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- Unreported Judgment
Perry v The Commissioner of Police QDC 21
DISTRICT COURT OF QUEENSLAND
Perry v The Commissioner Of Police  QDC 21
MITCHELL WADE PERRY
THE COMMISSIONER OF POLICE
Magistrates Court at Southport
11 February 2015 ex tempore
11 February 2015
APPEAL AND NEW TRIAL – CRIMINAL LAW – DISCRETION – MISCARRIAGE OF JUSTICE – REHEARING – where the appellant pleaded guilty to and was sentenced on 8 counts of wilful damage before the learned Magistrate– where on each count the learned Magistrate imposed a sentence of 12 months imprisonment suspended after 2 months with an operational period of two years as well as restitution in the sum of approximately $16500 – whether the learned Magistrate’s exercise of discretion miscarried by requiring the appellant to serve a term of actual imprisonment
Justices Act 1886 (Qld) s 222, s 223(1)
Allesch v Maunz (2000) 203 CLR 172
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
R v Hamilton  QCA 286
Mr T Zwoerner, solicitor, for the appellant
Mr T Corsbie, legal officer, for the respondent
Legal Aid Queensland for the appellant
Office of the Director of Public Prosecutions (Queensland) for the respondent
- HIS HONOUR: This is an appeal from the decision of the learned Magistrate at Southport who on 21 January 2015 sentenced the appellant on eight charges of wilful damage to 12 months imprisonment suspended after two months with an operational period of two years and ordered that the appellant pay restitution in the sum of $16,500 approximately.
- This matter came before me as an application for bail pending the appellant’s appeal being heard. The reason the application for bail was made is that there was going to be a delay in obtaining a transcript of the proceedings before the learned Magistrate. However, that delay did not occur as expected. Therefore, the parties are agreed that I hear the matter today as an appeal.
- The appeal is pursuant to section 222 of the Justices Act 1886. Pursuant to section 223 subsection (1) of the Act, the appeal is by way of rehearing. In Allesch v Maunz (2000) 203 CLR 172 at page 180, the court said:
[T]he […] difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual, or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error.
- Therefore, for my purposes, the appellant must demonstrate there has been some legal, factual or discretionary error on the part of the learned Magistrate.
- Further, in Fox v Percy (2003) 214 CLR 118 at pages 126 to 127, the court said that:
The appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons.
- Therefore, I must conduct a real review of the sentencing proceedings and of the learned Magistrate’s reasons for the sentence he imposed.
- Finally, I refer to House v The King (1936) 55 CLR 499 where at pages 504 to 505, the majority said:
But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
- The appellant was born on the 14th of September 1991. He committed these offences on the 10th of November 2013. He was 22 years of age at the time of the offending and he was 23 years of age at the time of sentence.
- The facts put before the learned Magistrate were basically that the appellant damaged a number of vehicles at an automotive business in Cairns. Not only were vehicles belonging to the owner of that business damaged, but he had possession of vehicles for other persons at his business. The evidence was that the appellant, who was the person ultimately detected for this offending, had damaged these vehicles over the weekend at some stage. The forensic investigation revealed fingerprints and blood on one of the vehicles which was analysed.
- The CCTV footage was obtained, and that showed a male approach several of the vehicles. The male opened the doors of the vehicles and got inside the vehicles and hit one of the vehicles, lifted the bonnet and touched the wiring in the engine bay and also tried to push two of the vehicles. The footage also showed him up to a safety lock box where the keys are left and pull on it, damaging it beyond repair.
- The prosecution gave more detail of the damage to the vehicles when sentencing took place. One vehicle had its windscreen cracked and the sun visors and centre console damaged. And a tacho gauge and a CD player were damaged. Restitution was sought in the sum of $2,462. There was a blue VR Holden Commodore. There was damage to the driver door panel and engine bay wiring. Restitution was sought in the sum of $1,455. There was a maroon Toyota Supra that had the centre console, gauge, and sun visors damaged. Restitution was sought for that vehicle of $2,050. There was a black Toyota Supra that had its rear windscreen smashed and damage to the rear tailgate. Restitution for that vehicle was sought in the sum of $2,780.
- There was a red Kia Mentor that had sun visors and a glove box damaged, windscreen smashed from inside, and damage to the passenger door. Restitution for that vehicle was $2,105. There was a red Nissan Pulsar that had its glove box damaged and panel damaged. And repair for that was $1,039. There was a white Toyota HiLux. Winch controllers were damaged, front seats damaged, passenger side panel damaged, windscreen cracked. Restitution for that vehicle was $4,465. In relation to the safety lock box, that was damaged beyond repair and restitution was sought in the sum of $309.
- The blood sample and fingerprints returned a positive match for the defendant. On 2 April 2014, police located him in Southport and they spoke to him. A name check revealed he had an outstanding matter. He accompanied them to the Southport Police Station. He participated in a record of interview. He stated he was on a friend’s boat at the wharf near the victim’s business and that he’d been drinking heavily with a friend, however was involved in a fight, sustaining a cut to his eye and then left the boat. He stated he recalled smashing a window on one of the vehicles. However, he was heavily intoxicated and did not remember much else from the night.
- Restitution was sought. The prosecution said to the learned Magistrate that the appellant had a previous history. This history is exhibited to the affidavit of Mr Zwoerner which was filed in support of the bail application. It shows that on the 25th of August 2009, the appellant was dealt with in the Cairns Magistrate Court for unlawful use of a motor vehicle and receiving tainted property. He was placed on probation with no conviction recorded for a period of 12 months. Then on the 6th of January 2010 in the Cairns Magistrates Court he was dealt with for an offence of wilful damage on the 14th of December 2009. No conviction was recorded. He was fined $200. Then on the 20th of October 2011 in the Cairns Magistrates Court again he was dealt with for wilful damage between 1 October 2011 and 4 October 2011. On this occasion, a conviction was recorded and he was fined $150.
- Regarding the two wilful damage offences, the learned Magistrate was given some detail. That is, previous wilful damage offences. On one occasion, that related to damaging a door at a shopping centre when he was essentially horsing around with another person. And between the two of them, they caused the damage. The second one related to a dispute the appellant had with someone at one stage and he threw a spanner at a garage door which caused a dent in the door.
- The prosecution sought restitution. The prosecution told the learned Magistrate the complainants were out of pocket in the amount of the money sought and that they ought to be compensated as a result of the appellant’s actions. The appellant’s counsel addressed the restitution issue first. He told the learned Magistrate the appellant was employed on a casual basis only as a strapper. He had a very limited income. But if the learned Magistrate was minded to make any restitution order, keeping in mind his limited income, it would need to be referred to SPER for collection. He said it would take quite some time for the appellant to gather together the $16,000. However, he was not opposed to that order being referred to SPER.
- Regarding other matters, the appellant’s counsel told the learned Magistrate that he had an unfortunate background arising from his parents separating when he was quite young. He eventually moved to the Gold Coast and moved in with his father until approximately two months before sentencing when he moved out with his girlfriend. His instructions were he never had a good relationship with his mother. He was kicked out of home at the age of 14. He was the victim of domestic violence from her new partner and one day he retaliated and hit this partner. And at that stage, that’s when his mother asked him to leave. He went on and essentially lived on the streets and couch surfed for quite a number of years, however, quite impressively continued to put himself through school in continuing to attend school at the Cairns State High School.
- His instructions were he found school very difficult and had a limited education and limited abilities in terms of reading and writing. However, he continued to attempt to educate himself despite the fact he was living on the streets and sleeping on those couches. He would often sleep near an area where there was a public lagoon with public toilets and showers available where he would shower there before going to school.
- His instructions were eventually he was put in touch with Youth Link Service, which is a youth refuge, and eventually was placed in a shared unit at the age of 18. He had left school by that stage, which was around grade 10. He found it difficult to maintain employment, however, his moving to the Gold Coast and living with his father in the last 12 months has seen – and – and in the last 12 months maintaining casual work and has maintained casual work as a strapper.
- His counsel told the learned Magistrate that since being on the Gold Coast he’s been doing fairly well, he’s been staying out of trouble and engaging in employment. Although there were no instructions to support the submission with a psychologist’s report, the appellant apparently had been diagnosed with a conduct disorder. His counsel also said the appellant was trying to address substance abuse, namely, alcohol. However, his counsel said the appellant felt that he was now on the right track and finally moving forward with his life. He was in a relationship and he was in quite stable employment.
- A submission was made that a period of probation be given for this offending. The learned Magistrate appeared not to be too impressed with that submission because of his reference to the appellant having been granted probation on a previous occasion, although he acknowledged that was in 2009.
- His counsel told the learned Magistrate that the appellant had been drinking and has little recollection of his offending, however, that since that offending there was no further offending. His counsel pointed out to the learned Magistrate that his previous offending was some time ago and the previous probation order was some six years ago. There were no breaches in relation to that order.
- However, the learned Magistrate’s concern was reflected in his statement to the appellant’s counsel that over $16,000 worth of damage was caused and could not be just swept under the mat. The learned Magistrate indicated he was against the submission of a community-based order because the appellant had had the benefit of one in the past, he had previous offending for wilful damage, although the learned Magistrate accepted on the minor side of things, and that this was – this offending was totally unbelievable. The learned Magistrate saw it as having gone on a rampage destroying other people’s property and then just shrugging his shoulders saying, well, he could not remember much because he was drunk and then other people were left to pick up the bill.
- His counsel reminded the learned Magistrate that the appellant had entered a plea of guilty and accepted at an early stage his responsibility for these matters and made admissions in the record of interview. His counsel submitted that if a term of imprisonment were imposed it be wholly suspended, however, the learned Magistrate’s response to this was:
Well, people have to be responsible for their own actions, Mr Wicking.
- Further, the learned Magistrate said:
And why should these people be made to suffer unnecessarily just on a drunken whim or fancy of your client?
- The learned Magistrate’s sentence then was passed. His reasons were that, in effect, the appellant had gone on a rampage of wilful destruction of other people’s property. He said it was more – it was made more serious by the fact that the appellant got very little – that the appellant has little opportunity to make any restitution. He saw it as being insufficient to respond by saying that he was drunk at the time and was very sorry and would not do it again. The learned Magistrate said that does not excuse or in any way justify the behaviour. The learned Magistrate said it might show some remorse, as does the plea of guilty, but really, this is a very serious – but really, this is very serious offending.
- The learned Magistrate went on to point out that the appellant had previous for like offences and had the benefit of probation in the past. He accepted the appellant had a difficult upbringing but he said quite frankly, that did not provide any justification or excuse or indeed any significant mitigation in relation to this type of offending behaviour. He said that if the appellant chose to get himself intoxicated and go on some sort of wild, wilful destruction of property, then the learned Magistrate was afraid he would have to pay the consequences for it.
- Then the learned Magistrate imposed on each of the charges 12 months’ imprisonment to be concurrent and that these terms would be suspended after the appellant served two months and there would be an operational period of two years. The learned Magistrate added, in setting that he took into account his age, his limited history, but he would also take into account the substantial amount of damage that had been done and the limited basis there was for paying restitution. Nevertheless, the learned Magistrate did order restitution in addition to the sentences of imprisonment suspended after two months for an operational period of two years.
- When looking at the appellant’s previous history, it can be seen that his previous offending was quite some time ago. A probation order was imposed about five years ago, however, when one looks at the wilful damage offences, the first of those occurred on the 14th of December 2009 and then it was not until about two years later that the other wilful damage offence occurred. And then again from that one on the 1st of October 2011 and 4 October 2011 there was about two years until the appellant committed the subject offences. In that respect, in my opinion, he was to be seen as not being a persistent offender. Further, the circumstances showed that when he committed the subject offences he did not do so in breach of any other orders, nor in any aggravating situation, for example, while on bail.
- It may be that the learned Magistrate imposed two months actual imprisonment as a compensation for ordering the restitution, that is, in the usual course a 12 month head sentence would be visited with one-third of actual imprisonment for the mitigating factors, which would mean a term of actual imprisonment of four months.
- However, such a short term of imprisonment has its problems, as pointed out by the Court of Appeal in The Queen v Hamilton  QCA 286. While their Honours referred to young offenders, in my opinion the appellant was still to be seen as a youthful offender. He was 22 at the time of the offending and had a minor criminal history and as the facts behind the offending showed, the offending was minor. The learned Magistrate did accept that that previous offending was minor, however, as the Court of Appeal said, that is, I should say Davies and Thomas, Justices of Appeal, said:
Clearly that could have been the only purpose of such a short term of imprisonment. It would be most unlikely to have a rehabilitative effect. On the other hand it is potentially harmful; it may introduce him to hardened criminals whom he might not otherwise meet and to hard drugs and it may subject him to the risk of injury or degrading conduct.
- They went on to say:
In our view the imprisonment imposed in this case was not a satisfactory means […] of imposing a short sharp lesson upon a youthful first offender, primarily because of the potential harm it may cause.
- Here it would seem that the short term of imprisonment, as it was coupled with an obligation to make restitution, was, in effect, to provide a short, sharp lesson to the appellant. Clearly the learned Magistrate had revealed his concern as to the extent of the damage. Clearly the extent of the damage is a relevant factor and it was of some significance in this case. The learned Magistrate was correct to be concerned as to the loss to other people, however, the learned Magistrate was intent on ordering the appellant to make restitution. That additional order over and above the term of actual imprisonment, to my mind, shows a significant obligation being placed upon the appellant not only to serve a term of actual imprisonment but to make the restitution in its entirety over his lifetime if that’s what it took, as the police prosecution suggested it might. I am conscious that error must be demonstrated on the part of the learned Magistrate. To my mind, there is error. The error comes from the balancing of all the relevant factors against the serious aspects of the offending in this case. That is, as I have said, the appellant was – has been ordered to make the restitution in its entirety, although the learned Magistrate did not expressly refer it to SPER or make some other order as to when it would be paid.
- In addition, there was the appellant’s pleas of guilty and cooperation with the administration of justice. He made admissions when interviewed by the police. In addition, and this is the fact that I think the learned Magistrate did not give sufficient weight to, and that was the rehabilitation that the appellant had engaged in from the time of this offending. He had found his father on the Gold Coast. He had a partner who he could live with. She was also working as a strapper, as he was, and there was some future there for him after having lived a very unstable life which showed to his credit that he had not committed more offences and those that he had committed were of a minor nature. In addition, he did not commit these offences in breach of any orders or aggravated the offending by committing the offences on bail. Further, he was still a youthful offender, even at the age of 22 and 23 at the time of sentencing, and he had not served any previous terms of imprisonment.
- Of course, as I have said perhaps now a number of times, the damage was significant and the learned Magistrate to treat it as having been serious offending. I should mention here that it was correctly pointed on the hearing before me today by Mr Zwoerner that what the learned Magistrate described as a rampage occurred over a period of about 20 minutes. Nevertheless, I still think the learned Magistrate might have been correct to think of it as a rampage even if it occurred in a very short space of time. Notwithstanding the serious aspects of the offending, therefore, I have come to the view that the exercise of the discretion by the learned Magistrate did, in this case, miscarry by ordering the appellant to serve a term of actual imprisonment. Therefore, I allow the appeal.
- I order the appellant’s sentence of 21 January 2015 in the Magistrates Court of Southport is vacated. The appellant is re-sentenced on each charge to 12 months imprisonment suspended forthwith for an operational period of two years. The appellant, in addition, is ordered to make the restitution ordered by the learned Magistrate and it is ordered that restitution is referred to SPER forthwith. Now, Mr Zwoerner, what about the number of days he has already been in custody? Is that in any way having to be dealt with?
- MR ZWOERNER: Your Honour could declare it as time served under the – suspended after 21 days. It adds to his criminal history and my submission would be that it would be preferable that it would be for 12 months wholly suspended, but, I mean, that doesn’t give him credit for the time that he served. My only concern would be the entry on his history.
- HIS HONOUR: No. Well, I don’t know about what you’re saying there, but I will declare – how many days is it? Have you worked it out?
- MR ZWOERNER: 22.
- HIS HONOUR: Is it 22 days?
- MR ZWOERNER: It is 22.
- HIS HONOUR: Declare the 22 days the appellant has been in custody between 21 January 2015 and 11 February 2015 be deemed time served under the sentences. All right. Anything further, Mr Corsbie?
- MR CORSBIE: Nothing further, your Honour.
- Published Case Name:
Perry v The Commissioner Of Police
- Shortened Case Name:
Perry v The Commissioner of Police
 QDC 21
11 Feb 2015