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Hemmett v Commissioner of Police[2021] QDC 318

Hemmett v Commissioner of Police[2021] QDC 318

DISTRICT COURT OF QUEENSLAND

CITATION:

Hemmett v Commissioner of Police [2021] QDC 318

PARTIES:

HEMMETT, Benje Aron Anthony

(Appellant)

v

The Commissioner of Police

(Respondent)

FILE NO/S:

D15/21

DIVISION:

Criminal

PROCEEDING:

s 222 Appeal

ORIGINATING COURT:

Magistrates Court at Gympie 

DELIVERED ON:

16 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

3 December 2021

JUDGE:

Devereaux SC DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – appeal pursuant to s 222 Justices Act 1886 – where the appellant submitted that the cumulative sentence imposed by the learned magistrate was manifestly excessive in all the circumstances – whether the learned magistrate gave due weight to parole hearing delays when imposing a cumulative sentence – whether s 156A of the Penalties and Sentences Act 1992 was engaged – whether it was open to the learned magistrate to impose a suspended sentence – when a person becomes liable to serve a sentence

LEGISLATION:

Corrective Services Act 2006 (Qld) s 205, s 206, s 209, s 211, s 214, s 215 

Justices Act 1886 (Qld), s 222

Penalties and Sentences Act 1992 (Qld) s 9, s 144, s 148, s 153, s 156A

CASES:

R v Watson [2021] QCA 225

COUNSEL:

L. Ygoa-McKeown for the appellant

Z. Kaplan for the respondent

SOLICITORS:

Bell Dore Lawyers for the appellant

Officer of the Director of Public Prosecutions for the respondent

  1. [1]
    This is an appeal against sentence under section 222 of the Justices Act 1886.  On 31 August 2021 the appellant was sentenced at the Gympie Magistrates Court for the offence of assault occasioning bodily harm committed on 26 May 2021. The sentence of 3 months imprisonment imposed by the learned magistrate was ordered to be served cumulatively on his existing sentence. The appellant contends that this was manifestly excessive.
  2. [2]
    The facts of the offence were as follows. At about 5.30 pm on 26 May 2021, the appellant, then aged 41, was stopped by a road at Tuchekoi.  The complainant stopped and the two men talked.  They knew each other.  The conversation was civil until the complainant told the appellant he was not welcome at the complainant’s property to visit a woman who was staying there.  This made the appellant angry and he “unleashed a flurry of punches” at the complainant.  They both fell to the ground.  The complainant was able to restrain the appellant but agreed to release him if he would stop fighting.  The appellant agreed. The complainant released him and the appellant attacked again.  The complainant regained control.  Another driver stopped at the scene and the complainant released the appellant, who drove off.
  3. [3]
    The complainant suffered injuries to his knees and right hand and a bruised left eye. [1]
  4. [4]
    On 31 May 2021, police served the appellant with a Notice to Appear.
  5. [5]
    The appellant’s legal representative told the learned magistrate the appellant suffered from anxiety and depression such that he has, for 10 years, received a disability support pension.  His brother is his carer.  He is divorced and has no children.  He was home schooled to the level of year 6.  He became a mechanic and worked at that until he commenced receiving the pension.
  6. [6]
    The appellant had criminal history including suspended terms of imprisonment in 2016 and imprisonment in 2017.
  7. [7]
    On 4 December 2019 in the District Court at Gympie, the appellant was sentenced to a total of 3 years for offences that included stalking, deprivation of liberty, entering a dwelling with intent and assault occasioning bodily harm.  They were domestic violence offences.  His parole release date was fixed at 16 January 2020, after 12 months in custody.  The appellant was, therefore, on parole when he committed the subject offence.
  8. [8]
    The appellant’s parole was suspended on 3 June 2021 and he was returned to custody on 7 June 2021.
  9. [9]
    The learned magistrate thoroughly rehearsed the facts and the appellant’s antecedents as they had been told to him.  His Honour noted that, having served about 12 months of the sentence imposed by the District Court, the appellant had been about 16 months on parole before committing the subject offence.
  10. [10]
    The learned magistrate stated the issue, as it was below and as the appellant pressed at the appeal hearing, as whether a sentence of imprisonment for the offence should be suspended.
  11. [11]
    His Honour was aware that because the offence was listed in Schedule 1 to the Penalties and Sentences Act 1992 (“PSA”), a sentence of imprisonment would cancel the parole.  Having been in custody for about three months, a cumulative sentence would likely see the appellant serve the whole of the remaining five months and any cumulative sentence, given the time the Parole Board was then understood to take to consider an application.
  12. [12]
    The learned magistrate said that to suspend the sentence would not satisfy the purposes of personal and general deterrence – that the breach of parole required a significant sanction.[2]  Starting with a notional term of 12 months imprisonment, the magistrate reduced the sentence to 3 months, with a parole eligibility date set at the date of sentence, “so that you are not serving, for one, a crushing sentence because it has got to be cumulative.  For two, a sentence that will unduly delay you in getting parole eligibility.”[3]
  13. [13]
    The sentence extended the appellant’s full time release date to 27 April 2022.   The appellant submits that because of Parole Board Queensland delays in considering parole applications of about eight (8) months, the appellant would not have his parole application considered prior to his full-time expiry date.
  14. [14]
    The appellant seeks to amend the grounds of appeal as follows:
  1. (a)
    The sentence was manifestly excessive in all the circumstances
  2. (b)
    The magistrate did not appropriately have regard to the effect and impact of the sentencing order and the principle of totality.
  3. (c)
    The Magistrate did not give proper allowance for the appellant’s guilty plea.
  1. [15]
    These grounds all reduced to the submission that the failure to suspend the sentence made it manifestly excessive because the appellant would likely serve 11 months, comprising the 8 months of his parole sentence and the three months cumulative, because of the unavailability of a parole hearing.
  2. [16]
    The submission that the learned magistrate did not give weight to the expected delay in a parole hearing must be rejected because his Honour expressly stated an expectation that the appellant would serve the balance of his sentence.  The appellant referred to R v Watson [2021] QCA 225, particularly at [29], but it is unhelpful because the magistrate did not make the error referred to in Watson.  The Court said:

“The judge’s approach was to say that that he was “limited to fixing a parole eligibility date” and that “the delays in parole applications being considered by the parole authorities” were something beyond his control. With respect, that approach cannot be accepted as correct. The judge was required to consider whether the appropriate mitigation of the sentence could be achieved by a different order.”

  1. [17]
    In my respectful opinion, the learned magistrate made no error in the sentencing process and the sentence was not excessive.  It was within a sound range of sentencing discretion to impose a sentence of three months on the appellant for the subject offence taking into account the purposes of sentencing and the matters set out in subs. 9(2&3) of the PSA, the sentence being cumulative by the effect of s. 156A of the Act.  It was not unreasonable or plainly unjust.[4]
  2. [18]
    In any case, the alternative order the appellant seeks was not available to the magistrate. 
  3. [19]
    A court cannot, in my opinion, suspend a future sentence.  Section 156A provides that in certain circumstances a sentence must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve.  A cumulative order means the imprisonment is directed to start from the end of a period of imprisonment the offender is serving, or has been sentenced to serve: PSA s. 156.
  4. [20]
    Section 144 of the PSA provides that a court may order that a term of imprisonment be suspended:
    1. (1)
      “If a court sentences an offender to imprisonment for 5 years or less, it may order that the term of imprisonment be suspended.
    2. (2)
      An order under subsection (1) may be made only if the court is satisfied that it is appropriate to do so in the circumstances.
    3. (3)
      An order under subsection (1) may suspend the whole or a part of the term of imprisonment.
    4. (4)
      A court must not suspend a term of imprisonment if it is satisfied, having regard to the provisions of this Act, that it would be appropriate in the circumstances that the offender be imprisoned for the term of imprisonment imposed.
    5. (5)
      The court must state an operational period during which the offender must not commit another offence punishable by imprisonment if the offender is to avoid being dealt with under section 146 for the suspended sentence.
    6. (6)
      The operational period starts on the day the order is made and must be—
      1. not less than the term of imprisonment imposed; and
      2. not more than 5 years.” (emphasis added)
  5. [21]
    Because subs. (3) provides that a court may suspend part of a term, it follows that the suspension may take effect immediately, or at a date after the sentence order was made.  In either case, the operational period commences on the day the order is made.  It is incongruous that an operational period could run before a sentence has commenced. 
  6. [22]
    It would be inconsistent with the scheme of the Act to purport to delay the start of a suspended sentence because the operational period commences on the day the order is made.  The liability to serve the sentence is immediate and continues through the operational period, although contingent on an order being made under s. 147 of the PSA upon breach.
  7. [23]
    Section 148 confirms that the questions of when a term is to commence is a matter for the court ordering the service of the term:

“If, under section 147(1), the court orders the offender to serve imprisonment, then, unless the court otherwise orders, the imprisonment must be served—

  1. (a)
    immediately; and
  2. (b)
    subject to the Bail Act 1980, section 33, concurrently with any other imprisonment previously imposed on the offender by that or another court.”
  1. [24]
    At the hearing of the appeal I gave both parties leave to file written submissions on the question whether it was open to a court to impose a sentence, order that it be served cumulatively to another term and then suspend it.  Both parties ultimately submitted it was not.
  2. [25]
    The appellant then submitted that s.156A of the PSA did not apply in the circumstances of this case; therefore, the sentence need not be cumulative to the one the appellant was on parole for, and it was open to the learned magistrate to impose a sentence and suspend it.  Section 156A provides:

“156A Cumulative order of imprisonment must be made in particular circumstances

(1) This section applies if an offender—

  1. (a)
    is convicted of an offence—
    1. against a provision mentioned in schedule 1; or
    2. of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in schedule 1; and
  2. (b)
    committed the offence while—
  1. (i)
    prisoner serving a term of imprisonment; or
  2. (ii)
    released on post-prison community based release under the Corrective Services Act 2000 or released on parole under the Corrective Services Act 2006; or
  3. (iii)
    on leave of absence, from a term of imprisonment, granted under the Corrective Services Act 2000 or the Corrective Services Act 2006; or
  4. (iv)
    at large after escaping from lawful custody under a sentence of imprisonment.

(2) A sentence of imprisonment imposed for the offence must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve.

  1. [26]
    As I follow it, the argument is: as the presentence custody certificate showed, the appellant’s parole was suspended indefinitely on 3 June 2021. As the parole was suspended, not cancelled, by the parole board (it may have done either under s. 205 of the Corrective Services Act 2006 (CSA)), upon his return to custody on 7 June 2021, the appellant was to be kept in prison “for the suspension period” (CSA s. 206(3)(a)).  Had the parole been cancelled, the appellant would have been taken to prison “to serve the unexpired portion of [his] period of imprisonment” (CSA s. 206(3)(b)).  It follows that a person is only liable to serve the term of imprisonment if the parole is cancelled.  Because, at the date of sentence, the appellant’s parole was in a state of suspension and had not been cancelled, he was not liable to serve the term of imprisonment.
  2. [27]
    The appellant submits this construction is supported by CSA s.211 and s.209.
  3. [28]
    In my respectful opinion, the argument is flawed and neither ss.209 nor 211 of the CSA support it.
  4. [29]
    The issue is the meaning of the term “liable to serve” as it is employed in s. 156A of the PSA.  Several provisions of the Criminal Code, the PSA and the CSA use the term or assist in understanding it.

Criminal Code

1 Definitions

Liable, used alone, means liable on conviction upon indictment.”

2   Definition of offence

An act of omission which renders the person doing the act or making the omission liable to punishment is called an offence.”

Penalties and Sentences Act

153 Imprisonment—liability to

  1. (1)
    An offender liable to imprisonment for life, or for any other period, may be sentenced to imprisonment for any lesser period.
  2. (2)
    An offender liable to imprisonment may be sentenced to pay a fine not exceeding the limits prescribed in section 46 in addition to, or instead of, the imprisonment.”

"Section 4 includes:

term of imprisonment means the duration of imprisonment imposed for a single offence and includes—

a. the imprisonment an offender is serving, or is liable to serve—

  1. (i)
    for default in payment of a single fine; or
  2. (ii)
    for failing to comply with a single order of a court…”

Corrective Services Act

214 Prisoner released on parole taken to be still serving sentence

A prisoner released on parole is taken to be still serving the sentence imposed on the prisoner.”

215 Expiry of parole order

A prisoner is taken to have served the prisoner’s period of imprisonment if the prisoner’s parole order expires without being cancelled under section 205 or 209.”

  1. [30]
    These provisions suggest a person is liable to punishment upon commission of an offence.  More particularly, a person is liable to serve a term of imprisonment upon being convicted and sentenced to a term of imprisonment.  Liability to serve the term continues until it is served.  A person is taken to be serving the sentence while on parole.  The sentence is served if the parole expires without being cancelled.
  2. [31]
    It is enough to say that person on parole, even if the parole is suspended, is liable to serve the sentence.
  3. [32]
    The appeal must be dismissed.

Footnotes

[1] Transcript of proceedings 1-3.

[2] Sentencing remarks at 3.40.

[3] At 4.10.

[4] House v The King (1936) 55 CLR 499

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Editorial Notes

  • Published Case Name:

    Hemmett v Commissioner of Police

  • Shortened Case Name:

    Hemmett v Commissioner of Police

  • MNC:

    [2021] QDC 318

  • Court:

    QDC

  • Judge(s):

    Devereaux SC DCJ

  • Date:

    16 Dec 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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