Ryan v Queensland Police Service
[2021] QDC 206
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- Ryan v Queensland Police Service[2021] QDC 206
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Ryan v Queensland Police Service[2021] QDC 206
Ryan v Queensland Police Service[2021] QDC 206
DISTRICT COURT OF QUEENSLAND
CITATION: | Ryan v Queensland Police Service [2021] QDC 206 |
PARTIES: | ROBERT PERRY RYAN (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO: | 44 of 2021 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Townsville |
DELIVERED ON: | 6 September 2021 |
DELIVERED AT: | Townsville |
HEARING DATE: | 18 August 2021 |
JUDGE: | Coker DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – Section 222 Justices Act 1886 – whether sentence was manifestly excessive – where the learned Magistrate imposed a sentence higher than what the prosecution and defence submitted – where the learned Magistrate only advised that he thought the defence submission was, ‘well short’ – whether the learned Magistrate failed to afford the appellant procedural fairness – whether the learned Magistrate failed to fully consider matters in mitigation and the steps taken towards rehabilitation. |
LEGISLATION: | Penalties and Sentences Act (Qld) |
CASES: | Dinsdale v the Queen [2000] HCA 54; [2000] 202 CLR 321 House v The King (1936) 55 CLR 499 Lowe v The Queen (1984) 154 CLR 606 Nant v Maskell [1997] QCA 295 R v Cunningham [2005] QCA 321 R v French [2004] QCA 263 R v Ikin [2007] QCA 224 R v Lomass (1981) 5 A Crim R 230 R v Macintosh [1923] St R Qd 278 R v Moodie [1999] QCA 125; CA No 439 of 1998, 14 April 1999. R v Morse (1979) 23 SASR 98 R v Nagy [2003] QCA 175 Rongo v Commissioner of Police [2017] QDC 258 Ross v Commissioner of Police [2018] QDC 99 |
COUNSEL: | R Malcomson for the Appellant T Hancock for the Respondent |
SOLICITORS: | Legal Aid Queensland for the Appellant The Office of the Director of Public Prosecutions for the Respondent |
Introduction
- [1]On the 18th of August 2021 this appeal proceeded before me and at the conclusion of submissions, I indicated what the orders were to be and that reasons would follow. These are those reasons.
- [2]On the 9th of March 2021, Robert Perry Ryan, whom I shall refer to as the appellant, appeared before the Magistrates Court in Townsville and pleaded guilty to 10 charges contained within various bench charge sheets. He was sentenced in relation to the matters to which he entered a plea of guilty.
- [3]In particular, charges 2 and 3 contained within bench charge sheet 8302 of 2020 were the subject of concern for the appellant. Those two charges related to receiving tainted property on the 29th of December 2018 and the unlawful use of a motor vehicle also on that day, the 29th of December 2018. In relation to those two charges, the most significant penalties were imposed by the presiding Magistrate, Magistrate Mack. In respect of the unlawful use of a motor vehicle, a period of imprisonment of 18 months was imposed, and in respect of receiving tainted property, a penalty of imprisonment of 12 months imprisonment was imposed to be served concurrent with the head sentence.
- [4]For the record, I should also note that there were seven other charges which were dealt with on the basis of various penalties to be served concurrent with the head sentence; however, there was also one charge of failing to appear in accordance with an undertaking, and in relation to that particular charge, a period of one month’s imprisonment was imposed, which was to be served cumulative upon the other terms. Thereafter, the learned Magistrate fixed a parole release date in relation to all matters of the 8th of September 2021.
- [5]On the 15th of March 2021, a notice of appeal to a District Court Judge was filed on behalf of the appellant. That notice of appeal indicated that there were four grounds upon which the appellant based the appeal. They were as follows:
- (1)the sentence was manifestly excessive in all the circumstances;
- (2)the sentencing Magistrate erred in not giving sufficient weight to the defendant’s efforts at rehabilitation and other mitigating factors;
- (3)the sentencing Magistrate failed to afford the appellant procedural fairness in failing to invite further submissions as to the length of the term of imprisonment contemplated to be imposed; and
- (4)the learned sentencing Magistrate erred in imposing a sentence that was disproportionate to the gravity of the subject sentence.
- (1)
- [6]In particular, as I have indicated, the most significant penalties related to the two counts arising from the 29th of December 2018, receiving tainted property and unlawful use of a motor vehicle. The sentencing schedule in relation to that particular offending, which was made available to the learned Magistrate, noted the details of the offending as follows:
Charge 2 and 3, receiving tainted property and unlawful use of a motor vehicle: between the hours of 6.30 pm on the 24th of December 2018 and 5.30 pm on the 25th of December 2018, unknown offenders have unlawfully entered via unknown means the business premises of Wild Escapes (Oceania) Pty Ltd at 6/38 to 42 Pease Street, Cairns. These offenders have entered the inside of the premises and conducted a search of the building, subsequently locating and stealing several sets of car keys as well as a wall safe which contained an unknown quantity of Australian currency. The offenders have subsequently exited the premises with the stolen property and used the car keys to steal two Hyundai iMax vans, which were both parked nearby.
A period of time later, the vehicles’ theft and unlawful entry of the business was discovered by staff and was reported to police. An investigation was subsequently commenced. In the early hours of the 29th of December 2018, police were involved in the pursuit of one of the stolen Hyundai iMaxes, however, were ultimately unsuccessful in effecting an interception. A short time later, however, police were conducting patrols and located one Hyundai iMax on Smith Street, Cairns, and, shortly after that, the remaining stolen Hyundai iMax parked in a parking bay of the residential unit complex of 366 to 370 McLeod Street, Cairns. Both vehicles were seized and towed for forensic examination.
Police were subsequently further provided intelligence that one of the stolen vehicles had parked at Dunwoody’s Tavern on the 28th of December 2018 and were being driven by an adult male driver who attended the tavern for a period of time. Police reviewed and seized CCTV from Dunwoody’s Tavern which showed, at about 1.50 pm on the 28th of December 2018, an adult male park and exit one of the stolen vans before, as mentioned above, entering the tavern. Of note, this male was wearing a pair of black shorts with “Everlast” labelled on the sides, a pair of dark-coloured shoes with thick white soles, and the male also appeared to have distinctive tattoos on the side of his neck.
On the 17th day of January 2019, police had cause to locate and arrest a Cathryn Pratt at 12/366 to 370 McLeod Street for unrelated matters. Upon her arrest, police located Pratt in possession of a set of Hyundai iMax keys which were subsequently linked back to belonging to one of the stolen vans. Pratt was conveyed to the Cairns Police Station, where she later provided a formal statement implicating her ex-partner Robert Perry Ryan as driving one of the stolen vehicles.
Pratt stated she observed Ryan drive into the car park of 366 to 370 McLeod Street, Cairns in the early morning some day in a white van which she knew did not belong to him. She saw Ryan exit the van with a number of other known associates and hurriedly unload some property before locking the vehicle and running upstairs to where Pratt was. Ryan proceeded to tell Pratt that the van was stolen and that they had another van stashed nearby. Police attended a short period of time later, and Pratt stated they all hid whilst they watched police seize the vehicle. Pratt further stated that Ryan had a distinct tattoo of a spider on his left side of his neck.
On the 17th day of January 2019, police located a Robert Perry Ryan, the defendant in this matter, at an address in Cairns. Police observed Ryan to have a spider tattoo on his neck, as well as wearing a dark-coloured pair of sneakers with a thick white sole and a pair of black shorts with Everlast labelled on the sides.
Police arrested the defendant for unrelated matters at the time and conveyed to the Cairns watch-house. The defendant was released upon the other matters and subsequently re-arrested for this matter at 3.50 pm on 17 January ’19. The defendant’s clothing was subsequently seized as evidence.
The defendant held a conversation with police regarding this matter shortly after. The defendant stated he received the car keys to a white courier van from a friend named Callum however claimed he did not know this friend last night. The defendant stated he thought the van belonged to Callum Uncle, as Callum was reluctant to loan him the vehicle for the night.
- [7]Despite this, the defendant claimed, that after he convinced Callum to lend him the vehicle, he then drove himself and a few friends around for the night before returning it and parking it at McLeod Street, Cairns. The defendant stated he was not aware of a second stolen van. The defendant was challenged as to his version of events, however, denied that he knew the vehicle was stolen.
- [8]Those particulars were relied upon by the prosecution in relation to this particular matter. On the day of sentence, the 9th of March 2021, the defendant entered a plea of guilty in relation to all of the offending. Thereafter, the appellant’s criminal history of three pages was also tendered, along with a traffic history.
- [9]The Prosecutor, Sergeant Moran, then took the learned Magistrate through the offending in relation to this matter, noting, as he did, that there was a timeline relevant in relation to the proceedings, suggesting that the first offence is on the 12th of November 2018 and the last offence was on the 17th of January 2020. It is noted, by the Prosecutor, therefore, that the appellant goes through, as the Prosecutor puts it:
A period of a bit over a year to this sentence finally being resolved.
- [10]As I have indicated, the offending the subject of these proceedings occurred during that period, 12 November 2018, until the 17th of January 2020. However, as I shall come to shortly, it should specifically be noted that all of the offending bar the failure to appear in accordance with an undertaking, relate to offending in the period 12 November 2018 to 29 December 2018, though one subsequent stealing count arises in September of 2019. That stealing count, however, relates to the stealing of a blue sable-coloured American Staffy dog, registered and microchipped in the name of Shenane Jennifer Ruben Kawane.
- [11]The offending there is, with respect, of no great significance. The owner of the dog was approached by the appellant. The dog’s owner advised the appellant that another person, known as Trevor, whom the appellant wished to speak to, was sleeping and that the appellant should return at a later time. The appellant has then left the front yard of the residence occupied by the complainant and stopped at the front gate. The appellant was approached by the complainant’s dog and the appellant has then lent over and picked up the dog. The complainant has followed the appellant out of the gate, attempting to recover the dog; however, the appellant entered the passenger seat of a Toyota HiLux motor vehicle and sped away.
- [12]On the next day, the appellant was located and arrested and conveyed to the watch-house. Bail was refused and the dog was recovered in good health. As I say, whilst it does not constitute part of the more significant offending over a period of some six weeks or so in the latter part of 2018, it is offending of, I would suggest, a limited nature.
- [13]Sergeant Moran then went on to address the Court in relation to the offending as follows:
SGT Moran: They were all failed to appears, so he has with this failure to appear – the ones that have been obviously, your Honour, not electronically dealt with but there’s still four failed to appears on his history, including the [indistinct] police today, so it’s not a – it’s probably the most significant issues about his history. He’s not otherwise a dishonest defendant, your Honour. His history is drugs and assaults. Imagine Mr Douglas will explain how he’s embarked on this continuing history of dishonesty.
[indistinct] themselves, the charges individually may not have been so significant, but the cumulative effect of the dishonesty brings the prosecution to a submission that a global penalty of imprisonment terms still being in the range today of 9 to 12 months and that’s for the unlawful use, your Honour, which was committed by a mature mand and is – there was a convoluted investigation into the matter, but obviously it settles that he was the person that unlawfully used at least one of those cars that was subject to the before and her premises. Your Honour’s also noted at the first page on the schedule how that he has used the car so recent – a card from [indistinct] so recently after.
While your Honour, the charges of course are receiving it, these type of offences prey on the fact of – of victims and property that comes into their possession and receiving [indistinct] property under the criminal code is a seven year offence, so it does provide for resolutory punishments. Your Honour, the [indistinct] of [indistinct] submission of the prosecution is that a jail term of 9 to 12 months – that could include a cumulative sentence of the failure to appear which has been a part of the feature of the matters to be resolved. It can’t go without notice, your Honour, he’s been without trouble and there must be something decent has happened to Mr Ryan in the last 12 months because he’s not been back before the courts so that leads to a submission, your Honour, that it could be charged. It could be a matter of whether the – any penalty if your Honour, is just something that I – he just doesn’t embark on dishonesty until the later part of these matters have been dealt with today. I don’t think I’ll take it any further your Honour.
- [14]As can be seen quite clearly, the Prosecution submission in relation to the matter was to the effect that a jail term of nine to 12 months, which could include a cumulative sentence relating to the charge of failing to appear, would be an appropriate penalty. Interestingly, but quite properly, it should also be noted that the Prosecutor acknowledged that:
It can’t go without notice, your Honour, he’s been out of trouble and there must be something decent has happened to Mr Ryan in the past 12 months because he’s not been back before the Courts, so that leads to a submission, your Honour, that it could be charged – it could be a matter of whether the penalty, if your Honour is minded to give imprisonment, could be parole from today.
- [15]Noteworthy there is that there was no comment by the learned Magistrate in relation to the penalty submitted as appropriate, being nine to 12 months imprisonment, and more particularly, that in light of the circumstances, which were elaborated upon by the solicitor appearing for the appellant, there could be consideration given to an immediate parole release date.
- [16]Thereafter, submissions are made by Mr Douglas, solicitor for the appellant. In particular, the submissions by Mr Douglas related to a significant number of matters with respect to mitigation and, in particular, to rehabilitation. At page 9 of the transcript from line 1 through to page 10, line 4 of the transcript,the following is said:
MR DOUGLAS: It is — or it was, your Honour. Your Honour, what led to this is a number of issues at the time. If I could put some very [indistinct] on the record, your Honour, he’s supported here today by his partner. His partner has been in his life effectively from the last 14 months, her name is Samantha. Your Honour, he met Samantha many years ago — approximately 22 years ago. They had a 10-year relationship. Your Honour, there was then a break in that relationship and as I’ve stated, that relationship has now recommenced. Your Honour, in his own words, amongst other things she has been keeping him on the straight and clean.
Your Honour, he effectively doesn’t know or has had no dealings with his biological parents. His parents as he sees as his mother and father are Samantha’s parents. Your Honour, Samantha — his father — well, who he sees as his father, Samantha’s dad, has stage 4 lung cancer and has just been given quite a dire prognosis. I don’t have anything to put before the court, but this is what I’ve been informed of for some time. Your Honour, he left home at the age of 13. He effectively never or didn’t have much of a relationship with his father. Him and his mother had quite a toxic relationship as, well, your Honour. Despite all this, he then found himself after completing school that he was a commercial fisherman between, he estimates, 17 to 18 years.
Your Honour, in terms of any recent employment, at least in the last 12 months, your Honour, he states that he’s been to job interviews. The question then arises when can you start, what is happening now? Effectively, he then has too advise them that these matters are ongoing — or have been ongoing — again due to his own issues and he can’t effectively take any positions that will enable in particular someone with commercial fisherman nature, hence why I don’t have anything to put before the court for current employment, but he does have that ability, your Honour; he has shown that for a number of years.
As I already previously stated, your Honour, he was receiving assistance through Court Link in Cairns and they were assisting him — providing him with ATODS. He, on his own admission, relapsed. That’s where your Honour will see those — the bulk of the offences, late 2018. There is some small — there is a gap and them they all — the bulk of them and then occurring in late 2019. Your Honour, following a number of issues, him reconnecting with Samantha, him going — in his own words — cold turkey. He was living on the street in Brisbane, that’s where he found himself in the last year and a half.
Your Honour, he’s realised that — in his own words — his brother who passed away in the late 90s has effectively woken up to himself and is more or less disgusted with the period of his life. Your Honour, reading through the facts, he has never cavilled with any of the facts put before — or what was alleged before the court. He never wants — in his own words — never wants to return to that life. If your Honour were to see the photo that’s in his QP9, your Honour will even see how gaunt he looks. He states that he was putrid - - -
His Honour: I accept all that and I accept that there’s a prospect that he’s rehabilitated himself and that’s a positive thing.
Mr Douglas: Yes, your Honour.
- [17]Shortly after that, there is an exchange between the learned Magistrate and the solicitor for the appellant, which includes an indication by the Magistrate that:
The passage of time, when he’s not offending, and unlawfully at large for a lot of that time, can’t extinguish the criminality of the earlier events.
- [18]Mr Douglas acknowledges that that is the case and interestingly then, the learned Magistrate says:
As much as I have some sympathy for him, he’s to be congratulated for his rehabilitation, but that can’t extinguish, as I’ve said, the risk of [indistinct] what has happened.
- [19]Mr Douglas then goes on to emphasize the obvious requirements, pursuant to the Penalties and Sentences Act, of balancing the various considerations, including both general and specific deterrence, as well as, of course, those other matters that need to be addressed. The transcript then goes on to note an exchange between the learned Magistrate and the Prosecutor, Sergeant Moran, which relates to a most inappropriate entry on the charge sheet, and, quite properly, the learned Magistrate is disturbed by the entry with regard to the appellant’s occupation, as noted on the charge sheet.
- [20]Thereafter, Mr Douglas, at page 11 of the transcript, submits for a parole release today, being the 9th of March 2021, however, the transcript refers to ‘pro-release’. He further submits that the period in totality of an imprisonment should be nine months. The response by the learned Magistrate is one of the matters that gives rise to a ground of appeal, herein. At line 19, on page 11 onward his Honour says:
HIS HONOUR: These things have to be checked, you know? [indistinct] But, I mean, young constables are the funniest people in the world in their mind, but I don’t take any humour out of it. You might pass that on.
SGT MORAN: I will, your Honour, thank you.
HIS HONOUR: Yes, thank you.
SGT MORAN: Sorry, your Honour, I didn’t — wasn’t aware of that otherwise. I don’t know what I would have done or could have done, but - - -
HIS HONOUR: No it’s just — well, I mean, it’s disrespect on the part of the police officer.
MR DOUGLAS: Your Honour, my ultimate submission is that pro-release [indistinct] today. Your Honour, I submit that at a period, I don’t cavil with my friend’s period — I would say that a period of nine months in totality.
HIS HONOUR: Well, I think that’s well-short. MR DOUGLAS: That is my submission, your Honour.
HIS HONOUR: Because of the nature of the unlawful use, it was — clearly, what he was — it was — he’s got the key soon after the burglar.
MR DOUGLAS: Yes, your Honour.
HIS HONOUR: A couple of days later, he’s [indistinct] involved in something nefarious for sure, that’s the only inference I can draw.
MR DOUGLAS: Yes, your Honour.
HIS HONOUR: So it’s different to a normal joyride, this is something that he’s — the things are stolen and he’s using it to store other stuff, so that’s what makes it hard for him.
MR DOUGLAS: Again, your Honour, with the facts that are before the court there is no issue with the fact they are not submitting to the contrary. He is charged with what he is charged with. Your Honour, it is — I know this doesn’t put it all that high, but there is no damage to the car, the car has returned but there’s no comment to that. Again, your Honour, the specific - - -
HIS HONOUR: It was returned because they got him with it.
MR DOUGLAS: Yes. Your Honour, my ultimate submission is taking into account the rehabilitation of which he has effectively undertaken on his own accord and what effect a period of any imprisonment with the setback of that. He is someone extremely eager to get back into the community and I, again, take your Honour’s point that these are matters – serious matters. If they hadn’t been dealt with at the time, I would not be submitting – or I don’t think I would be submitting as to what I am and [indistinct] at today.
- [21]Later, as the exchange between the learned Magistrate and Mr Douglas proceeds, the Magistrate notes at line 35 on page 12, the following:
Of course, prison’s not going to do him any good at all.
- [22]Those matters are significant, as I have said, particularly with regard to the ground relating to the failure to afford the appellant procedural fairness. I say that in the sense that the only indication given by the learned Magistrate of the fact that he considered the period of nine months in totality insufficient, was where he suggested that the period submitted was “well, short.” In that respect, however, it is noted that there was no comment made by the Magistrate as to what he might have considered an appropriate penalty, in relation to a sentence reflecting the totality of the offending, other than that which was ultimately handed down by the Magistrate at the time of sentence.
- [23]More significant, however, is the fact that there was no suggestion that the period of time submitted by the Respondent was “well short”, and the only reasonable assumption that could properly have been made by Mr Douglas in the circumstances was that the period being considered by the learned Magistrate was a period of 12 months imprisonment.
- [24]It is perhaps understandable, therefore, that if the solicitor understood the Magistrate’s view to be somewhere between nine months and 12 months as the upper limit of any penalty to be imposed, then his simple submission to the Magistrate that he maintained his submission is understandable, whilst if it were to be indicated that a much more significant period was being suggested by the Magistrate as being appropriate, then a more determined address would be expected to have been put to the Magistrate, in relation to the nature of the penalty to be imposed.
- [25]In that respect, I was referred specifically to the comments of Keane JA as he then was in R v Cunningham [2005] QCA 321, where at pages 5 through 6, the following is said:
To impose a penalty without allowing the person affected to have an opportunity to respond is a clear breach of the rule of natural justice that a court is required to follow. As Lord Fraser of Tullybelton, in a passage approved by this Court in Re Criminal Proceeds Confiscation Act 2002 [2004] 1 Qd R 40 at 49, said in In re Hamilton; In re Forrest [1981] AC 1038 at 1045:
“One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any, as he sees fit. That is the rule of audi alteram partem which applies to all judicial proceedings, unless its application to a particular class of proceedings has been excluded by Parliament expressly or by necessary implication.”
It has been recognised in previous decisions of this Court that the principle described by Lord Fraser is as applicable to sentencing as it is to any other judicial proceeding. See, for example, R v Moodie [1999] QCA 125; CA No 439 of 1998, 14 April 1999.
- [26]It is submitted, therefore, on the part of the appellant that the Magistrate’s failure to invite submissions as to a term of imprisonment of 18 months was a breach of the requirements with regard to natural justice and procedural fairness.
- [27]From the perspective of the Respondent, the argument put is that whilst it may have, in some way, given rise to a concern for the appellant, it did not of itself bear any weight on the question of whether or not the penalty imposed was manifestly excessive. The respondent submits in any event that the appellant was not denied natural justice because whilst the learned Magistrate did not identify the specific sentence he was considering, he made it clear that he was considering something more significant than what the appellant’s representative proposed.
- [28]It was also contended on the part of the respondent that the appellant was afforded the opportunity to make further submissions but did not to any real extent take up that opportunity. That might be the case, however, in the circumstances that I have described, where there was no indication of the fact that the learned Magistrate was minded to consider a penalty significantly greater than that which might have been proposed by the Prosecutor, and that that was not communicated to the legal representatives for the appellant, is a factor which in my view looms large in relation to the determination of this matter.
- [29]Additionally, the grounds of appeal detail concerns held by the appellant in relation to a failure by the learned Magistrate to give sufficient weight to the appellant’s efforts at rehabilitation and other mitigating factors. As I have indicated already in these reasons, considerable submission was made by Mr Douglas in relation to that particular aspect of the matter. Of course, it is the case that the appellant is burdened with a criminal history, but as was acknowledged by the Prosecutor at the time, the appellant’s history is drugs and assaults, and that there was, as he put it, “a history of dishonesty.”
- [30]I do not consider that that is the case that can properly be extrapolated from the criminal history, noting as I do that it is, in respect of a 36 year old man, much more related to issues with regard to domestic circumstances and altercations with police, rather than any suggestion of dishonesty on the part of the appellant. That also, in my view, raises a need for some consideration, in relation to the determination of this matter.
- [31]Additionally, the grounds relied upon suggest that the learned Magistrate erred in imposing a sentence that was disproportionate to the gravity of the subject offending and to some extent that has already been addressed by me in respect of issues with regard to dishonesty. In the appellant’s counsel’s outline, there is an acceptance that there is a previous criminal history but that the imposition of a period of 18 months imprisonment for the offence of unlawful use of a motor vehicle was disproportionate to the gravity of that offending, particularly in the circumstances where there were not prior offences of dishonesty and, as was submitted, whilst the owner of the vehicles was deprived of their benefit for a period of time, there was no suggestion of any damage being occasioned to the vehicle in question and that it was returned without any need for consideration of restitution.
- [32]The respondent relies upon two cases in suggesting that there is not anything that gives rise to a disproportionate sentence being imposed, in relation to the offending which was before the Court. In that regard, reference was firstly made, understandably, to R v Nagy [2003] QCA 175 where the Court recognised that:
Where a Judge is faced with the task of imposing sentences for a number of distinct, unrelated offences there are a number of options open. One of those options is to fix a sentence for the most serious (or the last in point of time) offence which is higher than that which would have been fixed had it stood alone, the higher sentence taking into account the overall criminality.
- [33]Reference to the decisions in Nant v Maskell [1997] QCA 295 and R v French [2004] QCA 263, it is suggested, provide a yardstick in relation to the offending. I am not necessarily, however, of the view that they are that helpful, though perhaps Nant v Maskell may be a little closer in proximity to the nature of the offending here. French’s plea was late in time and included consideration of other offending as well as prior offending, which was required to be dealt with. French also was burdened with a far more serious criminal history and, perhaps of some significance, was the fact that the vehicle, the subject of the unlawful use, was a vehicle stolen from police directly. It seems that there are a number of distinguishing characteristics there and whilst in Nant v Maskell, the offender was burdened with a less onerous criminal history there were, of course, other distinctions that could be drawn, including the time that passed between the unlawful use and the return of the motor vehicle.
- [34]Ultimately, those various matters do lead to a consideration of whether, in all the circumstances, they give rise to a situation where the penalty imposed is manifestly excessive. In that regard, it is necessary to consider the basis upon which an appeal of this nature is made.
- [35]This appeal is an appeal against sentence. The right to appeal is a creature of statute, with the nature of the appeal right dependent on the construction of the statute concerned. It should particularly be noted that, as is the case here, where a person pleads guilty or admits the truth of a complaint, a person may only appeal under section 222(2)(c) of the Justices Act on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate. The appeal is then dealt with by way of rehearing on the original evidence given in proceeding before the magistrate, and in the circumstances, the court has the power to confirm, set aside or vary the order of the magistrate.
- [36]It is the sole ground of appeal relied upon here, and it is suggested by the appellant, that the sentence was manifestly excessive. In order for a sentence to be “excessive” it must be “beyond the acceptable”. It must be, as has often been said, “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”. In that regard, I am mindful of the decisions in R v Morse (1979) 23 SASR 98, R v Lomass (1981) 5 A Crim R 230, R v Macintosh [1923] St R Qd 278, and Lowe v The Queen (1984) 154 CLR 606.
- [37]In commenting upon appeals relating to sentences, whether they be manifestly excessive or inadequate, I note the recent decision of her Honour Judge Muir in Ross v Commissioner of Police [2018] QDC 99. There, Her Honour, when commenting upon the exercise of an appellant judge, noted at paragraph 8:
… it is not a sufficient basis for this court to intervene, that this court considers it might have taken a different course between the competing considerations which have to be weighed in the exercise of the discretion. It must appear that some error has been made in exercising the discretion of the kind identified in House v The King (1936) 55 CLR 499. If the Magistrate acted upon a wrong principle, if he allowed extraneous or irrelevant matters to guide or affect him, if he made a mistake about the facts, if he did not take into account some material consideration, then the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
- [38]There, Her Honour has eloquently expressed the very real need for there to be, not a simple substitution of one view for another, but a proper exercise of the appeal power and a recognition that a difference of opinion or view is not, of itself, simply a basis upon which an appeal should be upheld.
- [39]Her Honour made particular reference in her reasons to the decision of Keane JA (as he then was) in the R v Ikin [2007] QCA 224, where his Honour noted as follows:
The judgment appealed from is a discretionary one. An appeal can succeed only if an error of the kind described in House v The King (1936) 55 CLR 499 at 504 - 505 has occurred.
- [40]In this regard, there may be cases where the sentence is so “unreasonable or plainly unjust” in the circumstances as to give rise to an inference that the discretion has miscarried. It is this idea which informs the familiar ground of appeal that a sentence is manifestly excessive. But that having been said, as was emphasised by Kirby J in Dinsdale v the Queen [2000] HCA 54; [2000] 202 CLR 321 at 341, this court should allow an appeal against sentence only where the error is clearly apparent.
- [41]Perhaps most succinct of all, His Honour Judge Devereaux SC as he then was, noted in Rongo v Commissioner of Police [2017] QDC 258 the following:
It seems to me, then, that the focus in this and many appeals brought to this court on attempting to demonstrate an error in the exercise of the sentencing discretion is not misguided but slightly misplaced. The real question is whether the sentence was excessive, so that, although the appellant may argue that the magistrate made a certain error, the success of the appeal does not depend on persuading the appeal court on that point.
- [42]His Honour then goes on to note that:
Identifying a particular error might assist because it might explain why the sentence was excessive.
- [43]Therefore, it is necessary to consider whether the penalty here of 18 months, with an additional month to be served cumulatively in relation to the charge of failing to appear, is manifestly excessive.
- [44]The Respondent submits that that is not the case. They acknowledge that whilst perhaps heavy in the circumstances, it is not beyond the permissible range and whilst I accept that this is, of course, a reasonable submission to be made in relation to the proceedings, there is a concern here that the learned Magistrate has failed to provide procedural fairness but, more particularly, to also consider those factors which properly should have been taken into consideration pursuant to the requirements of the Penalties and Sentences Act, specifically with regard to rehabilitation and mitigation. In his sentencing remarks, at page 2 of those sentencing remarks, the learned Magistrate says:
Now you have pleaded guilty today. The plea was indicated a long time ago. It has just taken a long time to get here, mostly as a consequence of you not engaging with the Q-Link program as you might have otherwise, and then going missing. The circumstances of the offence are outlined in exhibit 1, and it relates to just a life being led, at that time, that was completely outside the book as a consequence of your dependence on drugs. Now, any cooperation with your assistance, given the law enforcement agencies in the investigation of offence, it is a matter that must be taken into account in mitigation of penalty. The making of a true confession is one such factor, but in this instance, you declined – sometimes you declined to make – engage in an interview. Other times you were simply misleading. I do take into, however, your plea of guilty. It has never gone to brief, and there was some discussion about the burglary as the alternative charges.
- [45]Thereafter there appears to have been a rather unusual exchange between the learned Magistrate and the defendant and then the learned Magistrate, at page 4 says:
There is not much else that I can put on the record that commends you to the Court, other than that, which it pains not to labour the point, your recent recovery. Now, the purposes for which I am imposing this sentence are to punish you to an extent and in a way that is just in the circumstances, to provide conditions that I consider will help you to be rehabilitated. To deter you and to deter others from doing this or a similar offence, to make it clear that the community, acting through the Court, denounces this sort of conduct in which you were involved and to protect the Queensland community from you. A number of those have relevance here. Clearly there is a denunciation aspect of it. You cannot engage in this sort of behaviour and not suffer a denouncement – a denunciation by the community, and that is what the Court is here to reflect. There is a need for rehabilitation. I accept that you started that, and I do not – it is with some reluctance that that will be put on hold. But the other issues, and I think it looms large, given your criminal history, is deterrence based specific to you and generally for other people who engage in this sort of behaviour.
- [46]The learned Magistrate referred to the need for denunciation. He also referred to the significant criminal history, however did not allude to the fact that the offending which was to be dealt with on this occasion, was significantly different to that for which the defendant had previously been dealt. It is also noteworthy that he spoke of punishment and a recognition of the need, in the circumstances, to provide conditions that would help with rehabilitation in relation to the offending. That, with respect to his Honour, does not seem to have taken the significant position that would have been appropriate in relation to this particular matter.
- [47]Specifically, when it was also noted that there was a reasonably early plea of guilty and that whilst serious offending arose, specifically with regard to the unlawful use of a motor vehicle, it was at what would properly, in my assessment, be considered the lower level of such offending, such that a penalty of 18 months is, in all the circumstances, excessive. As such, I am satisfied that the penalty, in its totality, imposed in relation to these proceedings was excessive and that the appeal should therefore be allowed. The orders of the Court will be as reflected at the commencement of these reasons.