Hancock v Commissioner of Police
[2024] QDC 217
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- Hancock v Commissioner of Police[2024] QDC 217
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Hancock v Commissioner of Police[2024] QDC 217
Hancock v Commissioner of Police[2024] QDC 217
DISTRICT COURT OF QUEENSLAND
CITATION: | Hancock v Commissioner of Police [2024] QDC 217 |
PARTIES: | HANCOCK, Graeme (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO: | 1866 OF 2024 (Brisbane District Court). |
DIVISION: | Civil. |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 (Qld). |
ORIGINATING COURT: | Magistrates Court, Southport. |
DELIVERED ON: | Orders pronounced on 5 September 2024. Reasons published on 9 December 2024. |
DELIVERED AT: | Brisbane. |
HEARING DATE: | 5 September 2024. |
JUDGE: | McCarthy KC DCJ. |
ORDER: |
No order as to costs. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced on counts of contravention of a supervised order pursuant to the Dangerous Prisoner (Sexual Offenders) Act 2003 (Qld) to terms of imprisonment of 12 months suspended after serving 3 months for 3 years – whether the operational period of the suspended sentence rendered the sentences excessive – whether the appellant had been denied procedural fairness – whether a court is required to invite submissions on the operational period of a suspended sentence whether proportionality required between the constituent components of a suspended sentence – whether the magistrate took irrelevant facts into account – whether a sentencing court is permitted to take into account the effect of a supervised order pursuant to the Dangerous Prisoner (Sexual Offenders) Act 2003 (Qld) |
LEGISLATION: | Justices Act 1886 (Qld) ss. 222, 223. Penalties and Sentences Act 1992 (Qld) ss. 9(1), s. 9(9), 144. |
CASES: | Allesch v Maunz (2000) 203 CLR 172. Chakka v Queensland Police Service [2024] QCA 213. House v The King (1936) 55 CLR 499. McDonald v Queensland Police Service [2018] 2 Qd R 612. Markarian v The Queen (2005) 228 CLR 357. R v George [2013] QCA 302. R v Hartnett [2001] QCA 512. R v Kelly [2006] QCA 467. R v Robertson [2017] QCA 164. Veen v The Queen (No 2) (1988) 164 CLR 465. Rongo v Commissioner of Police [2017] QDC 258. YSD v Commissioner of Police [2022] QDC 92 |
COUNSEL: | L Kellermeier for the appellant M C O'Brien for the respondent |
SOLICITORS: | Legal Aid Office Queensland for the appellant Queensland Police Service Legal Services for the respondent |
Introduction
- [1]The appellant has a concerning history of sexual offending against young children. The appellant attended a football game with his supervising carer. Under the pretence of leaving his company to get a drink, the appellant instead attended the public urinal and purposefully viewed the genitals of young male children using those facilities. He then lied about the event when interrogated.
- [2]The appellant was convicted by his pleas of guilty on 10 June 2024 before the Magistrates Court in Southport to two offences, both contraventions of his supervision order pursuant to the Dangerous Prisoner (Sexual Offenders) Act 2003 (Qld).
- [3]The appellant is subject to an order pursuant to the Act for a period of ten years, commencing on 23 November 2015 and presently expiring on 22 November 2025. The relevant conditions of the supervised orders so contravened, were his failure to “comply with a reasonable direction of a Corrective Services Officer that is not directly inconsistent with a requirement of the order” in the first offence, and his failure to “respond truthfully to enquiries by a Corrective Services Officer about his whereabouts and movements generally” in the second offence.
- [4]The appellant was sentenced to a term of imprisonment of 12 months for each offence. Each term of imprisonment was suspended after the appellant had served three months imprisonment, and the appellant was then required not to commit an offence punishable by imprisonment within a period of 3 years (“the operational period”).
- [5]It was declared that 60 days spent in pre-sentence custody, the period between 11 April 2024 and 9 June 2024, was deemed time already served under the sentences imposed.
- [6]The appellant appealed on the ground that “the sentence (sic) in all the circumstances was manifestly excessive”. The focus of that part of the appeal was on the operational period.
- [7]The appellant pleaded grounds in the “addition to, or in the alternative”. It was contended that the appellant was not afforded procedural fairness “as the parties were not heard as to the operational period of the suspended sentence”, with the result that this court should “sentence afresh”. It was contended that the Magistrate erred in considering the facts forming the basis of the charges as an aggravating feature on sentence.
- [8]The respondent opposed the appeal.
Nature of the appeal
- [9]The appeal has been brought pursuant to s. 222 of the Justices Act 1886 (Qld), and so it is by way of re-hearing on the record.[1] By the Act, the appeal is subject to the constraint that it is to be conducted on the “sole ground that a…punishment was excessive or inadequate”.[2] The onus is upon the appellant to show that there is some relevant error in the decision under appeal.[3] The principles from House v The King[4] apply to an appeal against the exercise of discretion.
- [10]As noted, the appellant pleaded specific errors in the exercised sentencing discretion. Since the hearing of the appeal the decision of the Court of Appeal in Chakka v Queensland Police Service[5] was delivered. In that decision, her Honour Justice Brown, with whom her Honour President Mullins joined in her reasons, identified a divergence of approaches adopted in relation to the meaning of s. 222(2)(c) in the District Court.[6]
- [11]In Rongo v Commissioner of Police[7], Devereaux DCJ (as his Honour then was) observed that the real question to be determined was whether the sentence was excessive, and the demonstration of specific error made by the Magistrate assisted only to the extent that it may have explained why the sentence was excessive. That approach has found favour in Chakka v Queensland Police Service, and it is required by the appellant to demonstrate error in the exercise of the discretion of the kind recognised by House v The King, and that the error has resulted in a sentence which is excessive.[8]
- [12]I declined to accept that the Magistrate had made either of the specific errors pleaded in the notice of appeal and so disposed of the appeal on the sole ground that the sentences were excessive.
Factual allegations.
- [13]The appellant was 39 years old. This was not the first occasion upon which he had contravened a supervision order.
- [14]The appellant suffers from ADHD, Asperger’s Syndrome and is described as having an intellectual impairment. The appellant is supported within the NDIS scheme.
- [15]The appellant has been subject to various supervision orders pursuant to the Act since 2018.
- [16]On 12 November 2004, the appellant was convicted and sentenced to imprisonment for an effective term of five years with his post prison community-based release after serving two years of the sentences imposed. The offending then comprised of 22 offences of indecent treatment of children (some with aggravating circumstances) and three offences of rape. The offending was contemporary not historical.
- [17]On 15 April 2010, the appellant was convicted and sentenced to concurrent sentences of imprisonment of eighteen and four months, for indecent treatment of a child (the taking of a photograph) and contravening an interim supervision order pursuant to the Act through that contact offence. A parole release date was fixed at a date five months later. Again, the offending was contemporary.
- [18]On 16 July 2010, the appellant successfully appealed that sentence, and the appellant was sentenced to three months imprisonment for the contact offence and not further punished for the contravention offence. The appeal succeeded as there had been a failure to account for ten months that the appellant had been held in custody because of his breach of his supervision order.
- [19]On 17 October 2013, the appellant was convicted and sentenced to concurrent terms of imprisonment of eighteen months for possessing child exploitation materials. Further concurrent terms of imprisonment of three months were imposed for the resulting contraventions of his supervised order. The sentenced were immediately suspended for an operational period of two years.
- [20]On 30 March 2024, the appellant was given permission to go to a rugby league game. The appellant was directed to always remain with his NDIS carer, including when going to the toilet.
- [21]The appellant and his carer travelled to the stadium and sat together. As half time approached, he told his carer that he was going to buy a drink. His carer remained seated, as he continued to watch the spectacle.
- [22]The appellant did not go and buy a drink. He went into the public urinal and sidled up to children using the facility to view their genitals. Others noticed his behaviour and spoke to a security officer at the venue. The security officer then saw the appellant repeatedly, queue, permit other adults in front of him, and only progress when a child approached the urinal. The appellant was seen to view the children’s genitals. The children ranged in ages from five to eight years.
- [23]The security officer required the appellant to exit and contacted police officers within the venue. The appellant lied. The appellant told the police officers that he had gone to the toilet to charge his ankle bracelet and had done so to avoid public embarrassment. The carer arrived and the appellant was escorted from the stadium.
- [24]Over the following days, the appellant was questioned by officers from Corrective Services. The appellant denied the behaviour seen by the Security Officer at the stadium. It was only in a subsequent meeting with his treating psychologist that he admitted the conduct.
- [25]The appellant pleaded guilty and is remorseful.
- [26]It is evident that the appellant successfully complied with the rigorous conditions of his supervised order without contravention for over 11 years.
- [27]The appellant had progressed under supervision positively for a long time. The appellant had lived independently, engaged in pro-social activities, such a gym, and regularised outings with his parents. That changed. In 2023, a family with a small child moved near his home. He had to move.
- [28]It is accepted, without challenge, that the appellant was re-located within the Wacol Precinct, in proximity to other similarly supervised individuals. It is accepted, without challenge, that the appellant found that environment toxic and he was actively counselled by others to resist the directions of supervising officers.
The sentencing hearing.
- [29]The prosecutor advocated for the maximum penalty for the offences, that is, a term of imprisonment of two years. The prosecutor advanced the submission reasoned upon the calculated way in which the appellant contravened the orders and the effect upon community protection by his disregard of his supervised conditions.
- [30]The appellant’s counsel informed the court of the contextual pressure placed upon the appellant to disregard direction of his supervisors, “not as an excuse but as an explanation”. The appellant was stated to have been remorseful, was engaging with his treating psychologist and gained insight. The appellant had permitted the treating physicians to explore further interventive medication treatments.
- [31]It was submitted that the contravention was not because of criminal charges for sexual offending and so was not of a category warranting the imposition of the maximum term of imprisonment. The Magistrate was invited to consider the level of supervision and protective conditions that remained in place pursuant to the Act. The appellant’s counsel submitted that a “short period of suspended imprisonment may be appropriate” and latter articulated that submission with precision; “I would say up to four months, wholly suspended”.
- [32]The Magistrate queried why parole was not appropriate. Counsel informed the Magistrate that it was an unnecessary duplication, where the supervised order in place had strict conditions.
- [33]The Magistrate’s remarks do not reveal any error in the consideration of legislative principles relevant to the exercise of sentencing discretion. The Magistrate properly recognised that the competing features aggravating and mitigating the offending. The Magistrate acknowledged the appellant’s remorse, early plea and developed insight. The Magistrate properly regarding the contraventions as serious examples of the offence, where the contraventions were planned and deliberate, and the appellant’s prior criminal convictions were particularly aggravating. The Magistrate did not accept that the offending was in the category of the worst type for the offence and declined to impose the maximum term of imprisonment available.
Submissions on appeal.
- [34]The appellant’s focused submission was that the operational period was “too long”. The appellant accepted that the decided authorities do not prescribe any particular way in which the three components[9] of s. 144 of the Penalties and Sentences Act 1992 (Qld) are to be applied by a sentencing judge, relevant to each other, other than it was submitted observing proportionality.[10]
- [35]The appellant submitted that the operational period of three years resulted in sentences which were not proportionate to the overall criminality or the “head sentence”. The appellant concluded that the appropriate operational period should have been eighteen months.
- [36]The respondent submitted that in the absence of any yardsticks divined from more or less comparable authority, the maximum penalty serves as an appropriate starting point to determine the just and appropriate sentence. The respondent submitted that the Magistrate properly considered protection of the community as an important sentencing principle relevant to this matter. The determination of the operational period reflected the application of that sentencing principle appropriately.
- [37]The appellant advanced further submissions that specific errors had been made by the Magistrate.
- [38]The appellant submitted that he had not been afforded procedural fairness, as he had not been invited to make submissions upon the operational period. It was contended that the comparative length of the operational period to that of the term of imprisonment imposed was significantly different and warranted the invitation for such submissions.
- [39]The appellant submitted that the Magistrate impermissibly regarded the fact that the contravention was of a court order, as an aggravating feature of the offence. It was submitted that the “factual basis of a criminal charge cannot also be considered as an aggravating feature upon sentence”.
Consideration.
- [40]The appellant’s counsel advocated for a term of imprisonment of specific duration and that the sentence should be “wholly suspended”. In making those submissions it can be safely assumed that counsel well understood the components of an order pursuant to Section 144 of the Penalties and Sentences Act 1992 (Qld), including the operational period.
- [41]
“A sentencing judge is not obliged to set out each and every alternative available to that judge in sentencing a defendant who appears before the judge. Counsel who appear before judges on sentences are expected to know the provisions of Queensland’s sentencing law and to make relevant submissions”.
- [42]
- [43]Through submissions in court the appellant clarified the second alleged error. The appellant submitted that the Magistrate regarded the fact that the order breached was a supervised order pursuant to the Act as an aggravating feature of the offence, and that was impermissible.
[39] The impugned passage of the remarks reads:
“Your prior convictions must be treated as an aggravating feature, each and every conviction. The fact you were subject of to a Court order – or an order, obviously, because you contravened it, must be taken into account.”
- [44]The observation that a disregard for the authority of the court is part of the feature of the offending, that is, not just the breach of the condition but the factual circumstance that there has been a disregard for the authority of the court, was unremarkable. That is naturally what is observed in every breach proceeding. In plain terms it articulates that a person in a position of the authority of the court informed you that specific conditions have been put in place, and it’s not just that you breached those conditions, but you have also rebuked the authority of the court in doing what you have done.
- [45]I do not accept that the Magistrate impermissibly took into account any irrelevant fact.
- [46]The legislation does not prescribe any way in which the three components[14] of s. 144 of the Penalties and Sentences Act 1992 (Qld) are to be applied by a sentencing judge, relevant to each other. The only limiting requirements to be observed are that the imposed term of imprisonment must not exceed five years[15], and that the operational period must not be less that the term of imprisonment imposed and not exceed five years.[16]
- [47]In dismissing the appeal in R v Harnett, the plurality recognised the wide discretion to be exercised according to the particular circumstances of each case.[17] There the court declined to intervene where a sentence of two and a half years imprisonment had been suspended after serving nine months for an operational period of three years for three counts of unlawful use of a motor vehicle. The appeal was focused on the operational period.
- [48]The applicant in R v Kelly[18] was sentenced after trial to a term of imprisonment of four months suspended after one year for an operational period of five years. In dismissing the appeal, McMurdo P reasoned that the operational period did not render the sentence manifestly excessive, as the judge was entitled to impose the lengthy five-year operational period where the applicant had a “demonstrated and worrying tendency towards vigilantism”.[19]
- [49]Section 9(1) of the Penalties and Sentences Act 1992 (Qld) prescribes the purposes in sentencing in Queensland. The concluding just and appropriate sentence is achieved by an instinctive synthesis of all relevant factors in an individual matter to meet those purposes.[20] As a response to individualised justice, s. 144 of the Penalties and Sentences Act 1992 (Qld) would be a less impressive tool, if some rigidity was attached to its employment, fixed in proportionality between its constituent components.
- [50]The appellant here advocated that the ordered operational period of three years rendered the sentences excessive.
- [51]A sentencing judge may choose to structure the sentence in such a way to provide substantive incentive for a defendant not to re-offend, to ensure good behaviour within the community and to ensure the community’s protected. In doing so, the sentencing judge must remain cognisant to observe proportionality between the gravity of the crime committed and the sentence imposed.[21] It is that proportionality that must be observed not some inferred proportionality between the relative constituent components of an order pursuant to s. 144 of the Penalties and Sentences Act 1992 (Qld).
- [52]In the course of the hearings, both in this court and before the Magistrate, submissions were made in relation to the effect of the supervision order in place.
- [53]Section 9(9)(b) of the Penalties and Sentences Act 1992 (Qld) states:
“In sentencing an offender, the court must not have regard to the following-
….
- whether or not the offender –
- may become, or is, the subject of a dangerous prisoner application; or
….”
- [54]Section 4 of the Penalties and Sentences Act 1992 (Qld) defines “dangerous prisoner application” to mean “an application under the Dangerous Prisoner (Sexual Offenders) Act 2003 for a continuing detention order, interim detention order, supervision order or interim supervision order”.
- [55]Plainly from the text of these provisions, the sentencing judge is to have no regard to the effect of the conditions of a supervised order pursuant to the Act, in determining the just and appropriate sentences for the offences before the court. That interpretation sits comfortably with the approach of the plurality in R v George.[22]
- [56]Community protection is an important purpose to be considered in this matter. It is appropriate to provide for a substantive incentive for the appellant not to re-offend and to ensure his good behaviour within the community. The operational period assists in providing that incentive, however, it in combination with its constituent components, must be proportionate to the gravity of the crime committed.
- [57]Whilst significant weight was to be given to the appellant’s criminal past and the serious nature of the offending, the appellant had engaged in positive steps to ensure that his conduct was not repeated. The appellant was a man of limited intellectual capacity and contextually influenced by others to disobey direction. This was a difficult matter.
- [58]I have determined that the sentences imposed were rendered excessive by the length of the operational period. The sentencing court should properly consider the rehabilitative steps taken by the appellant prior to sentencing, in determining the appropriate constituent components of the sentences imposed. It is not evident in what way the Magistrate had done so. I have moderated the operational period to two years.
Orders
- [59]My orders are:
- The appeal is allowed.
- Amend the sentence ordered in the Southport Magistrates Court on 10 June 2024 to the extent that the operational period be of two years during which the appellant must not commit an offence punishable by imprisonment.
- No order as to costs.
Footnotes
[1] s. 223(1) of the Justices Act 1886 (Qld).
[2] s. 222(2)(c) of the Justices Act 1886 (Qld).
[3] Allesch v Maunz (2000) 203 CLR 172 at 180 [23]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at 627 [47].
[4] House v The King (1936) 55 CLR 499 at 504-505.
[5] [2024] QCA 213.
[6] Chakka v Queensland Police Service, Ibid at [49].
[7] [2017] QDC 258 at [22]-[24].
[8] Chakka v Queensland Police Service, Ibid at [87]-[88].
[9] What is the term of imprisonment, at what point is the term of imprisonment suspended from, and for what period the defendant is required not to commit an offence punishable by imprisonment.
[10] R v Hartnett [2001] QCA 512 at [6]-[7], YSD v Commissioner of Police [2022] QDC 92 at [71], [74].
[11] [2017] QCA 164 at [55].
[12] [2008] QCA 86 at [21].
[13] [2018] QCA 241 at [31]-[32].
[14] What is the term of imprisonment, at what point is the term of imprisonment suspended from, and for what period the defendant is required not to commit an offence punishable by imprisonment.
[15] s. 144(1) of the Penalties and Sentences Act 1992 (Qld).
[16] s. 144(6) of the Penalties and Sentences Act 1992 (Qld).
[17] R v Harnett, Ibid at [6]-[7].
[18] [2006] QCA 467
[19] R v Kelly, Ibid at [12].
[20] Markarian v The Queen (2005) 228 CLR 357 at 371 [27], 373 [37].
[21] Markarian v The Queen, Ibid at 385 [69], 389 [83], Veen v The Queen (No 2) (1988) 164 CLR 465 at 472- 473.
[22] R v George [2013] QCA 302 at [13]-[17].