JMC v Commissioner of Police[2023] QDC 228

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   The appellant pleaded guilty to 19 offences in the Redcliffe Magistrates Court on 13 April 2023 and was sentenced as follows:-^[1]

2. [2]
   All terms of imprisonment were ordered to be served concurrently with each other, with the exception of the two offences of failure to appear in accordance with an undertaking, which were required to be served cumulatively, resulting in an effective total period of 18 months imprisonment.
3. [3]
   At the time of committing the offences for which he was sentenced on 13 April 2023, the appellant was subject to three suspended terms of imprisonment imposed at the Caboolture Magistrates Court on 23 April 2021.  These terms were as follows:

   1. Unlawful use of motor vehicles, aircraft or vessels – use (7/1/2021) – 9 months imprisonment.
   2. Supplying dangerous drugs (on or about 7/3/2020) – 6 months imprisonment.
   3. Disqualified driving (7/1/2021) – 12 months imprisonment.
4. [4]
   In each case, the sentences imposed were concurrent, and were suspended for an operational period of 18 months, after serving one month.
5. [5]
   The suspended sentences were all activated at the Redcliffe Magistrates Court on 13 April 2023, and the learned magistrate ordered that the effective head sentence of 18 months imprisonment imposed on 13 April 2023 be served cumulatively upon the activated suspended terms of imprisonment.  The learned magistrate stated (incorrectly) that the total period of imprisonment would be 27 months and that the parole release date should be set at the one third mark.  Further, the learned magistrate “backdated”^[2] the period of imprisonment to 29 March 2023 and set the parole release date at 28 December 2023.  However, the effect of the learned magistrate’s sentence was that the appellant’s total period of imprisonment, in fact, became 29 months (two years, five months).
6. [6]
   When the matter came before me on 1 September 2023, by consent I made the above orders.
7. [7]
   These are the reasons for making those orders.

Grounds of appeal

8. [8]
   The original grounds of appeal were contained in the appellant’s notice of appeal filed 19 June 2023, when the appellant was self-represented.  Subsequently, the appellant was represented on this appeal, and sought leave to proceed on the following amended grounds of appeal (an application which was not opposed by the respondent) as follows:

“The sentence imposed was excessive as:

1. the learned magistrate erred by failing to apply the principle of totality when ordering the terms of imprisonment be served accumulatively upon the activated suspended sentences; and

2. the learned magistrate erred by failing to properly declare the time spent in pre-sentence custody.”

9. [9]
   The notice of appeal was filed outside the relevant appeal period by slightly more than one month, but the application for extension of time for filing notice of appeal was not opposed and accordingly the application for extension of time to file the notice of appeal was granted.

The law

10. [10]
    I refer to and adopt my exposition of the relevant principles as set out in Millar v Commissioner of Police [2022] QDC 254, [8]-[10].

Sentence proceedings

11. [11]
    The appellant pleaded guilty to the 19 offences identified above on 13 April 2023.  The prosecutor tendered an agreed sentencing schedule, criminal history and traffic history.  The learned magistrate requested a pre-sentence custody certificate, but the prosecutor advised the court that there was no pre-sentence custody certificate and that the appellant had been in custody since the “29^th March”.^[3]  The appellant then stated, in court, that he had also been remanded in custody for “two months beforehand,”^[4] but extraordinarily, none of the learned magistrate, prosecutor nor the defendant’s own legal representative responded to this information, nor made any enquiries with respect to the appellant’s pre-sentence custody status.  It is difficult to understand how the appellant’s clear indication to the court (captured on the transcript) did not prompt any of those legal actors to pause the proceedings at that stage for the patently obvious enquiries to be made.
12. [12]
    The prosecutor submitted that a period of actual custody was warranted and that the head sentence should attach to the offences from 2 September 2022 as they were “the most serious of the matters before the court”.^[5]  The prosecutor (correctly) highlighted that imprisonment with respect to the fail to appear offences had to be served cumulatively. 
13. [13]
    The learned magistrate, again quite extraordinarily, indicated to the appellant’s solicitor that he:

“…intended to sentence him [the appellant] to imprisonment for many of these, activate the suspended sentence, make that cumulative [and] fix a parole release date at the third mark.”^[6]

14. [14]
    The appellant’s solicitor “concurred”^[7] and otherwise made no submissions as to the appropriate sentencing range.
15. [15]
    The appellant’s solicitor referred to the following antecedents including:

    1. The appellant was 36 years of age;
    2. He resided in foster homes between 8 to 10 years of age;
    3. He was sexually assaulted by his foster father and he was also sexually assaulted whilst incarcerated in juvenile detention;
    4. He suffers an acquired brain injury and autism spectrum disorder;
    5. He has received the disability pension since he was 18 years of age and he had been mostly itinerant throughout his life;
    6. The offending occurred as a result of him going through the “Royal Commission of Inquiry” and “reliving some of the trauma that he had to – that he went through as a young person”.^[8]
16. [16]
    Although not a ground of appeal, it is very concerning that the learned magistrate expressed clearly the intended outcome of the sentence process, before hearing defence submissions.
17. [17]
    In Gregory v Queensland Police Service [2021] QDC 186, the learned magistrate proceeded in a strikingly similar fashion, effectively prejudging the penalty to be imposed.^[9] As Fantin DCJ identified in EH v QPS; GS v QPS [2020] QDC 205, [15]-[17], by making such a clear indication of the outcome before hearing submissions (in particular, defence submissions), a magistrate was clearly in error by unduly fettering their sentencing discretion.   There was also a clear concern in the circumstances of that matter (as here) that a fair-minded lay observer might reasonably have apprehended from remarks such as these that the judicial officer might not bring an impartial mind to the resolution of the question to be decided, because the judicial officer had prejudged the matter.  As Judge Fantin identified, “a reasonable apprehension of pre-judgment is a denial of procedural fairness, and an error of law”.^[10]
18. [18]
    Although the apparent pre-judgement in this current appeal was not identified as a ground of appeal, it is clearly a concerning aspect, compounding the two identified grounds of appeal, on each of which the learned magistrate fell into error. It is appropriate for this court to express its strong concerns at such an approach to the judicial function.

Grounds of appeal

Ground 1: the learned magistrate erred by failing to apply the principle of totality when ordering the terms of imprisonment be served cumulatively upon the activated suspended sentences. 

19. [19]
    The Penalties and Sentences Act 1992 (Qld) (PSA) s 9(2)(j), (k) & (l)  deal with the totality principle, which was addressed by Fraser JA in R v Wilson [2022] QCA 18, [26] as follows:

    1. In Postiglione v R (1997) 189 CLR 295, 307-308, McHugh J stated that the totality principle “requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.”
    2. In Mill v R (1998) 166 CLR 59, 64-66 (Wilson, Deane, Dawson, Toohey and Gaudron JJ), the High Court held that the totality principle applied also in cases in which an offender is sentenced a long time after the commission of the offences because, during the intervening period, the offender was serving a sentence imposed in another State “in respect of an offence of the same nature and committed at about the same time”.  In such a case, the correct approach is to ask what would be likely to have been the effective head sentence if the applicant had committed all of such offences in the same jurisdiction and had been sentenced for all offences at one time. 
    3. In R v Gordon (1994) 71 A Crim R 459, 466, Hunt CJ at CL held that the totality principle applies also when a sentencing judge is imposing a sentence cumulatively upon or overlapping with “an existing custodial sentence.”
20. [20]
    As set out at [5] above, the learned magistrate imposed the effective head sentence of 18 months imprisonment for the 19 offences cumulatively upon the activated suspended terms of imprisonment and consequently was obliged to consider whether the total period of imprisonment adequately and fairly represented the totality of the offending involved.^[11]
21. [21]
    The learned magistrate determined that the offence of dangerous operation of a vehicle warranted a sentence of 16 months imprisonment,^[12] the two offences of failing to appear in accordance with an undertaking warranted one month imprisonment for each offence,^[13] and specifically stated that the terms of imprisonment imposed for the offences for failing to appear had been “moderated”, “noting the cumulative nature of it.”^[14]
22. [22]
    The learned magistrate did not, however, refer to (or clearly adopt) the totality principle in respect of the overall sentence being imposed, and did not address the issue of the aggregation of the 18 months imprisonment imposed upon 13 April 2023 with the outstanding balance of the suspended sentences on which they were ordered to be cumulatively.
23. [23]
    Although the absence of reasons in sentencing remarks will not always indicate an error,^[15] it’s not possible to discern in these proceedings, as a matter of inference, that any review of the effective aggregate sentence occurred.^[16]
24. [24]
    Indeed, the learned magistrate incorrectly referred to an overall sentence of “27 months”^[17] and set a parole release date of one third of that 27 months, but did not indicate, either explicitly or implicitly, that this arose from any consideration of the totality principle.  In any event, the learned magistrate miscalculated the time owing on the suspended term of imprisonment and the actual effect of the sentence imposed was a total sentence of 29 months, not 27 months.
25. [25]
    In addition, as the appellant correctly identifies, there was no discussion between the parties and the bench during submissions as to how the principle of totality should be applied, nor was there any discussion about the consideration of an application of the totality principle by the learned magistrate.^[18]
26. [26]
    In addition, there is an obligation upon a judicial officer to record reasons for the imposition of a cumulative period of imprisonment rather than a concurrent period of imprisonment.^[19] As Boddice J held in R v WBQ,^[20] that requirement to provide reasons for making a cumulative order “was particularly important in circumstances where the sentencing judge had determined to activate, in full, the suspended sentence without giving reasons for why it was not unjust to do so.”  It should also be noted that this court is not precluded from identifying whether error has occurred in the sentencing process even though the appellant’s solicitor “concurred” with the learned magistrate’s orders activating the suspended sentences and imposing the terms of imprisonment to be served cumulatively.^[21]
27. [27]
    It is submitted, and I accept, that the learned magistrate erred by failing to apply the totality principle when ordering the terms of imprisonment imposed to be served cumulatively upon the activated suspended sentences, without then taking steps to moderate the terms of imprisonment imposed, once the decision was made that those terms be served cumulatively.  The outcome was that the sentence was clearly manifestly excessive, and this ground must succeed.

Ground 2: The learned magistrate erred by failing to properly declare the time spent in pre-sentence custody.

28. [28]
    Pursuant to PSA s. 159A, any time that an offender has been held in custody for an offence must be taken to be imprisonment already served under the sentence, unless otherwise ordered.^[22]  A sentencing court is required to state, calculate and declare any time the offender has been held in custody as time already served under the sentence^[23] and the prosecutor is obliged to provide a pre-sentence custody certificate.^[24]
29. [29]
    The learned magistrate was incorrectly informed by the prosecutor that the appellant had only been in custody since 29 March 2023. The appellant raised in court the issue of him having been remanded in custody “for two months beforehand”,^[25] but as set out at [10] above, neither the learned magistrate, the prosecutor nor the appellant’s solicitor made any enquiries as a result of this information from the appellant.  In addition, the learned magistrate proceeded to sentence the appellant without a pre-sentence custody certificate, based on incorrect information, and then compounded that error by failing to declare the time spent in pre-sentence custody, stating instead that the sentence was “backdated”^[26] to 29 March 2023, consequently failing to comply with the provisions of PSA s. 159A.
30. [30]
    The pre-sentence custody certificate dated 4 July 2023 indicates that the appellant served a further 64 days in pre-sentence custody between 2 September and 4 November 2022 for 10 offences.^[27]  The failure by the prosecutor to obtain and tender a pre-sentence custody certificate meant that the learned magistrate was incorrectly informed of the relevant dates of pre-sentence custody and as a consequence the learned magistrate did not make any declaration (correct or otherwise) in accordance with PSA s. 159A.
31. [31]
    The failure to properly declare the time spent in pre-sentence custody was an error which also rendered the sentence excessive, and although such an error could ordinarily be rectified by reopening the sentence pursuant to PSA s. 188, the combined effect of the errors identified in grounds 1 and 2 require the sentences imposed to be set aside and for the appellant to be sentenced afresh.
32. [32]
    It should be noted that the respondent, entirely appropriately, concedes that the sentences imposed in this matter were erroneous, given the failure of the learned magistrate to consider the issues of totality in requiring the activated suspended sentence periods be served cumulatively on the sentence imposed on 13 April 2023, and by failing to properly declare the time spent in pre-sentence custody.^[28]
33. [33]
    The appellant submits^[29] and the respondent accepts^[30] that the sentencing range in respect of the most serious offence (dangerous operation of a vehicle) was the middle of the range between 12 – 15 months imprisonment,^[31] taking into account the seriousness of the appellant’s conduct, driving through two red lights in an attempt to avoid police while being a disqualified driver, but in an incident that was not protracted, without excessive speeding, nor damage nor collisions, and with no previous convictions for dangerous operation of a vehicle and/or failing to stop for police.
34. [34]
    The appellant submitted for an effective head sentence of 16 months, constituted as set in the resentence at [6] above and further submitted that although it was not unjust to activate the suspended terms of imprisonment, given that the appellant had committed further offences, some of a similar nature, during the period of the suspension, and had a poor criminal history, those activated suspended sentences should be served concurrently with the sentences imposed 13 April 2023, acknowledging that the two sentences for failing to appear in accordance with a bail undertaking were required to be served cumulatively in any event.
35. [35]
    The appellant had served a total of 220 days in pre-sentence custody as of the date of hearing of the appeal on 1 September 2023 and it was appropriate to release the appellant on parole as of that date.
36. [36]
    It follows that the appeal succeeds on each of grounds 1 and 2.

Order

37. [37]
    Accordingly, I made the following orders on 1 September 2023:

1. Appeal allowed.
2. Vacate all sentences imposed by the Redcliffe Magistrates Court on 13 April 2023, other than in respect of the licence disqualifications imposed.
3. Re-sentence the appellant to:

1. Dangerous operation of a vehicle - 14 months imprisonment.
2. Driving whilst disqualified by a court order - repeat offender - 12 months imprisonment.
3. Fail to stop - 3 months imprisonment.
4. Receiving tainted property - 9 months imprisonment.
5. Unlawful possession of suspected stolen property - 3 months imprisonment.
6. 2 x Fraud - dishonest application of property of another - 3 months imprisonment.
7. 2 x Fail to appear in accordance with an undertaking - 1 month imprisonment each to be served cumulatively.
8. All other offences - convict and not further punish.

4. The three suspended sentences imposed by the Caboolture Magistrates Court on 23 April 2021 be activated in full and ordered to be served concurrently with all other terms of imprisonment.
5. It is declared that 220 days served in pre-sentence custody between 02/09/2022 and 04/11/2022, and 29/03/2023 and 31/08/2023, be time already served in respect of the activated suspended sentences and the fresh sentences being imposed today [1 September 2023].
6. The appellant be released on parole as of 1 September 2023.
7. Application for an extension of time to file the notice of appeal granted.
8. Application for leave to amend the grounds of appeal granted.
9. Application to adduce new evidence, the affidavit of Bronwyn Rae Mantle affirmed 31 October 2023 be granted.

10. No order as to costs.