Stuurman v Queensland Police Service

[2021] QDC 80

DISTRICT COURT OF QUEENSLAND

CITATION:

Stuurman v Queensland Police Service [2021] QDC 80

PARTIES:

RUTH STUURMAN

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO:

BD883/21

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

14 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2021

JUDGE:

Smith DCJA

ORDER:

1.   I allow the appeal and set aside the penalties imposed in the Magistrates Court in this matter.

2.   On each charge the appellant is convicted.

3.   On Charge 2 the appellant is sentenced to 15 months imprisonment suspended forthwith for an operational period of three years.

4.   On all other charges, subject to the appellant’s consent, I make a probation order pursuant to s 92(1)(a) of the Penalties and Sentences Act 1992. I order the appellant be released under the supervision of an authorised corrective services officer for a period of three years and she must comply with the requirements set out in s 93 subsection 1 of the Penalties and Sentences Act 1992 and report within 24 hours of her release from prison to an authorised corrective services officer. Additional requirements are that the appellant is to submit to such medical psychiatric or psychological treatment as directed by an authorised corrective services officer; the appellant not take an illegal drug and the appellant submit to drug testing as directed by an authorised corrective services officer at least once per month.

5.   With respect to the suspended sentence imposed on 23 January 2019 I sentence the appellant to the rising of the court.

6.   The other orders, including the order for disqualification of holding or obtaining a driver licence and orders for forfeiture are not disturbed and are confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – whether errors occurred in sentencing- whether the Magistrate sufficiently took into account undeclarable time served in fixing the sentence  

LEGISLATION:

Bail Act 1980 (Qld) s 33
Justices Act 1886 (Qld) s 222
Penalties and Sentence Act 1992 (Qld) s 9

CASES:

R v Baxter [2010] QCA 235, cited
R v Berns [2020] QCA 36, distinguished
R v Chong; ex parte Attorney General [2008] QCA 22; (2008) 181 A Crim R 200, cited
R v Leighton [2014] QCA 169, applied
R v Macklin [2016] QCA 244, applied
R v McAnally [2016] QCA 329, distinguished
R v McConachy [2011] QCA 183, cited
R v Shillingsworth [2001] QCA 172; [2002] 1 Qd R 527, applied

COUNSEL:

JP Feely for the appellant

E Coker for the respondent

SOLICITORS:

Fuller and White solicitors for the appellant

Office of the Director of Public Prosecutions for the respondent

Introduction

1. This is an appeal pursuant to s 222 of the Justices Act 1886 (Qld).

2. The appellant relies on the following grounds:

   (a)The sentence imposed on the appellant was manifestly excessive;

   (b)The sentence insufficiently recognised the significant extra curial punishment suffered by the appellant as well as her family;

   (c)The Magistrate failed to have sufficient regard to the extensive delays associated with the Queensland Parole Board considering parole applications; and

   (d)The Magistrate erred in failing to take into account or failing to place sufficient weight on the pre-sentence custody the appellant had served.

   Charges and penalties

3. On 23 March 2021, the appellant pleaded guilty to the following charges and was received the following penalties:

CHARGE NUMBER	CHARGE	DATE	PENALTY
1	Driving motor vehicle without a driver licence (disqualified by Court Order)	9 April 2019	Two months imprisonment, parole eligibility date 23 March 2021.  License disqualified for two (2) years.
2	Possessing dangerous drug Schedule 1 drug quantity of or exceeding Schedule 3 but less than Schedule 4.	9 April 2019	Fifteen (15) months imprisonment, parole eligibility date 23 March 2021.
3	Possessing dangerous drug	30 May 2019	Two months imprisonment, parole eligibility date 23 March 2021.
4	Breach bail condition	17 February 2020	Two months imprisonment, parole eligibility date 23 March 2021.
5	Stealing	19 February 2020	Two months imprisonment, parole eligibility date 23 March 2021.
6	Obstruct police officer	23 March 2020	Two months imprisonment, parole eligibility date 23 March 2021.
7	Breach of bail condition	30 March 2020	Two months imprisonment, parole eligibility date 23 March 2021.
8	Breach of bail condition	11 May 2020	Two months imprisonment, parole eligibility date 23 March 2021.
9	Breach of bail condition	Between 27 May 2020 and 1 June 2020	Two months imprisonment, parole eligibility date 23 March 2021.
10	Breach of bail condition	8 June 2020	Two months imprisonment, parole eligibility date 23 March 2021.
11	Possess utensils or pipes for use	10 June 2020	Two months imprisonment, parole eligibility date 23 March 2021.
12	Breach of bail condition	12 June 2020	Two months imprisonment, parole eligibility date 23 March 2021.
13	Breach of bail condition	12 June 2020	Two months imprisonment, parole eligibility date 23 March 2021.
14	Possess utensils or pipes	14 June 2020	Two months imprisonment, parole eligibility date 23 March 2021.
15	Failure to appear in accordance with undertaking	14 September 2020	Two months imprisonment, parole eligibility date 23 March 2021.
16	Breach bail condition	25 September 2020	Two months imprisonment, parole eligibility date 23 March 2021.
17	Breach bail condition	2 October 2020	Two months imprisonment, parole eligibility date 23 March 2021.
18	Breach bail condition	5 October 2020	Two months imprisonment, parole eligibility date 23 March 2021.
19	Failure to appear in accordance with undertaking	19 October 2020	One month imprisonment, parole eligibility date 23 March 2021.
20	Obstruct police officer	22 November 2020	Two months imprisonment, parole eligibility date 23 March 2021.
21	Breach of bail condition	Between 19 October 2020 and 9 November 2020	Two months imprisonment, parole eligibility date 23 March 2021.
22	Failure to appear in accordance with undertaking	19 January 2021	One month imprisonment, parole eligibility date 23 March 2021.
23	Possessing dangerous drugs	13 February 2021	Six months imprisonment, parole eligibility date 23 March 2021.
24	Possessing utensils or pipes that had been used	13 February 2021	Two months imprisonment, parole eligibility date 23 March 2021.

1. In addition, a suspended sentence imposed in the Brisbane Magistrates Court on 23 January 2019 was activated and the appellant was ordered to serve the whole of that suspended sentence namely a period of seven days.

2. The effective term of imprisonment was 18 months imprisonment with a parole eligibility date at the date of sentence.[1] 39 days presentence custody was declared.

   [1]This was because the Failing to Appear penalties by operation of law were cumulative- section 33(4) of the Bail Act 1980 (Qld).

   Proceedings below

3. A schedule of the facts of the matter was tendered as Exhibit 1.

4. On 9 April 2019, police intercepted a vehicle travelling southbound on Gympie Road, Kedron. The appellant (born 26 March 1994) was the driver. Police conducted checks which revealed the appellant’s driver licence was disqualified for two years on 24 November 2018 (Charge 1). As to charge 2, police asked the appellant whether she had consumed any drugs or alcohol prior to the interception and she admitted smoking methylamphetmine about six hours prior. She told police she was travelling from Carseldine to Kedron Hungry Jacks. Police searched the vehicle and the appellant and she removed two clip seal bags containing a white crystallised substance concealed in the front of her pants. One bag contained about 4.5 grams of white crystals and the other 0.5 of white crystals. She did not want to make any further comments or answer any questions (Charge 2).

5. On 30 May 2019 at about 11.20pm, police were conducting checks of patrons at the Kallangur Tavern. The appellant gave an incorrect name to police but soon after revealed her correct name. A search was conducted of the appellant and she declared she had a clip seal bag of “meth” in the left side of her bra. Police seized this. It contained less than 1 grams of a white crystalline substance (Charge 3).

6. On 17 February 2020, the appellant failed to report to the Burpengary Police in breach of her bail undertaking. When asked to why she failed to comply she said she forgot (Charge 4).

7. On 19 February 2020, the appellant stole 42.14 litres of unleaded fuel valued at $63.72 from Puma Service Station at Narangba (Charge 5).

8. As to Charge 6, on 23 March 2020 police attended at a residence at Narangba with a return to prison warrant for a man called Jackson Knaggs. Jackson Knaggs was found in a wardrobe and was placed under arrest and was told to place his hands forward to be handcuffed. He failed to comply with this direction. He also failed to follow any directions or commands given by police. During the arrest the appellant and a co-defendant physically intervened and tried to prevent the arrest. Eventually Jackson Knaggs was restrained and taken to a police vehicle. During the arrest, Senior Constable Logan suffered soft tissue damage as did Constable Brendan Brook.

9. On 30 March 2020, the appellant was granted bail in the Caboolture Magistrates Court for failing to report in breach of a bail undertaking (Charge 7). She could not provide any reason for this.

10. On 11 May 2020, the appellant failed to report in breach of a bail undertaking (Charge 8).

11. On 27 and 28 May and 1 and 3 June 2020, the appellant failed to report to the police station in breach of a bail condition. She told police when questioned she was worried there was an outstanding warrant for her (Charge 9).

12. On 8 June 2020, the appellant failed to report to the police station in compliance with a bail undertaking (Charge 10).

13. On 10 June 2020 at about 9am, police executed a search warrant at an address at Kallangur. The appellant was present. A glass pipe with white residue and char marks was found in her bag. She admitted she used it to smoke methamphetamines (Charge 11).

14. On 12 June 2020, the appellant failed to report to the police station in breach of her bail undertaking (Charge 12).

15. On 12 June 2020, the appellant failed to reside at the address as required by her bail undertaking (Charge 13).

16. On 14 June 2020, police attended an address at Kallangur and found a glass pipe in the appellant’s front left trouser pocket (Charge 14).

17. On 14 September 2020, the appellant failed to appear as required in the Caboolture Magistrates Court (Charge 15).

18. On 25 September 2020, the appellant failed to report to the police station in compliance with her bail undertaking (Charge 16).

19. On 2 October 2020, the appellant failed to report to the police station in compliance with her bail undertaking (Charge 17).

20. Charge 18 related to a failure to report on 5 October 2020 and Charge 19 a failure to report on 19 October 2020. Also, on 22 November 2020, the police attended the appellant’s address regarding an outstanding warrant. She shut the door on the police and exited the room via a window. She tried to hide from the police but was located a short time later with a pelvic injury and was transported to the hospital (Charge 20).

21. The appellant failed to report on 19 October 2020, 21 October and 9 November 2020 in breach of her bail conditions (Charge 21).

22. On 19 January 2021, the appellant failed to appear in the Brisbane Magistrates Court in compliance with her bail undertaking (Charge 22).

23. On 13 February 2021, police were conducting mobile patrols at Victoria Point Shopping Centre carpark and saw the appellant was under the influence of drugs. She was searched and a used glass pipe was found in her handbag. There was a small amount of white crystallised material in the bulb (Charge 24). There was also a small clip seal bag with under 1 gram of white crystal substance located. She made admissions as to smoking the white crystal (Charge 23).

24. Exhibit 2 was the appellant’s criminal history. This disclosed the appellant was 26 years of age.

25. Her criminal history commenced in 2015. It showed the following relevant entries:

Date	Offences	Penalty
17 December 2015	5 x enter premises with intent 12 x fraud 4 x attempted fraud  1 x unlawful use motor vehicle 3 x stealing 1 x possessing dangerous drugs 1 x unlawful entry of vehicle	9 months’ imprisonment suspended for two years
7 June 2017	2 x Fail to appear	Operational period extended by 6 months fine $800
7 June 2018	5 x breach of bail	Operational period extended by 6 months fine $900
24 September 2018	5 x possess drugs 2 x fail to stop motor vehicle 3 x receive tainted property 1 x possess implements 2 x unlawful use motor vehicle 1 x fail to appear 9 x stealing 1 x attempted stealing 2 x possess stolen property 1 x attempted stealing 3 x unlawful possess weapons 11 x breach bail condition 1 x possess counterfeit money 1 x burglary and commit 8 x possess utensils or pipes 3 x possess property (drugs) 2 contravene direction or requirement 1 x assault or obstruct police	Head sentence 2 years imprisonment with parole release date 24.9.18. 95 days pre-sentence custody declared.
23 January 2019	Possess knife	7 days fully suspended operational period 3 months

1. Exhibit 3 was the appellant’s traffic history which was not good. She had previously been sentenced to imprisonment for unlicensed driving on 24 September 2019. However, the offence before the Magistrate was her first disqualified driving.

2. The pre-sentence custody certificate was tendered as Exhibit 4. This disclosed that the 38 days was declarable but also showed that she had been returned to custody on 30 May 2019 and then re-released to court ordered parole on 2 December 2019.  

3. The prosecution pointed out that the appellant was 26. She was aged between 24 and 25 during the offending period which spanned 9 April 2019 until 13 February 2021.

4. It was submitted that the appellant was found in possession of dangerous drugs exceeding Schedule 3 but less than Schedule 4 although it was admitted this was not analysed. It was submitted there was 5 grams of methylamphetamine. It was submitted that she had relevant previous convictions and was on parole at the time of the offending for similar offences. It was also submitted that the appellant had a relevant traffic history. The prosecution submitted taking into account all matters 18 months should be imposed for the drug offences with cumulative terms for the failing to appear charges and she should receive an eligibility date after one third.

5. The defence lawyer submitted that imprisonment was within the range but it was submitted that a penalty of 12 to 18 months should be imposed to be wholly suspended, taking into account the 38 days spent in pre-sentence custody. It was also submitted that a concurrent probation order would be appropriate. It was submitted that there was extra curial punishment and there were very lengthy delays associated with parole applications. It was submitted that the backlog for parole applications exceeded four months or longer. It was pointed that the matter was originally listed for sentence on 16 March 2021 but the sentence was adjourned because she gave birth to her first child. The baby was immediately taken from her. The baby has been placed in the custody of her mother. Child Safety was now involved with respect to the matter. It was submitted that the appellant was still young and she had been in custody for 38 days. She was born in Queensland, educated until year 12 and had worked in tourism and hospitality in customer service. She however was unemployed for the past three to four years. She proposed to be a stay at home mum and work with Child Safety and to get work in hospitality. Whilst there is no formal diagnosis, she was suffering from depression and used drugs to self-medicate. The appellant had never sought treatment for this condition. With respect to the significant number of bail and failure to appear offences, the appellant was thrown out of her mother’s house and lived with a friend which was a 10 minute drive away from the police station.  She was unable to drive herself to the police station because of the licence disqualification. With respect to drugs, she has not done drug rehabilitation previously. It was submitted the appellant needs assistance. She had given birth to her first baby and in those circumstances, bearing in mind the pleas of guilty, her youth and the extra curial punishment, a suspended sentence together with a probation was appropriate. It was pointed out that the methylamphetamine was not pure, it was a total of 4.5 grams. It was finally pointed out that if an eligibility date was given she would be in custody at least four months if not longer waiting for the application to be reviewed. The defence pointed out that she had taken a number of steps to liaise with Anglicare and Sisters Inside.

6. By way of reply, the prosecution pointed out that the Department of Child Safety was involved with the child and they had expressed concerns regarding the appellant’s ability to care for the child.

   Decision

7. The Magistrate referred to the 39 days in pre-sentence custody and to the fact the appellant had recently given birth to a child in custody. He referred to the criminal history. He noted the appellant had a serious drug problem and thought it should be up to the parole board to assess when and in what circumstances she should be released. He appreciated the parole board had some backlog but given it was accepted that 18 months was a sufficient head sentence she could get her application in as soon as possible. Taking all matters into account, he sentenced her to 15 months imprisonment on the drug offence. He also indicated he was giving her credit for the timely plea to the charges. The Magistrate ended up setting an immediate parole eligibility date and activated the suspended sentence.

   Appellant’s submissions

8. The appellant submits that the Magistrate failed to recognise the significantly extra curial punishment imposed on the appellant. Whilst the Magistrate did take into account the fact the appellant had given birth to a child, Magistrate did not give this sufficient weight. It is submitted in reliance of R v McConachy[2] and R v Chong; ex parte Attorney-General[3] that the family situation was exceptional and an error occurred in the sentencing process here.

   [2][2011] QCA 183.

   [3][2008] QCA 22.

9. As to Grounds 4 and 5, the Magistrate accepted the submission the appellant would be required to serve at least a further period of four to five months from the day she will be eligible to apply for parole. It was noted during submissions that the appellant had served a period of 187 days between 30 May 2019 and 2 December 2019 consequent upon the suspension of her parole order and following the offending in April 2019. As a matter of totality this matter should have been taken into account.[4] It is submitted that the six month period combined with the 39 days of declarable custody and the minimum of four to five month delay before the processing of a parole application would mean the appellant would serve greater than the one third period imprisonment contemplated by the Magistrate.

   [4]R v Leighton [2014] QCA 169 and R v Macklin [2016] QCA 244.

10. It is submitted therefore an error occurred in the sentencing process here. It is submitted on the resentence the appellant should be sentenced to a fully suspended term of imprisonment for the three offences committed in 2019 and probation after time served on the other offences.

    Respondent’s submissions

1. The respondent on the other hand submits that the appeal should be dismissed. It is submitted that the Magistrate took into account the extra curial punishment alleged. It is further submitted the Magistrate did take into account the undeclarable time in custody.

2. It is further submitted the Magistrate took into account the delay in the parole board assessing applications.

3. Finally it is submitted the sentence is not manifestly excessive.      

   Discussion

4. There is no doubt on the evidence that the appellant spent an undeclarable period of 187 days in custody in 2019 directly attributable to the offending. The evidence also reveals that the delay in the assessment of parole applications could be as much as six months. Adding the 39 days, this means it is likely the appellant will spend about 13 months in custody before being able to achieve parole.

5. In R v Shillingsworth[5] the Queensland Court of Appeal held that by reason of sections 9(1)(a) and (2)(l) and (m) of the Penalties and Sentences Act 1992 (Qld) a court should have regard to the impact of a sentence overall on an offender and this includes the circumstance that the offender has to serve a term of imprisonment for earlier offences.

   [5][2001] QCA 172; [2002] 1 Qd R 527 at [3] per Thomas JA and [30] per Williams JA.

6. In R v Leighton[6] the Queensland Court of Appeal accepted that undeclarable custody was a relevant matter to be taken into account when sentencing as the cumulative effect of a sentence is not irrelevant. In R v Macklin[7] McMurdo P considered that the sentencing judge was required to take into account the undeclarable time in the exercise of the sentencing discretion.

   [6][2014] QCA 169 at [29] applying R v Baxter [2010] QCA 235 at [23].

   [7][2016] QCA 244 at [32].

7. The respondent relies on R v Berns.[8] The court there did not refer to Shillingsworth, Leighton, Macklin or section 9(2) (l) and (m) of the Penalties and Sentences Act. It did refer to R v McAnally.[9] However McAnally is authority for the proposition that undeclarable time is not relevant to the totality principle. Leighton and Macklin make that clear. But it is clear a court must have regard to the cumulative effect of the sentence.    

   [8][2020] QCA 36.

   [9][2016] QCA 329 at [41]-[43].

8. In my opinion, the Magistrate did not sufficiently take into account the six months the appellant served in 2019 by reason of the offending which occurred in April 2019.

9. I disagree with the respondent’s submissions that the Magistrate appropriately took it into account. He only took it into account as an aggravating feature as distinct from considering the cumulative effect.[10]

   [10]Reasons page 2.11.

10. I agree with the appellant’s submissions that the effect of the sentence imposed would be that the appellant will serve significantly more than one third of the 18 month head sentence in contemplation.

11. In those circumstances, I find that an error occurred in the sentencing process and I should resentence the appellant.

12. In light of the pleas of guilty, the appellant’s age and the appellant’s family situation[11] (namely the removal of her baby and her desire to work to be a good mother), I am persuaded this an appropriate case to impose a suspended sentence on one count and probation on the others to give full benefit to the pleas of guilty whilst acknowledging the importance of deterrence and rehabilitation.

    [11]I note in R v Chong; ex parte Attorney General [2008] QCA 22; (2008) 181 A Crim R 200 at [33]-[35] it was said hardship on children is a relevant sentencing consideration, although should not overwhelm the sentence.

13. The parties agreed that I should not declare the time in pre-sentence custody (a period of 89 days) but take it into account in determining the head sentence.

14. The parties also agreed I should sentence the appellant to the rising of the court for the breach of the suspended sentence. I agree.

    Conclusion

15. I therefore make the following orders:

16. I allow the appeal.

17. On each charge a conviction is recorded.

18. On Charge 2 the appellant is sentenced to 15 months imprisonment suspended forthwith for an operational period of three years.

19. On all other charges, subject to the appellant’s consent, I make a probation order pursuant to s 92(1)(a) of the Penalties and Sentences Act 1992. I order the appellant be released under the supervision of an authorised corrective services officer for a period of three years and she must comply with the requirements set out in s 93 subsection 1 of the Penalties and Sentences Act 1992 and report within 24 hours of her release from prison to an authorised corrective services officer. Additional requirements are that the appellant is to submit to such medical psychiatric or psychological treatment as directed by an authorised corrective services officer; the appellant is not to take any illegal drug and the appellant is to submit to drug testing as directed by an authorised corrective services officer at least once per month.

20. With respect to the suspended sentence imposed on 23 January 2019 I sentence the appellant to the rising of the court.

21. The other orders, including the order for disqualification of holding or obtaining a driver licence and orders for forfeiture are not disturbed and are confirmed.