Pamtoonda v Commissioner of Police
[2021] QDC 207
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- Pamtoonda v Commissioner of Police[2021] QDC 207
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Pamtoonda v Commissioner of Police[2021] QDC 207
Pamtoonda v Commissioner of Police[2021] QDC 207
DISTRICT COURT OF QUEENSLAND
CITATION: | Pamtoonda v Commissioner of Police [2021] QDC 207 |
PARTIES: | LEWIS GUY PAMTOONDA (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 35/21 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 Justices Act 1886 (Qld) |
ORIGINATING COURT: | Magistrates Court, Cairns |
DELIVERED ON: | 31 August 2021 |
DELIVERED AT: | Cairns |
HEARING DATE: | 27 July 2021 |
JUDGE: | Fantin DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the appellant pleaded guilty to 26 charges committed over an 11 month period, including enter premises and commit indictable offence by break and assault occasioning bodily harm – where the appellant was sentenced to a head sentence of three years imprisonment and lesser concurrent sentences, with a parole release date after serving 50% – where the appellant had a lengthy and relevant criminal history – whether the sentence was manifestly excessive by virtue of the parole release date being set at one half rather than one third of the head sentence Legislation Justices Act 1886 (Qld) s 222 Evidence Act 1977 (Qld) s 132C Penalties and Sentences Act 1992 (Qld) s 9(9A) Cases R v Hazelgrove [2013] QCA 243 R v Vaughan [2005] QCA 348 Teelow v Commissioner of Police [2009] 2 Qd R 489 House v The King (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 601 Ratcliffe v Queensland Police Service [2019] QDC 144 R v Ikin [2007] QCA 224 R v Lawley [2007] QCA 243 Markarian v The Queen (2005) 228 CLR 357 Allen v Commissioner of Police [2019] QDC 34 Dynevor v Commissioner of Police [2009] QDC 192 R v Frame [2009] QCA 9 R v Nagy [2004] 1 Qd R 63 R v Jason [2021] QCA 151 R v Hammond [1997] 2 Qd R 195 Bugmy v The Queen [2013] 249 CLR 571 R v Fernando (1992) 76 A Crim R 58 R v Sprott; Ex parte Attorney-General (Qld) [2019] 25 QLR |
COUNSEL | R Logan for the appellant R Boivin for the respondent |
SOLICITORS | Aboriginal and Torres Strait Islander Legal Service for the appellant The Office of the Director of Public Prosecutions for the respondent |
Background
- [1]On 19 February 2021 the appellant pleaded guilty in the Magistrates Court at Cairns to 26 offences committed on 22 separate dates over a period of 11 months. The offending included property offences, committing public nuisance, breach of bail conditions, and failing to appear. The most serious charges were one charge of enter premises and commit indictable offence by break, and two charges of assault occasioning bodily harm, one with the circumstance of aggravation while adversely affected by an intoxicating substance. The offence of enter premises by break had a maximum penalty of life imprisonment, the assault occasioning bodily harm seven years imprisonment, and the assault occasioning bodily harm with the circumstance of aggravation also had a mandatory minimum penalty of 40 hours unpaid community service.
- [2]On the enter premises charge, the appellant was convicted and received a head sentence of three years imprisonment with a parole release date fixed after serving 50%. He received lesser concurrent sentences for the other offences. The learned Magistrate declared 80 days of presentence custody as time served under the sentence.
- [3]The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld) against the head sentence on the ground it is manifestly excessive. During oral submissions the appellant’s counsel abandoned any challenge to the head sentence of three years. The sole ground of challenge related to the fixing of a parole release date at one half of that head sentence rather than one third.
- [4]For the reasons that follow, I would dismiss the appeal.
Circumstances of the offending
- [5]The following table prepared by the appellant’s legal representatives summarises the chronology of the offences and penalties imposed.
Charge | Offence | Date | Sentence |
1 | Enter premises & commit indictable offence by break | 16 December 2019 | Three years imprisonment |
2 | Wilful damage | Six months imprisonment | |
3 | Stealing from the person | 12 months imprisonment | |
4 | Commit public nuisance | 5 February 2020 | Three months imprisonment |
5 | Commit public nuisance | 19 February 2020 | Three months imprisonment |
6 | Commit public nuisance | 2 March 2020 | Three months imprisonment |
7 | Commit public nuisance | 21 March 2020 | Three months imprisonment |
8 | Trespass | 28 March 2020 | Convicted and not further punished |
9 | Assault occasioning bodily harm | 9 May 2020 | 18 months imprisonment |
10 | Contravention of police protection notice | 14 Aug 2020 | 12 months imprisonment |
11 | Breach of bail condition | 1 September 2020 | Convicted and not further punished |
12 | Breach of bail condition | 8 September 2020 | |
13 | Breach of bail condition | 15 September 2020 | |
14 | Breach of bail condition | 22 September 2020 | |
15 | Breach of bail condition | 28 September 2020 | |
16 | Breach of bail condition | 5 October 2020 | |
17 | Breach of bail condition | 12 October 2020 | |
18 | Breach of bail condition | 19 October 2020 | |
19 | Unauthorised dealing with shop goods | 25 October 2020 | |
20 | Unauthorised dealing with shop goods | ||
21 | Breach of bail condition | 26 October 2020 | |
22 | Breach of bail condition | 3 November 2020 | |
23 | Assault occasioning bodily harm, whilst adversely affected by an intoxicating substance | 10 November 2020 | 18 months imprisonment and 40 hours community service, within six months of release |
24 | Breach of bail condition | 16 November 2020 | Convicted and not further punished |
25 | Failure to appear | 16 November 2020 | |
26 | Failure to appear | 26 November 2020 |
- [6]The appellant was aged 27 and 28 years old during the offending. He was 28 years old at sentence.
- [7]I summarise below the circumstances of the offending.
- [8]On 16 December 2019 at about 2am the appellant and two male co-offenders entered the premises of a restaurant and bar in the city by removing metal fence palings (charge 1 – enter premises and commit indictable offence by break). They stole 26 bottles of beer, four cans of ginger beer, one bottle of liqueur, four bottles of wine, six bottles of mixing syrups and two cocktail mixing glasses. While inside the premises, they also destroyed a metal bar that had been locking the alcohol in the fridge (charge 2 – wilful damage). A female co-offender kept a look-out. They then stole a wheelie bin, which they used to transport the items away from the address. The offending was unsophisticated. There was no attempt at disguise. It was captured on CCTV. Police apprehended the offenders walking along the street with the stolen items in the bin about 40 minutes later. There was no information before the learned Magistrate as to the value of the alcohol stolen or the damage caused. The appellant did not participate in an interview with police. He was charged and released on bail.
- [9]About 15 minutes before committing the above offences, the same group had come upon a young man asleep on the footpath in the city. They stole his bank card and overseas driver licence (charge 3 – stealing from the person). They left his mobile phone behind. Again, this was captured on CCTV. The stolen cards were located in the appellant’s pocket. It appears that both items were returned.
- [10]There was no information about sentences imposed on co-offenders, so parity was not an issue on sentence.
- [11]All of the subsequent offences were committed while on bail and most occurred in circumstances where the appellant was intoxicated. Most of the offending occurred in public places in Cairns, with the exception of charge 10 and some of the breaches of bail conditions, which occurred on Mornington Island.
- [12]On four occasions in February and March 2020, the appellant while intoxicated in a public place in the city was involved in physical fights with others who were also drinking alcohol, or was abusive and causing a disturbance (charges 4 to 7 inclusive – public nuisance). The last of those involved the appellant chasing a woman while armed with a pair of scissors. The trespass (charge 8) involved the defendant being part of a group consuming alcohol and fighting at a shopping centre and then hiding in the shopping centre loading dock.
- [13]In May 2020 the appellant went to the home of a 59 year old man, kicked the door open and demanded alcohol. The man told him to leave. As the appellant left, the man followed him outside. The appellant struck the man to the head first using a bottle, and then later a sewing machine case. The man suffered a laceration to his forehead that bled profusely and a “bump” (charge 9 – assault occasioning bodily harm). When police arrived the victim told them that the appellant was asleep on a couch outside the front of the unit. The appellant admitted hitting the man with a bottle but later denied any wrongdoing. He was charged and released on bail. The victim was taken to hospital by ambulance. There was no information provided about the medical treatment he received, and there was no victim impact statement.
- [14]In August 2020 the appellant was on Mornington Island in the Gulf of Carpentaria. He was issued with a police protection notice prohibiting him from approaching or entering the home of a woman, described as someone he was in a mother son relationship with. Some 30 minutes after the order was made, he breached the conditions by going to the named address, asking the aggrieved for a cigarette, and then leaving (charge 10 – contravention of police protection notice). The aggrieved left her home and went to stay with others because she felt unsafe.
- [15]In September 2020 the appellant was arrested on outstanding warrants. He was granted bail with a weekly reporting condition to Mornington Island police station.
- [16]In September 2020, he failed to report on Mornington Island. He was eventually located back in Cairns, arrested for the breaches and granted bail with a reporting condition to Cairns police station. He failed to report in Cairns (charges 11 to 18 inclusive – breach of bail).
- [17]On 25 October 2020, the appellant stole alcohol from two separate bottle shops near Cairns, (charges 19 and 20 – unauthorised dealing with shop goods). In the morning he stole two cartons of beer and took them to a park where he was found drinking them. He was issued with a notice to appear. That afternoon he went to a different bottle shop and stole a bottle of rum. Each offence was captured on CCTV. When questioned by police the next day, the appellant was too intoxicated to remember the second theft.
- [18]On 10 November 2020, the appellant was in a park in Cairns with others. He punched a 27 year old woman to the body and face several times. Police were across the road and heard the woman screaming. The woman called out for the appellant to stop but he continued punching her. The woman fell to the ground and the appellant continued to punch her from above (charge 23 – assault occasioning bodily harm whilst adversely affected by an intoxicating substance). As police ran across the road to intervene and yelled out for him to stop, the appellant struck the victim once more and turned towards police, before he was tackled to the ground. He said he assaulted her because she woke him up. The victim was in pain as a result of the assault. She suffered a bruised eye and sore face and head. There was no information about whether she received medical treatment, and no victim impact statement. The appellant was breathalysed at the watch house and returned a blood alcohol reading of 0.129%.
Antecedents and criminal history
- [19]The appellant had a lengthy and relevant criminal history, ten pages in length.
- [20]It included property and motor vehicle offences committed as a juvenile, for which convictions had been recorded. His adult history contained many previous convictions for property offending. He was sentenced in the Magistrates Court in 2010, 2011, 2012, 2013, 2014, and 2015 for multiple property and dishonesty offences. He had been sentenced to multiple short (up to 12 months) terms of imprisonment, generally with a parole release or eligibility date after serving one third of the head sentence in actual custody.
- [21]The most recent serious offences had been committed in 2015. They included three counts of burglary, one count of enter premises and commit indictable offence by break, and one count of attempted robbery using or threatening violence while armed with actual violence, together with lesser charges, committed in breach of a probation order. For those offences he was sentenced in the District Court in June 2016 to a head sentence of four years imprisonment, with a parole eligibility date of 30 October 2016. Presentence custody of 338 days was declared as time served under the sentence. The sentencing remarks do not reveal the facts of the offending. In sentencing the appellant, the Chief Judge said:
“You are a young man, you are only 24, but you have a substantial criminal history, an unimpressive history, indeed, of dishonesty and other matters. You seem to have shown little respect for other people’s property and the law in general. I am told that whilst you have been in prison you have attended some courses relating to alcohol abuse, and that you want to do some other courses which might assist you in getting parole. … You must understand that if you continue with your present lifestyle, you are just going to spend more and more of your life in jail.”
- [22]It is not known what date the appellant was released on board ordered parole. He reoffended on 28 November 2017, committing an offence of possession of liquor in a prohibited area. It appears that the appellant completed the balance of his parole by June 2019 without committing further offences of a serious nature.
- [23]In December 2019, about six months after his parole expired, the appellant resumed reoffending. He continued to do so regularly over the next 11 months until he was remanded in custody. In 2020, there were four convictions for failing to appear.
- [24]I was informed that, in total, the appellant had 16 previous convictions as an adult for enter premises and commit indictable offence by break, and a number of previous convictions for burglary and commit indictable offence.
- [25]The appellant’s plea of guilty was early or at least timely. There was no suggestion any charge had been contested.
- [26]The appellant was an Aboriginal man raised in Aurukun in Cape York, who had also lived on Mornington Island.
- [27]His solicitor (who was not the same advocate who appeared on the appeal) submitted that he was raised by a variety of family members, and his mother was not involved in his childhood.
- [28]He was educated only to grade 8. While he did work in the mining industry for about one year, for most of his life he had been unemployed and receiving a Centrelink allowance.
- [29]He first consumed alcohol at the age of 16 and developed an addiction to alcohol at a very young age. He was reducing his consumption between the ages of 21 to 27, but when his brother was killed in a motorbike accident in early 2020, his alcohol use increased.
- [30]He had two children aged 9 and 10 who lived in Aurukun with their mother.
- [31]He was remorseful for, and had some insight into, his actions, as expressed through a letter of apology to the victims and the Court dated 11 January 2021, tendered on sentence.
- [32]In that letter he spoke of a plan to improve himself by returning to Aurukun (a community with alcohol restrictions), living with his father, seeking employment and re-engaging with his children. He also planned to join a men’s group in the community for guidance and support and said “I will engage a general practitioner for referral to mental health professionals that can provide me strategies to deal with life’s challenges and making positive choices.” On the face of the letter, the appellant appeared motivated to change his life.
- [33]No material was placed before the learned Magistrate about the appellant’s performance in custody on remand including completion of courses to address substance abuse or violence, nor was there any submission provided by a Community Justice Group.
Submissions and sentencing remarks in Magistrates Court
- [34]The police prosecutor in the Magistrates Court submitted that, based on R v Hazelgrove [2013] QCA 243, a term of imprisonment of three and a half years was not out of range but ultimately sought a head sentences of three years, “taking into account the plea of guilty as a factor in remorse and decreasing penalty.” He relied heavily on R v Vaughan [2005] QCA 348 and submitted for a term of three years imprisonment partly suspended after serving 18 months (one half of the sentence) for an operational period of five years.
- [35]The appellant’s solicitor described the offending as “extremely serious” and conceded that “the only available penalty is one of a significant period of imprisonment”. During the solicitor’s submissions, the learned Magistrate said “Well, I can tell you, at first blush the issue for Mr Pamtoonda is me being persuaded that I can adequately punish him with three years. I’m familiar with Vaughan. It’s a useful comparative”. The appellant’s solicitor said “It’s certainly conceded the facts [in Vaughan] are extremely similar in terms of the offending and also the antecedents”. His Honour responded “Yes. And the Court of Appeal said it was a pretty broad range up to four years.” The appellant’s solicitor pointed to an absence of alcohol addiction in Vaughan as a distinguishing factor. Later, the appellant’s solicitor conceded: “Your Honour, it’s very difficult to submit on a penalty outside of the range outlined in Vaughan.”
- [36]In his sentencing reasons the learned Magistrate referred to the “range” for this offending referred to in Vaughan of two to four years, and concluded that the appropriate sentence was one of three years imprisonment, consistent with the penalty imposed in Vaughan. He declared 80 days presentence custody as time served under the sentence. He said:
“… to reflect the aggravated features of your antecedence [sic] criminal history and the seriousness of the offending you ought not be given any significant discount for the pleas of guilty. I fix the parole release date, which will see you serve one half of the period of imprisonment. I fix the parole release date as at the 30th of May 2021. Oddly, in respect of the matter where there is a circumstance of aggravation to the assault occasioning bodily harm charge 28, you are required to perform, as part of the sentence, a mandatory minimum 40 hours community service. That will be performed on your release from incarceration.”
He then corrected the parole release date to 31 May 2022, rather than 2021. In response to a question from the prosecutor about suspension, he clarified that he was not suspending the sentence but giving the defendant parole.
Grounds of appeal
- [37]The sole ground of appeal is that the sentence was “manifestly excessive”. In accordance with s 222(2)(c), properly, the ground of appeal is that the punishment was excessive.
- [38]The appellant submits that the learned Magistrate erred by:
- setting the parole release date at one half of the head sentence;
- failing to give appropriate weight to the appellant’s mitigating circumstances and prospects of rehabilitation; and
- allowing the appellant’s criminal history to overwhelm the objective seriousness of the offending.
Applicable principles
- [39]In order to succeed, the appellant must demonstrate that, having regard to all of 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.[1]
- [40]The relevant principles regarding appeals against sentence are those set out in House v The King.[2] There are two categories of appeal grounds: those that allege a specific error by the first instance decision-maker and those that allege a miscarriage of the sentencing discretion resulting in a sentence that is manifestly excessive or inadequate.
- [41]In cases in which a specific error is established, “the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.”[3]
- [42]It is not necessary however to identify a particular error in the exercise of the discretion. “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.”[4]
- [43]In cases of complaints of manifest excess, an appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences that could have been imposed upon the appellant for this offence.[5] It is not a sufficient basis of intervention that the appellate court may have imposed a different sentence in the exercise of the sentencing discretion.[6]
- [44]
“As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King [citation omitted] itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".”
Comparable cases
- [45]In R v Vaughan [2005] QCA 348 the applicant was convicted of one count of breaking and entering premises and stealing. He was sentenced to three years imprisonment, suspended after 18 months for an operational period of five years. The appeal against sentence was dismissed. The applicant, in company, used an instrument like a crow-bar to break into a restaurant, stealing cash trays and causing damage to the value of $2,549.70. He was 25 and had an extensive criminal history for property offences which included four separate periods of actual incarceration. He left school after grade 10, had a partner and two children and received a disability pension. He did not use drugs or alcohol. Keane JA observed that this was a “double-edged sword”: “Whatever positive light it might cast on his character generally, it means that he cannot point to addiction as an explanation for his offending which might encourage the court to take a favourable view of his prospects of rehabilitation. It was, in my respectful opinion, open to the learned sentencing judge to proceed on the footing that the prospects for the rehabilitation of the applicant are quite poor”.[8]
- [46]Keane JA concluded:
“In my respectful opinion, having regard to the applicant’s appalling criminal history and the need for deterrence to which his Honour referred, the head sentence on which his Honour fixed cannot be said to be excessive. In R v Donald [citation omitted] de Jersey CJ commented that a three year term for breaking and entering a dwelling house was “at least mid range … and arguably low range” when an offender has a substantial criminal record.”[9]
- [47]Keane JA noted that he did not consider that there was any significant difference between breaking into business premises rather than a dwelling house. He considered the suspension of the head sentence after 18 months a “substantial moderation” of the head sentence by way of recognition for the applicant’s youth and his plea of guilty. This was especially so “in the absence of any evidence to suggest the applicant has shown any real remorse or has made any attempt to set his life on a more positive course”.[10]
- [48]In my view, Vaughan does not support the appellant’s contention that the sentence imposed in this case was excessive. Accepting that the value of the loss of or damage to property in Vaughan may have been potentially greater than that in charges 1 and 2 committed by the appellant, Vaughan was sentenced for only a single offence whereas the appellant committed 26 offences over a lengthy period. The appellant’s head sentence of three years imprisonment which attached to the charge of enter premises and commit indictable offence by break was elevated to reflect the total criminality of all of his offending, most of which was committed while on bail for the enter premises charge. Significantly, the other offending included two separate assaults occasioning bodily harm committed on separate dates on two separate victims, as well as a spate of nuisance type offending. In addition, the appellant was slightly older than Vaughan and had a more serious criminal history. Although the appellant in this case had shown remorse by his letter of apology, there was no evidence to suggest that he had taken steps in any tangible way to address his substance abuse problem and propensity to commit property and violent offences when intoxicated. His letter of apology was an expression of hope that he may be able to change his behaviour, rather than any demonstration of actual rehabilitation.
- [49]On appeal, the appellant relied upon some single judge decisions in appeals from the Magistrates Court as “yardsticks” for property offences for those with relevant histories.
- [50]In Allen v Commissioner of Police [2019] QDC 34 the appellant was sentenced to 20 months imprisonment for 31 charges including an attempted enter premises with intent, an enter premises and commit indictable offence, an enter premises and commit indictable offence by break, other property offences and several drug offences. She pleaded guilty, had a “relevant and substantial criminal history” predominantly for drug and dishonesty offences but had never previously been sentenced to any actual incarceration. The appellant had gone along with the co-offender, who she was in a relationship with. He had been sentenced to 18 months imprisonment. Since incarceration she had taken steps to address her drug addiction, had arranged counselling for her post-traumatic stress disorder and substance abuse, and had worked while on remand and before being incarcerated. In ex tempore reasons, the appeal was allowed and Allen was re-sentenced to a total effective head sentence of 15 months imprisonment, noting parity issues. The appellant in Allen had a less serious criminal history, more favourable antecedents, and demonstrated steps towards rehabilitation. Allen is readily distinguishable from the subject appeal and does not support a submission that the subject sentence was excessive.
- [51]In Dynevor v Commissioner of Police [2009] QDC 192, the appellant was sentenced for one charge of enter premises with intent to commit an indictable offence, and one charge of drive while disqualified. He was 24 years old, had a poor criminal history with a “considerable experience of incarceration” including robbery, and multiple enter premises/dwelling and commit indictable offence. While seeking to enrol his children in a kindergarten he was left unattended in an office and sought to force entry to a filing cabinet in the hope of obtaining money to buy food for his four young children. The driving offence involved his having four passengers in the back seat of the vehicle. He was sentenced to 12 months imprisonment with parole release after six months. The appeal was allowed only to the extent of fixing a parole release date at the one third mark to reflect his plea of guilty. The circumstances of the offending in Dyvenor are so different to the subject case that this decision is of no assistance. It does not support the appellant’s contention that the sentence in the subject case is excessive.
- [52]The appellant’s contention that the sentence is manifestly excessive is also a difficult one to maintain in circumstances where his solicitor effectively conceded to the learned Magistrate that the sentence in Vaughan was within range. Keane JA said in R v Frame at [6]:[11]
“It has been said recently on a number of occasions in this Court that, because a party is ordinarily bound by the conduct of his case at first instance, the circumstance that the sentence imposed on an applicant for leave to appeal accords with the submissions made on behalf of the applicant to the learned sentencing judge is an obstacle to an argument that the sentence imposed was manifestly excessive. In R v Walsh, I said:
"The imposition of a just sentence is, of course, the responsibility of the sentencing judge; but where the sentence which is imposed accords with the position taken by the offender before the sentencing judge, the contention that leave to appeal should be granted because the sentence is manifestly excessive is difficult to sustain. If the sentence were indeed manifestly excessive then the applicant would not have agreed, by his Counsel, that it might properly be imposed. The applicant's submission is one to which effect could be given only in special circumstances sufficient to warrant the conclusion that the applicant should not be regarded as bound by the conduct of his case in the court below (R v Carter [2008] QCA 226 at [19]; R v AAF [2008] QCA 235 at [11]). No such circumstances are apparent here." (emphasis in original) [citations omitted]”
Setting the parole release date at one half of the head sentence
- [53]The learned Magistrate adopted the approach endorsed by the Court of Appeal in R v Nagy.[12] Williams JA said in that case at [39]:
“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. But that approach should not be adopted where it would effectively mean that the offender was being doubly punished for the one act, or where there would be collateral consequences such as being required to serve a longer period in custody before being eligible for parole, or where the imposition of such a sentence would give rise to an artificial claim of disparity between co-offenders. That list is not necessarily exhaustive. Such considerations may mean that the other option of utilising cumulative sentences should be adopted.”
- [54]The law does not require that in every sentence mitigating circumstances must be reflected by moderation of the time which an offender will have to serve before being released on, or eligible for, parole. Reduction of the minimum parole period is simply one means by which a sentence may be moderated to allow for mitigating circumstances such as timely pleas of guilty. Others are reduction of both the head sentence and the parole eligibility or release period, or a reduction of the head sentence only.
- [55]It was open to the learned Magistrate to use the Nagy methodology in this case. In doing so his Honour had to ensure that the result was not worse for the appellant than it would have been by an accumulation of the terms. He could have structured the sentence by imposing cumulative sentences for each of the three most serious offences (the enter premises and the two assault offences) given that they were unrelated in time and circumstances and involved different victims, moderating down for totality.
- [56]Accumulating those terms may have resulted in a total period of imprisonment of over three years. For example, each of the assault occasioning bodily harm charges, if dealt with alone and without considerations of totality, could have attracted a term of the order of 12 months imprisonment. The enter premises charge, if dealt with alone and without considerations of totality, could have attracted a range of two to two and a half years imprisonment.
- [57]If the total period of imprisonment exceeded three years, the learned Magistrate would only have been able to impose a parole eligibility date, not a parole release date. For example, if a total period of three and one half years imprisonment had been imposed, with a parole eligibility date at one third, that would have seen the appellant serve 14 months before being eligible for parole. Given his criminal history, the appellant may have had difficulty getting parole at that date. In addition, taking judicial notice of the extensive delays currently experienced by applicants for parole,[13] an application made for parole made to the Parole Broad of Queensland today would not be considered for several months. That may have seen the appellant serve 20 months or even more before receiving parole, if he had a parole eligibility date.
- [58]Adopting the Nagy methodology and fixing a head sentence at three years had the singular advantage to the appellant of a fixed parole release date, rather than a parole eligibility date. Given the appellant’s poor and relevant criminal history, he was not an appropriate candidate for a suspended sentence. He required support and supervision on release, which would be provided by parole but not suspension.
- [59]The value of the plea of guilty and the few mitigating features in the appellant’s favour were reflected by reducing the head sentence to three years and fixing a parole release date, albeit at a point later than one third of the head sentence. The learned Magistrate was entitled to require the appellant to serve longer in custody before being released on parole because of the strong risk of reoffending. In the circumstances, a parole release date at one half cannot be said to be have rendered the sentence manifestly excessive.
- [60]This ground of appeal fails.
Mitigating circumstances and prospects of rehabilitation
- [61]In his sentencing remarks, the learned Magistrate noted the appellant’s timely plea of guilty.[14] Although he initially said that “That’s about the only feature that can properly be said to be taken into account to your credit”, he went on to refer to other matters in the appellant’s favour. He noted the remorse expressed in the appellant’s letter, but observed, correctly in my respectful view, that the appellant had not stopped reoffending. He noted that the weight to be given to the remorse and the pleas of guilty were moderated given his “appalling antecedent criminal history”.[15] He noted that there was “no medical condition”. He referred to the submission that the appellant had substance abuse problems.[16] He accepted, given the appellant’s age of 28, that there may be some prospects of rehabilitation, and that the appellant had expressed a desire to participate in alcohol treatment and to return to his community.[17]
- [62]The appellant’s solicitor had submitted, and it was not challenged by the prosecution, that these offences occurred in the context of the appellant having a severe addiction to alcohol, and were committed because he had no access to alcohol at the time and was suffering from withdrawal.
- [63]The sentencing judge may act on an allegation of fact that is admitted or not challenged, but is not obliged to do so.[18] Here, there is no suggestion that the learned Magistrate did not act upon that submission by the appellant’s solicitor.
- [64]Pursuant to s 9(9A) of the Penalties and Sentences Act 1992, voluntary intoxication of an offender by alcohol or drugs is not a mitigating factor for a court to have regard to in sentencing the offender.
- [65]However, paraphrasing R v Hammond,[19] this is a case where it may be inferred that the offender may almost certainly not have committed the offences but for the loss of control of an ordered life through alcohol addiction. The property offending was impulsive. He was stealing alcohol to feed his addiction. The appellant must of course be held responsible for his addiction. The addiction is not an excuse but it is a factor that may tell the court that the real weakness of character is that of an addict, rather than that of a robber. It is, however, a two edged factor. It may also tell the court that rehabilitation is going to be difficult. Addictions ordinarily increase the weight to be given to personal deterrence (and community protection) because of the associated risk of reoffending. The fact that the appellant’s alcohol addiction has led to criminal activity can properly lead to a wider understanding of his character and motivation for the crime. Depending on the circumstances of a particular case, this may sometimes show the offender to be less deserving of condemnation than the primary facts without more might suggest.
- [66]Other than the submissions identified, no other submissions were made and no material was placed before the Magistrate about the appellant’s personal circumstances, background, and any physical or mental health condition. An Aboriginal offender who can be shown to have suffered systemic disadvantage in a way that explains or contributes to an understanding of the offending is entitled to have that taken into account as a mitigating factor. Although the appellant was an Aboriginal man raised in Aurukun, no submissions were made to the learned Magistrate about early exposure to alcohol abuse or violence, deprived background, social disadvantage, or trauma.[20] This meant that there was no material for the learned Magistrate to act upon in that respect. It is incumbent on the advocate appearing on sentence to place relevant material in mitigation before the court. The court cannot act in a vacuum.
- [67]The learned Magistrate expressly took into account the mitigating circumstances referred to by the appellant’s solicitor, such as they were. I do not accept that they were given insufficient weight.
- [68]There was no application to adduce new evidence on appeal.
- [69]This ground of appeal fails.
Criminal history
- [70]The learned Magistrate was entitled to treat the appellant’s lengthy relevant criminal history for property and dishonesty offending as an aggravating feature. There is no evidence that he gave disproportionate weight to it. The two offences of assault occasioning bodily harm committed as part of the subject offences appeared to be an escalation in his offending.
- [71]This ground of appeal fails.
Conclusion
- [72]My review of the decisions referred to leads me to the conclusion that a head sentence of three years imprisonment with parole release at one half was towards the upper end of the range. But they do not support the appellant’s submission that the sentence was beyond the range of appropriate sentencing options.
- [73]It is only when the court is convinced that the sentence is definitely outside the scope of appropriate sentencing discretion that it is ever justified in exercising the discretion to resentence on the basis that the sentence was manifestly excessive.[21] The sentence imposed in this case was not outside the scope of appropriate sentencing discretion for the appellant’s overall criminal conduct which included:
- repeated persistent property and social nuisance offending over a lengthy period;
- two offences of violence occasioning bodily harm against two separate victims on separate occasions in unrelated circumstances, and a contravention of a police protection notice involving a third victim (albeit with no actual violence);
- offending while on bail;
- breaches of bail reporting conditions;
- by someone with a relevant and poor criminal history for property offending, for whom multiple previous terms of imprisonment involving actual custody had not acted as a deterrent.
- [74]Because of the applicant’s criminal history, personal deterrence and protection of the community were significant factors. The appellant’s age meant that he still had some prospects of rehabilitation but he required support for his alcohol addiction. This and the other mitigating circumstances were taken into account by the learned Magistrate.
- [75]Another judge might have imposed a more lenient sentence with a parole release date at one third of the head sentence, but it cannot be said that the sentence was manifestly excessive.
Orders
- [76]The appeal should be dismissed.
- [77]No party made any submissions as to costs. I make no order as to costs.
Footnotes
[1] Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4] per Muir J (Fraser JA & Mullins J agreeing).
[2] (1936) 55 CLR 499 at 504 – 505.
[3] Kentwell v R (2014) 252 CLR 601 at [35]; see similarly Ratcliffe v Queensland Police Service [2019] QDC 144 at [15].
[4] R v Ikin [2007] QCA 224 at [5].
[5] Kentwell v R (2014) 252 CLR 601 at [35].
[6] R v Lawley [2007] QCA 243 at [18].
[7] (2005) 228 CLR 357; [2005] HCA 25 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ.
[8] At [13].
[9] At [16].
[10] At [17]
[11] See R v Frame [2009] QCA 9.
[12] [2004] 1 Qd R 63; [2003] QCA 175.
[13] See alsoR v Jason [2021] QCA 151
[14] Transcript of Sentencing Remarks, at 2.
[15] Transcript of Sentencing Remarks, at 3.
[16] Transcript of Sentencing Remarks, at 3.
[17] Transcript of Sentencing Remarks, at 3.
[18] Section 132C Evidence Act 1977 (Qld).
[19] [1997] 2 Qd R 195; (1996) 92 A Crim R 450.
[20] See Bugmy v The Queen [2013] 249 CLR 571; R v Fernando (1992) 76 A Crim R 58. See also the resources available to assist practitioners appearing for Aboriginal offenders such as the New South Wales Public Defender’s Office Bugmy Bar Book at https://www.publicdefenders.nsw.gov.au/barbook.
[21] R v Sprott; Ex parte Attorney-General (Qld) [2019] 25 QLR at [14].