Tran v Queensland Police Service
[2023] QDC 217
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- Unreported Judgment
- Tran v Queensland Police Service[2023] QDC 217
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Tran v Queensland Police Service[2023] QDC 217
Tran v Queensland Police Service[2023] QDC 217
DISTRICT COURT OF QUEENSLAND
CITATION: | Tran v Queensland Police Service [2023] QDC 217 |
PARTIES: | CHAI TRAN (Appellant) V COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | 707/23 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court of Queensland, Brisbane |
DELIVERED ON: | 29 November 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 November 2023 |
JUDGE: | Heaton KC DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced in the Wynnum Magistrates Court on 16 February 2023 after pleading guilty to the offences of unlawful stalking, going armed so as to cause fear, possess knife in a public place, possess dangerous drugs and possess utensil that had been used in the commission of a dangerous drug – where the appellant was sentenced to 18 months’ imprisonment for the offence of unlawful stalking and lesser concurrent terms for the other offences, and convicted and not further punished for the offence of possess utensil – where it was further ordered that he be released on parole after he had served 105 days and a total of 105 days of pre-sentence custody was declared – whether the learned Magistrate erred by imposing a sentence on the basis that s 9(2)(a) of the Penalties and Sentences Act 1992 did not apply – whether the learned Magistrate placed reliance on uncharged aggravating circumstances in relation to the unlawful stalking offence causing the sentence to be manifestly excessive – whether the sentence imposed was manifestly excessive. |
LEGISLATION: | Criminal Code (Qld) Justices Act 1986 (Qld) Migration Act 1958 (Qld) Penalties and Sentences Act 1992 (Qld) |
CASES: | Allesch v Maunz (2000) 203 CLR 172 Barbaro v The Queen [2014] 253 CLR 58 Forrest v Commissioner of Police [2017] QCA 132 Hili v The Queen (2010) 242 CLR 520 House v The King (1936) 55 CLR 49 JWP v COP [2019] QDC 29 Lowe v The Queen (1984) 154 CLR 606 Markarian v R (2005) 228 CLR 357 McDonald v Queensland Police Service [2017] QCA 255 Porter v QPS [2016] QDC 335 R v Breeze (1999) 106 A Crim R 441 R v Briggs [2013] QCA 110 R v Chi Sun Tsui (1985) 1 NSWLR 308 R v Coutts [2016] QCA 206 R v D [1996] 1 Qd R 363 R v De Simoni (1981) 147 CLR 383 R v Goodwin, Ex Parte Attorney-General (Qld) [2014] QCA 345 R v Jenkins [2021] QDCSR 181 R v Le [1996] 2 Qd R 516 R v Macdonald [2008] QCA 384 R v Manning [2015] QCA 241 R v Melano; ex parte A-G [1995] 2 Qd R 186 R v Morris [2010] QCA 315 R v Oliver [2018] QCA 348 R v Pham [2005] NSWCCA 94 R v Shrestha (1991) 173 CLR 48 R v Walton [2006] QCA 522 R v Williams [2015] QCA 276 Teelow v Commissioner of Police [2009] 2 Qd R 489 The Queen v Pham [2015] HCA 39 Wong v The Queen (2001) 207 CLR 584 |
COUNSEL: | K Long for the Appellant A Worthington for the Respondent |
SOLICITORS: | Legal Aid Queensland for the Appellant Office of the Director of Public Prosecutions for the Respondent |
Introduction
- [1]This is an appeal by the appellant against the sentence imposed upon him in the Wynnum Magistrates Court on 16 February 2023.
- [2]The appellant entered pleas of guilty to the offences of unlawful stalking, going armed so as to cause fear, possess knife in a public place, possess dangerous drugs and possess utensil that had been used in the commission of a dangerous drug, all of which were committed on 3 November 2022. For the offence of unlawful stalking, he was sentenced to 18 months’ imprisonment. He was sentenced to lesser concurrent terms for the other offences, and convicted and not further punished for the offence of possess utensil. It was further ordered that he be released on parole after he had served 105 days, that is, on the day of sentence, and a total of 105 days of pre-sentence custody from 3 November 2022 until 15 February 2023 was declared to be time served pursuant to the sentence. In addition, a restraining order was made pursuant to s 359F of the Criminal Code (Qld) for 2 years.
- [3]The offending of 3 November 2022 was committed in breach of a probation order imposed by the Magistrates Court on 18 November 2021. That order was revoked by the learned Magistrate and the appellant was resentenced in relation to each of the relevant charges: drug driving (committed on 29 May 2021), failing to dispose of a needle or syringe and possess property suspected of having been used in connection with the commission of a drug offence (both committed on 8 July 2021). Upon resentencing, the appellant was sentenced to 1 month imprisonment for each of those offences, to be served concurrently with each other and with the other orders of imprisonment imposed on the day of sentencing.
- [4]The appeal is pursuant to s 222 of the Justices Act 1986 (Qld) (“JA”). Relevantly, s 222(2)(c) provides that where a defendant pleads guilty, they may appeal on the sole ground that the sentence is excessive. An appeal pursuant to s 222 is by way of rehearing on the evidence given in the proceedings before the magistrate (s 223(1)).
Relevant Principles
- [5]
“It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error… On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.[2]
- [6]
“It is well established that, on an appeal under s 222 by way of 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 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.”
- [7]
“...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.”
Background
- [8]By notice filed on 21 March 2023, the appellant contended that the sentence was manifestly excessive (Ground 1).[5] At the hearing of this appeal, leave was granted (unopposed by the Commissioner of Police) to amend the grounds of appeal by deleting the second ground pleaded on the filed notice, and to add two additional grounds as follows:
Ground 2: the learned Magistrate erred by imposing a sentence on the basis that s 9(2)(a) of the Penalties and Sentences Act 1992 did not apply; and
Ground 3: The learned Magistrate placed reliance on uncharged aggravating circumstances in relation to the unlawful stalking offence causing the sentence to be manifestly excessive.
- [9]In essence, it is contended in challenge to the penalty imposed that a sentence of 18 months imprisonment is outside the permissible range of penalty for offending of the nature committed by the appellant. Further, the sentencing magistrate erred in that:
- In relation to ground 2, he regarded this offending as involving violence and therefore failed to have regard to the principle that imprisonment is a sentence of last resort; and
- In relation to ground 3, he took into account the appellant's possession and use of a knife in relation to the offence of unlawful stalking even though that was not pleaded as a circumstance of aggravation for that offence. That is, it is said that the magistrate offended against the De Simoni[6] principle.
- [10]The contention of the appellant is that the nature of the offending committed by the appellant was not such as to warrant the penalty imposed upon him. Encapsulated within that broad contention is the submission that the manifestly excessive penalty was the product of an error on the part of the sentencing magistrate in his categorisation of this offending (as an offence of violence) and therefore he applied erroneously, a more harsh sentencing regime, and secondly, that he took into account the fact that the appellant produced a knife to aggravate the factual circumstances of the unlawful stalking offence, even though that was not pleaded as a circumstance of aggravation in the offence to which the appellant pleaded guilty.
Facts
- [11]The facts were placed before the sentencing magistrate orally in the submissions by the prosecutor in the following terms:
“…in relation to the charge of unlawful stalking, the victim and the defendant had their first interaction in the month of October 2022. During this interaction the defendant approached the victim on Tingal Road, Wynnum, and asked her if he could have some free food. The victim distinctly recalled the description and facial features of the defendant at this time. The victim was wearing her distinctive work uniform at the time and did not engage in conversation with the defendant.
Approximately one week after this interaction, the defendant again approached the victim while the victim was in her work uniform on Edith Street, Wynnum. The defendant again asked the victim for some free food, to which the victim did not respond. The victim recognised the defendant from their previous interaction and distinctly recalled his appearance and facial features.
At approximately 4.05pm on Thursday 3rd November 2022, the victim left work at Wynnum Plaza, Wynnum West, and commenced walking alone on the Wynnum Road. After travelling a short distance, the victim looked back to where she had come from and observed the defendant approximately 100 metres away from her. Shortly after, the victim could hear the defendant running behind her and had caught up to her. The victim immediately recognised the defendant from their previous interactions.
The defendant then engaged in conversation with the victim, asking her about her travels and her intended destination. The defendant made comment about the victim’s appearance and made comments about her buttocks. The defendant then asked the victim whether he could have her mobile phone number, to which the victim declined. This caused the victim to become significantly uncomfortable with the unwanted contact. The defendant continued to follow the victim – in doing so, consistently invaded the victim’s personal space – and making unwanted and unsolicited physical contact with the victim.
The victim attempted to dissuade the defendant by advising him that she had a boyfriend. However, the defendant persisted with his engagement. The defendant then continued to make physical contact with the victim, contacting with her arm and shoulder, which caused her significant discomfort and fear. Whist waiting at a set of traffic lights at Wynnum Road and Randall Road intersection, Wynnum, the victim texted her boyfriend, disclosing that the defendant was following her.
The victim’s fear levels of the defendant prompted her to take a photograph of the defendant. The victim then increased her pace in crossing the road to avoid the defendant. The defendant continued to engage with the victim whilst walking within a metre’s distance of the victim and continuing his physical contact.
The victim then walked to her boyfriend’s address and proceeded up the driveway, causing a confrontation between the victim’s boyfriend, boyfriend’s father and the defendant. This resulted in the defendant presenting a knife towards the boyfriend and the boyfriend’s father. The defendant then decamped from the address along Preston Road.
- [12]The victim attended at the Wynnum Police station and made a formal complaint about the incident. She reported that she was particularly fearful of further interactions with the appellant and that the offending by the appellant had caused her to change her usual work routine and her commute routine.
- [13]In relation to the offence of going armed so as to cause fear, the prosecutor explained that during the verbal confrontation, the male victim challenged the defendant as to why he was following the female person. The defendant then removed a black-handled kitchen knife with a blade approximately 16 cm long from his backpack. He held the blade in his right hand and pointed it towards the male victim and his father. This caused the victim and his father to feel significant fear of the appellant and to back away from the appellant. The appellant then put the knife back into his backpack and fled.
The Sentencing Hearing
- [14]Section 9 of the Penalties and Sentences Act 1992 (Qld) (‘the Act’) sets out the governing principles of sentencing in Queensland. In s 9(2), the Act sets out the matters that a sentencing court must have regard to. First amongst those matters is that a sentence of imprisonment should only be imposed as a last resort and that a sentence which allows the offender to remain in the community is preferable. That legislative bias requires a sentencing court to consider whether other sentencing options are suitable to achieve the purposes of sentencing before concluding that a sentence of imprisonment should be imposed, having regard to the other matters set out in s 9(2).
- [15]The bias is displaced by s 9(2A) in the event that the court is sentencing an offender for an offence that involved, relevantly, the use of violence against another person. It is then the matters set out in s 9(3) that the court must have primary regard to when sentencing. The broad factors relevant to the imposition of a just sentence remain, but it is clear that there is then a shift in focus to the need to protect the community. Regardless, the requirement that a just sentence be imposed remains paramount.
Offence involving the use of violence?
- [16]It is said in support of the challenge to the sentence imposed here that the offence committed by the appellant was not an offence of violence such as to invoke the sentencing regime set out in s 9(2A) and (3) of the Act. At the sentencing hearing, the solicitor for the appellant submitted to the sentencing magistrate that he should take account of the fact that there was “no violence” such that imprisonment is a last resort.[7] The sentencing magistrate properly took issue with that broad statement and responded that the appellant “produced a weapon and threatened people with it”. It was then confirmed by the prosecutor that the appellant presented the knife to the boyfriend when he came out and confronted the appellant. The discussion, and the inference as to the conclusion drawn by the sentencing magistrate on this factor, is clearly confined to the circumstances of the offence of going armed so as to cause fear. It was then said by the lawyer for the appellant that as concerning as that conduct is, “it would not go so far as to be attempted violence”.[8]
- [17]The appellant pleaded guilty to a number of offences, some of which did not involve the use of violence. Despite there being evidence of physical contact by the appellant to the female victim of the stalking offence in the form of touching on the arm and close contact with her shoulder by his shoulder, the evidence was so nebulous about that contact as to deny a court from concluding that the physical contact involved the use of ‘violence’. It was, however, a concerning feature of the offence of stalking.
- [18]However, the offence of going armed so as to cause fear was an offence involving the use of violence. It was recognised in the case of R v Oliver[9] that in some circumstances, a threat of violence may be accompanied by actions so that the threat and the actions together may be regarded as violence even though no actual physical contact has occurred. R v Breeze[10] is an example of such a case. In that case, in the course of a robbery, violence was threatened to the victim by the use of a long metal bar with a sharp end which he pointed towards the chest of the victim without physical contact or force having been applied. The Court concluded that it nonetheless fell within the description of violence for the purposes of the harsher sentencing regime in s 9(3) of the Act.
- [19]The act of producing a knife and pointing it towards the male complainant in response to a challenge about the appellant’s conduct towards the female complainant, and which caused the complainant to apprehend fear of physical harm and to retreat, is an offence involving the use of violence. Whilst, unlike in Breeze, there were no words accompanying the act, the threat was explicitly communicated in the physical act of producing the knife and brandishing it towards the male complainant. By parity of reasoning, I find that the offence of going armed so as to cause fear to which the appellant pleaded guilty was an offence which involved the use of violence and therefore the harsher sentencing regime in s 9(3) applied. There is no incongruity in the application of the harsher sentencing regime to a case involving violence of this nature, and the need to protect the community from the risk of physical harm, together with the other relevant factors for sentencing, is easily contemplated.[11]
- [20]Whilst the sentencing magistrate did not expressly refer to the matters in s 9(3) of the Act when sentencing, that he viewed this as offending involving violence can be inferred from what was said during the course of submissions. It is not necessary, when sentencing, for a court to openly dissect the process of sentencing, which fundamentally involves an exercise of discretion on an instinctive synthesis[12] basis, for a course of conduct which involved a number of discrete offences, some of which are governed by s 9(2) and, at least one, by s 9(3) of the Act. The critical question is whether an appellate court can be satisfied that the proper principles were applied in the exercise of the sentencing discretion. In this regard, it is the whole of the record that must be considered.
- [21]The sentencing magistrate did, however, properly refer to the individual offences in the course of delivering his sentence. There is nothing in the exchanges between the lawyers and the magistrate, nor in the sentencing remarks to suggest that the proper principles were not applied in relation to each of the offences in the exercise of the sentencing discretion.
- [22]Consequently, I am unable to conclude that the sentencing magistrate erred in this regard.
The use of a knife
- [23]The offence of stalking did not end at the point that the appellant confronted the male victim and his father. In this case, the complainant, fearing for her safety as a consequence of the conduct of the appellant, made her way to the home of her boyfriend. She messaged ahead so that he knew that she was coming, and that the appellant was pursuing her. He and his father emerged out the front of the house when the female complainant arrived and proceeded up the driveway. The boyfriend challenged the appellant and asked him why he was following the female. The appellant’s response was to produce a black handled kitchen knife with a 16cm blade which he held in the air and brandished towards the male complainant.
- [24]This course of offending does not lend itself to clear divisions of conduct. The act of producing a knife when challenged, in my view, forms part of the factual matrix of the offence of unlawful stalking, as well as then an offence of going armed so as to cause fear to the male complainant. It is relevant in relation to the offence of stalking in that, whilst the appellant did not produce a knife, nor invoke any fear or physical harm to the complainant by the use of a knife during the period of the unlawful stalking offence in approaching the house, when the complainant arrived home, and to the safety of others, the appellant responded to the challenge presented to him by producing a knife and brandishing it in a threatening manner to those who came to the aid of the female complainant. Viewed in that way, it is not an aggravated offence of unlawful stalking which involved the use of a knife, and any circumstance of aggravation pleaded on the indictment would be likely met with a challenge. Properly viewed in that way, it remained a relevant factual matter when looking wholistically at the appellant’s offending and determining the appropriate sentencing response. A court is not required to close its eyes to the proper context of the offending reflected in the charge on an indictment and approach the sentencing exercise in a compartmentalised way removed from the reality of the conduct.[13]
- [25]The appellant contends that evidence of the impermissible reliance on the knife as part of the stalking appears in the sentencing magistrate’s reference to the “woman victim” being in a “more terrible situation”. This comment was made in the context of the weapon being produced upon her arrival at home and the appellant being confronted by the male complainant and his father. For the reasons articulated above, that comment does not advance the appellant’s case in challenge to the sentencing here. The context of the comment is made clear by the submissions made by the prosecutor and discussions had with the sentencing magistrate in relation to the circumstances of the offence of unlawful stalking.
His Honour:-- “And that’s in regard to the persistence around the contact with a victim who made it quite clear “I’ve got a boyfriend and I don’t want anything to do with this,” and yet he persisted even when confronted. Like, if she’s walking up the footpath or driveway of her boyfriend’s home and the boyfriend and the father come out, that was no deterrent for him. He – in fact, he’s become enraged and produced a weapon, threatening them.
Prosecutor:-- Yes, your Honour. It would be further a cause for concern for the victim knowing that he was armed at the time of
His Honour:-- Yes
Prosecutor:-- Of following her.[14]
- [26]That factual analysis was not challenged in submissions by the lawyer for the appellant at the sentencing hearing. The unchallenged factual feature of that exchange was that the female complainant remained present and aware of the confrontation by the appellant with the knife. It was open to the sentencing magistrate to conclude that the safety of the company of her boyfriend and his father was no deterrent to the appellant who instead produced a knife and threatened them with it, and that that made her situation more “terrible”. In sentencing the appellant, the magistrate remarked that the conduct of the appellant when he was confronted by the boyfriend “really aggravated the circumstances” of this offending conduct.[15] I respectfully agree. A proper consideration of the whole of the record of the sentencing hearing and the sentencing remarks leads me to the conclusion that the principle from De Simoni[16] was not offended in the exercise of the sentencing discretion here.
Manifest Excess?
- [27]The appellant was a 38 year old man who came to Australia from New Zealand in 2000. He has limited education and has had some employment throughout his life but has not worked for some time. He was introduced to drugs at a young age by his father and brother. The court was told that he has a diagnosis of schizophrenia for which he has been treated. His mental health was complicated by a seemingly regular use of methylamphetamine. Of particular concern was that the appellant had been placed on probation for 18 months from 18 November 2021 for drug related offences and therefore, these offences were committed by him in breach of that probation order.
- [28]In addition to the unlawful stalking and related offences, the appellant was found in possession of drugs and a utensil, and he pleaded guilty to those offences as well. This offending therefore revealed a continued use of drugs despite the constraints and consequences of the probation order and the continued commission of criminal offences. The appellant had been sentenced to previous orders of courts which have been contravened.
- [29]In addition, it was apparent that the appellant was carrying a weapon after ingesting drugs and whilst on probation. His conduct caused the female complainant to be fearful such that she has changed her behaviour and routine. The sentencing magistrate properly acknowledged that the community is entitled to feel safe and to walk freely in the community without fear of being threatened, intimidated, harassed or assaulted.
- [30]The sentencing magistrate concluded that the offending was serious, particularly given the persistence of the appellant’s conduct. He noted the physical contact with the complainant and the final confrontation. The circumstances of the offending were such as to warrant, in the exercise of his discretion, a term of imprisonment. As noted above, he imposed a total period of 18 months imprisonment (in relation to the unlawful stalking) with concurrent lesser terms for the other offending. The probation order of 18 November 2021 was revoked and the appellant was resentenced to 1 month imprisonment for each of the three relevant offences, again to be served concurrently. The 105 days of pre-sentence custody was formally declared, and the appellant was ordered to be released on parole immediately. In addition, a restraining order was imposed for a period of 2 years.
General Sentencing Principles
- [31]The process of sentencing is an exercise of discretion. A sentencing judge has an extremely wide discretion to be exercised within the limits of the principles which are applicable.[17] It necessarily involves the assessment of various factors and the courts have long recognised that it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.[18]
- [32]The restatement of the process of sentencing by the plurality in Barbaro v The Queen[19] is apposite:
“Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentence cannot, and should not be broken down into some set of component parts. As the plurality said in Wong v The Queen, ‘[s]o long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.’”[20]
- [33]
“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that had been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”
- [34]
“... It is necessary to mention only Barbaro v The Queen; Zirilli v The Queen, in which the High Court concluded that past sentences do not mark the outer bounds of a sentencing judge's permissible discretion[25], and that a sentencing judge who is properly informed about the facts, relevant sentencing principles, and comparable sentences "will have all the information which is necessary to decide what sentence should be passed..."[26]. Comparable sentences assist in understanding how those factors should be treated, but they are not determinative of the outcome and they do not set a "range" of permissible sentences. Whether or not a sentence is manifestly inadequate or manifestly excessive is not to be decided by reference to a predetermined range of available sentences but by reference to all of the factors relevant to sentence. Because sentencing involves a case-by-case synthesis in which past sentences may be used only as guidelines and are not determinative, there can be no underlying range of available sentences for a particular case which may be narrowed or broadened over time by subsequent sentencing decisions.
- [35]
“[I]n seeking consistency, sentencing judges must have regard to what has been done in other cases. Those cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine the proposed sentence.”
- [36]Consequently, in order to make good the contention that a sentence is manifestly excessive or inadequate, it is not enough to show that the sentence is markedly different from sentences in other cases. The difference must be such that “…the result embodied in the court’s order is ‘unreasonable or plainly unjust’ and the appellate court infers ‘that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance’.”[28]
- [37]The contention of inadequacy in this case is said to find support upon a consideration of other cases of more or less comparability.[29] In response, counsel for the Commissioner of Police referred to a number of other cases decided by the Court of Appeal in support of the submission that the sentencing discretion for offending such as this is wide, and the penalty imposed here is appropriately consistent with the sound exercise of the sentencing discretion.[30]
- [38]In particular, in R v Walton,[31] it was held that a sentence of imprisonment was justified even in the absence of any direct threat having been made. Persistence in conduct is often the feature of stalking offences and as a result it has been said that “deterrence must always be the major factor in sentencing for the offence of stalking”.[32]
- [39]Those cases demonstrate the wide variety of circumstances which might constitute the offence of unlawful stalking and the correspondingly wide variety of sentencing responses to meet the particular circumstances.
- [40]Whilst this was a case in which the stalking involved no physically violent contact, there were nonetheless some disturbing features. Amongst them was that the appellant was a virtual stranger to the complainant.[33] This is a seriously aggravating feature absent in each of the cases referred to this court. Further, he persisted despite the complainant’s clear indications of a lack of interest and discomfort, and he responded by the production of a weapon which he brandished in a threatening manner when challenged by the complainant’s boyfriend. In addition, the offending was committed in the context of drug use and in breach of a probation order imposed in relation to drug offences. Against that, the offending occurred within the confines of a single episode and over a relatively short period of time. Regardless, the impact upon the complainant was significant and undermined her sense of public safety. The sentencing magistrate rightly identified the importance of community safety in the exercise of the sentencing discretion.
- [41]The exercise of the sentencing discretion involves more than simply comparing and contrasting the sentences imposed in other cases. In more recent times (if not before), the Court of Appeal has disavowed the notion that error can be identified by reason of a sentence which does not, on its face, appear to sit comfortably with other cases of broad comparability. As much was recognised in R v Williams[34] and reinforced in R v Watson.[35]
- [42]The principles in House v the King[36] give sentencing courts a wide measure of latitude which is to be respected by appellate courts.
Conclusion
- [43]I am unable to conclude that the sentencing discretion miscarried in this case. In my view, the sentence of 18 months imprisonment is an appropriately stern sentence to address the seriousness of the offending. The harshness of the penalty is tempered by the immediate release on parole (noting that the appellant had served 105 days in pre-sentence custody which was declared pursuant to s 159A of the Penalties and Sentences Act 1992).
- [44]In my review of the whole of the evidence now before me in this appeal, I am unable to conclude that the sentence imposed in the Magistrates Court on 16 February 2023 by the learned magistrate is the result of some legal, factual or discretionary error. For the reasons articulated above, the offending was sufficiently serious as to justify a sentence which involved a period of actual custody. The matters in mitigation and personal to the appellant are properly reflected in the release on parole after the time served in pre-sentence custody. The circumstances are such as to properly require that upon his release, he be subjected to the constraints, supervision and support that an order of parole can provide. No errors are demonstrated, and the sentence is not manifestly excessive.
One final point?
- [45]The respondent, as the model litigant, raised the issue of the appellant’s potential deportation consequent upon his conviction and his status in Australia on a Resident Visa. His conviction gives rise to the potential operation of s 501 of the Migration Act 1958 (Cth). Generally, the risk of deportation is of limited relevance in the exercise of the sentencing discretion.[37] However, the concern expressed was that the release on parole, an important moderating, but also protective, aspect to the sentence imposed, would be frustrated by the operation of the Migration Act. Whether that may be relevant in a particular case, it is not relevant in this case. I was told that the appellant has been in the community and complying with his parole order without incident, nor threat of deportation, since his release following the sentencing hearing.
Order
- [46]The appeal is dismissed.
Footnotes
[1] [2009] 2 Qd R 489 at [4].
[2] Citing Allesch v Maunz (2000) 203 CLR 172 at 180-181.
[3] [2017] QCA 255 at [47].
[4] [2017] QCA 132.
[5] The Notice of Appeal was filed on 21 March 2023, which was 5 days out of time as a result of an administrative error by the appellant’s legal representatives. An application for the extension of time within which to file the Notice of Appeal was granted by me at the hearing of this appeal.
[6] R v De Simoni (1981) 147 CLR 383.
[7] Transcript of the sentencing hearing at 1-10 Ln8 to 10.
[8] Transcript of the sentencing hearing at 1-10 Ln35.
[9] [2018] QCA 348 at [31].
[10] (1999) 106 A Crim R 441.
[11] See R v Oliver (above) at [26] to [28].
[12] Markarian v R (2005) 228 CLR 357.
[13] See for example R v Le [1996] 2 Qd R 516.
[14] Transcript of the sentencing hearing at 1-8 Ln22 to 42.
[15] Transcript of the sentencing decision at 1-2 Ln15.
[16] R v De Simoni (1981) 147 CLR 383. See also R v D [1996] 1 Qd R 363 at 403.
[17] Markarian v R (2005) 228 CLR 357 at 371 [27].
[18] R v Melano; ex parte A-G [1995] 2 Qd R 186; Lowe v The Queen (1984) 154 CLR 606 at 612.
[19] Barbaro v The Queen [2014] 253 CLR 58 at [34].
[20] This passage was referred to by the Court of Appeal in R v Goodwin; ex parte A-G [2014] QCA 345 at [5], and in R v Williams [2015] QCA 276 at [11].
[21] [2015] HCA 39
[22] (2001) 207 CLR 584.
[23] Above.
[24] [2014] QCA 345.
[25] Barbaro at [41].
[26] Barbaro at [38].
[27] Barbaro at [41].
[28] This is essentially the statement of principle from House v The King and which has been often referred to including in Barbaro at [26]; Hili v The Queen (2010) 242 CLR 520 at [58], [59]; and recently by the Court of Appeal in R v Williams [2015] QCA 276 at [7].
[29] JWP v COP [2019] QDC 29 (2 years’ probation, no conviction recorded); R v Coutts [2016] QCA 206 (18 months imprisonment for an aggravated offence committed over 6 months and including threats to kill); R v Jenkins [2021] QDCSR 181 (15 months imprisonment wholly suspended); Porter v QPS [2016] QDC 335 (4 months imprisonment wholly suspended).
[30] R v Manning [2015] QCA 241; R v Briggs [2013] QCA 110; R v Morris [2010] QCA 315; R v Macdonald [2008] QCA 384; R v Walton [2006] QCA 522.
[31] [2006] QCA 522.
[32] at [2] per Williams JA.
[33] He had approached her on two prior occasions.
[34] [2015] QCA 276.
[35] [2017] QCA 72.
[36] (1936) 55 CLR 499 at 504-505.
[37] See for example R v Shrestha (1991) 173 CLR 48, 58; R v Chi Sun Tsui (1985) 1 NSWLR 308, 311; R v Pham [2005] NSWCCA 94.