Foster v Queensland Police Service

[2014] QDC 264

DISTRICT COURT OF QUEENSLAND

CITATION:  

Foster v Queensland Police Service [2014] QDC 264

PARTIES:

JASON GLEN FOSTER
(Appellant)

V

QUEENSLAND POLICE SERVICE
(Respondent)

FILE NO/S:

No 222 of 2014

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court Townsville

DELIVERED ON:

28 November 2014

DELIVERED AT:

Bowen

HEARING DATE:

13 November 2014

JUDGE:

Durward SC DCJ

ORDERS:

1.   Appeal allowed

2.   The sentences imposed in the Magistrates Court at Townsville on 08 July 2014 are varied in respect of those terms exceeding 4 months imprisonment.

3.   The appellant is to be re-sentenced on a date to be fixed.

CATCHWORDS:

LEGISLATION:

CASES:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – whether sentence of 12 months imprisonment upon young offender for property offences committed shortly after 18^th birthday was excessive despite juvenile criminal history – whether sentence structured to include further probation should have been made – whether magistrate did not properly consider sentencing options other than imprisonment – whether magistrate placed too much emphasis on deterrence and punishment – whether magistrate did not properly consider mitigating circumstances and rehabilitation – whether pleas of guilty taken into account.

CRIMINAL LAW – SENTENCING – where appellant had served 4 months of 12 month sentence – how re-sentencing should be structured to provide for probation – where treatment programmes and other intervention had not occurred under juvenile order that appellant had breached – whether juvenile order had time to be effective – comparative observations about parole and probationary supervision.

Justices Act 1886 sections 222 and 225; Penalties & Sentences Act 1992 section 13.

House v The King (1936) 55 CLR 499; Hughes v Hopwood (1950) QWN 21; Hili v The Queen (2010) 242 CLR 520; R v Morse (1979) 23 SASR 98; R v Lemass (1981) 5 A Crim R 230; Lowe v The Queen (1984) 154 CLR 606; R v McIntosh [1923] St R Qd 278.

COUNSEL:

EG Bassett for the appellant
Mrs C Ahern for the Respondent

SOLICITORS:

Legal Aid Queensland for the Appellant
Office of the Director of Public Prosecutions for the Respondent.

The appeal

[1]      The appellant, Foster, appealed against a head sentence of twelve months’ imprisonment (with a parole release date at the four month mark) imposed in the Magistrates Court at Townsville on 08 July 2014, on the ground that the sentence was excessive.

[2]      Eight concurrent sentences of imprisonment of shorter duration were made.  The offences were primarily property related.  The head sentence was imposed on an enter premises and commit indictable offence charge. 

[3]      Nine of the eleven offences were committed in an approximate four week period in March-April 2014. 

[4]      The appellant was also re-sentenced by the imposition of concurrent terms of imprisonment, in respect of two breaches of community based orders that had been imposed in January 2014 in respect of entering premises and committing an indictable offence and drug offences, respectively.  The breaches were constituted by the more serious of the nine offences committed in the four week period to which I have referred. 

[5]      The appellant pleaded guilty to the nine offences in the Magistrates Court.  The two breaches of community orders were admitted. 

[6]      The four month period of actual imprisonment (parole release date 17 August 2014) was one-third of the head sentence.  81 days of pre-sentence custody was declared, which left about 40 days to be served before release on parole.  The appellant has served the full four months’ imprisonment. The full time release date is 17 April 2015.

The appeal proceeding

[7]      I heard the appeal on 13 November 2014.  I granted the appeal and reserved these reasons.  I adjourned the resentencing of the appellant to a date to be fixed.

Antecedents

[8]      The appellant is aged 18 years (date of birth 28 February 1996).  He was 17 years of age when the community based orders were imposed and just 18 years when he committed the offences over the four week period in March-April 2014. His criminal history as a juvenile commenced in February 2009 when he was 13 years of age. The juvenile offences were typically generally of a property nature. On 26 September 2012 he was sentenced to 3 months detention to be served by way of a Conditional Release Order when he was 16 years of age.

The specific ‘excessive’ grounds

Plea of guilty not taken into account1.          

[9]      Mr Bassett submitted that the magistrate did not explicitly take the pleas of guilty into account. Mrs Ahern submitted that the magistrate referred to the pleas of guilty, having said: “I take into account your pleas of guilty and otherwise your co-operation with the authorities”. She said that had given proper regard to the pleas.”

Observations

[10] The magistrate complied with section 13(1) of the Penalties and Sentences Act 1992. He took the guilty pleas into account and said as much in open court; his Honour imposed actual imprisonment of one-third of the head sentence, which is generally indicative of the recognition of a plea or pleas of guilty. Hence section 13(5) does not need to be considered.

2.Matters of mitigation and prospects of rehabilitation    .

[11]      Mr Bassett submitted that the magistrate had failed to properly consider matters of mitigation and prospects of rehabilitation. Mrs Ahern submitted that the magistrate referred in his Decision to the appellant’s age.

Observations

[12]      His Honour did refer to the appellant’s youth and co-operation, but this was in the course of reference to what he considered to be aggravating circumstances of the offending.  He referred to the pre-sentence custody period, but only in the context of declaring it as time served in respect to the sentences.  He did not refer to the other matters submitted to him which arguably may have been taken into account in mitigation of punishment.

3.Deterrence and punishment.   

[13]      Mr Bassett submitted that the magistrate had placed too much weight on deterrence and punishment. Mrs Ahern submitted that the magistrate referred to rehabilitation in the course of the sentencing submissions. 

Observations       

[14]      However, his Honour did not refer to rehabilitation or prospects of rehabilitation in his Decision, other than to say that he had “… borne in mind the relevant considerations in the Penalties & Sentences Act”, a statement made in the context of referring to “aggravating features” of the offences and the imposition on the appellant serving “… another month’s, or thereabouts in prison …” after taking into account the pre-sentence custody period.

[15]      I do not think that the magistrate had proper regard to rehabilitation, particularly in the context of the appellant’s age and the fact that the two offences breached by the four week period of offending were imposed when the appellant was still 17 years of age and that the nine offences that were committed in the March-April 2014 period occurred very soon after his 18^th birthday.

4.Failure to consider other sentencing options   

[16]      Mr Bassett submitted that the magistrate had failed to consider sentencing options other than imprisonment. Ms Ahern submitted that the magistrate was able to treat each of the appellant’s previous convictions as aggravating factors when formulating the appropriate sentence. 

Observations       

[17]      That submission by Mrs Ahern seems to me to imply the obvious: his Honour did not consider other sentencing options, other than what one might infer from his statement that “… it seems that you haven’t been able to stay clear of committing these offences even whilst on probation and a community service order. It’s an aggravating feature that you’ve committed further offences whilst on probation and whilst on community service.”

Discussion

[18]      In the course of the submissions in the Magistrates Court, the prosecutor informed the magistrate that the appellant had “… a history since 2009 of property offending.  It appears rehabilitation is not an option for the defendant at this stage”.  His Honour interposed that “Well, I hope that we don’t quite have to throw the key away when you are 18 but …”, and the prosecutor continued, “My submission would be that he doesn’t seem to be willing to participate in that sort of option at this stage and deterrence is necessary at this stage …”  His Honour responded, “Yeah.  Okay.”

[19]      The solicitor representing the appellant, Ms Armitage, submitted to the magistrate that, “… although we have to bear in mind that the majority of [the pre-sentence custody] is as a juvenile and he has only one entry as an adult for which he was placed on probation and community service.  He is young enough that the court, in my submission, still has to take rehabilitation into account as a significant factor”, to which his Honour responded, “Oh, yes.  No.  Yes.  That’s what I just said to the prosecutor.”

[20]      She further submitted that, “I would also seek to turn your Honour’s attention to the breach matters.  The situation for Mr Foster is the report reflects that when he did meet up with them, he was able to engage adequately with him, but he just simply didn’t attend and comply … so they have identified areas where he could be referred to services that would benefit him”, to which his Honour replied, “Yeah.  If he turns up to listen to them.  Look, Ms Armitage, I think there is a case, and I don’t like them, but there’s a case to be made for a cumulative sentence here.  He commits an offence of burglary in January, gets a sentence, then he commits further offences.  I had in mind a global penalty of twelve months, I have to say”, and then responded to Ms Armitage’s submission that there was “a real benefit in allowing those orders to continue” by saying, “Yes.  Well, he will be on parole for a substantial period of time if I give him twelve months head sentence.” 

[21]      The report that was referred to, dated 28 May 2014, was made by Queensland Corrective Services in response to the breach offences. The following paragraphs extracted from the report reflect some of what was referred to in those submissions: 

“In regards to his reporting obligations, Mr Foster’s compliance has been poor given that within a short period of time he has failed to report on three occasions namely 24 January 2014, 7 March 2014 and 8 April 2014.  A review of departmental records indicates Mr Foster has engaged with staff in an appropriate manner. 

During interview on 4 April 2014 Mr Foster denied any changes that he would be required to update with this Department.  Additional contact was made with him on 7 April 2014 due to further non-compliance issues at which point he advised he was residing in Townsville.  It is noted he had made no effort to contact his supervising officer to update changes. 

During the assessment phase it was identified that Mr Foster could benefit from engaging in intervention was to target his substance abuse issues which are related to his offending behaviour and appear to impact on his motivation/ability to obtain and maintain employment.  Due to the short period of supervision prior to being remanded in custody no referrals could be actioned.”

and

“While it is acknowledged that Mr Foster is a young male who had limited opportunity to engage in community based supervision, the reality is the cost to the community for this type of offending cannot be discounted.  Until Mr Foster is willing to make changes to his lifestyle and is willing to develop a relationship that supports positive changes in addition to taking responsibility for his offending behaviour he remains at risk of further offending behaviour” (my underlining). 

[22]      The report did not make any specific recommendation as to how the appellant should be dealt with for the breaches and left all options open for the magistrate’s consideration. 

[23]      In the context of the probation and community service orders that had been made, Ms Armitage informed his Honour that “the offending has come from drug and alcohol misuse and difficult family background circumstances, and so he is somebody who, with assistance, if he chooses to engage, could really benefit from that”, to which his Honour replied, “Yeah”, and Ms Armitage continued, “… as such, the community benefits as a whole, because he stops offending”, to which his Honour responded, “Yeah.  Well, that’s right too.”

[24]      Ms Armitage submitted that the appellant had “… developed the insight as much as one at 18 can, as to what he needs to do to turn this around. My ultimate submission is a head sentence within the range of six to nine months as appropriate with the orders being permitted to continue and a parole release date of today”. 

[25]      It is readily apparent from the submissions that were made that Ms Armitage made it clear that the best option for this young offender who had barely turned 18 and had committed his first offences as an adult, was the supervision option which provided for support and programmes that he could engage in.  It is also readily apparent that really the probation and community service programmes had not been given a chance to be implemented, which was not helped by the appellant’s apparent disinterest. However, that is not unusual for someone of his age and requires some time for the probationer to realise that he has responsibilities to adhere to directions and to participate in programmes.  It is in my view only when that fails and the benefit of youth no longer can be relied on, that the option of imprisonment ought to be considered.  There is absolutely no value in my view of imprisoning a young man of 18 for his first offences, of a property nature, committed shortly after his attaining adulthood.  It is neither in the interests of the offender nor in the interest of the community and is not in the interest of justice.

[26]      In my view the magistrate did not, despite his response to submissions, approach the issue of sentence with an open mind and whilst I consider that he erred in the exercise of his discretion, he also imposed sentences which upon a consideration of all of the relevant facts and circumstances, were excessive.  Whilst his Honour acknowledged the submissions of Ms Armitage, he did not accept them. It is impossible to say whether his Honour properly considered the second, third or fourth matters I have referred to above or not, although the tenor of his Decision suggests that he did not do so and he has failed to give reasons. 

Sentencing youthful offenders

[27]      The importance of rehabilitation for young offenders should be overtly reflected in sentencing, in the context of course of other factors such as previous convictions.  However when an adult is first before the adult court and has, as was the case here, a juvenile offending history, he or she ought to be given an opportunity as a young adult to change the course of his or her life.  Simply incarcerating such a young offender in an adult gaol does not achieve that and it is not in the interest of the community.

[28]      Sentencing is a discretionary exercise. The accepted approach to appeals against sentence is reflected in the principles enunciated in the longstanding authorities of House v The King (1936) 55 CLR 499, at 504-505; Hughes v Hopwood (1950) QWN 21; and in Hili v The Queen (2010) 242 CLR 520 at [12]-[15]. In Hili v The Queen a distinction was made between an appeal that alleged specific error, as was argued here even though the ground of appeal simply asserts that the sentence was manifestly(sic) ‘excessive’ and a failure to properly exercise the sentencing discretion such as to vitiate the sentence imposed. I did find error here, although the appeal could equally have succeeded on the failure to properly exercise the discretion basis.

[29] The Justices Act 1886 (“the Act”) does not use the expression ‘manifestly excessive’ with respect to sentence, but simply refers to a sentence being ‘excessive’: section 222.

‘Excessive’

[30]      A sentence is “excessive only if it is ‘beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”: see R v Morse (1979) 23 SASR 98; R v Lemass (1981) 5 A Crim R 230; Lowe v The Queen (1984) 154 CLR 606; and R v McIntosh [1923] St R Qd 278.

[31]      I consider that the head sentence of 12 months that the magistrate imposed was excessive.

Powers hearing appeal

[32] Section 225 (1) of the Act provides that:

“(1)     On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just”.

Conclusion

[33]      The imposition of sentences of imprisonment were open to be made in this case. However, a head sentence of 12 months was excessive. Whilst parole supervision is part of the sentence, that supervision is not in my view the same as the supervision provided by a probation order. The latter seems to me to be more intensive, proactive and interventional. The former is seems to me to be more reactive to events than proactive.

[34]      Having allowed the appeal, what follows is that I will vary the sentencing order by setting aside those sentences where terms of imprisonment in excess of 4 months were imposed and resentence the appellant in respect of them. Whilst the other sentences of less than 12 months but more than four months may have arguably been open, I will reduce those to 4 months to facilitate the post imprisonment order that I propose to make.

[35]      The appellant served the 4 months of actual imprisonment. That fact alone influences the discretion that I can exercise in a resentencing. It seems to me that the sentence should be imprisonment for the time served coupled with a period of probation sufficiently long to enable the rehabilitation measures referred to in the Corrective Services Report to be implemented.

[36]      The resentencing will be conducted by video-link when this judgment is delivered, the appellant having returned to reside in Cloncurry. The resentencing will be a separate hearing and does not form part of the Orders in the appeal.

Orders

Appeal allowed.1     

The sentences imposed in the magistrates Court at Townsville on 08 July 2014 are varied in respect of those terms exceeding four months imprisonment.2     

The appellant is to be re-sentenced on a date to be fixed.3