GSB v Commissioner of Police[2021] QDC 196

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 12 May 2021, in the Richlands Magistrates Court, the appellant pleaded guilty to one charge of driving a motor vehicle while under the influence of liquor or a drug and one charge of contravening a domestic violence order. The appellant was sentenced to two months imprisonment and disqualified from holding a driver’s licence for 24 months in respect of the first offence and 12 months imprisonment, with immediate parole eligibility in respect of the second offence. There were 76 days of pre-sentence custody declared.
2. [2]
   The offending related to an incident on 25 February 2021. The appellant, whilst heavily intoxicated, drove to the complainant’s house, yelled abuse and attempted to enter the residence. At the time, the complainant was not at the property. The complainant has, and had at the time, a protection order against the appellant, which prohibits the appellant from remaining at, entering, or attempting to enter the complainant’s usual place of residence.
3. [3]
   The appellant has appealed against the sentence imposed in relation to the offence of contravening a domestic violence order, on the grounds that it is manifestly excessive. The respondent conceded that the appellant had spent sufficient time in custody and should be released immediately.

S 222 appeals

4. [4]
   This appeal is brought pursuant to s 222 of the Justice Act 1886 (Qld) (‘the Act’).  That section provides a person who feels aggrieved by an order made by a justice (in this case, a magistrate) in a summary way may appeal within one month to a District Court Judge.  There is no issue that this appeal was brought within time.
5. [5]
   In a s 222 appeal, the Court is empowered to intervene “only if the sentencing discretion miscarried, either by specific error (such as acting upon a wrong principle, mistaking the facts, taking into account irrelevant circumstances or failing to take into account relevant circumstances) or by imposing a sentence which is “unreasonable or plainly unjust” such as to demonstrate that the sentencing discretion must have miscarried even though no specific error can be identified: House v The King (1936) 55 CLR 499 at 505.”^[1]
6. [6]
   In other words, a mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review. 
7. [7]
   In the recent Court of Appeal decision of R v Callow^[2], Morrison J reinforced what Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen^[3]:

“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.” In referring to Markarian, Boddice J said in R v Frith^[4] at [35]:

“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.”

8. [8]
   An appeal under s 222 is by way of rehearing on the original evidence.^[5]
9. [9]
   S 225 sets out the powers of the Judge, on the hearing of a s 222 appeal, as follows:

“225 Powers of judge on hearing appeal

3. (1)
   On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.

3. (2)
   If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.

3. (3)
   For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.

3. (4)
   An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.”

10. [10]
    I note the comments of the High Court in Robinson Helicopter Company Inc v Mc Dermott,^[6] that the task of a court conducting an appeal by way of rehearing is “to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgement to determine whether the judge has erred in fact or law.  If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings”.

Grounds of appeal

11. [11]
    The appellant advanced three points as to why the sentence imposed is manifestly excessive.
12. [12]
    Firstly, the appellant submits that the sentence is not justified by the nature of the appellant’s offending. The appellant argues that the offending was at the lowest end of the scale for offences of this nature, as the appellant’s actions were, in effect, to yell at an empty house. 
13. [13]
    The appellant highlighted the case of ETB v Commissioner of Police [2018] QDC 26, where the defendant abused the complainant in her home at night, calling her names such as ‘black cunt’, ‘motherfucker’ and ‘slut’. In that case a sentence of nine months’ imprisonment was held to be manifestly excessive and was reduced on appeal to three months imprisonment.
14. [14]
    The appellant’s second argument is that the learned magistrate, in determining the appropriate sentence, placed undue weight on the appellant’s criminal history. Citing Veen v The Queen (No 2),^[7] the appellant submits this caused the sentencing magistrate to impose a sentence “which was disproportionate to the gravity of the instant offence”. 
15. [15]
    It should be noted that the respondent does not accept the sentencing Magistrate erred by placing undue weight on the appellant’s criminal history. The respondent submits that the weight afforded to the appellant’s criminal history is a matter within the discretion of the sentencing magistrate.
16. [16]
    The appellant’s final point is that, as the learned magistrate imposed a parole eligibility date, rather than a parole release date, the appellant is at risk of serving most of the term of imprisonment, prior to his application for parole being assessed, due to the current delays being experienced in relation to parole applications. The appellant submits this would be manifestly excessive.
17. [17]
    The appellant has been told his parole application will take at least six months to be determined.^[8] Having lodged his parole application on 25 May 2021, this would mean the appellant’s application would not be determined until November or December 2021. This would see the appellant serving most of the sentence.
18. [18]
    The respondent accepts that, , having regard to the lengthy delays in parole applications, the appellant ought to be released, as he had served sufficient time in custody.^[9]

The sentencing magistrate’s reasons

19. [19]
    It is plain from the transcript of submissions on sentence that the magistrate had made up his mind as to penalty from early on in respect of the domestic violence breach.
20. [20]
    The sentencing magistrate made it clear that he was not considering a suspended sentence. Despite submissions by the appellant’s counsel that a suspended term of imprisonment would be appropriate, the sentencing magistrate stated:

“HIS HONOUR: Look, I wouldn’t consider today a term of suspended imprisonment.”^[10]

21. [21]
    The appellant’s counsel continued to make submissions for a suspended sentence, noting mitigating factors and the advantage to the appellant of a suspended sentence, including “a chance for him to be rehabilitated, to dry out, not to use alcohol, obtain full-time employment, and try and perhaps form the sort of relationship with his family again.”^[11]
22. [22]
    His Honour made no further comments about these submissions but continued to refer to the appellant’s continual breaches of the domestic violence orders. 
23. [23]
    The sentencing magistrate made the following sentencing remarks:

“There is a clear need in your case to show you, again, that you cannot continue to offend in this matter. You might think [the offending] is at the lower end of the scale, but the Court does not hold the same view.  Community based orders, fines or suspended imprisonment are not considered appropriate in all the circumstances in relation to sentencing of you today.^[12]

…

On the submissions made by Mr Weston on your behalf and taking into account the  time that you spent in pre-sentence custody, and some measure of delay in having matters determined in the Parole Board, I fix a prole eligibility date of today.  So you can lodge your application for parle.  It will be dealt with at the earliest convenient time through the Parole Board.^[13]

---

You will not be going home today.  But you have eligibility to apply for parole.  You will be on parole, then, for the balance of the period of your sentence.  If you were to commit another offence - - I am not suggesting you will – but if you were to commit another offence - - you are found guilty of it you will go straight back into custody to serve the balance of your term imprisonment. …”^[14]

Discussion

Was undue weight placed on criminal history?

24. [24]
    It is plain from his Honour’s sentencing remarks, that he placed disproportionate weight on the appellant’s history. There is no doubt that the appellant’s history is bad.  His history includes nine breaches of domestic violence orders in effectively four years.  However, whilst that is relevant in sentencing, it is but one of the matters to be taken into account.^[15]
25. [25]
    The many other matters to be considered include those mitigating factors, put in Counsel’s sentencing submissions. The sentencing magistrate either did not or failed to say that he did take into account these mitigating factors, other than to say that the parole eligibility date should be the date of sentence.  These included:

    1. (a)
       that he had the support of his wife;
    2. (b)
       that the complainant was not home when the breach occurred;
    3. (c)
       that he is an alcoholic;
    4. (d)
       that he has a Masters of Commerce and a firm offer of employment;
    5. (e)
       that he had a chance in his mid-forties to undergo rehabilitation and possibly reconnect with his family; and
    6. (f)
       that he had been in custody for 76 days.

Was the sentence justified, having regard to the nature of the offending?

26. [26]
    I accept the submission of Counsel for the defendant that, on the basis of the authority of ETB v Commissioner of Police, that a sentence in the range of three to six months would have been the starting point in this case.  Given that the appellant has a significant domestic violence history, a sentence closer to the top of the range is appropriate.  Accordingly, I consider that the appellant should have received a sentence of six months imprisonment suspended after time served.  In this case that was 137 days or approximately 4 months.

Was imposing a parole eligibility date appropriate?

27. [27]
    At the time of committing the offence the subject of this appeal, the appellant was on parole for previous offending. Pursuant to s 209 of the Corrective Services Act 2006 (Qld), when he was sentenced to a term of imprisonment by the sentencing magistrate on 12 May 2021 in respect of the current offending, his parole was taken to have been cancelled.
28. [28]
    S 160B(2) of the Penalties and Sentences Act 1992 (Qld) provides that “if the offender had a court ordered parole order cancelled under the Corrective Services Act 2006, section 205 or 209 during the offender’s period of imprisonment, the court must fix the date the offender is eligible for parole.
29. [29]
    As such, if sentencing the appellant to an actual term of imprisonment, the sentencing magistrate was required to impose a parole eligibility date. His Honour was clearly aware of this.
30. [30]
    However, it was also open to the sentencing magistrate to impose a suspended sentence. Despite this, the learned magistrate appears to have excluded this as a possibility, regardless of the extensive delays currently being experienced in the processing of applications to the parole board.
31. [31]
    The current parole application delays are a notorious issue that no doubt his Honour was aware of. Further, in his submissions, counsel for the appellant explicitly brought to his honour attention that the appellant would experience a long delay in applying for parole, should a parole eligibility date be imposed. To this, his Honour said:

“HIS HONOUR: Look, I accept that, but the statutory provision is mandatory. Where he has committed an offence whilst on parole, I can only impose a parole eligibility date.”^[16] 

32. [32]
    These comments come despite submissions by counsel that a suspended sentence may be appropriate.
33. [33]
    In my opinion his Honour made up his mind not to impose a suspended sentence, without considering the submissions of counsel.  If he did, he failed to adequately explain why he did not. 

Conclusion

34. [34]
    In my view the sentencing magistrate fell into error by imposing a sentence which was manifestly excessive given the nature of the offending on this occasion, failing to have proper regard to the mitigating factors, placing too much weight on the appellant’s history, and that the effect of the sentence, because of parole board delays, was that the appellant was likely to serve almost all of the 12-month term imposed.
35. [35]
    I note the appellant’s submission that the appropriate sentence would be to sentence the appellant to time served, namely 137 days.  It seems to me that to give effect to the need for the appellant to undertake rehabilitation to address underlying issues with alcohol abuse that a period of suspended sentence should be imposed. This is in line with submissions made to the sentencing magistrate that “… perhaps four to six months, suspended after serving perhaps another month or so with a long operational period would be a viable outcome”.

Orders

36. [36]
    On appeal, I have the power to confirm, set aside or vary the sentence or make any other order in the matter that I consider just.^[17]
37. [37]
    I note that the appellant had spent 76 days in custody which were declarable at the time of the original sentence and 137 days at the date of hearing of the appeal.
38. [38]
    For the reasons given I set aside the sentence and impose the following sentence in respect of the beach of domestic violence order:

    1. (a)
       The appellant be sentenced to 6 months imprisonment suspended after serving 137 days presentence custody for an operational period of 12 months. 
    2. (b)
       I declare presentence custody from 25 February 2021 to 12 July 2021.
39. [39]
    I make the following orders:

7. Appeal allowed
8. Order that the sentence imposed on 12 May 2021 by the Richlands Magistrates Court remain undisturbed insofar as it relates to the offence of driving under the influence.
9. Order that the sentence imposed on 12 May 2021 by the Richlands Magistrates Court be set aside, insofar as it relates to the offence of contravention of a domestic violence order (aggravated offence)
10. In substitution, order that the defendant be sentenced to imprisonment for a period of 6 months
11. Order that the term of imprisonment be suspended for a period of 12 months, after serving 137 days.
12. Declare that the defendant has served 137 days under the sentence between 25 February 2021 and 12 July 2021