Young v White
[2016] QDC 159
•24 June 2016
DISTRICT COURT OF QUEENSLAND
CITATION:
Young v White [2016] QDC 159
PARTIES:
BRENDAN YOUNG
(appellant)
and
ADAM CHRISTOPHER WHITE
(respondent)
and
BRENDAN YOUNG
(appellant)
and
DANIEL ANTHONY SANTA-MARIA
FILE NO/S:
(respondent)
and
MICK GUIDA
(appellant)
v
AHMED CHEHAB KADDOUR
(respondent)
and
MICK GUIDA
(appellant)
v
JACQUES VETEA TEAMO
(respondent)
and
NIGEL BULL
(appellant)
v
SANJIN DELALIC
(respondent)
MAG 00190641/13 (9), 00197536/13 (6), 00027933/13, 00190764/13 (3), 0015891/15; Appeals 3538-3542 of 2015.
DIVISION:
PROCEEDING:
Criminal Appeal
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
24 June 2016
DELIVERED AT:
Brisbane
HEARING DATE:
3 June 2016
JUDGE:
McGill SC DCJ
ORDER:
Appeals allowed; sentences imposed by magistrate set aside; respondents resentenced as follows:
- Respondent White: Convicted, conviction recorded, sentenced to 12 months imprisonment; sentence wholly suspended, with an operational period of 2 years and 2 months.
- Respondent Santa-Maria: Convicted, conviction recorded, sentenced to 6 months imprisonment; sentence wholly suspended, with an operational period of 18 months.
- Respondent Kaddour: Convicted, conviction recorded, sentenced to 7 months imprisonment; declare 2 days in custody, from 13 to 14 October 2013 inclusive, solely in relation to this offending to be imprisonment already served under the sentence; sentence wholly suspended, with an operational period of 21 months.
- Respondent Teamo: Convicted, conviction recorded, sentenced to 13 months imprisonment; declare 2 days in custody, from 1 to 2 October 2013 inclusive, solely in relation to this offending to be imprisonment already served under the sentence; sentence wholly suspended, with an operational period of 2 years and 5 months.
- Respondent Delalic: Convicted, conviction recorded, sentenced to 6 months imprisonment; sentence wholly suspended, with an operational period of 18 months.
CATCHWORDS:
APPEAL AND NEW TRIAL – Criminal law – sentence appeal – appeal by prosecution under Justices Act 1886 s 222 – test to be applied – approach to residual discretion.
CRIMINAL LAW – Sentence appeal – parity principle – application to decision on appeal – whether sentence manifestly inadequate – residual discretion.
Justices Act 1886 s 222(2)(c), s 225.
Barbaro v R (2014) 253 CLR 58 – cited.
Clarke-Davis v Commissioner of Police [2014] QDC 61 – followed.
Commissioner of Police v Watmough [2015] QDC 46 – cited.
Dinsdale v R (2000) 202 CLR 321 – cited.
Everett v R (1994) 181 CLR 295 – cited.
Green v R (2011) 244 CLR 462 – cited.
Griffith v R (1977) 137 CLR 293 – cited.
House v R (1936) 55 CLR 499 – cited.
Lacey v Attorney General (2011) 242 CLR 573 – applied.
Lowe v R [1984] 154 CLR 606 – applied.
Mill v Scott, ex parte Mill [1955] St R Qd 210 – considered.
Munda v Western Australia (2013) 249 CLR 600 – cited.
Postiglione v R (1997) 189 CLR 295 – applied.
R v Beevers [1942] St R Qd 230 – considered.
R v Bell [1982] Qd R 216 – cited.
R v Cutts [2013] QCA 237 – cited.
R v H (1993) 66 A Crim R 505 – cited.
R v Hopper ex parte Attorney General [2015] 2 Qd R 56 – applied.
R v Horne [2005] QCA 218 – considered.
R v Hurst [2014] QCA 168 – cited.
R v KAJ, ex parte Attorney-General [2013] QCA 118 – cited.
R v Law [1996] 2 Qd R 63 – cited.
R v McCormack [1981] VR 104 – cited.
R v McKeown [1940] St R Qd 202 – considered.
R v Owen [2015] QCA 46 – cited.
R v Schenk,ex parte Attorney General [2016] QCA 131 – applied.
R v West [2007] QCA 347 – cited.
R v Whittaker (1928) 41 CLR 230 – cited.
R v Simmons [2015] QCA 194 – cited.
Teelow v Commissioner of Police [2009] 2 Qd R 489 – cited.
Wong v R (2001) 207 CLR 584 – cited.COUNSEL:
M R Byrne QC for the appellants
C Heaton QC for the respondent Teamo
JJ Allen QC for the respondent Santa-Maria
S Di Carlo for the respondents White and Kaddour
The respondent Delalic in person.
SOLICITORS:
Director of Public Prosecutions for the appellants
Grasso Searles Romano lawyers for the respondents White and Kaddour.
Legal Aid Queensland for the respondents Santa-Maria and Teamo
The respondent Delalic was not represented
On 4 May 2015 the respondents each pleaded guilty relevantly to one count of riot. Sentencing submissions were made on 22 July 2015 on behalf of them, and of some others who were sentenced at the same time for offences arising out of the one incident, and they and 15 others were sentenced on 14 August 2015. The respondents White and Teamo were each sentenced to four months imprisonment suspended forthwith, with an operational period of 12 months. The remaining respondents were fined $2,000 each, except for Mr Kaddour whose fine was only $1,200. Convictions were recorded in each case. In each matter the complainant appeals against the sentence on the ground that it was manifestly inadequate. The five appeals were, for convenience, heard together.
Test to be applied
The Justices Act 1886 s 222 confers a right to appeal to this Court from an order made in a summary way on a complaint of an offence or breach of duty, subject to the limitation in subsection (2)(c) that, if a defendant pleads guilty, “a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.” It is well established that the section permits an appeal by a complainant against dismissal of a complaint, and where a defendant has pleaded guilty, permits an appeal by the complainant against the sentence imposed on the ground that it was inadequate. The appeal is a re-hearing on the evidence before the Magistrates Court, subject to the power of the District Court to give leave to adduce fresh, additional or substituted evidence on special grounds: s 223. The powers of the judge on hearing the appeal are expressed in s 225 in terms which do not distinguish between an appeal against sentence by a defendant and an appeal against sentence by a complainant.
Traditionally there was no right to appeal against a sentence on the ground that it was inadequate. The Criminal Code contained no such right until 1939, when by an amendment Act s 669A was inserted into the code, giving the Attorney General a right of appeal against any sentence pronounced by a trial court. It provided that, “the Court may in its discretion vary the sentence and impose such sentence as to the Court may seem proper.” The first appeal to be brought under this provision appears to have been R v McKeown [1940] St R Qd 202. The respondent after a trial was convicted of manslaughter, and was released on recognisance in the sum of £50 to come up for sentence if called upon at any time within 12 months: p 211.
At p 211 the Court of Criminal Appeal had this to say about the sentence passed:
“We can only attribute this action to an inexplicably merciful impulse causing an absolute and immediate change in his view as to the real gravity of the prisoner’s conduct. He seems to have given disproportionate weight to the verdict of manslaughter in relation to the defence of provocation. His report furnished for the purpose of this appeal seems to us to be an ex-post facto attempt at justification of this leniency on grounds which do not appear to have been present to his mind when actually dealing with the prisoner. We feel sure that all judges find their duty to impose sentences an extremely difficult one and lean to mercifulness occasionally at the wrong time. The question arises, was this such a time, and if we think it was, what is our duty in the circumstances?”
The Court of Criminal Appeal did not discuss the test to be applied, but referred to the decision of the High Court in R v Whittaker (1928) 41 CLR 230, where a majority of their Honours expressed the view that a provision inserted in the NSW statue in 1924 in essentially the same terms as s 229A conferred an unlimited judicial discretion on the Court of Criminal Appeal to alter the sentence imposed by the trial judge.[1] The Court dealt with some technical arguments,[2] including that the Court should stay its hand and wait for the trial judge to act, in respect of which they said at p 213:
“We are of opinion that we should proceed to exercise our new jurisdiction. It is now for us, in the exercise of our discretion, to decide what is a proper sentence to impose under all the circumstances. We should, of course, bear fully in mind the sentence imposed by the Court below, but we cannot shirk our own plain duty.”
[1]Page 235 per Knox CJ and Powers J; p 253 per Gavan Duffy and Starke JJ; Isaacs and Higgins JJ dissenting.
[2]Including that the effect of the order was that there was no “sentence” from which to appeal, rejected here but upheld in Griffith v R (1977) 137 CLR 293.
There was nothing else by way of discussion about the test to be imposed on appeal under the section, but evidently their Honours regarded the case as not one for fine distinctions of that nature, since they set aside the order that the respondent be released on a recognisance, and sentenced him to seven years imprisonment with hard labour: p 214.[3]
[3]The Court described the summing up as being “at least as favourable to the prisoner as it could be”: p 209. The report, and the reasons for judgment, identify the trial judge as Brennan J. See also R v Truth and Sportsman Ltd, ex parte McKeown [1940] St R Qd 249.
A similar approach was adopted in R v Beevers [1942] St R Qd 230, though Macrossan SPJ did say at p 233 that the Court should not interfere with a sentence pronounced by a trial judge “unless it is clearly satisfied that the sentence should be altered.” In that case the Court by a majority raised a sentence of six months imprisonment to 18 months imprisonment for a charge of indecent dealing. That view of the legal position under s 229A remained current in 1949[4] when the legislature amended the terms of s 209 of the Justices Act in such a way as to permit an appeal by the complainant against the sentence imposed on the ground that it was inadequate.[5]
[4]And indeed when I studied Criminal Law: Carter’s Criminal Law Queensland (3rd Ed 1969) p 628.
[5]It appears that prior to 1949 no such appeal was possible although an administrative law remedy may have been available in respect of the sentencing process.
Such an appeal came before the Full Court in Mill v Scott, ex parte Mill [1955] St R Qd 210.[6] One of the matters raised was whether a complainant could be a “person aggrieved” for the purposes of s 209, which suggests that this was the first such appeal under the new section. The Court held that a complainant could, and went on to consider whether “the penalty imposed by the magistrate [was] manifestly inadequate.”: p 218, a question they answered in the affirmative. At the time the power conferred on the Court on appeal in relation to sentence was to “increase or reduce any penalty imposed by the said conviction or order.”[7] In circumstances where a fine had been imposed by the magistrate, the Court held that it had power to increase the fine, but not to substitute a penalty of a different kind, namely imprisonment, though they considered that a period of imprisonment ought to have been imposed by the magistrate. The Court raised the amount of the fine from £10 to £50, and allowed seven days to pay, in default six months imprisonment. The decisions on s 669A were not cited, and the Court appears to have applied a more restrictive test on a prosecution appeal against sentence than current under the section of the code.
[6]There was in those days no District Court; appeals went to the Supreme Court and could be heard by either a single judge or the Full Court.
[7]Section 213(1)(iii). See p 214.
I do not propose to embark on a comprehensive history of the development of the law in relation to s 669A, partly because it is not necessary for me to do so for present purposes and partly because that task has already been performed in the judgment of the majority of the High Court in Lacey v Attorney General (2011) 242 CLR 573 at [8]-[35]. What is notable in the analysis of the majority is the emphasis on important general principles of law rather than the particular wording of the statute concerned. This approach has been adopted to such an extent that a legislative amendment in 1976 to insert the word “unfettered” before the word “discretion” has effectively been treated as having no effect.[8] In those circumstances, one would expect that the approach adopted by the High Court would also be applicable to a prosecution appeal against sentence under s 222 of the Justices Act, without the need for any careful comparison of the wording of the two sections.
[8]The discretion is merely free from legislative fetter: R v Osmond, ex parte Attorney General [1987] 1 Qd R 429 at 437. It remains decidedly fettered by the principles laid down by the High Court.
One of the things decided in Lacey at [60] was that an appeal under s 669A is an appeal by way of rehearing, something that is made express in an appeal under s 222 by s 223.[9] Another proposition that was established in that decision is that on an appeal by way of rehearing it is necessary to determine whether the order the subject of the appeal was the result of some legal, factual or discretionary error.[10] The position is the same with an appeal under s 222.[11]
[9]It is unnecessary to determine whether s 223 is consistent with the High Court statement that the rehearing must be confined to the evidence before the primary judge, at least in support of the question that the sentence should be increased, since the appellants did not seek to put any fresh evidence before me.
[10]Lacey (supra) at [57], para 3, citing Allesch v Maunz (2000) 203 CLR 172 at [23].
[11]Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4].
The majority in Lacey (supra) said at [62] that error on the part of the sentencing judge had to be demonstrated before the court’s unfettered discretion to vary the sentence was enlivened, and went on to say:
“The unfettered discretion may be taken to confer upon the Court of Appeal in such a case the power to substitute the sentence it thinks appropriate where error has been demonstrated.”
The High Court has however elsewhere pointed out that that discretion extends to a discretion not to interfere with the original sentence.[12] In R v Hopper ex parte Attorney General [2015] 2 Qd R 56, the majority of the Court of Appeal held that, although error by the sentencing judge had been demonstrated, this discretion should be exercised in favour of the respondent. In CMB v Attorney General (NSW) (2015) 89 ALJR 407 the Court confirmed the existence and operation of this residual discretion at [33], [54], and went on to confirm that the onus lay on the Attorney General as appellant to show that the discretion to vary the sentence ought to be exercised in a particular case. That concerned the NSW statue dealing with such appeals, but in R v Schenk,ex parte Attorney General [2016] QCA 131 Gotterson JA with whom the other members of the Court agreed said at [48] that the terms of that statue were relevantly comparable to those s 669A, and applied that decision.
[12]Green v R (2011) 244 CLR 462 at [43]; Munda v Western Australia (2013) 249 CLR 600 at [72].
Those terms are somewhat different from those in s 225, but that section speaks in subsection (1) and (3) in terms of what the judge “may” do on the hearing of an appeal, which wording is consistent with the conferring of a discretion. Overall, therefore I consider that the approach on the hearing of an appeal to this Court under s 222 of the Justices Act 1886 by a complainant against sentence should be the same as the approach of the Court of Appeal to the hearing of an appeal against sentence by the Attorney General. Indeed, counsel for the complainants conceded as much on the hearing of the appeal, and although such appeals are rare, that approach does seem to have been adopted in this court.[13] I have gone into this matter in such detail only because I am not aware of a decision of the Court of Appeal dealing specifically with the question of the correct approach for a District Court judge hearing an appeal against sentence by the complainant under s 222 of the Justices Act 1886, and because so far as I can recall this is the first one that I have heard myself.
[13]See for example Commissioner of Police v Watmough [2016] QDC 46.
Circumstances of the offending
The respondents were all sentenced on the basis of a schedule of facts which was put to the Court, apparently by agreement. The following is taken largely from that schedule, though focusing on those factual matters which involve these respondents; the sentencing hearing and the schedule also dealt with another 15 offenders. At the date of the offence, the respondents were members, nominee members or associates of the Bandido criminal motorcycle gang (“Bandidos”).[14] At about 8.15pm on Friday 27 September 2013 at least 40 Bandidos wearing insignia attended Broadbeach and walked as a group through the Broadbeach mall. This occurred during school holidays at a time when the area was heavily populated with families, and others, as was apparent from surveillance video footage which had been seen by the magistrate, and was shown to me on the hearing of the appeal: Ex 4. The group was predominately lead by six individuals, including the respondents White and Teamo. Individual members walked into and out of at least ten restaurants or licenced premises, and at one stage the respondent Teamo peered into a restaurant.
[14]The respondent White was president of the local chapter: T 22 July, p 1-27, p 1-37.
At one point the group congregated at the intersection of Albert Avenue and Surf Parade, then moved down Surf Parade, and part of the group waited outside the Aura Tapas Bar, which seats 100-120 and was close to full capacity at the time. Two associates of another criminal motorcycle gang were dinning in the Aura Bar at the time. The respondent Teamo stopped, entered Aura and looked towards them, and another Bandido turned to the group and yelled “oi everyone inside”: twenty-one Bandidos went into the restaurant with six walking straight to where the other two were seated. All respondents were among those who entered the restaurant. Teamo yelled at one of the other gang members, who suggested they “take it outside”, and walked out of the restaurant with the Bandidos who had entered it.
Outside the member of the other gang punched the respondent Teamo, and a fight erupted between the respondent White and the member of the other gang, with the respondent White supported by the respondents Teamo and Kaddour and at least one other Bandido.[15] A number fell to the ground including the respondent White, and the respondent Delalic joined the group. When police tried to stop the fighting one officer was struck in the face by an unidentified Bandido, the respondent Santa-Maria tried to tackle a police officer, and the respondents White and Santa-Maria, and some others, were detained by police and eventually handcuffed. By this time the respondent Teamo had left the area. In the fight tables were knocked over and dinnerware and glassware damaged, and a white decorative fence. When the fight started a number of diners in the area fled; some patrons of the Aura Bar had also left after the Bandidos entered.[16]
[15]The hearing proceeded on the basis that the violence shown to the other gang member was not unlawful: T 22 July, p 1-21.
[16]This was obvious in Ex 4.
There was a confrontation between police and other Bandidos who were adjacent to the area of the fight, who were yelling threating obscenities at the police, and at one stage the group were chanting “Bandidos, Bandidos”. The group of Bandidos were demanding that the individuals taken into custody be released. One Bandido threated police with a raised chair, and a number of Bandidos were seen to have their hands in their pockets as if they concealed weapons, though no weapons were produced. There were further obscenities and abuse yelled at the police when they put the member of the other gang into a police van.
While police were restraining the respondent White, the respondent Kaddour yelled at them demanding that they release him, as did other Bandidos who were also abusing police. A member of the public who appeared to be using a mobile phone to take photographs was abused and threatened by Bandidos. Eventually, after more police arrived and following negotiations between police and the Bandidos’ national sergeant at arms, the situation was defused and the Bandidos dispersed, leaving the area about 20 minutes after the group had entered the Aura Bar. During the incident, police observed members of the public in distress, including women and children crying near trees or motor vehicles.
Sentencing remarks
The magistrate made some general remarks about the circumstances, and then specific remarks about each of the 19 individuals he was sentencing that day. He said of the incident that:
“Arrogance and gang mentality were clearly on show that night. That being said, I must sentence each of you individually today on what actually happened on the charge or charges you have pleaded guilty to, and on your individual conduct, on this most regrettable and sad evening, but not on perception.”
He noted that the maximum penalty for riot was three years imprisonment, and said that he regarded actions as more serious than words, and entering the Aura Bar as more serious than congregating outside it. He noted that where violence was actually used, the level of violence was not high and had not involved any serious injury, and was mostly bikie on bikie violence, though one police officer was the victim of several king hits. He again noted that he was required “to sentence each of you of the basis of your actual conduct.” He said that the conduct of the group had effectively closed down Broadbeach for a period, and that they had participated in “the totally unacceptable practice of gang mentality which cannot be tolerated in any society.” They were “men on a mission to locate” the particular individual found in the Aura Bar with whom the respondent Teamo had a particular issue. When he was located in the Aura Bar, the respondent Teamo had called in twenty or so others, which was followed by an aggressive exchange of words before they left. That “clearly caused distress to many patrons.” He referred to the fight outside the Bar, and the following “protracted and volatile standoff between the police and the Bandidos…There was much threatening behaviour and use of threatening and obscene words to police.”
The magistrate said he had regard in particular to the Penalties and Sentences Act ss 9 & 12, and that “deterrence, both personal and general is an important consideration in these sentences. Protection of the community is also an important factor.” He went on to note that in nearly two years since the offending “many of you have moved on to a new stage in your life.”
The magistrate referred to the District Court decision and said he had regard to what was said in that case in crafting the various sentences, and acknowledge parity as an important factor in sentencing. He said he had given consideration to sentences imposed on co-offenders but said that he regarded the sentences imposed on Clark-Davis and on Jackson as having been “quite harsh”. He said that the fact that they had renounced their membership to the Bandidos was an important factor in their favour and was relevant to the prospects of re-offending and the prospects of rehabilitation, though he acknowledged that the VLAD Laws had made continued association with such an organisation rather uncomfortable.[17] He said correctly that he regarded the effect of custodial sentences on family members, particularly children, as a factor to be considered but as being of little weight.
[17]That was relevant in assessing the significance of an expressed intention not to re-join the Bandidos.
He then dealt with other defendants, but when he came to the respondent Teamo (p 10) he stated that he was satisfied that he was the cause of the whole regrettable affair, though he acknowledge that there was much that the Court did not know about that night. He did however note that the respondent Teamo was not wearing Bandido colours, and appears to have accepted a submission on behalf of the respondent that he had been in Broadbeach anyway that night before being contacted by other Bandidos in relation to the member of the other gang with whom he had the issue. Once he was told he was there, however, the respondent Teamo enthusiastically joined in what occurred, and, presumably thereafter, played a leading role in what occurred that night. The magistrate described his involvement and role as “pivotal”. He noted a criminal history mainly for drug offences, but including a public nuisance offence, and a conviction for possessing a knife in a public place in 2012; he had previously been the subject of a probation order and had then been assessed as a suitable candidate for a further community based order. There were two days pre-sentence custody.
Teamo had not previously been sentenced to a term of imprisonment. He had the care of two young sons, had recently suffered significant business losses, had chronic hip and back pain due to car accidents, and in 2012 had been shot in an altercation at Robina from which he was suffering ongoing psychological problems. He previously had been addicted to drugs but had not been so addicted since 2011. The magistrate discounted the significance of a psychologist’s report in relation to the consequences of the shooting in 2012 because the psychologist had been told inaccurate facts about the shooting, though he did accept that there had been psychiatric problems as a consequence of that shooting. The respondent Teamo had disassociated himself from the Bandidos and had moved on, had not offended since and was remorseful for his conduct on that night. He took into account the punch from the member of the other gang. The Magistrate accepted that he had changed his life for the better and that he was well motivated towards rehabilitation, as shown by the fact that he had sought assistance from a psychiatrist.[18]
[18]Evidently his motivation towards rehabilitation did not extend to the point of being frank with the reporting psychologist.
The Magistrate said that because of the importance of personal and general deterrence, the strong need to protect the community, and to show that the community will not tolerate this type of behaviour, and because his involvement in the episode was significant, indeed pivotal, a sentence of imprisonment was the only appropriate penalty. After proceeding again to summarise the matters already referred to, he imposed a sentence of four months imprisonment. He then listed a number of factors favourable to the respondent Teamo, to which again I have already referred,[19] and said that he was satisfied it was appropriate wholly to suspend the imprisonment, with an operational period of 12 months.
[19]Timely plea of guilty; personal circumstances, not a serious criminal history; rehabilitation to date and prospects for rehabilitation; remorse; that he had moved on; the pre-sentence custody; disassociation from Bandidos with no intention to re-join.
Dealing with the respondent Delalic (p 13), the Magistrate noted that he was the 19th Bandido to enter the Aura Bar and cause distress to the customers, and that he pushed other participants in the fight, but no individual act of real violence was alleged. He was part of a large group of Bandidos wearing colours. He was 27 at the time, then 29, and had no previous criminal history. He had pleaded guilty, the plea being described as “early-ish”. He had disassociated himself publicly from the Bandidos and had no intention of re-engaging, a matter which the Magistrate regarded as being of considerable importance. He was married with two children and had a good work history. The Magistrate accepted that he regretted his involvement, and that he had moved on with his life. He noted that he was not alleged to have been a violent participant in the riot,[20] though he had entered the bar and violence was inevitable and it had occurred. He then went on to say that notwithstanding that, he was satisfied that a fine was the appropriate penalty. A figure of $2,000 was fixed by the Magistrate, and collection was referred to SPER.
[20]The schedule of facts did say he had pushed into another Bandido after those attacking the member of the other gang had fallen over.
The respondent Santa-Maria (p 15) was dealt with in much the same way as the respondent Delalic, the facts of their involvement in the offending being “similar”, except that the respondent Santa-Maria had been earlier in the group that had entered the Aura Bar. He also had two days pre-sentence custody.[21] He was 30 at the time of the offending, he had taken steps to develop a particular career with which he was making progress. He had some criminal history dating from 2003, but a fairly minor one which was somewhat dated and included a breach of a domestic violence order, although one which was said not to involve violence. The Magistrate this time noted that the respondent was employed and had a capacity to pay a fine, and imposed a fine of $2,000. Otherwise the sentencing remarks were as with Mr Santa-Maria.
[21]This was an error. There was no pre-sentence custody in his case.
The Magistrate noted that the respondent Kaddour was the eighth Bandido to enter the Aura Bar (p 22), and had been one of the group outside, had spoken aggressively to a police officer twice but had not actually participated in any violent act.[22] The plea was said to be a timely one, and he had only spent two days in pre-sentence custody. He had a limited criminal history but “importantly” the offence occurred during the operational period of a suspended sentence imposed in the Supreme Court on 24 July 2012 for drug offences. He regarded that as an aggravating feature. He had been guilty of a public nuisance offence only three months earlier in June 2013. He was 26 at the time of the offending, employed with a good work history, and had also disassociated himself from the Bandidos. He was involved in the care of elderly parents who were in need of care, and in the two years since the offending had moved on, had changed and had a positive outlook for the future. Acknowledging that deterrence was a relevant factor he found that a fine was within range and was appropriate. He noted that it “had not been suggested that you cannot pay a fine.” A fine of $1,200 was imposed, referred to SPER.
[22]This understated the version in the schedule of facts, which says he pushed into the fight between the respondent White and the member of the other gang.
When dealing with the respondent White (p 28), the Magistrate said that his role on the night was significant because of being involved in actual violence, in punching the member of the other gang, and because he was president of the Gold Coast Chapter of the Bandidos at the time, and had become centrally involved in the lawlessness that night. The offending occurred during the operational period of a suspended sentence, which he regarded as an aggravating factor. The Magistrate rejected a submission that the punch to the member of the other gang was in response to having been hit by the punch that the other gang member threw at the respondent Teamo. The Magistrate described the offence as serious and his involvement as serious, and described him as significantly contributing to the escalation of the whole regrettable and dangerous incident. He had a previous criminal history though his suspended imprisonment was not for an offence of violence and there was only limited violence on the history. He noted that he had been tasered by police to subdue him which caused him much pain. He was 25 at the time and had produced a number of supportive references who had spoken of his great changes in his life and attitudes since the offending, including receiving medical and psychiatric assistance and counselling; medical reports supported the existence of these changes.
The Magistrate said that his involvement was more serious than the co-offenders Clarke-Davis and Jackson. He spoke of the changes that had occurred in his life since the offending, and after summarising the various factors to which he had previously referred concluded that the only appropriate penalty was a term of imprisonment and sentenced him to imprisonment for four months. Then having regard to the plea of guilty, the significant steps towards rehabilitation, his public disassociation from the Bandidos, his employment, personal circumstances, insight and the period of two years since the offending, ordered that the sentence be wholly suspended with an operational period of 12 months.
Submissions for the appellants
The appellants appeal on the ground that the sentences imposed are manifestly inadequate. The appellants submitted that the magistrate erred in that he:
(a) Failed properly to appreciate the significance to be attached to sentences imposed on other offenders, particularly the offender Clarke-Davis.
(b) Gave too much weight to considerations of rehabilitation since the offending and the existence of remorse.
(c) Failed properly to appreciate the seriousness of the offending conduct and each particular respondent’s role in that conduct.
(d) In the cases of White and Teamo, impermissibly fettered his discretion in determining whether wholly to suspend the period of imprisonment by considering only matters favourable to the respondent.
Argument (d)
It is convenient to deal first with the fourth of those submissions. Under the Penalties and Sentences Act 1992 s 144(1) if a Court sentences an offender to imprisonment for five years or less, it may order that the term of imprisonment be suspended. The wording of that subsection indicates that the imposition of a suspended term of imprisonment is a two stage process: the Court first determines to sentence the offender to imprisonment for a term not exceeding five years, at which point a discretion arises to suspend the term of imprisonment.[23] The discretion to suspend is then subject to the constraints in subsections (2) and (4). In those circumstances, the effect of an order of suspension, whether it is of all or part of the sentence of imprisonment, will be to mitigate the effect of the sentence. That is particularly the case where the sentence is suspended forthwith.
[23]Dinsdale v R (2000) 202 CLR 321 at [76]. The actual decision in that case turned on a section of the Western Australian Act not in our Act.
Although that is recognised as still amounting to a punishment,[24] it is obviously a less severe punishment than a term of imprisonment some or all of which is actually to be served. In those circumstances, it could be expected that factors tendering to favour an order that the term of imprisonment be suspended would be factors favourable to the defendant, that is to say, factors justifying the mitigation of the sentence. In those circumstances, it is to be expected that in giving reasons for such an order, the magistrate would focus on the factors favourable to the defendant.
[24]R v H (1993) 66 A Crim R 505 at 510.
That does not mean that only factors favourable to the defendant are to be taken into account in relation to making an order for suspension; it is still necessary to take into account all the factors relevant to sentencing in the general sense, including the seriousness of the offending conduct of the defendant. But the point of giving reasons for an order that the sentence be suspended is to explain why the Court has been led to take the step of making an order under s 144(1), rather than not making such an order, and it is to be expected that such reasons would be reasons favourable to the defendant. I do not think that it follows that the magistrate did not have regard to all the other factors relevant to sentence, and did not have regard to factors which were seen as tending against the making of such an order; rather, given his conclusion that such an order should be made, it was natural for him to provide the reasons for that conclusion by reference to reasons which supported it.
I do not consider that his reasons should be interpreted as indicating that he disregarded other sentencing considerations, and therefore do not consider that the reasons that the magistrate demonstrated that he did impermissibly fetter his discretion in determining whether wholly to suspend the period of imprisonment by considering only the matters favourable to the respondent. In substance the argument for the appellant on this point amounted to the proposition that, because the magistrate did not say expressly in relation to the decision wholly to suspend the terms of imprisonment, that he took into account all the circumstances of the case, I should infer that he did not do so. That is not the approach adopted to the interpretation of sentencing remarks, and not an appropriate approach to their interpretation; if adopted it would lead to an excessive formulistic formality in such remarks, and make them much longer. The real problem with this argument is that I consider it is based on a false premise, and for that reason is not made out.
Other decisions
The twenty defendants before the sentencing magistrate were not the only persons involved in the incident, and charged with offences arising out of it, and a number of co-offenders had already been dealt with. A schedule was put before the magistrate at the sentencing hearing setting them out. It appears the first person sentenced was a Mr Elcheikh, who on 19 November 2013 was in the Magistrates Court at Southport ordered to perform 150 hours community service for the offence of riot. He was 21 years old, was not part of the group that went into the Aura Bar but had been vocally aggressive to police outside; it was not alleged that he had been involved personally in any violence to others or damage to property. He had a criminal history including offences of wounding and assault occasioning bodily harm in 2012, for which he was sentenced to 18 months imprisonment with parole release after 6 months, but was not on parole at the time of the offending.
Mr Leavitt was on 10 December 2013 sentenced in the Magistrates Court at Brisbane to four months imprisonment suspended after serving 21 days, having served seven days in pre-sentence custody, for the offence of riot. He was 20 years old at the time of the offence, with a good employment history and was a prospect member of the Bandidos at the time. He was not part of the group that entered the Aura Bar, but part of the group outside that yelled abuse at police, and the individual who threatened police with a chair. He had three pages of criminal history, including for offences of violence, but had not previously been sentenced to imprisonment. He was on bail at the time of the offending, and had engaged in rehabilitative courses prior to sentencing.
Mr Jackson was on 11 December 2013 sentenced in the Magistrates Court at Southport to six months imprisonment suspended after two months, with nine days pre-sentence custody declared, for the offence of riot. He was one of the group that entered the Aura Bar, being one of the last in and one of the first out. He was then part of the group outside that was confronting police. He was 39 years old, a full Bandido member, in full time employment, married with a teenage child. He had not previously been sentenced to a term of imprisonment, and had a short and dated criminal history, including an offence of violence and possession of a baton.
Mr Andrews was on 19 December 2013 in the Magistrates Court at Southport ordered to perform 100 hours community service for the offence of riot. He had five days pre-sentence custody. He had not entered the Aura Bar, was in the group outside giving encouragement by their presence and vocal support, and remained confronting police in the area until the group dispersed, but was not alleged to have yelled abuse at police. He was 50 years of age, married though separated with two teenage children, had a good work history, was a probationary member of the Bandidos, with very limited criminal history. He was subsequently dealt with for a charge of attempting to pervert the course of justice in relation to statements made during his sentencing hearing, and received 15 months imprisonment suspended after 224 days pre-sentence custody. After that sentence the community service order was revoked.
Mr Clarke-Davis was on 20 January 2014 sentenced in the Magistrates Court at Brisbane to nine months imprisonment with parole release after four and a half months for the offence of riot. He did not enter the Aura Bar but was outside when the other group entered, and participated in the offending by his presence only. He was 22, a prospect member of Bandidos, worked as a labourer, and had a four page criminal history, mostly for drug offences but with some minor offences of violence, and had previously been imprisoned.
An appeal was brought from this decision to this Court, and on 12 March 2014 Farr DCJ allowed the appeal, set aside the sentence imposed and resentenced the appellant to six months imprisonment with parole release after 89 days, the appellant having been in custody for 89 days up to that date: [2014] QDC 61. Because of the significance of this decision as a decision on appeal, I shall return to it.
Mr Davies was on 18 February 2014 sentenced in the Magistrates Court at Southport to 160 hours community service for the offence of riot; at the same time he was placed on probation for 18 months for an unrelated wilful damage charge. He was not in the group that entered the Aura Bar, but was outside, present but at the edge of the group and not seen to be actively aggressive to police. He had a one page criminal history including a conviction for trafficking for which he was on parole at the time of the offending. As a result of this offence his parole was revoked so that he had been in custody since October 2013, of which only six days were declarable. He was 21 years old, had a good work history and was employed, and was a prospect member who had only been associated with the Bandidos for a short time.
Mr Foran was on 27 March 2014 sentenced in the Magistrates Court at Beenleigh to 150 Hours community service and 12 months probation for the offence of riot. He was 17 years of age, came from a disadvantage background and had a criminal history limited to one offence of public nuisance. He was not part of the group that entered the Aura Bar, but was part of the group outside, though not one who was specifically identified as having threatened police.
Three offenders, Mr Tangaroa, Mr Thacker and Mr Turia, were on 3 September 2014 sentenced in the Magistrates Court at Southport to 150 hours community service for the offence of riot; Mr Tangaroa was also placed on probation for 12 months. None went into the Aura Bar, but were part of the group outside, though no particular allegations were made against them of threatening police personally. They were between 23 and 26 years of age at the time of the offending, in employment and had children, two were probationary members of the Bandidos at the time, and had quite limited criminal histories. Mr Tangaroa had a two page criminal history for minor offences, and had re-offended while on bail for riot. Since the offence he had lost his job and his house and been unable to find employment.
Mr Brown was on 27 April 2015 sentenced in the Supreme Court at Brisbane to three months imprisonment for the offence of riot, and for other offences, so that the head sentence was three years imprisonment with parole release after 12 months. He was 25 years old at the time of this offence, and had a criminal history extending to three pages including offences of violence, offences against public order and breaches of court orders, though he had not previously been sentenced to a term of imprisonment. He was not part of the group that went into the Aura Bar, but was outside and was particularly aggressive in threatening police.
Argument (a) – effect of other decisions
Consistency of sentencing is a desirable objective in the interest of fairness.[25] It has been recognised that this objective is particularly important in the process of sentencing persons who have been parties to the commission of the same offence. In Lowe v R [1984] 154 CLR 606 at 609 Gibbs CJ stated:
“It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.”
[25]Wong v R (2001) 207 CLR 584 at [6].
His Honour went on to note at p 610 that the very existence of the disparity suggests that an error must have been committed, and gives rise to a justifiable sense of grievance in the offender dealt with more severely, and the appearance that justice has not been done. That approach was approved by members of the High Court in Postiglione v R (1997) 189 CLR 295 at 301, 109, 322, 335. In that case Dawson and Gaudron JJ at p 301 said that discrepancy or disparity was not simply a question of the imposition of different sentences for the same offence. Rather it was a question of due proportion between those sentences, having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. Gummow J at p 325 noted that the disparity principle in Lowe only applied to co-offenders. The principle laid down in those cases is still applied in Queensland.[26] There are however limits to it: if one of the sentences imposed involved a mistake of fact or law, or if the sentence was outside the legitimate range of sentencing discretion, the principle does not apply so as to justify the passing of a further sentence suffering from the same defect: R v Owen [2015] QCA 46.
[26]R v Cutts [2013] QCA 237 at [8]; R v Hurst [2014] QCA 168 at [33] +.
In the present case, there had been a number of previous sentences imposed on co-offenders. Most of those who had already been sentenced, however, were individuals who had not entered the Aura Bar, and who were not identified as persons who were leaders of the Bandido activity that evening. The only co-offender who had also entered the Bar, Jackson, received a sentence of six months suspended after two months. Of those who had been present and who had been participating in yelling abuse, two were sentenced to terms of imprisonment and three to periods of community service; of those three one was only 17, had a disadvantaged background and had very little criminal history, one was 21, had a criminal history with a significant entry for which imprisonment had been served, but pleaded guilty quite soon after the offending, and the third was also 21, and was on parole at the time, but his parole was revoked because of the offence, and he had spent an extra four months in custody so that he had already spent actual time in prison because of this offence.
The remainder were sentenced simply on the basis that through their presence they had participated in the riot, and most of these received a period of community service, except for Clarke-Davis who was originally sentenced to 9 months imprisonment reduced on appeal to six months, suspended after 89 days. Of those who received community service, two had very limited criminal history, one had a limited criminal history and was 23 years old, and one had a more lengthy but not serious criminal history, and had suffered other adverse consequences of the offending.
The decision in Clarke-Davis of Farr DCJ is particularly important, because it was the only matter where the operative decision was a re-sentence on appeal. His Honour described the circumstances of the offending generally, and noted that the appellant’s role was constituted by his presence at the scene; he was part of the smaller group outside the Bar but he did not enter it, and there was no suggestion that he was involved in the fight that took place outside, or any evidence of his misbehaving in any way in the time which elapsed before the Bandidos dispersed. The sentence originally imposed was nine months imprisonment with parole release after four and a half months, on a plea of guilty. His Honour referred to a number of circumstances personal to that appellant: his early plea of guilty, he was 22, and his criminal history, which involved drug offences, one offence of dishonesty, two convictions for assaulting or obstructing a police officer both on the same day, one offence of public nuisance; he had also been sentenced to 12 months imprisonment, released on parole after serving 105 days pre-sentence custody, for unlawful disposition of explosives or noxious substances. He had been sentenced to four months imprisonment wholly suspended for damaging evidence with intent. Overall he had previously been sentenced to terms of imprisonment on four occasions but only required to serve actual imprisonment once, which was pre-sentence custody.
His Honour reviewed a number of decisions in other matters of offences of riot or similar offences, including two NSW decisions which involved the brawling of two bikie gangs at the Sydney Airport which resulted in someone being killed, regarded as a substantially more serious matter. His Honour overall considered that the sentences in other matters clearly showed that the sentence under appeal before him was manifestly excessive. His Honour went on to say that the offending constituted by the riot on this occasion,
“quite obviously, was very serious. The appellant has associated himself with a large group of people who, through sheer weight of numbers, intentionally used those numbers for intimidatory purposes. Whilst that group’s actions were directed at the two men connected with the rival gang, the effect of the riot was that completely innocent members of the public, including families with children, were subjected to fear for their personal safety from the actions of the entire group. In the circumstances, the potential for violence was immense and actual violence did occur.”
His Honour cited a passage from the decision in R v McCormack [1981] VR 104 at 108-9, which spoke of the basic approach to sentencing for the offence of riot as one based on the nature of the offence, which:
“Derives its gravity from becoming one of those who by weight of numbers pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, used the threat that lies in the power of numbers.”
That court noted that it was open to the sentencing judge to take into account actual conduct of an offender in the riot, and Farr DCJ held that it was necessary under Queensland legislation, and in the light of later authorities, for the sentencing court to take into account the extent to which the offender was to blame for the offence, and the part which he had played in the commission of the offence. His Honour considered that there had been a failure to do so by the sentencing magistrate in that matter. His Honour also considered the sentences imposed on co-offenders, and noted in particular the cases of Jackson, Elcheikh and Leavitt. His Honour noted that the conduct of Jackson was more serious, and that he had a less serious criminal history than the appellant and was much older, and considered that the difference in the penalties was unreasonable. He did not however say anything to suggest that he regarded the sentence imposed on Jackson as being particularly severe in the circumstances of that case. His Honour considered that those three matters were impossible to reconcile with the sentence imposed on the appellant. In addition setting a parole release date at the half way point did not reflect the mitigating circumstances. Hence the sentence was unreasonably high. The sentence was set aside and the appellant was resentence to six months imprisonment with parole release after the period of pre-sentence custody which had then accrued, 89 days.
It was submitted for the respondents that the sentence imposed on appeal was obviously influenced by the fact that the appellant had spent 89 days in pre-sentence custody, and that the same sentence might not necessarily have been imposed had the appellant not had any, or a smaller amount of, pre-sentence custody. That I expect is correct, though on the face of it his Honour simply said that the appropriate sentence was six months with parole release after 89 days. Had his Honour considered that the period of time already spent in custody was itself excessive it would have been open to his Honour to mitigate otherwise the effect of the sentence, by further reducing the head sentence, or by ordering that it be suspended after 89 days rather than fixing a parole release date, which left the appellant subject to the supervision of parole for the balance of the six months. Indeed, had the appellant served significantly more pre-sentence custody than his Honour considered appropriate, I would have expected him to say so. Viewed most favourably to the respondent, the most that could be said is that, had his Honour’s resentencing been unconstrained by the period of pre-sentence custody, the sentence may have been six months imprisonment with parole release after two months. There is nothing to suggest that it might have been more favourable to Mr Clarke-Davis than that.
That decision was important not just because it was a sentence imposed on a co-offender, but because it was a sentence imposed on appeal. When I initially read the sentencing reasons of the Magistrate in the present matter, I was disposed to assume that his reference to the sentence on Clarke-Davis being harsh was a reference to the sentence at first instance. Having considered the sentencing remarks as a whole, however, and in particular having considered the sentences in fact imposed on the respondents by the Magistrate, I have been driven to abandon that approach, and consider that what happened here was that the Magistrate essentially dismissed the sentence imposed in Clarke-Davis on the ground that he considered it harsh. That involved an error of law on his part, in failing properly to apply the parity principle.
Although the Magistrate referred to the parity principle and said that he was applying it, the parity principle applies with particular force in a case where the sentence imposed on the co-offender was a sentence imposed by an appellate court. I consider that in that situation, a court subsequently sentencing a co-offender should proceed on the basis that the sentence imposed by the appellate court in the case before it was correct. A sentencing court does not need to apply the parity principle if the earlier sentence was one which involved an error, but I consider it is not consistent with the hierarchical court structure for a sentencing court to proceed on the basis that a sentence imposed by an appellate court was erroneous so as to remove the relevance of the parity principle. It was not for a Magistrate to say that a decision of this court, when sitting on appeal from a decision of a Magistrates Court, was wrong.
To take the analogous case, when I am considering a sentence I am frequently cited decisions of the Court of Appeal, almost invariably not because they involve co-offenders, but simply on the basis that they involve matters with some similarity to the instant proceeding, and are cited as guidance in relation to the approach on sentencing.[27] The provision of guidance to sentencing courts is a legitimate part of the function of the Court of Appeal,[28] but that function will only operate if sentencing judges act in accordance with the guidance that the Court of Appeal provides. I therefore necessarily proceed on the basis that the decision of the Court of Appeal, in each of the matters referred to me, was correct: if the applicant in the particular matter was resentenced, that the sentence imposed on appeal was the correct sentence for that applicant in the circumstances, and if the application for leave to appeal was refused, that the sentence imposed was not outside the range for sentence in that matter; sometimes the court provides additional guidance by indicating, for example, that the sentence was severe (or, occasionally, lenient) and I also take that guidance into account.[29]
[27]Consistent with Barbaro v R (2014) 253 CLR 58.
[28]Griffiths v R (1977) 137 CLR 293 at 310; Everett v R (1994) 181 CLR 295, in the context of an Attorney’s appeal, but not confined to such appeals.
[29]This is a different issue from the proportion that an appeal court cannot review a sentence on the basis that there is only one “correct” sentence.
Very occasionally a situation arises where there is difficulty in reconciling all the decisions of the Court of Appeal which appear to provide applicable guidance, but no doubt that is because my inadequate analysis of them; it does not alter my basic approach to them. There was no question of that issue in the present matter; the Magistrate only had one appeal decision, and, as an appeal decision in relation to a co-offender where the parity principle applied, it was of particular significance. It was of course appropriate to have regard to the differences between Mr Clarke-Davis and any other particular co-offender being sentenced by the Magistrate, and on that basis to differentiate the sentences in a way which is consistent with the application of the parity principle as laid down in Lowe by Gibbs CJ. But the only such analysis engaged in by the Magistrate was in noting that Mr White’s involvement in the offending was more serious than that of Mr Clarke-Davis and Mr Jackson: p 30. That was certainly not a factor justifying treating the respondent White more leniently than either Mr Jackson or Mr Clarke-Davis.[30]
[30]The outcome would have given rise in Mr Clarke-Davis to a justifiable sense of grievance about his sentence on appeal.
I acknowledge that the parity principle is not to be applied mechanically, and there remained a wide range of sentencing discretion available to the individual sentencing magistrate in relation to the sentence imposed on a particular co-offender in the application of that principle. In the present case however, I am satisfied, in the light of what was said in the sentencing remarks, and in the light of the sentences in fact imposed, that the Magistrate has misapplied the parity principle. The criminality of the respondents White and Teamo, because of the leading parts they played in the events of that evening, was substantially greater than the criminality of Mr Clarke-Davis, and a good deal greater than the criminality of Mr Jackson. Because the other respondents all entered the Aura Bar, there was an additional element in their involvement in the offending, and therefore their criminality was greater than that of Mr Clarke-Davis. Although there are differences in the mitigating circumstances, they cannot justify sentences which were substantially more lenient than those imposed on Mr Clarke-Davis, and on Mr Jackson. This misapplication of an important sentencing principle was a significant error in the sentencing process.
Arguments (b) and (c): seriousness of offending and effects of rehabilitation
These grounds really require consideration together, because the appellant’s argument is in substance that the sentences imposed are so disproportionate to the seriousness involved in the offending that there must have been too much weight given to personal circumstances, or not enough weight given to the seriousness of the offending.[31] It was submitted that, when referring to the personal circumstances, the Magistrate laid particular stress on the extent of rehabilitation, and remorse, shown by the respondents, and, acknowledging that they were relevant factors, the ultimate outcome indicates that excessive weight must have been given to these factors when balanced against the serious nature of the offending.
[31]They are particulars of the allegation that the sentences were manifestly inadequate: Dinsdale v R (2000) 202 CLR 321 at [5].
At the beginning of 2015 he had begun to consult a psychiatrist for treatment for his psychiatric state and had been receiving medication. A psychological test was administered, which revealed a high risk of recidivism. The psychologist expressed the opinion that Mr Teamo appeared to have made a genuine effort to change his life, and keep away from former associates, though this seems to have been required by the bail condition. The psychologist did think that the changes made in his life since the offending had reduced the risk of re-offending, and that he had demonstrated a capacity to live a responsible and law-abiding life. A court report in relation to his probation indicated that he had been complying with the requirements of that order.
Because of the importance of his role in the events of that night, and the fact that he not only entered the Aura Bar but led the other Bandidos into the Bar, I consider that his involvement in the offending was more significant than that of Mr White. He has the feature that he was on bail at the time, whereas Mr White’s offending occurred during the operational period of a suspended sentence, which is in itself a more significant aggravating factor. He had a criminal history of some length and psychological testing suggested a high risk of re-offending, though there were some indications of steps being taken to mitigate that risk since the offence occurred, and some indications of rehabilitation. Bearing in mind these and the other factors to which I have referred, and the purposes of sentencing to which I have referred, in the circumstances a proper sentence to be 13 months imprisonment with parole release after the four months, with two days pre-sentence custody declared. In view of the application of the principle in Hopper (supra), I order that the sentence be suspended forthwith and fix an operational period of two years and five months, the equivalent of three years and three months from the date of the original sentence.
The respondent Delalic
He was one of those who entered the Aura Bar, and after the group left the Bar and the fight started outside he moved to the group that was fighting and pushed into them. He was not otherwise involved in specific violence or abusive activity that evening, but he was part of the group that was confronting police. Overall his involvement was similar to that of Mr Jackson, and more serious than that of Mr Clarke-Davis. There were no other particular aggravating circumstances in his case. He was 27 at the time of the offending, and had no previous criminal history.
He is married with two children, had a good work history, he had come to Australia in about 1996, and had been working as a truck driver and also in the building industry, though he had never had formal qualifications. Recently he had been unemployed at the time of sentence. A plea of guilty had been notified to the prosecution at the end of the week before the listed trial. That was not particularly early. It does not appear on the bench charge sheet as though there was any significant modification to the charge, but there may have been negotiations about the terms of the agreed facts. It is difficult to see how the plea could be characterised as “early-ish”. Bearing in mind the facts to which I have referred, and the purposes of sentencing which I have referred, in the circumstances I consider a proper sentence to be six months imprisonment, with parole release after six weeks. There is no presentence custody to be declared in his case. On the application of the principle in Hopper (supra) I order the sentence be suspended forthwith and fix an operational period of 18 months.
Conclusion
Accordingly, in each case the appeal is allowed, the sentence imposed in the Magistrates Court is set aside, and in lieu thereof, each respondent is convicted, the conviction is recorded, and resentenced as follows:
The Respondent White is sentenced to 12 months imprisonment; the sentence is wholly suspended, with an operational period of 2 years and 2 months.
The Respondent Santa-Maria is sentenced to 6 months imprisonment; the sentence is wholly suspended, with an operational period of 18 months.
The Respondent Kaddour is sentenced to 7 months imprisonment; I declare 2 days in custody, from 13 to 14 October 2013 inclusive, solely in relation to this offending to be imprisonment already served under the sentence; the sentence is wholly suspended, with an operational period of 21 months.
The Respondent Teamo is sentenced to 13 months imprisonment; I declare 2 days in custody, from 1 to 2 October 2013 inclusive, solely in relation to this offending to be imprisonment already served under the sentence; the sentence is wholly suspended, with an operational period of 2 years and 5 months.
The Respondent Delalic is sentenced to 6 months imprisonment; the sentence is wholly suspended, with an operational period of 18 months.
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