Wagstaff v Commissioner of Police [2016] QDC 344

[3] The Court of Appeal in White v Commissioner of Police[1] conveniently summarised the principles that are applicable in dealing with an appeal under s 222 of the Act:

"The appeal brought by the applicant to the District Court under s 222 of the Justices Act was an appeal by way of rehearing, as provided for in s 223 of that Act. On such an appeal the District Court judge was required to make his own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate's view."

[4] The Court, later in that judgment, commented as follows:

"To succeed on such an appeal an appellant must establish some legal, factual or discretionary error."[2]

[5] These principles are consistent with those adopted by the Court of Appeal in Teelow v Commissioner of Police[3] as applying to appeals against the exercise of discretion.[4] In Teelow, the Court of Appeal was considering an appeal to the District Court against sentence.

[6] In an appeal against sentence, the appellate court will only interfere upon a demonstration of error. A distinction must be drawn between specific error and a conclusion that the sentence is manifestly excessive. The process was explained by the High Court in Kentwell v R:[5]

"In the case of specific error, the appellate court's power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence."

[7] In the more recent decision of Barbaro v R[6] the High Court stated:

"The conclusion that a sentence passed at first instance should be set aside as manifestly excessive... says no more or less than that some 'substantial wrong has in fact occurred' in fixing that sentence."

[8] This appeal will be determined in accordance with those principles.

[9] The offending occurred on two occasions separated by several hours in time. On the afternoon of 13 July 2015, the defendant was found trespassing at the driver training area at the Queensland Police Service Academy. He appeared agitated and at times had an aggressive demeanour. He claimed to be chasing Pokémon.

[10] Just after midnight on 14 July 2015, the complainants were woken from their sleep when the appellant smashed in their front door and entered their home. Mr Mant and his wife and children aged 8 and 10 were confronted by the appellant running up the internal staircase. He was acting aggressively and grabbed two pictures from the wall of the staircase and smashed them on the stairs. He yelled at the male complainant, inviting him to fight. The appellant then went into the lounge area of the house, where he rifled through papers on a table, continuing to challenge Mr Mant to fight him. He appeared affected by a drug. He said: "It can't be rape because you have kids, so let's go outside." The complainant was asking him to leave. The appellant then said "they are on their way", referring to the police and left by the front door.

[11] Counsel for the appellant, in submissions to the learned Acting Magistrate, characterised his behaviour as "blustering around once inside" and said "once he's realised that he didn't want to be there any further, he, on his instructions, has apologised and left the house and waited for the police."

[12] The complainants called 000 and at approximately 00:06am, the police were detailed to attend the address. They arrived there at 00:16am. The appellant was located on the street outside. He invited the police to fight saying "let's do this, come on, take me on" and approached them with clenched fists. When police sought to take him into custody, he struck out with his fists towards an officer. Capsicum spray was then used and three officers managed to restrain him.

[13] The complainant's mother lived in the same street. He went to her house earlier that evening but was not allowed in because of his behaviour and remained in the front yard for several hours before walking off down the street.

[14] The learned Acting Magistrate was advised by counsel that the appellant suffered severe pain from a back injury and had been depressed. It was conceded that he had taken ice prior to these events but was said not to be a regular ice user or an addict. It was submitted that the appellant's reaction to ice on this occasion was different to previous experiences and that his conduct was out of character.

[15] The prosecutor submitted that no error had been demonstrated and that the appeal should be dismissed.

[16] The appellant alleges there were a number of specific errors of law and fact on the part of the sentencing Acting Magistrate and in addition submits that the sentence is excessive. Counsel for the appellant contends for a head sentence of six to 18 months with an immediate suspension or immediate release upon parole.

[17] I will first address the submissions on whether there has been specific error, before turning to consider whether the overall sentence was excessive.

[18] The appellant contends that the learned sentencing Acting Magistrate failed to place sufficient weight upon his desisting of his own volition, and leaving the dwelling to wait for the police arrival. Particular reliance is placed upon a mistake by the Acting Magistrate as to how the defendant was located by police. The learned Acting Magistrate acknowledged in her remarks that the appellant voluntarily walked out of the dwelling but said that when police arrived they located the defendant with the assistance of a police dog. Although a dog handler arrived first, the facts as set out in the schedule state the appellant was located "outside number 13 on the street, next to Brolga Street". The complainant's house was number 13.

[19] Counsel brought the error regarding location of the defendant to her Honour's attention immediately following delivery of the sentence. Her Honour said:

"I accept that, Mr Sibley... it does not impact on my sentence. I am satisfied, given the facts and circumstances - given the other decisions that you referred me to and that the Court of Appeal has referred to, that my decision of two and a half years stands."

[20] The appellant submits that the Acting Magistrate's mistake in this regard supports a contention that she failed to give sufficient weight to the appellant's conduct at the point in time when he left the residence. Counsel characterised the appellant's conduct as demonstrating "remorse and mitigation immediately in handing himself in to the police"[7] and demonstrating "a clear intention to co-operate and to, effectively accept responsibility for what occurred."[8]

[21] The sentencing Court was entitled to reject those submissions. It is conceded that the appellant was affected by ice. His intrusion into the house was accompanied by his inviting the male complainant to fight him outside, and he only left after he was made aware that the police had been called and then aggressively confronted the police upon their arrival. Counsel submitted the defendant said he was sorry before leaving. Although that seems inconsistent with the other facts before the Court, it was not contested by the prosecution. While it must be accepted that he said he was sorry, that must be viewed in the context of the other behaviour I have outlined. Considered overall, the conduct is hardly that of a remorseful, co-operative and compliant person. Whether he was found in front of the house or close-by in the neighbourhood is not of great moment in this context.

[22] I do not discern any specific error in the learned Acting Magistrate's approach on this topic.

[23] The appellant submits that the learned Acting Magistrate erred in concluding that he was in the residence for "more than 10 minutes". Those words are not from the Acting Magistrate's conclusions but from words used by Mrs Mant in a passage from her victim impact statement which was quoted by her Honour.

[24] It was also submitted that the Acting Magistrate was not entitled as a matter of law to rely upon facts in the victim impact statement and that reference to "more than 10 minutes" was inconsistent with the schedule of facts advanced by the prosecution.

[25] The claim the appellant was in the house for more than 10 minutes does not appear to be significantly out of line with the facts stated in the schedule. Police were detailed at 00:06 am. The 000 call must have preceded that. The entry through the front door must have preceded the call. On the complainant's account the appellant's presence involved, after his initial entry, his going into the lounge room, rifling through papers and making repeated threats to the complainant. This is consistent with a presence in the house over several minutes. The first police officer arrived at 00:16 hours and by that time the appellant was outside the house. It seems to me that this evidence is not necessarily inconsistent with the appellant at least having been in the house for a period approaching 10 minutes. In R v Evans; R v Pearce[9] the President, having set out the relevant statutory provisions, concluded:

"It follows from these provisions that sentencing courts may accept allegations of fact in victim impact statements which are admitted or not challenged (s 132C(2) Evidence Act). If the allegation is not admitted or is challenged, the judicial officer may act on it if satisfied on the balance of probabilities it is true (s 132C(3)), the degree of satisfaction varying according to the consequences adverse to the prisoner of finding the allegation to be true (s 132C(4))."

[26] Counsel for the appellant did not challenge the passage in the victim impact statement referring to "more than 10 minutes" when it was tendered. Counsel merely submitted the appellant was in the house for "a very short period of time". The reference to 10 minutes does not seem to me to be inconsistent with that submission.

[27] Although the sentencing Acting Magistrate set out excerpts from the victim impact statement in her sentencing remarks, her Honour immediately went on to say:

"These are strong sentiments. It is important, however, that they be seen in a context of what is permissible under the law. It is an accepted principle that the effect of the crime on the victim is a factor relevant to the exercise of the sentencing discretion, but not the victim's view about the appropriate sentence. These statements may benefit the victim in terms of catharsis, vindication, and meaningful input in relation to the sentencing decision, however, whatever might be the psychological benefit, its primary function is not restorative but informational in bringing to the court's attention details of injury, loss, or damage suffered as a consequence to the crime."

[28] In my view, her Honour was entitled, if indeed she gave any weight to the passage in the female complainant's victim impact statement referring to "more than 10 minutes", to an act upon that as statement of fact. However, that information did not add to or vary in any significant way the other facts already before the Court and could have had no relevant impact upon the sentencing decision. In all the circumstances no specific error is demonstrated.

[29] In the course of making sentencing submissions, the police prosecutor submitted a head sentence of 30 months imprisonment should be imposed. The appellant, citing Barbaro v the Queen[10] argued that it was not a proper role for the prosecutor to submit for a range or specific sentence. The appellant's reliance upon the decision in Barbaro overlooked a subsequent Queensland amendment to the Penalties and Sentences Act. Section 15(1) provides:

"In imposing a sentence on an offender, a court may receive any information, including a report mentioned in the Corrective Services Act 2006, section 344, or a sentencing submission made by a party to the proceedings, that it considers appropriate to enable it to impose the proper sentence."

[30] The term "sentencing submission" is defined as meaning a submission stating the sentence, or range of sentences, the party considers appropriate for the court to impose. While the court, having regard to the comments of members of the High Court in Barbaro, ought to exercise discretion in accepting prosecution submissions on specific sentences, s 15 of the Penalties and Sentences Act permitted the learned Acting Magistrate to receive the submission.

[31] The further submission that the Acting Magistrate, in imposing sentence, was "guided unduly by the prosecutor" seems to be merely based on the coincidence between the prosecutor's submission and the eventual sentence. This is an unjustified leap in reasoning, given that the Acting Magistrate made a comment apparently agreeing with counsel's criticism of the prosecutor's submission and later specifically sought and considered Court of Appeal authority before delivering sentence. The submission that specific error was demonstrated in this regard cannot be accepted.

[32] Counsel sought to identify other specific sentencing errors which in my view were similarly based on unsupported assumptions as to the Magistrate's reasoning.

[33] Firstly, it was submitted that her Honour erred by not making a specific finding of dissimilarity between a prior conviction and the subject offences. The logic of why this would have operated to the disadvantage of the appellant is not immediately apparent to me. Counsel sought to minimise the seriousness of the earlier offence in submissions before me. However, that offence was one of burglary where the appellant, after engaging in a fight with a man, pursued him to his home, broke in and assaulted him there and did property damage within the house. He received a sentence of two years' imprisonment with parole set after an effective eight months in custody. The sentencing Court clearly viewed it as a serious offence.

[34] While the defendant's motivation for offending varied from that in the subject offence, in my view it was a highly relevant previous conviction that her Honour was obliged to take into account as aggravating the offence.

[35] Secondly, it is submitted that the judicial officer fell into error in determining that a term of actual custody was required. It was submitted that that comment indicated her Honour failed to have regard to s 9(2)(a) of the Penalties and Sentences Act. That paragraph reads:

"In sentencing an offender, a court must have regard to -

(i) a sentence of imprisonment should only be imposed as a last resort; and

(ii) a sentence that allows the offender stay in the community is preferable."

In the course of long and detailed sentencing remarks and after stating all the matters taken into account, her Honour said:

"As well as having regard to the circumstantial and causal criteria, I make the following observations. If I chose punishment as the just and effective option, it should be for no longer, or no shorter, than necessary. Applying these purposes and principles to this case, a period of actual custody is called for."

Contrary to the submission, it seems to me that her Honour, in specifying that actual custody was called for, was in all likelihood addressing the requirement in s 9(2)(a) rather than ignoring it. This is particularly so given that a review of comparable sentences supports a view that imprisonment with a period of actual custody is clearly within range. Counsel relied on a passing reference to violence by her Honour in support of an argument that the judicial officer had applied the provisions of s 9(2A) of the Penalties and Sentences Act when concluding that actual imprisonment should be imposed. It is correct that physical harm or personal violence did not occur and therefore s 9(2A) does not apply. However, both threatened violence and property violence did occur and there is no reason to assume that her Honour's passing reference to violence referred to more than that. A specific error is not indicated.

Finally, it is submitted that the Acting Magistrate did not give sufficient weight to the appellant's rehabilitation and good future prospects. Her Honour specifically referred in some detail to personal mitigating factors including the appellant's supportive partner, his visits to a psychologist and his remorse. Her Honour specifically said that she took those mitigating factors into account. No specific error is shown.

[36] None of the specific errors of law and fact that the appellant contended for have been established.

[37] I turn now to the question of whether the sentence itself should be considered so excessive as to demonstrate the presence of error.

[38] The appellant contends that the sentence of two and a half years with parole set eight months from the date of sentence was excessive in all the circumstances.

[39] Unfortunately, the learned Acting Magistrate was given little assistance with regard to sentencing comparatives. The police prosecutor failed to provide any comparative decisions. Defence counsel criticised the prosecutor for failing to do so but advised the Court that there were no cases he could put before the court which were of like circumstances. He only placed three District Court decisions before her Honour.

[40] Before me the prosecutor referred to R v Schmidt[11] and counsel for the appellant once again referred to District Court decisions.

[41] Schmidt was sentenced to 30 months imprisonment with release after nine months of actual custody. His offending involved forced entry of a dwelling in company with another and the causing of substantial property damage. The circumstances were moderately more serious than the present case because they included a minor personal assault when he pushed the complainant aside at the door. Property damage was more extensive. In addition, Schmidt acted in company. Importantly, he had a substantial criminal history which was somewhat more serious than the appellant's.

[42] The learned sentencing Acting Magistrate, as a result of her own research, referred to R v Woodman.[12] That case contains a helpful review of earlier Court of Appeal sentences for home invasion type offences. Woodman was 22 years of age and had no prior criminal history. He and another broke into the complainant's house, punching him and threatening him with an axe handle. Their behaviour was clearly pre-mediated and involved personal violence in company, placing it in a more serious category than the present facts. The sentence of 18 months' imprisonment with parole set after six months was upheld. The lesser sentence reflects the defendant's youth and lack of criminal record.

[43] The Court of Appeal has commented in a number of cases upon the seriousness with which home invasions should be viewed. In R v Wentt[13] Thomas J said that offences involving break-in of homes and threatening the safety of persons therein are to be regarded as sufficiently serious as to demand custodial sentences even in the cases of persons of previous good character. In R v Boyd[14] Fraser JA said that a court must take a serious stand against home invasions and there is a strong need for deterrence.

[44] Nevertheless, actual custody will not be justified in every case. In R v Denham[15] a sentence of 12 months' imprisonment by way of intensive correction order combined with six months' imprisonment wholly suspended for an operational period of three years was upheld. McMurdo P observed that a custodial sentence of eighteen months to two years imprisonment suspended after some months was within range. However, in the circumstances of that case, where the 32 year old offender had been motivated by concern for the safety of his young child and had demonstrated potential for rehabilitation, supervision in the community was seen to be justified. A relevant factor in the sentence was that parole at that time could not be ordered for a sentence of less than two years' imprisonment.

[45] The burglary charge with a circumstance for aggravation attracts a maximum penalty of life imprisonment. In determining sentence, regard should be had to the appellant's aggressive behaviour while under the influence of a voluntarily consumed drug. He smashed the deadlock to the complainant's home, entered and there threatened the male occupant, calling upon him to fight. He caused some property damage within the home and only left when he knew the police were coming. He then resisted arrest. The victim impact statements indicate the extent to which the complainants and their children were terrified by the intrusion and it has had a continuing negative impact upon all members of the family. The offending must be viewed seriously. Nevertheless it lacks some of the aggravating features seen in comparable cases. There was no vigilante conduct and no actual personal violence. The behaviour falls into a less serious category of behaviour than that in cases like Schmidt or Woodman.

[46] A significant aggravating feature is the appellant's criminal history. He was sentenced to two years' imprisonment with an effective eight months of actual custody for the offence of burglary in 2013. Earlier in 2013 he was convicted of drug charges. In 2008 he was convicted of common assault and had other drug convictions. At 34 years old he is relatively mature. This distinguishes the present case from Woodman where the offender was 22 with no prior criminal convictions.

[47] That the appellant has sought psychological help and attended on 10 occasions is a relevant mitigating factor. Unfortunately no psychological report was provided to the Court to indicate the success of his therapy but his mere attendance indicates the potential for rehabilitation. His general practitioner states that he believes he is genuine in his efforts to cease using illicit substances and is actively working towards that goal. Obviously the appellant's involvement with illicit drugs, which is apparent from his criminal history, is a hurdle he will have to confront in order to stay out of trouble. He would benefit from a period of supervision following his release from custody.

[48] Information was placed before the Court at sentence that the appellant had served 22 days of pre-sentence custody. That period of custody already served must be taken into account when sentencing. As there was another offence outstanding but not dealt with at the time of sentence, I have proceeded on the basis that the requirements of s 159A of the Penalties and Sentences Act do not apply.

[49] Having regard to all those matters, a sentence is called for which is less than that imposed in Schmidt. In my view, the head sentence of 30 months imposed here is out of line with the Court of Appeal authorities. That is even more obvious when the period of 22 days pre-sentence custody and fines of $700 are taken into account. The sentence imposed by the learned Acting Magistrate is so out of line as to be indicative of error.

[50] I am satisfied the sentencing discretion miscarried and therefore it now falls to this Court to sentence afresh.

[51] In my opinion, a sentence in the order of eighteen months to two years imprisonment is indicated. Taking into account the pre-sentence custody and having regard to the appellant's indications of remorse and efforts at rehabilitation, a sentence at the bottom of that range should be imposed. A period of actual custody less than the usual one third following a plea of guilty should be allowed in recognition of the appellant's pre-sentence custody and potential for rehabilitation in the community. His parole release date will be set as 11 February 2017 which is an effective period of four months and 3 weeks custody. The sentences on the other charges and the order for restitution will not be disturbed.

2. The sentence on the charge of burglary is varied by imposing a term of 18 months' imprisonment in lieu of the term of two years and six months.

3. The date the appellant is to be released on parole is varied by substituting 11 February 2017 for 9 June 2017.

4. The remaining orders of the Magistrates Court are not disturbed.

[1] [2014] QCA 121 at [6].

[2] White v Commissioner of Police [2014] QCA 121 at [8].

[3] [2009] QCA 084.

[4] Applying House v R (1936) 55 CLR 499 at [504] - [505].

[5] (2014) 252 CLR 601; [2014] HCA 37 at [35].

[6] (2014) 253 CLR 58; [2014] HCA 2 at [27].

[9] [2011] QCA 135 at [7].

[10] [2014] HCA 2.

[11] [2003] QCA 287.

[12] [2012] QCA 236.

[13] [1995] QCA 613.

[14] [2000] QCA 8.

[15] [2003] QCA 74.