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  • Unreported Judgment

Priestley v Commissioner of Police

 

[2020] QDC 60

DISTRICT COURT OF QUEENSLAND

CITATION:

Priestley v Commissioner of Police [2020] QDC 60

PARTIES:

PRIESTLEY

v

COMMISSIONER OF POLICE

FILE NO/S:

118/19

DIVISION:

Appellate

PROCEEDING:

Section 222 Appeal

ORIGINATING COURT:

Magistrate Court

DELIVERED ON:

2 April 2020 (ex-tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

2 April 2020

JUDGE:

RS Jones DCJ

ORDER:

  1. Appeal is allowed;
  2. Sentences imposed by the court below in respect of the two unlawful use of a motor vehicle, the one wilful damage and the one possession of tainted property charges are set aside.
  3. In lieu thereof, the Appellant is to be sentenced to three years’ probation in respect of both of the unlawful use of a motor vehicle offences and three years’ probation in respect of the wilful damage charge.
  4. Those sentences are to be served concurrently.
  5. In respect of the possession of tainted property, the appellant is convicted but not further punished. 
  6. Conviction recorded in respect of the unlawful use of a motor vehicle concerning the Land Rover, but otherwise convictions not be recorded. 

COUNSEL:

C Hughes for the appellant

S Drinovac for the respondent

SOLICITORS:

KLM Solicitors for the appellant

Director of Public Prosecutions for the respondent

  1. HIS HONOUR:   This proceeding is concerned with the Appellant’s appeal against sentence pursuant to section 222 of the Justices Act 1886. For the following reasons the orders of the court are (1) the appeal is allowed, (2) the sentences imposed by the court below in respect of the two unlawful use of a motor vehicle, the one wilful damage and the one possession of tainted property charges are set aside, (3) in lieu thereof, the Appellant is to be sentenced to three years’ probation in respect of both of the unlawful use of a motor vehicle offences and three years’ probation in respect of the wilful damage charge. All of those sentences are to be served concurrently. In respect of the possession of tainted property, the sentence will be convicted but not further punished.  I would further order that a conviction be recorded in respect of the unlawful use of a motor vehicle concerning the Land Rover, but otherwise convictions not be recorded. 
  1. Looking at the background of this matter, on the 17th of October 2019, the Appellant was sentenced in respect of a number of offences, being two counts of unlawful use of a motor vehicle, one count of wilful damage, five counts of stealing, one count of possessing dangerous drugs, one count of possessing tainted property, one count of failing to properly dispose of a needle or syringe and one count of trespass.
  1. In respect of the two counts of unlawful use of a motor vehicle, the one count of wilful damage and the one count of possessing tainted property, the Appellant was sentenced to concurrent terms of 12 months imprisonment to be served by way of intensive correction orders.  In respect of the balance of the offences, the Appellant was convicted but not further punished.  At the time the Appellant had committed these offences he was 18 years of age and had been on remand from 26 July 2019 to 26 August 2019 for a total of 83 days. 
  1. As prescribed by section 222 of the Justices Act, having pleaded guilty to all of the charges, the Appellant may only appeal on the sole ground that the penalty was excessive. The grounds of appeal were that the sentence imposed by the learned sentencing judge was manifestly excessive in all the circumstances, and secondly that there was an error of law in sentencing considerations.  Consistent with the primary submissions made on behalf of the Appellant in the court below, it was submitted that the appropriate sentence would be one involving a period of probation in respect of all those charges and that no convictions be recorded in respect of any of the offences.  In respect of all but the unlawful use of the Land Rover, I am inclined to agree with those submissions.  However, as will become apparent below in a moment, the offending involved with the Land Rover was serious enough to warrant the recording of a conviction in my view.
  1. The facts of the offending were reduced in writing to what was referred to as a sentencing schedule.  An aggravating feature was that the offending occurred whilst the Appellant was the subject of a probation order which was imposed, as I understand it, while a juvenile.  In respect of the possessing tainted property, when the police conducted a search of a stolen motor vehicle, a number of items were located, including a jerry can, a generator, a Webber barbeque, together with a gas bottle and trolley and a number of other minor items.
  1. In respect of the wilful damage and trespass offences, that involved the Appellant and two associates attending a vacant rental property and in attempting to enter that property they caused damage to a rear door and a rear window and fly screen was removed.  Soon after entering an alarm went off and they left. 
  1. In respect of the less serious charge of unlawful use of a motor vehicle, that involved the Appellant in the company of others stealing a Mitsubishi Triton dual-cab utility, which at the time was parked at the Complainant’s rural property. When located it was discovered that the vehicle had suffered some relatively minor damage.  This was a particularly brazen example of this type of offending as it was stolen at about 1.30 in the morning while the Complainant was upstairs watching television.  Unfortunately for the Complainant, though, the vehicle had been left unlocked and the keys were left in the cabin of the vehicle. 
  1. By far the most serious offence was that involving the Appellant in the company of others unlawfully using the Land Rover which had been taken from a different Complainant’s semi-rural acreage property.  I would note here that the appellant, though, has not been charged with stealing that vehicle. At the time the vehicle was first observed by the police it was being driven by one of the co-offenders and the Appellant was sitting in the back seat.  When the police ordered the driver to get out of the vehicle, he ignored that instruction and then accelerated away from the police and continued to accelerate rapidly along a small corridor located within the shopping centre designed for pedestrian traffic only.  The vehicle was observed to have only narrowly avoided hitting persons in the general location.  A pursuit then ensued and later the vehicle was observed to have on at least one occasion crossed a double white line to overtake another vehicle.  The police abandoned that pursuit.
  1. It would appear that at some time during the pursuit someone threw a bottle from the back seat passenger window, but it was not clear whether that was the Appellant or one of the other co-offenders.  As I said, having determined that the pursuit was unsafe the police abandoned it.  Sometime later another vehicle was located with the number plate which had been removed from a Land Rover which was never recovered and was valued at $45,000. 
  1. During the sentencing proceedings the Prosecutor advised the learned Magistrate that in respect of the Land Rover the Complainant was out of pocket to the tune of some $2000.That in relation to the stolen Mitsubishi, the Complainant was out of pocket to the tune of some $2500, and in respect of the wilful damage the damage caused was valued to the sum of some $2500.  As I understand it, there was no challenge to any of those figures. 
  1. As was observed by the court below, the Appellant was extremely cooperative with the police.  In respect of the wilful damage charge he admitted that he had attended the location with the common intention of breaking into a house to sleep.  It would appear that the Appellant, together with his co-offenders had not slept for a period of time due to what was described as excessive drug abuse.  In respect of the possession of tainted property, he again made a number of frank admissions and that was also the case in respect of the stolen Triton. In respect of the Land Rover, the Appellant readily admitted that he attended the Complainant’s property with his friends.  He also went so far as to say that while it was one of the others who actually drove the vehicle, they attended the property with the common intention amongst all of them to take that vehicle from the Complainant’s property.
  1. In the proceedings below, the Prosecutor, in addition to identifying the nature of offending, drew the court’s attention to the fact that the Appellant was only 18 years of age at the time, and went on to say:

So he does have the benefit of being a young offender and he did cooperate in the administration of justice in relation to making admissions in electronic records of interview.

  1. He also pointed out that the Appellant presented to the court with no previous criminal history.  In respect of the Land Rover, it was correctly pointed out that that offence was a particularly serious one in that it involved the vehicle being operated in a dangerous manner.  The Prosecutor also drew the court’s attention to the fact that the Appellant had served 83 days in pre-sentence custody.  In reliance of the decision of the court of appeal in R v Dance [2009] QCA 371, it was submitted that in respect of the most serious offence a term of imprisonment of 12 months would be justified.
  1. By implication it seemed to be suggested – or submitted that the Appellant would be required to serve about one-third of that period, that is, four months.  It would, it seems to me, appear that the Prosecutor was intending that the 83 days of pre-sentence custody would be taken into account requiring the Appellant to serve an additional period of in custody in the order of a month or so. 
  1. The Appellant was represented by Ms Bruxner, a solicitor.  She also drew the court’s attention to the youth of the Appellant, and to the fact that it was his first appearance before the Magistrate’s Court.  She also drew the court’s attention to the – a number of serious health issues associated with the Appellant. Like the Prosecutor, she also placed significant emphasis on the pre-sentence custody.  In respect of the physical health of the Appellant, the court was also advised that when he was about 12 years of age the Appellant had contracted a serious virus during a family holiday trip to Thailand which required hospitalisation.  The court was told that it was a particularly significant and traumatic episode which left the Appellant with some form of post-traumatic stress disorder and ongoing joint pain.  The court was also told that this caused sleeping and mental health issues, and that the Appellant had been diagnosed with what was described as chronic joint hypermobility and severe anxiety and depression.  To a large extent that submission was supported by material that was provided by Youth Justice. 
  1. It was then said on behalf of the Appellant:

Unfortunately, given his health issues, he couldn’t go to the gym, do the active things that he normally does.  And it also made things quite difficult in relation to work.  Despite that, he obtained a number of certificates at TAFE, bricklaying, certificate 1 in constructions, certificate 2 in workplace practices, and a certificate 2 in adult education.  He was enrolled prior to being in custody in a certificate 3 health and fitness and wants to do that and wants to continue improving in relation to his health and working on those health issues.

  1. Ms Bruxner went on to say that there was no disputing that the behaviour that brought the Appellant before the court was appalling, but to a significant extent that could be related back to his physical and mental health issues and him falling into what she described as bad associations and criminal habits.  She also went on to submit and consistent with his assistance with the administration of justice that he took responsibility for his actions and understood the significance what he had done.
  1. A number of references were also tendered, which spoke very highly of the Appellant.  The primary submission of Ms Bruxner was that the Appellant be required to serve a lengthy period of probation.  However, on that submission receiving a clearly negative response from the bench an alternative submission was advanced to the effect that the Appellant be sentenced to a period of imprisonment of in the order of 12 months, but taking into account the time served in custody together with his cooperation with administration of justice.  And the other mitigating factors that he be released on parole immediately. At the close of submissions the court below made it clear that the sentencing regime now being appealed against would be the one that would be imposed.  I will refer in a moment to the reasons given by the court below, and also some aspects of the interaction between the court and the legal representative for the Appellant. 
  1. In appeals such as this, there are a number of well-known and established principles.  There is the often cited passage from House v King [1936] 55 CLR 499:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, he mistakes the facts, he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion and substitution for his if it has the materials for so doing.  It may not appear how the primary judge reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance.

  1. Subsequently, there have been other references.  For example, it has been said that the Appellant must show some legal factual or discretionary error.  And in the case of R v Lawley [2007] QCA 243 it was said that it is not a sufficient basis for the Appellate Court to intervene because it might have struck a different balance between competing considerations which had to be weighed in exercise of the sentencing discretion. In R v Ikin [2007] QCA 224, Justice of Appeals Keane, as he then was, in referring to the general proposition that in some instances the severity of the sentence of itself may be indicative of an error, even though a specific or particular error cannot be directly pointed to.  His Honour said:

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 idea which informs the familiar ground of appeal that a sentence is manifestly excessive.  But having – that being said, it was emphasised by Kirby J in Dinsdale v R [2002] CLR 321 at 341, this court should allow an appeal against sentence only where the error is clearly apparent.

  1. Finally, as was observed by the Court of Appeal and the Commissioner of Police v Al Shakarji [2013] QCA 319:

In an appeal such as this, the court is required to make its own determination on relevant facts and issues from the evidence, but giving due deference in attaching a good deal of weight to the Magistrate’s view.

  1. Turning then to the alleged errors.  In the Appellant’s outline of argument in support of the contentions that the sentences were manifestly excessive in all the circumstances, three specific matters or contentions were raised.  First, in paragraphs 8 and 10 of the Appellant’s written submissions it was said that the sentences imposed in the present case are manifestly excessive as the Magistrate did not give sufficient regard to the Appellant’s mitigating factors, including the pleas, that the appellant had spent 83 days in custody, and the report from Youth Justice that advised that the appellant had a supportive family and had been engaged and compliant with community based orders.  It was then said that the sentencing remarks made no reference to sections 9 or 11 of the Penalties and Sentences Act, and in particular, that there was no reference, in the Magistrates consideration, of a community based orders or the impact that a conviction would have on a young offender.
  1. The next assertion was that the Magistrate impermissibly fettered his sentencing discretion by considering only one sentencing option, that of imprisonment, and refusing to consider alternative sentencing options.  Next, it was said that the Court below failed to give sufficient weight to sentencing options that enlivened the discretion to record or not record a conviction.  It was then submitted:

Weighing the appellant’s personal circumstances in mitigation, including the appellant’s young age, the considerations under sections 9 and 11 and 12 and 13 of the Penalties and Sentences Act, the relative seriousness of the offences, the fact that the appellant had no adult criminal history, the period of declarable time the appellant had spent in pre-sentence custody and the principle of protecting the public and denouncing the offending, the appropriate exercise of the course – Court’s discretion is to resentence the defendant to a period of probation. 

  1. In my respectful opinion, there is no merit in much of the first of the submissions made on behalf of the appellant.  It is abundantly clear that the Court below had given consideration the appellant’s assistance with the administration of justice.  The Court below referred not only to his plea of guilty, but also referred to what was described as the appellant’s “very frank and very full admissions.”  It is also clear that the Court below had regard to the age of the appellant.  In this regard however, it was said that “the offending was extremely serious, even for an 18 year old.”  The Court also went on to observe that the appellant was quite young, and was also a person who had the benefit of a number of character references and family support. 
  1. Indeed, the Court went so far as to note that one of the persons in support was present in the courtroom, most likely his mother.  It is also clear that regard was had to the information provided by the Youth Justice Centre.  That made it clear that the appellant had, notwithstanding a number of difficulties, the benefit of strong family support.  Indeed, in this context, by reference to the information provided by the Youth Justice Centre and family support, the Court below went on to say:

That is a good basis for optimism, I can say.  Those orders are – have some considerable time to run and there is clearly benefit in the community when an 18 year old is assisted with family support to ensure that they did not reoffend again.

  1. It was then said:

You have spent a considerable time in adult custody, and that is a factor that weighs heavily on sentence today.  And when I say that, that means in terms of the order that I can impose.  I have chosen not to impose a probation order because of – the seriousness of the offending outweighs any possible advantages that you might receive from that order, but in the circumstances, I will give the opportunity of being subject to an intensive corrections order for 12 months.

  1. As to the second limb of the first of the complaints made against the Court below, it is true that there is no specific reference to sections 9 or 11 of the Penalties and Sentences Act 1992, but that of course is not of itself sufficient, in my view, to establish an error in the exercise of the sentencing discretion. 
  1. The primary complaint was that the Court below made no reference to a consideration of community based orders.  That assertion cannot stand.  The Court below was attempting to balance those factors which may have weighed in favour of a sentence of actual custody.  For example, the seriousness of the offending and the number of offences involved to be weighed against those factors, in favour of community based orders.  For example, the youth of the appellant, his lack of relevant criminal history, his family support, his assistance with the administration of justice and other factors pointing towards genuine prospects of rehabilitation. 
  1. In this regard, the Court below rejected the submission made on behalf of the Prosecution, and instead imposed the 12 month intensive correction orders.  The Court below was clearly, in my respectful view, aware that an intensive correction order was one that would allow the appellant to stay in the community.  Section 113 of the Act provides that the effect of the order is that the offender is to serve the sentence of imprisonment by way of an intensive correction in the community, and not in prison.
  1. Turning then, to the second branch of the complaints made about the Court below.  Reference was made to passage from a decision of this Court in Payne v Commissioner of Police [2015] QDC 294, where it was said:

When the appellant solicitor submitted that the Magistrate could reasonable consider a combined community service probation order, the Magistrate cut her off and said, “Look, just so you are – I am not going to do a community service and probation order, okay?”

The solicitor can rightly be criticised for not persisting with a submission that was soundly based.  However, the Magistrate, quite impermissibly, fettered his sentencing discretion by refusing to consider such an option or to hear submissions about it.  It is tolerably clear that he was considering only one sentencing option, and that is imprisonment.  This again amounts to a legal error, and on its own, would lead me to allow the appeal.

  1. That passage is of particular relevance in this matter.  During the submissions being made on behalf of the appellant the following exchange took place:

MS BRUXNER:   Your Honour, in relation to the matter, to the case of Dance, I submit – I accept my friend’s submission.  However, in that matter, I understand there was already a probation.  There was a breach in relation to a previous probation order.  My client never had the benefit of probation as an adult.

THE BENCH:   Can you – look, can you rephrase that?  Look, the Magistrate refused bail.  I will put this on the record. 

  1. Thereafter, the Court below referred to notes made by the Magistrate who apparently dealt with the application for bail, and the following exchange took place:

THE BENCH:   Yes.  Well, that is right.  So you have clarified it now.  Then, because of that, I will put on the record what I got from Youth Justice, which [indistinct] in this case. 

  1. His Honour then went on to quote from that document:

He is no longer subject to the SRO which was completed on the 5th of September.  He is currently subjected to a – he is currently subject to a three year probation order which expires on 24 September ’19, and a combined 12 month probation order and restorative justice order which expires on 5th of June ’20.  We are not planning on breaching the orders he is currently subjected to, as he is compliant and engaging with both probation orders when he is in the community.  The restorative justice order has yet to be commenced due to him being in custody.  Upon release, he will be commencing this process.

MS BRUXNER: Yes, your Honour.  And I ask your Honour not to put any weight on his child criminal history, given that.

THE BENCH, INTERVENING: Yes, but I cannot ignore the fact that he is on probation when it comes to proposing a just sentence, because depending on what you are asking me to do, he will receive some level of supervision upon release.  That is my understanding.

MS BRUXNER:   Certainly.  And that is entirely in line with my submissions, and I am submitting for a lengthy probation order.

THE BENCH:   I am not going to impose a probation order.  He was driving.  Did you read the facts schedule?  He drove the car.

MS BRUXNER:   I accept. 

THE BENCH: Forty-five – a $45,000 car not recovered.

Ms Bruxner: I accept that, your Honour.  My submission being that he has not had the benefit of adult probation order, and I ask your Honour –

THE BENCH: What is the difference?

  1. That exchange continued with Ms Bruxner then falling back on the alternative submission, that is for immediate parole release, and it was at this stage that the Bench then said:

I can tell you this much, this may surprise you:  would he do an intensive correction order?

  1. Thereafter, clearly in the face of the strong indication of the Bench, Ms Bruxner abandoned her primary submissions and contended for the alternative.  In my view, there are two serious errors revealed in that exchange.  As was the situation in the case of Payne, Ms Bruxner should have been more persistent with her submissions concerning probation.  However, having regard to the indication from the bench, one can readily understand her reluctance to press on.  More importantly, it was tolerably clear that the Court below had fettered its sentencing discretion by closing its mind to the option of imposing a sentence involving the imposition of lengthy periods of probation. 
  1. The second error is that the Court below seemed to have proceeded on the basis that the appellant was the driver of the Land Rover.  The schedule of facts make it clear that at all material times, the car was being driven by another person and the appellant was sitting in the back seat.  While the appellant was clearly a party to the unlawful use of that vehicle and what followed thereafter, he was not in control of the motor vehicle during the dangerous driving involving the police pursuit.  That said, though, it is of course not an unforeseeable outcome that a police pursuit may well occur when offending of this type is involved and of which the appellant was a party. 
  1. In this context, it was submitted on behalf of the respondent that by the time the Court below actually sentenced the appellant, that error had been recognised and rectified.  That may well be the case, but by the time that had occurred, his Honour had already impermissibly cut off any further discussion about probation and was, in reality, imposing the very same sentence that he considered to be an appropriate one when he thought the appellant was the driver.  I am unable to accept the submission to the effect that the error concerning who was driving the car when the exchange between the Bench and Ms Bruxner occurred played no part in the Court’s sentence.  That decision had already been made before those reasons were given.
  1. These errors are sufficiently serious to conclude that there has been an error made in the exercising of the sentencing discretion:  first, in acting upon a mistaken view of the facts, and second, by failing to keep an open mind during submissions on sentence.  Accordingly, the appellate jurisdiction of this Court is enlivened and the sentences imposed concerning the imposition of the intensive correction orders ought to be reconsidered. 
  1. The Court below was correct to proceed on the basis that the appellant’s unlawful conduct was serious.  This was not a situation involving a momentary lapse of judgment on the part of a young offender.  The appellant was involved in committing a number of offences over a very short period of time of only about one week.  In some instances, where offences were committed on the same day or within a day of each other.
  1. The decision of Dance relied on by the Prosecutor clearly played a role in the approach adopted by the Court below.  In his sentence remarks, his Honour said:

“Because if you continue to reoffend, as that case of Vance makes abundantly clear, even young people with little or no history can be imprisoned for lengthy periods of time for serious offences.  Sometimes 18 year olds being imprisoned for 18 months for property type offences.”

  1. The reference to Vance was clearly meant to be a reference to the case of R v Dance.  Two things need to be said about his Honour’s observations:  first, the level of offending was much more serious in Dance.  That can be readily observed in paragraph 7 and 8 of that judgment.  Second, in that case, it was made clear that notwithstanding the seriousness of the offending, the principle that imprisonment be a sentence of last resort was a particularly important consideration when dealing with young offenders with little or no criminal history.  In the reasons of Justice Atkinson, who delivered the leading judgment, it was said in paragraph 57:

In this case, the Court must balance the repeated nature of the offending which occurred whilst the appellant was subject to a probation order and that the offence on the three-count indictment, the one-count indictment and the summary offences occurred whilst he was on bail for the offences on the 16-count indictment.  Those matters suggest that the sentence of 18 months was within range.

  1. In the following paragraph, after considering a number of important mitigating factors and, in particular, the age of the offender and his attempts at rehabilitation, her Honour went on to say:

In the circumstances where a sentence of imprisonment may only be imposed as a last resort, the Crown’s submission below, that it would have been within range to have ordered immediate parole release date, was appropriate and should have been acted on by the sentencing judge.  In cases such as this, reasonable minds may readily differ about what the appropriate sentencing regime ought to be for the most serious of the offences.  At the lower end, a lengthy period of probation and towards the upper end a period of 12 to 18 months terms of imprisonment with parole release or with a wholly suspended sentence coupled with a period of probation for the less serious offending.  That those options exist, of course, does not mean that the sentences below ought to be interfered with.

  1. In Dance, after reviewing no less than 16 cases, Justice Atkinson, with the President Margaret McMurdo, and A Lyons J agreeing, allowed the appeal, but only to the extent of setting an earlier parole release date.  The net result was that the head sentence of 18 months was not disturbed, but the parole release date was, effectively, reduced from four months to two months. But, as has already been noted, notwithstanding the seriousness of the offending, the Court was clearly of the view that while the head sentence of 18 months ought not to be disturbed, a sentence that did not involve the applicant serving a period of custody remained the most appropriate course of action.
  1. Turning to the last matter raised concerning the recording of a conviction, it was submitted in the appellant’s written submissions that the magistrate failed to give sufficient weight to the appellant’s youth, prospects of rehabilitation and future employment prospects.  As things stand, the appellant has four recorded convictions.  No reference is made to section 12 of the Penalties and Sentences Act in the Court’s sentencing remarks.  But that is hardly surprising, given the lack of attention given to the topic during submissions.  In this context, the only reference to the issue of whether a conviction ought to be recorded or not occurred at the very end of the proceedings where the following exchange took place.

MS BRUXNER: Your Honour, I did intend to make submission in relation to having no convictions recorded, given his age and given the fact that, in the event that he received a period of imprisonment.

THE BENCH: The effect of the OACO will be that he will have a conviction recorded.

MS BRUXNER: That’s as I understand it, your Honour.

THE BENCH: And, can I say, the seriousness of this offending for the unlawful use outweighs any benefit that he may receive for not recording a conviction. 

  1. That last observation made by the bench, it would seem to me, to be most likely have been influenced by the fact that at that stage his Honour was still acting under the mistaken belief that it was the appellant who was the driver at the time of the police pursuit.  The appellant has a number of qualifications that at face value might suggest good prospects of employment in the future.  That conclusion is also supported by the support of his family and other referees.  However, in contradiction, he clearly has serious mental and physical health and substance abuse issues that would need to be addressed.
  1. That being said, it can be readily accepted that even in the absence of evidence on the matter, any conviction for a serious offence, let alone four, would be likely to be a hindrance in the future to obtaining gainful employment.  It is sufficiently clear that the Court below had little, if any, regard to the consequences of the recording of a conviction in circumstances where, given the applicant’s antecedents and other mitigating factors, that was a matter that ought to have been, and should have been, addressed. Clearly, some of the offending for which the appellant was sentenced was manifestly more serious than the others, but there was no allowance or adjustment made for this.
  1. There also seems to be little or no relationship between some of those offences where the appellant was convicted and not further punished and those sentences imposed involving the recording of a conviction.  In my respectful opinion, the Court below erred in imposing the same sentence in respect of the two unlawful use of a motor vehicle offences and the wilful damage and the possession of tainted property offences.  The latter two offences fell very much at the lower end of the range of seriousness.  In my respectful view, there could be no comparison between, for example, the possession of tainted property and the most dangerous of the unlawful use motor vehicle offences.  That is, in my respectful opinion, it was an error to impose the same sentences, notwithstanding the significant differences in the level of seriousness involved. 
  1. Returning then to the time spent in actual custody, during his sentencing remarks his Honour said that the time spent in adult custody was a factor that weighed heavily on the sentences that he intended to impose.  Having regard to the sentences that were in fact imposed, it is my respectful view that it is quite clear that insufficient weight was given to the presentence custody.  Had the general approach adopted by the prosecutor been acted upon and the appellant been sentenced to 12 months imprisonment, it would have been clearly open to have ordered an immediate parole release date as advanced by Ms Bruxner in the alternative or, at the very worse, the appellant, he would have been likely to have been eligible for parole within another month or so. 
  1. In effect, the appellant has been required to serve just under three months in custody followed by 12 months under an intensive correction order.  In all the circumstances, I am satisfied that, for the reasons given, the errors made by the Court below have resulted in the sentencing discretion being miscarried to the extent that the sentences imposed were manifestly excessive.  Accordingly, the orders of the Court will be as I said at the outset. 
  1. By way of conclusion, I would point out that, as is often the case in appeals such as this, this Court has been given the benefit of more considered argument, including written submissions.  In making that observation, I would also observe that no criticism of either the prosecutor or the solicitor representing the appellant is intended.  It is well known and appreciated that the Magistrates Court and those who practice in it work under enormous pressure and have to deal with a large number of cases on a daily basis. 
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Editorial Notes

  • Published Case Name:

    Priestley v Commissioner of Police

  • Shortened Case Name:

    Priestley v Commissioner of Police

  • MNC:

    [2020] QDC 60

  • Court:

    QDC

  • Judge(s):

    RS Jones DCJ

  • Date:

    02 Apr 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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