Rathbone v Commissioner of Police [2020] QDC 76 (30 April 2020)

Last Updated: 7 May 2020

DISTRICT COURT OF QUEENSLAND

CITATION:		Rathbone v Commissioner of Police [2020] QDC 76 JOHN LESLIE RATHBONE Appellant and COMMISSIONER OF POLICE Respondent 175/2019 District Court of Queensland Section 222 Appeal District Court at Townsville 30 April 2020 Townsville
PARTIES:
FILE NO/S:
DIVISION:
PROCEEDING:
ORIGINATING COURT:
DELIVERED ON:
DELIVERED AT:
HEARING DATE:		26 February 2020
JUDGE:		Coker DCJ
ORDER:		That the appeal be allowed. That the sentences imposed on 30 August 2019 in respect of charges 1 and 2 contained within Townsville Bench Charge Sheet number 5003/19 be set aside. That the appellant appear before this Court at 9am on Thursday 7 May 2020 to be re-sentenced in respect of those charges.
CATCHWORDS:		CRIMINAL LAW – APPEAL AGAINST SENTENCE – MANIFESTLY EXCESSIVE SENTENCE – section 222 Justices Act 1886 – where the appellant pleaded guilty to 13 charges in the Magistrates Court on 16 August 2019 – where the appellant was sentenced on 30 August 2019 – where fines were imposed in relation to charges 3 to 6 contained within Bench Charge Sheet 5003/19 and no conviction was recorded – where fines were imposed in relation to 7 charges relating to the contravention of a domestic violence order and no conviction was recorded – where periods of imprisonment were imposed in relation to two counts of serious assault of a police officer and attempted stealing, charges 1 and 2 contained within Bench Charge Sheet 5003/19 and convictions were recorded – where there was significant
	evidence of concern with respect to the appellant’s mental health – where consideration was required in respect of the affect of recording a conviction with regard to the appellants rehabilitation and recovery from his mental health condition – whether the recording of a conviction and imposition of a period of imprisonment wholly imposed was manifestly excessive.
LEGISLATION:	Justices Act 1886 (Qld) Penalties and Sentences Act 1992 (Qld)
CASES:	Dinsdale v R [2000] HCA 54; [2000] 202 CLR 321 at 341 House v King [1936] 55 CLR 499 Lowe v R [1984] HCA 46; [1984] 154 CLR 606 R v Charles [2013] QCA 362 R v Ikin [2007] QCA 224 R v Lomass [1981] 5 A Crim R 230 R v McIntosh [1923] St R Qd 278 R v Morse [1979] 23 SASR 98 R v Yarwood [2011] QCA 367 Rongo v Commissioner of Police [2017] QDC 258 Ross v Commissioner of Police [2018] QDC 99
COUNSEL:	T Hancock for the Respondent J Greggery for the Appellant
SOLICITORS:	Office of the Director of Public Prosecutions (Queensland) for the Crown Purcell Taylor for the Defendant

[1] This is an appeal against sentence. The appellant is John Leslie Rathbone. He was convicted on his own plea in the Magistrates Court at Townsville on the 16^th of August 2019, though it does need to be recognised that the sentencing occurred on the 30^th of August 2019. The reason for that will become obvious during the reasons that I give here.

[2] The appellant pleaded guilty to 13 charges. They can best be described in two parts: firstly as the offences involving police officers on the 17^th of May 2019 and, secondly, the offences relating to contraventions of a domestic violence order.

[3] In relation to the offences with respect to the contravention of a domestic violence order, seven charges, the appellant was fined a total of $750 in respect of all seven of the charges and the fine was referred to the State Penalties Enforcement Registry for payment. No conviction was recorded.

[4] In relation to the offences involving police officers, all of which arose on the 17^th of May 2019, various penalties were imposed. Charges 3, 4, 5 and 6 involved three counts of wilful damage of property, two of which related to police property and one of which related to the personal property of one of the police officers involved, and charge 6 related to a charge of obstructing a police officer.

[5] In relation to each of the charges of wilful damage, the appellant was convicted and not further punished. It should be noted that no conviction was recorded in relation to any of those three charges and charge 6 of obstructing a police officer involved a fine of $500 being imposed. Again, that fine was referred to the State Penalties Enforcement Registry for payment and no conviction was recorded.

[6] The most significant offending was that which was detailed in charges 1 and 2 of the series of offences. Charge 1 related to a charge of a serious assault of a police officer and for that offence the appellant was sentenced to two months imprisonment, wholly suspended for an operational period of nine months, with a conviction recorded. In relation to charge number 2, which related to attempted stealing, the appellant was sentenced to three months imprisonment, again wholly suspended for an operational period of nine months, and again a conviction was recorded.

[7] The appeal that was filed on the 13^th of September 2019 detailed the grounds of appeal as follows:

The grounds of appeal are:

(a) The sentence imposed for the charges of Serious Assault of Police (charge 1 of 6) and attempted stealing (charge 2 of 6) was manifestly excessive in the circumstances; and

(b) The learned Magistrate erred by not giving sufficient weight to the sentencing principle of rehabilitation.

[8] It was important that that particular aspect of this matter was detailed clearly because, as is obvious, it is in fact only charges 1 and 2 of the first series of offences detailed as involving police officers that is the subject of the appeal.

[9] I have been much assisted in relation to this matter by the provision of outlines under the hand of both counsel for the appellant and the prosecutor appearing on behalf of the Commissioner of Police as respondent, in relation to these proceedings.

[10] The outline provided by the appellant’s counsel details a number of matters which are not the subject of contest. In fact, in the outline of submissions provided on behalf of the Commissioner of Police, the following is said:

In points 1 to 16 of the outline, the appellant summarises the nature of the offending, the appellant’s antecedents and personal circumstances, the progress and result of the sentence, the sentences that he appeals and the relevant mitigating circumstances. The respondent accepts all of the points made in those paragraphs.

[11] Accordingly, I detail those particulars for the purposes of some background in relation to the nature of the appeal.

Introduction

[1] On 16 August 2019 the appellant entered early pleas of guilty to a series of offences set out in the table below, the most serious of which was a charge of serious assault and a charge of attempted stealing. Those offences took place in the course of an attempt to commit suicide by having police officers shoot him. For those offences he was sentenced to wholly suspended terms of imprisonment. For the remaining offences he was either fined or not further punished and convictions were not recorded.

[2] The appellant was born on 7 February 1969 and was 50 years of age at the time of the commission of the offences and sentence. He has no previous convictions.

[3] The appellant appeals against his sentences for the offences of serious assault and attempted stealing.

Nature of the Offending

[4] The offences occurred in the context of a very recent and highly distressing breakdown of his marital relationship.

[5] On 17 May 2019 the appellant approached a police officer who was walking from the Townsville Police Station to a police vehicle parked on Stanley Street adjacent to the police station. He assaulted her from behind, restrained her and pushed her against the police vehicle and tried to remove her firearm from its holster. Nearby officers

restrained the appellant. The charge of attempted stealing related to the attempt to gain possession of the firearm. The incident was captured on body-worn camera and the recording was played and tendered as exhibit 1. The incident lasted about five seconds.

[6] Three charges of wilful damage related to scratches to an officer’s glasses, the clip of the holster and the police vehicle, which all occurred in the scuffle.

[7] After his arrest, bail was refused by the watchhouse officer. The appellant remained in the watch-house for five days before being transported to the prison for a further day. He was granted bail after serving six days in custody. Upon his release he attended the police station and provided a personal apology and a gift, recognising the distress he caused the officers.

[8] On 20 May 2019, while the appellant was in custody, his wife obtained a temporary protection order which included a condition he have no contact with her. The seven charges of breaching that condition arose from short emails or text messages where he expressed his affection for his wife and his desire to continue their relationship.

Appellant’s Personal Circumstances

[9] The appellant came before the court with an exemplary personal and work history which was set out in his resume attached to the written outline of submissions tendered by his solicitor.

[10] He was born in the United Kingdom and where he completed his schooling. He served in the Royal Army Air Corps for six years before qualifying as an intensive care paramedic stationed in Germany and later in the United Kingdom. He emigrated to Australia in 2008 and joined the Queensland Ambulance Service until he ceased that employment in 2017 due to his post-traumatic stress disorder. By that time the appellant was internationally recognised for his work in the field of snake bites. He had completed research and training projects in underdeveloped and developing countries and published many articles on the topic.

[11] By the time he committed the offences, the appellant was a candidate for doctoral studies in toxicology and intended to collaborate with the Ministry of Health in Swaziland for a self-funded research project involving overseas travel.

[12] Professor Harvey, consultant psychiatrist, provided a report which confirmed the casual relationship between the appellant’s acute adjustment disorder with suicidal ideation upon the sudden breakdown of his marriage which led to the commission of the offences.

An Exceptional Case

[13] In addition to the appellant’s exemplary antecedents and the negligible need for deterrence and punishment and the appellant’s reduced moral culpability (having regard to the principles in affirmed in R v Yarwood [2011] QCA 367) the appellant’s rehabilitation and employment were likely to be adversely affected by a sentence of imprisonment and the recording of a conviction. This was so for two reasons, firstly his ability to travel internationally with his PhD studies was likely to be restricted and secondly, his vulnerable psychological state would be adversely impacted by such a sentence and any impact it might have on his employment.

[14] Professor Harvey made the point clearly in his supplementary report:

“Moreover, in my opinion, the recording of a conviction and the imposition of a term of imprisonment, even if suspended, would derail his ability to pursue his studies, which are a key and integral part of his ongoing recovery and rehabilitation.”

[15] His opinion was supported by the supplementary report of the appellant’s former treating psychologist, Mr Davey.

[16] The learned Magistrate properly recognised this as a mitigating factor:

“In that regard, I accept the medical evidence that imprisonment, be it actual or imprisonment in the community, which would result in the recording of a conviction, would have a gravely adverse effect upon his mental health condition. Quite clearly, the medical evidence supports that conclusion.”

[12] As I have said, the position of the Crown is to accept those points detailed in the paragraphs to which I have made reference in the appellant’s outline. I have, for the purposes of brevity, excluded the detailed table which provided reference to the summary of the offences and penalties included in the outline. However, it is reflective of those matters that have previously been referred to in these reasons.

[13] Of course, in relation to any determination such as this, it is necessary to be mindful of the basis upon which an appeal is made. This is an appeal against sentence. The right to appeal is a creature of statute, with the nature of the appeal right dependent on the construction of the statute concerned. It should particularly be noted that, as is the case here, where a person pleads guilty or admits the truth of a complaint, a person may only appeal under section 222(2)(c) of the Justices Act on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate. The appeal is then dealt with by way of rehearing on the original evidence given in proceeding before the

Magistrate and, in the circumstances, the court has the power to confirm, set aside or vary the order of the Magistrate.

[14] It is the sole ground of appeal relied upon here and it is suggested by the appellant that the sentence imposed in relation to charges 1 and 2 was manifestly excessive. In order for a sentence to be “excessive”, it must be “beyond the acceptable”. It must be, as has often been said, “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”. In that regard I am mindful of the decisions in R v Morse [1979] 23 SASR 98, R v Lomass [1981] 5 A Crim R 230, R v McIntosh [1923] St R Qd 278, and Lowe v R [1984] HCA 46; [1984] 154 CLR 606.

[15] In commenting upon appeals relating to sentences, whether they be manifestly excessive or inadequate, I again give consideration to more recent decisions of this court dealing with appeals pursuant to the provisions of section 222 of the Justices Act. In particular, I note the comments of her Honour Judge Muir in Ross v Commissioner of Police [2018] QDC 99. In that case her Honour, when commenting upon the exercise of an appellant judge, noted at paragraph 8:

...It is not a sufficient basis for this court to intervene, that this court considers it might have taken a different course between the competing considerations which have to be weighed in the exercise of the discretion. It must appear that some error has been made in exercising the discretion of the kind identified in House v King [1936] 55 CLR 499. If the Magistrate acted upon a wrong principle, if he allowed extraneous or irrelevant matters to guide or affect him, if he made a mistake about the facts, if he did not take into account some material consideration, then the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so.

[16] There her Honour Judge Muir has eloquently expressed the very real need for there to be, not a simple substitution of one view for another, but a proper exercise of the appeal power and a recognition that a difference of opinion or view is not, of itself, simply a basis upon which an appeal should be upheld.

[17] Her Honour made particular reference in that decision to the comments of Justice of Appeal Keane, as he then was, in R v Ikin [2007] QCA 224, where his Honour noted as follows:

The judgment appealed from is a discretionary one. An appeal can succeed only if an error of the kind described in House v King [1936] 55 CLR 499 at 504-505 has occurred.

[18] In this regard, there may be cases where the sentence is so “unreasonable or plainly unjust” in the circumstances, as to give rise to an inference that the discretion has miscarried. It is this area which informs the familiar ground of appeal that a sentence is manifestly excessive. But that having been said, as

was previously emphasised by Justice Kirby in Dinsdale v R [2000] HCA 54; [2000] 202 CLR 321 at 341:

This court should allow an appeal against sentence only where the error is clearly apparent.

[19] Perhaps most succinctly of all, his Honour Judge Devereaux SC of this court noted in Rongo v Commissioner of Police [2017] QDC 258 the following:

It seems to me, then, that the focus in this and many appeals brought to this court on attempting to demonstrate an error in the exercise of the sentencing discretion is not misguided but slightly misplaced. The real question is whether the sentence was excessive, so that, although the appellant may argue that the Magistrate made an error, the success of the appeal does not depend upon persuading the appeal court on that point.

[20] His Honour then goes on additionally to note:

Identifying a particular error might assist because it might explain why the sentence was excessive.

[21] Accordingly, it is necessary to consider whether the imposition of periods of imprisonment as the penalties in relation to charges 1 and 2, even in circumstances where they were wholly suspended for an operational period of nine months, was excessive, particularly in circumstances where that also meant that convictions were recorded.

[22] The argument put by the appellant in relation to this matter is detailed in the outline provided and was then addressed at some length by counsel for the appellant. The error that was sought to be relied upon was explained in the outline by noting that the Magistrate, despite noting and recognising the exceptional features in the appellant’s favour, felt constrained to impose a term of imprisonment, having regard to the seriousness of the offences. Reference there was specifically made to the learned Magistrate’s reasons for decision at page 17, lines 16 through 20, where the Magistrate said the following:

So I have weighed up all the relevant considerations, and having considered all those, despite those extensive and exceptional mitigating factors, the only conclusion I can reach, that given the seriousness of the offending, the only appropriate penalty – and bearing in mind that it is going to have the effect of having a conviction recorded – is to impose a term of imprisonment. Any other response would be inadequate.

[23] It is then argued that that conclusion was informed by the Magistrate satisfying himself that a notional starting point would be somewhere in the vicinity of 18 months to two years imprisonment for the offences contained in charges 1 and 2, if it were not for the case that there was a recognised and

accepted mental health condition or an intention to commit suicide by police officer. What is argued by the appellant is, however, that there is no notional starting point that should be looked at, because the offending here was of a completely different character to the offences that might have been committed, if it were not for the existence of concerns with regard to the mental health of the appellant.

[24] The appellant then goes on specifically to note, that the very point of the application of the principles in R v Yarwood [2011] QCA 367 was that the objective seriousness of the offence is only part of the broad exercise of the sentencing discretion in which rehabilitation remains a relevant consideration. Thereafter reference is made in the submission to the breadth of sentencing discretion in such a context with reference made to R v Charles [2013] QCA 362, which was a case of a very different nature, though it related to consideration of whether the significant impact upon the appellant in that case’s employment from the recording of a conviction would be a circumstance which would give rise to a consideration of the situation being an exceptional one. Reference there is made to the comments specifically of Justice of Appeal Morrison, where his Honour said that it would have been an error to conclude that a term of imprisonment was the only appropriate penalty in the circumstances and with such a consideration being relied upon by the learned Magistrate, then the Magistrate had fettered his sentencing discretion at arriving that conclusion.

[25] In the oral arguments that were presented in relation to this matter, the issues detailed in the outline were significantly expanded upon by counsel. Ultimately, it was argued that a community-based order without the recording of a conviction was the only proper exercise of the discretion that could rightly be considered in the circumstances that existed. The address by counsel commenced, however, with an interesting observation. Mr Greggery said:

This is a rare case in which the analysis of the then acting Magistrate was, in all respects, correct in relation to matters of fact and in relation to matters of law. It was only the conclusion which we say was wrong. That, of course, is a fairly rare category of case.

[26] Mr Greggery then went on to submit, that when all of the sentencing remarks were taken into consideration, it would be able to be determined that the sentence was manifestly excessive, though Mr Greggery was at pains to emphasise that he was not in any way suggesting that he was unduly critical of the Magistrate. He acknowledged that there were no comparable decisions that could have provided assistance in relation to the determination of the matter and he acknowledged the Magistrate had, on at least two occasions and perhaps more as I have read the sentencing remarks, found it to be a very difficult case in which to arrive at an ultimate conclusion.

[27] In that regard, I was referred to the comment by the learned acting Magistrate, as he then was, at page 17 of his reasons where he said:

It is extremely difficult to decide what is the appropriate penalty, when one has to balance up, as I’ve said, exceptional and extensive mitigating factors against what is quite clearly two extremely serious offences.

[28] What is clear there, is that the learned acting Magistrate was very much at pains to emphasise that the other 11 charges which the appellant faced, were far less significant, in relation to the determination of what penalty should be imposed.

[29] The difficult nature of the decision that faced the acting Magistrate is reflected in the fact that his reasons were both lengthy and considered. As was noted at page 18 of the decision, his Honour said:

I’ll make it clear that, given I’ve reached the conclusion the only appropriate penalty is imprisonment, if I have reached a different conclusion, I would not have recorded a conviction.

[30] It was submitted that this represented the finely balanced position that the acting Magistrate found himself in and the difficulties that he faced in ultimately being required to determine, one way or the other, what orders would be appropriate. Mr Greggery then, at length, detailed the issues that related to the, “exceptional and extensive mitigating factors” that were to be considered both by the learned acting Magistrate and ultimately, by me, in the re-consideration of this matter.

[31] Such matters were acknowledged and identified by the learned acting Magistrate. Without providing as extensive a commentary as he did, it was clear that the matters that played on his mind included the timely plea of guilty and it’s very obvious indications of remorse, noting the particular steps taken by the appellant to express that regret and remorse for his actions. The acting Magistrate clearly accepted that it was genuine and extreme, reflecting the good character of the appellant.

[32] The learned acting Magistrate then goes on to comment specifically about the extremely good character of the appellant and notes the substantial body of references and testimonials that were provided. Additionally, reference is then made to the support network available to the appellant and in particular, acknowledgment by the learned acting Magistrate of the low level breaches of the domestic violence order and the fact that, present at court at the time of sentencing were the daughters of the appellant’s former wife. In other words, his step-daughters. It was significant, the acting Magistrate noted, that those persons constituted part of the appellant’s support network available to the appellant and emphasis was specifically made to the family dynamic in which the appellant found himself.

[33] Insofar as the references and testimonials were concerned, the learned acting Magistrate specifically recognised that they were references which were not only by a few persons with only recent contact or experience of the character of the appellant, but were wide ranging and extensive and carried, therefore,

considerable weight. Thereafter, the learned acting Magistrate noted their reference to the appellant’s exceptional work ethic, his contributions to the community as well as meaningful contributions to society generally.

[34] It was emphasised by counsel in that regard, that it needed to be noted, as was appreciated by the acting Magistrate, that these were contributions not only to our local community, but in fact across the entirety of Australia and throughout the world, both in his role as a paramedic and more recently in the area of toxicology. As such, it was acknowledged that the appellant was highly regarded by all with whom he had come into contact, including by his peers.

[35] Those references then flowed into the future hopes and expectations that the appellant had in relation to continuation of his studies, including PhD studies and work overseas. I should note in that regard that whilst confirmation of those opportunities and expected future studies were not available to the learned acting Magistrate at the time of the sentence being conducted, it was considered by him as a real prospect and a factor to be taken into consideration. However, I have now received direct confirmation about the availability of various scholarships and opportunities which have now been offered and accepted by the appellant.

[36] Finally, and again of particular significance, reference was made to the issues with regard to the appellant’s mental health and his condition at the time of the offending. Reference was made to the report of Mr Davey, a psychologist who was the appellant’s treating practitioner, at the time the offences were committed. Mr Davey specifically made reference to the real concerns that were held with regard to adverse consequences to the appellant, if he were to be required to serve actual time in custody. Mr Davey described them in this way:

Significant barriers to him gaining other employment particularly in an academic setting would be present if a conviction was recorded. [The appellant’s] PhD is also based around snakebite and has been conducted overseas... A conviction may limit him in his ability to do this travel and hence complete his PhD in this area.

[37] Mr Davey clearly expresses a concern that those two matters would impact heavily upon the mental health of the appellant, and more directly, would affect his rehabilitation. Mr Greggery described the effect of a conviction being recorded as having a, “Domino effect”, in that it would have an effect on the appellant’s rehabilitation, as a result of the recording of a conviction impacting upon the appellant’s mental health.

[38] Similarly, the report of Ms Castley was relied upon and accepted by the learned acting Magistrate as clearly indicating and circumstances for the appellant. Ms Castley specifically commented about the Appellant’s PhD as being essential for his emotional and psychological wellbeing going forward, and noted the very real consequences and effects upon him, both emotional

and psychological, should he be prevented from engaging in his research, by way of international travel.

[39] Ms Castley noted that the appellant’s mental health would significantly decline, and rehabilitation to a fully functioning situation would be likely to be significantly impaired, should the appellant be unable to participate in his professional career and in his continued studies towards obtaining his PhD.

[40] Reference was also made to the report of the appellant’s psychiatrist, Professor Harvey, where Professor Harvey expressed the opinion that it would be part of the appellant’s recovery process, to pursue further studies and engage in his PhD course, such that the recording of a conviction that might jeopardise his ability to pursue his studies, would have drastic consequences.

[41] Quite simply, Professor Harvey expressed the concern as it was indicated by Mr Greggery, that the further studies and engagement in the PhD course is directly linked to the appellant’s ongoing recovery. It was emphasised that this was accepted by the learned Magistrate where, in his reasons, he noted:

So quite clearly, the medical evidence shows that the offending was extensively intertwined with his mental health condition, and it seems to me an easy conclusion that without the mental health condition, the offences - and when I “offences”, as I said from the start, I predominantly refer to the two serious ones - would not have not have occurred.

[42] As such, in light of both that evidence and the acceptance by the learned acting Magistrate of the significance of those particular considerations, it was emphasised in argument that those matters strongly pointed in the direction of the mitigation of sentence by reference to the mental health conditions experienced by the appellant at the time, and as such, the Magistrate should have been swayed to the view that the appropriate sentence was one that did not impair his rehabilitation by the recording of a conviction.

[43] That theme flows, thereafter, through the oral submissions that were made, and it was couched in terms of there being, as Mr Greggery submitted, four anomalies in the reasoning that flowed from a failure to fully appreciate and consider those matters. Those anomalies can be summarised as follows, and I shall come to each in due course:

1. The relevance of personal and general deterrence in respect of persons who may be intent on committing suicide;
2. The reference to pre-sentence custody of some six or seven days, and how that was taken into consideration in the formulation of the sentence;
3. The categorisation of there being a starting point in relation to a penalty to be imposed; and
4. That a sentence which records a conviction and has a term of imprisonment attached to it necessarily appears on a national criminal history check whether or not reference in the sentencing remarks

specifically included considerations of a mental health condition, and that that negatives the rehabilitative requirement of the sentence.

[44] Additionally, Mr Greggery did speak of other matters, all of which he said were influential in relation to consideration of the appeal and whether the sentence imposed, including the recording of a conviction, was manifestly excessive, and I shall touch upon those during these comments.

[45] In relation to the first of the four anomalies, relating to general deterrence in respect to the planning of a suicide, it was submitted that whilst there is obviously a social imperative and a desire to not encourage or in fact to deter people from consideration of suicide, courts by their very role are not able to deter people who are intent on committing suicide from taking such steps. I would agree with such a statement, particularly being mindful of the great concern that would be held with regard to deterrence of people acting in a manner which might lead to their death or serious harm, knowing that relates to a lack of clarity in thought and therefore is not something that can be deterred as a result of a sentence imposed in a court.

[46] As Mr Greggery said in his address to me:

A person who has determined to take their own life because of the emotional distress in which they are in, is unlikely to be deterred from doing so because, if they fail, they might get a suspended term of imprisonment.

[47] I agree that a consideration of deterrence of persons with such thoughts is not a requisite or appropriate consideration in relation to the determination of a penalty that might be imposed, in relation to a particular individual, specifically when there is an acknowledgment of the concerns with regard to the mental health of that person.

[48] Secondly, the anomaly that was identified by counsel related to the fact that the appellant had spent six or seven days, it not being exactly clear from the material available, in custody, and the majority of that time was spent in custody in the watch-house. It is clear, therefore, that there was time held in pre-sentence custody and that there should then be a declaration made in relation to that declarable time. However, the learned acting Magistrate did not take that approach in relation to the imposition of a penalty, but rather said in his sentencing remarks the following:

I have, however, in determining the appropriate sentence to be imposed, taken into account the actual fact that you spent seven days in custody, and rather than declare those seven days, I have reduced the head sentence I would otherwise have imposed somewhat significantly.

[49] What was argued by counsel is that what followed was that a notional starting point of four months imprisonment for the assault and six months imprisonment for the attempted stealing of the officer’s handgun to commit

suicide was reduced by 50 per cent. Whilst that would no doubt have been a benefit to the appellant, in relation to the actual period imposed and it was recognised in the sentences that were imposed, the actual fact is that it is not the proper approach at law.

[50] As such, it was argued that the acting Magistrate gave undue weight to the concept of pre-sentence custody, which then created an artificiality to the actual sentence. What counsel went on to note, however, was that they were not being critical of the acting Magistrate in that regard but expressing the very clear difficulties that arose in attempting to balance the various competing factors which were necessarily confronting the acting Magistrate.

[51] What Mr Greggery then went on to note, was that there appears to have been some anomaly in relation to the recording of the conviction, in that the Magistrate acknowledged that there was pre-sentence custody served but then made it clear that he did not make a declaration in relation to that time served, but rather had taken it into account by reducing the head sentence. As such, there is a degree of confusion that has arisen in relation to the sentence and the flow-on effect for that has been significant, not only in respect of the issue of the appellant’s rehabilitation but also in respect of what actually is recorded in the national database.

[52] Thirdly, and it is a significant consideration, in my view, reference is made to a hypothetical starting point in relation to a penalty to be imposed. But there is very clearly an enormous gulf between actions similar to those of the appellant in this matter, where there are not the circumstances of an intervening mental health condition, and the circumstances that arise for the appellant, when there is such a mental health condition. As was submitted by counsel, if there is not an intention to commit suicide by seeking to obtain a police officer’s gun, then it is:

...a very serious example of an attempted stealing for criminal purpose.

[53] As such, it is submitted that there was, as counsel described it:

...an overreach.

in attempting to try and get some bearings, which may result in a comparison between the offending by a person not subject to considerations with regard to their mental health, and a person subject to such considerations.

[54] Counsel submitted that the application of mental conditions in a sentencing process, require that a Court give consideration to a uniquely personal sentence, rather than a notional broad starting point on an unrelated subject, and as such, it is argued that such a position ultimately fed into a conclusion by the Magistrate, perhaps working backwards from a starting point, that nothing below, at the very least, a suspended term of imprisonment would have been appropriate.

[55] What is argued, and what I accept in the circumstances, is that a sentence, particularly one relating to considerations with regard to any defendant’s mental health must be considered, like all matters, independent of other considerations, and that that was not, at least on the face of it, the basis upon which the learned acting Magistrate acted, in this instance.

[56] The fourth anomaly identified was that the conviction of the appellant, even in the circumstances where there was an enormous reduction in relation to any penalty imposed, meant that the question of rehabilitation, which must always be considered in relation to any sentence, was not simply reduced or neutralised, but as it was submitted, negatived the rehabilitation requirements and considerations of the sentence.

[57] As such, it was argued that whilst the learned acting Magistrate was plainly desirous of not recording a conviction, and felt constrained as to what he could do because of the process that he worked back from, meant that the real consideration of rehabilitation had been, “...dropped out of the mix, one way or the other.” Ultimately it was argued, therefore, that the Magistrate was left with the necessity of making a decision, and that because of the process of reasoning used by him, he had, unfortunately, in a most difficult case, found himself in error.

[58] Thereafter, Mr Greggery made reference to the decision to which I have previously commented as being made, that of the R v Charles [2013] QCA 362 and he noted that that decision showed the breadth of the sentencing discretion that is available to a Court, when matters of various types, including those that arise in this matter, fall to be determined. He argued, ultimately therefore, that the Court should have made a determination to not record a conviction, and to make an order of a community-based nature, particularly in circumstances where the sentence that was imposed meant that the appellant would not be able to pursue the PhD studies which are now clearly available to him. He argued that there would be, as identified and accepted by the learned acting Magistrate, serious adverse effects on the appellant’s mental health, and that there would be a complete undermining of any sentence which would have been crafted properly to ensure opportunities for rehabilitation.

[59] Understandably, the respondent emphasised that after a lengthy and well- considered recitation of the various factors in play, the acting Magistrate’s ultimate conclusion, that a period of imprisonment was the only appropriate penalty, was not outside what could be considered the proper exercise of the learned acting Magistrate’s sentencing discretion. In that regard, specifically, the respondent emphasised that the acting Magistrate:

(a) Sought and received clarification as to whether the adverse impact of a period of imprisonment would have on the appellant’s mental health related to actual imprisonment or if it extended to imprisonment served within the community;

(b) Highlighted the breadth of the available sentencing options;

(c) Was keenly aware of the mitigating circumstances;

(d) Made extensive reference to the appellant’s mental health condition, its connection to the offending and the bearing that it had on the sentence;

(e) Was fully appraised of both the background facts and the serious nature of the offending; and

(f) Had particular regard to the impact of recording a conviction.

[60] The respondent then emphasised that all of these matters had been taken into account in the acting Magistrate’s determination of what would be an appropriate penalty and that even the issue of time served in pre-sentence custody, though not declared, had been significantly taken into consideration in relation to the actual final sentence imposed.

[61] Ultimately the respondent then submitted that there was no fettering of the acting Magistrate’s discretion in the exercise of his reasoning leading to the sentence imposed and that, in fact, the learned Magistrate, cognisant of the sentencing options, had taken into consideration all relevant features and competing interests that he was balancing in reaching his sentence. And having acknowledged that it was an extremely difficult decision to make, determined that the only proper sentence that could be imposed in relation to the most serious two charges was one that involved the imposition of a period of imprisonment, even if it were to be significantly reduced and wholly suspended.

[62] In his oral submissions Mr Hancock noted that there were, as he had described it from the appellant’s perspective, “two routes to success”. The first was to establish that there was an identifiable discrete error by the Magistrate, in which case there would be a discretion to resentence, or, secondly, that there was otherwise a penalty imposed which, in all the circumstances, was manifestly excessive.

[63] In respect of the first of those considerations, it was easily dealt with in that Mr Hancock submitted that there was no discrete error and acknowledged that the emphasis placed on the appellant’s case related to anomalies that were identified as leading to a manifestly excessive sentence in all the circumstances.

[64] Reliance then, understandably, was placed upon House v King (1936) 55 CLR 499 emphasising, understandably, that this was not a situation where a different judicial officer on a different day might have imposed an alternate or different sentence, but rather that there needed to be that consideration of whether or not an error or excessiveness was imposed.

[65] In that regard I hearken back to the comments of Judge Devereaux SC in

Rongo v Commissioner of Police [2017] QDC 258 where his Honour said that

the real question is whether the sentence was excessive and not so much the identification of error, though it is to be acknowledged that identifying a particular error might assist in explaining why the sentence was excessive, but ultimately, as Judge Devereaux SC identified, the question is whether it is excessive.

[66] To ultimately determine that particular point, not from the perspective of whether a different sentence would have been imposed but from the perspective of whether the sentence was excessive, is the course to be followed in relation to this matter. In that regard, I am cognisant of the sentencing principles as detailed in the Penalties and Sentences Act 1992 (Qld). Part 2 of the Act, headed Governing Principles, are an important consideration, including the sentencing guidelines in section 9(1) which are in these terms:

Section 9 Sentencing Guidelines

(1) The only purposes for which sentences may be imposed on an offender are—

• (a) to punish the offender to an extent or in a way that is just in all the circumstances; or
• (b) to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; or
• (c) to deter the offender or other persons from committing the same or a similar offence; or
• (d) to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or
• (e) to protect the Queensland community from the offender; or
• (f) a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e) .

[67] I am also mindful of the fact that one of the considerations as detailed in section 9(2)(d) relates to the extent to which the offender is to blame for the offence, as well as, of course, considerations with regard to the offender’s character, age and intellectual capacity and the presence of mitigating factors. In my assessment, that looms large in relation to this matter and is to be taken into consideration with the catch-all contained in section 9(2)(r), which relates to any other relevant circumstance.

[68] In this matter rehabilitation is a significant consideration. It is one of those factors that must be balanced in relation to any penalty to be imposed, and whilst the learned acting Magistrate clearly acknowledged the importance of rehabilitation and the consequences that might flow if a custodial sentence was imposed, he has not appropriately included that in his determination of a proper sentence with respect to charges 1 and 2.

[69] I am minded to the view that the imposition of a custodial sentence and the consequences that flowed from that did not balance the rehabilitation considerations that had to be looked at, but rather negatived them, in that they

were excluded specifically with regard to their value, in relation to the ultimate determination.

[70] As such, it is necessary to consider whether the imposition of a period of imprisonment, even in circumstances where it has been radically reduced, was manifestly excessive, not only in the sense of it being outside of what might have fallen within the range that could properly have been imposed, but also whether there has been an error in the exercise of the sentencing discretion, as was emphasised by counsel for the appellant. In this matter, there is certainly no suggestion that the learned acting Magistrate has not, other than was required of him, considered at length the various factors. But what is clear is that his Honour has not fully considered and balanced the issue of rehabilitation, in relation to the penalty ultimately to be imposed.

[71] Therefore, I intend to uphold the appeal in relation to charges 1 and 2, the offences relating to serious assault of a police officer and attempted stealing and to make orders in terms as detailed at the commencement of these reasons.