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ATC v Commissioner of Police QDC 351
DISTRICT COURT OF QUEENSLAND
ATC v Commissioner of Police  QDC 351
Commissioner of Police
18/2016 and 21/2016
District Court at Maryborough
8 December 2016 (ex-tempore)
8 December 2016
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLYEXCESSIVE OR INADEQUATE – where the defendant was sentenced on two separate occasions – where there was no fresh offending by the defendant – where new charges arose out of a more efficient search of the defendant’s property – where summary charges were not dealt with at the same time as the indictable offences – where the learned magistrate ordered the sentence be served cumulatively – where the parole release date was changed - whether the sentences are manifestly excessive – whether serving the sentences cumulatively was manifestly excessive
Corrective Services Act 2006 (Qld) s 200
Drugs Act Misuse Act 1986 (Qld) part 2
Justices Act 1886 (Qld) s 222
Tierney v The Commissioner of Police  QCA 327
Mr P Rutledge for the appellant
Ms A Baker for the respondent.
Morton & Morton for the appellant.
Office of the Director of Public Prosecutions for the respondent.
 This is an appeal in respect of the sentences imposed by the learned magistrate at Maryborough in respect of matters for which the defendant came before the Court on 25 October 2016, and, subsequently, on 21 November 2016.
 The notice of appeal submits that the sentences imposed were manifestly excessive.As always, appeals to this court, which proceed under section 222 of the Justices Act 1886 (Qld), are subject to the principles helpfully outlined by Margaret Wilson AJA, in Tierney v Commissioner of Police (and I note, by way of aside, in similar terms in many other appeal decisions):-
An appeal from a Magistrates Court to the District Court, pursuant to s. 222 of the Justices Act 1886 (Qld) is a re-hearing 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 errors.
 As Mr Rutledge has clarified in oral submissions, on this appeal, it appears the nub of the error that the learned magistrate fell into (and Ms Baker, who appears for the Commissioner of Police, identifies how this error may inadvertently have occurred) is that the submissions before the learned magistrate did not clarify that there have, in fact, been two police searches, one which occurred on 27 April 2016, for which the defendant was sentenced on 27 of July 2016 to an effective head sentence of 12 months for a large range of offences, including two stealing, seven receiving tainted property charges, two authority required to possess explosives charges, one unlawful possession of weapons, one possession of magazines, one unlawful possession of suspected stolen property, and one enter premises with intent, further offences of unlawful possession of suspected stolen property, contravention of a domestic violence order, three further receiving tainted property offences and another unlawful possession of suspected stolen property.
 Although various penalties were imposed, the effective head sentence imposed (imposed, ultimately, on the enter premises with intent) was a 12 month head sentence, a declaration of 38 days pre-sentence custody served, and the setting of a parole release date on 18 October 2016.
 On 13 October 2016, the defendant appeared before the District Court at Maryborough, where he pleaded guilty to one count of producing in excess of 500 grams of cannabis and two counts of possessing the dangerous drug, cannabis. In respect of those matters, the appellant was convicted to a sentence of two years’ imprisonment in respect of the production charge and a concurrent six month sentence in respect of the – one of the counts of possession of a dangerous drug, the other receiving a conviction and no further punishment, and the parole release date was fixed at 18 October 2016, and there was a declaration of a period of 52 days in custody in 2014.
 The learned magistrate, in sentencing the defendant then on 25 October 2016, in relation to offences of contravention of a domestic violence order, unlawful possession of stolen property and receiving tainted property, made specific mention of the previous convictions that the appellant had for receiving tainted property. What is relevant, as Mr Rutledge has explained, is that the first police search took place on 27 April 2016, resulting in the various charges, including multiple receiving tainted property charges, for which the appellant was sentenced on 27 July 2016, but then on 5 September 2016, police returned to the same property and located other property, which resulted in the receiving tainted property charge for which the appellant was sentenced on 25 October 2016 to nine months’ imprisonment cumulative.
 It would appear that the learned magistrate has failed to appreciate that there was no fresh offending, but rather, a more efficient search by police on 5 September 2016, locating more tainted property, which might otherwise have been expected to have been located on 27 April 2016 and been the subject of the comprehensive sentence on 27 July 2016. In the circumstances, there may have been no increase to that sentence, which was, effectively, 12 months, or, perhaps, at most, a sentence of no more than 15 months, served concurrently.
 The defendant was then sentenced on 21 November 2016 in relation to two offences of possessing anything used in the commission of a crime, defined in part 2 of the Drugs Misuse Act 1986 (Qld), but those sentences were imposed concurrently, and the effect of the two sentences imposed by the learned magistrate on 25 October 2016 and 21 November 2016 was, when combined with the two year sentence imposed by Judge Moynihan on 13 October 2016, an effective two year and nine month sentence, with a parole release date set at 18 January 2017 (replacing the previous parole release date set by Judge Moynihan of 18 October 2016).
 Ultimately, although the appeal seeks to agitate a range of the sentences imposed, the reality is, as Mr Rutledge has clarified in oral submissions, the nub of the appeal goes to the cumulative nature of the imprisonment of nine months imposed in respect of the receiving tainted property on 25 October 2016.
 With respect, none of the other sentences imposed on either 25 October 2016 or 21 November 2016 were, in their context, manifestly excessive (although, in other circumstances, they might well have been). Relevantly, therefore, it would be “tinkering” to interfere with those sentences in any way.
 Quite importantly, though, it is clear (again, as identified above, perhaps through either a lack of or misinformation being received by the learned magistrate) that imposing the nine month sentence for the receiving tainted property on 25 October 2016 cumulatively has had the effect, coupled with the setting of a parole release date three months later than the parole release set by Judge Moynihan, of imposing a sentence that was manifestly excessive in the circumstances.
 I note, also, in passing, that the learned magistrate made some critical remarks about the report of Dr Russ Scott, forensic psychiatrist, in particular, the issue of the appellant’s generalised anxiety disorder and major depressive disorder being exacerbated by his incarceration. As Mr Rutledge points out, and I accept, that was not placed before the magistrate by way of an excuse for offending, but rather to indicate the particular stressors that were applying to the appellant while in custody. And it was relevant, in that context, in respect of the period of actual custody that should be served in relation to the further offences for which he was sentenced on 25 October and 21 November 2016.
 In all the circumstances, it’s clear, in my view, that the appeal should be granted to this limited extent – that the cumulative nature of the nine month sentence imposed on the receiving tainted property on 25 October 2016 should be vacated and in substitution, order that the sentence be served concurrently with all other sentences and in the circumstances, then, to adjust the parole release date.
 Ordinarily, of course, had this appeal been able to be heard earlier, then that parole release date might well have been earlier, but in practical terms, it’s intended to set it today.
 I make the following orders:
- (1)appeal granted;
- (2)that the term of nine months’ imprisonment in respect of the receiving tainted property, for which the appellant was sentenced on 25 October 2016, be served concurrently rather than cumulatively;
- (3)set the appellant’s parole release date at 8 December 2016; and
- (4)in respect of the two sentences of two months’ imposed on possessing anything used in the commission of a crime, defined in part 2, imposed by the learned magistrate on 21 November 2016, set aside the parole release date previously set at 18 January 2017, and set the parole release date at 8 December 2016, with the sentences to be served concurrently with all other sentences.
[The conditions of parole were explained to the defendant as provided in section 200 of the
Corrective Services Act 2006 (Qld)]
- Published Case Name:
ATC v Commissioner of Police
- Shortened Case Name:
ATC v Commissioner of Police
 QDC 351
08 Dec 2016