SUPREME COURT OF QUEENSLAND CITATION: R v Kolb [2007] QCA 180 PARTIES: R v KOLB, Peter Desmond (applicant/appellant) FILE NO/S: CA No 29 of 2007 DC 2585 of 2006 DC 3002 of 2005 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Sentence Application DELIVERED ON: 1 June 2007 DELIVERED AT: District Court at Brisbane Brisbane HEARING DATE: 15 May 2007 JUDGES: ORDER: CATCHWORDS: Holmes JA, Fryberg and Philippides JJ Separate reasons for judgment of each member of the Court, Holmes JA and Philippides J concurring as to the orders made, Fryberg J dissenting in part 1. Allow the application for leave to appeal 2. Set aside the sentence imposed at first instance 3. Substitute a sentence of four and a half year s imprisonment with a parole eligibility date set at 9 February 2008 CRIMINAL LAW APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE APPEAL BY CONVICTED PERSONS APPLICATIONS TO REDUCE SENTENCE WHEN GRANTED PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON GENERALLY where the applicant was sentenced to 12 months imprisonment imposed on one count of dangerous operation of a motor vehicle and two serious assaults, and a cumulative four years imprisonment imposed in respect of two counts of malicious act with intent where sentencing discretion miscarried because pre-sentence custody wrongly declared whether sentencing discretion should be reexercised Criminal Code 1899 (Qld), s 27
2 COUNSEL: SOLICITORS: Penalties and Sentences Act 1992 (Qld), s 159A C W Heaton for the appellant M J Copley for the respondent Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent [1] HOLMES JA: The applicant seeks leave to appeal against the following sentences: 12 months imprisonment imposed on one count of dangerous operation of a motor vehicle and two serious assaults; and four years imprisonment, cumulative on the first term, imposed in respect of two counts of malicious act with intent. A parole eligibility date was set at 9 August 2008, and 166 days in presentence custody was declared. The applicant contends that the sentence as a whole is manifestly excessive; the argument is not with the head sentence but with the parole eligibility date which, it is said, should have been set much earlier: the date suggested is 9 August 2007. [2] The offences for which the applicant was sentenced arose in the aftermath of an acrimonious marriage breakdown. On 4 April 2005, two police officers went to his home to serve him with a Domestic Violence Protection Order. Having told them to get off the property, he went into his garage and commenced to reverse his car out of the driveway, disobeying directions to stop and swerving around the police vehicle which was parked there. In the process, he ran over the foot of one of the officers and struck his leg and hip. That officer was forced to jump over the bonnet of the vehicle to avoid further injury; his companion managed to leap out of the vehicle s way. (The injured officer was later taken to hospital and found to have bruising over the left forearm, an abrasion on one of his fingers and tenderness and a tear to the left calf muscle. He was treated with physiotherapy and analgesia.) The applicant continued driving away from his residence and was pursued by the police; but he did not go very far before returning home. That set of events constituted the dangerous operation of a motor vehicle. [3] On his return, the applicant refused to turn off the engine of his vehicle. When one of the two officers tried to take the keys from the ignition, he grabbed and squeezed her wrists to prevent her from doing so. The other officer succeeded in taking the keys, but while he was doing so the applicant punched his arm and attempted to remove the officer s hand from his own arm. Those matters constituted the serious assault counts. [4] Twelve months later, on 2 April 2006, the applicant went to his former wife s house saying that he wanted to see his children. He knocked repeatedly on her door and appeared to her to be agitated and angry. She telephoned for police assistance; since the applicant s behaviour constituted a breach of the Protection Order, police attended his house and told him they were investigating the matter. He refused to allow them in and variously threatened to stab himself and to burn the house down. He retreated into an internal garage. The police officers cut a hole in a screen door at the front of his house in an endeavour to enter. As they were doing so, the applicant returned with a can of petrol and threw it over both of them. One of them was hit in the face, in the right eye in particular, and on the upper arms and body. The clothing of the other officer was dowsed. Although no threat was made to this
3 effect, both were, not surprisingly, in considerable fear of being set alight. The applicant was still yelling that he would burn the house down. The police officers used capsicum spray and wrestled him onto the floor in order to restrain him. [5] The applicant had a criminal history, the entries on which seem similarly to relate to the breakdown of the matrimonial relationship. On 25 February 2005 he was put on good behaviour bonds on charges of breaching a Domestic Violence Protection Order, disturbing the good order of a State education institution and trespass, but no conviction was recorded. On 22 December 2005 he was fined but not convicted on a breach of a bail condition. On 30 August 2006 he was convicted of three charges of using a carriage service to menace, harass or cause offence (he made telephone calls to the police, his ex-wife s solicitors and his brother-in-law); two charges of obstructing a police officer, one of which seems to relate to the events of 2 April 2006; and three breaches of a Domestic Violence Protection Order, one of which, again, occurred on 2 April 2006. On this occasion, the applicant was sentenced on all charges to one month s imprisonment followed by two years of probation. [6] Reports of a psychologist and a psychiatrist were tendered on the applicant s behalf at sentence. The psychologist s report was obtained in April 2005, after the first set of offences dealt with on indictment occurred. The applicant s personal details emerge from it, and from counsel s submissions at sentence, as follows: he was 43 years of age when the first set of offences was committed; he had been married for about 10 years and had two children, who in 2005 were nine and five years old respectively; his wife left him in October 2002 taking the children, and he believed that she had been verbally and physically abusive towards them. In November 2003 they were returned to his care, but after Family Court proceedings in 2004, in which he had represented himself, he had consented to a custody order in his wife s favour. Under the terms of that order, he was to have fortnightly contact with the children, but that had not occurred, and after his wife had obtained a Protection Order in February 2005 there had been difficulty in seeing the children at all. He had seen a psychiatrist over about six months up until January 2005 and had been prescribed antidepressant medication, but he had ceased to take it. The psychologist, Ms Shepherd, spoke of his accumulated stress and his reduced capacity to cope. [7] After the second set of offences in 2006, Dr Schramm, a forensic psychiatrist, prepared two reports, the first of which dealt with the offences on the indictment together with some summary offences and the second with some further summary offences, for the purpose of establishing whether there was any deprivation of capacity for the purposes of s 27 of the Criminal Code 1899 (Qld) or whether the applicant was unfit to plead. Dr Schramm did not think he was suffering from any mental disease but did express the opinion that he was suffering from an adjustment disorder with depressed and angry mood. He also observed that the applicant s history of interpersonal and emotional problems suggested some personality disturbance which indicated he would have limited coping skills. On 4 April 2005 he had been drinking and was awoken by the police officers who, he said, yelled at him. His distressed mood and intoxication at that time might, Dr Schramm thought, have caused some impairment of his ability to reason about the rightness or wrongness of his behaviour, but he was not deprived of that ability. He did not need medication, but would benefit from counselling. [8] A number of references were tendered from neighbours, a fellow worker and fellow volunteers in the State Emergency Service. Those references spoke highly of the
4 applicant, particularly in respect of his contribution over many years as a State Emergency Service volunteer, and generally described the behaviour as out of character. The applicant himself had written for presentation to the Court a letter of apology to the police officers and the community in which he referred to having previously made a personal apology to some of the police officers involved. [9] A court report from a probation and parole officer who had supervised the applicant on probation after his conviction on 30 August 2006 was tendered. It was given some three and a half months after the applicant s release from custody. According to that report, the applicant, having been initially resistant, had become cooperative. He had attended a number of drug and alcohol counselling appointments and a relationships programme and had arranged and paid for his own anger management counselling. A statement from Centacare confirms that he had attended seven sessions of an anger management program and had demonstrated a positive attitude and motivation to change. He had also found work as a factory worker. The report said that there was still a good deal of work to do, but it described him as suitable for further community based orders. [10] The learned sentencing judge observed that the applicant had maintained his anger over a 12 month period, which was a matter of concern. He accepted, however, that in general terms the applicant was not someone who was likely to endanger the public at large; that the applicant had given early indications of his intended pleas of guilty; and that he was remorseful. He noted that the offences committed in 2006 occurred while the applicant was on bail for the earlier offences. [11] Originally his Honour fixed a parole eligibility date at 23 January 2009. However, the matter was subsequently re-opened on the basis that his Honour had intended the applicant s pre-sentence custody to be taken into account in setting the parole eligibility date. He deducted the 166 days to arrive at a fresh date of 9 August 2008. The applicant complained that when the 166 days, or five and a half months, in custody was allowed for, the parole date set by the Court was only six months earlier than the point at which he would have been eligible had no date been set. But a greater problem emerged: an error in declaring pre-sentence custody. [12] His Honour declared 166 days: the periods between 5 April 2005 and 15 April 2005; between 3 April 2006 and 31 August 2006 and between 19 January and 23 January 2007 were, he said, time spent in custody solely in relation to the offences and were to be treated as imprisonment already served on the sentences. But the presentence custody certificates indicate that the applicant was in custody on other charges besides those on the indictment. The pre-sentence custody certificate in respect of the malicious act with intent counts has attached to it a warrant which remanded the applicant on an array of charges, including obstruct police officer and breach of protection order charges for which he was dealt with on 30 August 2006. It could not be said, therefore, that he was held in custody solely in relation to the malicious act with intent charges and for no other reason, as s 159A of the Penalties and Sentences Act 1992 (Qld) requires before a declaration is to be made. The certificate in respect of the offences of serious assault and dangerous operation of a vehicle similarly annexes the remand warrant, which shows that the applicant was also remanded in custody on other summary charges for which he was dealt with on 30 August 2006; again, the custody does not relate solely to the offences dealt with on indictment.
5 [13] As counsel on the appeal agreed, none of the time in custody was properly declared, although it was, of course, appropriately to be taken into account on sentence generally. Counsel for the Crown, Mr Copley, accepted that the error affected the exercise of the sentencing discretion and that this Court ought now to exercise that discretion afresh. One obvious consequence is that the total head sentence of five years ought to be reduced to reflect the time served but not declarable. Mr Copley suggested that a six month reduction was appropriate. There remains the question of where the parole eligibility should be set. [14] In my view the seriousness of the applicant s offending, particularly in relation to the throwing of petrol on the police officers, is adequately reflected in a head sentence set at four and a half years and entailing (once pre-sentence custody is allowed for) a period of imprisonment of almost five years. But in setting the parole eligibility date, there are these factors to be considered: the applicant had no convictions until he reached the age of 44; his offending occurred over a 14 month period in the context described; he had made a substantial contribution to the community through his volunteer work with the State Emergency Service; he had pleaded guilty, having indicated an early intention to do so; and his performance on probation and willingness to undertake appropriate counselling suggested substantial progress towards rehabilitation. [15] Those factors in my view warrant the setting of a date which will enable the applicant s release on parole after he has served 18 months of his sentence, slightly under one third of the notional head sentence of five years. Accordingly, I would allow the application for leave to appeal, set aside the sentence imposed at first instance, and substitute a sentence of four and a half year s imprisonment with a parole eligibility date set at 9 February 2008. [16] FRYBERG J: For the reasons given by Holmes JA, the sentencing discretion miscarried in this case. It is therefore necessary to resentence the applicant. [17] I agree that the period of imprisonment which the applicant ought to serve should be 4½ years. To achieve that result, I would set aside each of the sentences of 4 years imprisonment imposed in respect of the two counts of malicious acts with intent and substitute for them sentences of 3½ years imprisonment, concurrent with each other, and both to start from the end of the three sentences of 12 months imprisonment imposed in the District Court on 23 January 2007. [18] I do not think that the mitigating factors in this case justify extending unusual leniency to the applicant. The applicant was charged with the second bracket of offences on 2 April 2006. Committal proceedings held in July of that year took the form of handup committal with no cross-examination of witnesses, but the applicant did not take advantage of the occasion to enter a plea of guilty at that time. An indictment was presented in September and later that month the matter was set down for trial on 11 December 2006. The Crown was not notified that there would be pleas of guilty until 10 November, six weeks later and only a month before the trial date. That merits some mitigation, but it could not in my judgment accurately be described as an early plea. [19] These offences and others in the applicant's criminal history were spread over the period from January 2005 to April 2006. They were not committed on the spur of the moment or before the applicant had adequate time to reflect upon his conduct.
6 Dr Schramm did not interview him in any detail about the malicious act offences (he only discovered their existence during the interview), but in relation to other offences committed at the same time he wrote: Mr Kolb remained preoccupied with the issues regarding custody throughout the period of these offences such that, in concert with his depressed mood and frequent intoxication on alcohol (used to some degree to quell his dysphoria), his judgment would have been somewhat impaired. In other words, he felt as though he was entitled to behave in this way as he was being treated so poorly himself. Dr Schramm diagnosed an adjustment disorder with a depressed and angry mood, but did not suggest that any substantial deprivation of any of the three capacities referred to in s 27 of the Criminal Code resulted from that condition. [20] The applicant commenced serving 24 months probation at the end of September 2006, less than four months before he was sentenced in the District Court. In January 2007 his probation officer reported to the court: There is little doubt Mr Kolb has made significant progress in addressing his issues since his release on probation but it is also acknowledged he has a very long way to go. He is considered suitable for further community based orders. [21] It is also necessary to take into account the applicant s attendance at Alcoholics Anonymous, his previous good behaviour and volunteer work and his prospects for rehabilitation. [22] These factors combine to support the fixing of a parole eligibility date at a point about one-third of the way through the total of his imprisonment in respect of the offences for which he was sentenced in the District Court. The date which I would fix for this purpose is 9 April 2008. [23] PHILIPPIDES J: I agree with the reasons for judgment of Holmes JA and with the orders proposed.