Ned Juhani Murdock Ikonen Appellant v Commissioner of Police
[2024] QDC 236
•13 NOVEMBER 2024
[2024] QDC 236
DISTRICT COURT OF QUEENSLAND
KENT KC DCJ
Indictment No 2249 of 2024
NED JUHANI MURDOCK IKONEN Appellant
v
COMMISSIONER OF POLICE Respondent
BRISBANE
WEDNESDAY, 13 NOVEMBER 2024
JUDGMENT
HIS HONOUR: The appellant appeals against the sentence imposed upon him in the Magistrates Court at Redcliffe on the 19th of July 2024. The jurisdiction founding the right of appeal in this Court is pursuant to section 222 of the Justices Act 1886. As set out by the appellant, a rehearing, which is what this kind of proceeding is, is a review of the record of proceedings and not a completely fresh rehearing of the sentence, and, to succeed, generally the appellant must establish some legal, factual, or discretionary error. The sole statutory ground, I think, is that the sentence was excessive or manifestly excessive.
The way in which the appeal is agitated by the appellant include said to be identified errors by the magistrate in his application of what is commonly referred to by lawyers as the totality principle, including, as set out in Mill v The Queen, and that the sentence was manifestly excessive in all the circumstances. What had occurred was that Mr Ikonen had an unattractive criminal history, which is reproduced in the material before the Court on the hearing of the appeal, and he had committed a number of offences since 2014.
Most relevantly for present purposes, he was sentenced on the 21st of August 2023 in Redcliffe Magistrates Court for offences such as entering premises with intent and stealing, generally property-type offending. The head sentence on that occasion was 18 months’ imprisonment. I do not think there was any pre-sentence custody, and his parole release date was a third of the way into that head sentence, which is conventional sentencing practice in Queensland, although not set down in a statute. That saw his parole release date at the 20th of February 2024, and he was accordingly released on parole.
Sadly for him and everybody else, he then committed a number of further offences, I think eight in total, in breach of his parole between then and late May, and was returned to custody by the 25th of May 2024. He was out of custody for about three months or so. The reoffending is set out in a list produced by Ms Long on behalf of the appellant in her outline and, in essence, there were eight offences committed during that three-month period, in breach of parole. Indeed, it was a pretty intensive burst of about one month, from late April to late May. He was also dealt with for some other offences predating the previous sentence and, appropriately and accordingly by the learned magistrate, not further punished for those historic matters.
The end result on the 19th of July this year was that Mr Ikonen was sentenced to 30 months’, that is, two and a-half years’ imprisonment, concurrent with the term he was then serving. Of course, he had been on remand, but by the fact of his plea of guilty to and conviction of the later offences committed on parole, the previous parole was cancelled. From that time on, he was serving the two sentences concurrently.
The magistrate imposed a parole eligibility date of the 24th of August 2025. As far as myself and the parties, I think, can detect, the intention was to conceptualise the sentence being imposed by the magistrate as commencing in late-May, and imposing a parole eligibility date about halfway into the two and a-half year sentence. Fifteen months on from that May date produced a date of the 24th of August 2025. He appeals against that sentence, saying, in essence, that the result of it is both in error and manifestly excessive.
Amongst the points raised by Ms Long on behalf of the appellant, the first one that falls to be dealt with is this. Section 160B, subsection (2) and 160F, subsection (2) of the Penalties and Sentences Act dealing, as that division does, with the machinations of parole, produced the result that, in conducting the exercise that the magistrate was, he was required to have regard to what is termed the offender’s period of imprisonment, that is the period resulting from the service of two or more terms of imprisonment, as those descriptors are discussed both in the Penalties and Sentences Act, but possibly adopting the nomenclature from the Corrective Services Act, from memory.
The end result of that exercise was that what should have been happening when the magistrate sentenced the appellant was that the period of imprisonment, once the appellant had pleaded guilty and the previous parole was cancelled, in effect became an unbroken period of imprisonment from the 24th of August 2023 onwards. The result, therefore, given that he had served six months of the previous sentence prior to being detained in custody on remand for the offences the subject of this appeal, was that he was serving, in effect, the six months plus the two and a-half years imposed by the magistrate; that is an overall period of imprisonment of three years.
The parole eligibility date of August 2025 is significantly beyond the halfway point of that period of imprisonment, and it is something that the magistrate did not avert to, nor was his attention drawn to it by the advocates present at the time. It seemed to, clearly enough, not reflect the magistrate’s intention, which was, from the dialogue in the transcript, to impose an eligibility date at about the halfway point rather than the more conventional one-third.
The fact that, in accordance with accepted sentencing practice in many authorities in Queensland, and perhaps tangentially or by implication, consistent with the statutory framework, it in itself represents an error, and clearly the almost two-thirds result is not what the magistrate intended. His Honour’s failure to appreciate the effect of section 160B, subsection (2), section 160F, subsection (2) in the result in this case represents clearly enough an error, and so much is not resisted with respect, correctly, by Mr Kinsella on behalf of the respondent.
According to the analysis of this jurisdiction in a number of authorities in the Court of Appeal, that may well be enough to found the jurisdiction to allow the appeal and intervene, at least in relation to the eligibility date; however, Ms Long’s position goes further and to say that the head sentence is manifestly excessive. One way in which that unfolds is to consider that the result of this appeal, including, as it must, resentencing the appellant, even if to no more than a new eligibility date, means that the eligibility date cannot be earlier than today, and today is about 15 months into the appellant’s period of imprisonment. That is, he has served more than one-third of a nominal head sentence before being made eligible for parole, and that is a relevant feature of the sentencing process.
Pleas of guilty, as the appellant entered, can be reflected in a lower parole eligibility date or a lower head sentence, or a combination of both. Amongst other things, Ms Long’s point is that, given the exigencies that his date cannot be earlier than today, that feeds into the overall discretion to analyse the original head sentence as being manifestly excessive and readjusting the head sentence.
In support of that proposition, amongst other things, Ms Long refers to Allen v Commissioner of Police [2019] QDC 34, where the appellant was sentenced to 15 months’ imprisonment for 31 property-type offences. She had an unattractive criminal history, but probably not as bad as the appellant’s in this case. Importantly, she was not on parole but had committed many more offences. There are other authorities referred to by both sides.
At the end of the day, the important feature of this analysis is that Mr Ikonen has, on any view, already passed the one-third date for his parole eligibility, and, in resentencing him, account must be taken of that fact, and can be and should be taken into account by reduction of the head sentence. Ms Long does not contend for more than a six-month reduction, to a head sentence of two years.
Mr Kinsella, on behalf of the respondent, understandably refers to a number of matters. The appellant’s criminal history is unattractive, as I have noted. It is also reasonably pointed out that there was little to no material before the original sentencing court as to steps that he was taking in relation to rehabilitation. Ms Long has told me some more things about that from the Bar table on the hearing of the appeal. Mr Kinsella refers to a couple of authorities that may arguably point to a heavy sentence being within range. For the reasons that I have outlined, however, particularly the interplay of the necessarily delayed parole eligibility date and the criminality of the offending which at the end of the day is only eight further offences, my conclusion is that to leave the present head sentence in place would place it in a manifestly excessive range.
My conclusion is that both error and manifest excess are identified. That means that the jurisdiction is enlivened whereby the appeal should be allowed. The magistrate, according to the schedule and the criminal history, made no distinction between the enter premises offences, and so, in my conclusion, the appellant should be resentenced on each of those counts to two years’ imprisonment to be served concurrently. The other offences, which were convicted and not further punished, should also be convicted and not further punished. Convictions are necessarily recorded. His parole eligibility date will be today, the 13th of November 2024. I would think I need to make a declaration of pre-sentence custody, but that is probably only in respect of these matters, so there is a certificate. Is it from the 25th of May?
MR KINSELLA: Yes. It is, your Honour.
HIS HONOUR: It would not be up to today. So does someone want to do the maths? I will ask Google. Google comes up with 172 days. Sound right?
MR KINSELLA: I’ve got that as well.
HIS HONOUR: Sentence management can correct it if they come up with another figure. I declare that the appellant was held in pre-sentence custody in respect of these matters the subject of the appeal between the 25th of May 2024 and the 13th of November 2024, a period of 172 days. I declare that time to be time already served in respect of the offences for which sentence has been reimposed today. To the extent that it is necessary, I note that for the earlier offences, that is those that predated the release on parole, he was convicted and not further punished and there is no reason to interfere with those results. Is that sufficient? Do we need anything else?
MR KINSELLA: There’s nothing further from me, your Honour.
MS LONG: No. Nothing further, your Honour.
HIS HONOUR: I think that is right, isn’t it?
MS LONG: Yes.
HIS HONOUR: I mean, it is unusual ‑ ‑ ‑
MS LONG: We’ve covered everything.
HIS HONOUR: ‑ ‑ ‑ to sentence somebody in their absence, and because it is not a court-ordered parole release date I do not need to give him that same speech that you do have to do when it is a court-ordered date.
MS LONG: That’s so.
HIS HONOUR: If he was here, I would tell him about the Parole Board, but someone can tell him about that.
MS LONG: He will receive that from QCS.
HIS HONOUR: You or someone can tell him that – well, I guess he knows already, but he has to be good and not breach his parole now.
MS LONG: Yes, your Honour.
HIS HONOUR: Okay. I take it there is nothing else?
MS LONG: No. There were no forfeiture orders made and – there were no forfeiture orders made, so ‑ ‑ ‑
HIS HONOUR: Right.
MS LONG: ‑ ‑ ‑ there’s nothing further.
HIS HONOUR: Just bear with me a sec.
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