Baker v Commissioner of Police [2022] QDC 141

Kelly v Commissioner of Police [2017] QDC 156

R v Jackson [2011] QCA 103

R v Jason [2021] QCA 151

R v O'Connor [2022] QCA 65

R v Watson [2021] QCA 225

Ratcliffe v Queensland Police Service [2019] QDC 144

Rongo v Commissioner of Police [2017] QDC 258

Trott v Commissioner of Police [2018] QDC 165

The Office of the Director of Public Prosecutions for the respondent.

[1] On 6 May 2022 I made orders dismissing this appeal. These are my reasons.

[2] On 13 December 2021 the appellant pleaded guilty before an Acting Magistrate to 13 offences including enter premises and commit indictable offence, fraud (five charges), stealing, unlawful use of a motor vehicle, driving without proper control of a vehicle, driving without a driver's licence and while licence was suspended, wilful damage, and trespass.

[3] The offences were committed on five separate occasions during July 2021.

[4] The appellant received a head sentence of 18 months' imprisonment attached to the offence of unlawful use of a motor vehicle, with lesser concurrent terms of imprisonment and fines. He was disqualified from obtaining or holding a driver's licence for six months.[1]

[5] The Acting Magistrate took into consideration 132 days spent in pre-sentence custody and declared 85 days as time served under the terms of imprisonment. The appellant was given a parole eligibility date of 19 March 2022, fixed at about one third of the head sentence.

[6] The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld) against the sentence on the ground it is manifestly excessive in two respects: in not having proper regard to the delay at the time in hearing parole applications, and the appellant's plea of guilty.

[7] The appellant was 45 years old at the time of the offending and at sentence.

[8] He had an eight page criminal history. It reflected regular offending between 1992 and 2021, mainly for property offences, but also for drug and violent offending. Relevantly, it contained previous convictions for enter dwelling with intent, with and without circumstances of aggravation (five); break and enter/enter place with intent (two); wilful damage (four); unlawful use of a motor vehicle (two); entering premises with intent; enter premises and commit indictable offence (two); stealing (seven); and fraud.

[9] The appellant had been sentenced to fines, community based orders, good behaviour bonds, suspended sentences, an intensive correction order, and imprisonment with release on parole. He had breached multiple court orders, including breaching a community service order once, probation twice, an intensive correction order once, and a suspended sentence twice. On multiple occasions, the appellant had been sentenced to short terms of imprisonment of up to 12 months.

[10] On 15 January 2021, he was convicted and sentenced to seven days' imprisonment wholly suspended for an operational period of 12 months for one charge of stealing. On 15 March 2021, he was convicted and sentenced to six months' imprisonment with an immediate parole release date for one charge of enter premises and commit indictable offence by break.

[11] The subject offending was committed within months of those sentences, while on parole and in breach of the suspended sentence.

[12] On 3 July 2021, the appellant entered a car parked in a driveway outside a home and stole a mobile phone and wallet (enter premises and commit indictable offence). He used the bank cards to buy tobacco, vouchers, alcohol, and groceries at five separate locations, totalling $492.10 (fraud and dishonestly gain benefit/advantage). The offending was captured on CCTV.

[13] On 4 July 2021 the appellant fuelled up a car at a service station and left without paying. The fuel had a value of $20 (stealing).

[14] On the evening of 14 July 2021 the appellant unlawfully took a Toyota Hilux, using the key left inside it by the owner (unlawful use of motor vehicles aircraft or vessels). Shortly after midnight, while driving in an urban area he lost control of the vehicle and crashed it into a tree (driver to have proper control of a vehicle). The offending was captured on CCTV and the appellant's fingerprints were found on the vehicle. The prosecutor submitted that the vehicle was 'significantly damaged' but the value of the damage was not identified. The appellant did not have a licence at the time, as he was suspended by the State Penalties Enforcement Registry (SPER) (driving of motor vehicle without a driver licence SPER Suspension).

[15] On 28 July 2021, the appellant went into a retail store and took clothing without paying for it (stealing). He was identified on CCTV. Later that same day, the appellant and another person went to a residential unit complex, where the appellant used a multi-tool to damage the screen door of a unit to gain entry (wilful damage). Police were called and they located the defendant and the other person, naked, inside the unit (trespass - entering or remaining in dwelling or yard).

[16] The appellant was arrested and taken to the watchhouse. He declined to participate in an interview. His parole was suspended and he was returned to custody.

[17] He served out the balance of his previous term of imprisonment, which expired on 18 September 2021. From 19 September 2021 he reverted to full time remand status. By the date of sentence, he had been in custody a total of 132 days, of which 85 days was spent solely on remand for this offending after the previous sentence expired.

[18] In the Magistrates Court, the police prosecutor submitted that a head sentence of two years' imprisonment was appropriate with parole eligibility set at one third, taking into account the time already served.

[19] The appellant's solicitor submitted that the range for the offending was between 15 months to two years' imprisonment, falling around the 16 to 18 months mark. However, he ultimately submitted that the court should take into account but not declare all of the presentence custody and impose a 12 month intensive correction order, with immediate release.[2] He conceded that a period of imprisonment was required given the offending occurred whilst subject to a suspended sentence and parole order.[3] He submitted that, in light of the parole delays at the time, an intensive correction order should be made so that the appellant's parole would not be cancelled and no parole eligibility date would be required.[4] He referred to a delay of five months in assessing parole applications but did not tender evidence of that. He relied upon R v Watson [2021] 43 QLR, in which the Court of Appeal held that where at that time there were significant delays in assessing parole applications, the judge was required to consider whether the appropriate mitigation of the sentence to reflect an early plea of guilty could be achieved by a different order (other than fixing parole eligibility at the usual one third mark).[5] In support of his submission, he emphasised that the appellant had accommodation on his release, prospects of employment, and family support. He noted that the appellant had been a methylamphetamine user and the offending was to get money for drugs, and he had taken steps towards rehabilitation while in custody.

[20] The Acting Magistrate considered the mitigating features, but also correctly placed weight on the appellant's relevant criminal history, previous non-compliance with court orders, and that this offending occurred while subject to a suspended sentence and on parole for like offending. He sentenced the appellant to a head sentence of 18 months' imprisonment, with parole eligibility at 19 March 2022, after having served one third of the sentence in custody. He activated the suspended sentence and ordered it to be served concurrently.

[21] The Acting Magistrate noted that 'sentencing that has been imposed to date to try and curb [the appellant's] offending and assist, that rehabilitation is now beyond the sentencing process, that both general and specific deterrence call for - an actual custodial sentence is required'.[6]

[22] On appeal the appellant submitted that, given the delays in assessment of parole applications, the appellant should have had his head sentence partly suspended after serving one third rather than a parole eligibility date, and a different sentence imposed on one of the lesser offences to afford him supervision on release.

[23] The respondent relied upon R v Jason,[7] in which the Court of Appeal held that an appeal against sentence is not the chance to make a better case; it is a chance to correct legal and factual error and ruled that delays in processing applications for parole did not raise any error by the sentencing Judge.

[24] It submitted that the head sentence was squarely within the range of the authorities referred to, and that while it is commonly the practice to set the date at one third, there is no hard and fast rule that a sentence must be reduced by one third of the non-parole period on a plea of guilty. The fact that the Acting Magistrate set parole eligibility at one third, despite there being parole delays which would potentially see the appellant serve more than one third of the sentence in custody, did not render the sentence manifestly excessive. The respondent further submitted that, given the appellant's criminal history and the fact that he offended in breach of court orders, it would have been open to set his parole eligibility date at later than the one third mark in any event. I accept those submissions.

[25] The Acting Magistrate did not expressly state that he took into account the appellant's guilty plea in determining the sentence imposed, as he was required to do by s 13(3) PSA. However it is evident that the guilty plea was in fact taken into account in fixing the parole eligibility date at one third of the head sentence.

[26] Trott v Commissioner of Police [2018] QDC 165 was an appeal against sentence for similar offending committed while on bail. With a more extensive criminal history than the current appellant, the appellant in Trott was sentenced to two years' imprisonment, with parole eligibility set after five months. The appeal was allowed on the basis that while the head sentence was within range, the appellant should have been given a parole release date rather than eligibility.

[27] Kelly v Commissioner of Police [2017] QDC 156 was an appeal against a head sentence of 12 months' imprisonment with parole release at four months for a 31 year old offender who pleaded guilty to four offences: enter premises and commit indictable offence, fraud, wilful exposure, and failure to appear in accordance with an undertaking. The offending was objectively less serious. He did not offend while on parole or a suspended sentence. The appeal was allowed in part, only to the extent of resentencing for the offence of wilful exposure, and the sentence was otherwise confirmed.

[28] Rongo v Commissioner of Police [2017] QDC 258 involved one count of unlawful use of a motor vehicle, for which the appellant was sentenced to 18 months' imprisonment, and parole fixed at four months. While the appellant had a 'substantial' criminal history that included custodial sentences, his culpability in the offence was less so, in that he was a passenger in the vehicle and not aware of the circumstances in which the vehicle had been taken. The appeal was allowed, and the sentence reduced to 15 months' imprisonment.

[29] Ratcliffe v Queensland Police Service [2019] QDC 144 was an appeal against sentence where the appellant was convicted of 13 offences over a five month period, including five counts of unlawful use of a motor vehicle. The motor vehicle offending was more persistent and over a longer period than the subject case. The appellant was 26 years old with a relevant criminal history. He was sentenced to a number of concurrent terms of imprisonment totalling two years and three months, fines totalling $2600, and licence disqualification for four years and ten months. His parole release date was set at the one third mark, and 89 days of pre-sentence custody were declared as time served. The appeal was allowed, and the appellant resentenced to a head sentence of two years' imprisonment with 229 days pre-sentence custody declared as time served.

[30] The cases referred to support the head sentence ultimately imposed of 18 months' imprisonment.

[31] The appellant was a recidivist property offender. He was a mature man whom previous terms of imprisonment had not deterred from reoffending. Although the value of most of the property offences was low, there was a large number of them, the driving offences were more serious, the offending was persistent (occurring on multiple dates), and it occurred in breach of a suspended sentence and parole, showing a flagrant disregard for court orders. The appellant required supervision and support on release. It was within the sound exercise of discretion to set a parole eligibility date rather than suspend the sentence. Declining to impose a suspended sentence in those circumstances did not render the sentence manifestly excessive. The mere fact that the sentence could have been structured in such a way but was not, does not render the sentence manifestly excessive.[8]

[32] Although these offences were committed whilst the applicant was on parole, they were not offences against a provision in schedule 1 of the Penalties and Sentences Act 1992 (Qld). That meant s 156A was not engaged so as to require the sentences to be served cumulatively upon the earlier sentence. They could be ordered to be served concurrently, as they were.

[33] His Honour declared pre-sentence custody of 85 days out of the total served of 132 days. He was not assisted by submissions as to the operation of s 159A of the Penalties and Sentences Act. The operation of s 159A was recently explained by the Court of Appeal in R v Wilson[9] and R v Braeckmans.[10] Section 159A was engaged in this case because the appellant was sentenced to a term of imprisonment for offences for which he had been held in custody. Section 159A empowers the sentencing court to make a declaration in the prisoner's favour in relation to time for which the prisoner was on remand whilst serving a previous sentence.[11]

[34] Once s 159A is engaged, the sentencing court is obliged to consider whether to declare all of the time as imprisonment already served, or that all or part of the time is not to be taken to be imprisonment already served. There is no preferred or prima facie position that a prisoner will have the benefit of the whole of the period, unless the court is persuaded to the contrary.[12] If a cumulative sentence is being imposed so that it will commence from a future date, the court cannot declare that any of that sentence has already been served.

[35] The Acting Magistrate did not expressly declare the time served in presentence custody by reference to s 159A. However he clearly took it into account and it was recorded in his written orders and the verdict and judgment record.

[36] As to the parole eligibility date, consideration of the sentencing remarks supports a conclusion that it was fixed by the Acting Magistrate after a proper consideration of all of the relevant circumstances. There is no basis to conclude that it arose as a result of any misunderstanding of the sentencing submissions or through inadvertence. It was fixed at approximately one third of the head sentence, an approach commonly adopted to reflect an early guilty plea.

• [37] Whilst a consequence of the setting of the parole eligibility date was that it was possible (because of delays) that the appellant may serve more than one third of the head sentence before being granted parole, that consequence flowed from him engaging in persistent criminal offending whilst on parole. Such a requirement did not constitute a crushing sentence. It also did not evidence any misapplication of sentencing principles.

• [38] As the appellant has not established any specific error or that the sentence imposed was manifestly excessive, the appeal should be dismissed.
• [39] I would order that the appeal be dismissed.

[1] This is apparent from the transcript of the decision and the Magistrate's handwritten orders. The Verdict and Judgment Record erroneously records one month's disqualification. This should be corrected by the Registrar.

[2] Transcript of proceedings, page 1-11 lines 24-36, page 1-13 line 44 to page 1-14 line 3.

[4] Ibid, page 1-16 line 46 to page 1-17 line 5, page 1-11 lines 24-36.

[5] R v Watson [2021] 43 QLR, 8 [29].

[6] Transcript of decision, page 3, lines 25 to 28.

[7] [2021] QCA 151 [6].

[8] R v Jackson [2011] QCA 103 [25].

[9] [2022] QCA 18.

[10] [2022] QCA 25.

[11] R v Whitely [2021] QSC 154.

[12] R v O'Connor [2022] QCA 65.