Knibbs v R
[2008] QDC 288
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- Knibbs v R[2008] QDC 288
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Knibbs v R[2008] QDC 288
Knibbs v R[2008] QDC 288
DISTRICT COURT OF QUEENSLAND
CITATION: | Knibbs v R [2008] QDC 288 |
PARTIES: | KNIBBS, John Wayne (appellant) v The Queen (respondent) |
FILE NO/S: | Toowoomba Appeal No 7/08 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Toowoomba |
DELIVERED ON: | 26 November 2008 (ex tempore) |
DELIVERED AT: | Toowoomba |
HEARING DATE: | 26 November 2008 |
JUDGE: | Rafter SC DCJ |
ORDERS: |
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CATCHWORDS: | MAGISTRATES – APPEALS FROM MAGISTRATES – QUEENSLAND – APPEAL – OTHER CASES – where the appellant was convicted upon entering pleas of guilty to one charge of stealing, five charges of fraud and one charge of entering premises by breaking and committing an indictable offence – where the learned magistrate imposed a sentence of 18 months imprisonment – where the appellants parole release date was fixed on the last date of the sentence – whether the learned magistrate erred in not imposing an appropriate sentence in respect of each charge – whether the sentence imposed was manifestly excessive CRIMINAL LAW – APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – PARTICULAR CASES – where the learned magistrate failed to give reasons for fixing the appellant’s parole release date at the end of the 18 month term of imprisonment Penalties and Sentences Act 1992 (Qld), s 160B(3), s 160G(1) Corrective Services Act 1996 (Qld), s 199(1) R v Kitson [2008] QCA 86, followed R v Parker [2007] QCA 22, cited |
COUNSEL: | R Davies for the appellant MI Petcopoulos for the respondent |
SOLICITORS: | David Burns Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent |
- [1]HIS HONOUR: On the 27th of February 2008 in the Magistrates Court at Toowoomba, the appellant pleaded guilty to one charge of stealing, five charges of fraud and one charge of entering premises by breaking and stealing. He was sentenced to 18 months' imprisonment with a parole release date at the end of the sentence on 13 August 2009. A period of 14 days' pre-sentence custody from 13 February 2008 to the date of sentence was declared as imprisonment already served under the sentence.
- [2]The appellant was born on the 11th of January 1978. He was 30 years old when sentenced. The appellant's criminal history includes offences of stealing, fraud, possession of tainted property, unlawful possession of a motor vehicle and unlawful use of a motor vehicle. The most recent convictions were recorded on the 15th of March 2005 in the Toowoomba Magistrates Court. On that date, the appellant was convicted of stealing, fraud, unlawful use of a motor vehicle and bringing stolen goods into Queensland. He was sentenced to six months' imprisonment for the offences of stealing, fraud and unlawful use of a motor vehicle and 12 months' imprisonment in respect of the offence of bringing stolen goods into Queensland.
- [3]The most serious offence to which the appellant pleaded guilty on the 27th of February 2008 involved stealing $15,500. The circumstances of that offence were that the appellant had been staying at the complainant's home. He stole $15,500 from a cash tin belonging to the complainant. He later attended at the Hendra Police Station and made full admissions.
- [4]The offence of entering premises involved the appellant entering an enclosed area of a motel at which he was staying and stealing cash and liquor. The five charges of fraud related to the appellant's failure to pay for accommodation and meals.
- [5]The total loss was $19,232.51.
- [6]The Magistrate took into account the appellant's timely plea of guilty and remorse. The Magistrate considered that the aggravating factors were the seriousness of the offences and the appellant's history of dishonesty.
- [7]The appellant's timely pleas of guilty entitled him to consideration for release after serving one-third of the sentence imposed. As the sentence was less than three years' imprisonment, the parole release date may have been any date within the sentence: see section 160B(3), section 160G(1), Penalties and Sentences Act 1992; section 199(1), Corrective Services Act 2006.
- [8]The Magistrate was required to give reasons for making such an unusual order as fixing the parole release date on the last date of sentence: R v Kitson [2008] QCA 86 at paragraph 17, per Fraser JA. The Magistrate failed to give reasons for that order.
- [9]The appellant has now served approximately nine months' imprisonment. That is about half of the sentence imposed. The sentence of 18 months' imprisonment was appropriate for the more serious offences of stealing and entering premises, and it is not suggested to be manifestly excessive. However, a sentence of 18 months' imprisonment is excessive for the less serious offences of fraud. It must be remembered that it is necessary for a sentencing Court to impose an appropriate sentence in respect of each charge: see, for example, R v Parker [2007] QCA 22.
- [10]Ms Petcopoulos, for the respondent, concedes that the sentence is manifestly excessive. I have concluded that the head sentence of 18 months is appropriate for the offences of stealing and entering premises, but that the sentences for fraud should be reduced to six months' imprisonment. I propose to fix a parole release date today. Also, the pre-sentence custody declaration made by the Magistrate will remain. It is the intention of these orders that the sentences will be taken to have commenced on the date that they were imposed by the Magistrates Court, namely on the 27th of February 2008.
- [11]The orders are as follows: (1) appeal allowed; (2) set aside the sentences of 18 months' imprisonment for each charge of fraud; (3) in lieu thereof, the appellant is sentenced to six months' imprisonment for each charge of fraud; (4) confirm the sentences of 18 months' imprisonment in respect of the offences of stealing and entering premises; (5) set aside the order of the Magistrates Court fixing the appellant's parole release date at 13 August 2009; (6) in lieu thereof, the appellant's parole release date is fixed at today's date, namely 26 November 2008; (7) confirm the pre-sentence custody declaration of 14 days' imprisonment from 13 February 2008 to the date of sentence on 27 February 2008.
- [12]The effect of the orders made is that the appellant will be released on parole today. That means he is required to report to a Probation and Parole Office to obtain a copy of the Court-ordered parole order. The appellant must understand that if he fails to do that, he would be unlawfully at large and he can be arrested with or without warrant. Also, to be unlawfully at large without reasonable excuse is an offence punishable by imprisonment for a period of up to two years. The appellant will be on parole for the balance of the sentence of imprisonment. During that time, he will be under the supervision of the Chief Executive and will be obliged to carry out the lawful instructions of the Chief Executive. He will be required to report and receive visits as directed. He must notify the Chief Executive within 48 hours of any change of address or employment. Most importantly, he is not to commit an offence during the parole period.