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WPT v QPS[2021] QDC 250

DISTRICT COURT OF QUEENSLAND

CITATION:

WPT v QPS [2021] QDC 250

PARTIES:

WPT

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO:

Appeal No 96/21

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

8 October 2021

DELIVERED AT:

Cairns

HEARING DATE:

6 September 2021

JUDGE:

Morzone QC DCJ

ORDER:

  1. Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886  – whether sentence manifestly excessive – whether erroneous characterisation of offending insufficient – whether weight on early guilty plea, remorse and apology – whether undue weight on previous convictions.

LEGISLATION:

Criminal Code 1899 (Qld) s 340(1)(b)

Domestic and Family Violence Protection Act 2012 (Qld) s 177

Penalties and Sentences Act 1992 (Qld) s 9

Justices Act 1886 (Qld) ss 222, 223

CASES:

Allesch v Maunz (2000) 203 CLR 172

Fox v Percy (2003) 214 CLR 118

House v The King (1936) 55 CLR 499

Kentwell v R (2014) 252 CLR 60

Lovell v Lovell (1950) 81 CLR 513

Mill v The Queen [1988] 166 CLR 59

R v Adcock [2021] QDC 116

R v Benson [2014] QCA 188

R v Brown [2013] QCA 185

R v Holden [2006] QCA 416

R v Juric [2003] QCA 132

R v MCL [2017] QCA 114

R v Murray [2014] QCA 250

R v Nagy [2004] 1 Qd R 63

R v O'Sullivan; R v Lee; ex-parte Attorney-General (Qld) [2019] QCA 300

R v Pootchemunka (Unreported, QDC, 3 October 2011, Harrison DCJ)

R v Reuben [2001] QCA 322

The Queen v Crofts [1999] 1 Qd R 386

The Queen v Kendrick [2015] QCA 27

The Queen v Kendrick [2015] QCA 27

Veen v The Queen (No. 2) (1988) 164 CLR 465

White v Commissioner of Police [2014] QCA 121

COUNSEL:

T Grau for the Appellant

SOLICITORS:

Aboriginal and Torres Strait Islander Legal Service for the Appellant

The Office of Director of Public Prosecutions for the Respondent


Introduction

  1. [1]
    On 18 June 2021, the appellant was convicted on his own plea of guilty in the Magistrates Court held in Cairns, of contravention of domestic violence order, serious assault police officer and obstruct police and he was sentenced to an effective 15 months of imprisonment with a parole release date set at one third of the sentence.
  2. [2]
    The appellant now appeals his sentence on the grounds that it is manifestly excessive.  The appellant argues that the sentence was manifestly excessive because:
  1. The sentencing magistrate erred by the characterisation of the appellant’s offending as being coupled with other offending similar to the cases placed before him;
  2. the sentencing magistrate erred by not placing sufficient weight on the appellant’s early guilty plea, remorse and apology to officers;
  3. the sentencing magistrate erred by not placing sufficient weight on the principle that despite an offender’s previous convictions the sentence imposed must not be disproportionate to the gravity of the current offence.
  1. [3]
    The appeal is opposed.  The respondent argues that the sentence was within the permissible range for concurrent sentences for the whole offending.
  2. [4]
    On my review, whilst the sentence is in the high end of the range, I am not persuaded that it is manifestly excessive generally or as a result of any error.  The appeal fails.

Appeal

  1. [5]
    The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).  Pursuant to s  223 of the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave.  However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.  The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing) and make up its own mind about the case.[1]  Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings.  In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence and attach a good deal of weight to the magistrate’s view.[2]
  2. [6]
    For an appeal by way of rehearing “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error,”[3] and thereby resulted in a manifestly excessive sentence.
  3. [7]
    This court ought not interfere with a sentence unless it is manifestly excessive, that is, “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”.[4] 
  4. [8]
    Even if the appellate court finds that the sentence was at the extreme end of a permissible range, or has a different opinion about the way in which the discretion should be exercised, these are not sufficient justifications for review; it must be shown that the discretion miscarried resulting in a manifestly excessive sentence.[5]  In that context, it may be vitiated by an error of principle, where there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.[6]
  5. [9]
    The decisions of House v The King[7] and Kentwell v R[8] distinguished cases of specific error and manifest excess.  Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed.  By contrast, an error may not be discernible; but the sentence is manifestly excessive as being too heavy and lies outside the permissible range.  Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.

Sentence Proceedings

  1. [10]
    The sentence proceeded on an agreed statement of facts, backgrounded by the appellant’s criminal history, and the domestic violence protection order.
  2. [11]
    The offending was in the context of domestic violence in breach of a domestic violence order and subsequent police intervention on 20 April 2021.  The 35 year old Torres Strait Islander appellant was initially involved in a verbal argument with his partner, before he dragged her by the shirt and punched her once in the face (Charge 1).  When police arrived, the appellant admitted to dragging the aggrieved outside, but became agitated and resisted their arrest and handcuffing.  While trying to place the appellant’s hands behind his back for handcuffing, he punched one officer’s face just beneath the eye and caused him immediate pain and discomfort (Charge 2).  The appellant continued to resist arrest and tried to run away from the officer, before he turned around and tried to grab the other officer, who pulled away, an officer used his taser and restrained the appellant (Charge 3).  The first officer suffered pain and discomfort to his right eye and a swollen left thumb/hand, and the other officer suffered grazing to his right elbow and knee. No more details were provided about the medical treatment received by the officers.
  3. [12]
    The prosecutor relied upon the appellant’s lengthy and relevant criminal history, including previous violent offending resulting in three years imprisonment that expired just under three months before on 2 January 2021. He referred the court to comparative cases of AE v Commissioner of Police [2017] QDC 254; R v James [2012] QCA 256; R v MCL [2017] QCA 114; and R v Brown [2013] QCA 185, to contend for a sentence of 12 to 15 months of imprisonment for the most serious charge 2 of serious assault police officer.  In doing so the prosecutor acknowledged that the cases were “quite different in nature” but involved “coupled offences being a serious assault police coupled with other offences”.  He equated such aggravating circumstances to the appellant’s serious assault as offending following the earlier contravention of domestic violence order charge and before the later obstruct police charge.  The prosecutor contended for a sentence in the order of 12 to 18 months imprisonment with actual time to be served.
  4. [13]
    The appellant’s solicitor highlighted the appellant’s antecedents.  At the time of the offending the appellant was a 35 year old Murray Islander man.  He has one child with the complainant, his former partner, and two children of a former relationship.  He recounted to the court that the appellant was exposed to, and had occasion to intervene in, family violence.  The appellant was exposed to family violence including witnesses his father’s violence against his mother, and broader community alcohol fuelled conduct.  He left the island for schooling in Cairns from grade 8 and completed school at grade 11 while living in Sarina with his father.  He has worked in community programmes as well as in the fishing and diving industries in the islands.    He also submitted that the penalty for the more serious Serious Assault would “be aggravated and uplifted given the contravention”.  He also submitted that the appellant had family support that will continue upon his release.  It was contended that the appellant’s plea was early and remorseful.  The appellant drank on the night of the offence and was unable to control his anger.  Through his solicitor the appellant expressly conveyed his remorse and apology to the police officers through his solicitor saying: “He’s not good with words but has asked me to express his remorse and apology to the police officers for that and to his conduct to the aggrieved.”  The solicitor contended for 12 months imprisonment, with release on parole after serving one third in recognition of the appellant’s early plea of guilty.  During an exchange with the learned magistrate, the appellant’s solicitor properly accepted that the appellant had more serious criminal history of violent offending when compared to the comparative cases, and a sentence of 12 months imprisonment would “reflect and uplift given his history.”
  5. [14]
    During the course of his sentencing reasons, the learned magistrate highlighted the factual basis, and nature and serious of the offending.  His Honour remarked that appellant provided “no cooperation or assistance in the respect of the matter”.  In doing so he accepted the appellant’s “timely pleas of guilty” as an expression of remorse, but otherwise considered the sentiment of the appellant’s apology to the officers was “fairly hollow” having regard to the appellant’s violent past and his resort to violence as a first resort.  He characterised the appellant as having a “significant propensity for violence … resort to violence … as a first resort” as gleaned from his criminal history and breaches of protection orders.  His Honour turned to the appellant’s circumstances, his lack of youth now aged 35 years, and “very, very concerning criminal history in relation to violence”.  The learned magistrate assessed the appellant’s prospects of rehabilitation as “modest at best”.  His Honour had regard to the purpose of the sentence by virtue of s 9(1) of the Penalties and Sentences Act 1992 (Qld), being very appropriate to the offending for both serious assault of police and domestic violence, to punish to an extent or in a way that is just in all of the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence and make it clear that the community denounces the conduct in the offending.  The learned magistrate had regard to the comparative extent of the decisions proffered. 
  6. [15]
    The learned magistrate sentenced the appellant to 15 months of imprisonment for the offence of serious assault police officer, 12 months imprisonment for the offence of contravention of domestic violence order, and one month imprisonment for the offence of obstruct police.  All periods of imprisonment were ordered to be served concurrently.  59 days were declared as being served as presentence custody.  A parole release date was set at one third of the sentence.

Did the sentencing magistrate err by characterising of the offending as being ‘coupled’ with other offending similar to the comparative cases?

  1. [16]
    The appellant argues that by characterising the comparative cases as involving “coupled offences” it may have led the magistrate into error.  Whilst the respondent, Crown, accepts that the combination of the appellant’s offences were different to the comparable cases, the learned magistrate was not precluded from structuring the sentence in the manner in which his Honour did.
  2. [17]
    I do not accept that the advocate’s characterisation of “coupled offences” has led the sentencing magistrate into error.
  3. [18]
    It seems to me that the nature, combination and sequence of offending in R v MCL [2017] QCA 114, R v Brown [2013] QCA 185 and R v Juric [2003] QCA 132, unlike the appellant here, involved an assault of a police officer by way of a strike proximate to one additional charge of the more serious assault of police officer by way of spitting or biting, thus attracting the high maximum penalty.  It seems to me that both advocates were merely urging that the sentence for the most serious offence of Serious Assault ought to be uplifted to reflect the appellant’s overall criminality. 
  4. [19]
    This is consistent with the need to take account of the totality principle, and reflecting the overall criminality in the most serious of the offending in accordance with R v Nagy.[9] 
  5. [20]
    In Mill v The Queen,[10] the High Court referred with approval to the passage in Thomas, Principles of Sentencing 2nd Edition, page 56 to 57:

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

  1. [21]
    In The Queen v Crofts[11], the Court of Appeal said:

“Of course sentences of imprisonment for a number of offences often ought to reflect that the offences were not committed in isolation. This is commonly referred to as the totality principle. The totality principle requires a Judge who is sentencing an offender for a number of offences, to ensure the aggregation of sentences of imprisonment is a just and appropriate measure for the total criminality involved.  When an appropriate sentence imposed for the most serious offence is adequate to punish the total criminality involved other sentences are made concurrent.”    

  1. [22]
    It seems to me that the learned magistrate sought to reflect the appellant’s overall offending in the most serious of the offences, being the serious assault, but without losing sight of the combination of offending including his violent reoffending.  I later deal with the comparative cases, but at this stage I am unable to discern any error as a consequence of the characterisation of the offending as being ‘coupled’ with other offending by reference to the comparative cases. 

Did the sentencing magistrate err by not giving enough weight to the early guilty plea, remorse and apology to officers?

  1. [23]
    Remorse must be considered under s 9(3)(i) of the Penalties and Sentences Act 1992 (Qld).  Remorse and genuine contrition is relevant to specific deterrence, and denunciation in punishment.[12] 
  2. [24]
    The learned magistrate acknowledged the appellant’s pleas of guilty throughout his Honour’s remarks and proceeded to fix the appellant’s parole release date at one third, to give him “the benefit of the pleas of guilty”. 
  3. [25]
    In addition to his pleas of guilty, the appellant expressly conveyed his remorse and apology to the police officers through his solicitor saying: “He’s not good with words but has asked me to express his remorse and apology to the police officers for that and to his conduct to the aggrieved.”  Whilst this was acknowledged by the learned magistrate, he found that the sentiment was “fairly hollow” having regard to the appellant’s violent past and his resort to violence as a first resort. His Honour remarked that appellant provided “no cooperation or assistance in the respect of the matter”.
  4. [26]
    It seems to me that it was open for the learned magistrate to place less weight on the belated remorse and apology proffered at the hearing.  Further, it is tolerably clear that the reference to the appellant’s lack of cooperation and assistance is a reference to his conduct in the offending itself.  Further, having regard to the circumstances of this case I think the sentencing factors of personal deterrence and general denunciation remained important, and any further discount was unwarranted. 
  5. [27]
    Consequently, I do not accept that insufficient weight was afforded to the appellant’s  early guilty plea, remorse and apology to officers.

Did the sentencing magistrate err by putting too much weight on the previous convictions to impose a sentence disproportionate to the gravity of the current offence?

  1. [28]
    It is trite law that the appellant’s criminal history is a relevant matter for the proper exercise of the sentencing discretion.  In particular, since the offence was one involving violence within the meaning of s 9(2A) of the Penalties and Sentences Act 1992 (Qld), the learned magistrate was required to have regard to the matters set out in s 9(3).  In particular, s 9(3)(g) required the court to have regard to “the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed”.  Further, s 9(10) provides:

“In determining the appropriate sentence for an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to –

  1. (a)
    the nature of the previous conviction and its relevance to the current offence;
  1. (b)
    the time that has elapsed since the conviction.”
  1. [29]
    Subsection (11) provides:

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

  1. [30]
    Clearly enough, the provisions reflect the common law as it stood and proclaimed in Veen v The Queen (No. 2) [13] as follows:

“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences; Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.  Applied by Cooper J (with whom Kneipp and Shepherdson JJ agreed) in R v Aston [No 2] [1991] 1 Qd R 375.”

  1. [31]
    The appellant’s prior convictions and his performance on prior court orders were significant and relevant.  The appellant has an extensive criminal history with relevant prior convictions for violence, contravening domestic violence protection orders, contravening police directions or requirements, breaches of court orders, and obstructing police.  It exposed the appellant’s dangerous propensity, that has been undeterred with a continuing attitude of disobedience of the law and enforcement.  His current offending was not an uncharacteristic aberration. 
  2. [32]
    Of those matters the learned magistrate described it as “a very, very concerning criminal history in relation to violence”.  The learned magistrate assessed the appellant’s prospects of rehabilitation as “modest at best”.
  3. [33]
    It seems to me that the learned magistrate did not allow the criminal history to overwhelm or unduly infect his sentencing discretion but merely recognised the need to impose condign punishment to deter the defendant from committing further offences of a like kind.

Is the sentence otherwise manifestly excessive?

  1. [34]
    Manifest excess may be exposed, absent any specific identifiable error, by a consideration of all of the matters that are relevant to fixing the sentence, particularly the nature of the offending and the sentences imposed in the most closely comparable cases. 
  2. [35]
    The parties have referred the court to the comparative cases of R v Reuben [2001] QCA 322; R v Juric [2003] QCA 132; R v Holden [2006] QCA 416; R v Pootchemunka (Unreported, QDC, 3 October 2011, Harrison DCJ); R v Brown [2013] QCA 185; R v Murray [2014] QCA 250; R v Benson [2014] QCA 188; R v MCL [2017] QCA 114; and R v Adcock [2021] QDC 116.
  3. [36]
    R v Reuben involved  a count of serious assault by biting a police officer; two of wilful damage by throwing rocks and a brick through a window; and two threatening words, and two of breach of a domestic violence order.  The appellant’s sentence of eight months imprisonment wholly suspended for two years was set aside, he was resentenced to three months imprisonment for the serious assault, and one month for the other offending, all wholly suspended for an operational period of 18 months.  The appellant was a 27 year old Palm Islander man in a stable relationship with the responsibility of a young family.  He had a reasonable work history and prospects of continuing employment.    He had a short but relevant criminal history.  The appellant was taken into custody and released 15 days later. 
  4. [37]
    Reuben is a very old case, and the court found it more instructive to look to the appellant’s particular idiosyncrasies despite comparative authority.  In these circumstances, I find it of little contemporary comparative value.
  5. [38]
    In R v Juric the original sentence of two and half years was set aside by the Court of Appeal and substituted with 18 months of imprisonment for three charges of serious assault committed in breach of a suspended sentence.  Juric was convicted after trial for one count of striking a police officer in the face and two counts of spiting saliva and blood into the faces of two officers.  Williams JA noted that Juric had demonstrated no remorse and had an extensive history of violence, particularly directed at police officers.  He had an extensive and relevant criminal history including resisting police and assault, serious assault of an officer, and obstruct police, and assaulting police by kicking an officer’s face.
  6. [39]
    In my view the times, legal and factual circumstances for Juric are significantly different to the present appeal.  The offending was more serious involving three assaults of relatively more serious violence after a trial.  Juric also involved a relevant criminal history to that offending compared to the appellant’s offending and history.  Juric is also a very old case, and I’m guarded about its contemporary comparative value for prevalent offending reflected in the appellant’s criminal conduct of domestic violence and serious assault.
  7. [40]
    In R v Holden the appellant was sentenced to an effective 12 months imprisonment after a trial of seven counts of serious assault committed against two police officers.  The offending involved wiping blood on an officer’s arm and saying he had Hepatitis C, repeated spitting at officers and resisting his removal from a police car.  The maximum penalty for the aggravating circumstances was seven years at the time.   The appellant had “a criminal history of some length” including sentences of imprisonment for wilful damage, assault occasioning bodily harm and an array of convictions and fines for possession of dangerous drugs, obstruction of police and other street-type offences.  Holden’s sentence of 12 months imprisonment was not disturbed on appeal with Holmes JA noting “a sentence of 12 months imprisonment here was a substantial sentence”.
  8. [41]
    Holden is also very old, with very different legal and factual circumstances to the present appeal.  The multiple counts of offending were more serious against a background of a lengthy criminal history, with a sentence imposed after trial.  Whilst demonstrably more serious than the appellant’s offending, Holden provides limited contemporary comparative value due to its diverse offending and age.  I doubt it reflects the current sentencing tariffs for domestic violence and serious assault.
  9. [42]
    In the single judge decision of R v Pootchemunka, Judge Harrison sentenced the defendant to 12 months imprisonment suspended after four months for a single punch to the mouth of police officer causing a cut to the lip.  Pootchemunka had an atrocious criminal history with numerous offences for assault, including 10 or 11 occasions where he assaulted police officers and/or prison officers and in 2007 he was sentenced to 20 months imprisonment for head-butting, punching and biting a police officer. 
  10. [43]
    Pootchemunka is more serious than the appellant’s case.  While persuasive, it has less comparative weight than the later Court of Appeal decisions.  However, in my view it tends to support a sentence at a higher tariff for the appellant here in circumstances where the sentence would exceed 12 months to reflect the totality of his offending.
  11. [44]
    In R v Brown the 50-year-old defendant was sentenced for two counts of serious assault, the first involving a single punch to a police officer and the second involving spitting in the face, mouth, hair and uniform of the same officer.  The offending was described by the sentencing judge as protracted, deliberate and calculated.  In first instance, Brown was initially sentenced to nine months imprisonment for the first count, the punch offence and 15 months for the spitting offence with the sentences suspended after 203 days which the defendant had already served in pre-sentence custody.  In granting the appeal, the Court of Appeal substituted a sentence of 203 days imprisonment for the offending, effectively a sentence of less than seven months. 
  12. [45]
    Brown was more serious offending since it involved a series of assaults with the more the aggravating circumstance of spitting.  The maximum penalty for latter at that time was seven years.  Brown had a lengthy but less serious criminal history compared to the appellant.  The outcome tends to indicate that the appellant’s sentence is high, however, I am guarded about the unusual features of Brown as a reliable comparative for the present combination of offending by the appellant. 
  13. [46]
    In R v Murray the offending involved spitting into the face, eyes and mouth of the police officer who underwent regular testing for HIV and hepatitis for 12 months.  Fraser JA noted that the offending “was a deliberate and disgusting act” and “it showed a contempt for lawful authority” and the officer experienced “anxiety whilst awaiting test results”.  The maximum penalty was 14 years for aggravated serious assault.  On appeal her sentence of 15 months imprisonment with parole release after five months was reduced to nine months imprisonment with a parole release after 85 days served in custody. 
  14. [47]
    Murray involved more serious offending for the serious assault, but she was a younger offender with a less serious criminal history.  The circumstances of the offending differed and did not involve earlier domestic violence and later obstruction.  In comparison to Murray, I think the appellant’s overall offending and antecedents warranted a higher sentence.
  15. [48]
    In R v Benson, the 42 year old appellant was sentenced to an effective 18 months imprisonment with a parole release date after serving six months for one charge of serious assault and two summary charges of assaulting a police officer in execution of their duty and committing a public nuisance.  Police were called to a disturbance between the appellant and a female. The appellant was later located but did not obey police to stop and instead verbally abused them. When police tried to restrain the appellant, he punched one officer in the left eye, causing immediate pain, then held him in chokehold, then poked his finger hook deep into his left eyeball, wrestled him on the ground and then bit him on the left thigh.  The other officers intervened by punching and kneeing the appellant in the head and spraying him with capsicum spray. The appellant spat blood from his mouth and nose, and yelled that he was positive for Hepatitis C.  The officer sustained a bite to his upper left thigh with no breach of the skin, lacerations to his left knuckles, and mild redness to his left eye with a small bruise. He had to participate in tests for Hepatitis C, including blood tests, for 6 months.  The applicant had a number of health issues, including mental health issues and chronic active Hepatitis C.  He had a very extensive criminal history in multiple states, and was on bail at the time of the offending, as well as probation and parole for a sentence that involved an assault of a police officer. He had relevant assault related offences, and assaults against police. There were outstanding warrants for the applicant in South Australia. The appeal was dismissed.
  16. [49]
    Benson involved a charge of serious assault with the circumstance of aggravation which carries the higher maximum penalty of 14 years imprisonment.  The nature, seriousness and impact of the assault on the police officer was greater than the present case.  The offending was against a background of a serious and relevant criminal history, and also committed in breach of bail, probation and parole.  Although the appellant here has some history and precursor offending, he ought incur a lesser sentencing tariff than Benson.  However, that tariff was liable to be increased to reflect the whole offending and concurrent sentences.
  17. [50]
    In R v MCL, the 34-year-old defendant was sentenced on his guilty plea to two serious assaults of police officers and to nine months imprisonment suspended immediately for an operational period of 18 months. The offending involved a kick to an officer’s thigh and the second was the aggravating assault of biting another police officer’s thumb causing lacerations and bleeding. The aggravating features attracted the high maximum penalty.
  18. [51]
    It seems to me that like Murray, the case MLC is of limited value since it does not involve a combination of offences faced by the appellant here.  When the whole of the appellant’s criminal conduct is considered including the need for deterrence in light of continued domestic violence and disobedience, a higher sentence was warranted by comparison to MLC.
  19. [52]
    In R v Adcock, this court upheld a sentence to an effective nine months imprisonment with parole release after serving one third for 15 offences, including serious assault, wilful damage, public intoxication, disobedience, obstruction, and bail offences.  The serious assault police offences were committed on two separate occasions.  First, the appellant got into a violent struggled with police and then kicked an officer’s groin area while being escorted to a holding cell.  On the second occasion, during an arrest she ran at and pulled an officer to the ground by his collar, ripping it.  Those offences attracted separate sentences of nine months and six months imprisonment, respectively. The appellant had an extensive criminal history with multiple prior convictions of offending against police or behaving in a violent manner while intoxicated since 2004. 
  20. [53]
    By comparison to the present appeal, Adcock’s offending in the serious assault was less serious and was committed in different circumstances.  This court reviewed a multitude of offences with little comparative authority.  Even so, I think the appellant’s criminality ought attract a higher sentence in comparison to Adcock.
  21. [54]
    Whilst analysis of closely comparable cases often provides valuable guidance, those proffered, here and below, have relative comparative value depending on their age, offender’s idiosyncratic antecedents, criminal history, nature and seriousness of the offending involving differing aggravating features, prevalence, and applicable maximum penalties at the times they were decided.  They must be considered in the context of the different combination, nature and serious of the offending compared to the appellant’s offending involving domestic violence offending, serious assault of police and obstructing police.  Ultimately, the appropriate sentence will necessarily depend on the particular circumstances of the offending and the degree of culpability of the offender.  It is instructive to look at the appellant’s particular circumstances and the combination of offences in this case.  His offending occurs against a background of a violent history, domestic violence and disobedience.  The gravamen of his offending is found in the serious assault of police and earlier domestic violence.  Matters of personal and general deterrence are particularly relevant.  The court must also look at the totality of the appellant’s criminal behaviour and ask itself what is the appropriate sentence for all the offences, was it just and appropriate pursuant to s 9 of the Act.
  22. [55]
    In The Queen v Kendrick,[14] Morrison JA (with whom Fraser JA and Henry J agreed) provided a superb analysis of the relevant authorities.[15]  I don’t propose to repeat all that was said by His Honour, with which I, of course, agree.  At paragraph [56], His Honour distilled the approach as follows:

“The preferable approach, derived from Mill and Johnson, is that a sentence is fixed for each offence, then aggregated before taking the next step of determining concurrency or accumulation, and to consider what is an appropriate non-parole period.  However, Johnson recognised that it was not an immutable practice.”[16]

  1. [56]
    It seems to me that a sentence of 12 months imprisonment is within a permissible range had the 35 year old appellant committed the serious assault offence in isolation.  But he didn’t.  His offending against police followed their call to duty in response to the appellant’s domestic violence offending against his partner for which he was sentenced to 12 month imprisonment.  Further, the appellant’s offending continued by obstructing police as they attempted to effect his arrest.  This was against his cultural and indigenous background, his exposure to family violence, and his past criminal violence and disobedience.  There was a greater need for personal deterrence and denunciation. 
  2. [57]
    The aggregate of the sentence needs consideration in order to determine whether a total sentence was likely to be too crushing and disproportionate.  This is an appropriate case to take account of the totality principle, impose concurrent sentences and reflect the appellant’s overall criminality in the most serious of the offending of serious assault police officer.  In doing so, it seems to me that an uplift to 15 months of imprisonment for the offence of serious assault police officer, is within a permissible range for that offending whilst reflecting the appellant’s overall criminality.  I would not disturb the sentences for the offending.  Having reviewed and considered the aggregate of the appropriate sentences, I think it is just and appropriate and not too crushing or disproportionate that the sentences of imprisonment be served concurrently.
  3. [58]
    A parole release date set at one third takes proper account of the timing of the appellant’s age, background, plea of guilty, extent of cooperation with the police and prosecution, his criminal history and like offending, the time that he has spent in custody before the sentence and pending this appeal, as well as his various roles in the offending and his cooperation in bringing about the charges. 
  4. [59]
    For these reasons, in my respectful view, the sentence imposed by the learned magistrate is not a manifestly excessive sentence that falls outside the permissible range in the circumstances of this case.

Order

  1. [60]
    For these reasons, I dismiss the appeal.

Judge DP Morzone QC

Footnotes

[1]Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255, [47].

[2]White v Commissioner of Police [2014] QCA 121, [5]-[8]; Forrest v Commissioner of Police [2017] QCA 132, 5 & 6; McDonald v Queensland Police Service [2017] QCA 255, [47].

[3]Allesch v Maunz (2000) 203 CLR 172, [22] – [23] followed in Teelow v Commissioner of Police [2009] QCA 84, [4]; White v Commissioner of Police [2014] QCA 121, [8], McDonald v Queensland Police Service [2017] QCA 255, [47]; contrast Forrest v Commissioner of Police [2017] QCA 132, 5.

[4]R v Morse (1979) 23 SASR 98; R v Lomass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v The Queen (1984) 154 CLR 606.

[5]Lovell v Lovell (1950) 81 CLR 513 at 519 per Latham CJ, 533-534 per Kitto J; see also Gronow v Gronow (1979) 144 CLR at 519, 525, 534 and 537.

[6]House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519.

[7](1936) 55 CLR 499, 504 and 505.

[8]Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111, [130] per Hayne J (minority).

[9] R v Nagy [2004] 1 Qd R 63.

[10] Mill v The Queen [1988] 166 CLR 59.

[11]The Queen v Crofts [1999] 1 Qd R 386 at 387.

[12]R v O'Sullivan; R v Lee; ex-parte Attorney-General (Qld) [2019] QCA 300 at [129].

[13]Veen v The Queen (No. 2) (1988) 164 CLR 465 at [14]

[14]The Queen v Kendrick [2015] QCA 27.

[15]The Queen v Kendrick [2015] QCA 27 at [31]-[41].

[16]See for example, R v Coleman Ann Lyons J (with whom Fraser JA and Gotterson JA agreed) had regard to the whole of the existing sentence (not just the remainder) and the cumulative sentence.

Close

Editorial Notes

  • Published Case Name:

    WPT v QPS

  • Shortened Case Name:

    WPT v QPS

  • MNC:

    [2021] QDC 250

  • Court:

    QDC

  • Judge(s):

    Morzone QC DCJ

  • Date:

    08 Oct 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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