Brock Owen Wilson-Knight v Commissioner of Police

[2023] QDC 188

QUEENSLAND COURTS AND TRIBUNALS

TRANSCRIPT OF PROCEEDINGS

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DISTRICT COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE LYNCH KC

Appeal No 515 of 2023

BROCK OWEN WILSON-KNIGHT  Appellant

and

COMMISSIONER OF POLICE  Respondent

BRISBANE

10.25 AM, WEDNESDAY, 19 JULY 2023

DAY 1

JUDGMENT

Any rulings in this transcript may be extracted and revised by the presiding Judge.

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HIS HONOUR: This is an appeal against sentence pursuant to section 222 of the Justices Act. Pursuant to subsection (2)(c), appeal may only proceed on a ground that the punishment was excessive. The appellant appeared before the Magistrate on the 22^nd of February 2023, and, on his behalf, pleas of guilty were entered to a total of 50 offences.  The learned Magistrate sentenced the appellant in respect of a charge of dangerous operation of a motor vehicle to two years’ imprisonment, he sentenced him to concurrent terms for some of the other offences and imposed no penalty in respect of some of them, and made orders for compensation and referred the compensation orders to the State Penalties Enforcement Registry.

The offences are identified in the material before me.  There is a schedule of facts that was before the Magistrate.  It seems to me there are a number of anomalies in the way that the proceedings progressed before the learned Magistrate but in respect of which no complaint is made in the hearing of this appeal.  The Prosecutor, in the proceedings before the Magistrate, identified the charges as follows:

There are 50 charges remaining before the Court, dated between the 7^th of the 1^st 2022 and the 31^st of August 2022.  That includes six breaches of bail, 13 domestic violence offence – contravention domestic violence offences, two threatening violence at night, eight driving unlicensed, two possessing utensils, three frauds, one enter premises, two stealing, two receiving tainted property, one plates, one making noise, two unlawful use of motor vehicle, one possessing dangerous drugs, one knife, one possessing property suspected of – unlawful possession of suspected stolen property, one evasion, one wilful damage and one dangerous operation.

The Magistrate did not have the charges, even in a bulk way, read to the defendant and ask the defendant to enter a plea but instead accepted the assurance from the bar table by the legal representative of the appellant that pleas of guilty were entered.  There were a number of amendments made to various charges, and some were withdrawn, but the 50 charges were those remaining after that process was undertaken.  It seems to me not in accordance with appropriate procedure that the offences were not identified in a formal way as part of the arraignment process and that pleas of guilty were taken without having the defendant enter them but, rather, through the legal representative.  However, as I have noted, no complaint is made about that on the hearing of this appeal.

In addition, when the learned Magistrate came to sentence the appellant, the learned Magistrate did not read out the sentence that was imposed in respect of each of the 50 charges.  Instead, the learned Magistrate, in a summary way, identified the overall head sentence.  He apparently was in possession of the document which noted the sentence imposed for each of the offences and was prepared to make that available to the parties.  It seems to me an entirely inappropriate way to formalise the sentencing process in a criminal matter to deal with things in that way. 

I appreciate that the parties were in agreement with the process in front of the Magistrate and that this was a method of shortcutting things and saving time,

especially in the circumstance of there being many charges and it being a time-consuming process and the Magistrates Court, of course, being a very busy Court.  But it seems to me to be entirely unsatisfactory that things proceeded in that way simply for the sake of convenience because, as is obvious when it gets to this point, it is impossible from the formal record of proceedings to identify particularly the charges and what sentence was in fact imposed, and to be certain without the assurance of those representing the appellant that he in fact understood all of the charges and willingly entered pleas of guilty to them.  As I say, those features are unsatisfactory and should not have occurred, but no complaint is made about the way things were done.

In addition, in the proceedings before the Magistrate, a pre-sentence custody certificate was in evidence, and that identified 190 days of pre-sentence custody that could be declared time served. The Magistrate purported to declare pre-sentence custody as time served under the sentence or sentences he imposed. However, the transcript of his decision records that he declared 199 days of pre-sentence custody, not the 190 identified in the pre-sentence custody certificate. It may be that the transcript of the Magistrate’s decision is inaccurate. It could have been simply a slip of the tongue. If the Magistrate had followed the correct procedure identified under the Penalties and Sentences Act of identifying the dates between which he was declaring pre-sentence custody, then the matter would be easily resolved. That was not done. And so another error in the formal process is identified in the material, but again, no complaint is made about that, and I am urged to proceed on the basis that there were, in fact, 190 days of pre-sentence custody declared time served.

A further issue identified by the appellant is the assertion by the legal representative then acting for the appellant that the Magistrate, in fact, ordered parole release as at the date of sentence.  The transcript of the Magistrate’s decision suggests that instead of the 22^nd of February 2023, that is, the date of the hearing before the Magistrate, the Magistrate ordered parole release from one month later, that is, on the 22^nd of March 2023, and I am told that was, in fact, the date that the appellant was, in fact, released on parole.  It could be that there was a mistake or an error on the part of the lawyer then acting for the appellant in recording the date. 

It seems to me I should proceed on the basis that the verdict and judgment record was consistent with the transcript of the decision of the learned Magistrate, which would mean that, in fact, the Magistrate ordered parole release from March 2023, and that was when the appellant was released.  I am urged on the hearing of the appeal to treat the decision as being correct and correctly recording what was, in fact, ordered.  Consistent with when the appellant was released, I will do so.  It seemed to me necessary to refer to all of these apparent anomalies and to identify that no point is taken on the hearing of this appeal about any of these anomalies that occurred in the course of the proceedings below.

The appellant contends that the sentence is manifestly excessive.  It is submitted, in effect, that a sentence in the range of 12 to 15 months might have been appropriate for the dangerous operation offence dealt with by the Magistrate if viewed on its own

but that to increase the penalty to one of two years was excessive, having regard to that offence, or even having regard to all of the offences is manifestly excessive.  It was submitted that the Magistrate’s reasons are deficient to the extent that they do not explain clearly the approach taken by the Magistrate.  So it is left either to guesswork or to draw an inference that the Magistrate was imposing a penalty to reflect all of the offending rather than simply his view of the seriousness of the dangerous operation charge.

The appellant contends that, having regard to a number of what are said to be comparable decisions, the sentence imposed was excessive and that, all told, it should not have exceeded at most perhaps 18 months imprisonment.  The appellant of course relies upon those matters identified in the written submissions as mitigating the penalty, including the pleas of guilty, and the young or comparatively young age of the appellant, that he did not have a lengthy criminal history and that many of the offences were not offences of violence.  It was submitted that, overall, the offences do not reach the level contended for or imposed by the Magistrate or contended for by the respondent. 

The respondent opposes the appeal and argues in effect that there were other serious offences before the learned Magistrate and the inference should be made that the learned Magistrate took account of the fact of the plea of guilty that was obvious in the proceedings, and the nature of all of the other offences, and imposed a sentence of two years imprisonment to reflect the overall criminality, having regard to other serious offences that were before the Magistrate.  The respondent relies upon a number of decisions said to be comparable cases and supporting the imposition of a sentence of two years imprisonment as an overall appropriate penalty.  I have of course had regard to the material that is before me, which includes the schedule of facts for the 50 offences that were before the learned Magistrate.  The summary of the offences as was put on the record by the Prosecutor below, it seems to me, does not do justice to the number or seriousness of some of them.  The dangerous operation offence was regarded by the Magistrate as the most serious and it is consistent with ordinary sentencing approaches that he might impose the head sentence to reflect all of the criminality in respect of the most serious of the offences, although he did not expressly announce that that was what he was doing. 

Nevertheless, there were other offences of seriousness.  The offences, referring to some of the more serious ones, included an offence of unlawful use of a motor vehicle, which involved the appellant and another person jointly taking a car.  The appellant drove a vehicle in support of the other offender.  They drove into a carpark where a vehicle was situated, smashed their way into it and then drove that vehicle away.  The appellant’s role in that was to drive the getaway vehicle.  The stolen vehicle is said not to have been recovered.  There was a second offence of unlawful use of a motor vehicle, a vehicle was taken in the course of a burglary and the appellant committed a number of offences whilst driving that vehicle, but the unlawful use of that vehicle was one of the offences that he was sentenced for and he was found ultimately slumped over the steering wheel, clearly affected by drugs and then taken into custody.  As I say, that vehicle was used in the commission of other offences.

There were other offences of relative seriousness, including some of the offences of contravention of the protection order.  These included, for example, an offence on the 20^th of March of 2022, when the appellant went to the residence of the aggrieved, his former partner, without permission and was banging on the door, yelling abuse, creating a disturbance, but then used a vehicle to perform a burnout on the front lawn.  Of course, any of the driving offences before the Magistrate included an offence of driving whilst disqualified because the appellant had been disqualified from driving and should not have been driving a vehicle on any occasion.  Another offence, a driving offence, although not an offence of particular seriousness on its own, included an occasion he was driving a vehicle and was seen at an intersection to do a burnout for a number of seconds at a set of traffic lights, generating smoke and noise, leaving marks on the roadway, and then driving away.  Of course, he should not have been driving at all because he was disqualified.

Another of the contravention of a domestic violence order offences of the 27^th of April included the appellant attending the residence of the aggrieved without permission at 6.30 am, waking her up and knocking on the bedroom window and becoming verbally abusive and swearing because he was upset that he was not permitted at his convenience to see his child.  Of course, he attended there in a vehicle and had no licence.  Another of the offences was one of entering premises and committing an indictable offence by breaking.  This offence occurred between the 4^th and the 6^th of June of 2022.  The appellant’s fingerprints were found at the scene.  It was a property which included a dwelling and a number of sheds.  The sheds were broken into, a quantity of rubbish left there, and property valued at over $18,000 taken.  The appellant admitted being there, admitted dumping some rubbish there, but denied stealing any of the items.  That seemed to me another offence of particular seriousness.

In addition, there is another offence of contravention of the protection order on the 28^th of July 2022.  The appellant was driving a vehicle which he was unlawfully using.  He went to the property again when the terms of the order precluded him going there.  He was yelling and abusive and demanding to see his son.  He spun the wheels of the vehicle on the grass at that location, again of course, at a time when he did not have a licence.  The dangerous operation of a motor vehicle offence occurred on the 28^th of July of 2022.  The aggrieved, in respect of the domestic violence order, was driving a vehicle and the appellant was following her, driving a vehicle.  He followed her and flashed spotlights from the vehicle he was in at the vehicle ahead of him.  This occurred at night time.  The aggrieved drove the vehicle she was in down a side street.  It was a cul-de-sac.  The appellant followed in the vehicle he was driving and blocked the aggrieved’s vehicle.

The aggrieved attempted to turn around and the appellant drove his vehicle into the side of the vehicle driven by the aggrieved, hitting the driver’s side door.  As a result, the aggrieved drove the vehicle she was driving, trying to avoid the appellant, into a mailbox and then around and away from the appellant.  Of course, the appellant should not have been driving.  The offence of unlawful use of course is one that I have already referred to.  That is a Nissan Navara that was stolen and the appellant

was found on the 5^th of August 2022 to be still driving that vehicle, but to be slumped over the vehicle, which was stationary.  There are some other offences of contravention of the protection order, which had some elements of seriousness to them because of the nature of the conduct engaged in by the appellant.  For example, an offence of the 14^th of August 2022 involved the appellant going to the aggrieved’s residence at night time, late at night, driving his vehicle onto the front lawn, demanding to see his son and yelling abuse and making threats towards the aggrieved, including that he would shoot everyone.

Another contravention of the 14^th of August involved the appellant sending messages to the aggrieved, again threatening to kill her and threatening to shoot her and others, including the police.  Another contravention included an event on the 16^th of August 2022 where the appellant, in fact, entered the residence of the aggrieved without permission, was found by her stumbling in the hallway, demanding to see his child.  She managed to push him out of the residence and the appellant made a threat that he would get a gun and shoot her.  Ultimately, after the appellant’s arrest, there was another contravention of the protection order which was committed by way of him having contact with the aggrieved without her permission.  He arranged, through the agency of another prisoner, to have someone else call the aggrieved so that she answered a call without knowing who it was, and through a three-way call, the appellant was able to speak with the aggrieved.  This, of course, was recorded as part of the security involving the prison telephone system, and the aggrieved confirmed she did not give the appellant any permission or authority to contact her.

The other offences are as outlined in the schedule.  It seemed to me necessary to refer to some of them in the way that I have for the purpose of identifying the nature of and seriousness of some of the offences.  The real issue, it seems to me, on the hearing of this appeal is whether the sentence imposed by the learned Magistrate is out of proportion to the total criminality involved in all of the offences.  As is obvious also, and is accepted by the appellant, the appellant was arrested and charged with offences over the course of this spree of offending and then released on bail so that some of the offences occurred in circumstances where he had been released on bail.  The appellant has a criminal history.  It is not a lengthy one, and it does not include prior offences of violence.  The first offence on the history is one of contravention of a protection order.  The offence occurred in 2018 and the appellant was fined for that conduct and no conviction was recorded.  There are some drug offences on the history for which fines were imposed without conviction or, on one occasion a conviction was recorded, I should say.  There was an offence of failing to appear and an offence of fraud occurring in 2022, for which the appellant was fined.

The appellant has a traffic history which includes two prior offences of unlicensed driving and three offences of driving whilst disqualified, all of those offences occurring between August 2019 and August 2022.  That, of course, is relevant to the 8 driving disqualified offences that the appellant was to be sentenced for.  The parties refer to a number of decisions, either of the Court of Appeal or of Judges of this Court in which sentences have been imposed for offences of dangerous

operation of a motor vehicle.  Whilst I am prepared to accept that a sentence, if viewed on its own, of two years imprisonment would have been excessive in respect of the offence of dangerous operation of a motor vehicle, I am not satisfied that that sentence is inappropriate or excessive in any way, having regard to the multitude of offences that the appellant was to be sentenced for and the seriousness of some of them.

This was a significant spree of offending, albeit by a young person without a significant criminal history, but, in respect of which, there were multiple offences after having been charged with offences and a continuing wilful disobedience of orders preventing him from driving or having contact with the aggrieved and in circumstances where his conduct was directed to intimidate and overbear the aggrieved.  It seems to me the appellant carried on as if he was not obliged to follow the requirements of the protection order and could do as he pleased.  Although, as is made plain by the learned sentencing Magistrate, some of the offences were less serious and involved only simple contact with the aggrieved, some of them were in a significantly more serious category.  Quite apart from that, there is the seriousness of the dangerous operation charge, which involved the deliberate use of the vehicle to obstruct and drive into the vehicle driven by the aggrieved, serious conduct on its own, involving, as it did, the real potential for injury to any member of the public.  And the other serious offences, for example the offences of unlawful use of motor vehicles and breaking and entering and theft of significant quantity of property.

Taking account of all of those offences, it seems to me that no legitimate complaint can be made about a sentence of two years’ imprisonment.  The appellant eventually was released after a period of about seven months or so in custody, perhaps seven and a-half months in custody, and that is slightly less than the one-third mark that might have been appropriate.  Taking account of all of the circumstances of the offending, it seems to me that it cannot be said that the sentence is excessive.  Although there are a number of features of the proceedings before the learned Magistrate which were unsatisfactory, and although it might have been more helpful if the Magistrate had particularly identified the basis upon which he imposed the sentence of two years, nevertheless, having regard to an examination of all of the offences, I am satisfied that the sentence imposed was one which was commensurate with all of the offending.

The powers of this Court regarding an appeal are set out in section 225 of the Justices Act. On the hearing of the appeal, the Court may confirm, set aside or vary the appealed order or make any other order or in the manner the Judge considers just. In the circumstances where I am not satisfied that the appeal as argued should succeed, the appropriate order is to simply dismiss the appeal. In the circumstances, therefore, the order I make is that the appeal is dismissed. Is there any further order required?

MS WHITFIELD:   No, thank you.

HIS HONOUR:   All right.  Thank you for your assistance.  We will just adjourn.

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