Rongo v Commissioner of Police [2017] QDC 258

[2] The sentence imposed for the unlawful use charge was 18 months' imprisonment. The appellant had already served 117 days in custody and that was declared as time served under the sentence. Parole release was fixed at 18 July 2017. I am informed the appellant has been released on parole. The learned magistrate, with respect to the possession of the knife charge, convicted but did not further punish the appellant. It is clear from some of his Honour's remarks, which I will refer to, that his Honour was fixing, as it were, a head sentence, taking into account all of the criminality for the unlawful use charge. That approach would be consistent with the decision in R v Nagy [2003] QCA 175; [2004] 1 Qd R 63.

[3] The appellant was born in 1981. He was 35 at the time of the offences and he was 36 at the time of sentence. He has quite some criminal history. It starts in 1998 with charges dealt with in the Magistrates Courts for obstructing police and wilful damage. He breached probation in 1999. There were many property and drug offences dealt with up to 2003. Then a gap to 2010 when there were two entries in the criminal history. And then a gap to 2013, when there were six entries in the criminal history. He was then before courts in 2015 on four occasions and in 2016, once.

[4] He has been sentenced to imprisonment. There was a sentence of 12 months' imposed in 2015 at the Wynnum Magistrates Court for what appear to be drug charges and possession of property suspected of having been used in the connection with the commission of a drug offence. In 2016, the appellant was sentenced to imprisonment for three months, concurrently, for unlawful possession of suspected stolen property. He had been on parole, but had completed his parole when the relevant offences were committed. The appellant also has a traffic record which covers three pages.

[5] The grounds of appeal, according to the amended notice are:

1. that the sentencing discretion miscarried because of reliance placed on the circumstance of aggravation that was not charged, and
2. the sentence imposed is manifestly excessive in the circumstances.

[6] Briefly, the facts put before the court were that on 21 January 2017, another person whose name was Pagel, stole a motor vehicle at gun point at Slacks Creek at a service station. The appellant was not present. The person, Pagel, drove the car recklessly and at speed and was being pursued by a police helicopter. Pagel drove to Wynnum West in Brisbane and collected the appellant. The appellant was waiting to be picked up. He was seen by the helicopter police getting into the car. This was a pre-arranged appointment. At the time he got in the car, the appellant was holding what is described as "a large hunting type knife."

[7] Pagel then continued to evade police and drove dangerously in various ways, finally crashing the car. Pagel apparently ran away, but the appellant did not, and he was apprehended by the police. He was in possession of the knife. The appellant said to police words to this effect: "It wasn't me. I just thought we were going to bash someone."

[8] The appellant accepted that he should have reasonably known that the car was stolen. Pagel was carrying a sawn-off shotgun and apparently used it during the driving, but the appellant told police that he was not egging Pagel on and had asked him to slow down. The Prosecutor before the magistrate submitted that there were times when, if he wanted to, the appellant could have jumped out of the car. Appropriately, the magistrate did not make much of that.

[9] During submissions, the learned magistrate commenced on a theme which seemed to pervade the hearing all the way to sentence. His Honour noted that, although the appellant was not the one who was driving, he did hop into a car with the intention of committing a serious criminal offence.

[10] The learned magistrate made remarks such as: "He conspired to commit a serious criminal offence." While at the same time, his Honour was careful not to: "put too much of Pagel into this defendant's story."

[11] On the appellant's behalf, the learned magistrate was told that the appellant had had trouble with drugs use in the past, but was not, at the time of the offences, using drugs. He was, in fact, working full-time. It was the first time he had held a steady job and was earning good money. He completed grade 12 at Wynnum State High. He was the father of a 14 year old child whose birthday he missed when he was in custody.

[12] During the submissions, the learned magistrate remarked that the appellant was intent "on going to flog someone" and "It's almost like being a standover person." The submission made on the appellant's behalf was that he was likely, when he returned to the community from jail, to get his job again, and that he had real prospects of rehabilitation. His Honour seemed to know the appellant from earlier dealings with his bail and remarked, calling the appellant by his first name, "that when he did the right thing, generally, good things would happen."

[13] There is no doubt, from other remarks, that his Honour properly had in mind the principle of rehabilitation in sentencing and seemed to understand that the appellant was an educated person with capacity to live a useful life. But his Honour said, as compared with the appellant's criminal background that there was:

A change in the dynamics today because he has armed himself with a weapon and conspired with another to commit some serious crime involving physical violence or threat. That is where it gets serious. It is not like the previous property related offences.

[14] And still during submissions, his Honour said:

I think the concern, though, from the community's point of view, is the conspiracy - the criminal conspiracy relates to him arming himself with a weapon, hopping into a stolen vehicle with a view to carrying out the crime.

In regards to the knife, I am going to convict and not further punish you. The reason why I am doing that is because the whole essence of this sentence is related to the fact that you had armed yourself with a weapon. You elected to hop into a stolen vehicle. You became involved in a process where you believed that you were going to commit another offence against another person. That is the belief that motivated you to get into the car. The thing is that you engaged in this activity in circumstances where you have only just come off parole.

By hopping - that creating the intention to do what he decided to do, it aggravates his situation, because it takes it to another level, where the issue is related to some intention to personally harm or injure somebody.

[17] I have referred to the decision in Nagy. Relevantly, his Honour said:

In regard to the sentence, because I have convicted and not further punished you, I am going to convict and sentence you to 18 months' imprisonment. That is for the unlawful use of the motor vehicle.

[18] The appellant's submission, oral and in the outline of argument, based on the first ground of appeal, is that the learned magistrate erred by sentencing on the basis of what amounted to a circumstance of aggravation which had not been pleaded, namely that the use of the vehicle was for the purpose of facilitating the commission of an indictable offence (section 408A(1A)), which increases the maximum penalty to 10 years. Reference was made to the High Court decision in R v De Simoni (1981) 147 CLR 383 and R v White C.A. No. 92 of 1995.

[19] The submission for the appellant is that there was an error in the sentencing discretion, which led to a manifestly excessive sentence. In very short terms, the submission for the respondent is that it is unlikely the learned magistrate did make the error alleged and, in any case, the sentence is not manifestly excessive.

[20] The appeal is brought under section 222 of the Justices Act 1886. Subsection 222(2)(c) provides:

If a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.

[21] There has been a deal of case law about the type of appeal provided for in section 222 and, in particular, the effect of subsection 222(2)(c). Particularly useful is the short discussion by Dorney QC DCJ in Berner v MacGregor [2013] QDC 33.

[22] My view of it is that the purpose of that provision is to focus the appellate proceeding on whether the sentence imposed was excessive. Whether a sentence is "manifestly excessive" can be assessed against various criteria. They are collected neatly in R v Morse [1979] 23 SASR 98. King CJ, with whom the other two members of the court agreed, said:

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime; the standards of sentencing customarily observed with respect to the crime; the place which the criminal conduct occupies in the scale of seriousness of crimes of that type; and the personal circumstances of the offender.

[23] It seems to me, then, that the focus in this and many appeals brought to this court on attempting to demonstrate an error in the exercise of the sentencing discretion is not misguided but slightly misplaced. The real question is whether the sentence was excessive, so that, although the appellant may argue that the magistrate made a certain error, the success of the appeal does not depend on persuading the appeal court on that point. On the other hand, successfully demonstrating an error does not guarantee success of the appeal, because, in each case, the question is whether the sentence was excessive.

[24] Identifying a particular error might assist because it might explain why the sentence was excessive. And that is ultimately, as I understand it, the appellant's argument in this case.

[25] It might be that the learned magistrate did err, not necessarily by taking into account a circumstance of aggravation which was not pleaded nor admitted by the plea of guilty to the charge, but by focusing on some fairly dramatic features of the offending episode, for which the appellant was not to be sentenced. And it might be that that is why the sentence, in the end, was excessive, as I am satisfied it was.

[26] The charge of unlawful use that the appellant pleaded guilty to reduced to his getting into a car and being in it as a passenger, knowing that he was not permitted to use the car; being in the car while there was some wild and dangerous driving by Pagel, although he was not able to determine that; and not running away when the vehicle was finally crashed by the driver.

[27] The possession of the knife included that it was a large hunting knife. He was in possession in public, in the sense that he was in a car, and the purpose of the possession was relevant. It might be, on one view of it, that that is all the learned magistrate was talking about, the purpose of possession of the knife.

[28] Particularly with respect to the unlawful use, it seems to me that the offence that the appellant pleaded guilty to was low on the scale of seriousness of offences of its type. Possession of the knife was serious enough, but it was not an immediately dangerous possession.

[29] The appellant has the criminal history I have already outlined, but he also has the prospect of rehabilitation that the learned magistrate obviously recognised. In the circumstances, it seems to me that a sentence of 18 months for all of that criminality was excessive.

[30] To some degree, this is academic, because the appellant has already served the six months, and it is not submitted that that should have been reduced, but I am satisfied that the 18 months was excessive, and I vary the order made by the learned magistrate to 15 months' imprisonment, and that will be the order: that the appeal is allowed, the sentence is varied accordingly. Thank you both. Is there anything else that - in this matter?