Miller v Commissioner of Police
[2022] QDC 77
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- Miller v Commissioner of Police[2022] QDC 77
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Miller v Commissioner of Police[2022] QDC 77
Miller v Commissioner of Police[2022] QDC 77
DISTRICT COURT OF QUEENSLAND
CITATION: | Miller v Commissioner of Police [2022] QDC 77 |
PARTIES: | JESSIE ANDREW MILLER (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO: | BD2663/21 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court (Brisbane) |
DELIVERED ON: | 16 March 2022 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 March 2022 |
JUDGE: | Judge Barlow QC |
ORDER: |
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CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – breach of bail conditions – failure to report – whether fines and term of imprisonment were excessive sentence – whether magistrate considered the appellant’s capacity to pay the fines imposed – sentences excessive and appellant re-sentenced |
LEGISLATION: | Justices Act s 222 |
CASES: | ARS v Queensland Police Service [2018] QDC 103 Mallory v Commissioner of Police [2017] QDC 54 Sullivan v Queensland Police Service [2020] QDC 220 |
COUNSEL: | N Edridge for the Applicant S McCray for the Respondent |
SOLICITORS: | YFS Legal for the Applicant The office of the Director of Public Prosecutions for the Respondent |
- [1]HIS HONOUR: On 15 September 2021, the appellant was convicted of five charges of failing to appear in accordance with an undertaking, two of which were failing to appear on the same day under two different undertakings. The Magistrate sentenced the appellant to three months’ imprisonment on one of those two failures to appear, which both occurred on 9 July 2021, with a parole release date of 15 October 2021: in other words, after one month. He convicted and did not further punish the appellant on the other failure to appear on that day and on the other three failures to appear, which were on three separate occasions in March and July 2019 and July 2020, he fined the appellant $400, $200 and $600 respectively.
- [2]The appellant appeals those sentences on a number of grounds: first that they were manifestly excessive and, by an amended notice of appeal filed today by leave, he also appeals on the basis that the Magistrate failed to have regard to a material consideration, being section 9(2)(a) of the Penalties and Sentences Act 1992; failed to afford procedural fairness before imposing a term of imprisonment; failed to take into account the totality of the sentences imposed and failed to consider whether the appellant had capacity to pay the fines, especially when they were imposed alongside a term of imprisonment.
- [3]The respondent concedes that the sentences imposed are manifestly excessive and that the Magistrate did not take into account some relevant factors, including that imprisonment is supposed to be a sentence of last resort and there were other alternatives available not involving the appellant serving any period of time in custody.
- [4]This appeal, of course, is by way of rehearing on the original evidence and any new evidence adduced by leave. Today I gave the appellant leave to tender a report of a clinical psychologist, Ms Sarah Jones, who had assessed the plaintiff on 19 April 2021. That report was technically available to the appellant on the day of the sentence hearing, but he was that day represented by the duty lawyer in the Magistrates Court and not by his normal lawyers, who had possession of that report and had not informed the duty lawyer about it.
- [5]In that report, Ms Jones said that the appellant had been diagnosed with attention deficit hyperactivity disorder, which has had further negative impacts on his abilities to concentrate and to sustain attention. He had a pattern of heavy, daily binge-type drinking, often or sometimes to alcoholic blackout levels and this was particularly relevant, of course, because the appellant submitted to the Magistrate that he had forgotten to appear on at least two occasions because he had been intoxicated.
- [6]Ms Jones also reported that Mr Miller, the appellant, would benefit from ongoing and structured therapy with a focus upon the underlying features which maintain his distress and a number of other matters. She said that it was likely that a period of incarceration would prolong his exposure to pro-criminal attitudes of other inmates and increase his distress and anxiety. But if he were granted a non-custodial sentence, then access to further and more comprehensive supports in the community was likely to be required.
- [7]Now, that report was prepared, as I understand, in relation to other charges that had not yet come for sentence in this Court. But, nevertheless, it clearly has relevance to the sentencing of the appellant on this occasion. Had it been known to the Magistrate, it is unlikely that he would have sentenced the appellant to any term of imprisonment, but he might well have perhaps given him probation or some other non-custodial sentence. I therefore allowed the appellant to tender the report and, as it will become necessary for me to resentence the appellant, I take into account that report, which I have read in its entirety and have only summarised some of the highlights of it.
- [8]The Commissioner having conceded that the sentence was manifestly excessive and the Magistrate made errors in his sentencing, the appeal must be allowed and it falls now to me to resentence the appellant. He had of course failed to appear on five occasions, the subject of these charges. He had previously, according to his criminal history, failed to appear on two earlier occasions as well. So he had a very poor history that was relevant to the charges before the Magistrate on that occasion. But nevertheless, it is not a situation, it seems to me, in which he deliberately refused or declined to appear when required, but rather he overlooked the requirements to appear, partly because he was on at least some of the occasions intoxicated and had forgotten to appear. His diagnosed medical conditions may also have had some bearing upon those failures to appear.
- [9]Certainly, on two of the five occasions, he was found not to have appeared when required upon occasions when he reported in person at the police station in accordance with his bail conditions and it was found that he had not appeared as required under his undertakings.
- [10]The history indicates that a greater sentence than had previously been imposed on him may be appropriate and the reasons for it indicate that a noncustodial sentence with some supervision would have been of assistance. However, as he has already served one month’s imprisonment, it now would be excessive to impose such an additional penalty, even though it may be for his assistance, such as probation or indeed a short prison sentence with immediate parole. He has obviously served his time already and should not be repunished.
- [11]My attention has been drawn by counsel for the appellant, who I note appears pro bono and should be commended for that, to three cases of other judges of this court, in particular the decision of Judge Bowskill QC, as her Honour then was, in Mallory v Commissioner of Police [2017] QDC 54. Mr Mallory had been sentenced for a number of charges of failing to appear in accordance with his bail undertakings, along with other charges. But in respect of the failure to appear offences, he was sentenced to 14 days on each charge, cumulative on each other and on the sentence for the other offences. The total cumulative term was five months’ imprisonment, which was wholly suspended for an operational period of two years. Her Honour set aside the sentences on the basis that they were manifestly excessive and, noting that there were difficulties in the case before her with several cumulative charges, instead took into account the 43 days that Mr Mallory had spent in custody and having regard to that period of time, convicted him of the four failure to appear offences, but did not further punish him.
- [12]In ARS v Queensland Police Service [2018] QDC 103, Judge Fantin also set aside sentences that had been imposed in circumstances where the magistrate had not given any indication that he was considering imposing a sentence of imprisonment, which is arguably similar to the current position of the appellant in this case. Her Honour considered that the sentence imposed was excessive, particularly given that imprisonment should be a sentence of last resort. Taking into account all of the relevant circumstances, her Honour concluded that the appropriate penalty would have been to convict and not further punish or to impose a small fine with no conviction recorded and her Honour ordered that the appellant be convicted and not further punished.
- [13]Mr Edridge also referred me to the decision of Judge Morzone QC in Sullivan v Queensland Police Service [2020] QDC 220, which involved breaches of bail in which the appellant had been sentenced to one month’s imprisonment, partly suspended for 12 months after serving two days in pre-sentence custody. In that case, his Honour considered that a more severe penalty than two days served in presentence custody was warranted, namely a fine commensurate with the appellant’s limited financial means and capacity and his Honour ordered that he be fined $250. I should note that, in this case, one of the appellant’s complaints is that the Magistrate did not take into account the appellant’s financial capacity in imposing the fines that his Honour did, and it is clear from the transcript of the proceeding before his Honour that that is the case.
- [14]I agree with Mr Edridge, for the appellant, that a sentence of probation may well have been appropriate on the day, certainly taking into account the report of Ms Jones had that been before the Magistrate. But, given that he has already served a term of imprisonment, that is no longer appropriate. It is certainly not appropriate that he now be punished by a sentence of probation. I agree that the appropriate sentence in the circumstances is that he be convicted and not further punished. That applies also to the sentences of the fines. While a fine may have been an appropriate sentence in part, imposing fines totalling $1200, especially in this appellant’s circumstances, would have been themselves manifestly excessive, not taking into account his financial circumstances. That was, of course, exacerbated by the fact that he then had to serve a period of one month in prison.
- [15]In all the circumstances, it seems to me that, on resentencing the appellant, the appropriate sentence now is that he be convicted on each charge and not further punished and I so sentence him.