DISTRICT COURT OF QUEENSLAND

CITATION:	Grant v Commissioner of Police [2021] QDC 319	
PARTIES:	REECE ANGUS GRANT
(appellant)
v
COMMISISONER OF POLICE
(respondent)	
FILE NO:	D112/21	
DIVISION:	Appellate	
PROCEEDING:	Appeal pursuant to s 222 of the Justices Act 1886 (Qld)	
ORIGINATING COURT:	Magistrates Court at Maroochydore 	
DELIVERED ON:	19 November 2021 (orders)
15 December 2021 (reasons)	
DELIVERED AT:	Maroochydore	
HEARING DATE:	19 November 2021	
JUDGE:	Long SC, DCJ	
ORDER:	1.	The appeal is allowed;
2.	The orders made in the Magistrates Court at Maroochydore on 17 June 2021 are varied only in so far as:
(1)	the parole eligibility date is fixed as 7 December 2021; and
(2)	pursuant to section 159A(3B) of the Penalties and Sentences Act 1992, it is stated that the offender was held in pre-sentence custody in relation to proceedings for the offences for which he was sentenced, for 71 days (7 April 2021 to 16 June 2021) and it is declared that no part of that time is declared as time served under the sentence.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE OF MAGISTRATE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant was convicted on his own pleas of guilty and was sentenced in respect of 26 offences – where the Magistrate ordered that terms of imprisonment be served on six charges – where the Magistrate imposed a term of nine months imprisonment for the charge of dangerous operation of a motor vehicle which, pursuant to s 156A of the Penalties and Sentences Act 1992, was required to be served cumulatively upon the appellant’s then existing period of imprisonment – where the Magistrate set the parole eligibility date at a point which was three months into the accumulated term – whether the setting of the parole eligibility date rendered the overall sentence manifestly excessive – whether the Magistrate failed to take into account a period of 71 days which the defendant spent in pre-sentence custody	
LEGISLATION:	Justices Act 1886, ss 222, 223
Penalties and Sentences Act 1992, ss 4, 9, 156A, 159A, 160B, 160F	
CASES:	Kennedy v Commissioner of Police [2020] QDC 283
Pullen v O’Brien [2014] QDC 92
R v Kitson [2008] QCA 86
R v Smith [2015] 1 Qd R 323
R v Watson [2021] QCA 225	
COUNSEL:	M Dixon for the appellant 
S Drinovac (sol) for the respondent	
SOLICITORS:	Smith Criminal Law for the appellant
Office of the Director of Public Prosecutions for the respondent

	

[1]	On 19 November 2021 and upon the hearing of this appeal, the following orders were made. 
1.	The appeal is allowed;
2.	The orders made in the Magistrates Court at Maroochydore on 17 June 2021 are varied only in so far as:
(1)	the parole eligibility date is fixed as 7 December 2021; and
(2)	pursuant to section 159A(3B) of the Penalties and Sentences Act 1992, it is stated that the offender was held in pre-sentence custody in relation to proceedings for the offences for which he was sentenced, for 71 days (7 April 2021 to 16 June 2021) and it is declared that no part of that time is declared as time served under the sentence.
These are the reasons for those orders
[2]	The appeal was brought in respect of the orders made in the Magistrates Court at Maroochydore on 17 June 2021, when the appellant was sentenced upon his guilty pleas entered to some 26 offences. They were offences of dangerous operation of a vehicle, contravention of a domestic violence order, five offences of driving of motor vehicle without a driver licence disqualified by Court order repeat offender – type 2 vehicle related offence, two offences of drive without due care and attention or drive without reasonable consideration for other persons using road or place, fail to comply with duties of driver involved in a crash and give the driver’s required particulars to any other driver involved, fail to comply with duties of driver involved in crash and give required particulars to police officer, fail to comply with requirement to stop private vehicle, five offences of vehicles used on roads must be registered, five offences of drive uninsured vehicle – type 2 vehicle related offence and four offences involving registration certificates.
[3]	These offences were committed respectively on 1, 18, 21, 24 and 26 March 2021 and 1 April 2021.  
[4]	For a number of offences, fines ranging from $400 to $600 were imposed.  For other offences and particularly those relating to the unregistered and uninsured status of vehicles, he was convicted but not further punished.  Terms of imprisonment were otherwise imposed as follows:
•	Dangerous operation of a vehicle – Nine (9) months imprisonment and disqualified from holding or obtaining a drivers licence for two (2) years;
•	Contravention of a domestic violence order – Six (6) months imprisonment;
•	Three (3) charges of driving of motor vehicle without a driver licence, disqualified by Court order, repeat offender – Six (6) months imprisonment and disqualified from holding or obtaining a driver’s licence for two (2) years;
•	Driving without a licence, disqualified by Court order, repeat offender – Five (5) months imprisonment and disqualified from holding or obtaining a driver’s licence for two (2) years. 
Only the term of nine months’ imprisonment imposed for the offence of dangerous operation of a motor vehicle, was ordered to be served cumulatively upon the appellant’s then existing period of imprisonment. His parole eligibility date was fixed as 19 June 2022.  
[5]	The appellant was aged 28 years at the time of his offending and had a prior criminal history of some relevant substance, dating back to 2011. This batch of offending represented the second occasion when the appellant had offended after a release to parole.  
[6]	His existing period of imprisonment was constituted by sentences of 12 months imprisonment imposed on 11 July 2019, with 22 days of pre-sentence custody, from 19 June 2019, declared as time served and a parole release date fixed, immediately, on 11 July 2019.  Then, on 7 January 2020, and for offences of entering premises and committing an indictable offence, stealing, breaches of bail condition, a failure to appear and contraventions of a domestic violence order, respectively committed between 7 August and 11 September 2019, he was sentenced to 24 months’ imprisonment with a parole eligibility date fixed at 25 June 2020.  
[7]	He was released to parole on that eligibility date.  As noted in the pre-sentence custody certificate, that parole was suspended on 21 January 2021 and the appellant was returned to custody on 7 April 2021. Accordingly and at the time of sentence, it was noted that the appellant was serving a total period of two years, six months and 18 days’ imprisonment, from 19 June 2019.  
[8]	It was further noted that his revised full-time expiry of sentence was then calculated as 19 March 2022, which appears to take into account the period of 75 days not served after the suspension of his parole.  This also meant an absence of any further liability due to his re-offending in that period and contingent upon the sentence imposed on 17 June 2021. 
[9]	It is only necessary to briefly note the facts of the offending. 
(a)	On 1 March 2021, the defendant, being a respondent against whom a Domestic Violence Protection order was made, approached the aggrieved person named in the order at her residential address in Beerwah, in contravention of a condition of the order. This was the offence of contravention of domestic violence order (aggravated offence).
(b)	On 18 March 2021, police observed a vehicle bearing fake registration plates travelling along Wises Road and Darby Close in Buderim and attempted to pull their unmarked police vehicle in front of the vehicle in an attempt to stop it. Police identified the defendant as the driver and were aware that he was wanted for other matters. In relation to this incident, there were offences of driving of motor vehicle without a driver licence, disqualified by court order repeat offender – type 2 vehicle related offence, vehicle used on road must be registered, drive uninsured vehicle – type 2 vehicle related offence and offences involving registration certificates etc – made/sold/possessed false registration certificate, label, number plate or permit.  
(c)	On 21 March 2021, police from Caloundra Police station were called in relation to a hit and run traffic collision in the carpark of the Stockland Shopping Centre at Caloundra. The driver of the other vehicle stated that despite activating her horn when she saw the defendant’s vehicle approaching as she was reversing, the defendant sped up, hit her vehicle, and drove off at speed. Witness accounts and CCTV footage identified the defendant as the driver of the vehicle. The CCTV footage also confirmed that the defendant reversed out into the other vehicle and then decamped from the location without attempting to exchange details with, or check on the welfare of, the other driver. In relation to this incident, there were offences of driving of motor vehicle without a driver licence disqualified by court order repeat offender – type 2 vehicle related offence, vehicle used on roads must be registered, drive uninsured vehicle – type 2 vehicle related offence, offences involving registration certificates etc – made/sold/possessed false registration certificate, label, number plate or permit and fail to comply with duties of driver involved in crash and give the driver’s required particulars to any other driver involved.
(d)	On 24 March 2021, an off-duty officer observed that the defendant was the driver of a vehicle bearing false registration plates travelling north along Sunset Drive, Little Mountain. When approached later that day by police from the Sunshine Coast Property crime squad who stated “Police, Stop”, the defendant accelerated suddenly, turned across the median strip towards the other side of the road into oncoming traffic travelling south on Nicklin Way, Currimundi and continued to drive out of sight of police. In relation to this incident, there were offences of driving of motor vehicle without a driver licence disqualified by court order repeat offender – type 2 vehicle related offence, vehicle used on roads must be registered, drive uninsured vehicle – type 2 vehicle related offence, offences involving registration certificates etc – made/sold/possessed false registration certificate, label, number plate or permit and drive without due care and attention or drive without reasonable consideration for other persons using road or place.
(e)	On 26 March 2021, police attempted to intercept a vehicle travelling north along Steve Irwin Way, south of Roys Road, which was known to be driven by the defendant who was wanted for outstanding warrants and offences. Despite police activating their lights and sirens and attempting to intercept the vehicle, the vehicle failed to stop and was observed to be travelling at 77 kilometres per hour in a dangerous manner. Police identified the driver of the vehicle to be the offender. In relation to this incident, there were offences of driving of motor vehicle without a driver licence disqualified by court order repeat offender – type 2 vehicle related offence, vehicle used on roads must be registered, drive uninsured vehicle, offences involving registration certificates etc – made/sold/possessed false registration certificate, label, number plate or permit, fail to comply with requirement to stop private vehicle, and dangerous operation of a vehicle.
(f)	Later and on 1 April 2021, police from the Beerwah station were called to a hit and run traffic accident which occurred outside a residential address in Beerwah and which resulted in substantial damage to a power pole. The vehicle was identified as being driven by the defendant. Witnesses who resided nearby observed a male retrieve an item from the boot of the crashed vehicle and then left the site of the accident on foot. In relation to this incident, there were offences of driving of motor vehicle without a driver licence disqualified by court order repeat offender – type 2 vehicle related offence, vehicle used on roads must be registered, drive uninsured vehicle – type 2 vehicle related offence, fail to comply with duties of driver involved in crash and give required particulars to police officer and drive without due care and attention or drive without reasonable consideration for other persons using road or place.
On 7 April 2021, the appellant was located at a residence at Glasshouse Mountains and was arrested. He participated in an interview and made substantial admissions in respect of his offending.
[10]	Otherwise, it is noted that the submissions made for the appellant in the Magistrates Court included that:
(a)	By his guilty pleas he accepted his offending, which had been motivated by a desire to avoid return to prison after missing a parole appointment;
(b)	He had no prior conviction for offences of dangerous operation of a motor vehicle;
(c)	He was 28 years old, with diagnosis of depression and anxiety disorders, had completed year nine at school and had obtained vocational certificates and previously maintained steady employment upon leaving school;
(d)	A catalyst for the more recent acceleration in criminal history was the ending of a relationship and that he began using methamphetamines; and
(e)	“He had suffered additional hardships in custody as a result of COVID 19 restrictions.”
[11]	In the notice of appeal, the ground of appeal is expressed in terms that:
“The sentence was excessive in the circumstances as a result of [the Magistrate] setting the parole eligibility date at 19 June 2022, and not taking into account the pre-sentence custody.”
[12]	The submissions for the appellant contend, correctly, that the appeal is by way of re-hearing on the record of the proceedings below, there being no application for new evidence.  Having regard to the discretionary nature of the sentencing process, which is the subject of the appeal, it is contended that intervention should occur on the basis of discernible error or error in the nature of manifest excessiveness of the overall sentence.  Apart from noting that I have previously discussed both the appropriateness of such an approach, despite the terms of s 222(2)(c) of the Justices Act 1886,  and the necessity for distinction to be drawn between discernible error and manifest excessiveness, the latter as a demonstration of error in the absence of identification of discernible error, it may also be noted that the appellant’s submissions, including under the heading “manifest excess”, are largely directed at the discernment of specific errors in the exercise of the Magistrate’s sentencing discretion.  
[13]	The ultimate written submissions are directed only towards variation of the parole eligibility date, to be refixed “no later than 17 December 2021”.
[14]	For the appellant and notwithstanding the maintenance of a contention that the overall effect of the sentence was manifestly excessive, there were a number of specific contentions made as to discernible error in the exercise of the Magistrate’s sentencing discretion. These included:
(a)	A failure to ameliorate the sentence because of the requirement in s 156A of the Penalties and Sentences Act 1992 (“PSA”) that the term imposed for dangerous operation of a motor vehicle, be served cumulatively;’
(b)	A failure to take into account the 70 days spent in pre-sentence custody and more generally the periods spent in custody since 19 June 2019;
(c)	Having regard to the decision in R v Kitson, there was an absence of alerting the parties and opportunity for submissions and of reasons given, for setting a parole eligibility date “well beyond the halfway point of the sentence”; and
(d)	An absence of reasoning in reflection of considerations as to totality and avoidance of a “crushing” sentence but rather what appears “to demonstrate a mathematical approach to the sentence without consideration to the proportionality of the overall sentence”.
[15]	Whilst the hearing of this appeal began with the appellant enjoying the benefit of a concession of the respondent that the parole eligibility date should be refixed at 17 December 2021, due to there being an error of a kind identified in R v Kitson, in the absence of reasons for fixing a parole eligibility date at a point “more than half of the overall period of imprisonment the appellant is liable to serve”, it is not appropriate, in the circumstances of this case, to proceed upon such a basis. This is because what is identified in Kitson is in respect of the imposition, on a single occasion, of terms of imprisonment themselves constituting or effecting a period of imprisonment to be served by a prisoner. The observations and identified errors in Kitson, may be more problematic in application to the complications inherent when the period of imprisonment is constituted or effected by terms imposed on separate occasions and particularly where there have been releases to and breaches of parole involved. The proposition may be simply identified by understanding that here and once (as was not put in issue on the notice of appeal) the Magistrate determined to impose nine months imprisonment, which was required to be ordered to be served cumulatively, and noting the effect at the time of sentence of liability to serve a further 18 months imprisonment of a total period of something in excess of three years and three months imprisonment, it necessarily followed that any parole eligibility date would be refixed past the half-way mark of the period of imprisonment.
[16]	Neither was there any failure of alerting the parties to the prospect of the order made by the Magistrate, nor opportunity to make submissions. It may be noted that this very prospect was the subject of submission by the prosecutor and discussion with the Magistrate, albeit upon a contention that 12 months was the appropriate term for the dangerous operation of a motor vehicle offence and identification of a prospective parole eligibility date “ about 19th July ‘22”. It may also be noted that after that, submissions were made by the appellant’s legal representative which recognised the inevitability of accumulation of the term for the dangerous operation of  motor vehicle offence and that the head sentence should attach to that offence and be in the range of nine to 12 months, but in order to avoid a crushing effect, reduced to six to nine months. There was also recognition that there was nine months remaining on the existing sentence and the submission was that it would be appropriate to look to one third of the total left to be served, as to the appropriate setting of a parole eligibility date and further that taking into account the period of pre-sentence custody, that could be brought back by a further period of about two months. 
[17]	However and as discerned upon the hearing of this matter, as arising from other issues raised for the appellant, there are two particular issues which, as appropriately conceded by the respondent, warrant the intervention of this Court to correct errors in the exercise of sentencing discretion by the Magistrate. They are:
(a)	Whatever else may be made of the consideration of the pre-sentence custody, there was no order made in compliance with s 159A of the PSA. Clearly the appellant had been in pre-sentence custody for proceedings for the offences for which he was sentenced since 7 April 2021. The facts that he was also returned to custody upon a warrant due to the suspension of his parole and that he then continued to serve his existing sentence in custody, does not change this position but may provide a basis for making another order pursuant to s 159A(3B); and
(b)	That contrary to the requirement in s 160F(2) of the PSA, in respect of fixing any parole eligibility that “the date fixed by the court must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment”, the date was here fixed in direct reference to the accumulated term, as the Magistrate explained in his sentencing remarks:
“Now, taking that into account and the fact that he has a full-time release in March ’22, and then this nine months is to be served cumulatively, I will allow one-third in respect of the parole eligibility date. So I will set the parole eligibility date three months later at the 19th of June ’22.”
At least in combination, these errors suffice as a basis for the re-exercise of sentencing discretion. It may be particularly noted that once the noted terms of imprisonment were imposed, s160B(2) of the PSA required that a parole eligibility date be fixed for the appellant’s period of imprisonment and that attention to the requirements of s 159A of the PSA has an immediate effect in focus upon how pre-sentence custody is to be treated and appropriately taken into account, consistently with s 9(2)(j) and (l) of the PSA.
[18]	The respondent’s submission remained that it was appropriate to fix the appellant’s parole eligibility date at 17 December 2021, which would be, consistently with a submission made for the appellant to the Magistrate, at the one third point of the 18 months’ imprisonment which the appellant became liable to serve when sentenced on 17 June 2021.
[19]	For the appellant, there was an attempt to shift from the position taken in written submissions and to raise the prospect of a different sentence structure.  Reliance was placed upon some information from a Deputy President of the Queensland Parole Board, which indicated that, as at 1 November 2021, “the average time for an application to be first heard is currently 166 days from the date the application was made”, with an expectation that this average would continue to decrease.
[20]	Clearly and as was frankly conceded and whilst the refixing of a parole eligibility date for the appellant might achieve an improvement in his present situation, in that it would enable an immediate application for parole, any such application could not be expected to be first considered by a parole board until sometime in April 2022.
[21]	Reference was made to R v Watson which stands as authority for the proposition that when confronted with circumstances like the present, where the expected delay in consideration of any parole application by the parole authorities is such as to prevent any consideration of any eligibility date set as an appropriate mitigation of a sentence, the matter is not necessarily beyond the control of the court and requires consideration as to “whether the appropriate mitigation of the sentence could be achieved by a different order”.
[22]	However, and whilst it may be accepted that other viable sentencing options must necessarily be considered in such circumstances, it is also necessary to note that Watson was also a decision concerned with the imposition of a period of imprisonment in a single sentencing exercise and without the complications of dealing with a period of imprisonment where there have been breaches of parole.  In Watson, the difficulty was in the extent of declared pre-sentence custody.
[23]	In this case, some particularly relevant considerations are that:
(a)	there would need to be consideration as to what viable alternatives were actually available, particularly having regard to the application of s 156A of the PSA;
(b)	the offending, which was the subject of the sentence imposed here, represented the second instance of the appellant’s reoffending after release to parole, in the existing period of imprisonment;
(c)	accordingly and in the first instance and quite apart from any sense of aggravation of the circumstances of his reoffending, the appellant’s liability to serve actual custody is the result of the suspension of his parole;
(d)	prior to the addition of nine months’ imprisonment, the total period of imprisonment was two years, six months and 18 days, from 19 June 2019, of which and prior to the date of sentence on 17 June 2021, the appellant had served approximately eight months in actual custody (19 June to 10 July 2019, 7 January to 25 June 2020 and 7 April to 17 June 2021); 
(e)	allowing for time counted upon release to parole, the appellant’s remaining liability under the existing sentence was approximately nine months (17 June 2021 to 19 March 2022) and some indicative benchmarks in the light of the addition of the accumulated sentence of nine months’ imprisonment, may be noted as liability to serve approximately:
(i)	18 months’ imprisonment from the date of sentence on 17 June 2021; and
(ii)	20 and one half months’ imprisonment from his return to custody on 7 April 2021.
[24]	Some particular difficulty in this case rests in understanding the clear indications of the desirability of a further release to parole, at an appropriate time, and the supervision of the appellant upon reintegration into the community. And also, that irrespective of the suggested adoption of some alternative sentencing approach, there would remain the necessity for the appellant to obtain parole again in respect of the existing period of imprisonment.  This would itself raise the unlikelihood of that being achieved before the pre-existing expiry date on 19 March 2022, as the position stood at the time of the hearing of this appeal on 19 November 2021.
[25]	Therefore and without having to fully consider the implications of s 156A of the PSA, in potential limitation of available alternative options, it may be discerned that an appropriate exercise of sentencing discretion in this case, is that the nine months’ imprisonment should remain as accumulated to the pre‑existing sentence, particularly so as to properly denounce the appellant’s reoffending and in achieving a proper sense of deterrence, both personal and general, and to allow for some prospect of a period of supervised release into the community, in order to facilitate the prospects of the appellant’s rehabilitation and thereby the ongoing protection of the community from the prospects of his reoffending.
[26]	In these circumstances, the proper mitigation of the appellant’s sentence, particularly in recognition of his preparedness to cooperate in and facilitate the course of dealing with this matter, by way of early guilty pleas, is appropriately achieved by refixing his parole eligibility date, so that he achieves an ability to immediately make an application for parole and which nevertheless properly meets the noted purposes in sentencing him.
[27]	In the circumstances and particularly noting that from the appellant’s return to custody from 7 April 2021, there remained in excess of 20 months’ liability to imprisonment, the appropriate point was 7 December 2021 or after eight months imprisonment had been served. That is, that despite s 159A(1) applying to all of the custody served from 7 April 2021, as “time that the offender was held in custody in relation to proceedings for the offence”, it is appropriate to order otherwise than that this time “be taken to be imprisonment already served under the sentence” and to make an order pursuant to s 159A(3B), to the effect that none of that time is to be so taken because it is also time served in respect of the existing sentence, upon suspension of parole, and otherwise taken into account in the fixing of the appellant’s parole eligibility date.