Powley v Queensland Police Service
[2017] QDC 152
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Powley v Queensland Police Service[2017] QDC 152
- Add to List
Powley v Queensland Police Service[2017] QDC 152
Powley v Queensland Police Service[2017] QDC 152
DISTRICT COURT OF QUEENSLAND
CITATION: | Powley v Queensland Police Service [2017] QDC 152 |
PARTIES: | JARELLE LILA POWLEY (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 193/16 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Southport |
DELIVERED ON: | 12 June 2017 |
DELIVERED AT: | Southport |
HEARING DATE: | 29 May 2017 |
JUDGE: | Kent QC DCJ |
ORDER: |
The period of probation will be for two and a half years. The normal requirements of probation will apply. However, there will also be special conditions pursuant to s 94 of the Penalties and Sentences Act 1992 (Qld) as follows:
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the Magistrate imposed actual custody of 50 days for failure to stop – whether that sentence was manifestly excessive – whether the Magistrate should have imposed a fine of 50 penalty units CRIMINAL LAW – APPEAL AGAINST SENTENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the Magistrate concluded the minimum sentence for failure to stop is actual custody of 50 days – whether that conclusion was incorrect – whether the Magistrate could have imposed a fine of 50 penalty units Justices Act 1886 (Qld), s 222 Penalties and Sentences Act 1992 (Qld), s 9, s 94, s 147 Police Powers and Responsibilities Act 2000 (Qld), s 754 AB v R (1999) 198 CLR 111; [1999] HCA 46, cited R v MKL [2016] QCA 249, cited |
COUNSEL: | S Lynch for the appellant D Darwen (sol) for the respondent |
SOLICITORS: | Gatenby Criminal Law for the appellant Office of the Director of Public Prosecutions for the respondent |
Nature of the appeal
- [1]The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld) against the sentences imposed by the Magistrates Court at Southport on 28 July 2016. It is contended by the appellant that the sentence imposed is manifestly excessive and further that there was an error in the Magistrate’s conclusion that, in relation to an offence of fail to stop, he had no choice but to impose a minimum 50 days in actual custody (thus requiring further time in custody), whereas in fact a minimum fine of 50 penalty units was also available.
Background
- [2]The appellant pleaded guilty to a large number of offences as set out in a schedule, which was prepared by the learned Magistrate and attached to his sentencing remarks. For ease of reference a copy of the schedule is attached hereto. Some relevant features thereof include that of the 30 substantive offences dealt with by his Honour, three pre-date the sentence of probation and community service imposed on the appellant in the Southport Magistrates Court on 20 March 2014; his Honour dealt with a breach of the community service order and resentenced the appellant in respect of those matters, offences which go back to 2013; and, of the remainder, a large number (12) refer to breaching of bail conditions (rather than, for example, the more serious offence of failure to appear).
The offending
- [3]I record a general narrative overview of the offences as follows. The charge of wilful damage arose in December 2009. Late one evening, the appellant went with a group of people to a house at Arundel and kicked in a glass panel. She was 18 years of age at the time. On 24 January 2012, she hired some costumes, which were not returned; thus, she pleaded guilty to stealing. In October/November 2012, she stole furniture, a TV, speakers and a DVD, all of which were rented. On 13 February 2014, she failed to report on bail. On 2 August 2014, she received a stolen licence. On 17 December 2014, she drove whilst unlicensed, contravened a direction by giving a false name and had two small fireworks in her handbag. Between 21 December and 28 December 2014, she failed to return a hire car, thus using it unlawfully. She drove it dangerously, away from police, and failed to stop. By committing those offences, she was in breach of her bail. Many of the other breach of bail offences are failures to report to police as required.
- [4]The appellant also was in unlawful possession of medication (mirtazapine) and tainted property such as a wallet and mobile phone. She also gave police a false name on that occasion (1 April 2015).
- [5]Other bail breaches include breaches of curfew and failing to reside at her bail address. On 24 August 2015, she failed to appear in court and was later located and a warrant executed.
- [6]Another tainted property charge included stolen number plates. She had $1,990 cash, said to be proceeds of a drug offence.
- [7]The appellant had breached her previous probation and community service orders, by failing to report and performing none of the community service hours. She was held in custody for periods of time during the currency of her probation and community service orders, but when released did not engage with corrective services.
- [8]Her drug offences include possession of cannabis and methamphetamine. A serious offence is the burglary for which she was previously placed on probation. It was a burglary of a house occupied by an 87 year old woman. Property taken included two handbags, a garage remote, keys and jewellery.
- [9]The sentence imposed included a number of sentences of imprisonment, some of which were required to be cumulative pursuant to the operation of the Bail Act. The practical effect of the total of sentences imposed was a head sentence of 12 months imprisonment. His Honour imposed a parole release date as at 15 September 2016, that is, after she had served 50 days imprisonment pursuant to his Honour’s misconception of the effect of s 754.
Is the sentence in error?
- [10]The error submitted to have been made by the learned Magistrate was that he had no choice but to impose 50 days actual custody concerning the offence of failing to stop, which is embodied in s 754 of the Police Powers and Responsibilities Act 2000 (Qld). Section 754(2) provides for a minimum penalty of 50 penalty units or 50 days imprisonment served wholly in a corrective services facility. Therefore, his Honour had the jurisdiction to impose a fine and it is common ground that in this way the sentencing discretion miscarried. A careful reading of his Honour’s sentencing remarks does not reveal a consideration of the possibility of a fine which was then dismissed;[1]rather there is only mention of the custodial penalty. It might be said that it was implicit in the remarks that his Honour went through this reasoning process, but did not enunciate it, perhaps because custodial penalties were unavoidable for other matters. However, this is not an argument made to me, and, in any case, it would be difficult to read the reasons in that way and more so to justify such an approach when the appellant had spent such a significant period of time on remand. I consider the respondent’s concession on this aspect to be rightly made.
Resentencing
- [11]The appellant submits, in effect, that the challenged decision being affected by error, and thus the sentence below should be set aside and the sentencing discretion exercised afresh by this Court.[2]An important feature of the sentencing process is that the appellant had served 244 days in pre-sentence custody (it seems between October 2015 and June 2016),[3]which was not able to be declared as time served under the sentences, because the appellant had also been on remand for other offences that are yet to be dealt with in the Supreme Court. Thus, a further submission by the appellant is that, apart from the error made concerning s 754, the sentencing discretion miscarried, because insufficient weight was given to the time served on remand (approximately eight months).
- [12]The respondent properly concedes the Magistrate was in error concerning the operation of s 754 and, in effect, concedes that, in the circumstances, the sentencing discretion falls to be re-exercised by this court. It is also conceded that the Magistrate did not make a declaration of pre-sentence custody – this was quite proper – however, he also did not take into account the non-declarable pre-sentence custody. This is a correct view of his Honour’s reasons.[4]It was not appropriate in the circumstances to disregard the non-declarable time spent on remand.[5]
- [13]In all the circumstances, the sentences below are set aside. In exercising the discretion afresh, I take into account a number of relevant factors. The appellant was aged between 23 and 24 at the time of committing the offences and is now 26 years of age. She has had a difficult life. Her mother was a prostitute and addicted to drugs and, consequently, she did not have a good upbringing. She was cared for by her grandparents for a period and grew up for some time in Sydney. She returned to the Gold Coast at age 14 to live with her mother and brother who, it seems, were both alcoholics at that stage. In 2010, she was stabbed and seriously wounded by a drug-affected person. She was the victim of an abusive partner and gave birth to a child in 2014. She later lost custody of her child.
- [14]During the appellant’s time on remand, she had some assistance from Sisters Inside to attempt to rehabilitate. She had a significant methamphetamine habit and it was said that her weight had dropped to 41 kilograms. It is said that she has now been off drugs for some time. She is also said to suffer from post-traumatic stress disorder which is treated with medication.
- [15]The appellant commenced some vocational training in prison, in a course in hairdressing. She has made some enquiries about assistance from Drug Arm to stay away from drugs. She has now been on bail pending appeal for some time.
- [16]I take into account the purposes for which sentence is to be imposed pursuant to s 9(1) of the Penalties and Sentences Act 1992 (Qld); also, that imprisonment is a last resort and allowing the offender to remain in the community is preferable;[6]the maximum penalties for the offences and the significant non-declarable remand time; and, of course, the plea of guilty. Mathematically, the approximately eight months on remand, with a plea of guilty, could be seen as the custodial equivalent to release after one third of a two year sentence.
- [17]It is certainly true that the appellant embarked on a serious offending spree which persisted for some time and deserves significant punishment. However, balancing the competing factors drives me to the conclusion that further time in custody is not warranted.
- [18]In all the circumstances, having regard particularly to the time spent on remand, it is my view that a lengthy period of supervision is the appropriate outcome. Thus, it is the intention of the court that the appellant be placed on probation for a period of two and a half years. Her understanding and consent thereto was indicated at the hearing of the appeal. Convictions should be recorded.
- [19]The orders then will be that, dealing with the various charges according to the numbers set out in the attached schedule, the appellant will be placed on probation for all charges apart from:
- charge 25, which only has an available penalty of a fine; that penalty of $250 is unchanged, in default of payment to be referred to SPER;
- charge 27, fail to stop, the penalty is 50 penalty units, again in default of payment to be referred to SPER.
- [20]The period of probation will be for two and a half years. The normal requirements of probation will apply as follows:
The appellant:
(a)must not commit another offence during the period of the order; and
(b)must report to an authorised corrective services officer at Southport by close of business on 13 June 2017; and
(c)must report to, and receive visits from, an authorised corrective services officer as directed by the officer; and
(d)must take part in counselling and satisfactorily attend other programs as directed by the court or an authorised corrective services officer during the period of the order; and
(e)must notify an authorised corrective services officer of every change of the offender's place of residence or employment within 2 business days after the change happens; and
(f)must not leave or stay out of Queensland without the permission of an authorised corrective services officer; and
(g)must comply with every reasonable direction of an authorised corrective services officer.
- [21]However, there will also be special conditions pursuant to s 94 of the Act as follows:
- That the appellant abstain from the consumption of any illegal drugs during the period of the order;
- That she submit to any drug testing during the period of the order as required by her community corrections officer;
- That in respect of any such testing, a positive result indicating the presence of any illegal drug shall amount to a breach of the order.
- [22]As to the breach of the suspended sentence imposed on 2 April 2015, I order that the appellant be subject to a further operational period of one year pursuant to s 147 (1)(a)(ii)(B) of the Penalties and Sentences Act 1992 (Qld). The reason is that it would be unjust to order her to serve the whole of the period of suspended imprisonment now when she has since the imposition of the sentence served imprisonment which is more than the suspended term but which is not able to be declared.
- [23]As to the breach of probation and community service order, the orders are set aside and for the index offences the appellant is resentenced to two and a half years probation as above. No separate penalty is imposed for breach of probation.
- [24]I have taken the non-declarable presentence imprisonment into account.
SCHEDULE:
![Powley v Queensland Police Service [2017] QDC 152](/judgmentview/image?name=320456.001.png&id=320456)