OWL v Queensland Police Service
[2021] QDC 5
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- Unreported Judgment
- OWL v Queensland Police Service[2021] QDC 5
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OWL v Queensland Police Service[2021] QDC 5
OWL v Queensland Police Service[2021] QDC 5
DISTRICT COURT OF QUEENSLAND
CITATION: | OWL v Queensland Police Service [2021] QDC 5 |
PARTIES: | OWL (appellant/defendant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO: | 40/2020 |
DIVISION: | Criminal |
PROCEEDING: | Appeal s 222 Justices Act 1886 (Qld) |
ORIGINATING COURT: | Magistrates Court at Gladstone |
DELIVERED ON: | 15 January 2021 |
DELIVERED AT: | District Court at Rockhampton |
HEARING DATE: | 12 January 2021 |
JUDGE: | Clarke DCJ |
ORDER: | Appeal allowed |
CATCHWORDS: | CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – appeal – whether sentence manifestly excessive – cumulative sentence – totality principle |
LEGISLATION: | Justices Act 1886 (Qld) ss 47, 222, 223, 224; Domestic and Family Violence Protection Act 2012 (Qld) s 177. |
CASES: | Teelow v Commissioner of Police [2009] QCA 84 McDonald v Queensland Police Service [2018] 2 Qd R 612 Allesch v Maunz (2000) 203 CLR 172 Mill v The Queen (1988) 166 CLR 59 Postiglione v The Queen (1997) 189 CLR 295 |
SOLICITORS: | Ms F J Davis, Legal Aid Queensland for the appellant/defendant Mr L Bristow, Officer of the Director of Public Prosecutions for the respondent |
- [1]The defendant appeals against the severity of sentence imposed upon him by an acting Magistrate in the Gladstone Magistrates Court on 31 July 2020. On that date the defendant pleaded guilty to one charge of contravening a domestic violence order which was an aggravated offence due to previous convictions.[1]
- [2]The appeal was lodged some days out of time; accordingly, there would usually be a discretion to extend the time for filing the notice of appeal,[2] but the respondent concedes that as the notice was likely given to the general manager of the prison the defendant was incarcerated within time,[3] there is no need to extend time and I should proceed to hear the appeal.
- [3]On his plea of guilty on 31 July 2020, the defendant was sentenced to imprisonment for a period of 18 months, which was ordered to be served cumulatively on a sentence of 11 months imprisonment imposed upon him in the Gladstone Magistrates Court on 14 July 2020. A parole eligibility date was set at 31 January 2021 which was six months into the term of two years and five months (29 months) sentence imposed upon him.
- [4]The sole ground of appeal is the sentence was manifestly excessive. It is contended the sentence offends the totality principle. It is submitted a sentence of 18 months imprisonment did not sufficiently reflect the discount for the plea of guilty, and the order for a cumulative sentence rendered it manifestly excessive. It is also submitted the learned acting Magistrate allowed the defendant’s criminal history to overwhelm the sentencing discretion,[4] and allowed the circumstances surrounding the offending to overwhelm the sentencing discretion. It is submitted appropriate to allow the appeal and impose a sentence of 12 months imprisonment concurrent with the sentence imposed on 14 July 2020 and to order immediate parole eligibility.
- [5]The respondent argues the learned acting Magistrate did have regard to the totality principle, concedes the acting Magistrate failed to give reasons for imposing the cumulative sentence and for the setting of the parole eligibility date, but nonetheless contends the sentence imposed was not manifestly excessive. The respondent also conceded the acting Magistrate should have made a declaration about pre-sentence custody, following the amendment to s 159A Penalties and Sentences Act 1992 (Qld) on 25 May 2020. His Honour stated he was “unable to declare” that time, but had taken it into account.
- [6]An appeal brought pursuant to s 222 Justices Act (1886) Qld is by way of rehearing.[5] Having pleaded guilty, the defendant’s sole available ground of appeal is that the penalty was excessive.[6] In order to succeed, the appellant must establish some legal, factual or discretionary error in the decision under appeal.[7]
- [7]The defendant is 45 years of age and has a considerable criminal history commencing in 1994. He had been sentenced to periods of imprisonment on 13 occasions. The respondent highlights the defendant had 13 previous convictions for contravening a domestic violence order in the proceeding five years (and no others). He was dealt with in the Gladstone Magistrates Court on 21 April 2020 for contravention of a domestic violence order (aggravated offence) and was sentenced to six months imprisonment, suspended after having served one month, for an operational period of two years. He reoffended within two months of release and was sentenced again in the Gladstone Magistrates Court on 14 July 2020. On that occasion, he was sentenced to six months imprisonment for two offences of contravention of a domestic violence order (aggravated offences). The learned Magistrate ordered the defendant serve the balance of the suspended imprisonment (five months) and ordered that be served cumulatively with the order for six months imprisonment and set a parole release date at the date of sentence. Accordingly, the defendant was released on a parole release order of 11 months imprisonment on 14 July 2020.
- [8]I note the following features from the original Court file: Documents tendered as exhibits were marked by highlighter pen (presumably by the sentencing acting Magistrate). The entry on the criminal history recording the activation of the balance of suspended imprisonment and also ordering it be served cumulatively was separated by a page break from the rest of the entry dated 14 July 2020. Whilst the order of imprisonment for the period of six months has been highlighted by highlighter pen, the balance of the entry recording the cumulative activation of suspended sentence over the page was not. Further, I note the document used by the acting Magistrate to endorse the order made on 31 July 2020 does not refer to the cumulative suspended imprisonment.
- [9]In the sentencing proceedings, the prosecution made brief submissions on penalty only. No comparable decisions were referred to or provided to the Court by either party. No submissions at all were stated in open Court about the offence by the prosecutor. CCTV footage capturing part of the offending was not tendered nor played to the Court (although the prosecutor said it was “quite disturbing to watch”). Indeed the prosecution submissions were merely contained within 12 lines of transcript, which included the response to the learned acting Magistrate asking for submissions about whether the sentence should be ordered to be served concurrently or cumulatively.
- [10]With respect the police prosecutor, apart from generally describing the defendant’s criminal history as “appalling” and simply highlighting the fact of reoffending in a like manner despite orders for suspended imprisonment and parole release, did not specifically (nor accurately) inform his Honour of the length of the period of imprisonment the defendant was then serving at the date of sentence, subject to parole release. I also note the police prosecutor did not tender a pre-sentence custody certificate which would have confirmed that matter. It was common ground the defendant had been in custody for a period of nine days since his arrest, on the date of the offence on 22 July 2020. In my view, the failure to do so likely compounded the issue which seems to have arisen.
- [11]Consequently, the learned acting Magistrate simply read the material tendered. In my view, this practice should be discouraged. Preserving the interests of an open court of record, I am of the view that at the very least, a summary of the allegations and all other pertinent and relevant matters should be stated in open court to adequately assist the court.
- [12]Again, with respect, the solicitor representing the defendant made conflicting and to my mind confusing submissions about the length of the period of imprisonment the defendant was serving at the date of sentence.
- [13]Against that background, it is perhaps unsurprising his Honour specifically referred to “six month term of imprisonment with immediate parole”,[8] for “the offence of a breach of domestic violence order”[9] when ordering the cumulative aspect of the sentence order. The parties did not correct his Honour about the length of the cumulative order for imprisonment.
- [14]I am satisfied the acting Magistrate misapprehended the length of the period of imprisonment the defendant was serving at the time of the sentence the subject of the appeal. In the circumstances, whilst I am satisfied the acting Magistrate did give sufficient reasons indicative of factoring in the totality principle, nonetheless an error has been established in the sentencing process and it would be appropriate to reconsider the issue of sentence.
- [15]By the time of the sentence proceedings on 14 July 2020, the domestic violence order had been varied, so that in addition to the standard condition, the defendant was also prohibited from having any contact with the aggrieved. Eight days later on 22 July 2020 at about 6.00 pm the aggrieved called triple zero. The operator could hear a distressed female before the call was terminated. On being called back, the aggrieved told the operator she had called the emergency number by accident. She later told police the defendant had messaged her wanting to meet and when they did so he was angry so she tried to drive away. As she did so, he punched her passenger window, causing it to smash. They went to the defendant’s mother’s place. He commenced to vacuum the car and asked her to get out. When she didn’t, he punched her in the head several times before they both left and travelled to the Caltex Roadhouse at Benaraby, south of Gladstone.
- [16]As part of the continuing offence, about 45 minutes later CCTV footage at the Caltex Benaraby records the defendant and the aggrieved sitting in the car before the defendant was seen to be hitting and elbowing the aggrieved in the face and torso numerous times, for several minutes. The defendant dragged, pushed and pulled her from the passenger seat to the driver’s seat toward him. Witnesses in the service station could hear her yelling and screaming and sounding the car horn, as if to draw attention. Witnesses approached and yelled at the defendant to stop; the aggrieved asked them to call police. The female service station attendant returned, locked the doors and called triple zero.
- [17]After a short period the aggrieved ran to the service station, she was not wearing pants (for some unexplained reason). Being unable to get into the service station, she returned to the car. The defendant reversed the car while she leant in through the open driver’s door. After the car stopped the aggrieved ran off and the defendant got out and ran after her, before they both returned to the car and drove away. The police intercepted the car near Calliope. The aggrieved did not provide police with a version of events from the Benaraby Service Station.
- [18]The objective features of the offending were plainly very serious, and appear to me to have been accurately described by his Honour as “a demeaning, brutal and cowardly attack on a defenceless and terrified woman in a public place”.[10]
- [19]
- [20]In support of the submission for an order of 12 months imprisonment to be served concurrently, the appellant’s legal representative referred me to a sentence imposed by his Honour Rackemann in the Hervey Bay District Court on 29 July 2020, R v KGB. In that matter, which involved allegations of assaults including by squeezing the aggrieved’s neck, his Honour reduced a notional head sentence of up to two years imprisonment to an order of imprisonment for a period of 12 months, taking into account a total of 14 months imprisonment the defendant had already served which was not strictly declarable. Having regard to that and other distinguishing features, including significant rehabilitation, I am not assisted by that case as a comparable decision.
- [21]In support of a contention the sentence of (approximately) two and a half years imprisonment was not excessive, the respondent has referred me to LJS v Sweeney[13] and RJD v Queensland Police Service.[14] LJS v Sweeney involved a mature offender, with relevant previous convictions for breaches of a domestic violence order involving physical violence. Smith DCJA allowed the (conceded) appeal and substituted an order of two years imprisonment for an order of three years imprisonment. His Honour confirmed in that case, having regard to the objective features and the other cases that his Honour considered that the appropriate range of penalty was between two to two and a half years imprisonment. I accept that assessment, with respect. In RJD v Queensland Police Service, Morzone QC DCJ dismissed an appeal against an order of 18 months imprisonment. His Honour did not find material error in the sentencing discretion and accordingly dismissed the appeal.
- [22]In the circumstances this case represents I have had regard to the relevant sentencing guidelines in s 9 Penalties and Sentences Act 1992 (Qld), primarily in s 9(1), (2), (3), (10) and (11). In my determination, a just sentence would result in an order of imprisonment for a period of two years, taking into account all matters and acknowledging the appellant’s early plea of guilty. However, I am certainly satisfied the appellant has exposed himself to a sentence of up to two and a half years imprisonment.
- [23]It appears to me there are two ways that can be imposed: either by substituting an order of imprisonment for a period of two years, and not imposing a cumulative sentence, or by substantially reducing the penalty to conform with the totality principle and making a cumulative order.
- [24]Relevantly to this case, s 9(2)(j) and (l) Penalties and Sentences Act 1992 (Qld) serves to observe the totality principle, derived from cases such as Mill v The Queen[15] and Postiglione v The Queen.[16] The purpose of the principle is primarily to ensure the penalty imposed does not result in a crushing or disproportionate sentence.
- [25]
- [26]Relevant to the issue of totality the prosecution had tendered a document[19] which was a summary of facts of the appellant’s relevant previous convictions. The offending the subject of the appeal demonstrated a clear escalation in seriousness, having regard to the objective features of the offences the appellant was dealt with for on 21 April 2020 and 14 July 2020. The appellant re-offended committing similar offences whilst subject to an order for suspended imprisonment and also whilst subject to parole release order. A cumulative order for imprisonment had already been made.
- [27]In the circumstances, I consider it appropriate to order a cumulative sentence, to acknowledge and mark the fact of re-offending whilst subject to those orders.
- [28]I consider it appropriate to make a declaration about pre-sentence custody, which I must do. I further consider it appropriate to set a parole eligibility date at a point less than the customary one third mark, to have regard to the possible delay the appellant may encounter in securing parole release.
- [29]The orders are:
- Appeal be allowed;
- The sentence order made at the Magistrates Court at Gladstone on 31 July 2020 be set aside;
- Order the appellant be imprisoned for a period of 12 months;
- Order that period of imprisonment start from the end of the period of imprisonment (11 months) the appellant was ordered to serve on 14 July 2020 in the Magistrates Court at Gladstone;
- It is declared that nine days spent in pre-sentence custody between 22 July 2020 and 30 July 2020 be deemed time already served under the sentence; and
- Order the date the appellant is eligible for parole be fixed at 15 January 2021.
- [30]I will hear the parties as to an order for costs if there is to be an application made to the Registrar, within 14 days of the delivery of this decision.
Footnotes
[1]Section 177(2)(a) Domestic and Family Violence Protection Act 2012 (Qld).
[2]Section 224(1)(a) Justices Act 1886 (Qld).
[3]Section 222(5) Justices Act 1886 (Qld).
[4]See Veen v R (1979) 143 CLR 458 and Veen v R (No 2) (1988) 164 CLR 465.
[5]Section 223(1) Justices Act 1886 Qld; Teelow v Commissioner of Police [2009] QCA 84.
[6]Section 222(2)(c) Justices Act 1886 (Qld).
[7]McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 612; Allesch v Maunz (2000) 203 CLR 172.
[8]Decision T2/34-35.
[9]Decision T3/22 (emphasis added).
[10]Decision T2/44-45.
[11]Section 47(5) Justices Act 1886 (Qld); Constable Miers v Blewett [2013] QCA 23.
[12]Section 552H(1)(b) Criminal Code 1899.
[13][2017] QDC 18.
[14][2018] QDC 147.
[15](1988) 166 CLR 59.
[16](1997) 189 CLR 295.
[17]Section 156A, Penalties and Sentences Act 1992 (Qld) is not engaged: see Schedule 1 to the Act.
[18]R v Booth [1995] QCA 478; R v Mickelo [1995] QCA 468; R v Cutajar (1995) 85A Crim R 280; R v Margaritis ex parte A-G (Qld) [2014] QCA 219; R v Kendrick [2015] QCA 27.
[19]Exhibit 5 on the sentence.