DISTRICT COURT OF QUEENSLAND

CITATION:	Turnbull v Commissioner of Police [2016] QDC 36	
PARTIES:	JOSHUA MARK TURNBULL 
(appellant) 
v 
COMMISSIONER OF POLICE 
(respondent) 	
FILE NO/S:	1757/15	
DIVISION:	Civil 	
PROCEEDING:	Section 222 appeal 	
ORIGINATING COURT:	Magistrates Court, Toowoomba 	
DELIVERED ON:	3 March 2016	
DELIVERED AT:	Brisbane 	
HEARING DATE:	19 February 2016 	
JUDGE:	Butler SC DCJ 	
ORDER:	Appeal dismissed	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE –whether the sentence is manifestly excessive – whether the sentencing Magistrate took into account plea of guilty – whether the sentencing Magistrate took into account the totality principle 	
COUNSEL:	T. L. Laing for the appellant 
M. L. Mitchell for the respondent 	
SOLICITORS:	Legal Aid Queensland for the appellant 
Office of the Director of Public Prosecutions (QLD) for the respondent 	
[1]	On 9 April 2015 the appellant was convicted on his own pleas of guilty of six offences committed between 7 and 10 March 2015: entering premises and committing indictable offence by breaking, unlawful use of a motor vehicle intended for indictable offence, unlawful use of a motor vehicle, receiving tainted property and two charges of stealing.  In addition, the defendant pleaded guilty to obstructing a police officer on 31 March 2015. 
[2]	The defendant was convicted but not further punished on the charge of obstructing police.  A sentence of 12 months’ imprisonment was imposed on each of the other counts to be served concurrently with each other but cumulatively on a previous sentence of 24 months’ imprisonment that had been imposed by the Toowoomba Magistrates Court on 5 December 2014.  The parole eligibility date was set as 9 February 2016.  
[3]	The appellant appeals under s 222 of the Justices Act 1886 against the sentence on the ground that the sentence is manifestly excessive in all the circumstances. 
The test to be applied on appeal 
[4]	The Court of Appeal in White v Commissioner of Police conveniently summarised the principles that are applicable in dealing with an appeal under s 222 of the Justices Act 1886: 
“The appeal brought by the applicant to the District Court under s 222 of the Justices Act 1886 was an appeal by way of a 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 and issues from the evidence, giving due deference in attaching a good deal of weight to the Magistrate’s view.” 
[5]	The judgment continued as follows: 
“In the appeal to the District Court, s 223 of the Justices Act provides for a rehearing on the evidence given at trial, and any new evidence produced by leave.  That is a rehearing, in the technical sense consisting of a review of the record of the proceedings below it, rather than a completely fresh hearing.  To succeed on such an appeal an appellant must establish some legal, factual or discretionary error.”
[6]	 Those principles are consistent with the principles adopted by the Court of Appeal in Teelow v Commissioner of Police as applying to appeals against an exercise of discretion.  In Teelow the Court of Appeal was considering an appeal to the District Court against sentence.  
The appellant’s submissions 
[7]	The appellant submits that the sentence imposed is manifestly excessive and that the learned Magistrate erred in arriving at that sentence. 
[8]	In support of the submission that the sentence imposed is manifestly excessive the appellant relies on a number of matters.  Firstly, it is submitted that the learned sentencing Magistrate failed to have regard to the mitigating effect of the pleas of guilty.  Secondly, that his Honour failed to consider the effect of cumulative sentencing on the totality of the sentence imposed.  It is submitted that the head sentence is crushing and manifestly excessive in the circumstances and the sentence fails to reflect any discount for an early guilty plea. 
[9]	The appellant submits that this court should set aside the Magistrate’s order and instead order that the 12 month term of imprisonment be served concurrently with sentences imposed on 5 December 2014.  Further, it is submitted that the parole eligibility date should be set at approximately one third of the sentence.
The respondent’s submissions 
[10]	The respondent submits that the sentence of 12 months imposed cumulatively upon the sentence of two years was not disproportionate to the overall criminality of the appellant’s offending.  This, it is submitted, is particularly so since the appellant had been on parole for only some five weeks at the time he reoffended.  Furthermore, it is submitted that the setting of the parole eligibility date at the halfway mark of the total period of imprisonment of three years was a valid order and, in the circumstances of this case, an appropriate order.  It is submitted that while his Honour could have structured the sentence differently no error emerges from the way in which he did choose to sentence. 
Taking the plea of guilty into account
[11]	The appellant’s submissions acknowledge that his Honour in his sentencing remarks recognised that there had been an early plea of guilty.  However, it is submitted that the setting of the parole eligibility date at half way and the imposition of a cumulative sentence show that no discount was given for the early pleas of guilty. It is argued that the learned sentencing Magistrate did not expressly state any benefit given for the guilty plea and did not mitigate the head sentence in any way.  
[12]	Two comments in the sentencing remarks have been relied upon by the appellant.  Firstly, his Honour indicated that it was usually his practice to set parole eligibility around about half way “particularly where offences are committed whilst on parole”.  This was said in response to a submission that parole eligibility should be set at a third of the sentence.  It is submitted that failure to set the eligibility date at one third of the sentence was indicative of no discount having been allowed. 
[13]	 Section 13 of the Penalties and Sentences Act 1992 requires a plea of guilty to be taken into account.  If the sentence is not reduced on that account reasons must be given for not doing so. The Magistrate’s comments clearly indicate he took the plea of guilty into account. If he then discounted the sentence due to the plea he would comply with the section.  The section only requires reasons to be given if a reduction is not granted. The reasons do not mention whether, having taken the guilty plea into account, the learned Magistrate granted a discount.  Whether that happened must be discerned from the sentence imposed.
[14]	A further comment by the learned Magistrate that three years is “the extent of the jurisdiction insofar as the Magistrates Courts are concerned” is relied upon in support of the submission there was no discount in the head sentence.  Although the reasoning behind this submission was not clearly articulated, it seems to be suggested that as three years was the maximum the Magistrate could impose, he could therefore only discount the head sentence by imposing a sentence below the three year maximum. 
[15]	This submission appears to be based on a misunderstanding of the effect of ss 552D and 552H of the Criminal Code.  The Court of Appeal considered the meaning of that section in GAF v QPS.  Justice Lyons, the other members of the Court agreeing, adopted a Crown submission that the provision is not about changing maximum penalties for offences but merely limits the penalties magistrates can impose for indictable offences.  This section requires the magistrate to consider what the appropriate range is for a particular offence by reviewing comparable decisions and to be satisfied that the appropriate penalty is imprisonment for three years or less.  Her Honour went on to say: 
“The applicant essentially submits,… that once the magistrate has made the determination of the appropriate sentence, he then discounts it down because the maximum penalty he can impose is one of three years.  Such an approach is clearly erroneous and was rightly rejected by the learned Judge.”
[16]	In my opinion, neither comment relied upon is, of itself, indicative of error on the part of the learned Magistrate.   In order to determine whether a discount of either the head sentence or parole eligibility was given it is necessary to carefully consider the sentence actually imposed. 
The sentence imposed 
[17]	The appellant was sentenced in the Toowoomba Magistrates Court on 5 December 2014 for a number of offences.  He received a head sentence of two years’ imprisonment.  A period of 119 days (from 9 August 2014 to 5 December 2014) was declared as time already served, giving the appellant a full time release date of 8  August 2016.  A parole release date of 5 February 2015 was set.  
[18]	When the appellant was released on parole on 5 February 2015 he had served approximately six months in custody, being the four month period served prior to sentence and a further two months post sentence.  He was in the community on parole a little over a month when on 8 March 2015 he reoffended.  However, he was not apprehended until early April 2015 and served only two days in custody before being sentenced in the Toowoomba Magistrates Court on 9 April 2015 for the subject offences. 
[19]	In sentencing the appellant to 12 months’ imprisonment cumulative upon the term of two years’ imprisonment imposed on 5 December 2015 his Honour said: 
“In respect of each of the charges – not the assault on the police, who have stood aside – but for all other charges, you will be convicted and sentenced to a period of 12 months’ imprisonment, from today.  All that will be served concurrently with each other, but the 12 months will be cumulative with your 24.…so you’ve got three years all up and that’s the extent of the jurisdiction as far as the Magistrates Courts are concerned.  As to a parole eligibility date, I set a parole eligibility date, as far as you are concerned, roughly as a half: 9th day of February 2016.  You can apply for parole on that date.”
[20]	The sentence constituted, when considered in conjunction with the earlier sentence, a total of three years’ imprisonment, but the effective additional penalty for the subject offences was two years and four months’ imprisonment.  
[21]	The full time release date on the two year sentence was 9 August 2016.  The cumulative sentence was 12 months from that date- 9 August 2017.  Therefore, the full time release date imposed for the subject offending was 28 months from the date of sentence on 9 April 2015. 
[22]	His Honour was obliged by statute to set a parole eligibility date which he set at 9 February 2016.  That date is ten months from the date of sentence.  That represents parole at only slightly over one third of the period to be served from the date of sentence.
[1]	 It is therefore necessary to ask whether the term of two years and four months with parole set at a little over a third exceeded what was appropriate for the subject offending in all the circumstances. 
[2]	A sentencing magistrate must review each component of a sentence to ensure that the overall sentence is “just and appropriate” in all the circumstances.  Special care is required in the case of cumulative terms of imprisonment to ensure that the sentence is not disproportionate to the offender’s overall criminality and does not stifle prospects of rehabilitation.  However, in the case of a period of imprisonment comprised of an existing term and a new cumulative term imposed for offences committed whilst on parole, it may be appropriate to set the parole eligibility at or beyond the midpoint of the overall term.  It was explained in R v Herbert that: 
“One reason why there can be no general rule in this kind of case is that the midpoint of the total period will vary according to the relative length of the terms which make up the total period.  Another reason is that by the time of the second sentence, the prisoner will have served part of the first sentence on parole.  It is also relevant to note that the requirement to serve the remainder of the original sentence in prison flows primarily from that sentence rather than from the subsequent sentence.”
[3]	In my view, the period of six months custody and one month parole already served under the earlier sentence prior to the reoffending is of less significance then the period remaining to be served.  That period of actual imprisonment was determined by the original court as necessary punishment for the earlier offending.  Nevertheless that period of custody will still be considered when assessing if the overall sentence was disproportionate to the total criminality.
The offending
[4]	On 8 March 2015 offenders jemmied open a window to a shipping container being used as a temporary office for a Toowoomba car yard.  They stole ten sets of vehicle keys from the container.  A new BMW Station Wagon and a Toyota Prado Station Wagon were removed from the car yard using those keys.  It is not alleged that the appellant was involved in that offending.  His convictions relate to the subsequent use of those two vehicles.  
[5]	The appellant was convicted of receiving the BMW Station Wagon and its keys and of unlawfully using it and of stealing diesel fuel to refuel the BMW.
[6]	On 8 March 2016 the Toyota Prado was used in a ram raid on the Malouf Pharmacy in High Street Plaza, Toowoomba.  The appellant was sentenced on the basis he travelled in that vehicle to the chemist shop where he got out to act as the lookout.  A male and a female associate drove the vehicle through the front doors of the pharmacy causing extensive damage.  The appellant then entered the shop with the other male and searched through the office area.
[7]	The property damage to the pharmacy was $20,636 and damage or loss of value to the vehicles totalled $11,000.  
[8]	Prior to all these events on the afternoon of 6 March 2015 the appellant along with two other men stole two bottles of oil from a service station.  Stolen fuel and oil was valued at $144.
Antecedents
[9]	The appellant was 24 years of age at the time.  His adult criminal offending commenced in 2008.  His criminal history contains a total of six convictions for assault occasioning bodily harm, and multiple convictions for wilful damage, common assault and public nuisance.  Drug offences appear in 2014.  In that year he was also convicted of entering premises and committing an indictable offence.  
[10]	Since 2008 he has been given the benefit of probation and community service but breached both.  He was first sentenced to imprisonment in 2010 and in 2011 served five months in actual custody.  Further sentences of imprisonment were imposed in 2011, 2012 and 2014.  The most recent prior offending was an assault occasioning bodily harm for which he was sentenced to 24 months’ imprisonment on 5 December 2014.
[11]	On his behalf it was conceded the appellant has a problem with drugs.  He used ice, morphine and heroin for the past 15 months, having turned to those after the death of his mother two years earlier.  Prior to that he held down employment with a scaffolding business, with Main Roads and with Thiess in the mining industry.  
[12]	The appellant entered an early plea and it was submitted that this demonstrated remorse.
Comparable sentences
[13]	Both counsel said they had experienced difficulties in locating comparable Court of Appeal sentences. 
[14]	The Court of Appeal in R v Tsiakas substituted sentences of three years’ imprisonment to be served cumulatively upon the 14 month activation of a suspended sentence.  The 29 year old applicant, who had pleaded guilty, had an extensive criminal history for property and other offending.  The offences for which he was sentenced involved in most cases entering premises and stealing and in one case setting fire to a vehicle.  One count involved using a stolen vehicle to break open a door of a newsagency.  The lost property value was $6,290.  
[15]	The offences were committed while on a partially suspended sentence for similar offences.  On that earlier occasion he was sentenced to five years’ imprisonment.  Twenty months was served leaving 14 months as the suspended portion.  The ultimate sentence imposed by the Court of Appeal totalled six years and four months.  For a number of reasons this was a much more serious case than the present.
[16]	A number of District Court decisions were referred to in support of the sentence imposed by the learned Magistrate.  Those decisions involved head sentences of three to four years’ imprisonment for property offending which included breaking into business premises.
[17]	In one of those District Court decisions there was reference to the Court of Appeal decision in R v Bryant.  In that case the reasons for judgment emphasised:
“The importance of the total value of what is stolen, as well as the impact that a prior criminal history has, upon a choice between (on one hand) a sentence intended to effect a strong personal deterrent, or (on the other) a sentence intended to encourage and assist in rehabilitation.”
[18]	In Bryant the court substituted a sentence of four years’ imprisonment with a parole eligibility date after 18 months for multiple property offences including breaking into five different business premises, a warehouse, receiving stolen property and fraud.  The total unrecovered stolen property and damage was $6,485.  The 35 year old defendant had an extensive criminal history for property offences.  The offences to which he pleaded guilty were committed when he was on probation.  
[19]	In Bryant the court referred to the appeal of R v M J Taylorwhere the 20 year old offender ultimately received two years’ imprisonment suspended after eight months coinciding with a parole release date after eight months.  He pleaded guilty to 22 offences against property, had offended while on bail and caused a total loss of $9,119.  He had a very limited prior history, a matter which the court said distinguished his case from Bryant who was also significantly older and a serial property offender.
Discussion 
[20]	The appellant on appeal contended that the sentence should be varied to order the 12 month sentence be served concurrent to the existing 24 month sentence or, alternatively, the sentence of 12 months’ imprisonment be immediately suspended.  The parole eligibility date set by the sentencing Magistrate has already elapsed.  In those circumstances the appellant made no submission to vary that date.  
[21]	The sentence of 12 months concurrent with the existing sentence contended for by the appellant would run from the date of sentence on 9 April 2015 through to April 2016.  It would, therefore, elapse four months prior to the pre-existing full time release date of 9 August 2016.  One has only to state that proposal to realise that such a sentence would fail to address either the seriousness of the subject offending when viewed in isolation, or the seriousness of the totality of the criminality involved in both earlier and later groups of offences. 
[22]	The sentencing exercise must have regard to the need for general and specific deterrence where serious property offending involving over $30,000 in loss or damage is involved.  This is particularly so in the case of an offender with a significant criminal history primarily for violent offending, but also including convictions for wilful damage and a previous conviction for entering premises and committing an indictable offence.  
[23]	It was argued on behalf of the appellant that his role in the ram raid episode was limited because he was not in the car when the breaking occurred.  That submission must be rejected once regard is had to his participation before and after the break.  A reasonable inference can be drawn that his culpability was equal to that of his co-offenders. 
[24]	It is submitted that due to the appellant’s prior good employment history his prospects of rehabilitation should be considered to be good.  The learned Magistrate appeared to conclude to the contrary.  He observed that the appellant needed to be on parole to “keep his nose clean”.  His Honour was entitled to conclude, having regard to the persistent offending in recent years, the failure to comply with noncustodial orders and the admitted abuse of drugs that emphasis needed to be given to specific deterrence and parole supervision. 
[25]	Balanced against the need for deterrence there are a number of significant mitigating factors.  The appellant’s plea of guilty and his youthfulness weigh in his favour.  Consideration also needs to be given to the impact of his mother’s death and his earlier employment record.  
[26]	The sentencing decisions of the Court of Appeal referred to suggest a head sentence of up to three years was available in the circumstances of this case.  Here, the effective period of imprisonment from the date of sentence was two years and four months and the parole release date was set at ten months from the date of sentence.  That provides for parole eligibility to be available after 36% of the effective sentence.  In my view, this is consistent with the learned Magistrate having discounted the point at which the appellant would be entitled to parole in recognition of his plea of guilty.  
By comparison, the defendant in R v MJ Taylor was four years younger at 20 years of age and had what was described as a very limited prior history.  The loss there was a third of that here, although more charges were involved.  Once regard is had to the differentiating factors, the sentence imposed here is not out of line.  
[27]	When consideration is given to the six months’ imprisonment under the earlier sentence served prior to the offending, the overall sentence of three years’ imprisonment with parole at about half the sentence was not, in my view, disproportionate to the appellant’s overall criminality.  In this regard, it is important to note that the head sentence of 24 months’ imprisonment imposed on 5 December 2014 was for assault occasioning bodily harm, an offence of a different character to that for which he was sentenced on 9 April 2015.  A further consideration is that the offending occurred while the appellant was on parole and only a matter of weeks after he was released from custody.  
[28]	The appellant must demonstrate that the sentence imposed was beyond that permitted by a sound exercise of the sentencing discretion.  The subject offending called for a significant penalty.  His Honour had the option of imposing a significant term of imprisonment to be served concurrently with the earlier sentence.  Instead, he chose to impose the lesser term of 12 months’ imprisonment but made it cumulative. This is consistent with a recognition by his Honour that the overall sentence needed to have regard to the totality of the offending without being oppressively severe.  Although another judicial officer may have structured the sentence differently, the overall term of imprisonment and parole eligibility date set by his Honour did not result in a sentence which was manifestly excessive.  
[29]	The appeal against sentence should be refused.