Moss v Queensland Police Service
[2011] QDC 309
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- Moss v Queensland Police Service[2011] QDC 309
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Moss v Queensland Police Service[2011] QDC 309
Moss v Queensland Police Service[2011] QDC 309
DISTRICT COURT OF QUEENSLAND
CITATION: | Moss v Queensland Police Service [2011] QDC 309 |
PARTIES: | Daniel Lawrence MOSS (Applicant/Appellant) V QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | No 29 of 2011 |
DIVISION: | Appellate |
PROCEEDING: | Application for extension (sentence) Appeal against sentence |
ORIGINATING COURT: | Bundaberg Magistrates Court |
DELIVERED ON: | 18 November 2011 |
DELIVERED AT: | Bundaberg |
HEARING DATE: | 15 November 2011 |
JUDGE: | Irwin DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the appellant delayed for seven days after the expiry of the time for filing the notice of appeal – where the explanation for the delay was that he had only received legal advice regarding the appeal on that date – where the respondent relied on the additional failure to file an outline of submissions within the prescribed time – where it was concluded the appeal was viable – where it was also concluded that the delay in instituting the appeal was short and adequately explained – where it was considered to be in the interests of the justice to grant the extension of time for filing the notice of appeal. CRIMINAL – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty to one count each of entering premises and commit an indictable offence and unauthorised dealing with shop goods – where the appellant was sentenced to 18 months imprisonment, suspended after serving six months, for an operational period of four years for the count of entering premises and commit an indictable offence and convicted but not further punished in relation to the other count – where the appellant was 39 years, a chronic alcoholic and a recovering heroin addict – where he entered a store with intention to steal jewellery – where a previous break up of a relationship with a woman may have accounted for this – where he was off his medication at the time – where he stole $17,740 worth of jewellery – where two days later he voluntarily attended a police station and made a full and frank confession – where he returned $13,134 worth of jewellery – where he directed police to where he thought he had left the balance of the jewellery, but it was not there – where he did not have the capacity to pay the restitution outstanding – where he had not committed an offence of a like nature for 25 years and had not committed an offence of dishonesty for 20 years – where he had never previously been sentenced to actual imprisonment – where he had served 131 days of the sentence – whether the sentence was manifestly excessive. Justices Act 1886 (Qld), s 222 (2) (c) Penalties and Sentences Act 1992 (Qld), s 9 (2) (e) AB v R (1999) 198 CLR 111; 165 ALR 298; [1999] HCA 46, considered R v Alexander [2004] QCA 11, considered R v Ferguson [1995] QCA 554, considered R v Melano; ex parte Attorney-General [1995] 2 Qd R 186, applied R v Tait [1999] 2 Qd R 667, applied R v Schultz [1997] QCA 169, considered. |
COUNSEL: | E. Mac Giolla Ri for the applicant/appellant D.M Palmer for the respondent |
SOLICITORS: | Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent |
HIS HONOUR: On 8 July 2011, the appellant was convicted on his pleas of guilty to one count each of entering premises and commit an indictable offence and unauthorised dealing with shop goods. For the former offence, he was sentenced to 18 months imprisonment, suspended after serving six months, for an operational period of four years. He was convicted and not further punished in relation to the other offence.
On 12 August 2011, he applied for an extension for filing a notice of appeal in relation to the sentence for the former offence, and also filed his notice of appeal. Each document was under the hand of a legal officer of Legal Aid Queensland. The ground of appeal is the sentence is excessive in all the circumstances.
In determining an application for extension of time, the Court considers the length of the delay (it being easier to excuse a short rather than a long delay), any explanation for the delay and whether it is in the interests of justice to grant the extension (which, if feasible, may involve some assessment of whether the appeal is viable): R v Tait [1999] 2 QdR 667 at [5]). Another factor may be whether there has been any prejudice to the respondent, but in a criminal appeal this is often not a live issue.
The appellant delayed in applying for seven days after the expiry of the time for filing the notice. His explanation for the delay is that he only received legal advice regarding the appeal on 12 August 2011. I note that he was represented by a duty lawyer and not his present legal representative when he pleaded guilty and was sentenced.
While the respondent accepts that the delay in initiating the appeal is short, it relies on the additional failure to file the outline within the prescribed time. Despite the transcript being available since 28 August 2011, this was filed on 10 October 2011. It is also submitted that the appeal does not have merit as the sentence imposed was not manifestly excessive.
However, the delay in filing the outline does not detract from the fact that the delay in initiating the appeal is short. This is decisive. The appellant should not be disadvantaged by any delay in filing an outline of appeal for which his legal representatives are responsible and which, if I allow the appeal, may, in fact, prejudice him by resulting in his serving a greater time in actual custody. I therefore consider whether the appeal is viable.
The circumstances of the offence are that the appellant entered a jewellery store in Maryborough and asked to view a selection of engagement rings. The salesperson placed a card of 15 rings on the counter. The appellant grabbed the card of rings and decamped from the store. The value of the jewellery stolen was $17,740.
The police prosecutor said that a description was given. I take this to be a reference to a description of the appellant. It was not made clear whether this was sufficient to identify the appellant who two days later voluntarily attended the police station with a local pastor and confessed to the offence. He also said he wished to return the property he had stolen.
He participated in an interview with the police in which he said that he was a chronic alcoholic who had entered the store with the intention to steal the jewellery. He returned $13,134 worth of jewellery, leaving $4,606 outstanding. His duty lawyer said that he directed the police to where he thought he had left the balance of the jewellery but the rings were not there when the police attended.
The appellant was 39 years of age at the time of the offending and sentence. The prosecutor described his criminal history as follows: "The defendant has history in Northern Territory, which is unremarkable to this hearing. He has history in South Australia, which I note are for unlike offences and the majority of which are for substance abuse and also they are quite historic, going back to the early nineties. Regards to Queensland history, the defendant only has one matter, a simple offence of possession of a knife."
His criminal history, which was tendered, demonstrated offences of dishonesty committed as a child in 1986. These were building breaking and felony and fraudulent conversion. He also had been convicted of three offences of unlawful use of a motor vehicle. Two were as a child, in 1987, and one was in 1991, when he was sentenced to three months imprisonment, wholly suspended for 12 months.
In the same year he was convicted of common assault, for which he was sentenced to two years imprisonment, wholly suspended for 12 months, and 60 hours community service. He was also convicted of common assault in 1993.
Since that time, he had been convicted for offences involving drugs and traffic offences, including one of driving under the influence of liquor in 1994. His last offence, in South Australia, was driving whilst disqualified in 2001.
His next appearance was in 2005 in the Northern Territory for failing to leave licensed premises. His only other appearance before his plea to the present offence was in Queensland in 2006, for possession of a knife in a public place and possessing/acquiring restricted items, for which he was fined. Therefore, his only offence of a similar nature was as a child 25 years before and his last offence of dishonesty was 20 years previously. He had not previously been sentenced to an actual term of imprisonment.
The prosecutor submitted that while a term of imprisonment would be an option, probation may be useful in the circumstances. The acting Magistrate's immediate response was that $17,000 is the custodial sentence. He then went on to tell the prosecutor that a custodial sentence was in range, saying that the authorities indicate stealing about $17,000 with no previous convictions is two years with at least six months imprisonment to be served. The matter was then stood down to allow him to confer with the duty lawyer.
The duty lawyer referred to longstanding substance abuse issues and described him as a recovering heroin addict who also had a serious problem with alcohol. This is consistent with his criminal history. I note that the appellant also told the police when he was interviewed about the other offence that he was a chronic alcoholic.
The duty lawyer said that he had been in a relationship with a woman with whom he had broken up. It was said this may account for his idea of looking at the engagement rings. It appears to have been in the context of this break up that he came to Maryborough where the offence occurred. He had also gone off his medication at about this time. This was medication that he had been on for a year.
Particular reliance was placed on his assistance in the administration of justice, with his handing himself in, and the lack of like offending in excess of 20 years. It was said he was doing some community work. In connection with this, reference was made to his being aligned with a church group in Brisbane and handing out the Big Issue newspaper.
It was conceded that imprisonment was within range given the amount of goods which were taken, but given the significant amount returned, an immediate parole release was sought. The acting Magistrate's response to this submission was that it would be against all Court of Appeal authorities that he had read. The appellant did not have the capacity to pay the restitution outstanding.
In sentencing the appellant, the acting Magistrate took into account his plea of guilty, his age, that he was a recovering heroin addict, he was in a relationship, he was off his medication, and this probably gave an insight in relation to why he committed the offence and he also took into account that the appellant had surrendered to the police. The acting Magistrate also noted that $4,606 was sought as compensation for the outstanding amount.
His Honour also said that he took the duty lawyer's submissions into account. He said with reference to the decision in Schultz [1997] QCA 169 that the amount of property in itself, being over $17,000, justified imprisonment. As the acting Magistrate said, in that case $14,000 was involved. The appellant there was sentenced to two years imprisonment, suspended after six months. Having reviewed the authorities, the acting Magistrate sentenced the appellant in this case to the penalty which is the subject of the application and the appeal.
The appellant's contentions are that the acting Magistrate considered that the value of the property stolen from the jewellery store was determinative of the sentence. It is submitted that considering the value of the property stolen as determinative of the sentence was an error in principle. Reference is made to R v Ferguson [1995] QCA 554 at page 5. It is submitted that in the result the acting Magistrate failed to properly take account of other matters in mitigation in favour of the appellant and, in any event, the sentence is excessive.
It is contended that, in formulating the sentence, his Honour gave no or insufficient weight to matters in mitigation which include the appellant's lack of relevant or recent criminal history at the time of offending, the fact that most of the items stolen were voluntarily returned by the appellant, the appellant's voluntary cooperation with police and the administration of justice, his early plea of guilty, his genuine remorse, and personal circumstances.
It was submitted in the written outline that the appellant be admitted to a period of probation and/or community service or any sentence of imprisonment be not more than 12 months in duration and suspended forthwith, operational for a period of 18 months. In argument before me, Mr Mac Giolla Ri, on the appellant's behalf, conceded that the real issue was the amount of actual time in custody that the appellant should be required to serve and that having served 131 days, the sentence should be set aside and the period of 18 months imprisonment be suspended forthwith.
The decision relied upon to support the proposition that the acting Magistrate erred in principle, in fettering his sentencing discretion by considering the value of the property stolen was determinative of the sentence is, as I have said, the case of Ferguson, where the Court of Appeal said, "It is not possible for Courts dealing with misappropriation cases to treat the amount involved as determinative of the sentence."
The respondent also makes reference to the further statement by the Court immediately following this, that, "Because other circumstances are likely to require consideration, prominent among them being the offender's criminal record, the Court would also have to consider other matters such as the age of the offender, whether there is a plea of guilty, and whether the offender was motivated by sheer greed or by some less reprehensible factor."
It is submitted by the respondent that it is clear in this case that the acting Magistrate sentenced the appellant not only in relation to the amount involved but also in relation to the other circumstances to which he referred in his sentencing remarks. Reference was also made by the respondent to R v Alexander [2004] QCA 11 at [24] where Williams JA stated: "On some occasions the critical factor has been the amount of money lost by victims of the fraud. On other occasions the decisive factor has been the persistent and systematic offending. One cannot say that either of those factors is generally more significant than the other. Each case has to be considered in light of its own peculiar facts; all one can say is that the amount of money lost and the regularity of the offending will always be relevant considerations."
I consider these cases support the proposition that the amount of money lost will always be a relevant consideration but the weight to be given to this will depend on the particular circumstances of each case. I note that by virtue of section 9(2)(e) of the Penalties and Sentences Act 1992, in sentencing an offender, the Court must have regard to any loss caused by the offence.
The argument for the respondent is that the acting Magistrate correctly identified the amount of loss as being a relevant factor in sentencing and it is not the case that he held only that factor to be the determinative factor at sentence and he had regard to the relevant mitigating factors to which reference has been made.
It is submitted that the acting Magistrate also took into account comparable decisions from the Court of Appeal. In particular it is said that it was taken into account that the appellant surrendered himself after the offence. It is recognised that in AB v The Queen [1999] HCA 46 at [113], Hayne J stated: "An offender who confesses to crime is generally to be treated more leniently than the offender who does not." However, it is submitted the offence for which the appellant was sentenced was not an unknown crime and it is therefore not a case which warrants special leniency. On the other hand, it is unclear whether the description of the offender was such that the appellant would have been identified and apprehended if he had not surrendered himself. It is submitted that the appellant has failed to demonstrate
that the acting Magistrate failed to give proper consideration to the mitigating circumstances. The respondent makes a comparison with Schultz, where there was a plea of guilty to one count each of stealing and wilful damage.
I have already referred to the sentence, where as in the present case, the operational period was four years. As mentioned, the amount involved was $14,000. The appellant was 50 years of age and did not have a criminal history. He made full admissions when spoken to by the police.
It is submitted that it is clear from reliance on that decision that his Honour did not consider the value of the goods to be determinative of the sentence, as the value in the present case is higher, however the sentence imposed was lower.
Reference was also made by the respondent to the facts and sentence in R v Ferguson. In that matter a service station employee stole approximately $14,000 over a period of approximately eight months and was sentenced to a term of two years imprisonment, suspended after three months for a period of four years. In that matter the appellant was 24 years of age, had no previous convictions, entered a plea of guilty, and had taken the money for his own purposes and also so that he could help his mother pay a debt incurred by his father.
This appeal is brought under section 222(2)(c) of the Justices Act 1886, which limits the appeal to manifest excessiveness of sentence. It follows from House v The King [1936] 55 CLR 499 at 504 that before an appellate Court will interfere with the exercise of a sentencing discretion, the appellant must demonstrate that the judicial officer acted upon a wrong principle, allowed extraneous or irrelevant material to guide or affect him, mistook the facts, or did not take into account some material consideration.
In R v Melano; ex parte Attorney-General [1995] 2 QdR 186 at 189, the Court of Appeal held: "Unless the sentencing Judge had erred in principle, either because an error is discernible or demonstrated by a manifest inadequacy or excessiveness, the sentence he or she has imposed will be proper."
In the present case it is arguable that his Honour's observations, to which reference has been made, that the value of the property, being over $17,000, justified a custodial sentence, indicates that he regarded this as being itself determinative of sentence without reference to the particular facts of the case. It is arguable that despite the reference to other circumstances, this is what was determinative of the exercise of his sentencing discretion.
However, it is not necessary to come to this conclusion in order to determine the present appeal because I consider that the failure by his Honour to refer expressly to the fact that most of the items stolen were voluntarily returned by the appellant to the extent of all but $4,606 out of $17,740 stolen, is a discernible error of principle. In my view, it was a significant mitigatory factor in the present case, that not only the appellant surrender to and make a full and frank confession to the police, but he returned this value of property. As a result, the initial loss was substantially reduced to this extent.
I have no reason to conclude that the appellant did not genuinely attempt to return all of the property but it was not all found in the place where he thought he had left it. I do not consider that the reference by the acting Magistrate in his sentencing remarks to $4,606 being the outstanding amount in relation to compensation, is to be interpreted as taking into account that the balance of the property has been returned in the sense that this was a mitigatory circumstance.
At all times the emphasis was placed by his Honour on the initial loss rather than the significant amount by which this had been reduced by the appellant's own actions. This was indicative of genuine remorse which was also not expressly referred to by the acting Magistrate.
Further, the level of sentence is to be determined not only by a purely mathematical approach of comparing one penalty with another. Decisions such as that relied upon by the acting Magistrate decide no more than that a particular sentence was not manifestly excessive in the circumstances of that case, not that it is the only sentence available. No reference was made to the particular circumstances of the case of Schultz that was relied upon.
When regard is had to those circumstances, the case is distinguishable because, although the property stolen was of a lesser value, there were aggravating circumstances that he took advantage of the access to the place where he was employed as a cleaner to commit the offence and took precautions to conceal his activities from surveillance.
Further, the wilful damage charge involved restitution of almost $5,000 to reassemble the computer server the subject of the charges. Whereas in the present case, although the appellant entered the shop with the requisite intention, given his personal circumstances, he did not fall to be sentenced on the basis of the same degree of premeditation as Mr Schultz.
The appellant in Ferguson's case also committed his offence in circumstances where he was an employee of the victim. That also makes the case distinguishable from that of the present appellant.
In any event, had the acting Magistrate been seeking to reflect some difference in circumstances by imposing a lesser head sentence on the appellant of 18 months as opposed to two years, as in the case of Schultz, he set the same period of six months actually to be served. In Schultz this meant he was to be released at the 25 per cent mark of the sentence. If this was applied to the present appellant, this would set his release date as being after serving four and a-half months.
In these circumstances I conclude that not only is there a discernible error of principle, but also one which is demonstrated by manifest excessiveness of the sentence imposed when regard is had to the actual period of imprisonment required to be served. Therefore I conclude that the appeal is viable, and taking this together with the short and adequately explained delay in instituting the appeal itself, I consider it is in the interests of justice to grant the extension of time for filing the notice of appeal and proceed to exercise the sentencing discretion afresh.
The sentence of 18 months imprisonment is sufficient to reflect the need for general and specific deterrence. This is accepted for the purpose of this appeal by Mr Mac Giolla Ri, as I have indicated. However, I consider that a suspension of the sentence after four months would recognise the mitigatory factors in this case.
Those factors are, the appellant's early plea of guilty, his genuine remorse, his voluntary cooperation with the administration of justice by surrendering himself to the police, making a full and frank confession, and returning property to the value of $13,134, his lack of an offence of a like nature for 25 years and of an offence of dishonesty for 20 years, the fact that he has never previously been sentenced to actual imprisonment, and his personal circumstances.
As he has served slightly in excess of four months, in fact 131 days, I will make an order which will reflect this and enable his immediate release. I am advised by the prosecution that the most effective way to achieve this intention is by resentencing him to a term of imprisonment and immediately suspending it, taking into account the 131 days already served.
If I do so, having served 131 days, it would be unfair to the appellant that he is again sentenced to 18 months imprisonment, which would continue to hang over his head for the operational period. Accordingly, the final sentence which I impose should not be seen as that that I would have imposed if I was sentencing the appellant on the 8th of July 2011, as was the case with the acting Magistrate.
Accordingly, the order of the Court will be:
- Application for extension of time allowed;
- appeal against sentence allowed;
- the sentence imposed at first instance is set aside;
- the appellant is sentenced to 14 months imprisonment, to be suspended forthwith, with an operational period of 18 months. A conviction is recorded.
For completeness, to express that in the terms in which a suspended sentence would normally be imposed, I express the order as follows:
The defendant is convicted; the conviction is recorded; the offender is sentence to imprisonment for a term of 14 months.
Being satisfied that it is appropriate to do so in the circumstances, I order that the whole of the term of imprisonment be suspended forthwith and state that the operational period during which the offender must not commit another offence punishable by imprisonment if he is to avoid being dealt with under section 146 of the Penalties and Sentences Act 1992 for the suspended sentence, be a period of 18 months.
I state that the offender was held in presentence custody in relation to the proceedings for this offence and for no other reason on and from the 8th of July 2011 to and including the 16th of November 2011, which is the date on which I expected that he would be released from custody at the time that I made my order on 15 November 2011 allowing the appeal. This is a total of 131 days.
This is not declared as time already served under the sentence because I have taken it into account in imposing the sentence I have which involves reducing the term of imprisonment from 18 months to 14 months imprisonment.