Gregory v Queensland Police Service
[2021] QDC 342
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- Unreported Judgment
- Gregory v Queensland Police Service[2021] QDC 342
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Gregory v Queensland Police Service[2021] QDC 342
Gregory v Queensland Police Service[2021] QDC 342
DISTRICT COURT OF QUEENSLAND
CITATION: | Gregory v Queensland Police Service [2021] QDC 342 |
PARTIES: | GREGORY, Sarah Jennifer (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO: | 6 of 2022 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | Mornington Island Magistrates Court |
DELIVERED ON: | 17 September 2021 (delivered ex tempore) |
DELIVERED AT: | Mount Isa |
HEARING DATE: | 17 September 2021 |
JUDGE: | Dearden DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – MAGISTRATE ACTED ON WRONG PRINCIPLE – where the magistrate imposed a sentence of actual custody – where prosecution made no submission on penalty – where defence made submissions for a cumulative sentence of up to six months with immediate parole release – whether the magistrate erred in failing to provide the opportunity to make submissions on whether a sentence of actual imprisonment was appropriate CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – whether the sentence imposed was manifestly excessive |
LEGISLATION: | Corrective Services Act 2006 (Qld) s 200 Justices Act 1886 (Qld) ss 222, 223 Penalties and Sentences Act 1992 (Qld) s 160G |
CASES: | ARS v QPS [2018] QDC 103 Dinsdale v R [2000] 115 A Crim R 558 Forrest v the Commissioner of Police [2017] QCA 132 McDonald v Queensland Police Service [2017] QCA 255 Mill v R [1998] 166 CLR 59 Postiglione v R [1997] 189 CLR 295 |
COUNSEL: | A Palombo (sol) for the appellant M Mahlouzarides for the respondent |
SOLICITORS: | Aboriginal and Torres Strait Islander Legal Service for the appellant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]The appellant appeals in respect of the sentences imposed by the learned magistrate at Mornington Island on 10 August 2021, the details of which will be set out below in this judgment.
Grounds of Appeal
- [2]The appellant’s grounds of appeals are:
- (1)The magistrate erred in failing to afford the appellant’s solicitor the opportunity to make submissions, on whether a sentence of actual imprisonment was appropriate.
- (2)The sentence imposed was manifestly excessive.
- (1)
The Law – Appeals
- [3]Justices Act 1886 (Qld) s 222(1) provides:
If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint, for an offence or breach of duty, the person may appeal within one month after the date of the order to a District Court judge.
- [4]Justices Act 1886 (Qld) s 223 provides:
Appeal generally a rehearing on the evidence:
- (1)An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
- (2)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.
- (3)If the court gives leave under subsection (2), the appeal is –
- by way of rehearing on the original evidence; and
- on the new evidence adduced.
- [5]In McDonald v Queensland Police Service [2017] QCA 255 at [47], Bowskill J stated:
It is well established that, on an appeal under Justices Act 1886 (Qld) s. 222, by way of a rehearing, the District Court is required to conduct a real review of the trial, and the magistrate’s reasons, and make its own determination of the relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error. [citations deleted]
- [6]In Forrest v the Commissioner of Police [2017] QCA 132, at p 5, Sofronoff P stated:
…an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence, and make up its own mind about the case.
Factual Background
- [7]The sentence proceeding on 10 August 2021 was complex and required the learned magistrate to resentence the appellant on a number of charges, to sentence on a number of new charges, and also, to invoke a series of suspended sentences, which had been breached by the fresh offending.
- [8]The appellant’s helpful outline summarises the outcome of those proceedings as follows:[1]
Offence | Date of offence | Sentence | Maximum |
Contravention of community service order | 25/9/2020 | Convicted and not further punished | 10 penalty units |
Assault occasioning bodily harm whilst armed/in company (domestic violence offence) | 8/12/16 | Six months imprisonment | Ten years imprisonment |
Breach of bail condition | 1/1/18 | Convicted and not further punished | Two years imprisonment |
Breach of bail condition | 8/1/18 | Convicted and not further punished | Two years imprisonment |
Failure to appear in accordance with an undertaking | 9/1/18 | One month imprisonment (cumulative) | Two years imprisonment |
Failure to appear in accordance with an undertaking | 18/1/17 | One month imprisonment (cumulative) | Two years imprisonment |
Failure to appear in accordance with an undertaking | 13/4/17 | One month imprisonment (cumulative) | Two years imprisonment |
Contravention of release conditions | 9/12/16 | One month imprisonment (concurrent) | 120 penalty units or three years imprisonment |
Contravention of a probation order | 21/7/20 | Convicted and not further punished | 10 penalty units |
Commit public nuisance | 27/11/19 | Convicted and not further punished | Ten penalty units or six months imprisonment |
Obstruct police officer | 27/11/19 | Convicted and not further punished | 40 penalty units or six months imprisonment |
Going armed so as to cause fear | 23/12/19 | Three months imprisonment (concurrent) | Two years imprisonment |
Breach of bail condition | 23/12/20 | Convicted and not further punished | Two years imprisonment |
Breach of bail condition | 30/12/20 | Convicted and not further punished | Two years imprisonment |
Failure to appear in accordance with an undertaking | 21/4/21 | One month imprisonment (cumulative) | Two years imprisonment |
Offender convicted of an offence punishable by imprisonment during operational period of suspended sentence: | |||
Commit public nuisance | 15/5/20 | One month imprisonment (concurrent) | |
Failure to appear in accordance with undertaking; | 12/8/20 | One month imprisonment (cumulative) | |
Failure to appear in accordance with undertaking | 16/9/20 | One month imprisonment (cumulative) |
- [9]The effective outcome of the sentence was a total sentence of 12 months imprisonment, with a parole release date of 25 October 2021, being effectively two and a half months in custody.[2]
Ground 1 – Failure to Afford Natural Justice
- [10]The appellant submits that the learned magistrate imposed a sentence involving actual custody, without giving either the prosecution or defence the opportunity to be heard. Relevantly, the prosecution made no submission on penalty, and the defence submission was for an effective, cumulated sentence of up to six months, with an immediate parole release date.[3]
- [11]The learned magistrate commenced his sentencing remarks as follows:
Stand up, Sarah Gregory. Well, you wore us out. We gave you all the chances we could, that’s the court, and you – you thumbed your nose at us and the court and – and here we are. So today, you’ve got to be sentenced to a term of imprisonment, and you’ll do some time, and then you’ll be released on parole.
- [12]In ARS v QPS [2018] QDC 103, Fantin DCJ helpfully articulated the obligations of natural justice where a court is considering a sentence more severe than contended for, in these terms: –
[36] As a general proposition it is appropriate for a court, if considering imposing a sentence more severe than the range suggested by the prosecutor, to give notice of that, so that the defendant’s representative may address matters on that basis [R v Cunningham [2005] QCA 321; R v Wilson [2016] QCA 301 [6]]. This applies particularly where there is some unusual feature in the sentence the court has in mind. [R v Kitson [2008] QCA 86 [21]].
[37] ... The magistrate erred in failing to afford the appellant’s solicitor the opportunity to address him in relation to whether a sentence of imprisonment was appropriate. To impose a sentence of imprisonment in the circumstances of this particular offence and the appellant’s antecedents, where no party had addressed the court on that possibility and where the court had not indicated it was considering it, was a breach of the rule of natural justice.
- [13]The respondent concedes the breach of the principles of natural justice,[4] and acknowledges that “the learned magistrate ought to have indicated that he was considering actual custody, so that the parties had a reasonable opportunity to be heard.”[5] I respectfully adopt the terms of the respondent’s submission. Clearly, in the circumstances of this matter, the learned magistrate should have called for submissions on the question of imposing actual custody, given that was within his contemplation.
Ground 2 – Manifestly Excessive
- [14]As the appellant submits, the meaning of “manifestly excessive” has a consistently eluded definition. In Dinsdale v R [2000] 115 A Crim R 558, Gleeson CJ and Hayne J held at [6]:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.
- [15]The appellant, in her written submissions, stresses the importance of totality, relying on Postiglione v R [1997] 189 CLR 295 [307] and Mill v R [1998] 166 CLR 59 [8], each of which stresses the importance of assessing the aggregation of sentences to ensure the outcome appropriately represents the overall criminality.
- [16]The appellant’s argument addresses this issue as follows: –
18. The sentence imposed on the appellant was manifestly excessive. The learned magistrate erred in failing to take into consideration the totality of the sentence.
19: In his sentencing remarks, the learned magistrate initially sentenced the appellant to a total period of 10 months imprisonment.[6]
- [17]The defence informed his Honour that he had not taken the suspended sentence into account. The learned magistrate resumed his sentencing remarks stating:
I thought she looked familiar. See, that’s wrong. Well, maybe not. Anyway, she gets an extra two months because the – on two one month sentences extra – yes. Two months because they need to be cumulative. The one month for the public nuisance can be concurrent. So, that’s just life for her, but I won’t change the parole release date. So – and you didn’t get 10 months, you got 12 months, and you will just serve two and a half months of that, so you got a pretty good deal.[7]
20. The learned magistrate failed to give any reasons in activating the suspended sentences in addition to the 10 month imprisonment already imposed. It is inferred from the transcript that the learned magistrate did not take into consideration the consequence of activating the suspended sentence, when initially imposing a sentence of 10 months.
21. The absence of an express statement in sentencing remarks will not, of itself, always bespeak error. [R v Kendrick [2015] QSA 27, 71]. It may be apparent, as a matter of inference, that the principle was taken into account and appropriately applied. [SZUCS v Queensland Police Service [2015] QDC 190, [16]]. However, with regard to the above, there is nothing from which it could be inferred that the learned magistrate considered, and appropriately applied, the principle of totality.
22. The sentence imposed was manifestly excessive; his Honour has failed to moderate down the other sentences of imprisonment after imposing the cumulative suspended sentences. It is submitted that it would have been within range for the learned magistrate to lower the head sentence of imprisonment on the assault occasioning bodily harm with consideration given to the multiple cumulative sentences of imprisonment.
23. It was an error of law for the learned magistrate to not consider the sentence already imposed on the appellant once reminded of the suspended sentences. It is submitted that his Honour erred when imposing an additional cumulative sentence of two months imprisonment.[8]
- [18]With respect, I accept that the learned magistrate’s approach at this stage of the sentencing was a clear error, in invoking the suspended sentences, which included a cumulative component in respect of two months but then not adjusting the overall sentence. However, the fundamental problem with the overall sentencing construct on 10 August 2021 commenced with an even more basic error which was explored with counsel for the appellant and the respondent during oral submissions in the course of this sentencing appeal.
- [19]It is useful to take a step back and to analyse the appellant’s criminal history, a process which I accept may well have been difficult in the context of a busy sentencing day at the Mornington Island Magistrates Court, and no doubt was a factor in the overall manifestly excessive sentence that I will ultimately conclude arose from this sentencing process.
- [20]The appellant first appeared for sentence in the Magistrates Courts at Doomadgee on 24 May 2018 on the following offences:-
- (1)Contravention of release conditions (on 9/12/2016);
- (2)Assault occasioning bodily harm whilst armed in company – domestic violence offence (on 8/12/2016);
- (3)Failure to appear in accordance with undertaking (on 18/1/2017);
- (4)Failure to appear in accordance with undertaking (on 13/4/2017);
- (5)Breach of bail condition (on 1/1/2018);
- (6)Breach of bail condition (on 8/1/2018); and
- (7)Failure to appear in accordance with undertaking (on 9/1/2018).[9]
- (1)
- [21]On all charges, convictions were recorded and the appellant was sentenced to 40 hours community service.
- [22]On 16 January 2019, the appellant appeared at the Doomadgee Magistrates Court on 1 x contravention of a domestic violence order (1/11/2018) and 1 x failure to appear in accordance with an undertaking (5/12/2018) and was sentenced to six months’ probation.
- [23]The next entry on the appellant’s criminal history has her appearing at the Doomadgee Magistrates Court on 10 October 2019 with the order:
On all charges, conviction recorded, community service time: 40H to be completed within one Y.[10]
- [24]The court report, apparently tendered at sentence but not marked as an exhibit in those proceedings, marked however exhibit 6 in these appellate proceedings, reveals:
Ms Gregory appeared in the Doomadgee Magistrates Court on 10 October 2019 for breaching her community service order which had commenced 14 May 2018. She had completed only 22 of 40 hours. The order was revoked and Ms Gregory was resentenced to a further community service order.[11]
- [25]It is relevant to note that the court report identifies that she had been credited with four hours of that second community service order (which totalled 40 hours) but no more as is apparent at exhibit 6, p 2.
- [26]The appellant then next appeared at the Doomadgee Magistrates Court on 24 December 2019 on one failure to appear in accordance with an undertaking (12/12/2019) for which she was sentenced to one month imprisonment, with a parole release date on 23 January 2020 (i.e. the last day of the jail sentence imposed).[12]
- [27]The appellant then appeared further at the Doomadgee Magistrates Court on 9 January 2020, in respect of offences of commit public nuisance (27/11/2019), obstruct police officer (27/11/2019) and going armed so as to cause fear (23/12/2019), for which she was sentenced to nine months’ probation.
- [28]The appellant’s last entry on her criminal history was in the Doomadgee Magistrates Court on 29 October 2020 in respect of the offences of commit public nuisance (15/5/2020), failure to appear in accordance with an undertaking (12/8/2020) and failure to appear in accordance with an undertaking (16/9/2020). On each of these offences she was sentenced to one month imprisonment, suspended for 12 months. It should be noted that if she were required to serve those sentences of imprisonment, the sentences of imprisonment for the failures to appear would be served cumulatively on any other sentences.
- [29]Accordingly, when the appellant came before the learned magistrate at the Mornington Island Magistrates Court on 10 August 2021, she fell to be sentenced on her pleas of guilty in respect of the following offences:
- (1)Failure to appear in accordance with an undertaking (21/4/2021);
- (2)Breach of a bail undertaking by failing to report (23/12/2020); and
- (3)Breach of bail undertaking by failing to report (30/12/2020).
- (1)
- [30]The appellant also pleaded guilty to the following breaches of community based orders:
- (1)Breach of probation (21/7/2020) – nine month probation order imposed on 9 January 2020 in respect of public nuisance, obstruct police and going armed; and
- (2)Breach of community service order (9/10/2020) in respect of the 40 hours community service order imposed on 10 October 2019 in respect of assault occasioning bodily harm, breaches of bail and failures to appear, being itself a resentence for the sentence originally imposed of 40 hours community service for the same matters on 24 May 2018.
- (1)
- [31]Although only raised during the sentencing process (flagged somewhat obliquely by the prosecutor during sentencing submissions),[13] the appellant also fell to be dealt with for breach of the suspended sentences imposed on 29 October 2020 (one months’ imprisonment on each of the offences of public nuisance and two failures to appear).
- [32]The first fundamental flaw in the sentencing process is that the learned magistrate proceeded to resentence the appellant on the original tranche of offences from Doomadgee Magistrates Court on 24 May 2018, with no information whatsoever about the facts of the original offences. The only information that could have been gleaned from the material is that they were offences committed by a then 29 year old indigenous woman with no criminal history, who went on to complete 22 hours of that original 40 hour community service order, and completed and/or was credited with four hours of the subsequent resentence of 40 hours community service imposed on 10 October 2019.
- [33]In those circumstances, even in the light of the appellant’s relatively poor performance on both the community service orders and probation orders as evidenced in the court report,[14] the effective head sentence imposed of nine months (six months imposed for the assault occasioning bodily harm and one month cumulative on each of the three failures to appear) was redolent of sentencing error, and clearly manifestly excessive.
- [34]In totality terms, that error was exacerbated by the imposition of the cumulative terms of one month for the failures to appear from 21 April 2021 and the invoking of the two cumulative periods of one month imposed for the failures to appear offences for which the appellant was sentenced on 29 October 2020.
- [35]Given my conclusion that the effect of the overall sentence was manifestly excessive, it is clear that the appeal must succeed, and the appellant should be resentenced. I note that the appellant has now served 38 days in custody.
- [36]In my view, the most efficient and just way to resentence the appellant in the current circumstances, given the obvious difficulties in seeking to unscramble the egg, is to set aside all sentences of imprisonment imposed by the learned magistrate on resentencing the appellant for those offences for which she was originally sentenced to community service orders and probation, which would then leave her with three cumulative one month sentences arising from the failures to appear on 21 April 2021, and the invoked cumulative one month sentences originally imposed for the two failures to appear for which she was sentenced on 29 October 2020 to a suspended sentence in each case, which were failures to appear from 12 August 2020 and 16 September 2020.
- [37]I note in passing that the one month imprisonment imposed for public nuisance on 29 October 2020, which was also invoked, was ordered to be served concurrently, and there appears no need to interfere with that sentence either, given the outcome that I intend to impose.
- [38]The effective head sentence remaining is three months. That effective head sentence is invoked by the cumulation of three separate failures to appear and those failures to appear, in the context of the appellant’s criminal history, represent the gravamen of her offending which, in the circumstances, appropriately justified short prison terms for those particular matters. Whether or not she should have been granted an immediate parole release date as of 10 August 2021 is essentially a moot point, given that she has now served 38 days of custody. Clearly, the 38 days she served is more than sufficient, representing in excess of one-third of the effective head sentence and, clearly, she should be released to parole effective today.
- [39]The order that I set out below will achieve that outcome by effectively setting aside the re-sentences in respect of all community based orders, but leaving the balance of the sentences intact so that the effect will be a cumulative sentence of three months with parole as of the date of the delivery of this decision on the appeal (17 September 2021).
Order
- [40]I make the following orders:
- (1)Appeal granted.
- (2)Set aside the following re-sentences imposed on 10 August 2021 at the Mornington Island Magistrates Court:
- Assault occasioning bodily harm whilst armed in company (8/12/2016) – six months imprisonment.
- Failure to appear in accordance with an undertaking (9/1/2018) – one month imprisonment (cumulative).
- Failure to appear in accordance with an undertaking (18/1/2017) – one month imprisonment (cumulative).
- Failure to appear in accordance with an undertaking (13/4/2017) – one month imprisonment (cumulative).
- Contravention of release conditions (9/12/2016) – one month imprisonment (concurrent).
- Going armed so as to cause fear (23/12/2019) – three months imprisonment (concurrent).
- (3)Substitute an order that the appellant be convicted and not further punished in respect of each of those periods of imprisonment set aside in paragraph (2).
- (4)Fix parole release date at 17 September 2021.
- (5)The appellant is released subject to the conditions of Corrective Services Act 2006 (Qld) s 200 and the Penalties and Sentences Act 1992 (Qld) s 160G.
- (1)
Footnotes
[1]Exhibit 1 – outline of submissions on behalf of the appellant, [2].
[2]Exhibit 4, decision, p 4.
[3]Exhibit 3, sentence submissions, 1-3, 1-5.
[4]Exhibit 2 – outline of submissions on behalf of the respondent [10].
[5]Exhibit 2 – outline of submissions on behalf of the respondent [11].
[6]Transcript 2.3.
[7]Decision p 4.
[8]Exhibit 1 – outline of submissions on behalf of the appellant [18] – [23].
[9]Exhibit 5, sentencing exhibit 1, p 1.
[10]Exhibit 5, sentencing exhibit 1, p 1, but the offence column is blank (except for the appellant’s name).
[11]Exhibit 6, p 1.
[12]Exhibit 5, sentence exhibit 1, p 2.
[13]Transcript 1-4 ll 14-15, exhibit 6.
[14]Exhibit 6.