Italiano v Honeywood[2011] QDC 329

[2011] QDC 329

DISTRICT COURT

CIVIL JURISDICTION

JUDGE McGILL SC

No 3187 of 2010

BRISBANE 

DATE 20/05/2011

ORDER

HIS HONOUR:  This is an appeal from the decision of a Magistrate in the Court in Brisbane who on the 3rd of November 2010 sentenced the appellant to six months' imprisonment on each of six counts of entering premises and stealing, to which he had pleaded guilty. The terms of imprisonment were ordered to be served concurrently and a parole release date of the 17th of November 2010 was fixed, that is, 14 days after the date of sentence, so that technically he had to serve 15 days of the six months.

There had, I assume, been no pre-sentence custody.

The offences, most of which were committed on the same day, involved a systematic process of stealing from supermarkets or similar stores a quantity of DVDs.

The appellant was one of three people involved and he was sentenced on the basis that he was not the ringleader. The matter proceeded on the basis that another offender, a Mr Lofthouse, had instigated the offending with a view to raising money to pay for a gambling debt, and that the appellant and the third offender were participating in order to assist him. The matter proceeded on the basis that the appellant was not to get anything out of the enterprise except perhaps that he had a trip from Sydney to Brisbane, since the appellant comes from Sydney, and indeed the three offenders came from Sydney and committed the offences in Brisbane.

The appellant had some criminal history but it was quite an old criminal history, it was in New South Wales, and the complicating feature is that it included matters dealt with in the New South Wales Childrens Court which, it appears to me, would not have been part of a criminal history had the matter been dealt with in Queensland. It is not clear that the Magistrate was alive to this consideration.

The only significant relevant offending by the appellant prior to this offending was in 1986, offences of stealing a motor vehicle and armed robbery with an offensive weapon. For the latter, he received 12 months' periodic detention, so it cannot have been a particularly serious example of robbery. There were no offences of dishonesty since then, though he has some other convictions for drug offences up to and including 1993. There were no convictions of any kind since 1993, so he had some criminal history with one significant entry, but it was quite old, at the time he was dealt with for these matters.

By way of contrast, the ringleader had, according to the information put before the Magistrate by the prosecutor, a serious criminal history and had served periods of imprisonment in Victoria and New South Wales for similar offending. The ringleader had been previously sentenced for 12 months' imprisonment on each of these counts. He was also sentenced for other offences, for one of which he received three months' cumulative, and the offences were suspended after a period of serving five months for a period of two years.

The other member of the trio had no criminal history. She had also been dealt with. She was placed on a recognisance of $1,000 to be of good behaviour for a period of 12 months and no conviction was recorded against her.

I should say that the Magistrate noted that all of the goods were recovered and no restitution was sought. She also noted that the appellant was married with children and was in full-time employment and seemed to have been settled in the community. Since this offending he had taken steps to address an alcohol problem by joining Alcoholics Anonymous, and a reference from that organisation was tendered together with other references which speak favourably of his involvement in the community.

The Magistrate referred to the criminal history and said then at page 3 of the reasons:  "I note that you took leave from your full-time employment to commit these offences, which is a circumstance of aggravation."  It was not a circumstance of aggravation in the technical sense but I suspect that what the Magistrate meant was that it was an aggravating circumstance, that is, it was a feature of the offending which tended to make it more serious than would otherwise have been the case.

It is difficult, however, to understand how taking leave from full-time employment was in itself an aggravating feature in that sense. It may be what the Magistrate had in mind was that the appellant had willingly taken part in an expedition for the purpose of systematic shoplifting which would have made it, say, a more serious offence than simply casual shoplifting, but if that was what the Magistrate meant it was certainly not clearly expressed.

Reference was made to the principle of parity but only in relation to the sentence imposed on the ringleader. The Magistrate accepted that it was appropriate to give a lesser sentence, bearing in mind that he was the mastermind of the enterprise. At that point she referred to the appellant having willingly participated in it.

There's no reference to considerations of parity in relation to the third member of the expedition.

The sentence in fact imposed on the appellant was half the head sentence imposed on the ringleader. There were, however, two distinguishing features between the offending of Mr Lofthouse and the offending of the appellant. One, which does seem to have been taken into account, was that Mr Lofthouse was the mastermind of the enterprise and that was a feature which justified his being dealt with more severely. The other distinguishing feature is that Mr Lofthouse had a much more significant and relevant criminal history - what was described as a "serious" criminal history - involving periods of imprisonment for similar offending.

Although the appellant was not in the same fortunate position as the third member of the trio, his position, it seems to me, was closer to hers rather than Mr Lofthouse, given the limited and quite old criminal history to which I have referred. It does not appear that the Magistrate was alive to the significance of that feature and it does not appear that considerations of parity were applied in relation to the other offender. In my view, a proper application of principles of parity would suggest that the appellant's position was closer to that of the other offender than to that of the mastermind, who had been sentenced to a term of imprisonment with some period actually to serve.

It seems to me that the Magistrate has not properly taken into account considerations of parity, and that is an error.

There was a further consideration that, although the prosecutor had submitted that a term of imprisonment would be in range, the prosecutor went on to refer to the appellant being placed on immediate parole or a wholly-suspended sentence. The prosecutor then went on to consider or refer to difficulties which might arise if a community-based order was imposed. In these circumstances, on the basis of the prosecution's submissions, the defence was entitled to address on the basis that the appellant was not faced with the prospect of actual imprisonment. Not surprisingly, then, the submissions in fact advanced seem to have been addressed to the choice within the range outlined by the prosecutor.

The Magistrate did not raise during the sentencing hearing the possibility of actual imprisonment being imposed. That, in my view, gives rise to considerations of natural justice, and was a further error of law, particularly bearing in mind that section 9(2) required the Magistrate to have regard to the principle that a sentence of imprisonment should only be imposed as a last resort. It is not at all clear that any regard was had to that principal, and that was a further error.

There is the further consideration that the Magistrate imposed a short period of imprisonment of only 15 days. The lack of utility in very short custody terms has been discussed by the Court of Appeal in, for example, R v Hamilton [2000] QCA 286, and R v Keevers [2004] QCA 207. There are, no doubt, examples of some situations where a short period of actual imprisonment is appropriate but it is difficult to see how a person who had no criminal history for a period of some 17 years and who was not the principal offender and who was engaging in a criminal activity from which he was to receive no benefit and who was 43 years of age and was married, in full-time employment and settled in society was someone for whom a short, sharp period of imprisonment was appropriate.

The question of whether there was any real utility in providing for such a short period of actual imprisonment also does not seem to have been considered. Although the Magistrate stated her view that it was appropriate that the appellant spend a short period of imprisonment, she did not state any reasons for that view. In my view, that was a further error of law.

In these circumstances, it is not necessary for me to go on and consider whether the sentence of imprisonment imposed was manifestly excessive. There were a number of specific errors committed by the sentencing Magistrate and it is appropriate to resentence the appellant.

In view of such criminal history as he had, and in view of the fact that a sentence of actual imprisonment was imposed on the mastermind of the enterprise, and bearing in mind that it was a planned expedition for the purpose of systematic shoplifting which he willingly participated in, though he was not sentenced on the basis that he had been involved in planning it, it does seem to me that a term of imprisonment was appropriate, but the appropriate course, in my view, was to impose the sentence originally suggested by the prosecutor, which was a term of imprisonment suspended immediately.

It was submitted on behalf of the appellant that an appropriate course was to sentence him to six months' imprisonment suspended forthwith, with an operational period of two years, and that I think is a reasonable course.

...

HIS HONOUR:  Well, in that case I vary the sentences imposed by setting aside the order fixing a parole release date and substituting an order that the sentences be suspended after the appellant has served one day imprisonment, and declare that one day, 3rd of November 2010, on which he was in custody solely in relation to these offences be imprisonment already served under the sentence, and I'll direct the Registrar to inform the Commission of that declaration.