McCulloch v Queensland Police Service
[2023] QDC 66
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- Unreported Judgment
- McCulloch v Queensland Police Service[2023] QDC 66
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McCulloch v Queensland Police Service[2023] QDC 66
McCulloch v Queensland Police Service[2023] QDC 66
DISTRICT COURT OF QUEENSLAND
CITATION: | McCulloch v Queensland Police Service [2023] QDC 66 |
PARTIES: | ELIZABETH JO-HANNA McCULLOCH (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO: | D24/22 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court, Ipswich |
DELIVERED ON: | 21 April 2023 |
DELIVERED AT: | Ipswich |
HEARING DATE: | 17 March 2023 |
JUDGE: | Horneman-Wren SC, DCJ |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – appeal against sentence pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant pleaded guilty to 35 offences – where the appellant appeals the sentence of 5 offences wherein the learned Magistrate sentenced the appellant to a wholly suspended sentence – where the wholly suspended sentence was operational for 18 months – where the appellant submits the sentence was excessive – whether the sentence was manifestly excessive in the circumstances – where appeal dismissed |
LEGISLATION: | Justices Act 1886 (Qld) s 222 Penalties and Sentences Act 1992 (Qld) ss 125(4)(a), 146, 147(1)(b)(ii) |
CASES: | Barbaro v The Queen (2014) 253 CLR 58 Bugmy v R (2013) 249 CLR 571 Dinsdale v The Queen (2000) 202 CLR 321 Fox v Percy (2003) 214 CLR 18 House v The King (1936) 55 CLR 499 R v Hood [2005] 2 Qd R 54 R v Nagy [2004] 1 Qd R 63 R v Pham (2015) 256 CLR 550 Wong v The Queen (2001) 207 CLR 584 |
COUNSEL: | Mr S L Kissick for the appellant Ms A Wakefield (legal officer) for the respondent |
SOLICITORS: | Bouchier Khan for the appellant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]The sentence proceeding which resulted in the orders from which this appeal is brought was difficult. The learned Magistrate, in my respectful view, conscientiously and carefully attempted to craft appropriate sentencing orders. Another judicial officer exercising the discretion in the complex proceeding may have equally conscientiously sentenced in a different way. That, though, does not establish appellable error.
- [2]For the following reasons the appeal should be dismissed.
The sentencing proceeding
- [3]The appellant, a 35-year-old Aboriginal woman, was to be sentenced for 35 offences to which she had pleaded guilty. Those offences were summarised by the learned Magistrate as:
“These offences are constituted by an unlawful – unauthorised shop goods charge, two charges of drug driving, one of possession of a utensil or pipe, one of possession – property with suspect to the commission of a drug offence, two of entering premises and commit an indictable, one of unlawful possession of a restricted drug, one of failing to properly dispose, two of unlicensed arising under section 79B of the Act, four of stealing, one of receiving tainted property, one of possession of thing in connection to an offence under section 419, 421, two of fails to appear, 13 breaches of bail. There’s an unlawful possession of suspected stolen. There is one trespass, and one possession tainted property.”
- [4]There had been 28 separate occasions of offending spanning the period from 8 June 2020 to 30 December 2021.
- [5]The police prosecutor submitted that the sentence structure could be one whereby: a period of imprisonment of between nine and 12 months be imposed for an offence of enter premises and commit indictable offence on 1 October 2020; a four-to-six-month sentence of imprisonment for an offence of receiving tainted property committed on the same occasion; and a six-to-nine-month sentence for an offence of enter premises and commit indictable offence committed on 14 June 2020. The prosecutor submitted that those sentences could be wholly suspended for an operational period of 18 months and that an 18-month probation order could be imposed for all other offences, other than those for which the maximum penalty was a fine. It was submitted that the probation order could “run alongside” the suspended sentences.
- [6]The appellant’s solicitor submitted that a two-year probation order was appropriate for all of the offending. When the learned Magistrate indicated that he thought, “there’s some attraction to the approach suggested by the prosecutor. Perhaps some, one or two or some of the offences are subject to a suspended sentence and then a probation order”, and sought submissions on that sentence structure from the appellant’s solicitor, the appellant’s solicitor maintained his primary submission for a probation order, but submitted that, “a period of perhaps three months’ imprisonment and that would be wholly suspended for a duration of a probation order that would see the supervision that my client needs”.
The Magistrate’s decision
- [7]The learned Magistrate commenced his sentencing reasons by acknowledging the appellant’s guilty pleas and that these had facilitated the course of justice and saved the Court and the community time and money. He stated that, having regard to section 13 of the Penalties and Sentences Act 1992, those pleas allowed him to reduce the penalty from that which he may otherwise have imposed.
- [8]His Honour next acknowledged that the appellant presented “as a fairly complicated sentence”. He observed that the appellant’s background was “worthy of much sympathy and consideration by the Court”.
- [9]He referred to the appellant’s age at sentence and at the times of offending, her year 10 level of education and her Aboriginal heritage. The learned Magistrate acknowledged the appellant’s difficult and disadvantaged upbringing, in particular, issues of abandonment and domestic violence and “the terrible circumstances” of her sexual abuse as a child. His Honour observed that those matters and circumstances had unfortunately informed who the appellant had become as an adult and said, “Ultimately that has interplayed with your engagement in offending behaviour. There is clearly a genesis or an ideology.[1] With respect to that upbringing and the offending which is before this Court. So I clearly do take that into account particularly having regard to the authority of Bugmy”.[2]
- [10]His Honour next acknowledged that in more recent times the appellant had “clearly managed some significant inroads” toward rehabilitation, observing that the “key” to her motivation in that regard was her children with whom she had not been entitled to have contact “until more recent times”. In that regard, his Honour referred to her having engaged with the Department of Child Safety and having participated in the various programs that had been proffered to her. He acknowledged her undertaking the Triple P Parenting course, having been involved with KIN Care Services and having engaged in programs with respect to illicit drugs and the abuse of alcohol. His Honour referred in that regard to the fact that the appellant had been “consistently returning negative drug tests”.
- [11]His Honour observed that the appellant’s “goals are very well set” and that she had engaged not once but twice with Centrelink, observing that his understanding of that was “that it can be somewhat onerous”. That burden was something which his Honour said he took into account as part of the sentencing process. The learned Magistrate observed, particularly:
“The most recent of the Court Link programs was a 13 week, and it has resulted in them reflecting upon your time and saying that you should be strongly commended for your involvement. You’ve engaged in a mental health plan and also your mental health. You have also engaged with respect to illicit drugs as I have already referred to.”
- [12]As to the domestic violence she had suffered as an adult, his Honour observed that through her engagement with programs the appellant had gained some insight and empowerment to remove herself from such relationships so as not to expose herself or her children to domestic violence.
- [13]His Honour then observed:
“These are all very positive and very good inroads, but as you heard me discuss with [your solicitor], it has to be guarded, because these underlying of yours are substantial. They have been haunting you for your adulthood, starting as a child. And there will be times where life will test you and you will need to be in a good position to handle that and not relapse.
And that is the big part – that is the hardest part from your perspective. You know you can do it, and you need to have some faith in yourself with respect to that, but at the same token, you need to be very sober about, in the sense that you know it as alcohol and drugs. They are just sneaky, they are sinister, and they will have their way when a little crack appears; okay?”
- [14]From those parts of the learned Magistrate’s sentencing remarks, it is apparent that his Honour brought not only care, but what I would respectfully observe was commendable compassion, to the sentencing process.
- [15]Having referred to the appellant’s limited, “one page” criminal history which his Honour observed “properly has been described as low level” and her traffic history which he considered “has little relevance for today’s purposes” he turned to the circumstances of the offending before him. His Honour described it as:
“Really a course of conduct between June of 2020 and July of 2022. It involves the aggravating circumstance of you of course being subject to bail for some of those offences. It does also show that there have been periods also amongst that where you have been able to stay out of trouble, not reverting to criminal behaviours.”
His Honour then said:
“I am taking, as I have already said, a guarded approach, because there is some more recent and more serious – behaviour of a more serious character, that is, there are some stealings which have occurred in the better period, if I can put it that way. So that is why I take the guarded approach. But I do note that you have been out of trouble for about eight or nine months now and that is a fantastic start.
Now, the offending of itself, the first of the offences relates to a fuel drive off. There’s then a drug drive, consistent with your history of methylamphetamine and cannabis. A pipe and scales was also located.
It is then on 14 June 2020 that one of the more serious matters occurred. You were, from what I can gather, effectively the driver, or the cockatoo, so to speak, when others committed the acts of break and enter of a church building. Various items were taken. And that is your co-accused that actually did the break and enter. You then – later in July, there was a further drug drive.
Then, in – also in July, you were part of a vehicle which was intercepted. You were a passenger, and you were found to have some syringes and also some drugs in your possession. Diazepam, which was in your possession. Then there was an unlicenced driving which arose due to the suspension because of the drug driving. That occurred on the 20th day of August 2020. In September, there was a stealing from a grocery store of – in excess of some $50. These included cables and earphones and the like.
Then perhaps the most serious of the offending did occur in October of 2020. That clearly did occur whilst you were subject to bail. On this particular occasion you and your co-accused were involved in going through the fence of a business and moving backwards and forwards, loading some material into a car. You were found to be in possession of the instruments of breaking and entering, and there were various other – there were some other items which are the subject of a tainted property matter.
You were then, again, on the 12th day of October, unlicenced, and this was due to that suspension back in July of 2020. You failed to appear on not one but two occasions in November and January 2020 and 2021, ultimately being located by the police. There was a further matter which relates to a grocery store, where you filled the – filled a trolley with groceries up to about $180 odd. It is to be noted that they were groceries and I suspect your motivation may have been somewhat different on that occasion.
Then there is what I will describe as a progressive period of a number of failings to report as required under your bail. You were ultimately, on many occasions, located by the police. There was then a stealing from a toy store in which you put items into a pram, and you were also found to be in possession of some items, which was also, as I understand it, tainted property or something to that effect, and that you were, in fact, prohibited from going to Riverlink at that time.
You’re non-attendance with respect to reporting is, on some of those occasions, serious, because you obviously sought in a positive sense to avoid your obligation by providing police with some altered correspondence. The fact that you were granted bail, when I look at that history, was pretty much a lineball call, and one of the important key features was the condition that you report. That was actually there to help you, to remind you to stop reoffending, effectively. The fact that you wilfully avoided that and sought to cover that up does not reflect well upon you. That is not to say that that occurred for all matters, but that is just some of the matters.
Then, finally, there was two fails to report and there was a stealing in December of 2021 where you took a speaker and also some children’s clothing. You were also found to be in possession of a driver’s licence that was not yours, and that was some $70 odd there. So that is the picture that is painted with respect to your course of conduct as I have qualified it.”
- [16]Having noted the competing submissions as to sentence, the learned Magistrate continued:
“I must, of course, impose a sentence which is just in all the circumstances. Rehabilitation, as I have already significantly emphasised on today’s occasion, does loom large, and it is a very relevant feature. Deterrence, of course, is a feature, both general and specific, but I do note, of course in respect of this matter that imprisonment is of a last resort. In respect of the matters which are before the court, it is preferable that you serve any sentence within the community.
Ultimately, the structure of the sentence I am going to impose will be one which does reflect some imprisonment, but you will be able to carry that out within the community, so to speak. The court must, of course, reflect the community’s denunciation in, ultimately, an order which achieves the protection of the community. It is a trite observation, but the community is best served if you become rehabilitated of course.
So what I’m proposing to do is I’m going to take an approach not dissimilar to what the prosecutor suggested. I’m going to impose a suspended sentence which will be hanging over your head. I know you’ve got good and profound motivation with your children to stay on the straight and narrow. That will give you some further incentive, okay.”
- [17]His Honour explained to the appellant the effect of the suspended terms of imprisonment, then went on:
“In conjunction with that, I’m going to give you a period of probation of some 18 months. Now the difference in probation is only something that you can enter into if you agree, okay. So let us deal with the probation component. So I have selected a couple of matters which will be the subject of the suspended sentence. I think there is four or five matters which I will impose imprisonment, and that will be wholly suspended. The greatest of the head sentence with respect [to] that will be imprisonment of nine months, okay. So there will be – let me see – one, two, three, four, five matters on which imprisonment will be imposed, but the greatest of those will be nine months, okay.”
- [18]His Honour then explained that if the probation order was breached the appellant could be brought back before the court to be resentenced and that she could apply to amend the order if she experienced difficulty with it. He then carefully explained the conditions of the probation order he was proposing.
- [19]His Honour included a condition that the appellant submit to such medical, psychiatric or psychological assessment and treatment as directed. Of this condition his Honour, again carefully and compassionately, said:
“I suspect you understand this, but I cannot emphasise enough how important it is for you to unpack that trauma of your childhood because once you start doing that, then you will be equipped to start dealing with other things. And it is – you know, it is a terrible journey that I’m asking you to embark upon, and I’m sure you already have, because it requires courage and – and it is going to require you dredging up a lot of yucky stuff, but it is hoped that, through that, you ultimately can get – you know, get yourself in a really good position and if you do not deal with the – the ghosts of the past, they will haunt you and they will – you know, they will lead you back on to the wrong trail so to speak.”
- [20]Lastly, his Honour proposed a condition prohibiting the consumption of dangerous drugs and other illicit substances and requirement that the appellant submit to drug testing. Of that, the Magistrate encouragingly observed:
“And believe it or not, that is right up your alley. That is the one that you want, because you want those kids. So that is going to be sticking there. It’s a tough condition, but it is really there for a good purpose, isn’t it?”
- [21]Having obtained the appellant’s confirmation that she understood all of those conditions his Honour sought and obtained her consent to a probation order in those terms.
- [22]The learned Magistrate then proceeded to make formal orders as follows:
“I will make all my formal orders now. Now in respect of the offence of entering premises and commit an indictable offence from the 1st day of October 2020 that is reflective of the overall criminality, imprisonment of nine months. In respect of the offence of receiving tainted property and the stealing from the 8th of June and the 18th of December 2021, imprisonment of three months, and then one month with respect to possession of the thing used in connection of an offence under 419 and 421. In respect of the offences of unauthorised shop goods and unlawful possession of a restricted drug, you will be convicted and not further punished. A conviction will be recorded.
In respect of the terms of imprisonment, as I’ve already said, the order I will make is that they will be suspended forthwith. The operational period upon which you must not commit an offence punishable by imprisonment will be one of 18 months. In respect of all the residual matters, the order of the court will be that you be released under the supervision of an authorised corrective services officer for a period of 18 months from today’s date.
I am satisfied that you’ve understood the purpose and the effect of the order, what will happen if you breach the order and that you may apply to amend or revoke the order. I am further satisfied that you’ve understood the conditions and have agreed to an 18-month order in those terms. I also make an order for the forfeiture of any of those items which have been seized for destruction.”
The ground of appeal and the appeal submissions
- [23]It is to be noted that the appellant’s Notice of Appeal lists all the sentences imposed, including the sentence of probation imposed for much of the offending, as those appealed against. By contrast, the written submissions for the appellant limit the appeal to the wholly suspended sentences of imprisonment.
- [24]The sole ground of appeal is that the sentence was excessive. Section 222(2)(b) of the Justices Act 1886 restricts a defendant who has pleaded guilty to that sole ground.
- [25]As was explained in Dinsdale v The Queen, “manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; … excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is … excessive.”[3] If a sentence is found on appeal to be excessive, it will have been demonstrated that the exercise of discretion has been affected by error of the last kind identified in House v The King.[4]
- [26]The central submission by which the appellant seeks to make out that ground is that the sentencing Magistrate failed to properly consider and apply section 9(2) of the Penalties and Sentences Act 1992; that is, that for these offences, the sentencing principles include that a sentence of imprisonment is a sentence of last resort and that a sentence that allows the offender to stay in the community is preferable.
- [27]In my view, the appellant has not made good that submission.
- [28]As the appellant’s submissions acknowledge, the learned Magistrate did refer expressly to those principles in his sentencing reasons. The sentence structure imposed was one which did see the appellant remain in the community. No doubt, that is why the submission is framed as a failure of his Honour “to properly consider and apply” the principles rather than simply a failure to consider and apply them at all.
- [29]In essence, the submission must be: having regard to those principles, no proper exercise of the sentencing discretion in respect of these offences, committed by this appellant, could include a term of imprisonment – even one wholly suspended.
- [30]Expressed in that way, it becomes apparent that the submission must be rejected. For the most serious of the offending, the two offences of enter premises and commit an indictable offence, a suspended term of imprisonment would have fallen within the sound exercise of the sentencing discretion even though some other sentence which did not include imprisonment may equally have done so. It was to one of those offences, the more serious of them, that the learned Magistrate attached the head sentence.
- [31]Mr Kissick’s submission that other of the sentences imposed for some of the offences did not, of themselves, warrant sentences of imprisonment has some merit. But, as already noted, the excessiveness is said to be found in any imprisonment order at all, for each the offences for which suspended terms of imprisonment were imposed.
Further consideration on the appeal
- [32]Notwithstanding that I would not find excess in the sentence on the basis advanced by the appellant, an appeal by way of rehearing, which an appeal under section 222 of the Justices Act 1886 is, requires the court to conduct a “real review” of the learned Magistrate’s reasons. If, having done so, an error is found it is the duty of the court to discharge its appellate function to correct the error.[5]
- [33]Having been invited by the prosecutor to consider a sentencing structure that would include wholly suspended terms of imprisonment for a number of offences and a parallel probation order for others, the learned Magistrate adopted such an approach. His Honour was permitted to structure the sentences in that way.[6]
- [34]As set out above, in making the formal sentencing order in respect of the offence of entering premises and commit indictable offence on 1 October 2020 his Honour fixed the term of nine months’ imprisonment to be “reflective of the overall criminality”. From this statement as to the intention which informed the fixing of that term for that sentence it can be concluded that his Honour was fixing a sentence for what was objectively the most serious offence which was higher than that which would have been fixed had it stood alone, the higher sentence taking into account the overall criminality. His Honour was permitted to fix a higher sentence on this basis. It was consistent with the principles explained by Williams JA in R v Nagy.[7]
- [35]The learned Magistrate did not state what the other sentence for that offence may have been, however, I would not conclude that any inflation of the sentence for that offence was particularly great. No attempt was made on the appeal to demonstrate that it was.
- [36]The overall criminality which was to be reflected included the large number of offences, the numerous occasions of offending and the fact that many of the offences were committed when the appellant was on bail for earlier offences. These matters were to be balanced against matters personal to the appellant. The learned Magistrate did that in a careful and considered way.
- [37]Returning to the merit of the submission that the sentences imposed for some of the offences did not, of themselves, warrant sentences of imprisonment, it appears seductive, but is ultimately distracting, to test the merit of that proposition for each sentence in isolation.
- [38]One of the offences for which a three-month sentence of imprisonment was imposed was receiving tainted property on 8 June 2021. This was the offence used by counsel for the appellant as an example in the course of oral submissions. The suspected stolen property of which the appellant was found to be in unlawful possession was described in the Sentencing Schedule provided by the prosecutor as “a children’s book titled ‘little book of special thoughts’ valued at $4.99”.
- [39]His Honour did not explain, at a general level, why he selected some less serious offences to be subject of sentences of imprisonment and some to be subject of the parole order. Nor did he explain, at a specific level, why the particular offences selected to be subject of sentences of imprisonment were so selected. However, It is clear enough from his Honour’s reasons that, in structuring the overall sentence in the manner he was, the learned Magistrate was selecting a few offences for which lesser, concurrent terms of suspended imprisonment would be imposed; that is, that the appropriate overall sentencing structure was one which should include imprisonment, albeit suspended, which would serve as a significant deterrent, and that imprisonment should attach to more than one offence.
- [40]When viewed in that way, one should not be overly critical of a failure to explain, in a detailed way in the course of sentencing for 35 offences in the very busy jurisdiction which is the Magistrates Court, why particular of the offences were selected as those to which imprisonment would attach. Nor, in my view, should one, in matters such as these, look overcritically at the penalty for particular offences so as to isolate them from that overall sentencing exercise. As the High Court has explained, in cases in which the error is said to be manifest excess, “appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”.[8]
- [41]The learned Magistrate, carefully considered all of the circumstances before him and conscientiously fashioned an overall sentence structure which he considered appropriately addresses the purposes of sentencing which he had identified.
- [42]In my opinion, viewed in the context of the overall sentencing exercise being performed by the learned Magistrate, it cannot be said that the sentences are so wrong that there must have been some misapplication of principle in fixing them such that some substantial wrong has in fact occurred.[9]
Disposition
- [43]The appeal be dismissed.
Footnotes
[1] This would appear to be a mis transcription of ‘aetiology’.
[2] Referring to the principles stated in Bugmy v R (2013) 249 CLR 571.
[3] Dinsdale v The Queen (2000) 202 CLR 321 at 325 [6] per Gleeson CJ and Hayne J.
[4] House v The King (1936) 55 CLR 499 at 505.
[5] Fox v Percy (2003) 214 CLR 18 at 126-127 [25] and [27].
[6] R v Hood [2005] 2 Qd R 54 at 67 [48] per Jerrard JA.
[7] R v Nagy [2004] 1 Qd R 63 at 72 per Williams JA.
[8] Wong v The Queen (2001) 207 CLR 584 at 605 [58] per Gaudron, Gummow and Hayne JJ; R v Pham (2015) 256 CLR 550 at 559 [28] per French CJ, Keane and Nettle JJ.
[9] Barbaro v The Queen (2014) 253 CLR 58 at 71 [27] per French CJ, Hayne, Kiefel and Bell JJ applying House v The King (1936) 55 CLR 499 at 505.