Paterson v Commissioner of Police
[2007] QDC 253
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- Paterson v Commissioner of Police[2007] QDC 253
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Paterson v Commissioner of Police[2007] QDC 253
Paterson v Commissioner of Police[2007] QDC 253
DISTRICT COURT OF QUEENSLAND
CITATION: | Paterson v Commissioner of Police [2007] QDC 253 |
PARTIES: | DARRYL LEONARD PATERSON (Appellant) V COMMISSIONER OF POLICE (Respondent) |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Beenleigh |
DELIVERED ON: | 30 July 2007 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 30 July 2007 |
JUDGE: | Dearden DCJ |
ORDER: | Appeal against sentence granted |
CATCHWORDS: | APPEAL AGAINST SENTENCE – where the appellant was convicted of counts of enter premises, attempt to enter premises, and possession of house-breaking implements – where the appellant was sentenced to an effective head sentence of 12 months imprisonment suspended after 2 months, with an operational period of 2 years – whether the sentencing discretion of the learned Magistrate had miscarried |
COUNSEL: | Ms T. Mossop for the appellant Mr M. Lee for the respondent |
SOLICITORS: | Howden Saggers for the appellant Director of Public Prosecutions for the respondent |
HIS HONOUR: This is an appeal by the appellant Darryl Leonard Paterson in respect of a sentence imposed by the learned sentencing Magistrate at the Beenleigh Magistrates Court on 18 May 2006.
The appeal relates to a series of offences that were committed on various dates in March of 2005. The bench charge sheets indicate that the offences were as follows: Charge 1, was an offence committed between 17 and 20 March 2006 in respect of premises Go Fresh Take-Away, that was an attempt to enter; Charge 2 was committed between the same dates of a company described as Starvac, that was an enter premises; Charge 3 was an attempt to enter premises between the same date, 17 and 20 March 2006 of a company trading as Total Flooring Warehouse; Charge 4 was an attempt to enter premises of the company trading as Niki D Mechanical between the same dates of 17 to 20 March 2006; Charge 5 was the charge of attempt to enter premises on 30 March 2006, trading as Digger Auto Electrics; Charge 6 was an enter premises of the same premises Niki D Mechanical on 30 March 2006, and charge 7 of the original charges for which there is no appeal (for practical reasons - a conviction was recorded but no other penalty imposed) was a charge of possession of house-breaking implements on 30 March 2006.
The curious aspect of this matter is that the appellant Darryl Leonard Paterson had an extensive criminal history both as a juvenile in Victoria and subsequently as an adult in Victoria and that criminal history, as far as the Magistrate was referred to, appears to terminate in 1991 although further material has been placed before me to indicate that there were a number of driving offences committed in or about 1995 and 1996 and two drug offences, possess cannabis and use cannabis which were dealt with by way of a Victorian outcome of "Both charges without conviction, adjourned" to a specified date a year later and an amount of money ordered to be paid of Court fund and the drugs forfeited, in effect, the equivalent, it seemed to me, of a 12 month good behaviour bond.
So the reality is that there has been no criminal (as opposed to traffic) offending between 1991 and the date of the sentencing which proceeded before the learned sentencing Magistrate on 18 May 2006. Offences were committed in company with the appellant's son and a friend of the son. The offences were, as Ms Mossop described them, remarkably amateurish and in total resulted in damages and/or the obtaining of property to a value of $1,827.96 of which $609 was attributable to the appellant. Much of that was, quite literally, damage to property caused by attempts to enter rather than the actual taking of property.
The learned Magistrate appears to have taken the view that the most serious penalty, which was a sentence of 12 months to be suspended after serving two months, with an operational period of two years, should apply in respect of the offences which occurred on 30th March 2006 and a significantly less serious penalty, although still with significant consequences, of a head sentence of six months suspended after one month with an operational period of two years, should apply for the offences committed between the dates of 17 and 20 March 2006.
Although there may be some logic in sentencing in that way, the amount of logic in that, appears to me, to be very small given that effectively these were six offences in a series distinguished only by the fact that there was a break of, at most, 10 to 13 days between the first and the second part of the series and apart from that, there seems to be very little to distinguish any of the offences in that they were in fact a mixture of actual enter of premises and attempted enter of premises.
Ms Mossop in her submissions makes the point that virtually all of the comparative cases placed before the learned sentencing Magistrate related to burglaries of domestic premises, rather than the entering of commercial premises and the significance of that, of course, apart from anything else, is that the entering of commercial premises in these circumstances carried a maximum penalty of 10 years whereas the burglaries of domestic premises carry maximum sentences of life. In either case, of course, the sentences available to the learned sentencing Magistrate were significantly less than either of those maximums, that was effectively the same, but of course that does not mean that in the circumstances, the differences in penalty between the bulk of the comparatives and the matters which the Magistrate was actually dealing with, should be ignored. As Ms Mossop has pointed out, the one comparative which did relate to enter premises involved a defendant who had breached a suspended sentence and had served four months imprisonment.
There is no doubt in the circumstances that the appellant co-operated with the police investigation, made immediate admissions, took part in a record of interview and entered an early plea of guilty just some six weeks after the last of the offences was committed. This was in the context of the previous criminal history (as opposed to traffic history) effectively ending in 1991 (save for the drug offences which I have mentioned which occurred and were dealt with by the equivalent of good behaviour bond in 1997.)
The appellant was unemployed at the time of the offending behaviour but had obtained full time employment as at the time of sentencing. The offences were quite appropriately described as being amateurish, and the real issue, as I clarified with Ms Mossop and is accepted by Mr Lee for the Commissioner of Police, is whether it is manifestly excessive to impose sentences which involve an actual custodial component in these circumstances when, as is no doubt clear to anyone, that custodial component must carry a significant burden for the appellant.
In all of the circumstances it does seem to me that the sentencing discretion of the learned sentencing Magistrate has miscarried in two areas. The first is that, in my view, there was no compelling rational basis to distinguish between the sentences imposed on counts 1 to 4 and the sentences on counts 5 to 6. In my view all sentences can and should have been dealt with similarly. That has a significant consequence because, of course, it is the effective head sentence that is relevant in a practical sense to any appellant in these circumstances.
The second way in which, in my opinion, the learned sentencing Magistrate erred was in imposing an actual custodial component in circumstances where, given the lengthy period since previous offending and given the clear potential for rehabilitation of a man in his forties, who had otherwise not offended since his mid twenties, failed properly to take into account the aims of sentencing in such circumstances.
In all of the circumstances then, the sentencing discretion should, in my view, be applied afresh. For the reasons I have outlined, I consider that the learned sentencing Magistrate erred in respect of the sentences imposed on counts 5 and 6 and in respect of both of those sentences, the sentences of 12 months are set aside and I substitute sentences of six months imprisonment which regularises those sentences with the sentences imposed on counts 1 to 4.
The second aspect in which I consider the learned sentencing Magistrate erred, was in imposing an actual custodial component in respect of each of the sentences and in that respect I order that all six sentences which are now sentences of six months' imprisoned, be suspended wholly and that the operational period of two years imposed by learned sentencing Magistrate on 18 May 2006 remain.
The sentences in each case will be treated as if they were imposed on 18 May 2006 and so, of course, the effect of that is that the operational period will expire on 17 May 2008 and the outstanding sentences of six months are sentences for which, in the words of the legislation: "The appellant must if he is to avoid being dealt with under section 146 of the Penalties and Sentences Act for the suspended imprisonment, must not commit another offence punishable by imprisonment during the stated operational period" which, as I have indicated, has that balance operational until the 17th of May 2008.
The sentence which I have substituted for that imposed in each case by the learned sentencing Magistrate, in my view, very clearly sends the appropriate messages by way of a head sentence in respect of both general and, in this case, specific deterrence, but by its mitigation of being wholly suspended, recognises what, in my view, the learned sentencing Magistrate failed to recognise at first instance, which was the opportunity for rehabilitation and continues that opportunity for rehabilitation through to the end of the operational period which still has something in the order of 10 months still to operate.
...
HIS HONOUR: In the circumstances, I order that the appellant's costs fixed in the sum of $1,800 be paid by the respondent.