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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
King v Queensland Police Service  QDC 131
FRANCES JADE KING
QUEENSLAND POLICE SERVICE
Magistrates Court, Cairns
29 July 2019 (ex tempore)
26 and 29 July 2019
CRIMINAL LAW – appeal against conviction pursuant to s 222 Justices Act 1886 (Qld) – where the appellant pleaded guilty to three traffic offences, 12 property related offences, one offence of obstruct police and one breach of bail – where the appellant was sentenced to 15 months imprisonment with lesser concurrent sentences and a parole release date after serving five months – whether the sentence was manifestly excessive
Justices Act 1886 (Qld) s 222
Penalties and Sentences Act 1992 (Qld) s 9
Barbaro v The Queen (2014) 253 CLR 58
R v Dance  QCA 371
House v The King (1936) 55 CLR 499
R v Howie  QCA 50
R v Jackson  QCA 103
R v Lawley  QCA 243
R v McDowall  QCA 260
R v MCT  QCA 189
R v Taylor  QCA 214
R v Ross  QCA 49
R v Smith  QCA 127
Veen v R (No 2) (1988) 164 CLR 465
R v Williams  QCA 27
B Bilic for the Appellant
Aboriginal and Torres Strait Islander Legal Service for the Appellant
The Office of Director of Public Prosecutions for the Respondent (C Fresta, solicitor)
HER HONOUR: The appellant pleaded guilty in the Magistrates Court at Cairns to 17 offences. They comprise three traffic offences, 12 property related offences, one offence of obstruct police and one breach of bail.
The most serious of those offences was enter premises and commit indictable offence which had a maximum penalty of 14 years imprisonment.
On 15 May 2019, the appellant was convicted and sentenced in the Magistrates Court at Cairns by Acting Magistrate Heggie to a head sentence of 15 months imprisonment with lesser concurrent sentences on the other offences with a parole release date fixed at 4 September 2019. Forty one days of pre-sentence custody was declared as time served under the sentence. The effect of the sentences was that she was required to serve approximately five months actual custody before being released on parole.
The appellant appeals pursuant to section 222 of the Justices Act 1886 (Qld) against the sentence of 15 months imprisonment on the ground it is manifestly excessive in all the circumstances.
For the reasons that follow, I would dismiss the appeal.
The appellant was 23 years old and had just turned 24 when the last of the offences was committed. She was 24 at sentence. She had a limited criminal history comprising property offences committed when she was 17 years old.
On 13 April 2012, she was convicted of unauthorised dealing with shop goods. No conviction was recorded. She was sentenced to a three month good behaviour period. On 11 May 2012, she was convicted of stealing. She was sentenced to six months probation. On 27 June 2012, she was convicted of burglary, unlawful use of a motor vehicle, stealing and fail to stop. Convictions were recorded. She was sentenced to 12 months probation and 150 hours community service. For breach of the earlier probation order, she was convicted, fined $200 by way of fine option order and sentenced to 10 hours community service. On 27 June 2013, she was dealt with for breaching the 12 month probation order. A conviction was recorded. She was fined $110.
She committed no offences for about six years.
On 17 October 2018, she was sentenced to contravention of a domestic violence order. No conviction was recorded and she was fined $350. No information about the circumstances of that offence was before me.
The offending the subject of this appeal, was committed between November 2018 and March 2019.
The appellant had a relevant traffic history. It included several entries for suspensions, restrictions and disqualifications, as well as entries for ‘ticket’ offences: speeding offences and one offence for failing to display provisional licence holder plates.
The most substantive entry on her traffic record before the offending the subject of this appeal, was driving while a relevant drug was present. That charge was dealt with in the Magistrates Court at Cairns on 22 October 2018. The appellant was fined $400 and disqualified for three months.
In order to consider the grounds of appeal, it is necessary to summarise the chronology in which the offences occurred, the circumstances of each offence and the penalty imposed, which I now do.
On 25 November 2018, the appellant was pulled over by police and asked to provide her driver’s licence. She told them she did not have a licence and that she was disqualified. She had been disqualified in the Cairns Magistrates Court on 22 October 2018 for a period until 21 January 2019. She provided a breath specimen. About a month later, on 20 December 2018, a certificate was produced which showed the drug methylamphetamine in her saliva. Those events are the basis of the charges driving without a licence and driving while a relevant drug is present.
For the driving without a licence charge, the appellant was sentenced to 41 days imprisonment and disqualified for two years from holding or obtaining a driver’s licence. For the drug driving charge, she was sentenced to 41 days imprisonment and disqualified for three months.
On 9 February 2019, the appellant committed the next driving offence. That was the offence of driving without a licence, demerit points. The appellant was stopped on the side of the road, seated in the driver’s seat of a car. She was questioned by police. She admitted driving the car. She had, at that time, been disqualified from driving on 28 December 2018 for a period until 27 March 2019. For that offence, she was convicted and not further punished, and disqualified from holding or obtaining a driver’s licence for six months.
Nine days later, on 18 February 2019, the appellant and a male companion were recorded on CCTV footage leaving a supermarket with a trolley full of groceries. They did not pay for the groceries. The groceries had an estimated value of $200 to $300. For that charge of stealing, she was sentenced to three months imprisonment.
Approximately two to three weeks later, on 3 March 2019, the appellant committed the offence of enter premises and commit indictable offence. That involved her entering an Anglicare building at 5 am. She damaged roof tiles to obtain access to the building. She removed a strobe light from the front wall of the building. Alarms were activated. A witness saw the appellant leave the building. A short time later, she returned to the premises and was recognised by the witness. She attempted to run but was caught by security. She declined to participate in an interview. For that offence, she was sentenced to 15 months imprisonment. No value was ascribed to the property damage.
On 6 March 2019, police arrested the appellant who was by then wanted on a warrant. She declined to participate in an interview. She was remanded overnight. It appears that she must have then been released on bail.
On 10 March 2019, one week later, she committed a further offence of enter premises with intent. This time, the appellant entered the YouthLink building by removing a number of glass louvres at the rear of the building. An internal door and lock were damaged by being kicked open. Property was strewn across the meeting area. There was no evidence of any items stolen. No value was ascribed to the property damage. A forensic examination linked the appellant to the offence. She was arrested three days later on 13 March 2019. She had been willing to participate in an interview with police. However, this did not proceed as the police were unable to locate the support person requested by her.
Three days later, on the night of 13 March 2019, the appellant committed 10 offences at two different unit complexes.
The first of those occurred at about 2 am. The appellant attempted to enter a unit by climbing the external side of the unit building and damaging the flyscreen security door. For the charge of attempted enter dwelling and commit indictable offence, she was sentenced to six months imprisonment.
She then climbed onto a separate unit balcony, opened an outdoor chest freezer and stole items of frozen food. She was disturbed by the occupant and fled. For that charge of stealing, she was sentenced to three months imprisonment.
She then went down to the underground carpark in the unit complex. She attempted, unsuccessfully, to open the driver’s and passenger side doors of the car. For that attempted enter premises and commit indictable offence, she was sentenced to six months imprisonment.
She then moved on to another car, which was unlocked. She entered the car and pressed the ignition button several times with no effect, as the key was not inside the car. She stole from the car a garage door opener, some gold coins and a pair of sunglasses. For that offence of enter premises and commit indictable offence, she was sentenced to 15 months imprisonment.
Those facts also gave rise to a charge of attempted unlawful use of a motor vehicle, for which she was sentenced to 41 days imprisonment.
At 2.20 am, the appellant went to the second unit complex. She entered through the front entrance, carrying a bucket. She walked through the pool area and stole some towels and an ashtray. For the charge of enter premises and commit indictable offence, she was sentenced to 15 months imprisonment.
She then went to the carpark. She entered an unlocked car from which she stole some tie-down straps. For the charge of enter premises and commit indictable offence, she was sentenced to 15 months imprisonment.
She entered a second unlocked car and stole a Swiss army knife and some hand tools. For the offence of enter premises and commit indictable offence by a break, she was sentenced to 15 months imprisonment.
She then left the premises.
About an hour later at 3.20 am, the appellant returned to the same unit complex with a male co-offender. They brought a large basket on wheels. They entered the carpark, took floor mats from a car and used those mats to smash the glass front of a vending machine in the reception area. They stole confectionary from the vending machine. They left the premises. They left some stolen property behind under a tree nearby. The value of the property damage was $600 and the value of the confectionary was $145. For the offence of enter premises and commit indictable offence, she was sentenced to 15 months imprisonment.
The appellant was arrested. She was willing to participate in an interview with police. However, this did not proceed, as the police were unable to locate the support person requested by her. When told she would be kept in custody overnight, she attempted to escape but was caught by police after a short chase. That forms the charge of obstruct police officer. For that, she was convicted and no further penalty was imposed.
On 14 March 2019, the appellant was granted bail. Her bail conditions included a condition that she report weekly to police. She failed to report on three occasions, that is on each of the next three weeks.
On 4 April 2019, she was arrested on a warrant and remanded in custody. For that charge of breach of bail condition, she was convicted and no further penalty was imposed.
The Acting Magistrate ordered that the terms of imprisonment be served concurrently. The periods of licence disqualification were ordered to be served cumulatively. This had the effect of imposing a total disqualification period of two years and nine months. No order for restitution was made.
No challenge is made on appeal to the three periods of disqualification or to the lesser sentences. The appeal is against those offences which resulted in a sentence of 15 months imprisonment.
Burglary is a serious offence but these burglaries were relatively minor examples of the offence. Of the 12 property offences, three were attempts. It was unsophisticated and opportunistic offending. There was no attempt at disguise. There is no suggestion of tools used to gain entry. The items stolen were of very low value. Two of the stealing offences involved food. The appellant was using methylamphetamine at the time.
However, the appellant had a criminal history that included like offending and breaches of community based orders. The offending in this case was persistent and extended over a four month period, albeit occurring on six separate dates. The appellant also persisted in driving unlicensed. The appellant showed a disregard for the law by continuing to offend while on bail for earlier offences. She was a recidivist offender. Warrants were issued. The property offending targeted four different premises, two of which were not-for-profit community organisations.
When arrested, the appellant did not cooperate with police. She attempted to escape from police. Even after the property offending, she failed to comply with her bail requirements.
For completeness, I record that after the appellant was sentenced in the Magistrates Court on 15 May 2019, she was then dealt with in the Townsville Magistrates Court for two driving offences committed on 15 February 2019 during the period of the above offending. For driving while a relevant drug was present, she was disqualified for three months. For unlicensed driving, she was disqualified for six months, cumulatively.
At first instance, the police prosecutor submitted that the appropriate range at sentence was one of 15 months to two years imprisonment, considering the recidivist nature of the offending, the fact that the majority of the offences were committed while on bail and the appellant’s unsuccessful history of prior Court orders.
On appeal, the sole ground is that the sentence was manifestly excessive. In accordance with section 222(2)(c) of the Justices Act 1886 (Qld), properly, the ground of appeal is that the punishment was excessive.
The appellant submits that there are discernible errors made by the Acting Magistrate which give rise to the excessive punishment.
The appellant submits that the Acting Magistrate erred in four ways. First, he mischaracterised the gravity of the property offences committed by the appellant. Second, he did not consider several mitigating features, particularly those that supported her prospects of rehabilitation. Third, he erred in his application of the case authorities. Fourth, he erred by not placing sufficient weight on the principle that despite an offender’s previous convictions, the sentence imposed must not be disproportionate to the gravity of the current offence.
The appellant’s submissions on appeal focused on the fourth alleged error but for completeness, I deal with all of the grounds.
I turn now to the first alleged error. This error is said to arise because the Acting Magistrate stated:
There is evidence there on the facts that not only did you case locations, you returned to them to commit further offending.
when there was no evidence to support that finding. This error is said to have led the Acting Magistrate to characterise the offences as premediated, as opposed to opportunistic.
This ground can be readily disposed of. The agreed Schedule of Facts on sentence discloses that during the offending on 13 March 2019, the appellant walked through the unit complex, committed offences, left and returned an hour later with a co-offender and a large basket on wheels to commit further offending.
There was also evidence that during the offending on 3 March 2019, the appellant returned to the Anglicare premises and was recognised by the witness. Although there was no direct evidence that the appellant had returned to those particular premises for the purpose of committing further offences, it was open to the Acting Magistrate to infer that she returned to the Anglicare premises shortly after 5 am to commit further offending but that she was apprehended before she could do so.
While another judicial officer may not have used the same verb, “cased”, it was open to the Acting Magistrate to make the finding that he did.
This ground of appeal is not made out.
Turning to the second alleged error, the appellant submits that the Acting Magistrate failed to take into account the following mitigating features in her favour. She was youthful, being 23 and 24 at the date of the offending and 24 at sentence. She left home at 16, had periods of homelessness before then securing stable accommodation in February 2017. She had been successful at school and in extracurricular activities. She married and had an 18 month old child. That relationship had broken down and there were ongoing Family Court proceedings with respect to the child. The appellant had been addicted to the drug, methylamphetamine, since November 2018. She had not, however, consumed the drug since her arrest 41 days earlier. I pause to observe that that, no doubt, was because she had been incarcerated.
She had previously worked as a maintenance apprentice. While in custody on remand, she had completed three modules in assistant maintenance. The appellant recognised the need to overcome her drug addiction. On release, she intended to complete her apprenticeship in maintenance. She was motivated to regain stability and eventually obtain custody of her son.
On sentence, the appellant’s solicitor submitted that, taking into account her 41 days in pre-sentence custody, the Court should impose a sentence that permitted the appellant to be released that day. He submitted that the appropriate head sentence was 12 months imprisonment to be served by way of an intensive correction order or a lengthy probation order.
In his sentencing remarks, the Acting Magistrate took into account the appellant’s pleas of guilty. He referred to her age, but otherwise made no express reference to her antecedents or those mitigating features. The fact that he did not explicitly refer to those matters in his remarks is not fatal. A busy sentencing Magistrate is not required to articulate every single matter relied upon on sentence.
It is clear from the transcript of the hearing, including his exchanges with the defence solicitor at transcript 1-13 to 1-16, that the Acting Magistrate was aware of those matters and took them into account.
It is also clear that the Acting Magistrate actively considered whether to impose a 12 month intensive correction order. In submissions, he expressed concerns about whether a 12 month period would be sufficient for the appellant to overcome her drug dependency and be rehabilitated so that she did not reoffend. He also expressed concern that such an order would not serve the interest of the appellant as well as the interest of the community.
The police prosecutor, on sentence, submitted that an intensive correction order was inappropriate because of the appellant’s recent, as well as historical, non-compliance with court orders. In referring to her recent non-compliance with court orders, he relied upon her driving while disqualified, her committing further offences while on bail and her failing to report on bail. He also relied upon her breach of probation orders when she was 17. He submitted that imposing an intensive correction order may just set the appellant up to fail and not provide sufficient deterrence.
In his sentencing remarks, the Acting Magistrate said at page 2:
… the issues that underpin your offending is a dependency on illicit substances. Not only in terms of…some of the traffic related offending in terms of you driving with a relevant drug, but also in terms of resorting to property offending in order to support yourself.
It is serious offending. It has high prevalence in the community. It requires the court to address this in terms of denunciation, to send a message by way of general deterrence that this is unacceptable and will not be tolerated. There is a requirement to protect the public from this type of offending, particularly when it had such high prevalence. People are not to think that they can just help themselves to the property of others, no matter how desperate they might be, in order to support themselves.
The concern I have here is that probation has not been successful in the past. And I have real concerns about whether a community based order, or even an ICO, as an alternative to actual custody, will achieve the purpose of getting your rehabilitation. Particularly in terms of the fact that it seems that you have been quite determined and planned in your offending to support your habit. There is evidence there on the facts that not only did you case locations, you returned to them in order to commit further offending.
And a custodial sentence…is a sentence of last resort. But…having considered the line of reasoning in the cases of Dance, noting that some of them, the offending, in terms of the quantum and volumes of charges, was higher than the incidents here before me. But also noting the fact that in many occasions, the offenders on those occasions were much less – much younger in age than you are during the period of your offending, you are 23 years of age. Also taking note of the fact that it was committed over a longer period of time. I consider that a custodial sentence is warranted in the circumstance.
In my view, the Acting Magistrate did not err by failing to take into account the mitigating features. This ground is not made out.
Turning to the third alleged error, the appellant submits that the Acting Magistrate erred in the application of the case authorities, including those contained in the matter of R v Dance  QCA 371 by stating that the offenders in the cases contained in Dance were much younger than the appellant, and by characterising the appellant’s offending as being “committed over a longer period of time.”
For the reasons given below, the Acting Magistrate did not err in considering the comparable decisions. This ground is not made out.
Turning to the fourth alleged error, the appellant submits that the Acting Magistrate erred by placing disproportionate weight on her criminal history.
Pursuant to section 9(10) of the Penalties and Sentences Act 1992 (Qld), in determining the appropriate sentence for an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such, having regard to (a) the nature of the previous conviction and its relevance to the current offence; and (b) the time that has elapsed since the previous conviction.
Here, the appellant did have relevant previous convictions. However, a reasonably significant time had elapsed since those had occurred. Despite subsection 10, the sentence imposed must not be disproportionate to the gravity of the current offence: see section 9(11) and Veen v R (No 2) (1988) 164 CLR 465 at 477.
The appellant had never been sentenced to a period of imprisonment.
The Acting Magistrate stated:
you come before the court with not particularly lengthy history, but you have got some serious offending there and unfortunately, offending of a like nature from 2012. The court has previously tried to deter your offending, or assist you in being rehabilitated…the sentencing in those episodes by way of probation orders. They appear to have been unsuccessful.
When regard is had to the relevant authorities, the sentence imposed does not suggest that the Acting Magistrate erred by placing disproportionate weight on the appellant’s criminal history. He took into account all the relevant circumstances required by section 9 of the Act.
The four sub-issues the appellant relies upon do not, in my view, demonstrate any identifiable error in the Acting Magistrate’s sentence.
It remains to consider whether, when all the appropriate considerations are weighed, the sentence imposed of 15 months imprisonment fell outside the range of the proper sentencing discretion.
This court ought not interfere with the sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for a review. It must be shown that the discretion miscarried: see House v R (1936) 55 CLR 499 at 504-505.
It is not a sufficient basis for this court to intervene, that this court might have struck a different balance between the competing considerations which had to be weighed in the exercise of the discretion: see R v Lawley  QCA 243 at paragraph 18.
To succeed in the appeal, the appellant must demonstrate:
that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no one “right” penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or otherwise affected by an error of fact or law: see R v Jackson  QCA 103.
It is well established that comparable cases do not mark the outer bounds of permissible sentencing discretion with numerical precision: see Barbaro v The Queen (2014) 253 CLR 58 at paragraph 41 and R v MCT  QCA 189 at paragraph 239.
I turn, now, to a review of the cases referred to.
In R v Dance  QCA 371, the applicant was sentenced to 18 months imprisonment with parole fixed after four months. On appeal he was given an immediate parole release date, having served about two months in custody by that time. While the offending was more serious and there were more charges, the applicant in Dance had significant features in mitigation which are not present here. He was much younger, being 17 and 18 when he offended. He had taken real steps towards rehabilitation, which would be put at risk were he to serve a custodial sentence, and he cooperated with authorities to the extent of admitting offences of which he could not have been convicted without those admissions. The court in Dance reviewed a number of other authorities.
In R v Howie  QCA 50, the applicant pleaded guilty to 17 offences committed over a 15 month period. He was sentenced to three years imprisonment. It was reduced on appeal to a head sentence of two years imprisonment on the two most serious offences, suspended after serving eight months with parole also fixed after eight months. He was 22 and 23 at the time of the offending and 24 at sentence. He stole to feed a drug addiction. His offending was more serious, occurred over a longer period and breached a probation order. However, he made full admissions, he had family support, he had taken significant steps towards rehabilitation and he had insight into his offending.
In R v Taylor  QCA 214, the applicant pleaded guilty to 22 offences of dishonesty committed in two tranches. The second set of offences was committed while on bail for the first. His sentence of three years imprisonment was reduced on appeal to two years imprisonment suspended after eight months for an operational period of three years, and a sentence of two years imprisonment with parole release fixed after eight months. The majority of the offending was committed while on bail. The value of the property taken was much higher. He was 20 at the time of the offending. He made significant admissions to police. He was 22 at sentence. He had demonstrated significant rehabilitation by then. He had moved back in with his mother and was in fulltime employment.
In R v Williams  QCA 27 the applicant pleaded guilty to 10 property offences, some of which were committed while on bail. She was sentenced to 18 months imprisonment to be suspended after serving four months. She had significant matters in mitigation. The sentence imposed was upheld.
In R v Ross  QCA 49 the applicant pleaded guilty to 30 property offences, some committed while on bail. He was aged 17 and 18 at the time of the offending. The total loss was greater. He had spent 93 days in pre-sentence custody before being released on bail. He performed satisfactorily while on bail. The appeal was allowed and he was sentenced to six months imprisonment followed by three years probation. The pre-sentence custody was declared as time served.
In R v Smith  QCA 127, the applicant pleaded guilty to 18 property offences which were committed over 11 months, some while on bail. He was sentenced to three months imprisonment and three years probation. The value of the property was greater. He had a minor criminal history. On appeal, he was re-sentenced to 12 months imprisonment to be served by way of intensive correction order with drug rehabilitation conditions. He was young, without any relevant criminal history, had family support and was in fulltime employment. The court, in the later decision of R v Taylor (above), described the sentence imposed in Smith as lenient. In Taylor, the defence counsel did not submit on appeal that an intensive correction order would have been appropriate.
In R v McDowall  QCA 260, the applicant pleaded guilty to seven property offences committed over a three month period, the last of which he committed while on bail. He was sentenced to nine months imprisonment to be suspended after serving one month. He was aged 23 and 24 at the date of the offending and 25 at the date of sentence. He had no prior convictions. He had significant mitigating features in his favour, which are not present here. He made admissions, without which he would not have been charged with certain offences. He was an indemnified witness with respect to charges against his drug supplier. He gave evidence against the supplier. At sentence he was in full employment. He was drug-free. He had reasonable prospects of rehabilitation and he offered to pay compensation. The sentencing judge considered that a sentence of 12 months imprisonment would otherwise be appropriate, but moderated it down to nine months to take account of the matters in the applicant’s favour.
My review of those decisions leads me to the conclusion that the term of 15 months imprisonment imposed in this case was towards the upper end of the range. But the cases do not support the appellant’s submission that 15 months imprisonment with a parole release date after serving one third was beyond the range of appropriate sentencing options. While another sentencing judge may have imposed a more lenient sentence, it was open to his Honour to conclude that a short period of actual custody followed by a lengthy period of supervision in the community was appropriate to achieve both personal and general deterrence and to assist the appellant to rehabilitate in custody by overcoming her drug addiction.
Therefore, I conclude that the sentence was not outside the sentencing discretion. It was not manifestly excessive. The appeal should be dismissed.
- Published Case Name:
Frances Jade King v Queensland Police Service
- Shortened Case Name:
King v Queensland Police Service
 QDC 131
29 Jul 2019