Russell v Commissioner of Police

SUPREME COURT OF QUEENSLAND

CITATION: Russell v Commissioner of Police [2008] QCA 210

PARTIES: DARREN KEITH RUSSELL (applicant/appellant) v COMMISSIONER OF POLICE (respondent)

FILE NO/S: Appeal No 64 of 2008 / DC No 45 of 2007

DIVISION: Court of Appeal

PROCEEDING: Application for leave s 118 DCA (Criminal)

ORIGINATING COURT: District Court at Rockhampton

DELIVERED EX TEMPORE ON: 29 July 2008

DELIVERED AT: Brisbane

HEARING DATE: 29 July 2008

JUDGES: McMurdo P, Mackenzie AJA and Dutney J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: The application for leave to appeal is dismissed

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where applicant pleaded guilty to breach of a domestic violence order – where applicant sentenced in the Magistrates Court to 3 months imprisonment wholly suspended for a period of 2 years – where applicant was arrested the day after sentence for breach of bail and domestic violence order – where applicant then sentenced to 9 months imprisonment including the 3 month term of imprisonment previously wholly suspended – where applicant only required to serve 4 months of that 9 month sentence – where applicant was released on bail pending appeal to the District Court – where District Court dismissed appeal – whether sentence imposed by Magistrate was within the range of sound sentencing discretion

COUNSEL: No appearance from the applicant / R G Martin SC for the respondent

SOLICITORS: No appearance from the applicant / The Department of Public Prosecutions (Qld) for the respondent

DUTNEY J: Darren Keith Russell seeks leave to appeal against a decision of the District Court affirming a sentence of imprisonment imposed by a Magistrate on the 4th of May 2007. On the 2nd of May 2007 Mr Russell pleaded guilty to and was convicted of a number of offences in the Magistrates Court at Rockhampton.

The offences included breaching a domestic violence order imposed on the 6th of May 2005 and varied on the 25th of October 2006. Mr Russell was sentenced to an effective term of 3 months' imprisonment which was wholly suspended for a period of 2 years.

On the 3rd of May 2007 Mr Russell was arrested for breaching the same domestic violence order and for breaching a condition of his bail in relation to other offences. Both breaches were constituted by Mr Russell having contact with the complainant in whose favour the domestic violence order had been made.

On the 4th of May 2007 Mr Russell pleaded guilty to both new offences before the same Magistrate. He was convicted and sentenced to a period of 6 months' imprisonment. In addition Mr Russell was required to serve the 3 months term of imprisonment imposed but suspended 2 days earlier.

This latter term was made cumulative on the sentence for the 3rd of May offences resulting in an overall sentence of 9 months' imprisonment. A parole release date was fixed at 4th of September 2007. Mr Russell was thus required to serve 4 months' actual imprisonment before being released on parole.

Mr Russell was released on bail pending the hearing of his appeal to the District Court. The decision of the District Court dismissing his appeal was handed down on the 5th of March 2008 and a new parole release date of 30th of March 2008 fixed. This represented the balance of the 4 month period of actual imprisonment then unserved. That sentence has now been served. The period of Mr Russell's parole will end on the 31st of August 2008.

Briefly the facts placed before the Magistrate by the Prosecutor were that Mr Russell was observed by police officers to be hiding in the back of a car driving out from the kerb. The complainant was the driver. The complainant told police officers that Mr Russell attended at her premises that morning with another male person. The complainant said she was scared of Mr Russell and, upon being asked to drive him about Rockhampton, agreed. At some point she had dropped him off.

Just prior to being intercepted by police she had visited a store across the road from the Centrelink office. Mr Russell had then come running across the road and got into her vehicle.

The solicitor representing Mr Russell before the Magistrate gave a somewhat different version of events. She informed the Court that her instructions were that the complainant approached Mr Russell at the Centrelink office and offered him a lift. The complainant had attempted suicide on two occasions during the previous fortnight. Mr Russell was concerned about the complainant's reaction if he refused the lift offered. He was unaware that accepting the lift was a breach of the domestic violence order or of his bail conditions. He had also not sought any contact with the complainant.

The Magistrate was also urged to take into account the early plea of guilty. At the time of the sentencing in the Magistrates Court Mr Russell was 37 years of age, single and unemployed.

In dismissing the appeal in the District Court reference was made to the fact that the version of facts offered by Mr Russell's solicitors did not address the contact earlier in the day prior to the contact at the Centrelink office.

In his sentencing remarks the Magistrate did not identify which version of the facts was accepted. Mr Russell represented himself in the District Court.

Plainly the most serious aggravating feature of this matter was the imposition of the suspended term of imprisonment for the same offence on the previous day. In sentencing Mr Russell on the 2nd of May 2007 the Magistrate stressed the consequences of failing to comply with the conditions of the suspension. It could not be imagined that Mr Russell was unaware of those consequences particularly as he was represented by a competent and experienced criminal solicitor.

No complaint has ever been made about the 3 months' imprisonment imposed on the 2nd of May 2007. No serious argument could be advanced that it was not within the range of a sound sentencing discretion to invoke the whole of the suspended for a breach constituted by the commission of an identical offence within 24 hours.

Further, the effect of the imposition of a further 1 month actual imprisonment for the breaching offences could hardly be complained of irrespective of whose version of the facts was accepted. That leaves only the additional 5 months on parole.

On Mr Russell's version of the facts a sentence of 6 months' imprisonment might at first blush seem harsh. When regard is had to the particularly aggravating feature of the conviction the previous day, and to the fact that 5 of the 6 months would be served on parole, it seems to me not to be outside the range of a sound sentencing discretion.

One of the proposed grounds of appeal was that neither the Magistrate nor the District Court Judge took into account the period of time that Mr Russell had spent on bail and that being on bail was itself a punishment. There is no substance in that argument.

Further, irrespective of the views I have expressed about the sentence itself, since the custodial portion of the offence has already been served, and no particular feature such as would make it necessary in the interests of justice to revisit the sentence has been identified, I would not consider this an appropriate case in which to grant leave to appeal. I would dismiss the application for leave to appeal.

THE PRESIDENT: I agree.

MACKENZIE AJA: I agree.

THE PRESIDENT: The order is the application for leave to appeal is dismissed.