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Moran v Queensland Police Service[2019] QDC 105

Moran v Queensland Police Service[2019] QDC 105

DISTRICT COURT OF QUEENSLAND

CITATION:

Moran v Queensland Police Service [2019] QDC 105

PARTIES:

TINA KATHLEEN MORAN

V

QUEENSLAND POLICE SERVICE

FILE NO:

1426/19

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Richlands

DELIVERED ON:

13 June 2019 (ex-tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

13 June 2019

JUDGE:

Muir DCJ

ORDER:

  1. The appeal against sentence is allowed.
  2. The sentence of the Magistrates Court imposed on 20 March 2019 for counts 1 and 2 is set aside.
  3. In lieu, the appellant is sentenced to 42 days imprisonment for the failing to appear offence.
  4. The appellant is sentenced to 42 days imprisonment for the stealing offence.
  5. The sentences run cumulatively upon each other.
  6. The appellant’s parole eligibility date is set at 13 June 2019.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – Justices Act 1886 (Qld), s 222 – appellant convicted and sentenced for failing to appear and stealing – whether sentence was excessive – consider overall criminality –  where the appellant has spent 84 days in prison – where the Magistrate erred in setting both a fixed date for parole and a date for eligibility – where sentence re-opening is justified in the circumstances

Corrective Services Act 2006 (Qld) s 181(2)(b)

Justices Act 1886 (Qld) ss 222, 223, 225

Penalties and Sentences Act (Qld) 1992 ss 9, 160B(2)

House v King (1936) 55 CLR 499

Kues-Sales v Commissioner of Police [2016] QDC 53

R v Lawley [2007] QCA 243

R v McConnell [2018] QCA 107

McDonald v Queensland Police Service [2017] QCA 255

Teelow v Commissioner of Police (2009) 2 Qd R 489

R v Tout [2012] QCA 296

COUNSEL:

S Lio-Willie for the respondent

SOLICITORS:

Department of Public Prosecutions for the Queensland Police Service

Richard Gray & Associates for the appellant

Introduction

  1. [1]
    This is an appeal under section 222 of the Justices Act 1886 against a sentence imposed on the appellant, Tina Kathleen Moran, by a Magistrate at the Richlands Magistrates Court on 20 March 2019.  On that date, the appellant was convicted on her own pleas of guilty to three charges:
  1. failing to appear in accordance with bail undertaking on 12 February 2019, for which she was convicted and sentenced to 42 days imprisonment with a parole release date of 3 April 2019 ordered;
  1. a stealing offence on 11 July 2018, for which she was sentenced to three months imprisonment with a parole eligibility date of 1 May 2019 ordered;  and,
  1. a contravention of a direction or requirement on 27 July 2018, for which she was convicted and not further punished.
  1. [2]
    It is uncontroversial that on 1 May 2019, the applicant made an application to the parole board to be released on parole, but this application has not been determined and cannot be finalised while this appeal is pending by virtue of section 181(2)(b) of the Corrective Services Act 2006.
  1. [3]
    The history of the matter is that it was listed before me this morning for the hearing of an application for bail pending the appeal. When I raised my concerns to the parties about the sentence and the need to have a determination of the appeal as soon as possible, both the Crown and the Defence helpfully facilitated the appeal being heard by me today.
  1. [4]
    The notice of appeal filed on 18 April 2019 is premised on the sole ground that the sentence imposed for the failing to appear in accordance with the undertaking and the stealing offence was manifestly excessive.

Relevant Legal Principles

  1. [5]
    Turning briefly to the relevant legal principles. The appellant’s right to appeal to the District Court is founded in section 222(1) of the Justices Act.  The only ground of appeal, if the defendant has pleaded guilty, is that the punishment or penalty was excessive or inadequate.  By virtue of section 223, the appeal is by way of a rehearing on the original evidence on the record.[1] Section 225 empowers a judge to confirm, set aside or vary an appealed order or make any other order considered just. 
  1. [6]
    It follows that in this case, the crucial question is whether upon a proper review of the original record, the sentence was excessive. To demonstrate that a sentence is excessive, the appellant must do more than show that other offenders have received lesser sentences for similar conduct or that the sentence is markedly different from sentences in other cases.[2] In R v McConnell [2018] QCA 107, Justice of Appeal Fraser, with whom President Sofronoff and Justice of Appeal Philippides agreed, identified that whether a sentence is excessive:[3]

“…is not established unless the sentence is “unreasonably or plainly unjust” such as to justify the conclusion “that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance”.

  1. [7]
    There is a breadth of sentencing discretion and an obligation on appeal courts to respect the role assigned to those who have the “difficult task of balancing competing considerations of deterrence, protection of the community, denunciation of crime and vindication of victims’ rights on the one hand, and rehabilitation and compassion on the other.”[4]
  1. [8]
    On appeal, it is not a sufficient basis for this court to intervene where 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 King[5].  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 substitute for his if it has the materials for doing so.[6]

Analysis

  1. [9]
    It is with these principles in mind that I now turn to consider whether the sentence in this case was excessive.
  1. [10]
    At the outset, it is necessary to observe that the Magistrate made an obvious error by fixing a parole date as well as imposing a parole eligibility date. He ought to have only imposed one date and in this case, given that the stealing offence was committed whilst the appellant was on parole, it could only have been a parole eligibility date. Apart from that error, in my view, the Magistrate’s reasons are replete with errors. I say that conscious of the huge workload that Magistrates have in regional courts and I observe, too, that this sentence was done in the afternoon of, no doubt, a very busy day.

The hearing below

  1. [11]
    The appellant appeared unrepresented before the Magistrate – the prosecutor commenting that ATSILS (Aboriginal and Torres Strait Islander Legal Service) were not at court that day.
  1. [12]
    It is uncontroversial that the appellant is an Aboriginal woman. From her criminal history, she was born on the 21st of June 1970, making her 49 at the time of her sentence.  My review of the transcript of the hearing is that the Magistrate did not hear from the police prosecutor about the numerous entries on the appellant’s history. These entries reflect a person who has appeared constantly in the Magistrates Court jurisdiction from 1994. 
  1. [13]
    Her history is littered with obstruct/disorderly behaviour type offences, failing to appear offences and dishonesty offences for which, in more recent years, she had received short periods of imprisonment. Indeed, in the Richlands Magistrates Court on June 2018, she was sentenced for fraud offences and other dishonesty offences.
  1. [14]
    At the hearing below, the circumstances of the offending were set out. The failing to appear related to a bail undertaking for the substantive offence of stealing. The bail undertaking was entered into on the 12th of February 2019. The circumstances of the stealing were that the applicant had attended Woolworths Inala, removed two tins of baby formula from the shelves totalling $50, placed them in her bag and proceeded to walk out of the store.  This offence was captured on CCTV footage.  The appellant returned to the front counter a short time later and produced a receipt from a previous purchase and attempted to obtain a refund for the two tins of formula.  The refund was refused and she left the store.  On 18 July 2018, the applicant accompanied the police to the Inala Police Beat and made admissions to the offending.  The value of the property was $50.  At the time of the commission of the offence the applicant was on parole for an offence sentenced in the Richlands Magistrates Court on 30 April 2018, with the full-time discharge of this order being 29 July 2018.
  1. [15]
    The Magistrate proceeded to accept guilty pleas from the appellant and observed that she was a person that had previously received periods of imprisonment for failing to appear and for dishonesty offences. He also observed that she had a considerable amount of fines unpaid.
  1. [16]
    The appellant’s personal circumstances were not given by her. They were not asked for. There was no real explanation given by the appellant as to why she did not appear, except that she had lost her brother at some point. In relation to the stealing, her excuse was it was “just stupid”. She was asked if there was anything further she wanted to put before the court and she said that she would report to police and do SPER and everything and that she would get counselling, but, “just please don’t – I – just, please, I don’t want to go to jail.”
  1. [17]
    The Magistrate observed that the records revealed the appellant had been excluded from the Murri Court. The appellant did not accept this. She repeated on a number of occasions that she had seen a Ms Stacey, and they were going to put her back into the Murri Court.
  1. [18]
    The Magistrate stated that he took into account the appellant’s history and that she had fines outstanding, he then sentenced her to 42 days imprisonment for the failing to appear offence. In terms of the stealing offence, the Magistrate said that he had considered all of the matters under section 9 of the Penalties and Sentences Act and reached the view that imprisonment is the appropriate penalty.  In reaching this view he said he took into account that at the time of the commission of the offence the appellant was on parole for other offences of dishonesty.  He then imposed a penalty of three month period of imprisonment [for the stealing offence], to be served at the end of the 42 days imposed for the breach of bail. He did this despite fixing parole for that offence after two weeks [on the 3rd of April 2019]. He then fixed a parole eligibility date at 1 May 2019, stating, “[n]ow, you will go into custody for the 42 days plus the three months that I have imposed on this, and you will be eligible for parole on 1 May.  So you can’t apply for parole until that time.”
  1. [19]
    The appellant has now served 84 days for her offending.
  1. [20]
    The Director of Public Prosecutions for the Commissioner of Police submits that the sentence is not excessive, but that if I am minded to allow the appeal and sentence it afresh, the appellant ought to be released with some sort of supervision in the community.

Was the sentence imposed excessive?

  1. [21]
    In my view, in imposing a sentence of four months for the offending in this case, the Magistrate completely lost sight of the overall criminality of the appellant. I say this despite her criminal history. It is difficult to say much more about that history given that there was no real consideration about the offending on her criminal history.
  1. [22]
    In my view – and it is trite to say this – a sentence imposed must not be disproportionate to the criminality of the offending. In terms of the fixing of a parole eligibility date for a short sentence [which the Magistrate was required to do in this case I accept] the observations of Judge McGill SC in the decision of Kues-Sales v Commissioner of Police [2016] QDC 53, are most apposite. In this case his Honour observed:[7]

“Superficially may have met the requirements, but that assumes that the appellant might expect to receive on, or not longer after that date.  Given that this is a relatively short sentence, it is relevant and I think appropriate to take into account the realities that it takes time for an application for parole to be processed, and I am satisfied that there was no realistic prospect of the appellant actually achieving parole on, or shortly after 7 April 2016.”

  1. [23]
    In the circumstances of this case I am not satisfied that the Magistrate could have possibly taken into account all the factors set out in section 9 of the Penalties and Sentences Act, and that he properly considered that a sentence of imprisonment should only be imposed as the last resort.  There was no evidence before him or submissions about the appellant’s personal circumstances, and there were no submissions in relation to the sentence imposed for the offences before him.  The Magistrate, in my view, placed too much weight on the appellant’s criminal history, and not enough weight on the low level of criminality of the overall offending. This resulted in the imposition of an excessive sentence.

Other matter

  1. [24]
    In my view, there is an obvious error in the structure of this sentence. The imposing of both a fixed date for parole and a date for eligibility breaches the Penalties and Sentences Act, under this Act one date for parole can be set.  The sentence needs to be set aside to remedy this defect.

Re-sentence

  1. [25]
    As I have stated already, the sentence imposed in this case was excessive and I set aside the sentence imposed for the stealing and the breach of bail undertaking, and I will sentence the appellant afresh.
  1. [26]
    In re-sentencing the appellant I take into account that this is a guilty plea. The appellant is a 49 year old woman with a lengthy criminal history, though I observe that it seems to be vagrant type offences and a number of failing to appears for those type of offences. There is some history of dishonesty, but looking at the penalties imposed which range from fines and then short periods of custody, without knowing more I infer that they were at the lower end of the range of offending for those types of offences.
  1. [27]
    It is relevant that the substantive offence for which the appellant failed to appear on was the stealing of the two cans of baby formula, and, in combination with the attempt to obtain a refund from a receipt that she found. It was unsophisticated offending which the appellant well described as “stupid”.
  1. [28]
    In sentencing the appellant I have taken into account that she has now served in total 84 days for this offending. In relation to the failing to appear offence, the appellant is convicted and sentenced to 42 days imprisonment. In relation to the stealing offence the appellant is convicted and sentenced to 42 days imprisonment [these sentences must run cumulatively]. I deem the period between the 20th of March 2019 and the 13th of June 2019 be declared time served under this sentence, and the appellant is eligible for parole as at today’s date, the 13th of June.
  1. [29]
    To be clear, the effect of this sentence ought to be that the appellant is released today. I have ordered the eligibility for parole even though I query the utility of that, but it seems, as the Crown has submitted to me, to be required by section 160B(2) of the Penalties and Sentences Act.  That is, my query of the utility being that the appellant has served her sentence.  So there is no need for any eligibility.  But, out of an abundance of caution, I will make that order.   Now I have declared the time.  The only query I had was whether I needed to do that separately for the two offences or whether I could just declare all of the time, because they are running cumulatively. 
  1. [30]
    MR GRAY: Yes. Your Honour, I would simply say – so there is 42 days cumulative upon each other.
  1. [31]
    HER HONOUR: Yes.
  1. [32]
    MR GRAY: And all that time is served. She is to be released absolutely today.
  1. [33]
    HER HONOUR: Yes. Now, is there anything that I have overlooked?
  1. [34]
    MR GRAY: No. Thank you, your Honour.

Footnotes

[1]  See McDonald v Queensland Police Service [2017] QCA 255.

[2]  See R v Tout [2012] QCA 296 at [8].

[3]  R v McConnell [2018] QCA 107 at [15]; reference to House v King (1936) 55 CLR 499 at 504-555.

[4]  R v Lawley [2007] QCA 243 at [18]. 

[5]  (1936) 55 CLR 499 at 504-505.

[6]  See Teelow v Commissioner of Police (2009) 2 Qd R 489 at 496; citing House v King (1936) 55 CLR 499 at 504-505.

[7]  Kues-Sales v Commissioner of Police [2016] QDC 53 at [14].

Close

Editorial Notes

  • Published Case Name:

    Moran v Queensland Police Service

  • Shortened Case Name:

    Moran v Queensland Police Service

  • MNC:

    [2019] QDC 105

  • Court:

    QDC

  • Judge(s):

    Muir DCJ

  • Date:

    13 Jun 2019

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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