Pinchin v Queensland Police Service
[2024] QDC 29
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- Pinchin v Queensland Police Service[2024] QDC 29
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Pinchin v Queensland Police Service[2024] QDC 29
Reported at (2024) 4 QDCR 33
Pinchin v Queensland Police Service[2024] QDC 29
Reported at (2024) 4 QDCR 33
DISTRICT COURT OF QUEENSLAND
CITATION: | Pinchin v Queensland Police Service [2024] QDC 29 |
PARTIES: | BLAKE DAVID PINCHIN (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO: | DC No 2920 of 2023 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Beenleigh |
DELIVERED ON: | 27 March 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 March 2024 |
JUDGE: | Loury KC DCJ |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEALS – SENTENCE – where appellant appeals under s 222 Justices Act 1886 (Qld) – where the appellant fell to be sentenced for an offence for which there was a minimum mandatory sentence to be imposed – where the appellant fell to be sentenced for other distinct offences – approach to sentencing for offences involving a minimum mandatory term – where a cumulative sentence was imposed – whether sentence imposed manifestly excessive – whether appellant denied natural justice |
LEGISLATION: | Drugs Misuse Act 1986 (Qld), sch 3 Justices Act 1886 (Qld), s 222 Penalties and Sentences Act 1992 (Qld), s 13(3) Weapons Act 1990 (Qld) |
CASES: | Atherden v The State of Western Australia [2010] WASCA 33 Bahar v The Queen (2011) 45 WAR 100 Eldridge v The State of Western Australia [2020] WASCA 66 House v The King (1936) 55 CLR 499 Hurt v The King; Delzotto v The King [2024] HCA 8 R v Abbas [2019] 277 A Crim R 105 R v DAB (2022) 13 QR 217 R v Kilic (2016) 259 CLR 256 R v Lee [2024] QCA 36 R v Nagy [2004] 1 Qd R 63 R v Nitu [2013] 1 Qd R 459 R v Selu; ex parte Director of Public Prosecutions (Cth) [2012] QCA 345 |
SOLICITORS: | T Schafer ib Legal Aid Queensland G O'Dea (ODPP) ib Commissioner of Police |
Introduction
- [1]On 13 September 2023 the appellant was sentenced for nine offences committed on 6 June 2023 as follows:
Charge | Offence | Penalty Imposed |
1 | Obstruct police officer | 1 month imprisonment concurrent |
2 | Unlawful possession of weapon category H weapon in a public place | 12 months imprisonment to be served wholly in a correctional centre |
3 | Unlawful possession of suspected stolen property | 1 month imprisonment concurrent |
4 | Possessing dangerous drugs | 1 month imprisonment concurrent |
5 | Possessing dangerous drugs | 1 month imprisonment concurrent |
6 | Possess property suspected of having been used in connection with the commission of a drug offence | 1 month imprisonment concurrent |
7 | Authority required to possess explosive | 3 months imprisonment to be served cumulatively on the 12-month sentence |
8 | Possession of a knife in a public place or school | 1 month imprisonment concurrent |
9 | Possess utensils or pipes etc that had been used | 1 month imprisonment concurrent |
- [2]The effect of the overall sentence was that the appellant was sentenced to 15 months imprisonment with a parole eligibility date after he had served 15 months of the sentence. Ninety-nine days in pre-sentence custody were declared as time served under the sentences.
Circumstances of the offences
- [3]The circumstances of the offences were that on 6 June 2023 police located the appellant getting out of a car and entering a shop. He was arrested on an outstanding warrant. A short struggle occurred with the appellant obstructing the police by pushing them.
- [4]The appellant admitted that two bags located inside the car which he exited were his. Inside the backpack was a loaded shortened firearm. The appellant told police of its presence and that it was loaded with four rounds of ammunition. The firearm had been reported stolen in January 2023. The appellant said that he was given the firearm but would not state from whom he received it. Police located a total of 14 rounds of live ammunition in the firearm and in the two bags in the car. In a satchel police located one gram of substance containing methylamphetamine, 0.2 of a gram of cannabis, a pair of scissors and straw used in connection with a drug offence. A knife and two glass smoking pipes were located in the appellant’s toiletry bag.
The appellant’s antecedents
- [5]The appellant was 29 years of age at the time of the offending and sentence. He has an extensive criminal history. In 2011 when the appellant was 17, he was sentenced for armed robbery; burglary with circumstances of aggravation; multiple counts of arson; unlawfully using a motor vehicle; and dangerous operation of a vehicle; and other property and driving offences. He was sentenced to three years imprisonment suspended after serving five months for an operational period of four years. In 2015 when the appellant was 21, he was sentenced for an armed robbery in company, burglary with circumstances of aggravation; threats; and other miscellaneous offences including an offence relating to his possession of ammunition. That offending was committed whilst subject to the earlier suspended sentence. The appellant was sentenced to five years imprisonment with a parole eligibility date of 27 November 2015 (after serving 20 months).
- [6]In 2020 the appellant was sentenced for his possession of a schedule 1 drug exceeding schedule 3 of the Drugs Misuse Act 1986 (Qld). He was sentenced to 16 months imprisonment suspended after serving six months for an operational period of 16 months.
- [7]In 2021 when the appellant was 27 years of age he was sentenced for armed robbery in company, arson, unlawfully using motor vehicles and unlawfully possessing weapons (category D/H/R) with other miscellaneous offences. He was sentenced to three years imprisonment with a parole release date of 17 July 2021 (after serving four months). The appellant was subject to this sentence at the time of his commission of the nine offences, the subject of this appeal.
- [8]In 2022 the appellant was sentenced for dangerous operation of a vehicle, an evasion offence, obstructing police and contravening a direction or requirement. He was sentenced to six months imprisonment and given a parole eligibility date of the date of his sentence, 11 July 2022. These offences were committed whilst the appellant was on parole for the armed robbery in company and other offences for which he was sentenced in 2021.
- [9]A pre-sentence custody certificate tendered at sentence indicated that the appellant was released to board ordered parole on 10 October 2022. His parole was suspended on 19 May 2023. He was returned to custody on 6 June 2023 with 18 days of time at large being added to his sentence. The full-time expiry date of the appellant’s sentences was 12 May 2024.
The grounds of appeal
- [10]The grounds of appeal set out in the Notice of Appeal are:
- the sentence imposed was manifestly excessive; and,
- the appellant was deprived of natural justice.
The parties’ contentions
- [11]The appellant contends that the learned Magistrate failed to inform the appellant that he was considering imposing cumulative sentences and therefore deprived him of natural justice and failed to take into account the pleas of guilty.
- [12]The respondent submits that the learned Magistrate failed to take into account the appellant’s plea; failed to provide reasons; failed to properly state the pre-sentence custody and failed to inform the parties of the sentence he intended to impose and thus erred. The grounds of appeal set out in the respondent’s outline do not reflect the grounds of appeal set out in the Notice of Appeal nor do they reflect the appellant’s contentions. The respondent submits that the sentence imposed was manifestly excessive although provides no foundation for that submission.
Nature of the appeal
- [13]As this is an appeal against the exercise of the sentencing discretion, this Court is empowered to intervene only if it is established that the learned Magistrate acted upon a wrong principle; mistook the facts; took into account irrelevant circumstances; failed to take into account relevant circumstances or imposed a sentence which was “unreasonable or plainly unjust” such as to demonstrate that the sentencing discretion miscarried even though no specific error can be identified.[1]
The learned Magistrate’s reasons
- [14]The learned Magistrate indicated that he had listened to the submissions made on the appellant’s behalf. He referred to the minimum mandatory sentence that was required to be imposed for the offence of possessing a shortened firearm (12 months imprisonment to be served wholly in a correctional facility). He considered it an aggravating feature that the firearm was loaded. He considered it an aggravating feature that the appellant had previous convictions for offences involving weapons. The learned Magistrate said that there was little to be said in mitigation.
Consideration
- [15]It is correct that the learned Magistrate did not inform the appellant’s legal representative that he was intending on imposing a cumulative period of imprisonment. However, the appellant’s representative was alive to the real possibility of the appellant being sentenced to a greater period of imprisonment than the minimum mandatory period. The thrust of her submission was to persuade the learned Magistrate to impose the earliest possible parole eligibility date which would have been 5 June 2024.
- [16]The learned Magistrate was faced with the task of imposing sentences for a number of offences which were distinct. One of the options open was to fix a sentence for 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.[2] This is not the option that the learned Magistrate undertook. Rather he used the option of accumulating the sentences in part to achieve a head sentence of 15 months imprisonment.
- [17]I do not consider, in the circumstances that there was a denial of procedural fairness. As indicated the appellant’s legal representative contemplated that a higher sentence than the minimum mandatory period might be imposed. She focused her submissions on the parole eligibility date.
- [18]The appellant fell to be sentenced for nine offences. For the offence of possessing a shortened firearm in a public place the Weapons Act 1990 (Qld) provides for a minimum penalty of one year’s imprisonment served wholly in a corrective services facility. The maximum penalty is seven years imprisonment.
- [19]In Bahar v The Queen[3], the Western Australia Court of Appeal considered the proper approach to the sentencing of an offender for a federal offence for which a statutory minimum term of imprisonment was prescribed. That reasoning has been accepted and applied by the Queensland Court of Appeal and now the High Court.[4] In the context of State sentencing laws, the same approach to sentencing where a statutory minimum term was prescribed by State legislation has been adopted in Western Australia in Eldridge v The State of Western Australia[5]. That Court adopted the analysis of Bahar undertaken in R v Abbas[6]:
‘In Bahar, McLure P explained the correct approach to the mandatory minimum penalty. Her Honour concluded, relevantly, that:
- The mandatory minimum penalty, like the maximum penalty, is a legislative direction as to the seriousness of the offence.
- The observations of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen, that “careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all the other relevant factors, a yardstick”, are, on the face of it, equally applicable to mandatory minimum penalties.
- The general sentencing principles in the Crimes Act, as supplemented by common law principles, are framed at a level of generality for application within the boundaries of power established by the maximum penalty and the mandatory minimum penalty.
- The maximum penalty and the mandatory minimum penalty dictate the seriousness of the offence, for the purposes of s 16A of the Crimes Act, and they are the ceiling and floor respectively within which the sentencing judge has a discretion to which the general sentencing principles are to be applied.
- The question for the sentencing judge is where, having regard to all relevant sentencing factors, the offending in question falls in the range between the least serious category of offending, for which the mandatory minimum penalty is appropriate, and the worst category of offending, for which the maximum penalty is appropriate”’ (footnotes omitted, citations omitted).[7]
- [20]In Bahar, McLure P also said of mandatory minimum penalties:
‘For example, on occasions it will not be possible to allow a usual discount for a mitigatory factor, such as a plea of guilty. As Wheeler JA explained in Atherden v The State of Western Australia [2010] WASCA 33:
“[I]n relation to at least some offences which fall towards the lower end of the range of culpability, the presence of a minimum term makes it impossible for a sentencing judge to apply the quantum of discount for a plea of guilty which he or she would ordinarily apply, because to do so would mean that the sentence imposed would fall below the statutory minimum. Where an offence is right at the bottom of the range of culpability, it may be that no discount at all can be given, for the same reason.
However, I do not think it follows that the principles governing the awarding of a discount for a plea of guilty cease to apply in cases where there is a statutory minimum term. Rather, the result will be that there is a compression of sentences towards the lower end of the range, with offences at the bottom of the range of culpability treated effectively in the same way as those which are towards the lower end, but not at the extreme lower end, of culpability”’ (footnotes omitted, citations omitted).[8]
- [21]
‘-the minimum sentence is the yardstick representing the Commonwealth Parliament’s view of the least worst possible case warranting imprisonment against which the case before the court at the time can be measured. The sentence is to be determined recognising that yardstick as part of the synthesis of all other relevant factors.’[10]
- [22]The appellant and the respondent both submit that the appropriate sentence for all of the appellant’s offending was the minimum mandatory period of 12 months imprisonment. No other yardstick other than the minimum mandatory penalty is referred to by either party.
- [23]Whether an offence should properly attract the statutory minimum sentence depends upon the nature of the crime and the circumstances of the offender.[11] That includes all aggravating and all mitigating features to determine whether the case can be described as falling within the least worst possible case.
- [24]The aggravating features of the appellant’s offending were rightly recognised as being the feature that the firearm was loaded at the time it was found in a public place, namely a car. That the appellant was on parole for an armed robbery at the time of the commission of the offence was also an aggravating feature of the offending. The appellant fell to be sentenced for nine offences and not just the offence of possessing the shortened firearm in a public place. It was appropriate that the criminality involved in that other offending was reflected in the sentence imposed. The only mitigating feature present was that the appellant pleaded guilty. Whilst he co-operated with police to some extent, by informing them of the presence of the loaded firearm in the car, he did not co-operate with respect to his obtaining of the firearm.
- [25]Neither the nature of the offence or the circumstances of the appellant were such as to warrant the offence of possessing a shortened firearm being described as falling within the least worst possible case. A sentence considerably higher than the minimum mandatory term imposed for the possession of the shortened firearm could have been imposed.
- [26]Given that the offending all occurred whilst the appellant was on parole for an armed robbery, it would have been open to the learned Magistrate to impose a cumulative sentence on the three-year term he was then serving.
- [27]The learned Magistrate did not state that he had taken into account the plea of guilty. Section 13(3) of the Penalties and Sentences Act 1992 (Qld) (‘PSA’) required the learned Magistrate, when imposing sentence, to state in open Court that he took account of the guilty plea in determining the sentence imposed. However, a failure to comply with section 13(3) PSA does not of itself justify interference with the sentence if it is evident that the guilty plea was in fact taken into account.[12]
- [28]Properly considered, that is what occurred here when regard is had to the concurrency of the sentences imposed with the three-year sentence imposed for the armed robbery. That the sentence was ordered to be served concurrently demonstrates in my view that the appellant’s plea of guilty was taken into account in what might be considered, a generous way.
- [29]The overall effect of the sentence is that the appellant’s full-time release date is now 5 September 2024 as is his parole eligibility date. The sentences imposed see the appellant serving only four months beyond the full-time release date which was then in existence for the three-year term. It also sees the appellant being released without any supervision on parole.
- [30]There have been no comparable cases relied upon by either party in order to make good the submission that the overall sentence imposed was manifestly excessive. Imposing a concurrent sentence with the sentence the appellant was then serving of three years imprisonment appropriately, in my view, recognised the utilitarian value of the appellant’s pleas of guilty.
- [31]The appellant has failed to establish that the sentences imposed were manifestly excessive.
- [32]The respondent further contends that the learned Magistrate made a specific error in not declaring the dates between which the appellant was held in pre-sentence custody. As indicated, this is not an error relied upon by the appellant. That is evidently because such a submission is contrary to authority.
- [33]In R v DAB[13], in respect of a similar ground of appeal the Court of Appeal consisting of Mullins P, Dalton JA and North J rejected this argument, stating:
'By the second ground of appeal the appellant contended that a trial judge who fails to make a statement as to the dates between which an offender had been held in custody and who fails to calculate the time an offender had been held in custody before the sentence makes an error of law which required resentencing in terms of Kentwell v The Queen. The requirements of s 159A(3B) of the PSA are mandatory. If a trial judge fails to state those dates and calculate the relevant time, but nonetheless goes on to state what part of the time is in fact declared as time served under the sentence, it seems to us that the omission to comply with s 159A(3B)(a) and (b) would not of itself be an error which would compel this Court to resentence in accordance with the principles in Kentwell’ (citations omitted).[14]
- [34]No argument was made by the respondent as to why I would not follow this authoritative statement.
- [35]Although the learned Magistrate did not comply with sections 159A(3B)(a) and (b) of the PSA, this does not consist of an error which would enliven the discretion to re-sentence the appellant.
- [36]The appeal is dismissed.
Footnotes
[1] House v The King (1936) 55 CLR 499, 505.
[2] R v Nagy [2004] 1 Qd R 63.
[3] Bahar v The Queen (2011) 45 WAR 100 (‘Bahar’).
[4] R v Selu; ex parte Director of Public Prosecutions (Cth) [2012] QCA 345; R v Nitu [2013] 1 Qd R 459; Hurt v The King; Delzotto v The King [2024] HCA 8 (‘Hurt’).
[5] [2020] WASCA 66 (‘Eldridge’).
[6] [2019] 277 A Crim R 105.
[7] Eldridge (n 5) [37].
[8] Bahar (n 3) 113 [56].
[9] [2024] HCA 8.
[10] Hurt (n 4) 9 [28].
[11] R v Kilic (2016) 259 CLR 256.
[12] R v Lee [2024] QCA 36.
[13] R v DAB (2022) 13 QR 217.
[14] Ibid [7].