Kues-Sales v Commissioner of Police
[2016] QDC 53
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- Kues-Sales v Commissioner of Police[2016] QDC 53
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Kues-Sales v Commissioner of Police[2016] QDC 53
Kues-Sales v Commissioner of Police[2016] QDC 53
DISTRICT COURT OF QUEENSLAND
CITATION: | Kues-Sales v Commissioner of Police [2016] QDC 53 |
PARTIES: | TIMOTHY LAWRENCE KUES-SALES v COMMISSIONER OF POLICE |
FILE NO/S: | Maryborough Appeal D2/2016; Mag 00006191/16(9); 00164491/15(3); 00164763/15(3). |
DIVISION: | |
PROCEEDING: | Criminal Appeal |
ORIGINATING COURT: | Magistrates Court at Maryborough |
DELIVERED ON: | 16 March 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 March 2016 (Appeal allowed ex tempore) |
JUDGE: | McGill SC, DCJ |
ORDER: | Appeal allowed; sentence imposed 18 January 2016 for the offence of stealing set aside, and in lieu thereof the appellant be resentenced to two months’ imprisonment. Declare a period of 56 days from 7 January to 2 March 2016 inclusive spent in custody solely in relation to this offence is to be imprisonment already served under the sentence. Direct the Registrar to inform the Commissioner of this declaration. Parole eligibility date fixed at 5 March 2016. Sentence otherwise confirmed. In relation to the breach of probation, the sentence imposed on 18 January 2016 on the resentencing for the offences for which the appellant was sentenced on 3 June 2014 be set aside, and in lieu thereof for each offence the appellant is fined the sum of $50. The fines are referred to SPER for enforcement. The orders of the Magistrate in relation to the breach of probation are otherwise confirmed. |
CATCHWORDS: | APPEAL AND NEW TRIAL – Criminal law – sentence appeal – whether sentence manifestly excessive – whether sentence disproportionate to the criminality of the offence - whether effect given to plea of guilty. APPEAL AND NEW TRIAL – Criminal law – sentence appeal – probation – resentence on breach – whether fine excessive in view of financial capacity of defendant. Penalties and Sentences Act 1992 s 48. AB v R (1999) 198 CLR 111 – cited. R v Cuthbert [1992] QCA 184 – cited. R v Gills [1986] 1 Qd R 459 – considered. R v Hoeksema [2005] QCA 190 – considered. R v Horne [2005] QCA 218 – cited. R v Prentice [2003] QCA 34 – applied. R v Webber (2000) 114 A Crim R 381 – cited. Veen v R (No. 2) (1988) 164 CLR 465 – applied. |
COUNSEL: | T W George (solicitor) for the appellant S J Hedge for the respondent |
SOLICITORS: | Suthers Lawyers for the appellant Director of Public Prosecutions for the respondent |
- [1]On 18 January 2016 the appellant appeared before the Magistrates Court at Maryborough where he pleaded guilty to one charge of stealing and one charge of breach of a requirement under the Police Powers and Responsibilities Act, namely failing to state his correct name when directed to do so. The Magistrate recorded convictions and for the stealing offence sentenced the appellant to nine months’ imprisonment; for the other charge no further punishment was imposed. The Magistrate declared a period of pre-sentence custody from 7 to 18 January 2016, the appellant having been in custody since he was arrested. At the time the offences were committed the appellant was on parole, as a result of an order made in the Ipswich Magistrates Court on 30 March 2015; accordingly the Magistrate fixed a parole eligibility date of 7 April 2016.
- [2]These offences occurred while the appellant was also on probation. The Magistrate found the breach of probation proved, and resentenced the appellant for the seven counts of unauthorised dealing with shop goods for which he had originally been sentenced to 12 months’ probation, imposing one fine for the seven offences of $3,500. When passing sentence the Magistrate imposed a default period of imprisonment of three months, but also directed that the fine be transferred to SPER for enforcement, which strikes me as inconsistent.
- [3]On 1 February 2016 the appellant filed a notice of appeal under the Justices Act 1886 s 222 against the sentences imposed, on the grounds that they were manifestly excessive, that there was a failure to give proper consideration to the plea of guilty and that there was a failure to give proper consider to s 48 of the Penalties and Sentences Act. The appellant remained in custody until I heard the appeal in Maryborough on 3 March 2016. On that day I allowed the appeal, set aside the order imposed for the stealing offence, and substituted a sentence of two months’ imprisonment, with the parole eligibility date fixed as the day before the sentence expired. The fine imposed on the resentencing in respect of the other offences was also set aside and in lieu thereof I imposed a fine for each offence in the sum of $50, with recovery of the fines to be referred to SPER. I said then that I would give reasons later, mainly because I wanted to investigate one point raised by counsel for the respondent, although obviously it did not affect the actual outcome of the appeal. These are those reasons.
Circumstances of the offending
- [4]The appellant accompanied a co-offender when they entered a store selling motor vehicle equipment, where they browsed together for some time, before the co-offender indicated a willingness to purchase a tape deck and a reversing camera. The shop assistant obtained these items from a secure cabinet and placed them on the front counter where the co-offender initially made as if to pay for them, then seized them and ran out of the store without paying. The appellant also ran off. It does not appear that the appellant took any active part in the co-offender’s stealing of these items, but during an interview with police he admitted that he had discussed with the co-offender which items to steal, so that, on the basis of his admissions to police, it may be said that he abetted the offence and on that basis was criminally responsible for it. He also admitted to having obtained some of the proceeds after these items were sold by the co-offender.
- [5]The second offence occurred when the police asked the appellant to state his name and he gave a false name, though he still gave the same, reasonably distinctive, surname; the police identified him from their records, whereupon eventually he admitted who he was, and that there were warrants outstanding for his arrest. When spoken to by investigating police in relation to the stealing offence, he agreed to be interviewed and made admissions; as I have indicated, it seems to me that without those admissions there would have been little or no evidence to convict him of the offence. In those circumstances, there was particularly significant co-operation with investigating police,[1] a relevant matter which the magistrate did not expressly acknowledge. Neither the Magistrate nor I was told anything about what happened to the co-offender, or even whether the appellant’s co-operation with the police extended to identifying the co-offender. In those circumstances strictly speaking he is not entitled to the mitigating effect of co-operation which went that far.[2]
Personal circumstances
- [6]With regard to his personal circumstances, the appellant was born on 5 December 1994 so that he was 20 at the time of the offending for which he was placed on probation, 21 at the time of the further offending and at the date of sentence. The defendant had had a very disadvantaged life, having been a victim of abuse from both of his parents, with whom he had lost contact, and having been a ward of the State at different times; he had some support from siblings. He had been at the time of sentence living with his step-sister and younger brother; before moving to Maryborough he was living in temporary accommodation or simply on the streets. He had very limited financial capacity, receiving only a youth allowance of about $100 per week. He was essentially illiterate having left school at Grade 8, and having started an apprenticeship as a sign writer which came to an end though lack of work for that business. He had been doing some farm work through an employment provider in the Maryborough area, but only on a limited basis.
- [7]The appellant has a criminal history dating from October 2009 in the Children’s Court for possession of a knife and assaulting or obstructing a police officer, for which he was reprimanded. In January 2010 for an offence of wilful damage he was placed on a good behaviour bond. In December that year he was again placed on a good behaviour bond for shoplifting, and in April 2012 was fined for shoplifting. In November 2012 he was placed on probation for nine months for common assault and public nuisance offences, but there was no further offending until June 2014 when he was placed on probation for 12 months for the seven offences of unauthorised dealing with shop goods. Most of those offences were quite minor; in six of the seven cases the restitution ordered was less than $20.
- [8]Then in July 2014 again at the Ipswich Magistrates Court he was dealt with for a number of more serious offences, three counts of unlawful use of a vehicle, two counts of stealing, four counts of entering premises and five counts of wilful damage as well as two counts of contravening a direction or requirement, one minor drug offence, two counts of breach of bail conditions. For these offences the appellant was sentenced to various terms of imprisonment of up to nine months, but with parole release on the date of sentence, the appellant having already served 28 days in pre-sentence custody, which was declared.[3] On 7 March 2015 he was fined for a failure to appear in accordance with an undertaking, and on 30 March 2015 he was sentenced to three months’ imprisonment, with immediate release on parole, for an attempted stealing and trespass, and convicted and not further punished for breach of a bail condition. The parole period for the offences for which he was sentenced on 24 July 2014 had expired at the time of this further offending, but it occurred during the parole period of the sentence on 30 March 2015, and late in the 12 month probation period imposed on 3 June 2014.
- [9]A court report dated 22 July 2015 recommended that the appellant be resentenced for the original offences. The report indicated that the appellant demonstrated an unsatisfactory response to reporting which led to a breach of the order for which he was convicted in August 2014, though the order was allowed to continue. There was then some improved compliance, reporting on 29 occasions but a failure to report on seven. Needs were identified in areas of mental health, pro-criminal thinking and substance abuse, and steps were taken to deal with those but the appellant was not co-operative in relation to those steps and essentially was said not to have engaged with intervention to address his rehabilitative needs. The report does not actually say that the appellant was not regarded as a suitable candidate for a community based order, but that is certainly the impression I get from it.
- [10]The appellant was taken into custody on 7 January 2016, and had been in custody for 12 days when sentenced by the Magistrate, which time was declared; he remained in custody thereafter until I heard and allowed the appeal. Because the stealing offence was committed while the appellant was on parole, it was not possible to fix a parole release date[4] and for that reason it was correct for the Magistrate to have fixed a parole eligibility date, though it is not clear that he had regard to the practical effect which this would have on the sentence imposed, as to the actual time served in custody.
Analysis
- [11]Turning to the sentence imposed for the stealing offence, the relevant grounds of appeal are that the sentence was manifestly excessive and that there was a failure to give proper consideration to the plea of guilty.
- [12]The Magistrate in sentencing remarks spoke of the offences of dishonesty on the criminal history, and mentioned that probation had clearly failed, that imprisonment had been imposed on earlier dates back in 2014 for the offence of stealing, and he was satisfied that the period of nine months’ imprisonment was appropriate in relation to the further offence of stealing. What concerns me about this process of reasoning is that it focuses on the criminal history and does not have sufficient regard to the actual offence for which the appellant was being sentenced, the criminality of that particular offence, and any mitigating circumstances peculiar to that offence. Accepting that the appellant had some criminal history for offences of dishonesty, and had previously been given a period of imprisonment of nine months for offences including offences of stealing, it does not necessarily follow that it was appropriate to sentence to a term of nine months for a further offence of stealing.
- [13]This was one isolated offence, the appellant was not the principal offender, and his personal involvement in the offence was at a relatively low level. I accept that a history of similar offending is a relevant factor for sentence, and may well justify the imposition of a sentence towards the higher end of the range of sentences for a particular further offence, but the sentence imposed for the further offence must not be disproportionate to the criminality of that particular offence.[5] I consider that a sentence of nine months’ imprisonment for the stealing offence was disproportionate to the criminality of that offence, and was therefore manifestly excessive.
- [14]I also consider the Magistrate has failed to have proper regard to the plea of guilty.[6] Commonly a plea of guilty is recognised by the fixing of an early parole release date, particularly when it is a relatively short head sentence, although it can be reflected in other ways, in some cases for example by reducing the head sentence. In the present case the Magistrate fixed a parole release date after one third of the head sentence, from the date on which the appellant went into custody, which superficially may have met the requirements, but that assumes that the appellant might expect to receive parole on or not long after that date. Given that this is a relatively short sentence, it is relevant, and I think appropriate, to take into account the realities that it takes time for an application for parole to be processed, and I am satisfied that there was no realistic possibility of the appellant actually achieving parole on or shortly after 7 April 2016. In the context of a sentence of this length, to attempt to reflect a plea of guilty by fixing an early parole eligibility date in my opinion was entirely unrealistic. Given that a parole release date cannot be fixed, the Magistrate ought to have reflected the plea of guilty in some other way. That in my opinion also involved an error in the sentencing process.
- [15]It was therefore necessary for me to resentence for the offence of stealing. In doing so, I had regard not merely to the plea of guilty but to the particular co-operation with the police by the appellant in volunteering the information necessary to show that he was a party to the offending. The re-sentencing discretion was also constrained by the fact that the appellant has now spent almost two months in actual custody. Accordingly for the offence of stealing on 22 May 2015 I resentenced the appellant to two months’ imprisonment with a parole eligibility date fixed at the end of that sentence; effectively he will serve two months and then be released.
- [16]With regard to the breach of probation, it was appropriate for the Magistrate to resentence the appellant and no argument was raised in relation to that decision; the ground of appeal was that the Magistrate failed to give proper consideration to s 48 of the Penalties and Sentences Act 1992. That section provides relevantly as follows:
(1)If a court decides to fine an offender, then, in determining the amount of the fine and the way in which it is to be paid, the court must, as far as practicable, take into account—
(a)the financial circumstances of the offender; and
(b)the nature of the burden that payment of the fine will be on the offender.
(2)The court may fine the offender even though it has been unable to find out about the matters mentioned in subsection (1)(a) and (b).
(3)In considering the financial circumstances of the offender, the court must take into account any other order that it or another court has made, or that it proposes to make—
(a)providing for the confiscation of the proceeds of crime; or
(b)requiring the offender to make restitution or pay compensation.
(3A)In considering the financial circumstances of the offender, the court must not take into account the offender levy imposed under section 179C.
(4)If the court considers that—
(a)it would be appropriate both to impose a fine and to make a restitution or compensation order; and
(b)the offender has not enough means to pay both;
the court must, in making its order, give more importance to restitution or compensation, though it may also impose a fine.
(5)In fixing the amount of a fine, the court may have regard to, among other matters—
(a)any loss or destruction of, or damage caused to, a person’s property because of the offence; and
(b)the value of a benefit received by the person because of the offence.
- [17]The appellant’s financial circumstances were, as I have indicated, very limited, a fact which appears not to have been taken into account at all by the Magistrate in imposing a substantial fine. Although the matter was referred to SPER for collection, for practical purposes the appellant has no real prospect of paying it off in the foreseeable future, so that the fine is likely to be a considerable burden upon him for a very long time. That is an unsatisfactory situation, and seems to me to be precisely the sort of situation that s 48 was intended to address.[7] This is not a situation where the Magistrate was not provided with information or was unable to obtain information about the financial position of the appellant, and the only conclusion I can reach is that the Magistrate disregarded the financial position of the appellant when passing sentence, which was a breach of s 48. There was therefore an error of law in the resentencing for the breach of probation, so it was appropriate for me to resentence.
- [18]It also seems to me that there was a failure to act in accordance with s 48(5) in imposing the fine of $3,500, because that amount was quite disproportionate to the value of the loss or damage caused to the complaints by the offences, or the benefit to the appellant from committing the offences. It would appear to following that this provision also did not receive considerations from the magistrate. This is not a mandatory requirement, like s 48(1), but it is obviously appropriate to take it into account in relation to the objective seriousness of the offending.
- [19]It was submitted for the respondent that when resentencing for the breach of probation I could take into account the subsequent offending, and the fact that the probation order had been breached, as showing that there was a greater need for personal deterrence and a reduced prospect for rehabilitation, and that it was also relevant that the appellant was now older. The relevant provision of s 125(4) is subsection (4) which provides as follows:
“(4)The court may also (a) if the community based order was made by a Magistrates Court—subject to section 126A, deal with the offender for the offence for which the community based order was made in any way that it could deal with the offender if the offender had just been convicted by it of the offence”.
- [20]The approach to resentencing under this provision was considered by the Court of Criminal Appeal in R v Gills [1986] 1 Qd R 459. Thomas J as his Honour then was, with whom the other members of the Court agreed, said at p 460:
‘It is necessary to consider the nature of the exercise that a court performs in dealing with an offender after breach of probation. In the first place it is clear that the offender is to be dealt with for the original offence and that only. … In the second place it is clear that no additional penalty is justified by reason of the fact that the offender has breached the terms of his probation order or committed an offence during the relevant period. In the third place it is clear that the court is entitled to use the benefit of the hindsight obtained from subsequent events.[8] A familiar instance of this (which is present in the instant case) is that it may become clear that probation is no longer a suitable sentencing option. The nature of the later offence may be relevant in demonstrating this. Of course he must not be punished twice for the later offence, but the reaching of a conclusion that probation is no longer suitable does not infringe that principle; it is the use of available information of events up to the date of sentence which will enable the sentencing judge properly to understand the conduct and character of the offender and to consider the sentencing options open to him. It is well established that the court may take into account all relevant circumstances up to the time of sentence, including those of offences committed since the probation order.”
- [21]The same point was made by McPherson JA in R v Hoeksema [2005] QCA 190.[9] His Honour said at page 5:
“The function of a judge in re-sentencing for a breach of probation in circumstances like these extends to reconsidering the seriousness of the offences committed in the light of the offender's subsequent behaviour or criminal conduct.”
- [22]The effect of the authorities is that some regard can be had to the later offending when resentencing, provided that the offender is not punished twice for the later offence, the breach offence, and is not subject to an additional penalty just because the probation order was breached.[10] On the other hand, the fact that the offender is no longer suitable for probation, or perhaps any community based order, may well be properly taken into account, and the court can have regard to the subsequent offending when considering prospects of rehabilitation at the time of resentencing, and the need for personal deterrence. This may have the effect of reducing the significance of mitigating circumstances personal to the offender, and in that way increasing the significance of the criminality of the offending for which he is being resentenced.
- [23]Accordingly it was appropriate when resentencing the appellant to take into account the subsequent offending, and his performance generally on probation. Those factors certainly indicated that it would not have been appropriate on resentencing to impose a community based order, and supported the imposition of a fine. On the other hand, it was still necessary to bear in mind the matters referred to in s 48 of the Act, and in addition the extent to which there was compliance with the probation order; there was a significant amount of reporting even if in other respects there was not very much achieved. The appellant ought to have received credit for the extent to which the requirements of probation had in fact been complied with during the term of the order.[11] It is not clear that the magistrate took this into account either.
- [24]I therefore set aside the penalty imposed on resentencing, and substituted by way of resentencing for each of the seven offences a fine of $50. That took into account the very limited financial circumstances of the appellant, and the fact he had to some extent already complied with the probation order. Each fine was affectively half his weekly income, the equivalent, for a person on an average weekly income of about $1000, to the fine imposed by the magistrate. Such a figure takes into account the limited income of the appellant, which of course would leave him with a very limited capacity to make any regular payment off any such fine. Collection of the fine was referred to SPER. The order of the magistrate in relation to the breach of probation, in particular the order recording convictions for the offences, was otherwise confirmed.
Footnotes
[1] AB v R (1999) 198 CLR 111 at [113]; R v Horne [2005] QCA 218 at p 7.
[2] R v Webber (2000) 114 A Crim R 381 at 384.
[3] For some of the more minor offences a conviction was recorded but the appellant was not further punished.
[4] This was uncontentious before me.
[5] Veen v R (No. 2) (1988) 164 CLR 465 at 477.
[6] Penalties and Sentences Act 1992 s 13.
[7] R v Prentice [2003] QCA 34 at [17]-[22].
[8] Citing R v Evans [1963] 1 QB 979 at 985.
[9] See also R v Cuthbert [1992] QCA 184.
[10] That is itself an offence under the Penalties and Sentences Act, for which a separate penalty can, in a appropriate case, be imposed: s 123(1).
[11] Section 125(6)(b); R v Butt [1994] QCA 262.