DISTRICT COURT OF QUEENSLAND

1. [1]
   Dominik Skorka and Witold Skorka were both sentenced on 27 November 2009 to perform 240 hours of unpaid community service.  Dominik had pleaded guilty to one charge of stealing between 1 March 2008 and 31 March 2009 and one of possessing tainted property.  Witold had also pleaded guilty to one count of stealing between 1 August 2008 and 31 March 2009.  No convictions were recorded.  Orders for payment of restutition were also made.

2. [2]
   In both cases the Crown has appealed on the basis that the sentences were manifestly inadequate.

Background

3. [3]
   Dominik was born on 25 July 1987 and so was 20-21 years of age at the time of his offending, and 22 when sentenced.  He had been convicted of stealing in February 2005 but no conviction was recorded and he was discharged absolutely.  On 20 March 2007 he was convicted of possessing tainted property on 31 January 2007 and fined $600.  Again, no conviction was recorded.  I note that this matter involved possession at night of keys of the sort later used by him in respect of the commission of the subject charges. It might therefore be considered a closely related offence.

4. [4]
   His older brother, Witold, was born on 26 March 1979 and so was 29 when he committed the offences and 30 when sentenced.  He too had been convicted of possessing tainted property on 31 January 2007 and was also fined $600 with no conviction recorded.

5. [5]
   An agreed statement of facts was tendered at the sentence and formed the factual basis on which the appellants were sentenced.

6. [6]
   Essentially, the appellants used keys they had themselves “reverse-engineered” to open parking metres in the early hours of the morning and steal the contents. They used their girlfriends, and a school friend, on various occasions to act as lookouts. The money obtained on the occasion of each stealing was shared between the parties who had then participated on a generally equal basis. Because of his involvement from an earlier time, Dominik was said to have received $18,000 and Witold $12,000, although it is not possible to quantify the exact amounts. The “lookouts” received lesser sums, indicating that they were involved on fewer of the occasions when stealing took place.

7. [7]
   In addition, the Brisbane City Council, which owned the money that was stolen, spent unspecified further sums associated with surveillance and detection.

8. [8]
   The keys which the offenders used to open the parking metres were manufactured by the respondents. The learned magistrate accepted that this manufacture of the keys, which the Brisbane City Council considered were unique to them, indicated a degree of skill, preparation, planning and cooperation between the two respondents. In my view, this is undoubtedly so and is reinforced by their conviction of having similar keys in their possession in January 2007.

9. [9]
   In the course of her judgment the learned magistrate said at pages 1-3:

“It is said that these offences are not an aberration but were continued over a long period of time, which they were.  In my view, these offences are indeed an aberration from the ordinary and normal lives of the principal offenders because ordinarily both appear to have, in varying degrees and manner, conducted hard-working lives, particularly in the case of Dominik Skorka, however the offending was persistent and required, as I have said, a degree of preparation and skill.  It was sporadic in the sense that the offences were committed on random occasions, but it was hard to prove when the offences were committed.  But the period of time over which the offences were committed stands against the offenders.  In addition, in 2007 both offenders, Dominik and Witold Skorka, were convicted of possession of tainted property, notably keys.  Their interest in the key-making process can be tracked to that time and it was the key-making process that was essential in the performance of these offences.”

10. [10]
    Later, the learned magistrate also said:

“The offenders being primary offenders, in my view their penalty to be imposed on them is to be differentiated from their co-offenders, their girlfriends, who have been already dealt with on a plea of guilty and who were sentenced to a good behaviour bond, or released on entering into a good behaviour bond in one case and a good behaviour bond and community service in the other case.”

11. [11]
    She continued:

“In sentencing both offenders I have regard to the principles that a sentence of imprisonment should only be imposed as a last resort and a sentence which allows the offender to stay in the community is preferable.  The maximum penalty for these offences is three years.  In particular, the nature of these offences involving stealing from parking metres, visible on streets in the early hours of the morning with keys manufactured for that purpose.

This is a serious offence because of two factors; the manufacture of the keys, and the period of time each offender committed the offences.”

12. [12]
    While these two factors undoubtedly indicate the offences were serious, in my view the sum of money involved, in all over $30,000 shared between the two respondents and their assistants, also indicates that these were serious offences.

13. [13]
    In the appellants’ favour is the fact that, as the learned magistrate said, it was not an offence where any physical or emotional harm was done to any person. Likewise, too, the fact of their pleading guilty, at an early time, which was appropriately taken into account, and their agreement to pay restitution, are factors in their favour.

14. [14]
    It was said by the learned magistrate that these offences of dishonesty were “an aberration from [the respondents’] ordinary and normal lives”. I have some difficulty with accepting that view because of the sophistication and duration of their criminality – over 12 months in Dominik’s case, and eight months in Witold’s – and the fact of their both having earlier entered pleas of guilty to a related offence in early 2007. In Dominik’s case, there was also a relatively minor stealing offence in February 2005 when he was only 17. If the magistrate meant that this sustained criminality was an aberration from the way they presented at work and at home, then one could not quibble with it, but if she meant that the whole of this conduct was somehow inconsistent with the normal course of their life, then I do have significant disagreement. The duration of the offences, the degree of sophistication and the earlier related offence argue strongly against such a view and inclines one’s mind to the view that their engagement in criminal conduct was very much part of their lives over the lengthy period of the charges, no matter how they presented to others at home and at work.

15. [15]
    The magistrate said the appellants “have a lesser penalty because of [pleading guilty]”. She then said:

“In my view, imprisonment would not deter you from offending.  Taking into account your plea of guilty, taking into account those other matters, it seems to me that a sentence which allows you to remain in the community to make the restitution that you have said you would make and to reflect on your behaviour and change it is preferable.”

16. [16]
    She added:

“… a sentence of imprisonment in relation to both of you would be unnecessarily crushing of your abilities and your futures.”

17. [17]
    The learned magistrate also said she took into account the impact that recording a conviction would have on each appellant’s chances of finding employment and their economic and social wellbeing and, consequently, no conviction was recorded against either.

18. [18]
    She ordered also that Dominik pay a sum of $15,500 by way of restitution under s 35 of the Penalties and Sentences Act and that Witold pay a sum of $9,000.  It seems that the reason why he was ordered to pay $9,000 and not the $12,000 that he admitted he had stolen was because of his interest in a car which had been forfeited. His share was valued at about $3,000.

19. [19]
    Another party involved in the stealing, Fiona Reid, was sentenced on the basis that she received $600 for her involvement in the stealing. The learned magistrate said she essentially acted as a lookout, and also pleaded guilty. She was given a nine-month good behaviour bond subject to a recognizance in the sum of $300. It is clear her involvement was very much less than the respondents.

20. [20]
    Tea Stekozov was dealt with on the basis that she received a sum of about $2,200 and was involved in 13 counts of stealing with a circumstance of aggravation and one of receiving. Her criminality also extended over a period of about six months. She was sentenced to two years’ probation and 100 hours community service, and her half share in the vehicle that I earlier referred to was also forfeited. It might be said that her sentence, one of a lesser amount of community service together with 2 years probation, was at least as onerous as the sentences of the respondents, despite her significantly lesser involvement in the enterprise.

21. [21]
    Nelson Ball was sentenced on the basis that he received $4,000. He was given 180 hours community service. A large number of keys, barrels and machinery used in committing the offences had been found in his house. It seems however, that although the property was found at his house, it belonged to the respondents. Mr Ball had been persuaded to keep it at his house because Dominik and Witold had prior criminal convictions, as I have already noted. He had paid $4,000 in restitution. In circumstances where his involvement was significantly less, he received less money and it does not seem he had prior convictions nor had he been involved in the manufacturing of the keys in question, his sentence, being 75% of that imposed on the respondents, appears disproportionate.

22. [22]
    It seems clear to me that each of these co-offenders was considerably less culpable than the two respondents. Not only did they receive significantly less money reflecting their lesser involvement, but the idea and drive for the enterprise was provided by the two respondents, and the co-offenders acted principally as lookouts and to exchange coins for notes.

23. [23]
    The appeal by the Crown under s 222 of the Justices Act is made on the basis that the penalty was “inadequate”. The sentence involved the exercise of a judicial discretion.  Consistent with House v The King (1936) 55 CLR 429 it is necessary for the appellant to show error in the exercise of that discretion.  It is not enough if the appellant is only able to persuade me that I would, if sentencing anew, have taken a somewhat different course.  Furthermore, if the appeal is successful I should, consistent with authority,^[1] impose a substituted sentence towards the lower end of the range of available sentences.

24. [24]
    The maximum penalty for the offences, dealt with in the Magistrates Court as this was, is three years’ imprisonment.

25. [25]
    The appellant argues that:

1. The offending was not opportunistic and in fact required skill and industry applied to dishonest ends over a lengthy period of time.

2. The respondents were not deterred when caught with similar keys in early 2007.

3. Over the period of surveillance and CCTV recordings, sporadic but repeated theft was demonstrated and over this period the loss to the Brisbane City Council was said to be about $35,000.

4. The sentences imposed do not adequately reflect the considerations as contained in s 9 of the Penalties and Sentences Act and that an actual term of imprisonment is called for.

5. In such circumstances, it is difficult to describe the offending as “aberrant” or “an error of judgment” as the learned magistrate did. 

26. [26]
    I agree with that last submission as outlined in paragraph 14 above, subject to what the magistrate might have meant by the use of the term “aberrant”. If she meant only that the offending was very significantly different from the way they presented at home and work and also to their friends, that may be true but in my view largely irrelevant. If she used the term to indicate their behaviour was inconsistent with their normal pattern of live, I have disagreement for the reason I identified.

27. [27]
    Unfortunately, the submission of the Crown did not identify which considerations in the Penalties and Sentences Act were not adequately considered by the magistrate and, more importantly, did not identify any cases to support the proposition that a period of actual imprisonment was called for. Nevertheless the Crown it was submitted that the range of sentence was from two to three years imprisonment, with a parole release date set after about a third of the sentence, i.e. after 8 to 12 months of actual imprisonment.

28. [28]
    The respondent had sought to have the matter dealt with summarily by the Magistrates Court.  The DPP supported such a course.  In the submission by the solicitors for the respondents, the respondents relied on the fact that other persons charged with what was said in the submission to be “the same conduct at the same time” as the respondents, was a relevant consideration.  In my view, the agreed statement of facts indicates that the behaviour of the co-accused could not sensibly be described as “the same conduct” as that of the respondents, who were, as I have said, clearly the primary motivators in the offending.

29. [29]
    It is apparent from the respondents’ submissions that:

1. (i)
   When arrested, Witold Skorka declined to be interview but his girlfriend Tea Stekozov provided a statement and participated in a record-of-interview.

2. (ii)
   Dominik Skorka made admissions but would not discuss the quantum of the theft or the identity of those who participated in it.  His girlfriend, Fiona Reid, participated in a record-of-interview and provided a statement.  Nelson Ball also participated in a record-of-interview.

3. (iii)
   Dominik’s admission to police of thefts prior to the period of surveillance however enabled him to be charged with criminality over a longer period of time than would otherwise have been possible.

4. (iv)
   Keys, barrels and locks matched to particular Brisbane City Council parking metre runs were located at Ball’s house but, as I have said, in fact belonged to the respondents and were used by them to manufacture keys to access the Brisbane City Council parking metres to enable them to steal money.

5. (v)
   Tea Stekozov indicated that she had acted as a lookout while her boyfriend Witold stole money from the parking metres over a seven to eight month period.  She also went with him and others to banks to exchange coins for notes.  Fiona Reid’s involvement was more limited, she assisted her boyfriend Dominik by being a lookout on a couple of occasions.

30. [30]
    It is in my view clear from these matters, and was the appellant’s allegation supported by covert video evidence, that the respondents were the primary offenders. They both manufactured the necessary keys and had the primary role in deciding when and where to steal from the metres. The keys were at Ball’s house because the respondents were conscious of their earlier involvement with police and Ball was persuaded to store the property at his house.

31. [31]
    The respondent’s counsel submitted that they ceased their criminality of their own accord by the time of their apprehension on 31 March 2009.  No basis for such an assertion was in my view established. It was said to arise from or depend on the fact that surveillance after 16 March did to reveal any criminal activity.  I note, however, that the thefts were sporadic over the period of the charge and there were sometimes periods of some length between such acts of criminality.  There seems nothing positive – such as the permanent disposal of the keys, barrels and other equipment – which would allow me to conclude that they had in fact ceased such activity other than on a temporary basis.

32. [32]
    Although it was submitted on behalf of the respondents before the learned magistrate that to describe the respondents as “as the prime movers” in the criminal activity was a tactic of the DPP “using classic prosecution vernacular to excite some emotion”, I think any view of the agreed facts leads inevitably to the conclusion that they were in fact the primary motivating force and major offenders. In my view, their prior convictions in January 2007, their manufacture of the keys, their persuading Ball to keep the equipment at his home, their primary responsibility in choosing when and where to steal from the metres and their receipt of greater sums of money and, in Dominik’s case, his engagement in such activities from an earlier time, all support such a view.

33. [33]
    The learned magistrate accepted that Dominik had been penalised by loss of his employment. His counsel’s written submission to the magistrate (para 13) shows that from August 2009 he worked as a permanent casual sales assistant at a lighting company and worked there until he was suspended as a result of publicity associated with these charges in November 2009.  I note that in paragraph 14 of the submission, it is said that he had found new employment and was to start on a casual basis commencing on 30 November 2009.  There is no evidence as to any disparity in earnings between these two jobs.  In the circumstances, if he was penalised in the way alleged by loss of employment, as I accept occurred, it seems to have been a relatively minor penalty.

34. [34]
    Although references were before the court attesting to the belief of the writers that the respondents’ offending was out of character and appeared to them to be an aberration, it does not appear that they were necessarily aware of Dominik’s previous convictions, or the previous conviction for Witold. In any case, I do not accept it could properly be so described in the sense that an act of criminal impetuosity arising out of an unplanned opportunistic offence could be so described.

35. [35]
    In Dominik’s favour are:

1. His early guilty plea.

2. His admissions to police, including admissions of earlier offending they would not otherwise have been able to prove.

3. His relative youth and the general principle that, especially with the young, prison is a “last resort”, a matter given statutory force in s 9 of the Penalties and Sentences Act. 

4. The fact that no violence or damage to persons or property was involved.

5. His general background, with a good work history and stated intention to study in the future.

36. [36]
    It is said that a conviction may impair his employment prospects. In particular, it said that he hopes in the future to study architecture and that he has currently commenced a course at Southbank Institute of TAFE in a Diploma of Building Design.

37. [37]
    The submissions and considerations in support of Witold were similar. Although he was older, it seems that his younger brother had already commenced the stealing prior to his involvement. The younger brother also had a further minor conviction in 2005. The sum of money derived from offending in Witold’s case was less. It said that he had an ambition to enlist in the navy, which could be impaired by a conviction.

38. [38]
    The lack of comparative sentences provided by the Crown was a matter of some concern to me. I have been unable to find any directly comparable Court of Appeal or other decisions. I do note that the theft in this case involves public money, which is a matter of significance (see, for example, the judgment of the Chief Justice in R v Gadaloff [1998] QCA 458 at p 3.8).  In my view, the fact of being public money allows one to draw comparisons with cases involved in respect of social security and other fraud upon government instrumentalities.

39. [39]
    Offences of social security fraud present particular difficulties, because of the prevalence of the offence, the fact the system depends to a significant extent on the honesty of benefit recipients and the need for deterrence. Even recognising these matters however I believe such cases have significant similarities to the subject defending principally because they involve receipt of public money over a lengthy period of time. The detection of the subject defending was also necessarily difficult since it involved theft at night from an inanimate parking meter which is not normally the subject of surveillance.

40. [40]
    In Lammon v Emery [2010] QDC 123, Robin QC DCJ allowed on appeal against a sentence that the defendant, then in his mid thirties, serve a period of six months’ imprisonment to be released after one month.  The offending in that case involved the defendant unlawfully receiving $21,994.26 in social security payments over 89 weeks.  The offending seemed relatively unsophisticated.  The defendant had been originally entitled to benefits because of poor health but continued to receive them after his return to work because he did not advise the Commonwealth of that fact.  There was a prior offence of dishonesty but this was long distant and the Magistrate said he placed no weight on it.  Robin QC DCJ ordered a period of 1 year’s imprisonment to be served by way of an intensive correction order.

41. [41]
    In his sentencing remarks, Robin QC DCJ referred to a case of Luong v Oliver D31 of 2001, Beenleigh, 8/10/2004 in which Rackemann DCJ dealt with a case of fraudulent receipt of $16,702.96 of social security benefits over a two year period.  An appeal by the defendant against an eight month sentence with a parole release date of six weeks was dismissed.

42. [42]
    Robin QC DCJ also considered the case of Groundwater v Arthur, Townsville, Appeal 21 of 2008, 7/3/08 per O'Brien DCJ.  That case involved an offender in his mid fifties sentenced to two offences of social security fraud involving some $30,000.00.  The magistrate had ordered a period of imprisonment of 12 months with a recognisance release order after four months conditional on his being of good behaviour for three years.  His Honour said that no appellable error was demonstrated. 

43. [43]
    Each of these cases suggests that in respect of social security fraud involving moderate sums of money, periods of imprisonment, including quite probable actual imprisonment, can be expected.

44. [44]
    In The Queen v Holdsworth (1993) QCA 242, Pincus JA and Thomas J (as he then was) in a joint judgment, considered an appeal by the Commonwealth DPP that a sentence was manifestly inadequate.  The respondent had been sentenced to defrauding the Health Insurance Commission over a period of nine months.  The criminality involved only some $5,680.45.  The maximum penalty under the Crimes Act was a fine of 1,000 penalty units or imprisonment for 10 years or both.  I note that this was more than the maximum of three years for the subject offence, when it is dealt with by a magistrate, or five years if dealt with in the District Court.

45. [45]
    The respondent in that case had fraudulently obtained receipts from medical consultations and later prepared his own receipts, on a home computer, incorporating a doctor’s name and provider number. It can in my view be seen that the sophistication involved in this scheme involved some similarities to the respondents’ own scheme of manufacturing the keys to allow access to the parking meters. In my view the degree of sophistication in the subject offences was perhaps greater than in the case of The Queen v Holdsworth (supra).

46. [46]
    The defendant in that case was a 40 year old married man with three children.

47. [47]
    At trial he was given two years’ probation, ordered to pay $5,685.25 to the Health Insurance Commission and released without passing sentence upon him giving security by recognisance in the sum of $2,000.00 conditioned that he be of good behaviour for five years.

48. [48]
    Their Honours described the offending as a “sustained and serious case of fraud”. He was co-operative when apprehended, making full admissions. This motivation for his conduct appears to have been his inability to find employment, dependency as a result, on social security and the need to support his family.

49. [49]
    In the subject case it is not apparent to me that the respondents had any similar issues of familial dependency or shortness of money on which to live.

50. [50]
    In their joint judgment their Honours said;

“The comparable sentences to which reference was made before the learned sentencing judge and before this court suggest that a sentence of nine months to twelve months imprisonment is to be expected in cases of sustained fraud where the total amount obtained is in the general range of $5,000.00 to $8,000.00.  There may of course be exceptions as each case has to be judged on its own circumstances.”

51. [51]
    Later in the judgment they continued;

“It would be surprising if defrauding the Commonwealth of significant sums of money by criminal activity could be regarded as capable of deterrence by anything less than a general expectation of custodial punishment if the offender is caught.”

52. [52]
    In my view similar comments might be made in respect of the respondents’ conduct in this case. Their Honours then said in respect of the sentence under appeal;

“The sentence was inadequate in the circumstances.  I have no doubt that if the matter were now at first instance a sentence containing an actual custodial component ought to be imposed.  Such a sentence would not be less than the substituted sentence suggested by counsel for the appellant, namely 12 months’ imprisonment, with release after three months.”

53. [53]
    Their Honours then considered the fact that the matter before them was a Crown appeal against sentence. Their Honours said;

“There is a degree of oppression in all Crown appeals against sentence in that they subject the offender to an additional period of anxiety and an additional period of limbo during which he is uncertain of his future and may make arrangements which will be upset by a different sentence.  Such appeals however are the only form of correction in the community’s favour when the original sentencing discretion miscarries, and inconsistency may prevail unless errors are corrected.”

54. [54]
    In such circumstances their Honours allowed the appeal. The original sentence was set aside and in its place it was ordered that there be a sentence of 12 months’ imprisonment with an order that the respondent be released on his giving security by recognisance that he be of good behaviour for two years after he had served three months. A reparation order in the sum of $5,685.45 payment to the Health Insurance Commission was also made.

55. [55]
    In this case, the offending in my view required the learned Magistrate to impose a sentence of imprisonment, including a term of actual imprisonment. I am of the view that a sentence in a range of about 9 – 15 months’ imprisonment in each case would have been appropriate. I consider a parole release date at about one third of those periods would have been appropriate.

56. [56]
    The respondents have, however, already served 240 hours of community service, the maximum amount of community service that can be awarded.  In R v Hayes; ex parte Attorney-General [1999] QCA 443 the respondent in an appeal against the imposition of 240 hours community service for an offence of unlawful wounding, had in fact performed 58 hours of community service at the time of the appeal.  At paragraph 15 of their joint judgment, Davies JA and Jones J said:

“The question is whether, in the circumstances already outlined, the respondent, having been given a sentence of 240 hours community service, should now, on an Attorney’s appeal, be ordered to undergo a short period of imprisonment for, as will appear from the authorities, it would not be appropriate, on any view, to sentence him to more than 12-18 months’ imprisonment.”

57. [57]
    In the end, their Honours determined that the sentence imposed below was manifestly inadequate but determined that a wholly suspended term of imprisonment of 18 months should be imposed.  I might add that in my view the performance of 240 hours community service, while significant, is not comparable in any real way to serving a period if imprisonment.  For a start, it is only the equivalent of seven weeks of full-time actual employment.

58. [58]
    In the circumstances of this case, whilst I find the learned Magistrate to have been in error in ordering the sentences she did, I am persuaded:

3. (1)
   By the fact this is a Crown appeal, and a sentence towards the lower end of the range ought be imposed; and

3. (2)
   By the fact of their have already performed their Community Service obligation,

that I should allow the appeal and order that each respondent be sentenced to 9 months imprisonment, wholly suspended with an operational period of 3 years.

59. [59]
    Because of the provisions of s 143 of the Penalties and Sentences Act it is in circumstances where the respondents have been sentenced to a term of imprisonment of 9 months, wholly suspended, necessary that convictions be recorded. Even if the law did not so provide, in my view it would be appropriate to record convictions in the circumstances of this case.

60. [60]
    S 12 of the Penalties and Sentences Act sets out the relevant matters to be considered in determining whether to record a conviction. The section was considered by the Court of Appeal in R v Sanders 2007 QCA 165. In my view even bearing in mind the relative youth of Dominik, and the expressed hope of each to undertake further study, the circumstances of the offending involving a considered and sophisticated plan over a considerable period, and their prior offending – which also involved an order that no conviction be recorded and this also in 2005 in Dominik’s case) – dictate that a conviction ought be recorded.

61. [61]
    I therefore order that the appeals be allowed and that the respondents, Dominik Skorka and Witold Skorka, be sentenced to a period of 9 months’ imprisonment wholly suspended, with an operational period of 3 years.

62. [62]
    In each case I order that convictions be recorded. I also order that the orders for restitution remain.