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Maclure v Queensland Police Service QDC 122
DISTRICT COURT OF QUEENSLAND
Maclure v Queensland Police Service  QDC 122
MATTHEW JAMES MACLURE
QUEENSLAND POLICE SERVICE
Appeal under s 222 Justices Act 1886
Magistrates Court, Mareeba
13 June 2018 (delivered ex tempore)
13 June 2018
CRIMINAL LAW – APPEAL – appeal against sentence pursuant to s 222 Justices Act 1886 – where the appellant was convicted of one charge of fraud and one charge of stealing – where offences committed while on parole for a suspended sentence which had been fully activated – where the appellant was to serve a period of imprisonment cumulatively with the other sentence – whether sentence was excessive – “period of imprisonment” and “term of imprisonment” in setting parole eligibility date
Criminal Code 1899 (Qld) s 16
Corrective Services Act 2006 (Qld) ss 205, 209
Justices Act 1886 (Qld) ss 222, 223, 225
Penalties and Sentences Act 1992 (Qld) ss 4, 9, 144, 145, 147, 155, 156, 156A, 160B, 160F
Allesch v Maunz (2000) 203 CLR 172
House v The King (1936) 55 CLR 499
Kentwell v R (2014) 252 CLR 601
Murray v R  QDC 219
R v Booth and Attorney-General of Queensland  QCA 478
R v Kendrick (2015) 249 A Crim R 176
R v Shillingsworth  1 Qd R 527
Veen v The Queen (No 2) (1988) 164 CLR 465
J Trevino for the Appellant
C Hoyer, solicitor, for the Respondent
Legal Aid Queensland for the Appellant
The Office of Director of Public Prosecutions for the respondent
HER HONOUR: On 5 February 2018 the appellant was convicted on his own pleas of guilty in the Magistrates Court at Mareeba of one charge of stealing and one charge of fraud. Both offences were committed on 22 May 2017.
In respect of each offence he was sentenced to six months imprisonment. Those terms were ordered to be served concurrently with each other but cumulatively upon the sentence he was already serving. The learned Magistrate set a parole eligibility date of 4 July 2018. In addition, he ordered the appellant to pay $550.58 in compensation.
The appellant appeals against the sentences on the grounds they are excessive.
Both parties provided outlines of argument and made further oral submissions on the hearing of the appeal before me today, which I have considered.
The appeal is pursuant to section 222 of the Justices Act 1886 (Qld). Pursuant to section 223 the appeal is by way of rehearing on the original evidence and any new evidence adduced by leave. Here there was no application to adduce fresh evidence.
On the hearing of an appeal the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just: section 225(1) of the Justices Act 1886. The judge may exercise any power that could have been exercised by whoever made the order appealed against: section 225(3).
For an appeal by way of rehearing, the powers of this court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172 at 22 to 23.
The appeal is determined pursuant to the well known dictum in House v The King:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
In the case of specific error, this court’s power to intervene is enlivened and it becomes my duty to resentence unless, in the separate and independent exercise of my discretion, I conclude that no different sentence should be passed: Kentwell v R (2014) 252 CLR 601 at 35.
The charges before the Magistrates Court arose in these circumstances. The appellant had failed to make payments pursuant to a rent to buy mobile phone plan, while remaining in possession of the mobile phone. The total amount still owing pursuant to the mobile phone plan at the time that he stopped making the payments was $550.58. The phone had been bought for $680.58 and the appellant had made two payments before failing to pay any further instalments.
The charge of fraud involves the appellant using the phone as a pledge for a loan of $200 from a pawnbroker. On the same date alleged for the stealing, 22 May 2017, the appellant went to a pawnbroker and, in effect, hocked the phone in exchange for a loan of $200. He did not return to repay the loan within the relevant period and the phone was subsequently onsold.
The appellant submits that it is arguable that the appellant should only have been charged with and/or punished for one of either the fraud or the stealing, as both offences were based on the same act or omission on the same date, that is, pledging the phone when he had no lawful right to do so. See section 16 of the Criminal Code.
The appellant’s counsel submits that the appellant failing to make the payments on the phone could well have been dealt with as a civil matter and that there is an element of double punishment in the two charges, as the dates of the offending are the same and they essentially arise out of the same offence. It is said that this is relevant when this court comes to exercise its discretion to resentence or consider resentencing. The respondent concedes that point.
Returning to the context in which the offending occurred, the appellant was 28 at the time of the offences and 29 at sentence.
He had an extensive criminal history involving a number of entries for property related offences, as well as a history of breaching probation orders, suspended sentences and parole.
To understand the context in which the offending occurred, it is necessary to set some history. On 6 October 2015 the appellant pleaded guilty to one count of arson of a motor vehicle. He was sentenced by the District Court to imprisonment for three years. At that time he had already served 13 months in custody which could not be declared as time served on that sentence. Having regard to that time served, the District Court ordered that the sentence of imprisonment be wholly suspended forthwith for an operational period of three years.
During that wholly suspended sentence of three years, the appellant breached the suspended sentence on 18 February 2016. On 21 October 2016 he was dealt with in the District Court before the original sentencing Judge for those breaches. The sentencing Judge activated the whole of the suspended sentence and ordered that he be imprisoned for three years. The District Court also fixed his parole release date at six months, namely, 20 April 2017.
On appeal to the Court of Appeal, the Court of Appeal allowed the appellant’s appeal, set aside the sentence imposed on 21 October 2016 and ordered that two years of the suspended sentence imposed on 6 October 2015 be activated. The Court of Appeal also ordered that the appellant’s parole release date be fixed at 20 April 2017.
The offences which are the subject of this appeal were committed while the appellant was on parole for the offence above. He had been released on parole for just over a month. He was returned to custody on 9 August 2017. By the time of his sentence before the learned Magistrate on 5 February 2018 the appellant had served a further six months in custody.
According to the transcript, the hearing before the Magistrate started at 10.14 am. The Magistrate delivered his sentencing remarks at 10.27 am. Apart from placing the facts on the record, the police prosecutor provided the learned Magistrate with no assistance by way of submissions, including on penalty. The solicitor representing the appellant at sentence informed the court that the appellant was in a relationship, had one child of his own and two stepchildren. He submitted that the appellant had committed the offences out of desperation, in circumstances where he had been asked to leave the residence he shared with his partner and needed money to pay for his accommodation expenses. The solicitor submitted that it would be appropriate to impose a fine, notwithstanding that the appellant was in custody serving a sentence.
During the discussion it was clear that the learned Magistrate considered there was a question about whether he had to impose a parole eligibility date at all. The solicitor submitted (incorrectly) that he did not think the court could impose a parole eligibility date.
As a result of being taken into custody on 29 August 2017, the appellant’s parole was cancelled on that date, so the full-time expiry of his original sentence was 8 December 2018.
The learned Magistrate’s sentencing remarks comprised two paragraphs. The learned Magistrate stated that he took into account the appellant’s pleas of guilty. He said that he:
...had reference to your criminal history, which is not, unfortunately, very good, and there are a number of previous convictions for offences of dishonesty. These offences were committed whilst you were subject to a suspended sentence imposed in the District Court on 6th of October 2015 and whilst you were on parole.
His Honour went on to impose sentences of six months on each of the charges, to be served cumulatively to any other sentence of imprisonment he may then be serving. His Honour also said, with respect to parole eligibility:
…now, I have some difficulty working this out and whether I should actually impose any date at all, but the eligibility for release date will be the 4th of July 2018.
I now turn to the grounds of the appeal. The appellant submits that the learned Magistrate erred in three significant respects. First, that he placed too much emphasis on the appellant’s criminal history for like offending and imposed a sentence which was disproportionate to the gravity of the subject offences: Veen v R (No 2) (1988) 164 CLR 465 at 477 to 478. There the High Court said that:
The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences [citation omitted].
The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.
The second error relied upon by the appellant is that in imposing a cumulative term, the learned Magistrate failed to review the aggregate sentence and consider whether the total sentence imposed was just and appropriate: R v Kendrick (2015) 249 A Crim R 176 at 31 to 41 and 70. The court there summarised and discussed the relevant principles with respect to totality, in particular at paragraph 36:
When a custodial sentence is to be imposed which will be cumulative upon or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.
See also the statement at paragraph 38.
The third ground or example of error relied upon by the appellant is that the Magistrate failed to set the appellant’s parole eligibility date by reference to his total period of imprisonment for the purposes of section 160F(2) of the Penalties and Sentences Act 1992, including the six months he had served in custody by the time of the sentence, and thereby failed to give any, or any sufficient, weight to the appellant’s pleas of guilty. The appellant referred the court to a decision of Judge Harrison in this court in R v Murray  QDC 219.
In short, the appellant submitted that those errors had resulted in an excessive sentence. It submitted that the offending conduct was, properly considered, of a trivial nature and did not warrant such severe penalties and certainly did not warrant cumulative sentences. It further submitted that the parole eligibility date set had the effect of requiring the appellant to serve five months of the six months imposed.
The Appellant submitted that, in all the circumstances, a short concurrent term of imprisonment, with a parole eligibility date set at the date of sentence, would have been appropriate.
Finally, it submitted that because the appellant was in custody at the time of sentence, with no apparent means to pay compensation, a compensation order should not have been imposed and that that order should be vacated.
The respondent conceded that the learned Magistrate fell into error by failing to properly consider whether the combined sentence imposed offended the totality principle. It conceded that the Magistrate failed to articulate any consideration of totality and failed to consider and review the aggregate sentence in order to determine whether a total sentence was just and appropriate. As a result, the respondent conceded that the court’s duty to resentence on appeal was enlivened.
The respondent also conceded that the parole eligibility date set by the Magistrate did not provide sufficient recognition for the appellant’s plea of guilty and the effect of it (requiring him to serve five months of the six months imposed before he was eligible to apply for parole) was unjust, in light of his early plea of guilty. The respondent accepted that a parole eligibility date set at the date of, or shortly after, the date of sentence would have been within the range of a proper sentencing discretion.
The only respects in which the respondent differs, in effect, from the appellant’s position are these. First, the respondent does not concede that a term of six months imprisonment was disproportionate. It submits that that term of imprisonment was appropriate in light of the defendant’s criminal history which demonstrated, it was said, a continuing attitude of disobedience of the law.
Second, the respondent did not agree that the Magistrate erred in imposing a cumulative term. It submitted that, because the appellant had returned to criminal offending within one month of being released on parole, it was within the Magistrate’s discretion to impose a cumulative term. However, it submitted that the cumulative sentence ought to have been moderated down to reflect the totality principle.
My role is not to assess to what extent the errors identified and conceded affected the outcome in the Magistrate determining what the correct sentence should be but, rather, in the exercise of my own independent discretion to determine what is now the appropriate sentence for the offender and the offences.
I turn now to consider the first ground, which is the issue of the appropriate weight to be given to the appellant’s criminal history. The starting point for that is section 9 of the Penalties and Sentences Act 1992. Pursuant to section 9(10):
In determining the appropriate sentence for an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to the nature the previous conviction and its relevance to the current offence and the time that has elapsed since the conviction.
However, pursuant to section 9(11):
Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence.
As well as the relevant principles in section 9(2), the court must also have regard to the following principles in section 9:
(a)(i): A sentence of imprisonment should only be imposed as a last resort.
(c): The nature of the offence and how serious the offence was.
(g): The presence of any aggravating or mitigating factor.
(l): Sentences already imposed on the offender that have not been served.
The appellant had a criminal history which included multiple convictions for drug and property related offences. Relevantly for the offending the subject of the appeal, he had been convicted of stealing and receiving stolen property in 2007, stealing in 2008 and receiving in the same year. In 2009 he was convicted of stealing again, four charges. In 2011 he was convicted of stealing again, one charge. And in 2013 he was convicted of five charges of stealing which occurred in August and September 2012. On those five charges he was sentenced to six months imprisonment, concurrent with other charges. Those previous convictions for stealing occurred when he was between 18 and 23 years old.
The other convictions in his criminal history make it clear that the appellant had a longstanding drug problem and that the dishonesty offending was related to his drug use. Notably, his last convictions for stealing involved offending about five years before the subject offences occurred in May 2017. He had no previous convictions for fraud.
The appellant submitted that the criminal culpability of the appellant for the subject offences was quite low. They were trivial offences and the culpability related to the fraud constituted by the conversion of pledging the phone to the pawnbroker when he did not own it. He submitted that the offending was of a different character to the previous offending, particularly that offending for which he had been sentenced to three years imprisonment wholly suspended.
On appeal, after considering the criminal history in detail, the respondent conceded that it would have been appropriate to impose a single term of imprisonment on one of the charges and to convict and not further punish on the other, because they did arise from the same offending and there was an element of double punishment. The respondent contended that although six months imprisonment was in range, a lesser period of imprisonment would also have been open. It conceded that the present offending was, in fact, properly characterised as trivial, but that the appellant’s criminal history showed a continuing attitude of disobedience to the law.
In my view, the learned Magistrate placed too much emphasis on the sheer length of the appellant’s criminal history and the fact that it included offences of dishonesty. He did so in a way that led to the imposition of a penalty which was disproportionate to the objective gravity of the subject charges. The six months of imprisonment imposed on each charge failed to properly take into account the nature and relevance of the previous convictions and the time that had elapsed since them. In particular, the five years, approximately, that had elapsed since the last convictions for stealing. In so doing, in my view, the learned Magistrate erred.
I turn now to the second ground relied upon by the appellant: that in imposing cumulative terms, the Magistrate failed to review the aggregate sentence and consider whether the total sentence imposed was just and appropriate.
The appellant submitted, correctly, that this was not a case where cumulative sentences were mandatory pursuant to section 156A of the Penalties and Sentences Act. That was because the charges of stealing or fraud were not offences in Schedule 1 of that Act, which triggered the imposition of a sentence of imprisonment to be served cumulatively with any other term of imprisonment the offender was liable to serve pursuant to section 156A(2).
In fact, the court had a discretion about whether or not to impose a cumulative sentence. Section 155 of the Penalties and Sentences Act provides that:
Unless otherwise provided by this Act, or the court imposing imprisonment otherwise orders, if an offender is serving or has been sentenced to serve imprisonment for an offence and is sentenced to serve imprisonment for another offence, the imprisonment for the other offence is to be served concurrently with the first offence.
In effect, the default position is that the sentences are to be served concurrently. Nonetheless, the court has a discretion to impose a cumulative sentence of imprisonment: see section 156.
The fact that the appellant offended while on parole was an aggravating feature. The respondent submitted that because of that aggravating feature, a degree of cumulation was appropriate because these charges represented separate offending, but the cumulative sentences ought to have been moderated down. I have already mentioned that pursuant to section 9(2)(l), the court was required to have regard to the sentences already imposed that had not been served in exercising its sentencing discretion.
Is a cumulative sentence appropriate? On 29 August 2017 the appellant’s parole order was cancelled pursuant to section 205 of the Corrective Services Act, because the appellant had failed to comply with his parole order by failing a drug test. If that cancellation had not occurred on that date, the appellant’s parole order would have been cancelled automatically in any event when he was sentenced to another term of imprisonment for an offence committed in Queensland during the parole period, by virtue of section 209 of the Corrective Services Act.
The result of that is that under section 160B(2) of the Penalties and Sentences Act, as the appellant had a court-ordered parole order cancelled under section 205 of the Corrective Services Act during his period of imprisonment, the Magistrate was required to fix an eligibility date for parole. The Magistrate did not have a discretion about whether to do so or not. To the extent he considered he did have a discretion, that was an error of law.
As I said earlier, this was not a case where a cumulative sentence was mandatory pursuant to section 156A. Sentences imposed for offences committed while on parole are nevertheless subject to the guiding principles set out in section 9 of the Penalties and Sentences Act, so that sentences imposed do not become unduly harsh: R v Shillingsworth  1 Qd R 527, per Williams JA. In particular, section 9(2)(l) of the Penalties and Sentences Act was relevant here.
In exercising the sentencing discretion, serious offences committed while on parole, particularly offences of a similar character, will ordinarily attract cumulative sentences: R v Booth  QCA 478. However, this offending was neither objectively serious nor of a similar character to that for which the appellant was on parole. He was on parole for arson of a motor vehicle. His suspended sentence was activated by breach offending for drugs and traffic offences. Although the two offences the Magistrate was sentencing the appellant for arose out of the same facts, they were neither serious nor of a similar character to the offences for which the appellant was on parole.
The court should look for some clear reason why sentences should be served cumulatively in a particular case before so ordering and should also determine whether the resulting effect of sentence is out of proportion to the combined seriousness of the offences (the totality principle). The Magistrate failed to consider those matters and in doing so erred in law.
Taking those matters into account in exercising my own independent discretion on sentence, a cumulative sentence is neither necessary nor appropriate, in my view.
I turn to the final ground, which is the issue of setting the appropriate parole eligibility date. The appellant asserts two errors. First, that the Magistrate erred in considering he had a discretion as to whether he had to set a parole eligibility date. I have already explained why that was an error pursuant to section 160B(2). Second, the Magistrate erred in failing to give sufficient weight to the appellant’s early plea of guilty.
In setting a parole eligibility date, section 160F of the Penalties and Sentences Act is relevant. Subsection (1) states that one of the objects of the earlier sections:
...is to ensure that at any one time there is only one parole release date or parole eligibility date in existence for an offender.
For that reason, when the court sets a parole eligibility date or parole release date pursuant to section 160B(2) or (3), it must not be earlier than the current parole eligibility date or current parole release date.
Returning to section 160F, when fixing a date under this division as the date an offender is to be eligible for release on parole, the date fixed by the court:
Must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment. [my emphasis]
In order to understand how that section operates it is necessary to turn to other definitions. Section 4 of the Act defines “period of imprisonment” as:
The unbroken duration of imprisonment that an offender is to serve for two or more terms of imprisonment, whether (a) ordered to be served concurrently or cumulatively; or (b) imposed at the same time or different times; and includes a term of imprisonment. [my emphasis]
“Term of imprisonment” is further defined in section 4, so far as is relevant, as:
The duration of imprisonment imposed for a single offence
Therefore it is necessary to determine what is the offender’s “period of imprisonment” for the purposes of section 160F(2). In my view the “period of imprisonment” for the purposes of section 160F(2), is two and a half years. That is comprised of two terms.
First, the two year term of imprisonment the appellant is serving or liable to serve by virtue of the order made on 21 October 2016 (when the Court of Appeal, on 11 April 2017, ordered pursuant to section 147 of the Act that the two years of the suspended sentence originally imposed on 6 October 2015 be activated). I consider that it is that two years which is to be taken into account for the purposes of calculating “period of imprisonment” rather than the three years of the suspended sentence originally imposed because of the expression within the definition of “period of imprisonment” – that it means the period an offender “is to serve”. That is because the original sentence of imprisonment for three years was wholly suspended pursuant to section 144(3) of the Penalties and Sentences Act. By virtue of section 145:
An offender for whom an order under section 144 is made has to serve the suspended imprisonment only if the offender is ordered to do so under section 147. [my emphasis]
Section 147 gives the court power on a proceeding for breach of a suspended sentence to order that the offender “serve” the whole or part of the suspended imprisonment: section 147(1)(b) and (c).
The order made by the Court of Appeal activating two years of the suspended sentence was an order requiring the offender to serve part of the suspended sentence. Therefore, I take into account that two year term for the purposes of calculating “period of imprisonment”.
The second term which needs to be taken into account in calculating the “period of imprisonment” is a six month term of imprisonment ordered by the Magistrate on 5 February 2018 to be served cumulatively with the term I have just referred to.
That means the “period of imprisonment” for the purposes of section 160F is two and a half years.
I note for completeness that the full-time discharge date of the original suspended sentence is now 8 December 2018.
I take that period of imprisonment into account in considering when to set the appellant’s parole eligibility date. It also seems to me to be relevant to take into account the fact that at the time the appellant was sentenced on 5 February 2018, he had already served some six months in custody which was not necessarily declarable for the purposes of his sentence but which could, and should, in the exercise of the court’s discretion, be taken into account. I also take into account the fact that the appellant had entered an early plea of guilty.
In all of those circumstances, it seems to me that had I sentenced the appellant on 5 February 2018 I would have fixed a parole eligibility date on that date of the sentence.
Turning now to what the appropriate order on resentence should be, the appellant submitted that I ought to make an order setting the appellant’s parole eligibility date as at the date of sentence, 5 February 2018. I invited the parties to refer me to authority for the proposition that the court, in resentencing, could set as the parole eligibility date, a date that had, in fact, passed. I was not provided with any direct authority on that point, although I accept that there may be cases where the court had implicitly proceeded on the basis that that was a course open to it.
In any event, in a practical sense it would seem to be artificial to now set a parole eligibility date that has long since passed. I do not, for the purposes of this appeal, determine that issue one way or the other. But I intend to set the parole eligibility date at today and direct that the Registrar provide a copy of these reasons to the Parole Board so that they may be taken into account in considering any application by the appellant for parole. That is so the Parole Board clearly understands that, had I sentenced the appellant on 5 February 2018, I would have imposed a parole eligibility date on that day rather than today.
Turning finally, then, to the orders. It follows from specific error having been found that I exercise my discretion to resentence the appellant afresh.
I make the following orders. The appeal is allowed. The orders of the learned Magistrate made on 5 February 2018 are set aside and the appellant is resentenced.
On the charge of fraud, the appellant is convicted and sentenced to three months imprisonment, effective from 5 February 2018.
On the charge of stealing, the appellant is convicted and not further punished. The date the appellant will be eligible for parole be fixed at today’s date.
I direct that the Registrar provide a copy of these reasons to the Parole Board so they may take them into account in consideration of any application by the appellant for parole, given my comments with respect to the parole eligibility date.
I have not specifically dealt with the order for compensation because I have already set aside all of the Magistrate’s orders.
- Published Case Name:
Maclure v Queensland Police Service
- Shortened Case Name:
Maclure v Queensland Police Service
 QDC 122
13 Jun 2018