R v Hill

[2017] QCA 177

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hill [2017] QCA 177

PARTIES:

R
v
HILL, Robert Allan Charles
(applicant)

FILE NO/S:

CA No 36 of 2017
DC No 1453 of 2016
DC No 189 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 15 February 2017 (Smith DCJ)

DELIVERED ON:

22 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2017

JUDGES:

Sofronoff P and Atkinson and Applegarth JJ

ORDER:

1.   Leave to appeal against sentence granted.

2.   Appeal allowed.

3.   Set aside the sentences of three years’ imprisonment imposed on Counts 1 and 8 on the indictment and impose in lieu thereof sentences of two years’ imprisonment.

4.   Set aside the parole eligibility date of 15 February 2018 and fix instead a date of 15 December 2017.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the sentencing judge proceeded on the basis that the circumstance of aggravation relied upon in respect to the dangerous operation of a motor vehicle was that the applicant as adversely affected by an intoxicating substance – where the circumstance of aggravation was a prior conviction for dangerous operation of a motor vehicle – where this error was acknowledged to require the sentencing discretion to be exercised

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the sentence imposed was cumulative upon the applicant’s existing term of imprisonment – where account needed to be taken of the totality principle – whether a lengthy sentence cumulative upon the expiry of the applicant’s current sentence would be ‘crushing’ in all the circumstances

Penalties and Sentences Act 1992 (Qld), s 9, s 159A

R v Baker[2011] QCA 104, cited
R v Cutajar (1995) 85 A Crim R 280; [1995] QCA 570, cited
R v Fabre [2008] QCA 386, cited
R v Hawdon [2011] QCA 219, cited
R v Hyatt[2011] QCA 55, cited
R v Kendrick (2015) 249 A Crim R 176; [2015] QCA 27, cited
R v Kiripatea [1991] 2 Qd R 686; (1990) 50 A Crim R 417, cited
R v Paton[2011] QCA 34, cited
R v Skedgwell [1999] 2 Qd R 97; [1998] QCA 93, cited

COUNSEL:

The applicant appeared on his own behalf
V A Loury QC for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. SOFRONOFF P:  I agree with the reasons of Applegarth J and with the orders his Honour proposes.

2. ATKINSON J:  I agree with the orders proposed by Applegarth J and with his Honour’s reasons.

3. APPLEGARTH J:  On 15 February 2017, the applicant was sentenced on eight counts on an indictment and 19 summary offences.  The most serious offences were burglary and stealing, committed on 6 September 2015, for which he was sentenced to imprisonment for three years, and the dangerous operation of a vehicle with a circumstance of aggravation, committed on 17 October 2015, for which he was sentenced to a concurrent term of three years’ imprisonment.

4. The concurrent sentences imposed on 15 February 2017 were ordered to be served cumulatively upon the sentence the applicant was then serving.  Parole eligibility was fixed at 15 February 2018, namely after the applicant had served a further year in custody.  Account was taken of the fact that a period of 16 months spent by him in pre-sentence custody could not be declared.

5. The grounds upon which the application is based are that the sentence is manifestly excessive in all the circumstances.  The applicant’s essential submission is that, having regard to his circumstances, and taking account of totality considerations, the total sentence is “crushing” for someone who is “semi-institutionalised”.  The applicant seeks a sentence of 20 months instead of three years, with parole eligibility in September 2017.

6. The applicant was self-represented in making his written and oral submissions.  Counsel for the respondent, Ms Loury QC, fairly and helpfully alerted the Court and the applicant to an apparent error in the sentencing process.  The learned sentencing judge appears to have been led into error by being left with the impression that the circumstance of aggravation relied upon in respect of the dangerous operation of a motor vehicle was that the applicant was adversely affected by an intoxicating substance.  This was not the case.  The circumstance of aggravation which was alleged was that the applicant had been convicted of the offence of dangerous operation of a motor vehicle on 25 October 2002.

7. The error appears to have arisen because the applicant was arraigned in bulk and consequently entered a plea of guilty to all offences, including the eighth count on the indictment of dangerous operation of a vehicle, with a circumstance of aggravation.  Neither the prosecutor nor the applicant’s solicitor who appeared at the sentencing hearing directed the judge to the relevant circumstance of aggravation.

8. The respondent concedes that an error in proceeding on the basis that the circumstance of aggravation was that the applicant was adversely affected by an intoxicating substance would be an error of the kind which would make it necessary for this Court to exercise the sentencing discretion afresh.  Although it is possible that the sentencing judge proceeded on a correct understanding of the circumstance of aggravation, it is far from clear that he did, and the sentencing remarks suggest that he proceeded on the basis that the applicant accepted that he was affected by alcohol or drugs.  Accordingly it is appropriate to grant leave to appeal and to re-exercise the sentencing discretion.

Circumstances of offending

1. The applicant broke into a home on 6 September 2015 and stole the resident’s handbag.  The complainant and her children were home at the time.  Later, the applicant was discovered by police inside the complainant’s car.  He then ran away before being caught by police.  He resisted arrest.  He was found in possession of some methylamphetamine and also drugs for which he did not hold a prescription.  The pure weight of the methylamphetamine in his possession was undetermined.  The total weight was 0.89 grams.

2. The applicant was taken to hospital and was issued with a notice to appear on 22 September 2015.

3. Late on 16 October 2015 or early on 17 October 2015 the applicant unlawfully gained the use of a vehicle which had a defective lock.  He drove the vehicle from Brisbane to Yarraman where police observed it driving through town.  Police subsequently identified the car as having been stolen but had lost sight of it and were unable to intercept it.  The applicant drove at high speeds, crossed double white lines when overtaking other vehicles and caused other vehicles to take evasive action.  About ten kilometres from Yarraman he lost control of the vehicle and crashed into a tree.

4. The applicant was driving without a licence at the time.  He gave police a false name.  He told police that he had injected himself with methylamphetamine earlier that day.  Whilst police smelt alcohol on the defendant, and a quantity of alcohol was found in the car, he was not charged with driving under the influence.

5. The summary offences included using a stolen Go Card on six occasions and causing a public nuisance whilst being treated at the Toowoomba Hospital.  He stole a canteen whilst at the Brisbane Correctional Centre from another prisoner.  On 28 July 2016, he wilfully damaged a police van whilst being transported to the Brisbane City Watchhouse, when he scratched the rear perspex panel of the internal door with his handcuffs.

6. The eight counts on the indictment and the summary offences, together with the sentences imposed may be tabulated as follows:

Count	Date		Offence	Sentence
1	6/9/15		Burglary and Stealing	3 years imprisonment
2	6/9/15		Unlawfully entering a vehicle with intent to commit an indictable offence	12 months imprisonment
3	6/9/15		Possessing things used in connection with unlawful entry with a circumstance of aggravation	12 months imprisonment
4	6/9/15		Serious assault	9 months imprisonment
5	6/9/15		Possessing a dangerous drug	3 months imprisonment
6	6/9/15		Possessing a dangerous drug	3 months imprisonment
7	17/10/15		Unlawfully using a motor vehicle with damage	12 months imprisonment
8	17/10/15		Dangerous operation of a motor vehicle with circumstance of aggravation	3 years imprisonment Licence disqualified for 3 years
Summary offences
6/9/15	Trespass x 3		Convicted and not further punished
6/9/15		Assault/obstruct police	Convicted and not further punished
6/9/15		Fail to take reasonable care and precautions with a syringe	Convicted and not further punished
6/9/15		Unlawful possession of controlled drugs	Convicted and not further punished
21/9/15		Fraud x 4	Convicted and not further punished
22/9/15		Fraud x 2	Convicted and not further punished
7/10/15		Possession of a knife in a public place	Convicted and not further punished
17/10/15		Driving without a licence	Licence disqualified for 2 years cumulative on other disqualification
17/10/15		Fail to properly dispose of a syringe	Convicted and not further punished
18/10/15		Public nuisance x 2	Convicted and not further punished
4/11/15		Stealing	Convicted and not further punished
28/7/15		Wilful damage of police property	Convicted and not further punished

The applicant’s antecedents

1. The learned sentencing judge had sympathetic regard to the applicant’s dysfunctional upbringing, including a report which more fully described his resort to drugs, alcohol and crime from an earlier age.

2. The applicant is an indigenous man who had no relationship with his father.  He started consuming alcohol when very young (possibly around 11 years of age).  He started smoking cannabis at around the age of 12 or 13.  He was a regular user by the age of 15.  He left school in Year 8.

3. His extensive criminal history includes a large number of offences committed when he was a teenager.  He spent time in juvenile detention.  In 2002, when he was aged 16, he was sentenced to two and a half years’ detention.  He stole a car and accelerated away with the owner of the vehicle being dragged alongside it before falling off.

4. In 2003, at the age of 17, he was convicted of further offences including the dangerous operation of a vehicle with a circumstance of aggravation.  These offences occurred shortly after his release from detention and involved high speed police chases.  He was sentenced to three years’ imprisonment.

5. In 2008 he was before the District Court and was sentenced to eight years’ imprisonment for four armed robberies, together with property offences.

6. After being released he reoffended in late 2010 and early 2011.  The offences included two armed robberies and a serious assault.  He was sentenced to six years’ imprisonment, cumulative upon the eight year sentence imposed in 2008.  A parole eligibility date of 3 April 2015 was fixed.

7. The applicant was released on parole on 17 August 2015.

8. He claims that he was released into a “high risk situation” away from his support network.  He was released to a hostel, apparently because his home assessments were not approved and the parole authorities thought he could be more appropriately supervised at a hostel that had a curfew policy.  In any event, the applicant says that his association with drug users led him to “dabble in” amphetamines, the use of which then spiralled and led him on the crime spree for which he was sentenced on 15 February 2017.  The offending for which he came to be sentenced on 15 February 2017 commenced only 20 days after his release on parole.

9. The sentence that was imposed resulted in the applicant’s full-time discharge date being 15 February 2021.

10. The applicant was aged 29 at the time of the offences and is now aged 31.

The sentence

1. Personal deterrence and protection of the community were, and remain, significant factors to be considered in the exercise of the sentencing discretion.  The need for personal deterrence is apparent, given the applicant’s history and the fact that the subject offences were committed shortly after his release on parole.  The applicant’s resort to drugs and alcohol whilst in the community presents a danger of his committing further offences and the dangerous operation of a motor vehicle exposes citizens to the risk of death or serious personal injury.

2. The learned sentencing judge adopted a starting point of four and a half years as a head sentence before applying totality considerations, including regard to the fact that 16 months spent in pre-sentence custody could not be declared.

3. The applicant’s written submissions complain about his legal representation at the sentencing hearing and assert that his legal representative did not follow instructions to contest statements of facts and failed to challenge the sentence which the learned sentencing judge indicated, resulting in what the applicant submits is an unjust and crushing sentence.  There is no evidence as to the respects in which the applicant’s legal representative failed to contest statements in the schedule of facts and no basis upon which to conclude that such a challenge would have resulted in a different sentencing outcome.  As to the assertion that the applicant’s legal representative did not sufficiently challenge the sentence which the sentencing judge proposed to adopt, the transcript of the sentencing hearing shows that the sentencing judge was taken to relevant authorities and asked to moderate the head sentence to take account of various matters.  The applicant’s legal representative also asked for a parole eligibility date within 12 months.

4. As senior counsel who appeared for the respondent on the application to this Court submitted, there are no truly comparable cases that match the nature of the applicant’s criminal history and the recidivist nature of his offending.  Three cases provide some guidance about the appropriate sentence for offenders who go on a crime spree shortly after release from prison and whose conduct includes serious examples of the dangerous operation of a motor vehicle.  They are R v Hawdon [2011] QCA 219, R v Hyatt [2011] QCA 55 and R v Paton [2011] QCA 34.

5. In R v Hawdon,[1] the applicant was sentenced to concurrent sentences of six years for burglary and two years for dangerous operation of a motor vehicle.  No parole eligibility date earlier than the statutory 50 per cent was given.  The applicant was aged 35 at the time of the offence and sentence, and had an extensive criminal history for similar offences.  His burglary offence involved more than $150,000 in cash and jewellery.  The dangerous operation of a motor vehicle related to reaching speeds of 180 km/h in a 60 km/h zone on the wrong side of a road, narrowly avoiding collisions.  At the time of committing the relevant offences, the applicant was on parole.  The Court declined to find that the six year sentence was manifestly excessive, especially where the applicant was described as a “career criminal”.[2]

   [1][2011] QCA 219.

   [2]At [22].

6. In R v Hyatt[3] the applicant was sentenced to a total of six and half years’ imprisonment, with parole eligibility after three years.  His offending was extensive, and included five counts of unlawful use of a motor vehicle, two counts of dangerous operation of a vehicle, six counts of stealing and one count of burglary.  He had an extensive history of convictions for similar offences.  For these offences he received a head sentence of five years’ imprisonment.  He received an additional cumulative sentence of 18 months’ for escaping from lawful custody and two counts of assault.  The appeal turned on whether fixing a parole eligibility date at three years made the sentence excessive.  The Court found that the sentencing judge had ample reasons for not setting the parole eligibility date at one third of the head sentence, including the fact that the applicant had gone on a “criminal spree” shortly after being released from a previous term of imprisonment.  The application for leave to appeal was dismissed.

   [3][2011] QCA 55.

7. In R v Paton,[4] the applicant, who was aged 21, was sentenced to concurrent terms of three years’ imprisonment, cumulative upon a previous suspended sentence, for a number of offences involving burglary, stealing and dangerous operation of a motor vehicle.  The applicant submitted that such a sentence was “crushing” as he would be unlikely to get parole, and would therefore serve most, if not all, of the sentence.  His offending included travelling at speeds of up to 120 km/h in a stolen vehicle, as well as driving towards oncoming traffic.  He stole a number of cars, broke into houses and stole a safe containing $20,000 of cash and jewellery.  This Court concluded that the applicant was a “recidivist offender” and a “menace to society” due to his extensive property and driving offences.  He had three previous convictions for the dangerous operation of a motor vehicle and 146 convictions for property offences.  The Court determined that the applicant’s prospects of parole would be enhanced by taking steps towards rehabilitation, but those were matters for the parole authority, not the Court.  The head sentence of three years was not manifestly excessive, and setting the applicant’s parole eligibility at one-third was a proper exercise of discretion.  The application for leave to appeal was refused.

   [4][2011] QCA 34.

8. In this case, the learned sentencing judge explained that he had arrived at a period of three years’ imprisonment from a “starting point” of about four and a half years, before applying totality considerations because the sentence was to be imposed cumulatively upon the applicant’s existing term of imprisonment.

9. The offending for which the applicant was sentenced led to his parole being suspended and then cancelled and a return to custody on 17 October 2015.  It is possible to view the following 16 months as simply time served under a total period of imprisonment of 14 years which commenced on 12 September 2008 and, with earlier declarations of pre-sentence custody, had a fulltime discharge date of 21 February 2021.  However, the 16 months spent in pre-sentence custody was time which the applicant would not have served in custody had he not committed the offences for which he was to be sentenced.  Account also needed to be taken of what the sentencing judge described as “totality”.  In short, the offending for which the applicant was to be sentenced caused him to be required to serve the balance of a lengthy sentence as well as additional cumulative sentences.

The totality principle

1. It is unnecessary to essay “the totality principle” and its application in different contexts.[5] One aspect, which is reflected in s 9(2)(l) and (m) of the Penalties and Sentences Act 1992 (Qld) is that a court must have regard to “sentences already imposed on the offender that have not been served”, and “sentences that the offender is liable to serve because of the revocation of orders made under this or another Act for contraventions of convictions by the offender”.

   [5]The “totality principle” and authorities in support of the proposition that a sentence should not be “crushing” were discussed by Atkinson J (with whom McMurdo P and Peter Lyons J agreed) in R v Baker [2011] QCA 104 at [35] – [47]. More recently the totality principle was discussed in R v Kendrick [2015] QCA 27; 249 A Crim R 176 at 185 [31] – 188 [41].

2. It is well-established that the combined effect of an original sentence and a sentence which is imposed for a later offence ought not be such as to make them a “crushing” burden:

   “The combined effect of resurrecting the [original] sentence … and imposing a sentence for the later offence, ought not be such as to make them a ‘crushing’ burden on the respondent.  At the same time it would plainly be an error so to structure the later sentence as to disregard the commission of yet another offence of the same description in the course of his parole”.[6]

   As Williams J (as his Honour then was) observed in R v Kiripatea:

   “The sentence imposed should not be a crushing one, and there is good reason for avoiding a sentence which would effectively destroy any hope a prisoner may have for rehabilitation”.[7]

   [6]R v Cutajar (1995) 85 A Crim R 280 at 283 per McPherson JA.

   [7](1990) 50 A Crim R 417 at 433 (Shepherdson and Ambrose JJ agreeing).

1. The precise relationship between the totality principle and the idea that a sentence not be “crushing” has been the subject of some debate.[8]  However, there is no need to embark on a discussion of that matter, particularly in a case in which the applicant is self-represented and the question was not argued.  Whilst the “totality principle” and the need to avoid a sentence that may be “crushing” may involve different considerations, as a matter of practicality, the two principles are often conflated, and considered together.[9]

   [8]R v Kendrick [2015] QCA 27 at [41].

   [9]Ibid at [40] citing Fridey v The Queen [2014] VSCA 271 at [38].

Pre-sentence custody

1. Although it is not mandatory, it is generally desirable to take into account periods of pre-sentence custody which are not declarable under s 159A of the Act at the first opportunity.[10]  The period of approximately 16 months spent in pre-sentence custody could not be declared as time served, so it was appropriate to take it into account.

   [10]R v Fabre [2008] QCA 386 at [14].

An appropriate sentence

1. In arguing his case the applicant emphasised that he was not drunk when driving the car at speed.  However, he acknowledged that he had not slept for a couple of days and had a “micro-nap”.  He denied that he was involved at the time in a police pursuit since he saw no police car.  However, it is reasonable to infer that his dangerous driving that day was designed to ensure that any police who may have identified the car did not remain in sight.  The police lost sight of the vehicle.  It is not said they pursued it.  Still, the applicant’s dangerous driving caused other road users to take evasive action and his actions exposed road users to the risk of being killed or badly and permanently injured.

2. I would not regard the sentences imposed by the learned sentencing judge as manifestly excessive, given the aggravating features of a recidivist offender whose offending was serious.  It was serious offending on two separate dates: 6 September and 17 October 2015.

3. The present issue is to decide the most appropriate sentence after applying the totality principle in circumstances in which the applicant has articulated why a lengthy sentence, which commences upon the expiry of his current sentence would be “crushing”.

4. One confronts a stark fact: the applicant has spent most of his adult life in jail after a dysfunctional upbringing.

5. Such a case presents intractable problems.  The learned sentencing judge was aware of them, engaged with submissions, and inquired about the applicant’s plans for employment upon release, the negative influences in his life and the need to have a decent relapse-prevention plan.  The sentencing judge, like this Court, was required to deal with a recidivist offender who had spent nine of the last fourteen years in jail.  An obvious concern, and one expressed by the sentencing judge, was the risk of his becoming institutionalised.

6. The applicant has undertaken a number of courses over the years.  Since his return to custody in October 2015 he has completed the Positive Futures for Men program.  Although not currently enrolled in any other programs, he is hoping to do a six week literacy course and continue with further studies.  He told this Court that there were no other drug courses that he could do because he has done them all.

7. In considering and applying the totality principle, appropriate regard must be had to the need to impose sentences which are not an affront to the community, given the seriousness of the offending and the applicant’s criminal history and recidivism.  It is also appropriate to consider the applicant’s perspective.  As he sees it, and as he explained it to this Court, “it’s a 17 year sentence … murderers get less, you know.”

8. Appropriate account of the undeclarable period in pre-sentence custody and the totality principle did not permit some arithmetic calculation.  The result reached by the learned sentencing judge was not manifestly excessive, but nor is it the only sentence which was open in the circumstances.  On the hearing in this Court, the learned Crown prosecutor, in response to the applicant’s submissions, acknowledged that a sentence of two years would not be out of range or an improper exercise of discretion.  That submission acknowledged the need to avoid a total sentence which is crushing.

9. The need to avoid a crushing sentence which commences when the current total period of imprisonment of 14 years ends is important.  It is as important to the community as it is to the applicant.  The applicant describes himself as “semi-institutionalised”.  The proportion of his adult life which he has spent in prison makes this a fitting description.  The experienced sentencing judge was correct to express a concern about the applicant being completely institutionalised.

10. A sentence which is to be served cumulatively upon the expiry of the applicant’s current term of imprisonment must be a real punishment in all the circumstances, so as to reflect his criminality and the need for personal deterrence and protection of the community.  However, having regard to the period of pre-sentence custody which cannot be declared and which is being served because of the relevant offending conduct, any additional sentence should not be more than is necessary to punish the applicant in all the circumstances.  An excessive sentence which is “crushing” upon the applicant risks his ceasing attempts to improve his education, address the underlying causes of his criminality and generally rehabilitate himself.  It risks producing a prisoner who, upon his release, poses a greater danger to the community than a prisoner who is not completely institutionalised.

11. Courts in the past have been told about the applicant’s commitment to rehabilitation, and no-one should be so naïve as to imagine that the applicant’s path to rehabilitation is clear.  Recent programs and some maturing may enhance the applicant’s prospects of rehabilitation and reduce the risk of his reoffending.  Lessons may be learned by him, and others, about what must be done to equip him in the community so that, if granted parole, he is subject to a carefully graduated release, under close supervision, together with a network of support.  This may reduce the risk of reoffending.

12. In all the circumstances I consider that an additional sentence of two years is appropriate so as to recognise the totality principle and to avoid the total period of the applicant’s imprisonment proving to be a crushing one.  Such a sentence takes into account the period of 16 months that was spent in pre-sentence custody prior to the date of sentence, his early guilty pleas and all the other circumstances.  I would fix a parole eligibility date of 15 December 2017, being a period of ten months after the date upon which the applicant is taken to have been sentenced.  I would make the following orders:

    (1)Leave to appeal against sentence granted.

    (2)Appeal allowed.

    (3)Set aside the sentences of three years’ imprisonment imposed on Counts 1 and 8 on the indictment and impose in lieu thereof sentences of two years’ imprisonment.

    (4)Set aside the parole eligibility date of 15 February 2018 and fix instead a date of 15 December 2017.