.  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.^[1]  Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings.  In doing so it ought pay due regard to the advantage that the Magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the Magistrate’s view.^[2]

7. [7]
   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.

Manifestly Excessive

8. [8]
   This court ought not 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] 
9. [9]
   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, where there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.^[6]
10. [10]
    The High Court in House v The King^[7] and Kentwell v The Queen^[8] 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 is manifestly excessive as being too heavy and lies 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.
11. [11]
    The facts of the appellant’s offending were not contested, and I can summarise them as follows.
12. [12]
    For charge 1, at about 3.24 pm on 27 February 2020, after the agitated intoxicated appellant was refused entry into the office of the Mission Australia complex where she lived, she kicked and dented the security screen door, kicked and punched and dented a car door, and caused further damaged by smashing a bike into the side of the car.  The resultant damage was valued at $2,491.
13. [13]
    Count 2 occurred on 16 April 2020 when the appellant was intoxicated in public and misbehaving in a shopping centre car park.  She later refused to tell police her name as required, which constitutes charge 3.  And for charge 4, the appellant lunged, abused and acted aggressively towards the police as they escorted her to the nearby Police Beat, and she continued to violently struggle and pull away until isolated in a cell.  For charge 5, as the appellant was escorted to a holding cell, she kicked out violently with her right foot and struck an officer’s “groin area” causing “immediate pain” he continued to hold the appellant for fear of assault, he overpowered her by pushing her to the ground until another officer came to his assistance. 
14. [14]
    Six days later at about 4:30pm on 22 April 2020, for charge 6, after the appellant was refused entry into a diversionary centre, she abused and cursed police, refused to enter the police car after arrest and pulled her arms away while being handcuffed.
15. [15]
    The appellant was released from the watchhouse upon giving a bail undertaking on 27 May 2020.
16. [16]
    Two days later, for charge 7, at 12:12am on 28 May 2020 when police knocked on an apartment door in response to a reported disturbance, the appellant was verbally aggressive, stood in the doorway and refused to stand aside, to allow their entry.  And when police removed a male from the apartment and went down the stairwell, the appellant continued to obstruct them by standing in the way.  As police were walking with the male towards their police car, the appellant suddenly ran towards the police from behind and assaulted one officer.  He had to fend her off while holding the male as the appellant lunged and grabbed the officer’s shirt collar and tried to pull him over.  The officer’s shirt was ripped, which constituted charge 8.  The appellant continued being verbally and physically aggressive inside the police car and kicked the rear passenger window of the car, which constitutes charge 9.  For charge 10, the appellant breached her bail condition by returning to the apartment.
17. [17]
    The appellant committed the offences in charges 11, 12 and 13 when she failed to appear in court as required by her bail undertaking.
18. [18]
    The appellant entered pleaded of guilty and was sentenced as follows:

19. [19]
    Manifest excess may be revealed by a consideration of all of the matters that are relevant to fixing the sentence, particularly the nature of the offending and the sentences imposed in the most closely comparable cases. 
20. [20]
    The appellant argues that the effective sentence of nine months imprisonment carried by the most serious offending in charge 5, is manifestly excessive because it misapplied the comparative cases when considered with her criminal history, the personal deterrence and totality principles.  The appellant relies upon the comparative cases of R v Casiotis [2006] QCA 85, Graham v Commissioner of Police [2015] QDC 103 and R v Cooney [2019] QCA 166 to argue that the sentencing range for charge 5 should not exceed four months imprisonment with a possible uplift that would ultimately not exceed six months imprisonment for totality.
21. [21]
    In Casiotis, the 18 year old offender appealed the sentence of four months imprisonment followed by three years probation^[9] for wilful damage which resulted in $5,913.35 worth of damage to a car.  The offender had a criminal history which included pervert the course of justice, dangerous operation of a motor vehicle and stealing, and was variously punished with fines, a good behaviour bond and an intensive corrections order.  The offender had not reoffended in the recent period, was employed, and offered to pay compensation for the damage.  On appeal the sentence was set aside and a sentence of four months imprisonment suspended after six days (being time served) for an operational period of one year, with a compensation order. 
22. [22]
    The appellant relies upon Casiotis to urge favourable consideration of the appellant’s good behaviour for 11 months indicative of rehabilitation, willingness to pay compensation, stable accommodation and reduction of alcohol consumption.  Whilst all those matters are pertinent to the sentencing considerations here, Casiotis is of little comparative value in relation to the offence of serious assault.  Here, appellant’s criminal history remained both relevant and significant, she had no demonstrable capacity to pay any compensation, and matters of rehabilitation must be weighed against other sentencing considerations such as denunciation, personal deterrence and totality.
23. [23]
    Graham’s case involved a serious assault of an ambulance officer causing bruising and swelling to the face and required two days off work.  The circumstance of aggravation attracted a greater maximum penalty of 14 years imprisonment.  The offender had a history of like offending. 
24. [24]
    The appellant relies upon this case to contrast the nature and extent of injury with the lessor pain and discomfort caused by the appellant here.  Again, it seems to me that the case of Graham is of little comparative value.  The circumstances of the appellant’s offending against the police officer differed markedly, and she also fell to be sentenced on 14 other offences, including wilful damage, and another serious assault and subsequent offending while on bail.
25. [25]
    In Cooney, the 40 year old offender was sentenced to 18 months imprisonment for attempted unlawful entry of a vehicle with intent to commit an indictable offence, two years imprisonment for serious assault police and 18 months imprisonment for serious assault police.  Those sentences were overturned and the Court of Appeal resentenced the offender to terms of imprisonment of 12 months, six months and six months imprisonment, respectively.  In that case the offender attempted to remove a person from their vehicle and steal the car (maximum penalty 14 years imprisonment) and then he swung punches at two police officers before being restrained.  The offender was bleeding from deep cuts on his arms and repeatedly yelled “I have HIV”. An indirect consequence was that his blood contacted with the officer who was grazed, which caused officer distress while waiting for disease test results.  The offender had previous convictions for dangerous operation of a vehicle whilst adversely affected and obstruct police. 
26. [26]
    The appellant relies upon Cooney as more serious offending involving transmission of blood, distressing impact and a greater maximum penalty.  Reference was made to paragraph [57], where Henry J (with whom the other members of the court agreed) quoted the observations of the Chief Justice in R v King (2008) 179 A Crim R 600, that:

“One begins with the proposition that those who treat a police officer in this way should ordinarily expect to be imprisoned, meaning actual imprisonment. Police officers carry out duties which are usually onerous and often dangerous.  It is abhorrent that a police officer responsibly going about his or her business be subjected to the indignity and risk of being spat upon. … In cases like this, it is often the fact of imprisonment rather than the particular duration of the term imposed which secures the necessary deterrence.”

27. [27]
    The offending in Cooney against the police officers did not involve actual violence by the appellant who has only one prior offending six years before the subject offending.  The court of appeal characterised the blood transmission to the officer’s cuts as unintended and an indirect consequence of the offending of which the court said “should have moderated the weight that the victim impact was given relative to other considerations on sentence”.  The sentences for the serious assault charges were subservient to the more serious offending of attempted unlawful entry of a vehicle with intent to commit an indictable offence, which was uplifted to account for totality for all the offending.   In the present appeal, the most serious offending is in charge 5 serious assault, which may carry the head sentence to take into account totality, if appropriate.
28. [28]
    Whilst analysis of closely comparable cases often provides valuable guidance, those proffered, here and below, are not particularly useful, and the appropriate sentence will necessarily depend on the particular circumstances of the offending and the degree of culpability of the offender.  The appellant was aged 33 and 34 years during the offending period and was still aged 34 years at the time of sentencing.  She has endured a very challenging background which included being in multiple domestic violence relationships, substance misuse and homelessness.
29. [29]
    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 s 9 of the Penalties and Sentences Act 1992 (Qld).  For the violent offending in charge 5 and 7, it is relevant that imprisonment is not a last resort and required the court to assess the appellants of risk of reoffending and the need to protect the community.
30. [30]
    Appellate consideration of manifest excess must also involve other relevant sentencing considerations including, relevantly here, recent and relevant antecedent criminal history, demonstrably poor attempted rehabilitation, need for personal deterrence and denunciation and totality. 

Criminal History

31. [31]
    It is trite law that the appellant’s criminal history is a relevant matter for the proper exercise of the sentencing discretion. In particular, since the offence was one involving violence within the meaning of s 9(2A) of the Penalties and Sentences Act 1992 (Qld), the learned Magistrate was required to have regard to the matters set out in s 9(3).  In particular, s 9(3)(g) required the court to have regard to “the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed”.  Further, s 9(10) provides:

“(10) In determining the appropriate sentence for an offender who has 1 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—

1. (a)
   the nature of the previous conviction and its relevance to the current offence; and

2. (b)
   the time that has elapsed since the conviction.

32. [32]
    Subsection (11) provides:

“(11) Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence.

33. [33]
    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.”

34. [34]
    The appellant has an extensive criminal history with multiple prior like convictions of offending against police or behaving in a violent manner while intoxicated since 2004, relevantly here convictions for, assault a police office (2020), wilful damage police property (2004, 2018), assault occasioning bodily harm (2018), common assault (2017), wilful damage (2018), obstructing police (2010, 2018), contravening a direction or requirement (2004, 2019, 2020), failure to appear (2019) and violent behaviour and multiple public intoxication offences (most recently in 2016).
35. [35]
    The learned Magistrate made specific reference to the appellants prior criminal convictions and also acknowledged that she had never been imprisoned.  His Honour remarked that “albeit less serious, perhaps, than the offences for which you are being sentenced today, [it] indicates a continuing propensity for violence towards police, of non-compliance, for damaging police property.” His Honour rejected the appellant’s solicitors submissions regarding prospects of rehabilitation.
36. [36]
    Having regard to His Honour’s remarks and characterisation of the appellant’s past offending and the nature and extent of the offending before him, it seems to me that he had proper regard to those matters to show a propensity for like offending and a need to impose condign punishment to deter her from committing further offences of a like kind.  In my respectful view the learned Magistrate legitimately took account of the appellant’s apparent lack of rehabilitation and a continuing attitude of disobedience of the law and police intervention manifesting in the commission of the instant offending.  Accordingly, matters of retribution, deterrence and protection of society all indicated that a more severe penalty was warranted.

Totality in Sentencing

37. [37]
    The learned Magistrate looked at the totality of the appellant’s criminal behaviour for all the offences and arrived at a global sentence of 9 months imprisonment to be carried by the most serious offending in charge 5.
38. [38]
    In Mill v The Queen,^[11] the High Court referred with approval to the passage in Thomas, Principles of Sentencing 2nd Edition, page 56 to 57:

“The effect of the totality principle is to require a sentencer who has passed a series of offences, each properly calculated in relation to the offence for which it is imposed, and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and to consider whether the aggregate is, 'just and appropriate.'  The principle has been stated many times in various forms. 'When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the Court to take a last look at the total, just to see where it looks wrong.'; when cases of multiplicity of offences have come before the Court, the Court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces.  It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences?”

39. [39]
    In The Queen v Crofts^[12], the Court of Appeal said:

"Of course sentences of imprisonment for a number of offences often ought to reflect that the offences were not committed in isolation. This is commonly referred to as the totality principle. The totality principle requires a Judge who is sentencing an offender for a number of offences, to ensure the aggregation of sentences of imprisonment is a just and appropriate measure for the total criminality involved. When an appropriate sentence imposed for the most serious offence is adequate to punish the total criminality involved other sentences are made concurrent. When the sentence for the most serious offence is inadequate for that purpose, and cumulative sentences are imposed for one or more other offences, lower sentences than would otherwise be called for, can be imposed to achieve a suitable total punishment over all."

40. [40]
    In this case the court was dealing with the multiplicity of offences with variable seriousness.  The most serious conduct is found in the serious assault in charge 5, with lessor seriousness in criminal conduct comprising charges 1, 7, 8 and 9.  The latter offending was also aggravated by being committed while on bail. 
41. [41]
    It seems to me that charge 5, if alone, would attract a sentence at six to nine months in circumstances where it was committed after arrest and in police custody when the appellant aggressively and defiantly kicked out and foreseeably struck the officer in the groin, causing immediate pain and discomfort and requiring support.  As for the other sentences imposed in respect of charges 1 to 4 and 6 to 15, I am not asked to, nor do I think it warranted, to disturb the other sentences fixed by the learned Magistrate.  They are just and appropriate. 
42. [42]
    Clearly the aggregate of the sentences would be unjust, and I think moderated cumulative sentences would be artificial. Instead, this is appropriate case to reflect the overall criminality for all the offences in the most serious offending with lessor concurrent sentences for the other offending. 
43. [43]
    It seems to me that the learned Magistrate permissibly set the sentence at the highest end of the range of nine months imprisonment for charge 5 as a global sentence appropriate for all the offences and as suitable total punishment overall having regard to the nature and seriousness of the offending, public denunciation, and personal deterrence of the recidivist appellant. 
44. [44]
    Further, the non-parole period of one third set by the learned Magistrate appropriately reflects the appellant’s culpability, pleas, past like offending, community denunciation, and personal and general deterrence.

Order

45. [45]
    I affirm the decision of the sentencing Magistrate and dismiss the appeal.

Judge DP Morzone QC