DISTRICT COURT OF QUEENSLAND

CITATION:	Penhaligon v QPS [2020] QDC 289	
PARTIES:	NATHAN JOHN PENHALIGON 
(appellant)
v
QUEENSLAND POLICE SERVICE 
(respondent)	
FILE NO:	Appeal No: 137/20
	
DIVISION:	Appellate	
PROCEEDING:	Appeal	
ORIGINATING COURT:
	Magistrates Court, Beenleigh	
DELIVERED ON:	13 November 2020	
DELIVERED AT:	Cairns	
HEARING DATE:	4 November 2020	
JUDGE:	Morzone QC DCJ	
ORDER:	1.	Allow the application for extension of time for filing the notice of appeal until 21 August 2020.
2.	Appeal allowed.
3.	The respective bench charge sheets are amended in respect of charges 19, 24, 25, 26, 27, 28, 29 and 31 for the offence of failing to appear in accordance with an undertaking to reflect the dates of the required appearance and the operative undertaking relied upon in the Schedule of Facts tendered at the sentence.
4.	The sentence and orders of the Magistrates Court made in Beenleigh Magistrate on 24 June 2019 are varied in respect of Charges 19, 24, 25, 26, 27, 28, 29 and 31 of Failing to Appear in Accordance with an Undertaking, by substituting the following sentences:
(a)	Charge 19 - 1 week imprisonment,
(b)	Charge 24 - 1 week imprisonment,
(c)	Charge 25 - 1 week imprisonment,
(d)	Charge 26 - 1 week imprisonment,
(e)	Charge 27 - 1 week imprisonment,
(f)	Charge 28 - 1 week imprisonment,
(g)	Charge 29 - 1 week imprisonment, and 
(h)	Charge 31 - 1 week imprisonment.
5.	I otherwise confirm the decision of the sentences magistrate including the cumulative effect of the sentences.
6.	I direct the registrar to substitute the respondent on the court file, being ‘Beenleigh Magistrates Court’ for Queensland Police Service. 
	
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – appeal pursuant to s 222 Justices Act 1886 – 8x failure to appear in accordance with undertaking – multiple new offending and resentence for offences subject of breached of intensive correction order – legislated mandatory cumulative sentence required by s 33(4) of the Bail Act 1980 (Qld) –  totality principle – whether overall sentence manifestly excessive.	
LEGISLATION:	Bail Act 1980 (Qld) s 33(4)
Justices Act 1886 (Qld) ss 222, 223(1), 224(1)(a)  & 227
Penalties and Sentences Act 1992 (Qld) s 9	
CASES:	Allesch v Maunz (2000) 203 CLR 172 
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
Kentwell v R (2014) 252 CLR 60
Lovell v Lovell (1950) 81 CLR 513
Mill v The Queen [1988] 166 CLR 59
R v Margaritis; Ex parte Attorney-General (Qld) [2014] QCA 219
R v Morse (1979) 23 SASR 98
R v Tait [1999] 2 Qd R 667 
R v Yarwood [2011] QCA 367
The Queen v Crofts [1999] 1 Qd R 386
The Queen v Kendrick [2015] QCA 27.
White v Commissioner of Police [2014] QCA 12
	
COUNSEL:	Self-represented Appellant
C Georgouras for the Respondent	
SOLICITORS:	The Office of the Director of Public Prosecutions for the Respondent

Introduction
[2]	The appellant applies for an extension of time to appeal against the sentence imposed on 24 June 2019 in the Magistrates Court at Beenleigh, on the grounds they were manifestly excessive.
[3]	On 24 June 2019 the appellant was sentenced to an effective 2 years and 2 months of imprisonment with a parole release date after 6 months.  The sentence related to new offending as well as a resentence in the wake of breaching an earlier intensive correction order imposed on 21 January 2019.  The period of imprisonment included sentences of 1 month imprisonment for each of the eight charges of failing to appear in accordance with an undertaking to be served cumulatively pursuant to s 33(4) of the Bail Act 1980.  The appellant argues that these cumulative sentences were manifestly excessive. 
[4]	The parties were prepared to deal with the appeal as well as the merits of the appeal on 4 November 2020.  By the time of hearing the appellant had served all but about 5 months of his sentence.  At the conclusion of the hearing I granted the application for extension of time, allowed the appeal and ordered that the summary charges be amended, and that cumulative sentences of 1 week imprisonment be substituted for each of the eight charges of failing to appear in accordance with an undertaking.  This had the effect of reducing the appellant’s effective sentence to expire on 6 October 2020.
[5]	These are my reasons.
Extension of Time 
[6]	Pursuant to s 222(1) of the Justices Act 1886 (Qld), the applicant had one month after the date of the order in which to appeal.  Under s 224(1)(a), a District Court judge may, on the application of a party, extend the time for filing a notice of appeal.  In R v Tait, the Court of Appeal explained the considerations relevant to granting an extension of time.
[7]	The appellant has explained how he came to start his appeal 13 months too late.  The appellant says that he was unaware of the nature and extent of the sentences, and upon receipt of the verdict and judgment record, he was alerted to multiple anomalies in the bench charge sheets and the circumstances of the offending, which were not conveyed to the court at sentence.   He acted quickly as soon as he realised the true position, but his efforts were thwarted by the rejection of requests for information from the court and his lawyers, and further delayed by being incarcerated and unrepresented.  There was no prejudice identified by the respondent and there was obvious merit in the appeal, which I explain below grounds below. 
[8]	In my view the applicant showed sufficient reason for the delay and demonstrated that it was in the interests of justice to grant the extension of time sought having regard to the issues raised in the appeal. 
Mode of Appeal 
[9]	The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).  Pursuant to s 223 of the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave.  
[10]	For an appeal by way of rehearing "the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error,” and thereby resulting in a manifestly excessive sentence.  
[11]	The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.  Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings.  In doing so it ought to pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence and attach a good deal of weight to the magistrate’s view. 
[12]	On the appeal I allowed the appellant to raise several new points which were not taken up by his representative or brought to the courts attention at the time of sentence.  These matters included an error in the date of the offence for charge 28, other anomalous dates of the breached undertakings in all charges, and a defective plea in response to a non-compliant bulk arraignment.  I have made orders correcting the errors identified in the bench charge sheets.  The appellant did not wish to disturb his plea notwithstanding the facts.
Was the sentence manifestly excessive?
[13]	The appellant also appeals against the cumulative sentences imposed for the eight charges of failure to appear in accordance with an undertaking on:
1.	14 June 2018 for Charge 25;
2.	14 June 2018 for Charge 26;
3.	24 July 2018 (corrected from 6 April 2018) for Charge 28;
4.	10 July 2018 for Charge 29;
5.	23 October 2018 for Charge 24;
6.	13 November 2018 for Charge 31;
7.	16 November 2018 for Charge 19; and
8.	27 November 2018 for Charge 27.
[14]	Multiple bench charge sheets averred that the date of the undertaking was after the date of the breach, this was demonstrably wrong.  The parties and the learned magistrate overlooked the error and proceeded in reliance on the detailed schedules of facts which accurately identified the relevant undertaking.
[15]	These charges were amongst a total of 29 charges subject of a sentence of 12 months’ imprisonment to be served by way of Intensive Correction Order imposed on 21 January 2019.  He had already served actual custody of 52 days awaiting sentence.  The appellant breached the Intensive Correction Order by committing 3 offences only 13 days after the original sentence on 3 February 2019.  Then on 12 February 2019 the applicant committed a further 2 offences, which also breached the Intensive Correction Order.  Consequently, the applicant was returned to custody on 12 February 2019.
[16]	On 24 June 2019 the Magistrates Court at Beenleigh sentenced the appellant to an effective sentence of 2 years and 2 months for 13 charges including the 8 offences of failure to appear including a resentence for breach of the Intensive Correction Order imposed on 21 January 2019, as follows:
1.	12 months’ imprisonment for each of 2 offences of burglary and commit indictable offence and one offence of unlawful use of motor vehicle;
2.	6 months’ imprisonment for each of 2 offences fraud, contravention of a domestic violence order (aggravated), fail to comply with reporting, unlawful entry of vehicle for committing indictable offence;
3.	3 months imprisonment for each of 2 offences of possessing dangerous drugs;
4.	1 month imprisonment each of the offences of failure to appear in accordance with undertaking and 
5.	18 months’ imprisonment for the new offences. 
[17]	The sentences were ordered to be served concurrently, except the sentences of one month imprisonment for the failure to appear in accordance with an undertaking which were ordered to be served cumulatively with each other and cumulatively with the sentence of 18 months’ imprisonment pursuant to section 33(4) of the Bail Act 1980.  132 days in pre-sentence custody was declared as time already served under the sentence.  A parole release date was set at 11 August 2019.  
[18]	Since the sentence, the appellant was released on parole on Friday 9 August 2019, but on that day he committed four further offences.  His parole was cancelled on 19 August 2019 and he was returned to custody on 20 August 2019.  He was sentenced on 21 October 2019 to 6 months’ imprisonment to be served concurrently with other sentences.  A parole eligibility date was set at 21 October 2019.  The appellant was released on board ordered parole on 27 April 2020, but again reoffended, this time eight days later on 5 May 2020 when he committed a further five offences.  His parole was duly cancelled on 8 May 2020.  He was returned to custody on 12 May 2020. He was sentenced for the further offending on 1 July 2020 to six months’ imprisonment wholly suspended for an operational period of 15 months.  The appellant continues to serve his sentence of 2 years and 2 months imposed on 26 June 2019 despite being eligible for parole since 21 October 2019.  His full-time discharge date is 26 April 2021.
[19]	The appellant asserts that the imposition of the cumulative eight months’ imprisonment imposed at re-sentence on 24 June 2019 resulted in a sentence that was manifestly excessive in all the circumstances. 
[20]	This court ought not interfere with a sentence unless it is manifestly excessive, that is, “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”.  
[21]	Even if the appellate court finds that the sentence was at the extreme end of a permissible range, or has a different opinion about the way in which the discretion should be exercised, these are not sufficient justifications for review; it must be shown that the discretion miscarried resulting in a manifestly excessive sentence.  In that context, it may be vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.
[22]	The High Court held in House v. The King and later in Kentwell v R distinguished cases of specific error and manifest excess.  Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed.  By contrast, an error may not be discernible; but the sentence is manifestly excessive as being too heavy and lies outside the permissible range.  Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
[23]	It seems to me that the appellant’s contention invokes consideration of whether the sentence also offends against the totality principle in that the magistrate failed to review the aggregate sentences and consider whether it was just and appropriate pursuant to s 9 of the PSA. 
[24]	In Mill v The Queen, the High Court referred with approval to the passage in Thomas, Principles of Sentencing 2nd Edition, page 56 to 57: 
“The effect of the totality principle is to require a sentencer who has passed a series of offences, each properly calculated in relation to the offence for which it is imposed, and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and to consider whether the aggregate is, 'just and appropriate.'  The principle has been stated many times in various forms. 'When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the Court to take a last look at the total, just to see where it looks wrong.'; when cases of multiplicity of offences have come before the Court, the Court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces.  It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences?”
[25]	In The Queen v Crofts, the Court of Appeal said: 
"Of course sentences of imprisonment for a number of offences often ought to reflect that the offences were not committed in isolation. This is commonly referred to as the totality principle. The totality principle requires a Judge who is sentencing an offender for a number of offences, to ensure the aggregation of sentences of imprisonment is a just and appropriate measure for the total criminality involved. When an appropriate sentence imposed for the most serious offence is adequate to punish the total criminality involved other sentences are made concurrent. When the sentence for the most serious offence is inadequate for that purpose, and cumulative sentences are imposed for one or more other offences, lower sentences than would otherwise be called for, can be imposed to achieve a suitable total punishment over all."
[26]	In The Queen v Kendrick, Morrison JA (with whom Fraser JA and Henry J agreed) provided a superb analysis of the relevant authorities.  I don’t propose to repeat all that was said by His Honour, with which I, of course, agree.  At paragraph [56], His Honour distilled the approach as follows:
“The preferable approach, derived from Mill and Johnson, is that a sentence is fixed for each offence, then aggregated before taking the next step of determining concurrency or accumulation, and to consider what is an appropriate non-parole period.  However, Johnson recognised that it was not an immutable practice.” 
[27]	It seems to me that the failure of the sentencing magistrate to explicitly consider the aggregate sentence in order to determine whether a total sentence is just and appropriate bespeaks an error in the exercise of the sentencing discretion.  It is not enough to simply set a sentence for each offence within range, and then rely upon the statutory obligation to order cumulative sentences pursuant to section 33(4) Bail Act.  When sentences are required to be served cumulatively, consideration of the aggregate of the sentence to be imposed is a necessary precursor to the application of the totality principle to ensure there is an appropriate relativity between the whole criminality and the length of the sentences imposed.  As Muir JA explained in R v Margaritis; Ex parte Attorney-General (Qld),  The appropriate course is to arrive at an appropriate sentence and then assess the cumulative effect to gauge whether the overall sentence is disproportionate to the offender’s criminality.
[28]	This was compounded by the prosecutor and/or the appellant’s solicitor not alerting the court to critical context to the offending, which tended to mitigate the seriousness of the offending.
[29]	For charge 24, whilst, the appellant accepts that he failed to appear in the Magistrates Court at Beaudesert on 23 October 2018, he points to the schedule of facts which showed his simultaneous appearance in the Beenleigh Magistrates Court where he signed a bail undertaking.  He could not be in two places at once, and the failure to appear was explicable on the record.
[30]	For charges 19 and 27 the appellant points to his detention in police custody at or near to the time for appearance.  For Charge 19 the appellant showed that he was in the police watchhouse in Logan from 12:20 am on 16 November 2018 and released 2:58 am on 16 November 2018 and was unlikely to be able to get to Southport in time for his appearance given his lack of transport.  For Charge 27, the appellant was in police custody in Brisbane City from 4:50pm on 22 November 2018 to 1:19pm on 26 November 2018, which curtailed his capacity to appear in Beaudesert the following morning notwithstanding his undertaking to do so.
[31]	As for charges 25, 26 and 29 I do not accept the appellant’s unsubstantiated assertions that he in fact appeared with a solicitor on 14 June 2018 and again on 10 July 2018.  He has not provided any solicitor’s file note or other evidence to substantiate these claims, and the court record does not disclose any belated appearance. However, it does seem odd that the court enlarged bail and adjourned the proceeding to 24 November 2019 for final disposition as a long plea.  For charge 31 - the appellant accepts that he failed to appear on 13 November 2018.  He explains that he informed his solicitor that he was sick and she advised that she would inform the court.  Again, this is not accepted.  It is unsubstantiated and not disclosed on the court record.
[32]	For charge 28 – the appellant acknowledged that he failed to appear on 24 July 2018.  However, the charge as framed in the bench charge sheet and the subject of the schedule of facts alleged that the date of the offence was “6 April 2018”.  This compounded the defendant’s confusion since he was never required to appear on the charged date and the error alluded the parties and the court.
[33]	In my view that the aggregate of the eight cumulative one  month sentences even with an earlier parole release date is too crushing and disproportionate to the overall criminality of the offending the subject of the sentence.  It seems to me that a global sentence of 2 months was appropriate given the court was seized of the relaxant contextual material, and acknowledged the expert evidence of the appellant’s acute mental health problems, personality traits, hopeless drug addiction manifesting in chronic polysubstance abuse/dependence disorder, disordered lifestyle and lack of transport all of which made him inherently unreliable.  Whilst these matters did not indicate concerns about the appellant’s capacity to understand the court process or enter a plea of guilty, they clearly impact his capacity of compliance with multiple obligations to appear over a relatively short period, at different dates, times and courts.  This was further exacerbated when promised compliance was curtailed by intervening events for charges 19, 24 and 27.   
[34]	The expert medical evidence bears out that this is an appropriate case where the appellant’s condition warrants a reduction in the appellant’s moral culpability in the offending when in the throes of downward spiralling mental illness, overlaid by addiction and improper treatment.  General deterrence and personal deterrence ought be significantly moderated because, although knowing it was wrong, the nature and severity of his impaired functioning and symptoms rendered his judgment was significantly affected by his impaired mental state.  A sentence of actual imprisonment would obviously weigh more heavily on the defendant than it would a person of normal health.  I also acknowledge that his struggle, vulnerability and risks of aggravation in the prison environment, which have materialised including retribution by other prisoners.
[35]	In my respectful opinion the learned magistrate erred in exercising the sentencing discretion by failing to apply the totality principle in all of the circumstances of the case, which resulted in an overall sentence that was manifestly excessive as being too heavy and lies outside the permissible range.  
Resentence
[36]	Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion.  
[37]	The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act 1992 (Qld) is to punish an offender to an extent or in a way that is just in all of the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, make it clear that the community denounces the conduct in the offending and to protect the community.  The relevant factors to which the court must have regard are in the subsequent subsections of section 9 of the Penalties and Sentences Act 1992 (Qld). 
[38]	It is trite to say that the appropriate sentence will depend on the particular circumstances of the offending and the degree of culpability of the appellant.  The nature of the penalty, in the form of a fine, provides little by way of rehabilitation, particularly in circumstances where its payment is likely to be unattainable and, therefore, there would be little motivation to do so.  The gravity of this offending can also be gleaned by the relative minimum and maximum penalties, with due regard to the factors discussed of general and, as appropriate, personal deterrence having regard to the appellant’s age, makeup, criminal history and compromised character.  He has also spent a significant period in custody before and since the sentence.  For this offending, it is relevant that imprisonment should only be imposed as a last resort and a sentence that allows the appellant to stay in the community is preferable.  However, where imprisonment is imposed the sentences must be served cumulatively pursuant to section 33(4) Bail Act 1980 (Qld).
[39]	Having reviewed and considered the aggregate of the appropriate sentences, I think sentences of one week imprisonment for each of the offences of failure to appear in accordance with an undertaking is just and appropriate and not too crushing or disproportionate when these sentences of imprisonment are to be served cumulatively with each other and concurrently with the sentence of 18 months’ imprisonment imposed.  The effect is that the appellant has served out the effective sentence which expired on 6 October 2020 and he is entitled to immediate release.
Order
[40]	For these reasons, I make the following orders: 
1.	Allow the application for extension of time for filing the notice of appeal until 21 August 2020.
2.	Appeal allowed.
3.	The respective bench charge sheets are amended in respect of charges 19, 24, 25, 26, 27, 28, 29 and 31 for the offence of failing to appear in accordance with an undertaking to reflect the dates of the required appearance and the operative undertaking relied upon in the Schedule of Facts tendered at the sentence.
4.	The sentence and orders of the Magistrates Court made in Beenleigh Magistrate on 24 June 2019 are varied in respect of Charges 19, 24, 25, 26, 27, 28, 29 and 31 of Failing to Appear in Accordance with an Undertaking, by substituting the following sentences:
(a)	Charge 19 – 1 week imprisonment,
(b)	Charge 24 - 1 week imprisonment,
(c)	Charge 25 - 1 week imprisonment,
(d)	Charge 26 - 1 week imprisonment,
(e)	Charge 27 - 1 week imprisonment,
(f)	Charge 28 - 1 week imprisonment,
(g)	Charge 29 - 1 week imprisonment, and 
(h)	Charge 31 - 1 week imprisonment.
5.	I otherwise confirm the decision of the sentences magistrate including the cumulative effect of the sentences.
6.	I direct the registrar to substitute the respondent on the court file, being ‘Beenleigh Magistrates Court’ for Queensland Police Service. 

Judge DP Morzone QC