Smallwood v Queensland Police Service
[2021] QDC 43
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- Smallwood v Queensland Police Service[2021] QDC 43
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Smallwood v Queensland Police Service[2021] QDC 43
Smallwood v Queensland Police Service[2021] QDC 43
DISTRICT COURT OF QUEENSLAND
CITATION: | Smallwood v Queensland Police Service [2021] QDC 43 |
PARTIES: | DOUGLAS JOHNATHON SMALLWOOD (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO: | 170 of 2020 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to section 222 Justices Act 1866 |
ORIGINATING COURT: | Magistrates Court of Queensland |
DELIVERED ON: | 25 February 2021, ex tempore |
DELIVERED AT: | Townsville |
HEARING DATE: | 25 February 2021 |
JUDGE: | Coker DCJ |
ORDER: |
|
COUNSEL: | Self-represented appellant C. Holden for the respondent |
SOLICITORS: | Office of the Director of Public Prosecutions for the respondent |
- [1]There is an appeal before me at the present time brought by Douglas Jonathon Smallwood. For convenience, I shall refer to him as the appellant. His appeal is an appeal pursuant to the provisions of section 222 of the Justices Act 1866.
- [2]The appeal, which was filed in this Court on the 18th of September 2020, relates to a conviction on the 4th of September 2020. That conviction related to one count of enter premises and commit an indictable offence.
- [3]The period of imprisonment that was imposed in relation to that offending was 18 months imprisonment with a parole eligibility date of the 4 October 2020. It should be noted, therefore, that the parole eligibility date that was fixed by the learned Magistrate hearing the matter, Magistrate Mack, was only one month after the matter was before the Court.
- [4]The ground that is sought to be relied upon by the appellant in relation to the proceedings is that the sentence is, as he terms it, manifestly excessive. The only basis upon which an appeal pursuant to the provisions of s 222 of the Justices Act can proceed is upon the basis that the penalty was excessive or inadequate.
- [5]The reason that that is the case is that there is no question as to the reasonableness of the conviction, it being the case, as is the situation here, that the appellant entered a plea of guilty.
- [6]I might add, that having read the transcript of the exchange between the learned Magistrate and the appellant in relation to these proceedings, it would appear clear that he was determined in his intent to ensure that the Magistrate clearly understood the basis upon which he entered the plea, and the fact that it was the first real indication, though not the absolute first step, taken by the appellant in relation to attempting to provide, what I might call, a clean slate in relation to offending.
- [7]The appellant has explained to me, that as a result of his criminal history, he is likely to be required to serve the whole of any period of imprisonment that was imposed. Of course, if he were then required to serve 18 months from the 4th of September 2020, his release date would be the 3rd of March 2022. However, the appellant is faced with, perhaps, a greater difficulty than that in that he was previously before the District Court on the 4th of September 2017, and at that time, was convicted and sentenced to a period of three years imprisonment.
- [8]He was, however, granted a parole release date on the 28th of February 2018, which meant, of course, that there was a little in excess of two and a-half years that remained outstanding on his sentence, and he was, therefore, the subject of parole and, therefore, the obligations and responsibilities that arise pursuant to parole, until the 4th of September 2020.
- [9]However, having been released on the 28th of February 2018, the appellant, in company with another person, committed the offence which ultimately brought him before Magistrate Mack on the 4th of September 2020. That offending is described in the sentencing schedule of the sentence which was heard by Magistrate Mack.
- [10]At least in so far as is relevant, it notes that on Friday the 13th of July 2018 at about 11.20 pm the defendant attended at the offence location, and that was Corry Cycles, a bicycle shop in Mackay, with another person, and entered the store by breaking the lower glass panel of the store. The defendant and his accompanying person then entered the store and removed two bicycles from the premises. One of those bicycles was a carbon fibre mountain bike valued at over six and a-half thousand dollars. Also taken, however, was another bicycle described as a Giant bicycle – though I presume that relates to the brand rather than the size – and that its value was $849.
- [11]The appellant clearly did not have a great appreciation of the value of the bicycles because he and the person with whom he committed the offence discarded the carbon fibre mountain bike and retained the green Giant bicycle which was valued at about only one-seventh, or thereabouts, of the value of the other bicycle.
- [12]What the schedule then goes on to note is, that due to lack of forensic evidence or any other clues that link the defendant to the offence, the investigation was filed pending further information coming to light. That further information was that the appellant, on the 9th of March 2020, attended at police headquarters in Roma Street, Brisbane and advised the front office officer that he wanted to be placed into police custody. He made admissions to the front counter officer that he had committed a break and enter offence in July 2018 and would like to confess to that offence.
- [13]The police then subsequently questioned the appellant about the matter, and he provided details that were clearly only known to him as the perpetrator of the offending, such as, the method of entry, persons involved and the like. He also provided information as to where the Giant bicycle might have been located, though it was noted that police had not, by the time of the filing of the sentencing schedule, attended to seek the return of that bicycle.
- [14]When questioned by police as to the reasons for admitting to the offence, particularly in circumstances where he had, to all intents and purposes, effectively gotten away with it, he said that he did not want to elaborate on the details of the matter, but that he had his own personal reasons.
- [15]What appears clear, from the other material that is available, including the transcript, however, is that the appellant has had, what might be called, something of an epiphany. I say that in the sense that he was born on the 17th of September 1986 and is, therefore, at this time 34 years of age. At the time of the offending he was only 31 years of age, but had already accumulated a significant criminal history commencing in 1998. On that occasion, the appellant appeared in the Caboolture Childrens Court, and was only 11 years of age at the time.
- [16]Thereafter, there are repeated attendances in the Childrens Court, but then also, subsequently, in the Magistrate and District Courts in relation to further offending. They relate to what seem to be property offences, and generally low-level street offending. Of course, there are also some more significant and serious offences, including those which relate to physical harm, including grievous bodily harm and other offences involving entering premises and committing indictable offences, as well as the perhaps most serious offending, which was dealt with in the District Court on the 4th of September 2017 when the appellant was sentenced in relation to robbery armed in company using personal violence. He was there ordered to serve three years imprisonment. Clearly, there have been issues with regard to the appellant, and issues with regard to drugs.
- [17]When this matter was dealt with by the learned Magistrate, he alluded, immediately, to the fact that the sentence related to offending which only came to light as a result of the information that was provided by the appellant in relation to this matter. He was referred by the learned Prosecutor to R v Vaughan [2005] QCA 348 where it was submitted by the learned Prosecutor that because of the serious criminal history that already existed, a criminal history that covered over eight pages, that a penalty in the vicinity of three years would be appropriate.
- [18]Referring specifically to that case, the learned Magistrate was referred to the comments of Justice of Appeal Keane – as he then was – where his Honour made the comments which were, to some extent, relevant in relation to the appellant’s situation. His Honour said:
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, Chief Justice de Jersey commented that a three year term for breaking and entering a dwelling house was at least mid-range, and arguably low-range, when the offender has a substantial criminal record.
- [19]As such, the Crown was submitting that an appropriate penalty was in the vicinity of two and a-half to three years, though that needed to be ameliorated as a result of there being a very clear indication of the cooperation provided by the appellant in relation to how this matter was dealt with.
- [20]In particular, the submissions that were made on behalf of the appellant noted the degree of cooperation that was provided by him. In particular, Ms Armitage, appearing on his behalf, spoke of the desire that he had to take responsibility for his actions, and the first clear indicator of that was his approach to the police in March of 2020 to indicate his involvement in these proceedings.
- [21]What is clear is that Ms Armitage had instructions as to at least some indication of the motivation behind the actions of the appellant. At page 8 of the exchange between the learned Magistrate and Ms Armitage is the following notation. Ms Armitage said:
The instructions I have, and the words he wished to express, is that he has spent time thinking about what he wants to do. He has, for the first time being in custody, engaged with housing, working on what he can set up in terms of his release to try and do better. It’s obviously not easy, but he has good intentions, and your Honour can see that the willingness to hand himself in in relation to this offence is a reflection of remorse, and also taking responsibility. It’s more than the usual scenario when we look at the standard AB v The Queen type situations, somebody may be identified as being charged with supply, and then talk themselves into a trafficking charge.
- [22]It might also be the case that the person who seeks the benefit of information provided, does so when they are already, as suggested by Ms Armitage, the subject of investigation by the police. In fact, the learned Magistrate specifically commented upon that in the exchange that followed with Ms Armitage where Ms Armitage said the following:
Similarly, in the case I have provided, R v McDonald [2016] QCA 100, that case is where somebody was already in the sights of police in relation to child pornography, and then admits distribution. So this is way beyond that. This is, we didn’t even have you in our sights, and you admitted to us. It gives peace of mind.
- [23]And the learned Magistrate responded:
And a fair passage of time, so he wouldn’t think he was still being actively investigated.
- [24]It is, in my view, a very clear indication of the intention on the part of the appellant to change the direction of his life. And as he has submitted to me, perhaps, therefore, that should have been reflected more in the penalty that was imposed in relation to these proceedings.
- [25]However, an appeal does not proceed on the basis of what I might think I might have done if I were the Magistrate in the first instance dealing with the proceedings. What is required is that there needs to be a consideration of the approaches that are taken in relation to appeal proceedings. In that regard, I am mindful of the comments of his Honour Judge Devereaux SC – as his Honour then was – in Rongo v Queensland Police Service [2017] QDC 250. There his Honour said:
It seems to me, then, that the focus in this and many appeals brought in this Court on attempting to demonstrate an error in the exercise of the sentencing discretion, is not misguided but slightly misplaced. The real question is whether the sentence was excessive, so that, although the appellant may argue that the Magistrate made a certain error, the success of the appeal does not depend on persuading the appeal Court on that point. On the other hand, successfully demonstrating an error does not guarantee success of the appeal because, in each case, the question is whether the sentence was excessive.
- [26]The question here is exactly that. Was the sentence an excessive one? Obviously, when there is consideration of the appellant’s criminal history here, and being mindful, particularly, of the guidance provided in R v Vaughan, it could not, in my view, be suggested that the penalty of 18 months imprisonment was excessive. That is even more so the case when it is properly noted by the Crown that the parole eligibility date that was fixed by the learned Magistrate was only one month after the actual imposition of the sentence, though it took into consideration, of course, the fact that the appellant had already spent a few months in jail, it showed an enormous reduction in relation to the actual requirement with regard to time served.
- [27]The appellant’s argument is to say that the difficulty arises, not because of that concession made on the part of the Magistrate, and the reduction in time, but rather, because of his criminal history, even with his best endeavours, he would not be likely to be able to obtain a parole eligibility indication in his favour and, therefore, would be required to serve the whole of the time.
- [28]What gives rise to a further complication, however, is that, because of the penalty or sentence imposed in September of 2017, a period of three years with a release on the 28th of February 2018, the appellant was on parole when he committed the offence. The effect of reoffending, therefore, whilst on parole, is that the appellant is required to serve the remainder of the sentence imposed in the District Court in 2017, and the revised date, as I have been provided information in that regard, is, therefore, the 6th of August 2022.
- [29]As noted, during the exchange in relation to this matter, even if it were the case that Magistrate Mack’s sentence in relation to the matter that was before him were to be served in its entirety, it would still have concluded on the 3rd of March 2022, which, as submitted by the Crown, means that it is fully subsumed by the appellant’s previous three-year sentence.
- [30]As such, the fact of whether a period of 18 months was manifestly excessive is, to some extent, if not entirely, overtaken by the fact that the release date that is now available is at a date after the period of 18 months which was imposed by Magistrate Mack. That, however, is not the ultimate determinant in relation to this matter, but it is a factor that I do take into consideration with regard to the proceedings.
- [31]Ultimately, what I am required to do is to consider whether the penalty of 18 months with a parole eligibility date only one month after sentence is manifestly excessive. I do not consider that it is, and I say that very clearly from the basis that the learned Magistrate made specific reference to the cooperation provided by the appellant with the administration of justice. The fact that his admissions made in relation to this matter were made in circumstances where he was not in the sights of police in relation to other offending, and then gave explanations to the police as to other offending, but rather, where there was no indication of any involvement by him whatsoever in the offending on the 13th of July 2018, and yet, he came forward and provided assistance.
- [32]Magistrate Mack took that particular circumstance into account when he reduced, what would be, a general penalty of somewhere in the vicinity I would have thought of two and a-half to three years to a period of 18 months. And more particularly, when he fixed a parole eligibility date only one month after the sentence date. Accordingly, it is, in my assessment, clear that Magistrate Mack took into account the appellant’s admissions, and his cooperation, and reduced the sentence very significantly such that it could not be considered that the penalty imposed was manifestly excessive.
- [33]Accordingly, the only proper course for me to follow, and the course that I do follow, is to dismiss the appeal in relation to this matter. But before doing so, I also wish to make a particular reference to the stance that has been taken by the appellant in relation to these proceedings.
- [34]As was properly recognised by the learned Magistrate in the sentencing in relation to this matter, it was a case where the offending only came to the attention of the police, and his involvement only came to the attention of the police through the cooperation provided by the appellant in relation to this matter. It is clear that that is a different position, or stance, taken by the appellant, to what might previously have been the case. It indicates a change in mindset. It indicates a determination, as was emphasised by the appellant’s solicitor at the sentence, to change the direction of his life, and to seek assistance to, perhaps, move forward.
- [35]I note that Ms Armitage, the solicitor at the time, made reference to the appellant becoming aware of, and turning his mind specifically to issues with regard to his future, perhaps opportunities for housing and for opportunities in relation to work. In my view, for what it is worth, that does show a clear change in the behaviours of a person who, tragically, has been before the Courts since he was a young child. And it is hoped that that determination on the part of the appellant can be reflected in his future behaviours in the prison system, and more particularly, with the greatest of respect to the Parole Board, in the consideration that they might give to any application for parole, it being open to the appellant to make such an application forthwith.
- [36]I will direct, in that regard, that my reasons in relation to this matter be published, and that the registrar ensure that a copy of those reasons are made available to the appellant so that they may be used by him in support of any application for parole. Mr Smallwood, do you understand what I have done in relation to this matter? And that is, very simply, I have dismissed the appeal because I do not think, on the evidence, that the Magistrate has been excessive. But what I have tried to do, is to provide a platform that you might be able to use in relation to any application for parole.