Kelly v Commissioner of Police
[2017] QDC 156
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
- Kelly v Commissioner of Police[2017] QDC 156
- Add to List
Kelly v Commissioner of Police[2017] QDC 156
Kelly v Commissioner of Police[2017] QDC 156
DISTRICT COURT OF QUEENSLAND
CITATION: | Kelly v Commissioner of Police [2017] QDC 156 |
PARTIES: | DEAN JOSEPH KELLY (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 1539/17 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane – Date of Sentence: 3 April 2017 |
DELIVERED ON: | 9 June 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 June 2017 |
JUDGE: | Kefford DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – appeal against conviction – where the appellant was convicted of the offences of enter premises and commit indictable offence, fraud - dishonestly obtain property from another, wilful exposure and failure to appear in accordance with an undertaking – where the appellant was sentenced to four months imprisonment for the wilful exposure offence – whether the learned magistrate erred in sentencing the appellant– whether the learned magistrate failed to have regard to the principle that a sentence of imprisonment should only be imposed as a last resort – whether the learned magistrate erred in denying the appellant procedural fairness – whether the sentence was manifestly excessive |
COUNSEL: | T J Schafer (sol) for the appellant A P McGee (sol) for the respondent |
SOLICITORS: | Legal Aid Queensland for the appellant Queensland Police Service for the respondent |
- [1]This is an appeal under s 222 of the Justices Act 1886 (Qld) against a sentence imposed in the Magistrates Court in Redcliffe on 3 April 2017. On that date, the appellant pleaded guilty to the offences of enter premises and commit indictable offence, fraud - dishonestly obtain property from another, wilful exposure and failure to appear in accordance with an undertaking. On 3 April 2017, the appellant was sentenced with respect to each of those offences. The sentencing decision records the sentences as follows:
“In relation to the wilful exposure, you’re convicted and sentenced to four months’ imprisonment. In relation to the enter premises, you are convicted and sentenced to 12 months’ imprisonment. In relation to the fraud, you are convicted and sentenced to four months’ imprisonment. In relation to the failure to appear, I deal with that by way of a – a modest fine, taking into account the other sentences that have just been passed, convicted and fined the sum of $200, refer the fine to SPER. I fix the parole release date as being the 2nd of August 2017.”
- [2]The appeal is by way of rehearing on the evidence given before the Magistrates Court. It involves a review of the record of proceedings below rather than a completely fresh hearing, subject to the grant of leave on special grounds to adduce fresh, additional or substituted evidence. This court is required to conduct a real review of the evidence, which task involves weighing conflicting evidence and drawing inferences and conclusions. However, in doing so, the court must bear in mind the advantage the Magistrate had in seeing and hearing any witnesses.
- [3]To succeed on an appeal against a Magistrate’s exercise of sentencing discretion, the appellant must establish an error of the type identified in House v R (1936) 55 CLR 499, at 504-5; [1936] HCA 40. It is not enough that this court considers that if it had been in the position of the Magistrate it would have taken a different course: House v R (1936) 55 CLR 499, at 504-5; [1936] HCA 40. Where it is alleged that a sentence is manifestly excessive or manifestly inadequate, appellate intervention is not justified simply because the result arrived at is markedly different from other sentences that have been imposed in other cases.
- [4]As was observed by Chesterman in R v Jackson [2011] QCA 103 at 25:
“The cases do suggest that the applicant has been punished severely. That, however, does not dispose of the application. To succeed the applicant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no one “right” penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of law.”
- [5]Manifest error arises if the sentence is beyond the range of sentences that could have been imposed. It is revealed by a consideration of all of the matters that are relevant to fixing the sentence: Hili v R (2010) 242 CLR 520, 539 [60]; [2010] HCA 45. The circumstances of the offending conduct are relevant to whether the Magistrate erred.
- [6]The circumstances of each of the offences are agreed. They are as follows.
Enter premises and commit indictable offence
- [7]The complainant is Robert Mackay, who resides at Duffield Road, Margate. Between the dates of 25 January 2017 and 28 January 2017, the appellant opened the complainant’s garage door and removed a Victa lawnmower, an empty fuel can and some fishing rods. There is no internal access to the victim’s house from the garage. The appellant then exited the garage with the items.
Fraud - dishonestly obtains property from another
- [8]The complainant is Cash Converters Kallangur. On 29 January 2017, the appellant pawned the stolen Victa lawnmower for $50.
Wilful exposure
- [9]On 18 February 2017 at Brighton Park, a witness observed the appellant walk past her and sit a short distance away on the grass against a fence. The witness observed the appellant pull his pants down and expose his genitals. The witness observed the appellant begin to stroke his penis while looking directly at her. The appellant followed the witness to her car as she called the police.
Failure to appear in accordance with an undertaking
- [10]The appellant entered into an undertaking requiring him to appear at the Sandgate Magistrates Court on 20 March 2017. The defendant did not appear on 20 March 2017 and a warrant was issued for his arrest.
- [11]During the sentencing hearing the Magistrate was provided with a copy of the appellant’s criminal history. It contains multiple convictions for drug-related offences, property-related offences and domestic violence offences. The appellant has been subject to terms of imprisonment on three occasions. He has been sentenced to probation on three occasions, with one of those probation orders being subject to breach action. The appellant has been sentenced on two occasions to offences similar to the enter premises offence subject to this appeal.
- [12]On 13 September 2012, the appellant received three months imprisonment for an offence of enter dwelling with intent to commit indictable offence by break. On 21 January 2017, the appellant received a $500 fine for an offence of burglary and commit indictable offence.
- [13]The appellant was 31 years of age at the time of the offending.
Sentencing hearing before the Magistrate
- [14]During the sentencing hearing the following exchanges occurred between the Magistrate and the defendant, following the defendant having pleaded guilty to the offences:
“BENCH: All right. Have a seat and I’ll hear the facts on all of these. Any reason why you didn’t see the duty lawyer today? Fairly serious charges.
DEFENDANT: Too late, I think.
BENCH: All right. Is there any history?
PROSECUTOR: Yes, your Honour. I’ll hand up the history.
BENCH: You’ve seen the history? Do you accept your history, sir?
DEFENDANT: Yes. Yep.
BENCH: It will be marked as exhibit 1.
…
BENCH: Just let me have a look at that first.
PROSECUTOR: Yes, your Honour.
BENCH: Do you want an opportunity to give instructions to the duty lawyer? You’re at risk of imprisonment.
DEFENDANT: No.
BENCH: No? All right. Thank you. I will hear the facts. Thanks.”
- [15]The prosecutor then outlined the facts with respect to each of the offences. This was then followed by the following exchange:
“BENCH: Yes, sir, anything you wish to say? Why shouldn’t I impose imprisonment?
DEFENDANT: I don’t know, your Honour. I’ve got nothing to say.”
Approach of the Magistrate on sentence
- [16]The sentencing remarks record that the Magistrate took into account the nature and circumstances of the charges, the plea of guilty (with reduction in penalties given as a consequence), and all relevant matters in s 9 and s 11 of the Penalties and Sentences Act 1992 (Qld) and that the Magistrate had considered all relevant sentencing options. It also noted that the Magistrate had considered the appellant’s history and the Magistrate remarked:
“You were only before the Redcliffe Magistrates Court, this court, on the 23rd of January 2017 for a burglary offence, which was – was dealt with with some considerable leniency. I note that the most serious of these offences, the enter premises, was committed only a few days after that conviction. There is a prior conviction for a similar offence.
The wilful exposure charge has concerning features about it and I’m – I’m also concerned about that. In relation to all of these charges – in relation to some of them, at least, I’m satisfied that it’s appropriate and no more severe than you should be sentenced to terms of imprisonment.”
Grounds of appeal
- [17]The appellant submits that the learned Magistrate fell into three errors:
- (a)the learned Magistrate erred by sentencing the appellant to four months imprisonment for the wilful exposure offence, when the maximum penalty under s 9 of the Summary Offences Act 2005 (Qld) was only two penalty units;
- (b)the learned Magistrate failed to have regard to the principles that a sentence of imprisonment should only be imposed as a last resort and that a sentence allowing the offender to stay in the community is preferable; and
- (c)the learned Magistrate denied the appellant procedural fairness as he was not given an opportunity to make submissions about the structure of the sentence that was about to be imposed on him.
- [18]It was also submitted that the sentence is excessive in respect to the enter premises and commit indictable offence, wilful exposure, fraud and failure to appear offences.
Error with respect to wilful exposure offence – maximum penalty
- [19]The respondent accepts that, in relation to the offence of wilful exposure, the sentence imposed was not in accordance with the law. While the factual basis of the offence clearly involved a circumstance of aggravation, that circumstance of aggravation was not alleged and the maximum penalty for the offence was therefore two penalty units. The appellant submits that the appropriate penalty for this offence, taking into account the maximum penalty of two penalty units, would be a small fine or an order that the appellant be convicted and not further punished. The respondent submits that given the offence was in no way related to the enter premises and stealing offences, to convict and not further punish would not adequately reflect the very concerning aspects of this offending and that the appellant should be re-sentenced to a fine.
- [20]I am satisfied that a fine is the appropriate sentence and that it should be towards the higher end of the amount that could be fined.
Failure to have regard to the principle that a sentence of imprisonment should only be imposed as a last resort
- [21]The appellant acknowledges that the learned Magistrate did state in his reasons that he had consideration of all relevant matters in s 9 and s 11 of the Penalties and Sentences Act 1992 (Qld) and had considered all relevant sentencing options. The appellant, however, relies on the fact that the learned Magistrate only raised the sentencing option of imprisonment with the appellant and that the learned Magistrate first stated that the appellant was “at risk of imprisonment” after reading the appellant’s criminal history, which was before hearing the facts of the charges. The learned Magistrate then, after hearing the facts, directly asked the appellant, “Why shouldn’t I impose imprisonment?”
- [22]The appellant submits that the approach taken by the Magistrate violates the principles in s 9(2) of the Penalties and Sentences Act 1992 (Qld) and that it could be inferred from the learned Magistrate’s comments that the only option considered by the court was a period of imprisonment and that the period of imprisonment was the starting point.
- [23]I have already recorded the relevant parts of the transcript with respect to the interchanges between the learned Magistrate and the appellant. A fair reading of the transcript indicates that the remarks by the Magistrate were made to a self-represented litigant, in layman’s terms, to express the seriousness of the offending and inviting him to make submissions. They were also made in a context in which he was invited to take the opportunity to give instructions to the duty lawyer. The comments cannot be considered to have expressed the only option considered by the court was imprisonment.
- [24]The appellant had previously had the benefit of probation and also had been sentenced to terms of imprisonment and it was clear from his history that, given the nature of the charges he was at risk of imprisonment. In my view, no error was made by the Magistrate in this regard.
Denial of procedural fairness
- [25]The appellant submits that the appellant’s situation is analogous to the position of Mr Poetschka on the basis that the learned Magistrate did not make it clear to the appellant how the sentence would be structured or whether a period of imprisonment that was about to be imposed involved actual time in custody. Kingham DCJ in Poetschka v Queensland Police Service [2015] QDC 108 stated at [5]:
“Given the substantial consequences of cumulative rather than concurrent sentences, it was not fair to Mr Poetschka to proceed without hearing from him about the structure of the sentence before imposing it.”
- [26]It is submitted by the appellant that, given he was an unrepresented litigant in the sentencing hearing, the learned Magistrate should have explained the fact that the imposition of a period of imprisonment would involve actual custody to the appellant, so that he might meaningfully respond to the invitation to make submissions. In my view, there is no relevant error. The appellant had the opportunity to make submissions, as well as see a duty lawyer, and was asked on more than one occasion after being told imprisonment was likely and that the charges were serious. The appellant had previously been sentenced to terms of imprisonment for similar offending and had served actual custody, so could have been under no misapprehension as to the sentence the learned Magistrate imposed.
Was the sentence manifestly excessive
- [27]The appellant submits that the sentence is excessive in respect to the enter premises and commit indictable offence, wilful exposure, fraud, and failure to appear offences. The submissions on excessiveness are focussed on the head sentence of 12 months imposed on the enter premises and commit indictable offence charge but it is also submitted that a smaller concurrent sentence should follow for the fraud offence if the appeal is granted.
- [28]The appellant relies on three cases that he says will assist the court in determining the appropriate head sentence. They are Chevathen v Queensland Police Service [2016] QDC 270, R v McDowall [2005] QCA 260 and Paterson v Commissioner of Police [2007] QDC 253.
- [29]In Chevathen v Queensland Police Service [2016] QDC 270, the applicant pleaded guilty to offences of public nuisance, possession of a knife, enter dwelling with intent at night, enter premises and commit indictable offence, wilful damage, and assault/obstruct police. The applicant was sentenced to 12 months imprisonment cumulative on an existing six month sentence that the applicant was serving. The applicant was 31 years old, with a relevant criminal history and was on parole for four charges of contravening a domestic violence order, three charges of wilful damage and one charge of burglary, for which he received six months imprisonment with release on parole after taking into account 38 days of pre-sentence custody.
- [30]The appellant submits that the applicant’s offending in Chevathen is worse than the appellant’s offending due to being convicted of more serious offences, a greater number of offences and committing them whilst subject to a period of parole for like offences. Those differences do not, to my mind, demonstrate that the sentence imposed on the appellant was manifestly excessive. There are also other distinguishing features, which are material in terms of the sentences imposed in that case. In particular the applicant suffered a mental illness and the 12 months imprisonment was moderated because it was made cumulative to a sentence the applicant in that case was serving. The offending in Chevathen v Queensland Police Service was described as “odd” and “bizarre” and, with the applicant suffering from mental illness, less weight was attached to specific deterrence.
- [31]In R v McDowall [2005] QCA 260, the applicant pleaded guilty to seven property offences, including four counts of breaking, entering and stealing. One count was committed while subject to police bail. The loss to the victims was approximately $3,600 and included damage to property, money stolen and value of property stolen. The applicant there was between 23 and 24 years of age at the time of committing the offences but was referred to by the sentencing Judge as a “mature man”. The applicant there gave R v AB style admissions to two of the offences and was an indemnified witness with respect to another police investigation. The applicant did not have any prior history. The applicant was sentenced to nine months imprisonment with a suspension after serving one month. The offending occurred in the context of a drug addiction.
- [32]The appellant submits that the applicant’s offending in that case is worse than the appellant’s, given the conviction of a greater number of offences and more serious offences. That does not demonstrate to me that the sentence in this case is beyond the acceptable scope of judicial discretion. In the case of R v McDowall, where the offender was younger with no criminal history, provided significant cooperation and suffered from a drug addiction. He had also made an offer of compensation.
- [33]The third case relied on by the appellant is Paterson v Commissioner for Police [2007] QDC 253. There, the applicant pleaded guilty to four charges of attempt to enter premises, two charges of enter premises and one charge of possessing housebreaking implements. The applicant was aged in his forties but had not committed any offences since his twenties. He was sentenced to 12 months imprisonment with suspension after serving two months. On appeal, the head sentence was reduced to six months imprisonment. The applicant had an extensive criminal history, both as a juvenile and an adult, in Victoria but no offending between 1991 and the date of the original sentence. The offences were committed in company with another and a total loss of $1,827.96 was suffered with $609 attributable to the applicant. The applicant cooperated with the police investigation and took part in a record of interview.
- [34]The appellant submits that the offending of the applicant in that case was more serious than that of the appellant, in that there were more property offences in number and the applicant’s criminal history was extensive. Once again, that sentence does not demonstrate to me that the sentence imposed by the learned Magistrate in this case was beyond the acceptable scope of judicial discretion. The appellant’s criminal history was more recent than in Paterson v Commissioner for Police. There had been a 15 year gap to his prior conviction, which could indicate the potential for rehabilitation. By way of comparison, the appellant here committed an offence within days of having been sentenced for a similar property offence.
- [35]In all of the circumstances, the sentences imposed are not, in my view, manifestly excessive. I propose the following orders:
- (a)The appeal is allowed in part.
- (b)The sentence for wilful exposure be set aside and the appellant is resentenced to a fine of $200.
- (c)The appeal in relation to the penalties imposed for the other offences is dismissed.
- (d)Otherwise, the sentence imposed on 3 April 2017 is confirmed.