SUPREME COURT OF QUEENSLAND

CITATION:	R v EQ [2021] QCA 257	
PARTIES:	R
v
EQ
(applicant)	
FILE NO/S:	CA No 261 of 2020
DC No 166 of 2020
DC No 646 of 2020	
DIVISION:	Court of Appeal	
PROCEEDING:	Sentence Application	
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 27 October 2020 (Sheridan DCJ)	
DELIVERED ON:	Date of Orders: 11 October 2021
Date of Publication of Reasons: 30 November 2021	
DELIVERED AT:	Brisbane	
HEARING DATE:	11 October 2021	
JUDGES:	Sofronoff P and Davis and Williams JJ	
ORDERS:	Date of Orders: 11 October 2021
1.	Application for leave to appeal granted.
2.	Appeal allowed to the extent of:
a.	Sentence on count 2 set aside.  In lieu thereof, sentence the applicant on count 2 to five years imprisonment, with a single non-parole period of two years and six months pursuant to s 19AB of the Crimes Act 1914 (Cth).  A conviction is recorded.
b.	Sentence on count 3 set aside.  In lieu thereof, sentence the applicant on count 3 to three years imprisonment, suspended after serving 982 days for an operational period of three years.  A conviction is recorded.  It is declared pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that the applicant has spent 982 days in pre-sentence custody between 2 February 2019 and 10 October 2021.
c.	Sentences on counts 2 and 3 to be served concurrently with each other and with all other sentences.
3.	Sentences on counts 1, 5, 6 and 7 and summary charges confirmed.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where the applicant pleaded guilty to offences against the Crimes (Aviation) Act 1991 (Cth) and other offences – where there was an inconsistency in the form of the indictment – where the form of the count on the indictment and the respective marginal note were inconsistent – where the applicant was arraigned in terms of the count on the indictment – where the words read out in the administration of the allocutus did not refer to the count as read out to the applicant during the arraignment – where the allocutus related to an offence to which the applicant had not pleaded guilty – where the judge accepted the applicant’s guilty plea and proceeded to sentence the applicant – where the parties made submissions on the assumption that the applicant had pleaded guilty to an offence against the provision stated in the margin of the indictment – where the judge sentenced on the assumption that the applicant had pleaded guilty to the offence against the provision in the margin of the indictment – whether the sentencing proceedings miscarried following the applicant’s guilty plea
Crimes Act 1914 (Cth), s 16A
Crimes (Aviation) Act 1991 (Cth), s 16A, s 28
Criminal Code (Qld), s 321A, s 335, s 340, s 359F, s 560, s 564, s 648, s 649, s 650
Criminal Practice Rules 1999 (Qld), r 14
Domestic and Family Violence Protection Act 2012 (Qld), s 177
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, followed
Cobiac v Liddy (1969) 119 CLR 257; [1969] HCA 26, followed
Marks v The Queen [2019] VSCA 253, considered
Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46, followed
R v Chae, unreported, District Court, Chief Judge O’Brien, 25 September 2015, considered
R v Goodwin; Ex parte Attorney-General (Qld) (2014) 247 A Crim R 582; [2014] QCA 345, followed
R v Hodgkinson [1954] VLR 140; [1953] VicLawRp 87, cited
R v JAD [2021] QCA 184, cited
R v Jerome and McMahon [1964] Qd R 595, followed
R v Shillingsworth [1985] 1 Qd R 537, followed
R v Tonks [1963] VR 121; [1963] VicRp 19, followed
R v Verdins (2007) 16 VR 269; [2007] VSCA 102, cited
R v Verrall [2013] 1 Qd R 587; [2012] QCA 310, cited
R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, cited	
COUNSEL:	S J Hedge for the appellant (pro bono)
A J Walklate for the respondent	
SOLICITORS:	Jasper Fogerty Lawyers for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent	
[1]	SOFRONOFF P:  For the reasons of Davis J, I joined in making the orders on 11 October 2021.
[2]	DAVIS J:  The applicant sought leave to appeal sentences imposed upon him in the District Court on 27 October 2020.  He pleaded guilty to five counts on an indictment and two summary charges.  The Crown did not proceed on count 4 on the indictment to which the applicant did not plead guilty.
[3]	Count 2 on the indictment was an offence against the Crimes (Aviation) Act 1991 (Cth).  The other counts were offences against the law of Queensland, being one count of contravening a domestic violence order with a circumstance of aggravation, one count of assaulting a police officer, one count of making a bomb hoax and one count of stalking with a circumstance of aggravation, namely being armed with a weapon.  The summary charges were two counts of common assault.
[4]	The applicant was sentenced on count 2 to six years imprisonment and on count 3, assaulting a police officer, he was sentenced to three years.  Parole eligibility was set after serving two and a half years.  Lesser sentences were imposed on the other offences.  Those lesser terms have been served as all sentences were ordered to be served concurrently.
[5]	On 11 October 2021, the court made the following orders:
“1.	Application for leave to appeal granted.
2.	Appeal allowed.
3.	Sentence on count 2 set aside. In lieu thereof, sentence the applicant on count 2 to five years imprisonment, with a single non-parole period of two years and six months pursuant to s 19AB of the Crimes Act 1914 (Cth). A conviction is recorded.
4.	Sentence on count 3 set aside. In lieu thereof, sentence the applicant on count 3 to three years imprisonment, suspended after serving 982 days for an operational period of three years. A conviction is recorded. It is declared pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that the applicant has spent 982 days in pre-sentence custody between 2 February 2019 and 10 October 2021.
5.	Sentences on counts 2 and 3 to be served concurrently with each other and with all other sentences.
6.	Sentences on counts 1, 5, 6 and 7 and summary charges confirmed.”
The offending
[6]	The facts were reduced to an agreed statement.
[7]	The applicant was born on 19 August 1968.  He is now an Australian citizen, but was a citizen of Egypt.  He married his wife in Egypt in September 2000.  They have two daughters aged 10 and 14.
[8]	The family immigrated to Australia in 2011 and the applicant’s wife left the relationship in October 2017.  They have not formally divorced.  Even though a domestic violence order was in place, the applicant tracked the activities of his estranged wife and daughters through various means.
[9]	The applicant’s only prior conviction was for a breach of the domestic violence order.  That occurred on 12 April 2018 and the applicant was convicted in the Southport Magistrates Court on 8 August 2018.  The contravention consisted of the applicant sending many text messages to his estranged wife over a 21 hour period.
[10]	In February 2019, the applicant’s mother-in-law was in Brisbane.  She was returning to Egypt on 2 February and the applicant’s estranged wife and his two daughters accompanied her to the airport.
[11]	The applicant learnt that his mother-in-law, and his estranged wife at least, would be at Brisbane International Airport on 2 February 2019.  That information had come to the applicant because he and his estranged wife still had a joint email account which he was monitoring.
[12]	The applicant’s estranged wife, mother-in-law, and his two children arrived at the airport at about 6.15 pm for the 10.25 pm flight to Egypt.  The applicant appeared, which alarmed his estranged wife and daughters.  An argument then ensued between the applicant and his estranged wife.  He asserted to her that she had no right to stop him seeing their daughters, and that he would not allow her to obtain a divorce.
[13]	The group moved away from the check-in counter towards the food court.  The applicant followed them.  He opened a suitcase that he had with him and took out a knife, placing it inside his shirt down the front of his pants.  He also took a black cylinder out of the bag which his estranged wife recognised as an electric shock device used in Egypt.  The group panicked and ran.  The applicant pursued them.  This alarmed other citizens in the airport.  Those actions of the applicant constituted count 1 on the indictment, contravention of a domestic violence order, and the first summary charge of common assault being a domestic violence offence.
[14]	A security officer, Darryl Ingold, arrived on the scene to be confronted with the applicant walking towards him with a knife in his right hand.  The applicant pulled an object from his pocket and said “This is a bomb”.  When Mr Ingold got close, he kicked at him and said “Fuck off, I have a bomb”.  That constituted the second summary charge of common assault.
[15]	Australian Federal Police officers and Queensland Police Service officers established a cordon around the applicant.  When officers approached him, he picked up a small remote control device and told police “Don’t come any closer” and “I have a bomb.  I will set this off if you come any closer”.  He told one of the officers that he had needles poking through bands on his wrists and “the needles have snake venom on them”.  He said this was so he could lash out towards police officers.  These actions constituted count 2 on the indictment, an offence against the Crimes (Aviation) Act 1991 (Cth).  During this confrontation, the applicant asserted that he had a second explosive device which was located on the Gold Coast.
[16]	The applicant then began walking around the airport with the device that he pretended was a bomb.  He walked towards Senior Constable Joseph Hume threatening to detonate the bomb.  That was count 3 on the indictment, assault of a police officer.
[17]	Ultimately, officers fired non-lethal munitions striking the applicant but to little effect.  Negotiations occurred and the applicant surrendered at 9.31 pm.  The device was identified as an elaborate hoax.  The applicant was found to be in possession of batteries, tools, wires, a gas mask, a shoulder bag, a syringe, a knee brace, an elbow brace with metal studs, and two band aids with metal studs in them.
[18]	The allegation that there was a bomb on the Gold Coast proved to be untrue but that constituted count 5 on the indictment, namely making a bomb hoax.
[19]	The applicant participated in an interview with police where he explained, among other things, that he had been tracking his wife’s movements and that constituted count 6 on the indictment, stalking.
[20]	From various statements made by the applicant, it seems that his motivation included to make objection to family laws in Australia.
[21]	The offences had an enormous impact upon the operations of the airport.  The international terminal building was completely evacuated.  Operations of the airport ceased for almost three and a half hours delaying six arriving aircraft and nine departing aircraft.  The cost exceeded $1 million.  Various police officers were deployed to the situation and were exposed to risk and great concern for their own safety.
[22]	Victim impact statements showed that the applicant’s estranged wife and his two daughters were completely stressed by the offending and now continue to receive treatment for anxiety and depression.
The appeal
[23]	The appellant raised two grounds of appeal:
1.	the sentencing judge erred in law by wrongly limiting the use to be made of evidence of the applicant’s mental health; and
2.	the sentence was manifestly excessive.
[24]	During the hearing of the appeal, it became apparent that the sentencing process had totally miscarried.  Ms Hedge, who appeared for the applicant, sought and was granted leave to add ground 3, namely:
“In sentencing the applicant for count 2, the learned sentencing judge mistook the offence to which he had pleaded guilty.”
[25]	Ground 3 was made out, the appeal allowed and the court proceeded to resentence the applicant.  It is, therefore, unnecessary to consider either of grounds 1 or 2.
Ground 3
[26]	Count 2 alleged an offence against s 28 of the Crimes (Aviation) Act 1991 (Cth).  It provides:
“28	Threats and false statements
(1)	A person must not threaten to:
(a)	destroy, damage or endanger the safety of a Commonwealth aerodrome, or any part of a Commonwealth aerodrome, or any Commonwealth air navigation facilities; or
(b)	kill or injure anyone who is, or may be, within the limits of a Commonwealth aerodrome or any Commonwealth air navigation facilities.
Penalty:  Imprisonment for 10 years.
(2)	A person must not make a statement or communicate information, being a statement or information that he or she knows to be false, to the effect, or from which it can reasonably be inferred, that there has been, is, or will be, a plan, proposal, attempt, conspiracy or threat:
(a)	to take or exercise control, by force, of a Commonwealth aerodrome, or part of a Commonwealth aerodrome, or any Commonwealth air navigation facilities; or
(b)	to destroy, damage or endanger the safety of a Commonwealth aerodrome, or part of a Commonwealth aerodrome, or any Commonwealth air navigation facilities; or
(c)	to kill or injure anyone who is, or may be, within the limits of a Commonwealth aerodrome or any Commonwealth air navigation facilities.
Penalty:  Imprisonment for 10 years.
(3)	For the purposes of an offence against subsection (1) or (2), absolute liability applies to whichever one of the following physical elements of circumstance is relevant to the offence:
(a)	that the aerodrome is a Commonwealth aerodrome;
(b)	that the air navigation facilities are Commonwealth air navigation facilities.”
[27]	The various subsections of s 28 create different offences.
[28]	Section 560 of the Criminal Code provides that a charge of an indictable offence “is to be reduced to writing in a document which is called an indictment”.  Section 564(1) provides that the indictment must “set forth the offence with which the accused person is charged in such a manner … as may be necessary to inform the accused person of the nature of the charge”.  Section 564(3) provides that it is sufficient to describe an offence in the words of the statute defining it.  Rule 14 of the Criminal Practice Rules requires an indictment in the District Court to be in the form of Schedule 2 form 2 of the Rules.
[29]	Count 2 was pleaded as follows:
“That on the second day of February 2019 at Brisbane Airport in the State of Queensland EQ threatened to damage a Commonwealth aerodrome namely Brisbane International Airport.”
[30]	Count 2 alleges an offence against s 28(1)(a) of the Crimes (Aviation) Act 1991 (Cth).
[31]	In accordance with practice, the indictment also stated in the left margin the statutory provision which creates the offence.  In this case, it stated the wrong offence:
“Count 2 Section 28(2)(b) Crimes (Aviation) Act 1991 (Cwlth).”
[32]	On 9 March 2020, the applicant was arraigned on all counts.  Count 2 was read to him as follows:
“That on the second day of February 2019 at Brisbane Airport in the State of Queensland you threatened to damage a Commonwealth aerodrome namely Brisbane International Airport.”
[33]	The applicant pleaded guilty to five counts on the indictment, including count 2.  The allocutus was then administered to him in the following terms:
“EQ, you have been convicted on your own plea of guilty to … one count of false statement … Do you have anything to say as to why a sentence should not be passed on you?”
[34]	A person is convicted of an offence by act of a court, not by the plea of guilty and not by the verdict of a jury.  Conviction occurs once the court accepts the plea of guilty, or the verdict of the jury and “by some act on the part of the court it has indicated a determination of the question of guilt”.
[35]	At common law, the act of the court indicating a determination of guilt based on the plea or verdict, is usually that of embarking on the process of sentencing.  The entry of a conviction in the court record also constitutes an acceptance of the plea and therefore a conviction.
[36]	Section 648 of the Code provides for the administration of the allocutus.  The section provides:
“648	Convicted person to be called on to show cause
When an accused person pleads that the person is guilty of any offence, and when, upon trial, an accused person is convicted of any offence, the proper officer is required to ask the person whether the person has anything to say why sentence should not be passed upon the person, but an omission to do so does not invalidate the judgment.”
[37]	The administering of the allocutus constitutes the court’s acceptance of the accused’s guilty plea and, thenceforth, the matter is one for sentence.
[38]	The reference in the allocutus as it was administered to a “false statement” was evidently a reference to an element of the charge under s 28(2)(b) which was referred to in the marginal note to count 2.
[39]	The words read out in the allocutus did not appear on the indictment or in the charge as read to the applicant.
[40]	Rule 61 of the Criminal Practice Rules 1999 obliges the presiding judge to “ensure a record is kept ... of the following particulars about the proceeding on the order sheet ... the plea”.  In accordance with that Rule, Chief Judge O’Brien, who was then presiding, caused to be recorded that the “Defendant pleaded guilty in full satisfaction of the indictment”.
[41]	Rule 62 obliges the proper officer of the court to “make a record” which “must contain”, inter alia, “details about ... the plea”.  A Verdict and Judgment Record was accordingly made to record this plea to the offence described in following terms:
“MAKE FALSE STATEMENT WHICH CAN BE INFERRED THAT THERE IS A PLAN TO DAMAGE OR DESTROY A COMMONWEALTH AIR NAVIGATION FACILITY”
[42]	This was followed by a reference to s 28(2)(B)(sic) - Crimes (Aviation) Act 1991 (CWLTH).
[43]	When the applicant appeared to be sentenced before Sheridan DCJ on 26 October 2020, a statement of facts was tendered.  In relation to count 2, the subtitle to the relevant facts stated:
“COUNT 2:	Threats and False Statements
Section 28(l)(a) Crimes (Aviation) Act 1991
Max Pen: 10 years imprisonment”
[44]	The prosecutor handed to the judge a set of written submissions on sentence.  A table on the second page set out the offences for which the applicant was to be sentenced.  In relation to count 2 there was this:
“False Statement (threat to damage Commonwealth aerodrome) followed by a reference to s 28(2)(b) of the Act.”
[45]	Paragraph 10 of the submissions then set out the content of that section in full.
[46]	After hearing submissions from the prosecutor and from defence counsel, the learned judge sentenced the applicant.  Her Honour began as follows:
“Count 2 on the indictment is a Commonwealth offence of making a false statement pursuant to section 28 subsection (2) subsection (b) of the Crimes (Aviation) Act (Cth) and carries a maximum penalty of 10 years.”
[47]	Later, in the course of her remarks, her Honour said:
“In proceeding to sentence you in terms of count 2, the making of threats and false statement[s] to take or exercise control of a Commonwealth aerodrome, that is a Commonwealth offence and I must proceed to sentence you guided by the sentencing consideration[s] under the Crimes Act.”
[48]	In relation to count 2, her Honour concluded:
“In all the circumstances, the sentence I will impose for the offences on the indictment is, in relation to count 2 the making of threats and false statement[s] under the Crimes (Aviation) Act you are convicted and sentenced to imprisonment for a period of six years. Pursuant to section l9AB of the Crimes Act I fix your non-parole period of three years.”
[49]	The marginal note on the indictment was immaterial.  It was a formal defect.  But it appears to have been the source of what followed.  The applicant was correctly charged on the indictment and he was correctly arraigned.  He pleaded guilty to the charge as it appeared on the indictment.  The allocutus related to an offence to which the applicant had not pleaded guilty.  The Verdict and Judgment Record wrongly records a plea of guilty and a conviction for an offence with which the applicant has not been charged and to which he has not pleaded guilty.
[50]	It follows that there has been no acceptance of the applicant’s plea to count 2, the offence to which the effective head sentence attached.
[51]	The sentence hearing proceeded upon the basis that the applicant was to be sentenced for an offence against s 28(2)(b) but he had not been convicted of an offence against that provision.  Her Honour accordingly sentenced him for an offence with which he was not charged and to which he had not pleaded guilty.
[52]	It follows that the proceedings after the applicant’s guilty plea have miscarried and the application for leave to appeal against sentence must be allowed.  It was then necessary for the applicant to be resentenced.
[53]	Both counsel urged this court to resentence the applicant rather than remit the matter to the District Court.  As explained, no valid allocutus was administered in relation to count 2, although a valid allocutus was administered in relation to the other offences.  The allocutus could not be administered to the applicant on count 2 during the hearing of the appeal as the applicant was in custody and not present in court.
[54]	Section 648 of the Code expressly provides that an omission to administer the allocutus does not invalidate “the judgment”.  “The judgment” could mean the conviction, being the acceptance of the plea of guilty, or it could mean the sentence.  It is unnecessary to decide that issue.  Ms Hedge, for the applicant, informed the court:
1.	that her instructions were that the plea of guilty to count 2 was maintained;
2.	administration of the allocutus was not insisted upon; and
3.	the court should proceed to sentence the applicant.
[55]	The Crown also urged such an approach.
[56]	The court proceeded to resentence the applicant and once the court had embarked upon that exercise, the applicant was validly convicted of count 2.
The appropriate sentence
[57]	The offending was very serious.  It significantly impacted upon the commercial operations of the airport, terrified the persons in the airport at the time, including the applicant’s estranged wife and his two daughters, and placed police officers at risk and in concern for their safety.  As earlier observed, the applicant’s estranged wife and his two daughters continue to suffer psychologically.
[58]	There were mitigating circumstances:
1.	Apart from the breach of the protection order, the applicant had no prior convictions.
2.	He cooperated with the police.
3.	He indicated an early plea.
4.	He is clearly remorseful.
5.	He is unlikely to reoffend.
[59]	A report of a psychiatrist, Dr Butler, was tendered to the learned sentencing judge and was before this court.  Dr Butler made various observations and expressed various opinions, including:
1.	that the applicant had difficulty finding appropriate employment;
2.	the applicant was involved in a violent workplace incident where he was attacked;
3.	the applicant suffered financial difficulties;
4.	the workplace incident and the financial difficulties led to conflict between the applicant and his estranged wife;
5.	the applicant perceives unfairness towards men in the family law system in Australia;
6.	prospects of reoffending in a domestic context have significantly diminished;
7.	the applicant is genuinely apologetic and remorseful;
8.	there are symptoms of anxiety and depression which are diminishing in seriousness;
9.	the likelihood of reoffending in a general way is low;
10.	rehabilitation can be continued by psychological and psychiatric support;
11.	the applicant now has insight into the offending.
[60]	It is well-established that mental impairment falling short of insanity can be relevant to sentence.  Relevantly here:
1.	the moral culpability of the offending may be reduced;
2.	the importance of general deterrence may be diminished;
3.	the importance of personal deterrence may also be diminished, especially where treatment for the mental condition has been sought.
[61]	Section 16A(2)(n) of the Crimes Act 1914 (Cth) recognises the mental condition of an offender as a relevant consideration.
[62]	Two cases were referred to as comparatives: Marks v The Queen and R v Chae.  Marks was charged under a different provision of the Crimes (Aviation) Act 1991 for exercising control of an aircraft by force or threat or trick or false pretence.  He threatened the safety of an aircraft while it was airborne but he was suffering psychotic delusion at the time.  He was sentenced to eight years imprisonment with a non-parole period of five years.
[63]	Chae was cited only for the proposition that, with offences of this nature, the existence of a political element or any terrorist motivation were aggravating circumstances.  That can be accepted.  Those features were not present here.
[64]	In reality, there were no comparative sentences.  The sentencing judge in the present case acknowledged that.
[65]	In Barbaro v The Queen, the High Court, at paragraph [41], described the relevance of comparative sentences in these terms:
“... sentencing judges must have regard to what has been done in other cases. Those other cases may establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect.”
[66]	In R v Goodwin; Ex parte Attorney-General (Qld), Mullins J considered the approach which should be taken where there are no comparative sentences for the offence under consideration.  Her Honour said this:
“The lack of comparable sentences may deprive the sentencing judge of the assistance of ‘the yardstick’ for testing the proposed sentence, but it does not preclude the sentencing judge from otherwise finding the relevant facts for the purpose of the sentencing, weighing up the relevant factors relating to the offence and the offender, and applying the principles of sentencing found in the relevant legislation and the common law, in order to reach the appropriate sentence for that offending. The sentencing judge may very well find the exercise of the discretion to be more difficult, in the absence of, and without the usual assistance afforded by, comparable sentences, but as a matter of principle the sentencing judge will have available sufficient material from the evidence adduced on the sentence and the relevant law to undertake the well defined process of sentencing.”
[67]	Having regard to the maximum sentence for the offence, the sentencing considerations in s 16A of the Crimes (Aviation) Act 1991 and the factors I have identified, the appropriate sentence on count 2 is five years imprisonment.  The applicant should have eligibility for parole after serving two and a half years which he has already served.
[68]	The Commonwealth Attorney-General determines the grant or otherwise of parole on count 2, as that count is an offence against a law of the Commonwealth.  It is appropriate to suspend those sentences imposed on the State offences which have not already expired.  That will avoid any conflict between the State and Commonwealth parole systems.
[69]	For those reasons, I joined in the orders made.
[70]	WILLIAMS J:  I agree with the reasons of Davis J for the orders made on 11 October 2021.