Smith v Commissioner of Police
[2012] QDC 48
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- Smith v Commissioner of Police[2012] QDC 48
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Smith v Commissioner of Police[2012] QDC 48
Smith v Commissioner of Police[2012] QDC 48
DISTRICT COURT OF QUEENSLAND
CITATION: | Smith v Commissioner of Police [2012] QDC 48 |
PARTIES: | DARREN ROBERT SMITH (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | DC111/11 |
PROCEEDING: | Appeal against Sentence |
ORIGINATING COURT: | Magistrates Court, Southport |
DELIVERED ON: | 27 March 2012 |
DELIVERED AT: | Southport |
HEARING DATE: | 3 March 2011 |
JUDGE: | Newton DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where appellant pleaded guilty to property offences – where eligibility for parole fixed at mid-point of sentence – whether sentence was manifestly excessive. |
COUNSEL: | J B McNab for the Appellant M Mitchell (solicitor) for the Respondent |
SOLICITORS: | Legal Aid Queensland for the Appellant Office of the Director of Public Prosecutions for the Respondent |
- [1]The appellant was charged with the following offences:
One count of stealing at Aitkenvale on 27 July 2010;
One count of enter premises and steal at Townsville on 2 November 2010;
Two counts of stealing at Southport on 8 February 2011;
Failure to appear in accordance with undertaking on 23 November 2010; and
Receiving tainted property at Surfers Paradise on 9 February 2011.
- [2]The matters proceeded by way of a sentence hearing in the Southport Magistrates Court on 3 March 2011. The appellant was sentenced to three years imprisonment in respect of the enter premises and stealing count, and 12 months imprisonment for the other counts other than the failure to appear offence for which the appellant was convicted and not further punished. The sentences were to be served concurrently. A parole eligibility date was fixed at 3 September 2012, thereby requiring the appellant to serve half of the sentence before being eligible for parole.
- [3]The appellant appeals on the basis that by fixing a parole eligibility date at half of the three year sentence imposed the acting Magistrate erred and that the effective sentence imposed was thereby rendered manifestly excessive. It is conceded by the appellant that the head sentence of three years was within the permissible range in all the circumstances.
- [4]The facts relating to the offences may be summarised as follows:
On 27 July 2010 the appellant entered the Healthy Life Store at Aitkenvale and secreted two bottles of supplements in his shorts pocket before choosing a third item with the assistance of a sales clerk which he paid for. When interviewed by police on 31 July 2010 he accepted that he was the person in the CCTV footage but denied stealing the two bottles of supplements. The two bottles of supplements were valued at 179.90.
The defendant was subsequently issued with a notice to appear in relation to that matter and was granted bail on 16 September 2010. He was required to appear and surrender into custody at the Magistrates Court at Townsville on 29 November 2010. He did not attend don this date and a warrant was issued.
The appellant stole seven nine carat gold chains from a jewellery story in Townsville on 2 November 2010 when he entered the store and spoke to an attendant in the store about another item. The chains were left unattended and the appellant picked up the tray containing the gold chains and left the store. The appellant was identified following police inquiries including CCTV footage of the theft. The property stolen was valued at $30,000.
On 8 February 2011 the appellant attended the Gold Coast Hospital to receive treatment for a medical condition. Whilst at the Accident and Emergency Section of the hospital he stole an IPhone mobile phone from another patient who had fallen asleep and then attended a rehabilitation ward of the hospital where he was observed by a witness to remove a DVD player and associated cords from the bedside table before leaving the rehabilitation ward of the hospital and then the hospital. The mobile phone had a restitution value of $1,000 and the DVD player $385.
On 9 February 2011 police observed the appellant running through a park with a black computer bag over his shoulder. Police detained the appellant and a subsequent search of the back revealed a Hewlett Packard laptop computer that had been reported stolen.
Police formally interviewed the appellant on 9 February 2011 wherein he made admissions to stealing the jewellery, IPhone and DVD player. Police did not recover the property.
- [5]The appellant was born on 3 April 1973. He was aged 37 at the time of the offending and at sentence. He has an extensive criminal history in Queensland, a copy of which was tendered to the sentencing court. That history contains the following entries:
Cairns Magistrates Court 29 July 1991 – Possession Dangerous Drug on 27.07.91 (community service 70 hrs)
Cairns Magistrates Court 29 July 1991 – Possession Dangerous Drug on 27.07.91 (community service 60 hrs)
Cairns Magistrates Court 29 July 1991 – Supply Dangerous Drug to Another (community service 60 hrs)
Southport Magistrates Court 21 November 1996 – Receiving on 13.08.96 (fined $300, restitution $30)
Southport Magistrates Court 21 November 1996 – Stealing, 2 charges on 17.09.96 (fined $300)
Southport Magistrates Court 21 November 1996 – False Pretences on 13.08.96 (fined $300)
Southport District Court 11 December 1997 – Break and Enter Dwelling House with Intent, 7 charges between 19.09.96 & 11.06.97, dates unknown between 01.02.97 & 01.03.97 (imprisonment 3 years, wholly suspended for a period of 4 years, 2 years probation, concurrent)
Southport District Court 11 December 1997 – Stealing, 8 charges between 19.09.96 & 11.06.97, dates unknown between 01.01.97 & 01.05.97 (imprisonment 3 years, wholly suspended for a period of 4 years, 2 years probation, concurrent)
Southport District Court 11 December 1997 – False Pretences, 6 charges between 11.12.96 & 29.05.97 (imprisonment 3 years, wholly suspended for a period of 4 years, 2 years probation, concurrent)
Southport District Court 11 December 1997 – Receiving, date unknown between 01.01.97 & 08.03.97 (imprisonment 3 years, wholly suspended for a period of 4 years, 2 years probation, concurrent)
Southport District Court 11 December 1997 – Attempted False Pretences, 2 charges, dates unknown between 01.02.97 & 01.05.97, 12.06.97 (imprisonment 3 years, wholly suspended for a period of 4 years, 2 years probation, concurrent)
Southport Magistrates Court 6 August 1998 – False pretences on 11.06.97 (compensation $100, no other punishment)
Southport Magistrates Court 10 September 1998 – Breach Bail Act (Contempt) on 14.07.98 (fined $300)
Southport Magistrates Court 23 October 1998 – Vag Without Lawful Excuse Found In Any Dwelling House etc on 06.06.98 (fined $200, restitution $100)
Southport Magistrates Court 28 December 1998 – Breach Bail Undertaking on 26.11.98 (imprisonment 3 months, cumulative)
Southport Magistrates Court 6 April 1999 – Breach Bail Undertaking on 22.12.98 (imprisonment 2 months)
Southport District Court 20 July 1999 – Enter or in Dwelling House and Commit an Indictable Offence + Break on 04.09.98 (imprisonment 6 months)
Southport District Court 20 July 1999 – Fraud on 04.09.98 (imprisonment 6 months)
Southport Magistrates Court 12 September 2005 – Enter Premises and Commit Indictable Offence by Break on 13.09.04 (imprisonment 12 months, suspended, intensive drug rehabilitation order, community service 100 hours, restitution $8,280)
Southport Magistrates Court 12 September 2005 – Enter Premises and Commit Indictable Offence, 7 charges on/between 20.02.05 & 21.02.05, on/between 15.11.04 & 15.12.04, between 15.02.05 & 15.03.05 and on 25.02.05, 05.02.05 or 06.02.05, 21.03.05 (imprisonment 12 months, suspended, intensive drug rehabilitation order)
Southport Magistrates Court 12 September 2005 – Stealing, 2 charges on 11.03.05, between 11.03.05 & 14.03.05 (imprisonment 12 months, suspended, intensive drug rehabilitation order)
Southport Magistrates Court 12 September 2005 – Enter Premises with Intent, 2 charges on 12.03.05 or 13.03.05 and on/between 15.11.04 & 15.12.04 (imprisonment 12 months, suspended, intensive drug rehabilitation order)
Southport Magistrates Court 12 September 2005 – Without Lawful Excuse Found in Dwelling House or Yard on 15.03.05 (imprisonment 12 months, suspended, intensive drug rehabilitation order)
Southport Magistrates Court 12 September 2005 – Possess Tainted Property, 2 charges on 24.03.05 & 21.03.05 (imprisonment 6 months, suspended, intensive drug rehabilitation order)
Southport Magistrates Court 12 September 2005 – Possession of Implements Used In Relation To Particular Offences on 24.03.05 (imprisonment 6 months, suspended, intensive drug rehabilitation order)
Southport Magistrates Court 12 September 2005 – Possession By Night Instrument of House Breaking Prior Conviction of Crime Relating to Property on 21.03.05, Breach of Bail Condition on 28.07.05 (imprisonment 6 months, suspended, intensive drug rehabilitation order)
Southport Magistrates Court 15 February 2006 – Enter Premises and Commit Indictable Offence by Break between 14.05.05 and 15.05.05 (imprisonment 12 months, suspended, intensive drug rehabilitation order)
Southport Drug Court 27 February 2008 - Enter Premises and Commit Indictable Offence by Break on 12.04.07 (imprisonment 15 months, wholly suspended, intensive drug rehabilitation order)
Southport Drug Court 27 February 2008 - Enter Premises and Commit Indictable Offence between 05.04.07 & 07.04.07 (imprisonment 10 months, wholly suspended, intensive drug rehabilitation order)
Southport Drug Court 27 February 2008 - Receiving Stolen Property or Property Fraudulently Obtained 4 charges between 29.03.07 & 01.04.07 and on/between 16.10.07 & 18.10.07 (imprisonment 6 months, wholly suspended, intensive drug rehabilitation order, 40 hours community service, restitution $1,490.80)
Southport Drug Court 27 February 2008 - Attempted Fraud – Dishonestly Obtains Property From Another 2 charges on 16.10.07 (imprisonment 6 months, wholly suspended, intensive drug rehabilitation order, 40 hours community service)
Southport Drug Court 27 February 2008 - Fraud – Dishonestly Obtains Property From Another 3 charges on 16.10.07 (imprisonment 6 months, wholly suspended, intensive drug rehabilitation order, 40 hours community service)
Southport Drug Court 27 February 2008 – SOA Unlawful Possession of Suspected Stolen Property on 17.10.07 (imprisonment 6 months, wholly suspended, intensive drug rehabilitation order, 40 hours community service)
Southport Drug Court 23 March 2009 - Enter Premises and Commit Indictable Offence on 31.01.09 (imprisonment 3 months, cumulative, $250 restitution)
Southport Drug Court 23 March 2009 – 9 Possessing Dangerous Drugs on 17.02.09 (on each charge imprisonment 1 month, concurrent)
Southport Magistrates Court 8 July 2009 – Enter Premises and Commit Indictable Offence on 19.04.09 (imprisonment 2 years 6 months, concurrent, parole eligibility date 08.04.10)
Southport Magistrates Court 8 July 2009 – Stealing on 27.04.09 (imprisonment 18 months, concurrent, parole eligibility date 08.04.10)
Southport Magistrates Court 8 July 2009 – Stealing on 23.04.09 (imprisonment 9 months, concurrent, parole eligibility date 08.04.10)
Southport Magistrates Court 8 July 2009 – Stealing on 26.04.09 (imprisonment 9 months, concurrent, parole eligibility date 08.04.10)
Southport Magistrates Court 8 July 2009 – Possess Tainted Property on 27.04.09 (imprisonment 3 months, concurrent, parole eligibility date 08.04.10)
Townsville Magistrates Court 16 September 2010 – 9 Possessing Dangerous Drugs on 05.09.10 (fined $800)
- [6]It is apparent from this history that the offending was aggravated by the fact that it had been committed whilst the appellant was on parole for similar offending.
- [7]Before the Acting Magistrate the appellant, through his advocate, submitted that the offending occurred at a time when he was suffering from depression and that he was under the influence of medication prescribed by his general practitioner. Whilst he was unable to recall the stealing offences at the Gold Coast Hospital, he accepted the facts as put forward by the prosecutor.
- [8]It was submitted by the appellant that although a sentence of imprisonment was appropriate, it should be structured in such a way that the appellant be released on 8 January 2012. Alternatively, it was submitted that a sentence of 12 months actual imprisonment be imposed. Finally, the Acting Magistrate was requested to consider imposing a sentence of imprisonment to be suspended after the appellant had served 12 months with a lengthy operative period rather than imposing a term requiring a period on parole. The prosecution did not seek to make submissions on penalty.
- [9]Before this Court it was argued that the period of imprisonment actually to be served should have been ameliorated to reflect the appellant’s co-operation in the administration of justice, having regard to his admissions and his timely pleas of guilty.
- [10]In his sentencing remarks the Acting Magistrate stated that:
“What I need to determine now is whether you are going to receive a parole release date or your sentence is suspended. I’ve taken into account particularly your previous history and any grants of parole and rehabilitation, and the depth of your criminal history when it comes to these sorts of offences, and I’m of the view certainly that you should be released on parole. It is when that parole eligibility date will be that I need to determine.
In my view it’s not something that in relation to these offences will attract the ordinarily imposed one-third parole release date. It’s certainly my view that it should be higher than that. In the circumstances I issue a parole eligibility date of the 3rd of September 2012. So the parole release date is after 50 percent of the sentence.”
- [11]The obligation of a sentencing court was considered by White JA in R v Ungvari [2010] QCA 134 where her Honour said:
“[31] It is a positive obligation for a sentencing court to take into account a guilty plea and that the primary Judge did (Penalties and Sentences Act 1992, s.13). A reduction may be made having regard to the time at which the offender pleaded guilty or informed the relevant law enforcement agency of his intention to plead guilty (Penalties and Sentences Act 1992, s.13(2)(a), (b)). A recommendation for consideration for early release on parole is included within the definition of ‘sentence’ in s.4 of the Penalties and Sentences Act 1992 (R v Corrigan [1994] 2 Qd R 415). It is important in the overall administration of justice that offenders be encouraged to plead guilty by an appropriate reduction in the sentence which would have been imposed upon them had they elected to go to trial. Such a course frees resources which would otherwise be devoted to a trial including the availability of courtrooms, the cost of a full trial, and inconvenience to witnesses.”
- [12]Although a sentencing court has a duty to give reasons where a parole release date is fixed at a point beyond the mid point of a head sentence in a case where an offender has a claim upon the discretion for an order that he be released after serving less than half of the head sentence in view of his plea of guilty and personal circumstances, (R v Kitson [2008] QCA 86 per Fraser JA at [17] and [19]) such reasons need to be neither elaborate nor long (R v Doraho [2011] QCA 29 per Chesterman JA).
- [13]The one-third mark of the sentence of imprisonment is generally accepted as an appropriate starting point to recognise a plea of guilty, but it may be adjusted up or down as the particular circumstances warrant (R v Ungvari [2010] QCA 134 per White JA at [30]). The Acting Magistrate, notwithstanding the appellant’s early pleas of guilty and personal circumstances, exercised his discretion to set the eligibility date for parole at the midway point because the appellant committed the offences whilst on parole for similar offending and because he has an extensive criminal history for like offences. The Acting Magistrate gave brief (but adequate) reasons for his decision and indicated that he was concerned about the appellant’s prospects of rehabilitation.
- [14]It was open to the Acting Magistrate to order that the sentences be served cumulatively upon those already being served by the appellant particularly having regard to the fact that the appellant committed the offences whilst on parole for similar offending. Had such an order been made the appellant would have faced a significantly greater period of incarceration.
- [15]If the combined total period of imprisonment ordered on 8 July 2009 and 3 March 2011 is considered, the appellant has received five and one half years of imprisonment of which he will be required to serve 28 months before being eligible for parole. In these circumstances, in my view, the sentences imposed by the Acting Magistrate on 3 March 2011 are not manifestly excessive.
- [16]The appellant complains that the possibility of parole eligibility at or beyond the mid point of the sentence was not mentioned in submissions or by the Acting Magistrate. It is contended that the order should not have been made without the parties first being given an opportunity to make such submissions as may have been appropriate. This contention should be rejected as the appellant’s advocate was afforded every opportunity to make such submissions as considered apposite to the matters in hand, and to argue for any order to be structured to enable the appellant to be released on 8 January 2012 (R v Doraho [2011] QCA 29 at [25] per Chesterman JA). No unfairness in the sentencing process has been identified.
- [17]The appeal against sentence should be refused.