Goodwin v Commissioner of Police
[2016] QDC 349
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- Unreported Judgment
- Goodwin v Commissioner of Police[2016] QDC 349
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Goodwin v Commissioner of Police[2016] QDC 349
Goodwin v Commissioner of Police[2016] QDC 349
DISTRICT COURT OF QUEENSLAND
CITATION: | Goodwin v Commissioner of Police [2016] QDC 349 |
PARTIES: | Justin Matthew Goodwin (appellant) v Commissioner of Police (respondent) |
FILE NO/S: | 9/2016 |
DIVISION: | Appellant |
PROCEEDING: ORIGNATING | Appeal |
COURT: | District Court at Maryborough |
DELIVERED ON: | 16 December 2016 (ex-tempore) |
DELIVERED AT: | Brisbane |
HEARNG DATE: | 16 December 2016 |
JUDGE: | Dearden DCJ |
ORDER: | Appeal granted and order accordingly:
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the defendant pleaded guilty to a number of stealing and enter premises offences – where the defendant received a head sentence of two years imprisonment – where the defendant was ordered to pay restitution – where the defendant cooperative extensively with police – where the defendant made admissions – whether the sentence has parity to the sentence received by the coaccused - whether the overall effect of the sentences was manifestly excessive |
LEGISLATION: | Justices Act 1886 (Qld) s 222 |
CASES: | AB v The Queen (1999) 198 CLR 111 R v Howie [2009] QCA 50 R v Matauaina [2011] QCA 344 R v Taylor [2007] QCA 214 R v Wickham & Wickham [1998] QCA 168 Tierney v The Commissioner of Police [2011] QCA 327 |
COUNSEL: | Mr P Rutledge for the appellant Ms K Overall for the respondent. |
SOLICITORS: | Suthers Lawyers for the appellant. Office of the Director of Public Prosecutions for the respondent. |
Introduction
- [1]This is an appeal against the sentence imposed by the learned magistrate at Maryborough in respect of the appellant, Justin Matthew Goodwin, in relation to a range of offences which are as follows:
- (a)stealing on 4 May 2016;
- (b)enter premises and commit indictable offence by break between 3 and 6 May 2016;
- (c)stealing between 3 May and 6 May 2016;
- (d)attempted enter premises and commit indictable offence by break on 4 May 2016;
- (e)stealing on 8 March 2015; and
- (f)stealing between 29 April 2016 and 4 May 2016.
- (a)
- [2]The appellant entered pleas of guilty and was sentenced as follows:
- (a)that the appellant be convicted of each offence;
- (b)that each conviction be recorded;
- (c)in relation to the offence of stealing on 4 May 2016 – imprisonment for a period of nine months;
- (d)in respect of the enter premises and commit indictable offence by break between 3 and 6 May 2016 – imprisonment for a period of 12 months;
- (e)in relation to the offence of stealing between 3 and 6 May 2016 – imprisonment for a period of nine months;
- (f)in relation to the offence of attempting to enter a premise – enter premises and commit an indictable offence by break on 4 May 2016, the appellant was imprisoned for a period of 12 months;
- (g)in relation to the offence of stealing on 8 March 2015, appellant imprisoned for a period of two years;
- (h)in relation to the offence of stealing between 29 April 2016 and 4 May 2016, the appellant was imprisoned for a period of two years;
- (i)the appellant pay $21,830 restitution to a proper officer of the Court on behalf of Kelvin George Peterson – this restitution was referred to SPER, with a levy to issue in distress against goods and chattels by the appellant; and
- (j)that the appellant be eligible to apply for parole on 18 March 2017.
- (a)
- [3]The ground for appeal is that the sentence or sentences were manifestly excessive. This ground includes the reference to the order for payment of restitution.
- [4]The principles on appeals under section 222 of the Justices Act 1886 (Qld) have been helpfully outlined by Margaret Wilson AJA (as she then was) in Tierney v Commissioner of Police[1] (and I note by way of an aside, this principle has been set out in similar terms in many other appellate decisions in the Court of Appeal):
An appeal from the Magistrates Court to the District Court pursuant to s. 222 of the Justices Act 1886 (Qld) is a rehearing on the evidence given at trial and any new evidence adduced by leave. In other words, it involves a review of the record of proceedings below, subject to the District Court’s power to admit new evidence. To succeed, an appellant needs to show some legal, factual, or discretionary error.[2]
Background
- [5]The background to this matter has been helpfully outlined by the appellant in his outline of submissions (exhibit 1). The appellant was 22 at sentence and is now 23. The offences occurred as outlined primarily between 29 April and 4 May 2016 but with a prior offence of stealing having occurred on 8 March 2015. That issue is irrelevant, as will be outlined shortly.
- [6]The appellant was detected by police following a series of reports from landowners on the outskirts of rural Maryborough that items had been stolen from their premises or that they had encountered persons to be unlawfully on their premises. The defendant was interviewed by police and made admissions to all of the 2016 offences, and then volunteered (and in this respect, admitted to an offence which was otherwise – or to which he was otherwise not a suspect) that he attended a rural premises on the outskirts of Hervey Bay and had stolen a Polaris ATV (all-terrain vehicle) with a spray tank which he later swapped for other vehicles in Brisbane.
- [7]The appellant had a relatively short criminal history but did have three previous attendances as an adult offender for property offences. It is concerning that the appellant had a five-page traffic history, and he had previously breached an intensive correction order of 12 months. He was on parole for a sentence of 18 months for multiple disqualified driving offences at the time that he committed the property offences in 2016.
- [8]It was submitted on sentence that he was youthful (22), had a good work history as a bar manager, cabinet maker, and seat fabricator, and was in a committed relationship with a woman with whom he had 12 year – 12 month old twins. It was further submitted that he was on unemployment benefits at the time of sentence and had not worked for some time.
- [9]It was also submitted that he had cooperated extensively with police during the arrest process and had participated in a drive around to seek to locate property which had been discarded. Further, it was submitted that he made AB v The Queen[3] admissions in respect of the stealing offence which occurred on 8 March 2015.
- [10]The submission was made that, due to the issues of totality, his history, cooperation, and parity with his co-offender, Mr Stewart (who received a 12 month cumulative sentence on an existing sentence for wounding, which gave him an effective a four year head sentence), a global head sentence of 12 months was appropriate to be suspended after serving three months.
- [11]The learned magistrate rejected the proposition of a global term and imposed the sentences that I’ve outlined.
- [12]As I’ve identified in the exchange with counsel on submissions at this appeal, it seems to me there are a relatively small number of key issues on which this appeal should turn. Firstly, that the learned magistrate gave no recognition (although it had been brought to his attention) of the AB v The Queen[4] cooperation in respect of the offence from 8 March 2015, nor, in a broader sense, the cooperation which enabled recovery of other items and property.
- [13]Secondly, the non-payment of compensation would effectively, I’m advised, under the process of referring a matter to SPER where the referral to SPER is a default not from a term of imprisonment but from an order that the compensation order be recovered from chattels, is still effectively, in the long-term (although not entirely clear how often this is effected) a potential jail sentence if it’s unpaid, which, in the circumstances of this offence, appears fairly inevitable, given that the appellant was unemployed at the time of sentence, received a substantial effective jail sentence (identified in exhibit 7, which is the calculation from Corrective Services as an effective head sentence of two years, 11 months, and 25 days, given the imposition of concurrent sentences but committed while on parole) and, in those circumstances, Mr Rutledge calculates the potential for up to a further seven months’ imprisonment as a trailing consequence of this sentence by the learned magistrate on 19 July 2016.
- [14]Finally, the issue is whether the imposition of head sentences of two years on the stealing offences (admittedly committed against the same complainant) on 8 March 2015 and then between 29 April 2016 and 4 May 2016 is, in its overall context, manifestly excessive.
- [15]The decisions relied upon by the Crown of Howie,[5] Taylor,[6] and Wickham,[7] which would tend to support the two years head sentence, it is submitted (and I accept in various respects) are arguably more serious. The overall effect of the sentence, I consider, when looked at in totality, is manifestly excessive, given the factors that I’ve identified. However, I cannot accept Mr Rutledge’s submission that an overall penalty of, effectively, 12 months reflects the seriousness of the offending, whether by way of the very broad sense of parity with Mr Stewart or from the concerted nature of the offending, which although occurring in relatively short compass – April and May 2016 – still has to take account of the duplication of the offence of 8 March 2015 for which, of course, the property was never recovered.
- [16]In all of the circumstances, I consider that the manifest excessiveness of the sentence can be dealt with, in fairly short compass, by altering the sentence imposed by the learned magistrate as follows:
- (1)that a sentence of 15 months’ imprisonment be substituted for the sentence of two years’ imprisonment in respect of the offence of stealing on 8 March 2015,
- (2)that a sentence of 18 months be substituted in respect of the offence of stealing between 29 April 2016 and 4 May 2016, and
- (3)that the order for compensation on behalf of Kelvin George Peterson be set aside.
- (1)
- [17]In that respect, although I note the matter raised by the Court of Appeal in R v Matauaina[8], which referred to the issue of procedural fairness with a compensation order being set aside,[9] the issue in this matter is the effective manifest excessiveness of the sentence when the compensation order with its potential trailing jail consequence is taken into account and, in that respect, I don’t consider that this court is bound by those observations, which are arguably obiter in any event in Matauaina.[10] Accordingly, the restitution order is set aside. I do note that, of course, this doesn’t in any way take away from the seriousness of the offence, which was a brazen and no doubt distressing offence, both financially and personally, to the complainant, particularly when it was repeated just over a year later.
- [18]Finally, I set aside the order that the appellant be eligible to apply for parole on 18 March 2017 and substitute an order that the sentence of 18 months be suspended after serving a period of six months backdated to 19 July 2016, with an operational period of 2 years.
…
- [19]All offences in excess of six months are suspended after serving a period of six months and all sentences are to be served concurrently.
…
- [20]I’ll declare the period between 19 July and 16 December 2016 as 151 days. I’ll note for the record that I anticipate he should be released on 18 January 2017.
Order
[21] Appeal granted and order accordingly:
- (1)that a sentence of 15 months’ imprisonment be substituted for the sentence of two years’ imprisonment in respect of the offence of stealing on 8 March 2015;
- (2)that a sentence of 18 months be substituted in respect of the offence of stealing between 29 April 2016 and 4 May 2016;
- (3)that the order for compensation on behalf of Kelvin George Peterson be set aside;
- (4)that the appellant be eligible to apply for parole on 18 March 2017 and substitute an order that all sentences in excess of 6 months be suspended after serving a period of six months backdated to 19 July 2016, with an operational period of 2 years; and
- (5)declare that 151 days spent in pre-sentence custody between 19 July 2016 and 16 December 2016 be deemed time already served under the sentence.