Enright v Queensland Police Service

[2023] QDC 91

DISTRICT COURT OF QUEENSLAND

CITATION:

Enright v Queensland Police Service [2023] QDC 91

PARTIES:

KYE ENRIGHT

(appellant)

v
QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

2787/22

DIVISION:

Appellant

PROCEEDING:

Appeal 

ORIGINATING COURT:

Magistrate’s Court in Brisbane

DELIVERED ON:

30 May 2023

DELIVERED AT:

Brisbane

HEARING DATES:

22 May 2023

JUDGE:

Sheridan DCJ

ORDER:

1.    An extension of time to file the notice of appeal is granted.

2.    The appeal against sentence is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – where appellant seeks an extension of time for filing notice of appeal

CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant pleaded guilty to sixteen offences the most serious being dangerous operation of a motor vehicle (aggravated) – where appellant sentenced to fifteen months imprisonment, to be served cumulatively on an existing eight year sentence – where effect of sentence extended the appellant’s parole eligibility date by four months – whether sentence imposed was manifestly excessive.

LEGISLATION:

Justices Act 1886 (QLD) s 222, s 224

CASES

R v Kendrick [2015] QCA 27

R v Hill [2017] QCA 177

House v The King (1936) 55 CLR 499

Hili v The Queen (2010) 242 CLR

Wong v The Queen (2001) 207 CLR 584

AB v The Queen (1999) 198 CLR 111

COUNSEL:

MJ Hynes for the appellant
M Bros-Wilshire for the respondent

SOLICITORS:

Hannay Lawyers for the appellant
Office of the Director of Public Prosecutions for the respondent

Introduction

1. On 11 October 2022 the appellant pleaded guilty to 16 offences and was sentenced in the Magistrates Court of Brisbane to an effective term of fifteen months imprisonment to be served cumulatively on an existing eight-year sentence with the parole eligibility date of 30 July 2023 extended by four months to 30 November 2023. 

2. By the notice of appeal dated 11 November 2022 and filed 15 November 2022 the appellant appeals on the sole ground that the sentence imposed was manifestly excessive.

   The Offences

3. The offences before the Magistrate extended over a 4 ½ month period.  The offences occurred on eight separate occasions, with the first of the offending occurring on 13 March 2019 and the last on 31 July 2019. 

4. The head sentence of 15 months imprisonment attached to the charge of dangerous operation of a vehicle with a circumstance of aggravation namely with two prior convictions; that offending being the last in time.

5. The other offending included unlawful use of a motor vehicle, two offences of driving without a licence, possession of tainted property, two offences of entering a dwelling with intent to commit an indictable offence, unlawful possession of drugs, weapons (a shortened shotgun) and ammunition, evasion of police, two failures to appear and contravention of a probation order. The sentences imposed for this offending were shorter concurrent terms with the appellant convicted and not further punished for the lesser offences.

6. The existing eight-year sentence had been imposed by the Supreme Court on 22 May 2022.  On that occasion the appellant was sentenced for three counts of possession of drugs on one indictment and four counts on the other indictment. The offences on the four count indictment were unlawful use of a motor vehicle, two counts of supply of dangerous drugs and the most serious count manslaughter.  The possession had occurred on 22 June 2019 and the other offending including the count of manslaughter had occurred on 1 July 2019; within the period of the offending before the Magistrate.

   Sentencing Remarks of the Magistrate

7. The learned Magistrate commenced her sentencing remarks by detailing each of the charges for which the appellant was to be sentenced.

8. The most serious charge of dangerous operation of a vehicle with a circumstance of aggravation arose as a consequence of police looking for the appellant due to his connection with a suspected murder.  At 12.50pm the appellant was observed by police driving a vehicle.  The police activated their lights and siren, directing the appellant to stop.  The appellant instead accelerated away, leading the police on a lengthy pursuit.  The appellant’s driving included driving through red lights, turning in front of oncoming vehicles, travelling at speeds of up to 200kms, overtaking on unbroken lines and driving on the wrong side of the road

9. The appellant drove dangerously at speed for a long distance for a period of about 30 minutes.  Other road users were forced to take evasive action.  It was a serious example of such offending, in circumstances where the appellant had two previous convictions of a relevant offence at the time.  The appellant ultimately stopped. He decamped into private property but surrendered when approached by police.  Police found in his vehicle a number of items which gave rise to the other offences for which he was charged. 

10. The Magistrate commented that the appellant’s offending must be seen in the context of his criminal history and antecedents.  The appellant was 24 at the time of sentencing and was 21 at the time of the offending.  The Magistrate commented that the appellant had “accumulated a significant and concerning criminal history.”  It was noted his history had begun when he was a juvenile, and included similar offences where convictions were recorded.

11. The appellant’s history included offences of unlawful use of a motor vehicle, property offences and drug offences.  The appellant had been released after spending 119 days in custody on a probation order and then within one month of his release he had commenced the offending which was before the Magistrate.

12. The Magistrate observed, having read the sentencing remarks of Justice Flanagan when he was sentencing the appellant for the offending which included the count of manslaughter, that the appellant had a disadvantaged and dysfunctional childhood, being raised by methylamphetamine-addicted parents who separated when he was three.  His mother was admitted to psychiatric care and the appellant and his sister were placed into the care of his maternal aunt by child safety.  The Magistrate noted that it was during his time in detention that he received some education beyond year 8, when he had originally left school.

13. It was at age 17 that the appellant commenced using methylamphetamine and quickly became addicted. The Magistrate commented that that the appellant was still using or involved in methylamphetamine at or around the time of the offending before her.

14. The Magistrate found that, having regard to the nature of the offending and his history, personal and general deterrence assumed significance together with the need for the protection of the community.

15. The Magistrate recognised that the sentence was complicated by the appellant’s conviction and sentence imposed by Justice Flanagan following the pleas of guilty to manslaughter (together with the two unlawful use counts and two supply of dangerous drugs counts) with the parole eligibility date on the sentence of eight years imprisonment set after four years.  Her Honour noted that the circumstances of the offending before her was not before Justice Flanagan.

16. The Magistrate detailed the facts surrounding the manslaughter charge. It occurred in what was to be a drug transaction with the appellant’s criminal liability arising under s 8 of the Criminal Code: whilst he had commenced the altercation and knew his co-accused had a knife, he was not the one who used the knife.

17. The Magistrate said there were a number of mitigating factors she needed to take into consideration.  The Magistrate referred to the appellant’s age, pleas of guilty, the significant time already spent in custody and the fact that the appellant was still liable to spend more time in custody and said that she needed to be mindful that the appellant still has prospects of rehabilitation, noting the drug courses the appellant had undertaken while in custody.  

18. The Magistrate specifically recognised that the sentence needed to involve the application of the principles of totality. 

19. The Magistrate noted that both the prosecutor and the appellant’s solicitor submitted that she could simply convict and not further punish or impose a concurrent sentence and not interfere with the parole eligibility date, but concluded that she could not accept those submissions. The Magistrate gave detailed reasons for not doing so. The Magistrate referred at length to the decision of the Court of Appeal in R v Kendrick[1] and the cases referred to therein in the judgment of Morrison JA.

    [1][2015] QCA 27.

20. The Magistrate considered that the offending represented separate episodes or transactions, though cognisant of the need to avoid a crushing sentence and of the need to impose a sentence that was just in all the circumstances.  The Magistrate recognised that the offending for which she was to deal had occurred at a time around the appellant’s commission of the offence of manslaughter and the related offences.

21. The Magistrate noted that both the prosecutor and the appellant’s solicitor had accepted that a term of two years or more could be imposed on the dangerous driving offence had that been the only charge before the court.

22. The Magistrate referred to the decision of R v Hill[2] and commented that she considered that decision was of some assistance. The respondent in Hill had committed further offending whilst on parole. The Magistrate referred to comments by Justice Applegarth and cases he referred to.  The Magistrate referred to statements in the judgment of the need to ensure the sentence imposed is not a crushing burden and, at the same time, commenting that it would plainly be an error to structure the later sentence so as to disregard the commission of yet another offence of the same description.  The Magistrate repeated his Honour’s observations of there being a good reason for avoiding a sentence which would effectively destroy any hope a prisoner may have of rehabilitation and commented that she was particularly mindful of that, given the appellant’s very young age.

    [2][2017] QCA 177 (Hill).

    Mode of appeal

23. The appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld).

24. An appeal under s 222 is way of a rehearing on the original evidence. The hearing requires the court to conduct a real review of the evidence. Given the grounds of appeal, the ultimate question is whether the sentence imposed was manifestly excessive.

25. The High Court in House v The King[3]stated:

    “It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”

    [3](1936) 55 CLR 499 at [504].

26. The concept of a sentence being manifestly excessive was considered in Hili v The Queen[4] where the Court in referring to the plurality in Wong v The Queen stated:

    “[A]ppellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’”[5]

    [4](2010) 242 CLR 520.

    [5](2010) 242 CLR 520 at [59] quoting Wong v The Queen (2001) 207 CLR 584 at [58] (Wong).

27. Rather, it was said, again referring to the plurality in Wong:

    “[I]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”[6]

    [6]Hili v The Queen (2010) 242 CLR 520 at [59] quoting Wong at [58].

28. In order to succeed, the appellant must establish some legal, factual or discretionary error.

29. If successful, the court is obliged to exercise a sentencing discretion afresh in relation to the offence.[7]

    [7]AB v The Queen (1999) 198 CLR 111 at [130].

Extension of time to appeal

1. The notice of appeal was filed four business days after the expiry of the relevant expiry date for lodgement of the notice of appeal.   

2. It was submitted that the appellant was incarcerated at the relevant time which delayed his legal representatives obtaining instructions prior to the expiry of the period.  The respondent consented to the grant of an extension.

3. In the circumstances, an extension of time should be granted for the filing of the notice of appeal under section 224(1) of the Justices Act 1886 (Qld) and the court should proceed to consider the merits of the appeal.

   Submissions on appeal

4. The ultimate submission on behalf of the appellant was that both the head sentence of 15 months to be served cumulatively and the four-month extension of the parole eligibility date meant that the sentence imposed by the Magistrate was manifestly excessive in the circumstances. 

5. In the written submissions filed in support of the appeal, it was accepted that the appellant’s conduct was serious and that additional punishment was warranted to give effect to the principles of deterrence, denunciation and community protection.  However, it was submitted that other competing considerations including totality, youth and rehabilitation, should have resulted in an extension of the appellant’s full time discharge date by 12 months with his parole eligibility date remaining unaffected.

6. It was submitted that one approach could have been to try all the offences as “one multifaceted course of criminal conduct” that should have attracted concurrent sentences.  However, despite that statement, it was said that no issue was taken with the imposition of a cumulative term of imprisonment.  It was accepted that the imposition of a cumulative term was not the subject of appeal and, it was submitted, nor could it have been.

7. In oral submissions, the deference of the appellant’s eligibility date by four months was said have resulted in a sentence that was manifestly excessive; rather than necessarily the imposition of the head sentence of 15 months imposed for the most serious offending, namely the dangerous operation of a motor vehicle with the circumstance of aggravation.

8. The respondent submitted that the sentence imposed was not outside the exercise of a sound sentencing discretion.  The prosecution submitted that the Magistrate correctly took into account the relevant considerations and clearly articulated her reasons, having given sufficient weight to the relevant factors.   The prosecution said that it was apparent the Magistrate was cognisant of the complicated nature of the matter because of the sentence imposed by the Supreme Court and the application of the principles of totality.

9. The prosecution referred in their written submissions to the serious level of criminality for the offence of dangerous operation of a motor vehicle with the appellant’s two prior convictions, the appellant’s criminal history, the appellant having been on probation at the time of the offending, the offences having been committed within one month of release from custody, the offending being categorised as separate episodes of offending and the need to apply totality considerations; submitting that the Magistrate identified and applied the relevant principles.  In all the circumstances, it was submitted that the Magistrate made no error in the exercise of the sentencing discretion and the sentence was not “plainly unjust or unreasonable” in the circumstances.

   Consideration

10. The reasons of the learned Magistrate were comprehensive and careful. It is not suggested that the Magistrate made any error in her appreciation of the facts, nor took into account any irrelevant consideration or failed to take into account any relevant consideration. It is not suggested that the Magistrate erred in principle.

11. The question is then whether for some other reason the sentence can be adjudged to be manifestly excessive.

12. It is clear, as the Magistrate found, that the offending should be categorised as separate to the count of manslaughter and related offences dealt with by the Supreme Court.  In those circumstances, the sentence imposed was correctly cumulative on the sentence imposed by the Supreme Court.

13. As to the sentence itself, it was recognised below that the most serious offence of dangerous operation of a motor vehicle, in the circumstances could have resulted in a head sentence of two or more years.  The appellant had two prior convictions for such offending, and the facts of the offending made it a very serious example of that type of offending. The sentence imposed was less than that, namely 15 months imprisonment.

14. In that context, taking into account the plea of guilty, the parole eligibility date itself was clearly within range.

15. The question then is whether the sentence, given the sentence in the Supreme Court and the parole eligibility date set under it, was crushing.

16. The appellant was 21 at the time of the offences and had a disadvantaged background. On the other hand, since the age of 18 years, he had been sentenced to successive periods of imprisonment for similar offences; including unlawful use of a motor vehicle, possession and supply of dangerous drugs and contravention of a domestic violence order. Some of these offences occurred shortly after he had been released from custody, or whilst on probation or parole.

17. Taking into account the offences the subject of the sentence and the facts which gave rise to them and that the sentence should be cumulative on the sentence by the Supreme Court, it is not possible to conclude that the effective extension of the parole eligibility date was excessive.  

18. The Magistrate made no error in the exercise of the sentencing discretion and the sentence imposed was plainly just in all the circumstances.

19. Accordingly, the orders made are:

    1.   An extension of time to file the notice of appeal is granted.

    2.   The appeal against sentence is dismissed.