Wilson v Commissioner of Police
[2023] QDC 51
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- Unreported Judgment
- Wilson v Commissioner of Police[2023] QDC 51
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Wilson v Commissioner of Police[2023] QDC 51
Wilson v Commissioner of Police[2023] QDC 51
DISTRICT COURT OF QUEENSLAND
CITATION: | Wilson v Commissioner of Police [2023] QDC 51 |
PARTIES: | ROBERT HERBERT WILSON (applicant/appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 134 of 2022 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 Justices Act 1886 (Qld) |
ORIGINATING COURT: | Magistrates Court at Innisfail – 3 August 2022 |
DELIVERED ON: | 14 April 2023 |
DELIVERED AT: | Cairns |
HEARING DATE: | 31 March 2023 |
JUDGE: | Fantin DCJ |
ORDER: | Orders made on 3 April 2023
|
CATCHWORDS: | CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – where applicant seeks an extension of time for filing notice of appeal – where applicant seeks leave to adduce new evidence CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – applicant convicted on plea of guilty to one count of contravening an order about information necessary to access information stored electronically under s 205A of the Criminal Code Act 1899 (Qld) – sentenced to 15 months imprisonment, wholly suspended for an operational period of two years – whether sentence imposed was excessive |
LEGISLATION: | Criminal Code Act 1899 (Qld), s 205A Justices Act 1886 (Qld), s 222, s 223, s 225(1) Penalties and Sentences Act 1992 (Qld), s 9, s 11 Serious and Organised Crime Legislation Amendment Act 2016 (Qld) |
CASES: | Calvet v The Commissioner of Police [2020] QDC 161 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 Pavlovic v Commissioner of Police [2007] 1 Qd R 344; [2006] QCA 134 Postiglione v R (1997) 189 CLR 295; [1997] HCA 26 R v Abboud, unreported, District Court of Queensland, Muir J, DC No 2633 of 2020, 18 June 2020 R v Bradford, unreported, Supreme Court of Queensland, Williams J, SC No 1768 of 2020, 29 March 2021 R v Ford, unreported, District Court of Queensland, Devereaux CJ, DC No 502 of 2020, 599 of 2020 & 601 of 2020, 23 September 2020 R v Griffin, unreported, District Court of Queensland, East QC J, DC No 50 of 2021, 16 March 2021 R v Hanna, unreported, District Court of Queensland, Fantin J, DC No 347 of 2021, 15 February 2022 R v Ikin [2007] QCA 224 R v Lawley [2007] QCA 243 R v Stasiak, unreported, Supreme Court of Queensland, Henry J, SC No 1 of 2019, 4 August 2020 R v Tait [1999] 2 Qd R 667; [1998] QCA 304 R v TAS [2021] QCA 49 R v Willey, unreported, Supreme Court of Queensland, Henry J, SC 22 of 2022, 18 February 2022 Ross v Commissioner of Police [2019] QCA 96 Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84 |
COUNSEL | Thambyah E (solicitor) for the respondent. |
SOLICITORS | Applicant/appellant appeared on his own behalf. Office of the Director of Public Prosecutions for the respondent. |
Nature of appeal and grounds
- [1]By his plea of guilty, the applicant was convicted on 3 August 2022 in the Magistrates Court at Innisfail of one charge of an offence of contravening an order about information necessary to access information stored electronically under s 205A of the Criminal Code Act 1899 (Qld) (‘the Code’) (‘s 205A offence’).
- [2]He was convicted and sentenced to 15 months imprisonment, wholly suspended for an operational period of two years, and his mobile phone was forfeited.
- [3]The applicant seeks an extension of time within which to appeal, and appeals against his sentence on the grounds that the sentence of imprisonment was excessive and that it offends the parity principle.
Circumstances of offence
- [4]On 12 February 2021 police executed a search warrant at the applicant’s home. The search warrant was issued in relation to an offence of attempting to pervert the course of justice in relation to a homicide investigation.
- [5]The applicant and two other men, Rooney and Wilson (the applicant’s adult son), were the named persons on the warrant. All three were Crown witnesses in the homicide investigation. The search warrant contained an order requiring them to provide either the pin or passcode, or to open their mobile phone through facial recognition, so that police could access information stored electronically on their devices.
- [6]The applicant, Rooney, and Wilson were present and detained. Within the house, police located mobile phones belonging to the three men. They were advised that they were required to provide access to their mobile phones so that police could access information stored electronically on the phones, as ordered under the warrant. They each declined to provide access to their phones and did not provide a reasonable excuse for doing so.
- [7]They were each charged with an offence of contravening an order about information necessary to access information stored electronically under s 205A and released on bail. In addition, Rooney and Wilson were also charged with other offending.
Application for extension of time
- [8]The applicant requires an extension of time within which to appeal.
- [9]The application and appeal were originally listed for hearing in February 2023. The applicant’s legal representatives withdrew. The applicant sought and obtained an adjournment. At the adjourned appeal hearing the applicant appeared on his own behalf but also relied upon written submissions prepared by counsel who appeared on his behalf at sentence.
- [10]The principles with respect to the determination of an application to appeal out of time are not in dispute.[1] Relevant considerations include:
- the reason and length of the delay;
- whether it is in the interests of justice to grant the extension, which necessarily includes an assessment of the prospects on appeal; and
- any prejudice to the respondent.
- [11]The length of delay is almost two months. There were two reasons given. The first, in the application for extension of time signed by the applicant’s solicitor, was that the applicant was awaiting the sentencing result of Wilson on 4 October 2022 and given that the circumstances of the offence arose out of the same factual scenario, an argument of parity would be submitted.
- [12]On the appeal hearing, the applicant gave oral evidence to the effect that he instructed his former solicitor to appeal, that he had obtained an appeal form from the court, that he was advised by his solicitor that she would ‘sort it out’ and ‘organise it’, and he assumed she had ‘everything under control’. On 31 October 2022 an application for an extension of time and a notice of appeal were filed. Those documents were dated and signed by the applicant’s solicitor on 7 October 2022. There was no explanation as to why they were not filed until 31 October 2022.
- [13]I am satisfied that the applicant has provided a sufficient explanation for the delay in filing the appeal, in circumstances where he was legally represented and assumed his legal representative had filed an appeal.
- [14]The respondent opposes an extension of time being granted on the basis that the applicant has no prospects on appeal. It submits that the sentence imposed by the learned Magistrate was not manifestly excessive having regard to the comparable authorities and the penalties imposed for those charged with the same offence arising out of the same search warrant executed.
- [15]No prejudice to the respondent was identified.
- [16]Because I have come to a different conclusion about the applicant’s prospects of appeal, it is in the interests of justice to grant the application for an extension of time.
Statutory framework and principles
- [17]An appeal pursuant to s 222 of the Justices Act 1886 (Qld) (‘JA’) is by way of rehearing on the original evidence given before the Magistrate, subject to any new evidence adduced by leave: s 223 JA.
- [18]On the hearing, the judge may confirm, set aside, or vary the appealed order, or make any other order in the matter the judge considers just: s 225(1) JA.
- [19]In order to succeed, the appellant must 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.[2]
- [20]The relevant principles regarding appeals against sentence are those set out in House v The King.[3]
- [21]It is not necessary however to identify a particular error in the exercise of the discretion. ‘There may be cases where the sentence is so "unreasonable or plainly unjust" in the circumstances as to give rise to an inference that the discretion has miscarried. It is this idea which informs the familiar ground of appeal that a sentence is manifestly excessive’.[4]
- [22]In cases of complaints of manifest excess, an appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences that could have been imposed upon the applicant for this offence.[5] It is not a sufficient basis of intervention that the appellate court may have imposed a different sentence in the exercise of the sentencing discretion.[6]
Application to adduce new evidence
- [23]The applicant relied upon parity as a ground of appeal. On the hearing, the respondent provided the relevant material for the sentencing hearings of Rooney and Wilson so that the applicant’s argument could be considered. To the extent leave is required for that evidence, it is granted.
- [24]The applicant sought to adduce new evidence on appeal. Leave is required pursuant to s 223(2) JA. The Court must be satisfied there are ‘special grounds’ for giving leave to adduce ‘fresh, additional or substituted evidence’ for the hearing of the appeal.
- [25]The evidence sought to be adduced was in the two parts. The first was a collection of character references. The second was the applicant’s oral evidence about the consequences of a conviction being recorded.
- [26]In such an application it is relevant to consider: (1) whether the evidence could, with reasonable diligence, have been produced by the accused at sentence/trial; (2) whether the evidence is apparently credible; and (3) whether the evidence might reasonably have led a tribunal of fact to return a different verdict.[7]
- [27]With respect to the character references, on the first issue, they are clearly evidence that could, with reasonable diligence, have been produced by the applicant at sentence. The applicant said the reason for the omission was that his legal representative had advised him that references would not be necessary. On the second issue, the evidence is apparently credible, but of limited weight because the referees do not state that they are aware that the applicant had pleaded guilty to the specific charge. On the third issue, I do not consider that the evidence might reasonably have led the learned Magistrate to impose a difference sentence. Submissions were made on sentence as to the applicant’s good character and work history, to similar effect. I refuse the application to adduce this evidence.
- [28]With respect to the evidence of the consequences of recording a conviction on his motor dealer licence, the applicant gave evidence that, despite a conviction being recorded against him on sentence in October 2022, that licence had not been cancelled, he still held it, it was due for renewal in April 2023, and at that time it would be cancelled and his employees would lose their jobs. On the first issue, the status of the licence at the date of the appeal hearing was fresh evidence that could not have been produced at sentence. On the second issue, to the extent it related to the fact that the applicant still held a licence, it was apparently credible. To the extent the applicant expressed an opinion about what decision the licencing authority may make in future, it was inadmissible opinion evidence unsupported by evidence from the licensing authority. On the third issue, it was not evidence that might reasonably have led the learned Magistrate to impose a different sentence. At sentence the applicant was represented by counsel who made submissions about the consequences of recording a conviction, to similar effect. I refuse the application to adduce this evidence.
Submissions in the Magistrates Court
- [29]The police prosecutor submitted that the applicant contravened a court order to provide access to his mobile device, and that the order could only be issued if a Magistrate is satisfied that there are reasonable grounds for suspecting information stored in the device may be evidence of an offence or confiscation related evidence. The prosecutor submitted that the search warrant was executed in relation to extremely serious offences. The prosecutor emphasised that attempt to pervert justice was an offence that strikes at the heart of the administration of the justice system, and any deliberate conduct by a person that frustrates the ability of police to investigate or prosecute such offences ought to be strongly denounced by the imposition of a deterrent sentence.
- [30]A man called Stone was charged in relation to the homicide. He was subject to Supreme Court bail conditions that he not have contact with any Crown witnesses. That included the applicant, Rooney, and Wilson. Stone was later charged with, and pleaded guilty to, breaching his bail conditions. The breaches related to contact he had with the applicant and Wilson via social media applications.
- [31]The prosecutor submitted that the applicant made a deliberate choice not to provide access to his mobile phone and he gave no reason or explanation (then or later) as to why he did not do so.
- [32]The prosecutor submitted that the applicant’s plea was not particularly early. The matter had been listed for trial and the applicant had made an unsuccessful pre-trial application seeking to challenge the validity of the warrant. But the plea was indicated about one month before the trial, and in sufficient time for the police not to have called witnesses.
- [33]The applicant was a mature man, aged 66 years old at the time of the offence and 68 at sentence. He had a limited and irrelevant criminal history. It contained only one entry: a conviction on 6 January 2020 in the Innisfail Magistrates Court for authority required to possess explosives committed on 5 December 2019. He was convicted and sentenced to a good behaviour order for six months on recognisance of $300, with no conviction recorded. That order had expired before the subject offence. He had not offended while on bail.
- [34]The applicant’s counsel made submissions to the effect that the applicant had otherwise led a blameless life and was a contributing member of society. He had an excellent work history in the motor industry and, at the time of sentence, was employed in a caravan sales business. He was in the process of purchasing the caravan business.
- [35]He suffered from a significant health condition (chronic renal failure), required dialysis in hospital two days per week, and was awaiting a kidney transplant.
- [36]The applicant’s counsel submitted that as a motor dealer, the applicant was required to have a ‘clean criminal history’ and if a conviction were recorded, he would lose his motor dealer’s licence and business. No evidence of that was placed before the Court. He submitted that while not an early plea of guilty, the applicant was entitled to be given credit for it.
- [37]Both parties made submissions on penalty which, in my view, did not assist the learned Magistrate because they were beyond the proper range of sentences that could have been imposed upon the applicant for this offence, albeit at different extremes. The police prosecutor submitted for a sentence of 18 months to two years imprisonment. The applicant’s counsel initially submitted that the charge should be dismissed, and later submitted for a good behaviour bond or community based order, with no conviction recorded. For reasons explained below, neither submission was supported by the two decisions the Magistrate was referred to, nor by comparable decisions provided on this appeal.
The Magistrate’s sentencing remarks
- [38]The learned Magistrate characterised the plea as a late one. She took into account ss 9 and 11 of the Penalties and Sentences Act 1992 (Qld) and referred to the purposes of sentence. She emphasised the importance of general deterrence and denunciation, and recognised that personal deterrence and community protection were less important in this case. Her Honour had regard to the relevant sentencing principles. She considered the circumstances of the offending and the sentence imposed on Rooney. Her Honour referred to the fact that the police were investigating an attempt to pervert the course of justice offence in relation to a homicide matter, and noted that she was not to speculate about the contents of the applicant’s device, nor the level of criminality hidden by his refusal to provide access information. She observed that it was the applicant’s decision not to provide the access details and he did not later attempt to do so. Her Honour noted that the gravity of the s 205A offence comes from the stymieing of the investigation and that it required a deterrent sentence be imposed. She referred to the applicant’s age of 68 years, his antecedents, his health issues, and noted that he had been a law abiding contributing member of the community ‘with the exception of [a] small blemish in [his] more recent history’.[8] She noted the risk of the applicant losing his licence to conduct the business if a conviction were recorded, but noted that there was no material to prove one way or the other whether that was a definite or potential outcome.
- [39]Her Honour found that although imprisonment is a last resort for a s 205A offence, the seriousness of the offence overwhelmed the applicant’s health or employment concerns, and the only appropriate penalty was one involving imprisonment. Her Honour concluded that a good behaviour bond ‘would not meet the community expectation of a penalty that should attach to this type of offending in the circumstances’.[9] The learned Magistrate was provided with only two authorities, Ross v Commissioner of Police[10] (‘Ross’) and Calvet v The Commissioner of Police[11] (‘Calvet’), which her Honour considered and distinguished.
- [40]The applicant does not allege specific error by the learned Magistrate. The only question is whether the sentence of 15 months imprisonment imposed was manifestly excessive.
Consideration
- [41]The Court of Appeal in Ross referred to the Explanatory Notes for the Serious and Organised Crime Legislation Amendment Act 2016 (Qld) which describe s 205A, amongst other relevant provisions, as a ‘major investigative tool to combat serious criminal activity’ introduced ‘in response to the proliferation of child exploitation material … the increased use of technology to promote and distribute offending material as well as to conceal offending’. [12] The Court said that the legislature considered that the maximum penalty of five years imprisonment for an offence under the (then) new s 205A was ‘justified to ensure a balance between the penalty for non-compliance with an order of the court and the maximum penalty for offending behaviour … which may be concealed by technology.’[13]
- [42]In statements often cited, the Court in Ross said:
[43] The gravamen of a section 205A Criminal Code offence lies in the fact that it stymies an investigation and potentially conceals more serious offending, and has the potential to deflect a police investigation into potentially very serious offences.
[44] It is not always possible for a sentencing judge to determine all of the circumstances surrounding an offence. Prosecuting authorities and a sentencing judge will often have the most limited and imperfect information about how it was that the accused came to commit the offence for which he or she is to be sentenced. This is especially so when the gravamen of the offence is the act of refusing to provide access information for a device in breach of a court order.
…
[49] In this case, the level of criminality was unknown to the court because the applicant refused to provide the access information and no submissions were made on his behalf about the reasons why he refused to do so. The learned Magistrate is not expected, in these circumstances, to embark on a fact-finding investigation to determine the level of criminality hidden by the applicant’s refusal to comply with the access order.
[50] The learned District Court judge was correct to find that the criminality of this offence was simply that the applicant was hiding something and that,as with the offence generally, there was the potential for it to be a serious offence. No further specific funding could be made in the absence of submissions from either the police prosecutor or the applicant’s solicitor.
[51] It was not necessary for the learned Magistrate to have gone one step further and find, as a relevant fact, what the potential criminality was and what a court could rationally conclude was the level of seriousness of the offence(s), or potential offence(s), being withheld.[14]
[references omitted]
Comparable cases
- [43]I do not accept the respondent’s submission that the applicant’s offending was more serious than in Ross.
- [44]Ross was a 34 year old man who failed to provide access codes to six mobile devices seized during execution of a search warrant that also located drug related items and several computers. He was sentenced to 12 months imprisonment, wholly suspended for an operational period of three years,[15] which was undisturbed on appeal. Although Ross was younger and pleaded guilty earlier, his offending was more serious. He refused to provide access passcodes to six devices in breach of an order. They were all his devices. All were secure in the sense that police could not access them without passcodes. The Court found that the nature and circumstances of the offence were serious, including because Ross ‘made a deliberate and careful choice not to provide the passcodes to the particular devices … provided passcodes to other computers and devices that were seized by police but chose not to provide the access codes for the six devices the subject of the offence.’[16] He was also convicted of four other offences at the same time, including possession of drugs (multiple vials of growth hormone) and explosives offences (fireworks). Ross had a slightly more significant criminal history than the applicant. It contained two entries: one for contravene direction or requirement in 2012; and fraud in 2017. For each he received fines with no conviction recorded. He was sentenced for the fraud offence only two months before he committed the offences the subject of the appeal. Ross made admissions to possessing the drugs and fireworks. The District Court Judge, on appeal, found that his plea of guilty was not a sign of genuine remorse. In mitigation, Ross entered an early plea, was married with children, self-employed, provided a favourable reference, and had suffered a degree of extra-curial punishment.
- [45]Calvet was a decision of the District Court on an unsuccessful appeal against sentence on the basis of manifest excess. The 19 year old applicant failed to provide the access code to a mobile phone seized during an execution of a search warrant that located a large amount of cannabis and other drug related items. He was on bail for the drug offences at the time he committed the offence under s 205A. For the s 205A offence, he was sentenced to six months imprisonment, wholly suspended for an operational period of 18 months. Calvet’s representative emphasised his youth, voluntary attendance at the police station, that he had ‘almost no history’, was in full employment, had prospects of an apprenticeship, was remorseful, and was a low risk of reoffending. In dismissing the appeal, Williamson QC DCJ found that: a term of imprisonment was open; the term imposed was moderated in a significant way to reflect the points of difference with Ross; Calvet had committed the s 205A offence while on bail; and the mitigating features had been reflected in a sentence which was wholly suspended. He also said that a salutary deterrent penalty will be imposed for contraventions of s 205A, and that such a sentence is called for to ensure that orders of the kind to which the offence relates do not become a ‘toothless paper tiger’.[17]
- [46]On the hearing of this appeal, the prosecutor provided several sentencing remarks of the Supreme Court and District Court involving s 205A.
- [47]In all of those, a sentence of imprisonment was imposed for a s 205A offence. The prosecutor was unable to locate any decisions in which a community based order had been imposed. In none of the cases provided did the sentence exceed 12 months imprisonment. That is, the sentence imposed by the learned Magistrate on the applicant of 15 months imprisonment was higher than the sentences imposed in all of the decisions provided. That does not, of itself, bespeak error, but it is useful to compare the facts of those matters.
- [48]In R v Willey[18] the defendant was sentenced in the Supreme Court at Cairns on 18 February 2022 after pleading guilty to trafficking in cannabis and methylamphetamine over approximately a six month period, a s 205A offence and other drug related offences. He failed to provide access details to two mobile phones seized at the execution of a search warrant. He was 38 years old at the time and 39 at sentence. He had an extensive criminal history. His plea of guilty was timely. Henry J imposed six months imprisonment on the s 205A offence, to be served cumulatively on the head sentence of six years and six months for the trafficking, to send a message to others that refusing to provide access as provided under a lawful order will result in a further penalty in addition to the offences charged.
- [49]In R v Bradford[19] the defendant was sentenced in the Supreme Court at Brisbane on 29 March 2021 after pleading guilty to trafficking in methylamphetamine, a s 205A offence and other drug related offences. Bradford failed to provide the access code to one of the three mobile phones seized during the execution of a search warrant that located other drug related items. He was 31 years old at the time and was 32 at sentence. It was an early plea of guilty. Although he had a criminal history, it was minor, and he had taken significant rehabilitative steps and had been classed as a low risk of reoffending at sentence. He was sentenced by Williams J to 12 months imprisonment for the s 205A offence, to be served concurrently with a five year term of imprisonment for the trafficking.
- [50]In R v Stasiak[20] the defendant was sentenced in the Supreme Court at Cairns on 4 August 2020 after pleading guilty to trafficking in wholesale amounts of methylamphetamine over approximately 18 months, a s 205A offence and other drug related offences. The s 205A offence involved him failing to provide access details to a mobile phone seized at the execution of a search warrant. Though he pleaded guilty, it was not said to have been early or timely. He was 34 to 36 years old at the time and 39 when sentenced. He had one prior drug related conviction and his ‘absence of significant criminal history’ was taken into account. As to the s 205A offence, Henry J said:
…such offending should attract a cumulative sentence, it being essential in the interests of deterrence to spell out to criminals, when caught, that if they disobey such an order, they will receive extra punishment on top of the punishment they already have coming to them. A concurrent sentence will seldom have that effect.[21]
Henry J acknowledged that a sentence of 12 months imprisonment was ‘comfortably within range’,however allowing for the cumulative effect of the sentence, it was reduced to nine months imprisonment.
- [51]In R v Hanna[22] the defendant was sentenced in the District Court at Cairns on 15 February 2022 after pleading guilty to possessing child exploitation material and a s 205A offence. The latter involved him failing to provide access details to an encrypted storage account on a mobile phone seized at the execution of a search warrant. He was 39 years old at the time and 41 at sentence, and had been serving as a Queensland police officer when charged. He had no criminal history, had served overseas in the armed forces, had been diagnosed with a number of psychiatric conditions, and had taken steps towards rehabilitation. He was sentenced on the basis of reduced moral culpability, and that incarceration would be more onerous for him. For the s 205A offence, the Judge considered six months imprisonment within range but moderated that for totality to three months imprisonment, and ordered it to be served cumulatively upon a term of 15 months imprisonment imposed for the child exploitation material offence.
- [52]In R v Griffin[23] the defendant was sentenced in the District Court at Brisbane on 16 March 2021 after pleading guilty to failing to provide the access code to a mobile phone seized during the execution of a search warrant that located other drug related items. She was 27 years old at the time and 28 at sentence, had a relevant criminal history for drug offending, and had committed some offences while on bail. Her plea of guilty was early. For the s 205A offence, she was sentenced by East A/DCJ to nine months imprisonment, wholly suspended for an operational period of two years, and to two years probation for the drug offences.
- [53]In R v Ford[24] the defendant was sentenced in the District Court at Southport on 23 September 2020 after pleading guilty to failing to provide the access code to a mobile phone seized during an execution of a search warrant that located other drug related items. He was 33 years old at the time, had a relevant criminal history for drug related offences, and had committed offences while on bail. He had a good work history until incurring a workplace injury and starting to use cannabis for pain relief. He was sentenced by Devereaux CJ to six months imprisonment, partly suspended after having served two days pre-sentence custody, for an operational period of 12 months.
- [54]In R v Abboud[25] the defendant was sentenced in the District Court at Southport on 18 June 2020 after pleading guilty to failing to provide the access code to a mobile phone seized during an execution of a search warrant that located other drug related items, and drug related offending. He was 28 years old at the time, had a relevant criminal history, and had offended in breach of probation. He was sentenced by Muir DCJ to four months imprisonment, wholly suspended for an operational period of one year, and two years probation for the drug offences.
- [55]None of these cases involved the particular factual circumstances of this applicant, where the warrant related to an investigation for attempt to pervert justice in a homicide investigation. But that does not mean these cases were not also serious, particularly those involving drug trafficking and child exploitation material. Many of these cases involved mature defendants with relevant criminal histories, who were also convicted of other offences detected on execution of the same search warrant. Some involved more than one device to which access was refused. Some offended while on parole, on bail, or in breach of court orders. Some were ordered to serve their term of imprisonment concurrently with other, more serious, offences. Some were ordered to serve their term of imprisonment cumulatively, and the sentence was moderated for totality. The highest penalty (actual or nominal) was 12 months imprisonment. The Court of Appeal in Ross also referred to sentences imposed by the Western Australia Court of Appeal under the equivalent provision, all of which involved terms of imprisonment.[26]
- [56]Having considered all of those decisions, it cannot be said that the features of the applicant’s offending and his antecedents, individually or cumulatively, were so grave as to warrant a sentence of imprisonment as high as 15 months. The prosecutor relied heavily on the fact of the investigation relating to an attempt to pervert and the existence of other evidence about Stone’s breach of bail, but that did not justify a sentence of 18 months to two years, nor a sentence of 15 months. There was no evidence that any person was in fact charged with attempt to pervert the course of justice, notwithstanding Stone’s breach of bail.
- [57]I reject the applicant’s submission that a good behaviour order or community based order with no conviction recorded were within the proper range of the sentencing discretion here.
- [58]The objective gravity of the offending was such that a sentence of imprisonment was appropriate to reflect the purposes of sentence of just punishment, general deterrence and denunciation. Personal deterrence and community protection did not loom as large given the applicant’s lack of relevant criminal history and that the offending was out of character. It was well within the sound exercise of the learned Magistrate’s sentencing discretion to impose a sentence of imprisonment but to wholly suspend it and not require the applicant to serve actual time in custody unless he reoffended, to reflect the mitigating factors in his favour, including the plea of guilty.
- [59]In my view, the comparable decisions referred to demonstrate that the applicant’s sentence falls outside the permissible range of sentences that could have been imposed upon him for this offence. The appeal should be allowed and the applicant resentenced.
Other defendants
- [60]The parity principle (by analogy) also supports the applicant’s appeal. The three men were not strictly co-offenders but they each were charged arising from the same factual circumstances. The parity principle recognises that equal justice requires that, as between offenders in the same enterprise, there should not be a marked disparity which gives rise to a ‘justifiable sense of grievance’, and that if necessary a sentence should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.[27] A sentence may be reduced on this ground although the sentencing disparity has emerged only since the date when the sentence was imposed.[28]
- [61]On 14 June 2022, Rooney was sentenced in the Magistrates Court at Innisfail for six offences committed on three separate dates a year apart. In addition to the s 205A offence committed on 12 February 2021, they included drug and domestic violence offences. He was convicted of possessing utensils or pipes that had been used (on the same date), two contraventions of a domestic violence order (one before and one after the s 205A offence), assault occasioning bodily harm – a domestic violence offence (on 17 February 2022), and possession of utensils or pipes that had been used (on 17 February 2022). The contraventions and the assault occasioning bodily harm all involved his mother and breached a domestic violence order. They involved him, on a number of occasions, going to her home at night and attempting to enter it, being abusive, grabbing her by the neck with both hands and shoving her, threatening her, and grabbing her arms and restraining her. The conduct caused her to call 000 multiple times, to hide, and flee the premises. The victim sustained bruising.
- [62]With respect to the s 205A offence, Rooney was sentenced on the basis that there was evidence from Stone’s mobile phone of contact with Rooney (including photographs of them together), in breach of Stone’s bail. Rooney committed the s 205A offence two weeks before his 23rd birthday; he was almost 24 years old for the later offences, and was 24 years old at sentence. Although young, he had accumulated a four page criminal history for drug, property and dishonesty offending. He had been sentenced to probation on three occasions. It was an aggravating feature that he committed the s 205A offence in breach of a probation order and the later offending while on bail. Rooney appeared on his own behalf on sentence. As a child, he had been exposed to domestic violence. At the time of the offending he was using methylamphetamine, abusing alcohol, and was involved with a criminal organisation. At sentence, he accepted responsibility for the offending and had taken significant steps towards rehabilitation. He was sober, drug free, and in full time employment interstate as a fly in fly out worker. The s 205A offence was initially contested and there was an unsuccessful pre-trial application about the legitimacy of the search.
- [63]The learned Magistrate structured a sentence which would afford Rooney supervision while reducing the prospect he would lose his interstate employment because of difficulties in transferring parole. She imposed a head sentence on the s 205A offence of two years imprisonment, wholly suspended for an operational period of three years, coupled with community service for the domestic violence offences. For the drug related offences, he was convicted and not further punished.
- [64]On 3 August 2022 the applicant was sentenced.
- [65]On 4 October 2022 Wilson was sentenced in the Magistrates Court at Innisfail for four offences committed on 12 February 2021. In addition to the s 205A offence (to which he entered a late plea), he was convicted after trial of three offences: possessing a dangerous drug; possessing property suspected of having been used in connection with the commission of a drug offence; and unlawful possession of a category A, B or M weapon. For the s 205A offence, he was convicted and sentenced to 15 months imprisonment, with immediate release on parole. For the drug and weapon related offences, he was sentenced to three months imprisonment, to be served concurrently.
- [66]On the material, there is no basis to distinguish between the applicant and Wilson in terms of the objective gravity of their offending. However, Wilson’s antecedents were much less favourable than the applicant’s. Wilson was also a mature man, 45 years old at the time of the offending, with a three page criminal history with multiple convictions for drug offending and violence. In 2018 he was sentenced in the District Court for multiple offences of domestic violence including choking and assault occasioning bodily harm. He received a head sentence of three years imprisonment. He served one year in custody before being released on parole. While on parole he reoffended, committing two drug offences and one offence of wear or carry prohibited item in public, and was fined. It appears that his parole was not suspended. He committed the s 205A offence and other offences in February 2021, only days after his parole period expired. While on bail for those offences, he continued to offend. In October 2021 he was sentenced in the Magistrates Court for two charges of common assault and wear or carry prohibited item in public. He received a head sentence of three months imprisonment, suspended for six months. In May 2022 he was sentenced in the Magistrates Court for drug offending and received a low fine. Wilson was finally sentenced in October 2022 for the offending in February 2021. For the other offences he was convicted after trial, so he did not have the benefit of a plea of guilty. His plea of guilty to the s 205A offence was late, entered during the trial for the other offences. The learned Magistrate characterised it as an acceptance of the strength of the Crown case rather than an indication of genuine remorse.
- [67]Despite those differences, Wilson received the same term of imprisonment as the applicant, 15 months. Wilson was a mature man with a significant criminal history who had continued to reoffend despite serving actual imprisonment and previous supervision on parole. By the time of sentence, he could point to some matters in mitigation: he was in full time employment; had the care of a son with special needs; assisted with the applicant’s health condition; had favourable character references; and prospects of rehabilitation. All of those persuaded the learned Magistrate, correctly, in my respectful view, to impose an immediate parole release date rather than require Wilson to serve any time in actual custody. But they were not sufficient to justify an identical term of imprisonment for the applicant, who had far more favourable antecedents and significant matters in mitigation.
- [68]The lack of disparity of the applicant’s sentence with Wilson’s sentence gives rise to a justifiable sense of grievance for the applicant, which requires some reduction of his sentence to achieve proper relativity with Wilson’s sentence, and also with Rooney’s. The applicant’s sentence must be reduced to avoid an unacceptable disparity with the sentence subsequently imposed on Wilson, whose position was more serious.
- [69]Having regard to the comparable authorities, the sentences imposed on Rooney and Wilson, the applicant’s antecedents, and the mitigating factors, in my view the applicant’s sentence should be reduced to 10 months imprisonment, wholly suspended for an operational period of 12 months.
Conclusion and orders
- [70]I make the following orders:
- Allow the application for extension of time for the filing notice of appeal.
- Allow the appeal.
- Vary the sentence imposed by the Magistrate on 3 August 2022 by substituting a sentence of 10 months imprisonment, suspended forthwith for an operational period of 12 months. Conviction recorded.
Footnotes
[1] R v Tait [1999] 2 Qd R 667, 668.
[2] Teelow v Commissioner of Police [2009] 2 Qd R 489, 493[4].
[3] (1936) 55 CLR 499, 504-505.
[4] R v Ikin [2007] QCA 224, 6 (Keane JA).
[5] Kentwell v R (2014) 252 CLR 601, 615 [35].
[6] R v Lawley [2007] QCA 243, [18].
[7] Pavlovic v Commissioner of Police [2007] 1 Qd R 344.
[8] Transcript of sentencing remarks, page 4, lines 29-30. Although initially her Honour erroneously proceeded on the basis that the applicant had offended in breach of the good behaviour order, she corrected this in her sentencing remarks.
[9] Ibid, lines 45-46.
[10] [2019] QCA 96 (‘Ross’).
[11] [2020] QDC 161 (‘Calvet’).
[12] Ross, [19]-[20] (Wilson J).
[13] Ibid.
[14] Ross, [43]-[44], [49]-[51] (Wilson J).
[15] Ross v Commissioner of Police [2018] QDC 99.
[16] Ross, [57] (Wilson J).
[17] Calvet, [29] (Williamson QC J).
[18] unreported, Supreme Court of Queensland, Henry J, SC 22 of 2022, 18 February 2022.
[19] unreported, Supreme Court of Queensland, Williams J, SC No 1768 of 2020, 29 March 2021.
[20] unreported, Supreme Court of Queensland, Henry J, SC No 1 of 2019, 4 August 2020 (‘Stasiak’).
[21] Stasiak, 10.
[22] unreported, District Court of Queensland, Fantin J, DC No 347 of 2021, 15 February 2022.
[23] unreported, District Court of Queensland, East QC J, DC No 50 of 2021, 16 March 2021.
[24] unreported, District Court of Queensland, Devereaux CJ, DC No 502 of 2020, 599 of 2020 & 601 of 2020, 23 September 2020.
[25] unreported, District Court of Queensland, Muir J, DC No 2633 of 2020, 18 June 2020.
[26] Ross, [59]-[62].
[27] Postiglione v R (1997) 189 CLR 295, 301-302 (Dawson and Gaudron JJ).
[28] R v TAS [2021] QCA 49, [44].