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Annas v Queensland Police Service[2018] QDC 251

Annas v Queensland Police Service[2018] QDC 251

DISTRICT COURT OF QUEENSLAND

CITATION:

Annas v Queensland Police Service [2018] QDC 251

PARTIES:

Jordan Cole Annas

(Appellant)

v

Queensland Police Service

(Respondent)

FILE NO/S:

175/18

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

6 December 2018

DELIVERED AT:

Townsville

HEARING DATE:

28 November 2018

JUDGE:

Coker DCJ

ORDER:

  1. That the appellant have leave to proceed with the appeal out time.
  2. That the appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE

– section 222 Justices Act 1886 – where the appellant pleaded guilty to one count of burglary and one count of unlawful use of a motor vehicle – where the appellant was sentenced to three years’ imprisonment for the burglary offence – where the appellant was sentenced to 6 months imprisonment for the unlawful use offence – where the periods of imprisonment were to be served concurrently with a period of  approximately 6 months imprisonment relating to previous offending also to be served cumulatively – where the head sentence was therefore a period of approximately three and a half years – where the appeal was filed out time – where the late filing was explained and leave was granted to proceed out of time – whether the sentence was manifestly excessive.

LEGISLATION:

Justices Act 1886 (Qld), s 222, s 224(1)(a)

Penalties and Sentences Act 1992 (Qld), s 9(10)

Criminal Code 1889 (Qld), s 419(4), s 408A(1)(a)

CASES:

Dinsdale v the Queen [2000] HCA 54

Lowe v The Queen (1984) 154 CLR 606

Rongo v Commissioner of Police [2017] QDC 258

Ross v Commissioner of Police [2018] QDC 99

R v Donald [2000] QCA 399

R v Doyle [2011] QCA 14

R v Hazelgrove [2013] QCA 243

R v Ikin [2007] QCA 224

R v Lomass (1981) 5 A Crim R 230

R v Macintosh [1923] St R Qd 278

R v Morse (1979) 23 SASR 98

R v Tait [1998] QCA 304

R v Vaughan [2005] QCA 348

SOLICITORS:

The Appellant appearing on his own behalf

S Sutherland of the Office of the Director of Public Prosecutions (Qld) for the Respondent

  1. [1]
    This is an appeal against sentence.  The appellant, Jordon Cole Annas was convicted on his own plea in the Magistrates Court at Townsville on the 11th of June 2018.  He pleaded guilty to two charges, one of burglary and stealing pursuant to the provisions of section 419(4) of the Criminal Code, and unlawful use of a motor vehicle pursuant to the provisions of section 408A(1)(a) of the Criminal Code.
  1. [2]
    The penalties, respectively, applicable in relation to each of those offences is life imprisonment and seven years imprisonment.  It reflects, obviously, the concerns with regard to the type of offence that brings the appellant before the court.  In relation to those offences, he was sentenced, respectively, to terms of imprisonment to be served concurrently.  In relation to the burglary and stealing, he was sentenced to three years imprisonment, and to the unlawful use of a motor vehicle, six months imprisonment.  The terms of imprisonment, however, were ordered to be served cumulatively with a period of approximately of six months that remained to be served in relation to previous offending, which was then being served. The full time discharge date in relation to that offending was the 17th of December 2018. Accordingly, the effective head sentence was one of about three and a-half years in total. 
  1. [3]
    The appellant had served four days in declarable pre-sentence custody and it was also noted that the appellant was liable to serve four days relating to the period that he was at large from the 22nd to the 26th of February 2018, being the date of offending to the date of his apprehension.  The three year term of imprisonment, therefore, does not technically commence until the 21st of December 2018.  The orders made by Magistrate Smid on the 11th of June 2018 specifically included a parole eligibility date fixed for the 14th of June 2019.  It was, therefore, just a few days over 12 months that was required to be served from the date of the sentence on the 11th of June 2018 until parole eligibility became available.  It was less than one-third of the period of approximately three and a-half years, which would normally be required to be served in relation to the head sentence, and accordingly, less than one-third of what would normally be the case, approximately 14 months.
  1. [4]
    The appellant lodged his appeal against his sentence in this court, pursuant to the provisions of section 222 of the Justices Act, on the 13th of July 2018.  His appeal was filed out of time, though it is the case that the notice of appeal was signed and dated the 4th of July 2018.  It was only received at the District Court Registry in Townsville on the 13th of July 2018 and was, therefore, technically filed four days outside of time. 
  1. [5]
    Section 224(1)(a) of the Justices Act provides that a District Court may, on the application of a party to the proceedings or upon the judge’s own initiative, extend the time for filing a notice of appeal. The relevant criteria in relation to assessing whether an application for extension of time should be successful has been considered by the Court of Appeal in the R v Tait [1998] QCA 304.  At paragraph 29 the court there commented in relation to an application for an extension of time as follows:

…the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. That may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal10, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay it being much easier to excuse a short than a long delay.

  1. [6]
    Obviously, the appellant requires leave to proceed with the appeal.  The respondent’s position in that regard is to say that, although the delay is only short, some four days, the appeal against sentence does not have any merit and, therefore, it is not in the interest of justice to grant the extension.  Whilst normally I would consider that to be a particularly strong submission to be considered, in relation to a matter such as this, I am minded, in the circumstances, to grant the extension of time and to then consider more fully the appeal itself.  The reason for my inclination to extend time is simply that whilst the appeal was filed four days late, it was, in fact, the case that it was signed and dated five days or so prior to the time limit expiring.
  1. [7]
    Whilst it would normally be the case that there would be an expectation that filing would occur within the time frame required pursuant to the Justices Act, it is more difficult for a person held in custody to do so, other than if they were to have the assistance of legal representatives or, if appropriate, leave was granted, friends or family. Otherwise, as is the case as I understand it here, there would be the requirement to rely upon officers of the Department of Corrections facilitating the forwarding of the appeal for filing, and whilst that has, no doubt, occurred in an appropriate time frame, it has not been attended to in a manner which has meant that the issue of whether or not the filing was within time was addressed.
  1. [8]
    As such, it would be, in my assessment, inordinately harsh to refuse leave when it was clearly the expressed intention of the appellant to appeal the sentence imposed by Magistrate Smid, and also to have the opportunity to be heard.  I note in that regard however, that the appeal was listed for review before Judge Lynham on the 17th of September 2018, and at that time His Honour listed the matter for hearing before me.  He also directed that the appellant was to file and serve an outline of submissions by close of business on the 9th of November 2018, which was to be responded to by the respondent by close of business on the 16th of November 2018.
  1. [9]
    Judge Lynham also directed that the appellant was to include in the outline of submissions an explanation of the delay in the filing.  In fact, a document headed “To whom it may concern” was filed by the appellant on the 28th of September 2018, only 11 days after the review was conducted.  But it should be noted that the submission, which is only a page and a half of handwriting long, did not address the issue of delay. 
  1. [10]
    Notwithstanding those obvious omissions, I am of the view that it is appropriate that there should be leave granted in relation to allowing the appeal to proceed, particularly, being mindful of the fact that the appellant acts on his own behalf and clearly has, as will become clear from these further reasons, a keen interest in understanding why his appeal may or may not be successful.
  1. [11]
    In any event, if leave were not to be granted, there would still need to be a concerted effort to explain why the appeal may not have merit, in which case it would be necessary to address most, if not all, of the issues that will follow.  Accordingly, leave is granted to proceed with the appeal.
  1. [12]
    At the time of sentencing the police prosecutor provided Magistrate Smid with a sentencing schedule.  That sentencing schedule set out many of the matters which were required to be considered, in relation to the penalty to be imposed.
  1. [13]
    Firstly, and perhaps unsurprisingly, it recognised that the appellant committed the offences six days after being released on court ordered parole.  In fact, the learned magistrate made reference to it only being four days, following the release on court ordered parole, but it is perhaps, in the whole scheme of things, neither here nor there, in that re-offending occurred within a matter of days of release. 
  1. [14]
    The offending itself occurred in the early hours of the 22nd of February 2018.  The schedule of facts reveals that the appellant and other unknown offenders entered the house of the complainant in this matter.  The complainant was Neil Douglas Madin. It was suggested that the victim did not know the appellant or other offenders.  However, one of the many matters that were referred to in his oral submissions was that the appellant, in fact, knew the victim and was owed money by him.  That was not raised or made known to the learned magistrate.
  1. [15]
    Entry occurred to the victim’s residence at approximately 4.20 am, via an unlocked sliding door.  The schedule provided indicated that the house had been the subject of what was described as an “untidy search”.  The submissions made on the part of the respondent to this appeal was that the house had been ransacked.  No matter what might be the description, it was apparently clear that the home has been the subject of a thorough search by those who had unlawfully entered, and was in a very poor state, following the burglary.
  1. [16]
    The schedule goes on to note that the appellant consumed a quantity of pharmaceutical drugs, which it is suggested were removed by him from the kitchen.  The appellant, in his submission, was not sure if that was the case, but rather suggested that he had been the subject of drug “spiking”, prior to the offending, and whilst he says that that was made known to his legal representatives prior to the plea being entered, it was not brought to the magistrate’s attention.  More particularly, he suggested that he would not have acted in the manner that he had, were it not for the fact that he had been the subject of drug “spiking”.
  1. [17]
    The schedule goes on to note that the appellant and the others involved stole a number of items, including an amount between one thousand and five thousand dollars in savings, as well as a video camera, navigation device and a quantity of tools.  Again, the appellant indicated that he was unable to agree with any of those suggestions, though, in fact it was the case that his legal representatives had knowledge that at sentence, the schedule accorded with their instructions. 
  1. [18]
    The appellant’s recollection was dim at best and is perhaps more accurately noted as a reconstruction as best the appellant could do, in light of his circumstances.
  1. [19]
    The schedule then goes on to note that the appellant removed a motorcycle from a shed at the rear of the property and moved it onto the driveway where he attempted to start it a number of times.  However, the apparent influence of drugs, however they may have come in to the appellant’s system, meant that he fell asleep on the motorcycle in the process of attempting to kick start it.  About 14 hours later, at approximately 6.20 pm in the evening, the victim returned home and located the appellant in the driveway of his residence, still asleep on the motorcycle. 
  1. [20]
    The complainant noted that the appellant was in possession of an empty box, which had contained the navigation device and he escorted the appellant into his house and contacted the police, who arrived shortly thereafter and arrested the appellant.  It was noted that a multi-tool implement was located in the appellant’s pocket and it was identified as property of the complainant.  However, the other items referred to were not in his possession, and have not been located.
  1. [21]
    The schedule indicated that there was CCTV footage showing the appellant’s attempts to start the motorcycle prior to his loss of consciousness.  Again, the appellant suggests that he has not seen that CCTV footage and further, that his lawyers have not seen the CCTV footage, but rather had told him of its existence, and it was for that reason that he had pleaded guilty.
  1. [22]
    Finally, the schedule indicates that the appellant was not interviewed even at the time of the police’s attendance at the complainant’s residence, notwithstanding that it would appear to have been at least 14 hours after the ingestion of any illicit substances.  The schedule suggests that the appellant was transported to the Townsville watch-house and was formally charged and he was returned to custody on the 22nd of February 2018.  His parole was suspended on the 26th of February 2018.
  1. [23]
    A further inconsistency, at least from the perspective of the appellant, arises in relation to the fact that he suggests that when he was taken by the police from the complainant’s residence, he was, in fact, taken to the Townsville hospital where he was treated in relation to the ingestion of illicit substances and that blood samples and tests were conducted.  There is no suggestion of that having occurred and whilst it may be that the appellant suggests that many of those matters to which I have referred occurred, there is no independent evidence whatsoever in relation to any of those matters, and, of course, whilst recognising the difficulties that might face an unrepresented appellant held in custody, the fact is that no evidence was called at the sentence, nor was there any indication of such evidence now being available or sought to be relied upon.
  1. [24]
    The appellant, of course, struggled with his own inadequacies in representing himself.  But it is, in my view, significant that he should be at least clearly aware of the matters that need to be considered, in relation to an appeal such as his.  His appeal is an appeal against sentence.  The right to appeal is a creature of statute, with the nature of the appeal right dependent on the construction of the statute concerned.  It should particularly be noted that, as is the case here, where a person pleads guilty or admits the truth of a complaint, a person may only appeal under section 222(2)(c) of the Justices Act on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.  The appeal is then dealt with by way of rehearing on the original evidence given in proceeding before the magistrate, and in the circumstances, the court has the power to confirm, set aside or vary the order of the magistrate.
  1. [25]
    It is the sole ground of appeal relied upon here, and it is suggested by the appellant, that the sentence was manifestly excessive.  In order for a sentence to be “excessive” it must be “beyond the acceptable”. It must be, as has often been said, “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”. In that regard, I was referred in the respondent’s submissions to the R v Morse (1979) 23 SASR 98, R v Lomass (1981) 5 A Crim R 230, R v Macintosh [1923] St R Qd 278, and Lowe v The Queen (1984) 154 CLR 606. 
  1. [26]
    In commenting upon appeals relating to sentences, whether they be manifestly excessive or inadequate, I was referred to the recent decision of her Honour Judge Muir in Ross v Commissioner of Police [2018] QDC 99.  There, Her Honour, when commenting upon the exercise of an appellant judge, noted at paragraph 8:

… it is not a sufficient basis for this court to intervene, that this court considers it might have taken a different course between the competing considerations which have to be weighed in the exercise of the discretion. It must appear that some error has been made in exercising the discretion of the kind identified in House v The King (1936) 55 CLR 499. If the Magistrate acted upon a wrong principle, if he allowed extraneous or irrelevant matters to guide or affect him, if he made a mistake about the facts, if he did not take into account some material consideration, then the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

  1. [27]
    There, Her Honour has eloquently expressed the very real need for there to be, not a simple substitution of one view for another, but a proper exercise of the appeal power and a recognition that a difference of opinion or view is not, of itself, simply a basis upon which an appeal should be upheld.
  1. [28]
    Her Honour made particular reference in her reasons to the decision of Keane JA (as he then was) in the R v Ikin [2007] QCA 224, where his Honour noted as follows:

The judgment appealed from is a discretionary one. An appeal can succeed only if an error of the kind described in House v The King (1936) 55 CLR 499 at 504 - 505 has occurred

  1. [29]
    In this regard, there may be cases where the sentence is so “unreasonable or plainly unjust” in the circumstances as to give rise to an inference that the discretion has miscarried.  It is this idea which informs the familiar ground of appeal that a sentence is manifestly excessive.  But that having been said, as was emphasised by Kirby J in Dinsdale v the Queen [2000] HCA 54; [2000] 202 CLR 321 at 341, this court should allow an appeal against sentence only where the error is clearly apparent.
  1. [30]
    Perhaps most succinct of all, His Honour Judge Devereaux SC of this Court, noted in Rongo v Commissioner of Police [2017] QDC 258 the following:

It seems to me, then, that the focus in this and many appeals brought to this court on attempting to demonstrate an error in the exercise of the sentencing discretion is not misguided but slightly misplaced. The real question is whether the sentence was excessive, so that, although the appellant may argue that the magistrate made a certain error, the success of the appeal does not depend on persuading the appeal court on that point.

  1. [31]
    His Honour then goes on to note that:

Identifying a particular error might assist because it might explain why the sentence was excessive

  1. [32]
    And that is ultimately, as I understand it, the appellant’s argument in this case.  In fact, the appellant’s submissions, both in writing and elaborated upon during the hearing of the appeal, related to his concerns with regard to the effect of the sentence that was imposed, particularly with regard to the imposition of a parole eligibility date rather than a parole release date or even a suspension of the sentence. 
  1. [33]
    The appellant, in written submissions, suggested that the sentence was manifestly excessive because:
  1. (a)
    He was only sentenced in relation to two offences that had occurred at the same location at or about the same time, but on previous occasions, and there were many, he had been sentenced for multiple offences and had not had such a significant penalty imposed; and
  1. (b)
    Being subject to a parole eligibility date would make it difficult for him to be granted parole, given his previous offending. 
  1. [34]
    In his submissions the appellant suggested that the overall head sentence:

…may have warranted either some type of punishment like a lesser sentence or a suspended sentence.

  1. [35]
    And went on to note that:

Due to all my previous offending and time I have spent in custody has made it very difficult for me to obtain parole by applying through the Parole Board, and having an eligibility date doesn’t mean that I will be granted parole.  It only makes me eligible.  Therefore, I believe that it was an unjust sentence and was excessive.

  1. [36]
    As best I understand the written submission, and it was elaborated upon orally, the appellant suggests that he has had significant interaction and involvement with the Probation and Parole Board and that, as he has interacted with them less than effectively, they would be less inclined to consider parole for him.  As a result of that, he submitted, though there was no specific evidence other than opinion or belief, that he would serve at least 90 per cent of any period that was ordered, and it would mean that he would be dealt with more harshly than would normally be the case.
  1. [37]
    The respondent’s submission in relation to the appeal was short and to the point.  It was to the effect that the sentence imposed was not manifestly excessive, that the head sentence of three years ordered to be served cumulatively on the sentence that the appellant was currently serving was within range, and, in particular, it was noted that the police prosecutor contended for this at the hearing, and the solicitor for the appellant did not cavil with this.
  1. [38]
    I note in that regard that the transcript specifically noted that the solicitor for the appellant commenced her address following the submissions of the prosecutor in that manner.  In his final submission, the prosecutor said at page 4, line 27 as follows:

The previous sentencing options of the Court that have served as no deterrent for this offender and the factual circumstances of the current offences which find the defendant before the court.

  1. [39]
    Ms Brown, solicitor for the appellant, then commenced her address as follows, page 4, line 42:

Ms Brown: Thank you, your Honour.  Unfortunately, given criminal history and the limited amount of mitigating factors that I can provide to the court      

Bench: Yes.

Ms Brown: I can’t argue with my friend’s submission to much of an extent.

She then goes on:

Mr Annas has an appalling offending history.  We can’t get past that, your Honour.  It’s just over 11 pages, with similar and like offending.  He is no stranger to serving periods of imprisonment for like offending and other offending.  As your Honour is aware, this current offending is aggravated, as it occurred just four days after being released on parole.

  1. [40]
    The learned magistrate responded that that was a worry, and the appellant’s solicitor went on to indicate that it was concerning and that:

Unfortunately, I can’t assist the court in providing any details of the offending as to the reason why it was only four days.

  1. [41]
    A little later, the appellant’s solicitor notes that the appellant doesn’t have any memory of the events of that evening, that he was grossly under the influence of a cocktail of pharmaceutical drugs, which he took whilst he was inside the property, and that his recollection is so vague that he has no recollection of anyone else present on the evening.  Reference to those matters is important because it is clear that the legal representatives for the appellant had taken his instructions in relation to the matter, and it leads to the view which I expressed earlier, which was to the effect that any statements now made by the appellant with regard to the circumstances of his offending and what may or may not have occurred in the early hours of the 22nd of February 2018, are more a construction or reconstruction in his own mind than an accurate reflection of what might or might not have occurred at the time. 
  1. [42]
    It is also noteworthy that whilst it was suggested that the legal representatives for the appellant had not properly taken instructions or made submissions in relation to all mitigating factors, they were in a position to provide details as to his antecedents.  At page 6, line 8 onward the solicitor says:

… Mr Annas was born in Brisbane.  He obtained just a year level – nine level at Charters Towers High School.  He does have two children aged 16 and 10 and a baby girl due in the next couple of weeks.  He left school at year 9, and he worked in a timber mill near Mount Garmba, then – Garnet rather.  He then worked in Tully, working in the banana industry for a period of two years, and then he took on a position at Steggles in Mareeba, catching chickens.

  1. [43]
    There was then an exchange between the bench and the bar table in relation to what exactly might have been required in that role with Steggles, and, in fact, the appellant engaged directly with the magistrate in relation to that discussion.  The appellant’s solicitors then continued in relation to submissions with regard to his antecedents at line 29 as follows:

His parents separated when he was very young, and his father was deported to New Zealand, leaving his mother to raise six children.  He was – Mr Annas was reunited with his father in 2016; however, he will not be able to see his father again – face to face again because his father can no longer travel to Australia and, due to Mr Annas’ history, it is unlikely he will ever be able to travel to New Zealand to see his father.  His mother currently lives and remains in Charters Towers.  In relation to his health, your Honour, he was diagnosed with ADHD as a child, which was controlled at that stage by medication.  Once he reached the age of 16, he did then have limited medical supervision in relation to his ADHD and ceased taking his prescribed medication.  This resulted in his wagging school and finally leaving, as I suggested earlier, at the commencement of year 10.

 

He has a drug problem, which commenced with the addiction to Ritalin.  His criminal history is reflective of his struggle with drugs, and throughout his lengthy history. In relation to qualifications, Mr Annas has made use of his time in prison and has obtained qualifications in hospitality, surface extracting, operating machinery, front-end loader forklift, and a response to local emergencies certificate.  Prior to being incarcerated, he was part owner of a business doing upholstery from his home and eventually hopes to resurrect this once he is released.

  1. [44]
    The reason that I note those particular matters is because of the submission made orally by the appellant that he was “disgusted” with his legal team and that they didn’t argue for a lesser sentence.  What is clear from the submissions that were made was that all that was available was addressed by the legal representatives for the appellant, and whilst he may be disappointed with the outcome of the proceedings, it is not, as best it can be assessed, in any way reflective of the representation that was provided for him.  He noted in his oral submissions that his legal representatives didn’t argue for a lesser sentence; however, that also is not reflected in the transcript of the proceedings of the 11th of June 2018.  His legal representatives note on page 7 at line 7 the following:

By way of penalty, your Honour, he has entered an early plea.  He has only four days of pre-sentence custody declarable, despite being in custody for a substantial amount of time, given the parole issue.  He is currently serving the remaining of his previous sentence, with his expected full-time date of 17 December 2018.  Your Honour, as I touched upon earlier, my friend has submitted a sentence range for your Honour’s consideration.  Given the history and limited mitigating factors in relation to the recent offending, I’m not in a position to cavil too much with that penalty, except as to say, your Honour, that, you know, consideration does need to be taken in relation to a crushing sentence.

  1. [45]
    What is clear is that, again, proper consideration was given by the legal representatives for the appellant to issues in relation to the penalty that might properly be imposed, and there was, in fact, a proper recognition of all of the factors which need to be considered by the learned magistrate, in relation to any penalty.  In fact, it would be hard to imagine that with a criminal history such as that of the appellant, which goes back to when he was 16 or 17 years of age, covers 12 pages of criminal history, and includes 36 previous offences of a nature similar to those that brought him back before the court, including burglary and attempts to enter, that there was little that could properly have been submitted other than that any penalty should not be so crushing of the defendant that he were to lose the will to try and rehabilitate. 
  1. [46]
    In that regard, it was noted in submissions made by the respondent to this appeal that every other type of sentencing option had been considered over the history of the appellant’s offending.  He had already been the subject of orders for fines, community service, probation, intensive drug rehabilitation orders, suspended sentences, and parole.  He had also already received significant periods of imprisonment in the past, including terms of three years imprisonment in August of 2010 and August of 2011 and two years’ imprisonment in November of 2015. 
  1. [47]
    It was noted particularly that the appellant had been sentenced for multiple offences on those occasions, and, in fact, it appears that that is one of the factors that has been suggested by the appellant as being relevant, in that, on previous occasions when ordered to serve periods of imprisonment, there had been multiple offences of entering premises or burglary and that there was only one such offence and one unlawful use of a motor vehicle that brought him before the learned magistrate in June of 2018. 
  1. [48]
    What was argued by the respondent in that regard was that the magistrate was entitled to treat the appellant’s criminal history as an aggravating feature itself, which was in accord with the principles outlined in section 9(10) of the Penalties and Sentences Act.  Section 9(10) is in these terms:

In determining the appropriate sentence for an offender who has one or more 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:

  1. (a)
    the nature of the previous conviction and its relevance to the current offence and;
  1. (b)
    the time that has elapsed since the conviction.
  1. [49]
    What is clear here is that the offending has been of a repeat nature for virtually the whole of the adult life of the appellant, and, in fact, that was specifically addressed by the learned magistrate in his decision when he said:

You are 31 years old – old enough to know better.  You have been an adult for quite a long time, but you have made no improvements to your life.

  1. [50]
    In fact, in an exchange with the appellant’s own legal representatives during submissions, the learned magistrate noted:

But we’ve come to a time – he’s 31, and with 36 previous similar offences, one has to – I hate to say it, but he will get to the stage where he will have – we will have to throw the key away.  I mean, rehabilitation is not on the cards, and so he has got to be locked up to protect the community.

  1. [51]
    Clearly, the learned magistrate has taken into consideration the relevance of the current offence, particularly in light of the previous offending, and has seen it as an aggravating factor, in relation to the penalty imposed. 
  1. [52]
    The learned magistrate was taken to a number of authorities in relation to sentence.  In particular, reference was made to R v Vaughan [2005] QCA 348, R v Doyle [2011] QCA 14, and R v Hazelgrove [2013] QCA 243.  All of those cases involved offences of entering premises and were offences committed by mature applicants with significant criminal histories.  The comparable decisions, it was said, supported the effective head sentence of about three and a-half years. 
  1. [53]
    In fact, the appellant had specifically considered those matters, submitting to me that in Vaughan’s case, the applicant was sentenced to three years, though it would appear that it was actually a four-year period of imprisonment suspended after 18 months with an operational period of five years.
  1. [54]
    More specifically, however, reference was made to the fact that the applicant in Vaughan was 25 years of age and had an extensive criminal history.  He was a few years younger than the appellant here, but there were significant similarities, including the fact that the offending had commenced when the applicant in that matter was 17 years of age and that convictions for breaking and entering had previously been entered.  Reference was then made to the comments of Chief Justice de Jersey in R v Donald [2000] QCA 399, where the Chief Justice noted that a three-year term for breaking and entering a dwelling house was:

…at least mid-range and arguably low-range when the offender has a substantial criminal record.

The relevance is clear here, when the recognition is given to the fact that there were more than 30 previous convictions of a similar nature. 

  1. [55]
    Similarly, Doyle involved an effective head sentence of three years and four months, and a parole eligibility date was set at one-third.  Hazelgrove also involved a sentence of three and a-half years imprisonment with parole eligibility after 20 months.  If anything, those cases, noting the significant similarities to the offending here, reflect the fact that, if anything, the penalty imposed, especially the imposition of the parole eligibility date after only 12 months rather than 14 months, was a lenient sentence and not one that in any way could be considered to have been excessive. 
  1. [56]
    The fixing of a parole eligibility date was also the subject of submission and comment by the appellant.  I have already noted the concerns that the appellant had with the fixing of a parole eligibility date, because of the fact that he suggests that his previous interactions with the officers of Probation and Parole would mean that they would not be inclined to facilitate parole, particularly as he was reimprisoned as a result of breaches of a parole release order occurring only six days or so after release. 
  1. [57]
    However, no other alternative in relation to parole, at least, was open to the learned magistrate, it being the case that the total period of imprisonment exceeded three years and that therefore any parole would only be available at a time when the appellant became eligible for parole, rather than the fixing of a parole release date.  Additionally, there was the fact that the offending had led to the automatic cancellation of the previous parole order, and, as such, only parole eligibility was available. 
  1. [58]
    The submission now made by the appellant, to the effect that consideration might properly have been given to a suspended sentence, flies in the face of the fact that such opportunities have previous been considered, and those opportunities have not been taken up by the appellant.  More particularly, it was the case that no submission was made, either by the prosecution or the defence, in relation to a suspended sentence, and, understandably, the learned magistrate did not consider the ordering of a suspension, after the serving of a particular period of time. 
  1. [59]
    That was an understandable position taken, particularly in light of the fact that the appellant is, as was submitted by the respondent, a “recidivist property offender” and that he would not, under any circumstances, have been an appropriate candidate for a suspended sentence, but, rather, requires supervision on parole.  To all intents and purposes, though not put in such a way, the appellant, in fact, acknowledged that, indicating that he could not get past his extensive history and referring in his oral address on three occasions, to concerns with regard to his history, his “appalling behaviour”, and he concluded his address with a recognition that he:

…can’t get past my criminal history, it is quite appalling.

  1. [60]
    Ultimately, it is clear that there has been no error of law on the part of the learned magistrate suggested by the appellant or able to otherwise be identified.  More particularly, if anything, when considering the aggravating nature of the significant past criminal history and the offending occurring only a matter of days after being granted parole, are factors which ultimately mean that the penalty imposed was not in any way excessive.  As such, the only proper course is to dismiss the appeal, and I so order. 
Close

Editorial Notes

  • Published Case Name:

    Jordan Cole Annas v Queensland Police Service

  • Shortened Case Name:

    Annas v Queensland Police Service

  • MNC:

    [2018] QDC 251

  • Court:

    QDC

  • Judge(s):

    Coker DCJ

  • Date:

    06 Dec 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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