Queensland Police Service v Dowsett

[2006] QDC 502

[2006] QDC 502

DISTRICT COURT
CIVIL JURISDICTION

JUDGE ROBERTSON

Appeal No 415 of 2005

QUEENSLAND POLICE SERVICE	Appellant
and
WILLIAM BERNARD DOWSETT	Respondent
MAROOCHYDORE ..DATE 26/05/2006
JUDGMENT

26052006 T10-11/RC M/T MCY1/2006 (Robertson DCJ)

HIS HONOUR: This is an appeal by the Queensland Police	1
Service in relation to a sentence imposed by her Honour
Magistrate Fingleton on the 18th of November 2005 in the
Caloundra Magistrates Court.

10

The respondent was between 22 and 23 years of age at the time

of the offences and was 23 at the time of sentence. His date

of birth is the 16th of September 1982. At the time of

sentence, he was subject to a number of suspended sentence	20
orders, in particular, a suspended sentence imposed in the
Redcliffe Magistrates Court for offences of a similar nature
on the 22nd of June 2004, for which he had been sentenced to a
term of 12 years, suspended for three years, after serving
three months; and also a suspended sentence imposed in this	30
Court on the 2nd of August 2004 for offences of stealing and
fraud. On that occasion, he was sentenced to nine months
imprisonment, which was suspended for three years on the 21st
of November 2004.	40
For the purposes of the appeal, I adopt and incorporate into
my reasons the very helpful and comprehensive description of
the offences before the learned Magistrate, which form
50
annexure A to the written submissions of Miss Cupina, the solicitor for the Queensland Police Service, who appears on

its behalf this morning.
26052006 T10-11/RC M/T MCY1/2006 (Robertson DCJ) 2 JUDGMENT 60

The respondent at the time he came to be sentenced by her	1
Honour, had a significant criminal history dating back to
2000. During that time, he had been convicted of a number of
offences against the Drugs Misuse Act and offences of
dishonesty and offences against the now superseded Vagrants	10
Gaming and Other Offences Act and the Regulatory Offences Act
and also breaches of domestic violence and possession of a
knife and other offences of dishonesty. He had been subject
to fines, probation, suspended sentences and actual terms of	20
imprisonment.
He clearly has a significant drug problem, and that obviously
underlies some of his offending. The offences before her
Honour are not the most serious examples of those offences,	30
albeit his offending over the six month period covered by the
charges was persistent and offences were committed whilst on
bail.
40
In imposing a sentence of six months as a global term of
imprisonment for the offences, her Honour took into account
appropriately, the previous criminal history of the respondent
and matters in mitigation, including the difficult background
50
that he had, particularly relating to his mother suffering from a mental illness. She also took into account his drug
problem and his early plea of guilty. The early plea of

guilty was significant in that it also involved him accepting
26052006 T10-11/RC M/T MCY1/2006 (Robertson DCJ) 3 JUDGMENT 60

the jurisdiction of the Magistrates Court, by making an	1
election in relation to offences which could have been dealt
with on indictment, so he certainly saved the State a
considerable amount by not going to trial andhis plea
constituted very significant cooperation with law enforcement	10
agencies.
It is now submitted that her Honour erred in imposing the six
month term, by ordering that that be served concurrently with	20
the suspended sentence of nine months, which she also
activated. The submission of the prosecution now is that an
appropriate sentence would have been an additional three
months, cumulative upon the nine month activated suspended
sentence. Implicit in that submission and acknowledged	30
properly by Miss Cupina in argument, is an acceptance by the
prosecution that a six-month term for the offending in all the
circumstances was within an appropriate exercise of sentencing
discretion.	40
There is no mandate either in principle or in law that
sentences imposed for offences which constitute a breach of a
suspended sentence which leads to the activation of the whole
50
of the suspended sentence, should be served cumulatively. As Williams JA. said in the R v. Conway, ex parte the

Attorney-General (2002) QCA 507 at paragraph 21:
26052006 T10-11/RC M/T MCY1/2006 (Robertson DCJ) 4 JUDGMENT 60

"Whether or not a suspended sentence should be made	1
cumulative with the other sentence imposed will always be a matter to be determined by the circumstances of the particular case. It is difficult, if not impossible to lay down clear guidelines as to when it would be appropriate to make the sentence cumulative".

Sentence appeals by the prosecution, either the Queensland	10
Police Service from sentences imposed in the Magistrates Court
or the Attorney-General, when sentences are imposed in the
higher Courts, are subject to the restrictions set out in
cases such as Everett v. Queen (1994) 181 CLR 295 at 300 and
20
the R v. Milano, ex parte the Attorney-General [1995] 2 QdR 186. In Everett the majority judgment of Brennan J, as his
Honour then was, and Deane, Dawson and Gaudron JJ adopted part
of a statement made by Barwick CJ in Griffiths v. Queen (1977)
137 CLR 293 and said at page 310:	30

"An appeal by the Attorney-General should be a rarity
brought only to establish some matter of principle and to
afford an opportunity for the Court of Criminal Appeal to
perform its proper function in this respect, namely, to
lay down principles for the Governments and guidance of
Courts having the duty of sentencing convicted persons". 40

The reference to the matter of principle in that passage must

be understood as encompassing what is necessary to avoid the

kind of manifest inadequacy or inconsistency in sentencing

standards, which Barwick CJ saw as constituting an error of 50

principle.
26052006 T10-11/RC M/T MCY1/2006 (Robertson DCJ) 5 JUDGMENT 60

An example of this approach is the R v. Kopa and Istogu, ex	1
parte the Director of Public Prosecutions of the Commonwealth
(2004) 144 Australian Criminal Reports at page 287. In that
case, the Court did not interfere in a sentence that it
regarded as being on the low side, because it did not fall	10
outside the appropriate range of sentences imposed for that
particular type of offence.
As Mr Hishon observed in his written submission, it is not a	20
proper approach for an appellant court to say, "well, the
sentence that I impose would have been greater or less, it's
only if the appellant court is satisfied that the sentence is
manifestly excessive that it can then interfere on the grounds
that the lower court has made an error of principle."	30
Given the submissions made by the prosecution and given the
lack of any comparable sentences that have been discovered and
placed before me, and given the fact that her Honour	40
specifically took into account that ultimately it was
inevitable that the respondent would be dealt with in the
District Court for a breach of the suspended sentence imposed
on the 2nd of August 2004, constituted by his conviction for
50
the offences on the 18th of November 2005, I am not satisfied that any error has been shown and the appeal is dismissed.

----

6 JUDGMENT 60