Shol v Commissioner of Police
[2024] QDC 133
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- Shol v Commissioner of Police[2024] QDC 133
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Shol v Commissioner of Police[2024] QDC 133
Shol v Commissioner of Police[2024] QDC 133
DISTRICT COURT OF QUEENSLAND
CITATION: | Shol v Commissioner of Police [2024] QDC 133 |
PARTIES: | YOHANS SHOL (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | DC 181 of 2023 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Southport |
DELIVERED ON: | 27 August 2024 |
DELIVERED AT: | Southport |
HEARING DATE: | 21 May and 20 August 2024 |
JUDGES: | Wooldridge KC DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – MAGISTRATES – APPEAL AGAINST SENTENCE – WHETHER SENTENCE MANIFESTLY EXCESSIVE – an appeal pursuant to s 222 of the Justices Act 1886 (Qld) – where appellant was sentenced for six offences against various Acts – where appellant contends the sentence imposed failed to take into account his participation in residential rehabilitation programs as a condition of his bail – whether the sentence was excessive Corrective Services Act 2006 (Qld) s 50(5)(c) Criminal Code Act 1899 (Qld) ss 77B, 328A(1), 339(1), (3) Domestic and Family Violence Protection Act 2012 (Qld) s 177(2)(B) Justices Act 1886 (Qld) ss 222(2)(c), 223, 225 Penalties and Sentences Act 1992 (Qld) s 9 Police Powers and Responsibilities Act 2000 (Qld) s 754 Transport Operations (Road Use Management) Act 1995 (Qld) ss 78(1), (3)(h) House v The King (1936) 55 CLR 499 McDonald v Queensland Police Service [2018] 2 Qd R 612 R v DAC [2023] QCA 53 R v Granz-Glenn [2023] QCA 157 R v Hawke [2021] QCA 179 R v Nicholson [2016] QCA 315 R v Pham (2015) 256 CLR 550 R v Staines (2022) 11 QR 872 R v WBV [2023] QCA 79 Teelow v Commissioner of Police [2009] 2 Qd R 489 |
COUNSEL: | A Edwards KC for the appellant T Connolly for the respondent |
SOLICITORS: | Owens & Associates for the appellant Office of the Director of Public Prosecutions (Qld) for the respondent |
Background
- [1]On 22 June 2023, the appellant appeared before the Magistrates Court at Southport and pleaded guilty to six offences. In relation to each of the offences, a conviction was recorded, and the appellant was sentenced to a term of imprisonment, as outlined below:
Offence | Maximum penalty | Sentence imposed |
Habitually consorting with recognised offenders Section 77B Criminal Code (Qld) Between 7 May 2022 and 27 September 2022 | 300 penalty units or 3 years imprisonment | One month imprisonment |
Contravention of domestic violence order Section 177(2)(B) Domestic and Family Violence Protection Act 2012 (Qld) Between 15 June 2022 and 2 July 2022 | 120 penalty units or 3 years imprisonment | One month imprisonment |
Dangerous operation of a vehicle Section 328A(1) Criminal Code (Qld) On 5 July 2022 | 200 penalty units of 3 years imprisonment[1] | Nine months imprisonment 12 months licence disqualification |
Driving without a licence repeat offender Section 78(1), (3)(h) Transport Operations (Road Use Management) Act 1995 (Qld) On 5 July 2022 | 40 penalty units or 1 year imprisonment; Disqualification from holding or obtaining a driver licence for at least 1 month and no more than 6 months | One month imprisonment One month licence disqualification |
Assault occasioning bodily harm in company Section 339(1), (3) Criminal Code (Qld) On 17 July 2022 | 10 years imprisonment | 18 months imprisonment |
Call approved telephone number for conference call Section 50(5)(c) Corrective Services Act 2006 (Qld) Between 5 September 2022 and 10 September 2022 | 6 months imprisonment | One month imprisonment |
Each of the terms of imprisonment were ordered to be served concurrently.
- [2]The Notice of Appeal refers to the sentencing orders that were made including an order that “77 days pre-sentence custody be taken into account and not declared”. That order was not made by the learned Magistrate. Although the appellant had earlier been in custody for a period of 77 days before being granted bail, and that period was contemplated by the learned Magistrate in the exercise of her Honour’s sentencing discretion, the appellant had not been held on remand with respect to any of the offences for which he was sentenced on 22 June 2023. Therefore, no order was made, or required to be made pursuant to section 159A Penalties and Sentences Act 1992 (Qld).
- [3]The appellant’s court ordered parole release date was ordered to be 14 September 2023, requiring the appellant to serve a further period of 2 months and 22 days in custody from the date of sentence.
- [4]By way of Notice of Appeal filed on the day of sentence, the appellant seeks to appeal against the sentence imposed on the basis that the sentence is manifestly excessive. On the same day as the Notice of Appeal was filed the appellant also applied for, and was granted bail pending the determination of the appeal.
The legal framework for the appeal
- [5]Section 222(2)(c) of the Justices Act 1886 (Qld) provides that if a defendant pleads guilty or admits the truth of a complaint, they may only appeal under section 222 on the sole ground that a fine, penalty, forfeiture or punishment was excessive.
- [6]In order to succeed on such an appeal, an appellant must establish some legal, factual or discretionary error.[2] A mere difference of opinion between an appellate court and the court at first instance about the way in which the sentencing discretion may, or should, have been exercised is insufficient to justify appellate intervention. Absent demonstration of specific error, an appellant need establish that the sentence imposed was unreasonable or unjust such that the appellate court is driven to conclude that the exercise of the sentencing discretion has miscarried in some way.[3]
- [7]The powers of a judge on hearing the appeal are set out in section 225 of the Justices Act 1886 (Qld). Section 225 provides:
“225 Powers of judge on hearing appeal
- On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.
- If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.
- For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.
- An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.”
The appeal record
- [8]Subject to any granting of leave to adduce new evidence, an appeal pursuant to section 222 is by way of rehearing on the evidence below.[4] No application to adduce new evidence was made on this appeal.
- [9]I have been provided with and have had regard to the Transcript of Proceedings of 22 June 2023 before the learned Magistrate, and the Transcript of the Decision of the same date.[5] The transcript identifies that the following documents were provided to the learned Magistrate to read ahead of the hearing proceeding, but were not marked as an exhibit at the hearing:
- “Sentencing Schedule”;
- Appellant’s criminal history;
- Appellant’s traffic history;
- Pre-sentence custody certificate;
- Character references under the hand of the appellant’s partner, and the brother and sister-in-law of his partner;
- Letter from Victory House Rehabilitation Centre; and
- Letter from Gindaja Treatment and Healing Centre.
- [10]In the course of the first hearing date of the appeal, the parties identified copies of the above documents as (along with the Transcript of Proceedings and Decision), reflecting the whole of the record for the purposes of the appeal. A copy of the aforementioned documents were collectively marked Exhibit 2 on the appeal.
Circumstances of the offending
- [11]The circumstances of the appellant’s offending were outlined in a “Sentencing Schedule” which was provided to the learned Magistrate, with some clarification in the course of oral submissions.[6]
Habitually consorting with recognised offenders
- [12]The charge before the Magistrates Court read as follows:
“That between the 7th day of May 2022 and the 27th day of September 2022 at Queensland in the State of Queensland, One Yohans Shol habitually consorted with [C] and [H] each of whom was a recognised offender on the relevant occasions and a least 1 occasion on which Yohans Shol consorted with each recognised offender happened after Yohans Shol was given an official warning for consorting in relation to that offender, and Yohans Shol, [C] and [H] were adults on the relevant occasions.”
- [13]The facts provide that on 23 April 2022 the appellant was issued with a verbal warning, and a written Form 305 ‘Official Warning for Consorting’, to not consort with eight named individuals. The Form 305 advised that each of the named individuals – including individuals “C” and “H” named in the charge – was a “recognised offender”, and that further consorting with the named individuals may be an offence of Habitually consorting.
- [14]Between 8 May 2022 and 26 September 2022, the appellant was identified to have engaged in the following contact:
- On 8 May 2022 the appellant was at a casino with C, as evidenced by CCTV.
- On a date in May[7] 2022 the appellant was at a restaurant with H, and observed by police.
- On 16 June 2022 the appellant was at a restaurant with C, and observed by police.
- On 6 July 2022 the appellant had two telephone conversations with C and three telephone conversations with H, each of which were lawfully intercepted pursuant to a telephone communications intercept warrant.
- On 7 July 2022 the appellant had a telephone conversation with H which was lawfully intercepted pursuant to a telephone communications intercept warrant.
- On 8 July 2022 the appellant had a telephone conversation with C which was lawfully intercepted pursuant to a telephone communications intercept warrant.
- On 14 July 2022 the appellant had two telephone conversations with H, each of which were lawfully intercepted pursuant to a telephone communications intercept warrant.
- On 23 July 2022 the appellant had two telephone conversations with H, each of which were lawfully intercepted pursuant to a telephone communications intercept warrant.
- On 25 July 2022 the appellant had two telephone conversations with H, each of which were lawfully intercepted pursuant to a telephone communications intercept warrant.
- On 31 July 2022 the appellant had a telephone conversation with H which was lawfully intercepted pursuant to a telephone communications intercept warrant.
- On 5 August 2022 the appellant had a telephone conversation with C[8] which was lawfully intercepted pursuant to a telephone communications intercept warrant.
- On 6 August 2022 the appellant was in the company of C, as evidenced by a photograph later found on the appellant’s phone.
- On 14 August 2022 the appellant had a telephone call with H which was lawfully intercepted pursuant to a telephone communications intercept warrant.
- On 11 September 2022 the appellant had three telephone calls with H, each of which were made by the appellant from prison whilst in custody, and were captured as recorded Prisoner Telephone Service calls.
- On 14 September 2022 the appellant had three telephone calls with H, each of which were made by the appellant from prison whilst in custody, and were captured as recorded Prisoner Telephone Service calls.
- On 19 September 2022 the appellant had a telephone call with H, made by the appellant from prison whilst in custody, and captured as a recorded Prisoner Telephone Service call.
- On 23 September 2022 the appellant had a telephone call with H, made by the appellant from prison whilst in custody, and captured as a recorded Prisoner Telephone Service calls.
- On 26 September 2022 the appellant had a telephone call with H, made by the appellant from prison whilst in custody, and captured as a recorded Prisoner Telephone Service calls.
Contravention of a domestic violence order
- [15]The charge before the Magistrates Court read as follows:
“that between the 15th day of June 2022 and the 2nd day of July 2022 at Townsville City in the Magistrates Courts District of Townsville and elsewhere in the State of Queensland, one Yohans Shol, being a respondent against whom a domestic violence order had been made contravened the order namely the protection order made on 15 July 2020 in the Magistrates Court at Pine Rivers and Yohans Shol had been served with a copy of the order”.
- [16]It is the agreed position of each of the parties on the appeal that the appellant was served with a copy of the order on 22 July 2020.[9]
- [17]The order named the appellant as the respondent, a female individual as the aggrieved, and two children of the aggrieved as named persons. The facts before the Magistrates Court did not further clarify the nature of the relationship as had existed between the appellant and the named aggrieved. The terms of the order included conditions that the appellant was prohibited from contacting or approaching within 100 metres of the aggrieved, or any other named person under the order.
- [18]The appellant’s mobile telephone was seized by police on 30 August 2022, and the contents downloaded and analysed. The facts provide that “[t]he photos application in the phone shows a series of photographs with the defendant and the named persons (children) on 1 July 2022, these photos are taken by a third party, assumed but not confirmed, to be the aggrieved”.[10] The sentencing schedule otherwise provides that “[p]hone calls, messages and photographs were identified on the mobile phone with the defendant in direct contact with the aggrieved and named persons contrary to the conditions in the current protection order”. No further detail of the content or circumstances evidenced from the content was given.[11]
Dangerous operation of a vehicle; Driving of motor vehicle without a driver licence, repeat offender
- [19]Shortly after midday on 5 July 2022, the appellant was driving on Orchid Avenue, doing “burnouts” and driving at “excessive speed”[12]. While driving on Ocean Avenue, the appellant’s vehicle crossed onto the incorrect side of the road. A police officer on a bicycle took action to avoid the appellant. The appellant’s vehicle ultimately passed within approximately one to two metres of the officer. The appellant then drove along The Esplanade on the incorrect side of the road, at “speed” (unspecified), passing traffic and proceeding through roadworks as he did. A traffic controller was required to take evasive action to move out of the way.
- [20]Through security camera footage, the appellant’s vehicle was tracked to an address at Southport. The appellant was found in a rubbish bin alcove at the address. He had the key to the car in his possession.
- [21]
Assault occasioning bodily harm in company
- [22]The appellant was one of a group of 4 to 5 males who approached the male complainant as he was walking home to his accommodation in Surfers Paradise in the early hours of the morning of 17 July 2023. The complainant tried to walk away. The group followed and were verbally abusive to him. The appellant placed an arm around the complainant’s shoulders[14], and started to walk the complainant away from the group. However, the appellant then struck the complainant to the head, in circumstances where, it would be understood, the others remained in such proximity that the assault was committed “in company”. The complainant lost consciousness. The appellant fell and struck his head on the concrete driveway beneath him. The complainant was unconscious for approximately ten seconds. During that time, the appellant and his associates moved away from the area.
- [23]The appellant was identified by police from CCTV footage, telecommunication evidence and other circumstantial evidence.
- [24]By his plea the appellant acknowledged that he had caused some bodily harm to the complainant. The sentencing schedule referred to the complainant having felt pain and discomfort for some weeks after the assault. In oral submissions it was clarified that the complainant did not seek medical assistance at any time.[15]
- [25]The appellant’s legal representatives informed the learned Magistrate that the appellant was under the influence of alcohol and cocaine at the time of the offending, and had no recollection of the offending.[16]
Telephone approved number for conference call
- [26]This charge related to four telephone calls made by the appellant while in custody on remand. Each call utilised the Prisoner Telephone System. At the commencement of each call, a recorded warning played informing the individual that the call was recorded and may be monitored, and that it was unlawful for the person making the call to ask for the call to be diverted, or to use the call to participate in a conference call.
- [27]The sentencing schedule outlined the following:
- On 6 September 2022 the appellant called J, who then connected two other individuals M and L, such that the call was a conference call;
- On 7 September 2022 the appellant called J who then connected M, such that the call was a conference call;
- On 7 September 2022 the appellant again called J who then connected L, such that the call was a conference call; and
- On 9 September 2022 the appellant again called J who then connected M, such that the call was a conference call.
The appellant’s criminal and traffic history
- [28]The appellant’s criminal history commenced in 2013. He had appeared before the courts on 11 occasions prior to the proceedings of 22 June 2023.
- [29]Of note, on 23 January 2015 he was sentenced to a period of probation for an offence of Failing to stop a motor vehicle, contrary to section 754 Police Powers and Responsibilities Act 2000 (Qld), committed on 27 July 2014.
- [30]On 18 April 2016 the appellant appeared before the Brisbane Supreme Court and was sentenced for a number of offences, some of which were committed prior to the imposition of the probation order of 23 January 2015[17], and some of which were committed during the probation order. The offences for which the appellant was sentenced included Trafficking in dangerous drugs and other drug related offences, Burglary, Robbery, Unlawful use of a motor vehicle and Dangerous operation of a vehicle, amongst others.
- [31]In submissions before the learned Magistrate, the prosecutor identified some of the sentences imposed on 18 April 2016 for individual offences – including that the appellant had been sentenced to a term of two years imprisonment for the offence of Dangerous operation of a vehicle. No other material was placed before the learned Magistrate by the prosecution in relation to that earlier court appearance. The appellant’s legal representative informed the learned magistrate that the previous offence of Dangerous operation of a vehicle was of the nature of a police chase.[18] The overall effect of the sentences imposed on 18 April 2016 was not clarified in submissions before the learned Magistrate.[19] The appellant’s court ordered parole eligibility date was fixed as 17 February 2017, being after the appellant had served approximately two years of the sentence, once pre-sentence custody was contemplated. It is not clear on the material whether the appellant was released to parole when eligible on 17 February 2017, or a later date.
- [32]On 20 July 2018 the appellant was sentenced for an offence of Unlawful use of a motor vehicle and an offence of Fail to stop motor vehicle, both committed on 7 May 2018. He was sentenced to two months imprisonment on each charge. His traffic history indicates that he was also on that date sentenced to nine months imprisonment for an offence of Disqualified driving and one month imprisonment for an offence of Careless Driving. He was ordered to be eligible for parole on 8 September 2018.
- [33]It seems that as a result of being convicted of the offences of 7 May 2018, committed during the operational period of the suspended sentence, he was committed to the Supreme Court to be dealt with for the breach of the suspended sentence imposed on 18 April 2016. On 23 January 2019 he appeared before the Supreme Court, the breach was found to be proven, and the operational period of the sentence imposed in the Supreme Court on 18 April 2016 was extended by a period of 9 months.
- [34]The appellant committed further offences in May and June of 2020. On 30 May 2020 he committed an offence of Failing to comply with a COVID-19 public health direction. On 2 June 2020 he committed an offence of Possess utensils, and an offence of Contravene Order about information necessary to access information stored electronically. Each of the offences committed on 2 June 2020 were offences punishable by imprisonment committed during the operational period of the suspended sentence. Accordingly, the appellant was again committed to the Supreme Court to be dealt with for the breach of the suspended sentence imposed in that Court on 18 April 2016. On 16 June 2022 the breach was found to be proved, and the appellant was sentenced to the rising of the Court.
- [35]The appellant was not subject to any earlier sentencing orders at the time of committing the offences for which he was sentenced on 22 June 2023.
- [36]The only offending on the appellant’s criminal history subsequent to 2 June 2020 is an offence of Breach of bail, committed between 6 and 26 January 2023, for which he was fined $500 in March 2023. The nature of the breach of the appellant’s bail was not addressed in submissions before the Magistrates Court.
- [37]As already identified, the appellant also had a prior traffic history, which included, relevantly, an offence of Careless driving in 2018, five offences of Disqualified driving, and three offences of Unlicenced driving.
Relevant chronology
- [38]In May 2022 the appellant committed the first acts relied upon as particulars of the offence of Habitually consorting with recognised offenders.
- [39]Between 14 June 2022 and 2 July 2022, the appellant committed the acts giving rise to the charge of Contravention of a Domestic Violence Order.
- [40]On 16 June 2022 the appellant appeared before the Supreme Court in relation to proceedings for breach of the suspended sentence imposed in that Court on 18 April 2016.
- [41]On 5 July 2022 the appellant committed the offences of Dangerous operation of a vehicle and Driving of a motor vehicle without a driver licence, repeat offender. He was that date issued with a Notice to Appear before the Court the following day with respect to both offences.
- [42]On 17 July 2022 the appellant committed the offence of Assault occasioning bodily harm in company.
- [43]On 5 August 2022 the appellant committed the final act relied upon as a particular of the offence of Habitually consorting with recognised offenders
- [44]On 30 August 2022 the appellant was issued with a Notice to Appear with respect to the offence of Habitually consorting with recognised offenders.
- [45]On 30 August 2022 the appellant was remanded in custody in relation to one or more offences, none of which were the subject of the sentence proceedings in the Magistrates Court of 22 June 2023. His bail was not revoked in relation to any of the offences the subject of the sentence proceedings that he had already been charged with a that time.
- [46]Between 6 and 9 September 2022, while in custody, the appellant committed the acts giving rise to the offence of Telephone approved number for a conference call.
- [47]On 6 October 2022 the appellant was issued with a Notice to Appear in relation to the offence of Assault occasioning bodily harm in company. The appellant was also (on an unspecified date) while in custody, issued with a Notice to Appear with respect to the offence of Contravention of a domestic violence order, and the offence of Telephone approved number for a conference call.
- [48]On 18 October 2022 the appellant was granted Supreme Court bail with respect to the other offences that he had been held on remand for. He was not released to bail at that time, pending availability of a bed in a residential rehabilitation centre as required by the conditions of his bail.
- [49]On 15 November 2022 the appellant was released to bail from Queensland Corrective Services custody. While the presentence custody certificate refers to the “pre-sentence custody period” being from 30 August 2022 to 19 October 2022, the stated calculated period of 77 days also reflects the further period of 28 days until the appellant was actually released to bail on 15 November 2022.
- [50]Upon being released to bail, the appellant completed four months at Victory House, a live-in residential rehabilitation centre with a 24 hour curfew. A letter from the centre was placed before the Court which spoke positively of the appellant’s engagement with his rehabilitation. While at the Centre, he had taken on a leadership role as the Works Co-ordinator for a period of two months.[20]
- [51]Between 6 January and 26 January 2023, the appellant committed an offence of breach of bail, the nature of which is not indicated on the material. The appellant was sentenced for that offence in the Magistrates Court on 18 March 2023.
- [52]The conditions of his Supreme Court bail were varied in March 2023 to allow the appellant to relocate to the Cairns area to be closer to his partner, who was pregnant with their child. The amendment was said to have been allowed on the condition that he attend a further rehabilitation program upon relocating. He completed a further 12 week program at Gindaja Treatment and Healing. The program ended on 19 June 2023, three days before the sentence hearing. Reference material was placed before the Court which also spoke positively of the appellant’s performance and progress, and of the support that the appellant had been to others at the Centre.[21]
Other information placed before the learned sentencing Magistrate
- [53]The appellant was 28 years of age at the time of the offending, and was 29 years of age at the time of sentence.[22]
- [54]The appellant was born in Sudan, where as a child it was said that he was exposed to a great deal of violence. He came to Australia as a refugee in 2000. The appellant is an Australian citizen. His parents separated in 2004.
- [55]He completed high school. He commenced a university degree, which he did not finish. He had however completed certificates in fitness and had worked in hospitality.
- [56]The appellant commenced using cocaine at 19 years of age and within a short time had developed a methylamphetamine addiction. He also consumed alcohol excessively. The use of drugs and alcohol was said to be the background to the offending for which he was sentenced in the Supreme Court in 2016.
- [57]The current period of offending was also said to have occurred during a period of relapse into drug and alcohol use following a period of separation from his partner.
- [58]As at the time of sentence he remained in a relationship with his partner, and had a young child.[23] It was indicated that he intended to commence working in the area of personal training.
Submissions made with respect to the sentence to be imposed
- [59]The prosecutor’s submissions on sentence were directed towards the offence of Assault occasioning bodily harm and Dangerous operation of a vehicle, which the prosecutor had submitted to be the most serious.[24] The prosecutor submitted[25] that the head sentence would be imposed with respect to the offence of Assault occasioning bodily harm, and would be in the order of 12 to 18 months imprisonment. It was submitted that a concurrent term of between six and nine months would be imposed for the offence of Dangerous operation of a vehicle. It was submitted that (but for the period of time that the appellant had spent on remand) the appellant would have been required to serve a third of the head sentence to be imposed; that is, a period of between four and six months.
- [60]When referring to the pre-sentence custody certificate, the prosecutor referred to there being “seventy-seven days not declarable but can be taken into account”[26]. Later in the course of submissions the prosecutor again referred to the appellant having been in custody for 77 days for offences which were not before the Court, but that the 77 days could be taken into account in sentencing the appellant.[27] The prosecutor submitted that the period of 77 days could be taken into account by ordering “a shorter parole release date” for the appellant; that is, reducing the (further) period that the appellant would be required to serve in custody prior to being released to parole, to between two to four months, depending on what sentence the learned Magistrate otherwise determined to be appropriate.[28] That is, the prosecutor’s submissions contended that to reflect the 77 days the appellant had earlier spent on remand, that the learned Magistrate ought to reduce the total period of time the appellant would otherwise be required to serve in custody by two months or approximately 60 days.
- [61]The appellant’s legal representative indicated[29] that but for the further material relied upon, indicative of the appellant’s rehabilitation, he “probably wouldn’t be cavilling much at all” with the prosecutor’s submissions. It was highlighted that but for the offence of Telephone approved number for conference call, which was committed from custody, all of the offences for which the appellant was being sentenced were committed prior to the 77 day period the appellant was remanded in custody. Since his release from remand, he had completed seven months in residential rehabilitation and undertaken significant and intensive work toward his rehabilitation. It was submitted that the Court would wholly suspend the sentence to be imposed, or alternatively fix the date of sentence as the appellant’s court ordered parole release date.[30]
- [62]
“In my view, I’m going to impose 18 months’ imprisonment for the assault occasioning bodily harm offence, and I think that’s well within range. He should remain in custody for six months before a parole release date is granted. I will reduce that, taking into account the 77 days but also taking into account he rehabilitation that he’s undertaken. But I’m not prepared to grant immediate parole release. I’m not of the view that we have reached that point.”
And later[32]:
“I hear what you’re saying, and I intend taking those issues into account which you have already enunciated for me, and I’ve read the references from Victory House and also from Gindaja. I’ve taken that into account and I intend reducing but I don’t intend offering a parole release as of today”.
- [63]The appellant’s legal representatives further submitted that in the circumstances the community interest in facilitating the appellant’s ongoing rehabilitation outweighed any competing interest in returning him into custody for a short period, thereby interrupting that progress.[33]
- [64]No appellate decisions were placed before the learned Magistrate as may have assisted as yardsticks in her Honour’s exercise of her sentencing discretion.
The reasons of the learned sentencing Magistrate
- [65]The following matters were referred to in the course of her Honour’s sentencing remarks:
- i)That offending of the nature involved in the offence of Assault occasioning bodily harm and Dangerous operation of a vehicle will “not be tolerated by the community”;
- ii)The appellant’s criminal history;
- iii)The appellant’s personal circumstances and character references;
- iv)The rehabilitation that the appellant had endeavoured to carry out at each of Victory House and Gindaja, and the need to “balance” that with other sentencing considerations; and
- v)The appellant’s early plea of guilty.
- [66]As specifically concerned the period of time the appellant had spent on remand, her Honour stated the following:
“I take into account your pre-sentence custody certificate that indicates 77 have been spent in custody. I can take these - this 77 day period into account but not declare it as such.”[34]
And later:
“So the head sentence is 18 months imprisonment to be served concurrently with all other sentences. I will take into account the 77 days. And as I’ve indicated, I cannot declare that but I can take that into account. From the 30th on the presentence custody certificate, from the 30th of August ‘22 until the 19th of October ‘22. I also have – as I have indicated – have taken into account, and therefore, reduced and brought forward your parole release date. You – I have brought forward for 18 months’ imprisonment, the period of non-parole, the parole release date should be six months, but I have brought that forward to 12 weeks, representing approximately 3 months. And that has brought the date, the parole release date, to the 14th of September ‘23”.[35]
The contentions on this appeal
- [67]The appellant contends that the learned Magistrate erred by failing to take into account the appellant’s seven-month period in a residential rehabilitation program, and that the resulting sentence was manifestly excessive. While her Honour stated that she took the appellant’s rehabilitation into account, it is submitted that is not reflected in any discernible way in the sentence imposed.
- [68]While it was accepted that deterrence and community denunciation were also relevant sentencing considerations, the appellant submits that these were otherwise adequately met by the imposition of a term of imprisonment with immediate release to parole, in circumstances where the appellant had pleaded guilty, and had already spent 77 days in custody followed by an extensive period of seven months at in-house residential rehabilitation as a requirement of the conditions of his bail.
- [69]While no issue is taken on the appeal with the head sentence imposed of 18 months as itself being excessive, in oral submissions at the hearing it was submitted by the appellant that while the approach of the learned Magistrate resulted in a reduction of the period that the appellant was immediately liable to serve in custody before being released to parole to reflect the 77 days spent on remand, it did not result in an equivalent (or any) reduction of the overall period of imprisonment, as would have occurred in the event of a declaration. It was submitted that the keeping of the head sentence at 18 months, notwithstanding the earlier remand period, may have been appropriate in circumstances of the fixing of a court ordered parole release date as at the date of sentence, to facilitate a longer period of supervision in the community, but as that was not how the sentencing discretion was approached, the period of remand and the further matters warranting amelioration of the custodial period of the sentence had not been adequately reflected in the sentence imposed, resulting in a sentence that was excessive.
- [70]The respondent submits that the sentence imposed was not manifestly excessive. The respondent contends that the learned Magistrate “gave careful consideration to the competing factors in sentencing the appellant” and “placed some weight on the appellant’s rehabilitation, and carefully balanced that against the seriousness nature of the offences of assault occasioning bodily harm and dangerous operation of a vehicle”[36]. The respondent identifies that in fixing the appellant’s court ordered parole release date as 14 September 2023, the learned Magistrate required the appellant to serve a further 84 days to the 77 days pre-sentence custody already served, being a total of 5 months and 9 days, and (it is submitted), a discernible reduction from the period of 6 months that may have been understood to reflect the appellant’s plea of guilty alone.[37]
Further discussion
- [71]There is merit in the submission of the appellant that the learned Magistrate reflected the matters warranting a reduction in the sentence to be imposed in the determination of the appellant’s court ordered parole release date. Such an approach was consistent with the approach advanced in the submissions of both parties before her Honour. At one point in oral submissions at the appeal hearing, the respondent posited that her Honour may have otherwise started from a higher head sentence than 18 months – notwithstanding that the submissions of the prosecution at sentence were directed toward a sentence of 12 to 18 months imprisonment – such that the matters in mitigation may also have been reflected in some way in the overall period of imprisonment imposed. While in my view a head sentence in excess of 18 months was here open, the express statements of the learned Magistrate reflect her Honour having determined that 18 months imprisonment was the appropriate head sentence, and cannot readily be reconciled with her Honour having started from a higher sentence as having been appropriate, but for matters personal to the appellant.
- [72]The date at which the appellant would (here) be released to parole was a matter to be determined in the exercise of the learned Magistrate’s sentencing discretion, having regard to all relevant circumstances. The reasons of the learned Magistrate evidence that her Honour considered that the appellant’s plea of guilty alone here warranted his release at one third of the head sentence – that is after having served six months of the 18 month term. Whilst not mandated by rule[38], as the appellant submits, such an approach was entirely orthodox.[39] Her Honour then adjusted the appellant’s court ordered parole release date to reflect the further matters in mitigation and warranting reduction in the sentence to be imposed.
- [73]On this appeal the parties have also proceeded on the basis that the 77 days the appellant had spent on remand ought to have been taken into account in full – although it was accepted it was not necessary that be done strictly mathematically. While it was open to the learned Magistrate to take the 77 day remand period into account only in the calculation of the appellant’s court ordered parole release date, and not otherwise with respect to the appellant’s overall effective sentence, such an approach warranted greater weight then being given to the remand period in the calculation of the court ordered parole release date than if it were to be reflected in both aspects of the sentence the appellant was liable to serve under the sentencing orders to be imposed.
- [74]Before the Magistrates Court the prosecution made no submissions at all with respect to the appellant’s efforts towards rehabilitation or the appellant’s period in residential rehabilitation in the intervening period since the offending before the Court. The submissions of the parties on the appeal have proceeded on the basis that regard should be had to the period that the appellant spent in live-in residential rehabilitation as a condition of his bail between the commencement of the offending for which the appellant was being sentenced, and the date of sentence, notwithstanding or irrespective of whether the bail conditions pertained to other, (or only other), offending than that for which the appellant was being sentenced.
- [75]Here the appellant had spent the time since his release to bail residing in live-in residential rehabilitation. His grant of bail was conditional upon his residence in such a centre. That his release from custody may have been part of the appellant’s motivation for undertaking such a program does not preclude his having done so from being a relevant sentencing consideration. On the contrary, the courts have recognised that required participation in a residential rehabilitation program is a constraint on personal freedom that may be of relevance to the determination of the overall just punishment in a particular case.[40] Such confinement however, cannot be equated with imprisonment.[41] Here the appellant was not only compliant with the requirements of the respective rehabilitation programs, but the material tendered before the learned Magistrate spoke in a highly positive way of his performance and progress over the period of the programs. [42] The provision of conditions in the court's order that the court considers will help the offender to be rehabilitated, as a purpose of sentence[43], was of greater relevance than it may otherwise have been, in light of the appellant’s criminal history.
- [76]There is no strict equivalence between the period spent in the residential rehabilitation programs and the appropriate reduction of the head sentence and/or custodial component of the sentence, as it is one of many factors to be taken into account in the exercise of the sentencing discretion.[44] Care must also be taken by a sentencing judge, in giving credit for the period of quasi-custody associated with a residential rehabilitation program undertaken before sentence, and in giving credit to an offender for improved prospects of rehabilitation as a result of undertaking that program, to not overcompensate an offender, as there is overlap in the resultant punitive and rehabilitative considerations.[45]
- [77]
“Just as there is no single way to recognise an early plea of guilt, rehabilitation may be taken into account in different ways. It may be reflected in a reduction of what otherwise would be the head sentence or by fixing a date for release earlier than the one-third starting point on account of a timely plea of guilty. In the shorthand of sentencing courts, it may be taken into account “at the top” or “at the bottom”. However, it should be reflected in more than words.”
- [78]The circumstance of the appellant having completed the two live-in residential programs as a condition of his bail was here a highly relevant sentencing factor. As already identified, any benefit to the appellant for his progress toward rehabilitation, in completing the two live-in residential programs as a condition of his bail, must also have been reflected in the fixing of his court-ordered parole release date. While the exercise of the sentencing discretion does not require identified adjustment attributable to or related to each aggravating or mitigating factor as may be present, here the process of reasoning of the learned magistrate is to a large extent apparent on the face of her remarks. In the course of submissions at the hearing, the respondent submitted “in fairness”, that “any benefit that was given for the seven-month [residential rehabilitation period] was a minimal benefit”[47]. The respondent’s observation is clearly correct.
- [79]I conclude that the appellant has demonstrated that the sentence imposed was manifestly excessive.
- [80]As the learned Magistrate observed, a sentence involving the imposition of actual custody was here warranted to meet the demands of deterrence and community denunciation. By the time of sentence however, the appellant here had already served two and a half months on remand, before being granted bail. The appellant had also spent the seven month period since his release to bail in live in-residential rehabilitation, as required by his conditions of bail, and worked constructively on his rehabilitation in that time.
- [81]The requirement that the appellant serve a further period of 2 months and 22 days in custody from the date of sentence did not adequately reflect those matters, (further to the appellant’s plea of guilty), particularly as those matters were reflected only in a reduction of the period of time that the appellant was required to serve in actual custody. Having regard to the limited duration of any further period of time that the appellant would be required to serve in custody once adequate regard is given to the appellant’s circumstances in the intervening period between the commission of the offences and sentence, I have determined that the appropriate sentence here was one which saw the appellant released to court ordered parole as at the date of sentence, whereby he would be subject to those conditions of parole in the community for the 18 month term.
- [82]The appellant has been on bail pending appeal, since the original date of sentence.[48] The intended outcome is achieved by varying the orders made to the extent of fixing the appellant’s court ordered parole release date as at today’s date.[49] The appellant’s legal representative has undertaken to inform the appellant of the orders made and the matters in section 160G(5) of the Corrective Services Act 2006 (Qld).
- [83]In light of the conclusion reached, it is unnecessary to consider the further submissions made by the respondent with respect to the exercise of the residual discretion.
Orders
- [84]The orders on the appeal are as follows:
- The appeal is allowed.
- The sentence imposed in the Magistrates Court at Southport on 22 June 2023 is varied only to the extent of fixing today 27 August 2024 as the appellant’s court ordered parole release date.
- The sentencing orders made are otherwise confirmed.
- The appellant is subject to a court ordered parole order containing the conditions in section 200(1) Corrective Services Act 2006 (Qld).
- Pursuant to section 160G(3) Penalties and Sentences Act 1992 (Qld) the appellant is required to report to the Probation and Parole office at Cairns between 9am and 5pm on Wednesday 28 August 2024 to obtain a copy of his court ordered parole order. If the appellant fails to do so, he will be unlawfully at large.
Footnotes
[1] While the appellant had a previous conviction for Dangerous operation of a vehicle, the offence was charged without a circumstance of aggravation.
[2]McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47]; Teelow v Commissioner of Police [2009] 2 Qd R 489 at [3], [4].
[3] See House v The King (1936) 55 CLR 499 at 504-505; R v Pham (2015) 256 CLR 550 at [28].
[4]Justices Act 1886 (Qld) s 223.
[5] The transcripts were collectively marked Exhibit 1 on the appeal hearing.
[6] Transcript of Proceedings of 22 June 2023 at page 3.
[7] The schedule refers to the same singular event occurring on two different dates of 8 and 14 May 2022.
[8] The facts also refer to a telephone call on this date with an individual O. While O was an individual to whom the notice of 23 April 2022 had referred, the charge before the court did not refer to the individual O. Accordingly the alleged contact with O could not be said to be the subject of the charge of Habitually Consorting. No reference was otherwise made by the prosecutor or the learned Magistrate to the singular incident of contact with O. The appellant did not seek to advance any submissions on the appeal in relation to this matter.
[9] The charge did not specify the date that the appellant was served with a copy of the order of 15 July 2020. Liability under section 177 Domestic and Family Violence Protection Act 2012 (Qld) would only arise in relation to any contravention of the conditions of the order as contained within an order that the appellant had been served with at an earlier point in time. The sentencing schedule tendered at sentence referred to the appellant having been served with a copy of the order on 22 July 2022, being a date after the offending, as charged. The parties have made enquiries and confirmed the reference to 22 July 2022 to be an error. It is also the agreed position of the parties that notwithstanding that typographical error in the material tendered at the sentence hearing, the sentence proceeded on the correct understanding that the appellant had been served with the order prior to the date of the particularised contraventions. Neither party seeks to advance any further submissions on the appeal in respect of the issue.
[10] There is no further reference to any other alleged in-person contact between the appellant and the aggrieved. In oral submissions, the prosecutor submitted that “the contravention in short is contacting the aggrieved and having contact with her in person as well”. On this appeal, unless otherwise indicated, I have proceeded on the factual basis as outlined in the sentencing schedule.
[11] In oral submissions before the learned Magistrate, it was indicated that some details of a message exchange said to have occurred between 16 and 18 June 2022, as outlined in the sentencing schedule, were not pressed: Transcript of Proceedings of 22 June 2023 at page 3 line 24-41.
[12] The speed is otherwise unspecified, and not charged as a circumstance of aggravation.
[13] See the discussion of the appellant’s traffic history below. In oral submissions, the prosecutor informed the learned Magistrate that if her Honour looked at the class of licence held by the appellant, that the appellant had “not actually ever held a full open licence or a provisional or probationary licence”: Transcript of Proceedings of 22 June 2023 at page 6 line 5. This submission appears to be predicated on the “Class/Level” of licence specified in the header to the appellant’s traffic history being “C (L)” connoting “learners”. However, there are a number of entries within the appellant’s traffic history which are indicative of the appellant having at times held at least a provisional licence. The appellant’s legal representative informed the learned Magistrate that the appellant instructed that he had held his provisional licence at some stage, which on the face of the transcript, seems to have been acknowledged by her Honour who referred to the appellant as never having held an “open” licence: Transcript of Proceedings of 22 June 2023 at page 10 line 41-47.
[14] Per the sentencing schedule tendered on sentence. In oral submissions, the prosecutor referred to the arm being placed around the complainant’s “neck”: Transcript of Proceedings of 22 June 2023 at page 3 line 6. This terminology was not referred to by the learned Magistrate. No error is said to arise in the circumstances from the misstatement of the prosecutor.
[15] Transcript of Proceedings of 22 June 2023 at page 5 line 14.
[16] Transcript of Proceedings of 22 June 2023 at page 8 line 27.
[17] But all of which were committed after 27 July 2014.
[18] Transcript of Proceedings of 22 June 2023 at page 6 line 47 to page 7 line 5. The submission was made in support of the appropriate penalty for the offence of Dangerous operation of a vehicle being as contended by the prosecution, notwithstanding the appellant had received a higher sentence of two years on that earlier occasion.
[19] In relation to the offence of Trafficking in a dangerous drug the appellant was sentenced to a term of three years imprisonment suspended after having served one year of imprisonment, for an operational period of four years. Among the sentences imposed, he was also sentenced to cumulative terms of two years imprisonment for an offence of Burglary committed in March 2015, and an offence of Burglary committed in September 2014. As at the date of sentence the appellant had already served 425 days on remand, which was declared as pre-sentence custody.
[20] Transcript of Proceedings of 22 June 2023 at page 7 line 14, page 9 lines 9-11 and 30-31; Letter from Victory House tendered at sentence: part of Exhibit 2 on the appeal.
[21] Transcript of Proceedings of 22 June 2023 at page 7 line 16, page 9 line 11-31.
[22] While the appellant’s legal representatives had indicated in submissions before the learned Magistrate that the appellant was 27 at the time of the offending and 28 at the time of sentence, that was incorrect.
[23] At one time described as a “newborn”, it was later said that his partner had given birth earlier in the year or late the year prior: Transcript of proceedings of 22 June 2023 at page 7 line 24 and page 8 line 1.
[24] Transcript of Proceedings of 22 June 2023 at page 4 line 26; page 5 line 3; page 6 line 19.
[25] Transcript of Proceedings of 22 June 2023 at page 6 line 19-25.
[26] Transcript of Proceedings of 22 June 2023 at page 3 line 9.
[27] Transcript of Proceedings of 22 June 2023 at page 6 line 11.
[28] Transcript of Proceedings of 22 June 2023 at page 6 line 24-33.
[29] Transcript of Proceedings of 22 June 2023 at page 6 line 41.
[30] Transcript of Proceedings of 22 June 2023 at page 10.
[31] Transcript of Proceedings of 22 June 2023 at page 11 line 3 to 10.
[32] Transcript of Proceedings of 22 June 2023 at page 11 line 38.
[33] Reference was also made to the judgment of Applegarth J in R v Hawke [2021] QCA 179.
[34] Transcript of Decision of 22 June 2023 at page 2 line 2.
[35] Transcript of Decision of 22 June 2023 at page 3 line 7.
[36] Outline of submissions on behalf of the respondent at paragraph 6.3 and 6.4.
[37] Respondent’s outline of submissions at paragraph 6.6.
[38] See R v Granz-Glenn [2023] QCA 157 citing R v Watson [2021] QCA 225 at [24]; R v WBV [2023] QCA 79 at [37] to [40].
[39] Referring to R v DAC [2023] QCA 53 at [31]-[33], citing R v Ungvari [2010] QCA 134 at [30] and R v Watson [2021] QCA 225 at [23] and [29].
[40] See for example R v Nicholson [2016] QCA 315 citing R v Delaney (2003) 59 NSWLR 1 at [19]-[24] and [35]. Note that the applicant Nicholson had committed the offending for which he was being sentenced following the completion and within a short time of completing the residential program, which was not the position here – the appellant having undertaken the rehabilitation in the intervening period since the commission of the offences.
[41]R v Hawke [2021] QCA 179 at [133].
[42] The appellant’s position may be contrasted with that of the applicant in R v Delaney (2003) 59 NSWLR 1; the appellant here had completed each of the two live-in courses commenced, without having been discharged or having discharged himself. See R v Delaney (2003) 59 NSWLR 1 at [16].
[43] See section 9(1)(b) Penalties and Sentences Act 1992 (Qld). See also section 9(3)(g) Penalties and Sentences Act 1992 (Qld).
[44]R v Staines (2022) 11 QR 872 at [31].
[45] See R v Staines (2022) 11 QR 872 at [30] and [31] referring to R v Hawke [2021] QCA 179 at [133]-[135].
[46] At [105], the other members of the Court agreeing with the reasons of his Honour. See also [115].
[47] Transcript of appeal proceedings, page 14 line 16.
[48] No submissions were here made that the sentence otherwise thought appropriate as at the time of sentence ought to here be further ameliorated because of the period on bail pending appeal.
[49] See Transcript of appeal proceedings, page 12 line 41.