R v McConachy[2011] QCA 183

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  The applicant, Wayne John McConachy, was convicted after a four day trial in the Brisbane District Court, of stealing or receiving (unable to say which) a quantity of metal, the property of International Ceramic Tiles Wholesale Pty Ltd, to the value of more than $5,000, and of dishonestly obtaining a sum of money from OneSteel Recycling Company Pty Ltd.  He was found not guilty on three charges related to those charges.  He was sentenced on each charge to 15 months imprisonment with a parole release date set after six months, namely on 24 September 2011.  He applies for leave to appeal against his sentence contending that the judge gave insufficient weight to the mitigating features of his case. 

He was 36 at the time of the offending and 38 at sentence.  He had a relatively minor but still relevant criminal history commencing in the Magistrates Court in 1993 when he was convicted and fined for wilful damage.  In 1999 he was convicted and fined in the Magistrates Court for assault occasioning bodily harm and possession of property suspected of being stolen.  In 2004 he was convicted without penalty for a breach of a domestic and family violence protection order.  In 2008 he was convicted and fined for wilful damage, failing to appear in accordance with his undertaking and public nuisance.  Later that year, he was fined without conviction for being an unlicensed second-hand dealer.  In 2009 he was convicted and fined for leaving a hotel without payment.  Later that year, he was fined without conviction for assaulting or obstructing a police officer.  He had not previously been sent to prison and these present convictions were his first in the District Court.

The circumstances of his offending were as follows.  The building owned by International Ceramic Tiles was being painted.  Its external aluminium blinds were removed whilst the painting was undertaken.  The blinds were placed in the car park adjacent to the building within the property boundaries.

On 20 August 2009, the applicant sold the blinds to OneSteel Recycling Company for $300.  The judge sentenced the applicant on the basis that he was directly involved in either the stealing or receiving the property when he had reason to believe that it had been stolen.

The prosecutor at sentence, relying on R v Harders [1996] QCA 390 and R v Forrest [2003] QCA 112, submitted that a head term of imprisonment of 12 to 18 months was appropriate in this case.  He emphasised the applicant had shown no remorse and had convictions for minor offences of dishonesty, some of which were related to his dealing in scrap metal.

Defence counsel made the following submissions.  The applicant was in hospital from 12 to 17 August 2009 until just before the commission of the offences.  For some of that time he was in intensive care.  When released from hospital he was on prescription drugs including a reasonably high dosage of Valium.  This could have affected his judgment detrimentally at the time of the commission of the offences.  The two offences were opportunistic and part of a single course of conduct.  He received only $300 for the blinds, although they were clearly worth more than $5,000 to the owner.  The applicant had a close and supportive family and his mother had attended court throughout the trial.  He had been in a relationship with a woman for 16 years until 2010 when the relationship broke up.  There were three children of the relationship aged from eight months to 12 years.  Since the break up the applicant was their sole carer.  His four year old child suffered from developmental difficulties and the eldest child probably had epilepsy.  The applicant's counsel had spoken to the 12 year old's school principal who confirmed that the applicant was a very involved and supportive parent.  A fax from the applicant's family doctor stated that the eight month old baby had been diagnosed that very day with whooping cough so that she and her whole family needed to be treated.  As a result of the applicant's offending, he was unable to work in his business and was now a fulltime carer receiving a single parent payment from Centrelink.  He also assisted his mother.  Since his release from hospital he had taken his medication as prescribed.

Defence counsel tendered a reference from the applicant's mother which stated that he suffered a grand mal epileptic seizure on 12 August 2009 and was taken to hospital where he was on life support in the intensive care unit for some days.  On his release, he was physically and mentally fatigued.  He had taken on fulltime caring for his three young children and was a wonderful father.  She had a heart condition and would be unable to care for the children if he was imprisoned.  Defence counsel also tendered hospital records confirming the submissions as to the applicant's medical history. 

Defence counsel distinguished Forrest and Harders and submitted that the sentence which should be imposed was one of 12 months imprisonment, either wholly suspended or served by way of an intensive correction order.  This would be a salutary penalty whilst allowing him to continue to parent his three children, all of whom had significant difficulties.

In sentencing, the judge made the following observations.  The maximum term of imprisonment was 14 years and the offence was serious.  It was an opportunistic crime warranting condign punishment as a general and personal deterrence.  The applicant's criminal history showed that he had been on the fringe of petty dishonesty offences for some time.  The value of the property involved in the present offending was unlikely to exceed $5,000 by very much.  The judge stated that he took, "into account the references and the reports tendered to the Court on [the applicant's] behalf, and in particular, what [his] counsel has said and [his] personal circumstances… in determining what the appropriate sentence is to impose upon [him]."  His Honour then sentenced the applicant. 

The applicant now contends that the primary judge erred in failing to consider the hardship that would flow to his children upon his imprisonment or, at least, failed to give adequate weight to that consideration.  He also contends that the judge failed to consider or give adequate weight to the impact of his post-discharge medication on his judgment at the time he committed the offence. 

In addition, the applicant has applied for leave to adduce further evidence in the form of his own letter to the court and statutory declarations from his mother and his former partner's stepmother.  The evidence is to the following effect.  Since the applicant's incarceration, his former partner has suffered mental problems.  She was unable to care for their three children.  His mother, who lives in Toowoomba, has taken custody of his 12 year old son.  His four year old son and 12 month old daughter are in the custody of his former partner's stepmother in Caboolture.  The 12 year old boy was greatly emotionally distressed at his father's imprisonment and was also missing his younger brother and sister. 

Before turning to whether the court should accept the fresh evidence I turn to the application for leave to appeal against sentence.  The principles to be followed by a sentencing court when considering the effect of the sentence on dependant children were discussed by Atkinson J, with whom Keane and Fraser JJA agreed, in R v Chong; ex parte A-G (Qld) [2008] QCA 22:

"[29]There is authority for the proposition that the hardship caused to an offender’s children by imprisonment may be taken account of in the exercise of the sentencing discretion but only in certain circumstances. It is then one of many factors to be taken into account. In R v Stewart (1994) 72 A Crim R 17 at 21, the Court of Criminal Appeal in Western Australia held:

'Generally the hardship caused to an offender's children is not a circumstance to be taken into account. The authorities are clear, however, that it may be taken into account when the degree of hardship that imprisonment will involve is exceptional or when the offender is the mother of young children, or where imprisonment will result in the children being deprived of parental care. In all cases, however it depends on the gravity of the offence and the circumstances of the case.'

[30]It is true that the hardship to an offender's children cannot be allowed to overwhelm all other considerations in sentencing: See R v Tilley (1991) 53 A Crim R 1 at 3. However, as the appellant conceded in this case, the effect on a family is not irrelevant. As Cooper J observed in R v Tilley at p6:

'The public interest is promoted by preserving wherever possible a family unit. The respondent's background demonstrates quite clearly the social cost where some semblance of family stability and support is lacking. Rehabilitation and preservation of a stable family environment are both relevant and important to the process of sentencing.'

[31]Tilley was followed in this court in R v Le [1996] 2 Qd R 516 by Thomas J at p522 with whom Williams J agreed. Thomas J said that the hardship and distress shared by the family of an offender cannot be allowed to overwhelm factors such as retribution and deterrence. Pincus JA observed, at p519, that the practice of Queensland courts is to give consideration, when appropriate, to the effect of a sentence on an offender's young children.

[32]In R v D’Arrigo; ex parte A-G (Qld) [2004] QCA 399, the court was considering a case in which the only reason for suspending a term of imprisonment was the respondent’s position as sole carer of his young daughter. In that case it was held that the fact that the applicant was the sole carer for a 16 month old child could not be allowed to overwhelm the otherwise appropriate punishment for a conviction of dangerous operation of a vehicle causing death for which the offender was convicted after a trial. He had a previous conviction for dangerous driving and convictions for speeding which preceded and followed the driving the subject of the conviction before the court. The President noted that he had other children living in Victoria with their mother and he did not contribute to their  maintenance. The Chief Justice observed at pages 5-6:

'The balance of authority supports the view that while hardship to third parties because of the imprisonment of a family member may, if rarely, be a relevant consideration, it must not overwhelm others such as the need for deterrence, denunciation and punishment. See Le and Le v R [1996] 2 Qd R 516.

Indeed the preponderance of authority is to the effect that this consideration may be brought to account only in exceptional or extreme circumstances. See R v MP [2004] QCA 170; R v Boyle (1987) 34 A Crim R 202; Arnold v Trenerry (1997) 118 NTR 1; and R v Edwards (1996) 90 A Crim R 510.'

[33]In my view, where relevant, the best interests of children who are dependant on the offender fall within s 9(2)(r) of the Penalties and  Sentences Act 1992 (Qld) which requires the sentencing court to take account not only of the enumerated matters found in s 9(2)(a) to (q), but also of 'any other relevant circumstance'.  …

[34]Nevertheless the law as it currently stands requires the sentencing court to take account of any 'relevant circumstance.' The United Nations Convention on the Rights of the Child, which entered into force for Australia in 1991 (Australian Treaty Series 1991 No 4), relevantly provides in article 3.1:

'In all actions concerning children ... undertaken by ... courts of law ... the best interests of the child shall be a primary consideration.'

It appears, as Pincus JA observed in R v Le at p519, that the terms of s 9 of the Penalties and Sentences Act preclude the courts from regarding the best interests of the child being a primary consideration in sentencing those  upon whom the child is dependent. They do not however preclude the court from regarding the best interests of such a child or children as being a relevant circumstance."

The evidence before the sentencing judge did support the conclusion that the applicant's dependant children would suffer exceptional hardship upon his incarceration.  He was a single parent and their estranged mother was unable to care for them.  His own mother was physically unable to take on the burdensome responsibility of caring for three children including a four year old and an eight month old with whooping cough.  All the children had special needs at the time of sentence.  The sentence imposed involved six months of actual custody.  The judge made only general reference to defence counsel's submissions in mitigation and made no specific reference to the hardship which would be suffered by the children, nor did he specify that he was shortening the term of actual imprisonment he would impose because of the needs of the children.  In the circumstances, I am persuaded the judge gave insufficient weight to the impact on the children in sentencing the applicant to a period of actual imprisonment of six months.  This error requires this court to re-sentence him. 

The offending was, as the primary judge recognised, serious.  The applicant was a mature man with some minor but relevant criminal history for dishonesty.  He did not show remorse or cooperate with the authorities by pleading guilty.  In the absence of exceptional circumstances, the sentence imposed was well within range and, indeed, a higher sentence could have been imposed.  So much is established by Harders and Forrest.  But there were particular mitigating features.  The applicant had only recently been diagnosed with epilepsy when he committed the offences.  He suffered a major fit brought on by not taking his medication and was hospitalised and in intensive care for a number of days shortly before this offending.  His counsel's submission, that his judgment was affected by his medical problems and his medication when he committed the offences, was entirely plausible.  Since his release from hospital he had taken his medication as prescribed.  He appeared to be a devoted single parent to his three children.  His eldest child who was 12 years old was being investigated for what appeared to be epileptic episodes.  The school principal confirmed the child had particular problems and that the applicant was a supportive and involved parent.  His four year old child had developmental difficulties.  His eight month old child was, as I have said, on the day of sentence, diagnosed with whooping cough.  The applicant has now been in custody since his sentence on 24 March 2011, a period of over four months.  The further evidence which this court can now consider in re-sentencing the applicant shows that since his incarceration, the children have been separated from each other and are missing their father.

In these exceptional circumstances the community's interests are now best served by imposing a sentence which allows the applicant to return to his young family and to care for them in a united family unit.

I would grant the application for leave to appeal, allow the appeal, set aside the parole release date imposed at first instance and, instead, substitute a parole release date of 3 August 2011.

I would otherwise confirm the sentence imposed at first instance.

MUIR JA:  I agree.

BODDICE J:  I agree.

THE PRESIDENT:  That is the order of the court.