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Clayton v Commissioner of Police QDC 145
DISTRICT COURT OF QUEENSLAND
Clayton v Commissioner of Police  QDC 145
BRENDAN WAYNE CLAYTON
COMMISSIONER OF POLICE
Beenleigh Magistrates Court
26 July 2019 (ex tempore)
26 July 2019
Farr SC DCJ
CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – MANIFESTLY EXCESSIVE – where a restitution order was made – where there was no evidence before the acting magistrate that the appellant had the capacity to pay the restitution – whether the sentence was manifestly excessive in all the circumstances.
CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – MANIFESTLY EXCESSIVE – where the appellant failed to appear – where the magistrate ordered the appellant serve a cumulative term of 3 months imprisonment for the failure to appear – where the applicant submits that the acting magistrate failed to have regard to the absence of any failure to appear charges on the appellant’s criminal history – where the applicant submits that the acting magistrate failed to take into account the entry of an early plea of guilty – whether the sentence was manifestly excessive in all the circumstances.
CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – MANIFESTLY EXCESSIVE – where the applicant submits that the learned acting magistrate was led into error by the prosecution who incorrectly submitted that circumstances of aggravation applied to police charges 6 and 7 – where the acting magistrate sentenced on the basis of this incorrect submission – whether the sentence was manifestly excessive in all the circumstances.
R v Morse  23 SASR 98, followed.
R v SCM  QCA 175, followed.
A Beard for the appellant
G Cho for the respondent
Legal Aid for the appellant
Director of Public Prosecutions (Qld) for the respondent
- On the 27th of November 2018, the appellant was sentenced in the Beenleigh Magistrates Court in respect of 11 charges. I will refer to the charge – charges by their police charge numbers. So police charge number 1 was assault or obstruct police officer for which he was sentenced to three months imprisonment. Charge 2, same charge of assault or obstruct police officer. Again, three months imprisonment. Charge 3, failure to appear in accordance with an undertaking. That was three months imprisonment, and it was ordered to be served cumulatively upon the other sentences imposed on that day.
- Charge 4, receiving tainted property, he was sentenced to two years three months imprisonment. Charge – I think I said 4. Charge 5 that was. Charge 6, unlawfully using a motor vehicle, two years three months imprisonment. Charge 7, unlawful use of a motor vehicle, two years three months imprisonment. Charge 8, unlawfully using a motor vehicle, two years three months imprisonment, and he was ordered to pay $17,000 in restitution. Sorry. No, for count 7, it was $13,600 in restitution. Charge 8, unlawful use of a motor vehicle, again, two years three months imprisonment and $17,000 restitution. Charge 10, receiving tainted property, two years three months imprisonment.
- Charge 11, fraud, nine months imprisonment with restitution of $480. Charge 12, unlawful possession of a motor vehicle, two years three months imprisonment with $361.15 restitution ordered, and charge 13, unlawful possession of a motor vehicle, two years three months imprisonment. Therefore, the total imprisonment ordered was two years and six months.
- A parole eligibility date was set at the one-third mark of that total sentence, being the 27th of September 2019. The offences were committed while the appellant was on parole which is, of course, an aggravating circumstance. The restitution orders totalled $31,441.15. The facts of the offences have been reduced to schedule form and will appear at Annexure A to this decision when it is published. The appellant’s very lengthy and relevant criminal history will also appear. It will be Annexure B to this decision.
- The appellant has appealed against the sentences imposed pursuant to section 222 of the Justices Act 1886. The primary ground of appeal is that the sentences imposed were excessive. As I have indicated to counsel during the course of submissions this morning, the intended amended grounds of appeal I will treat simply as particulars of the primary ground which is permitted under the legislation, they being:
(1) The imposition of the restitution order renders the sentence excessive, (2) the learned sentencing magistrate erred in finding that the appellant had capacity to pay the compensation and restitution order, (3) further, or in the alternative, the compensation order amount was made without sufficient evidence to support the quantity or that the damage occurred in the course of or in connection with the offence, (4) the learned sentencing magistrate erred by imposing a term of imprisonment with respect to the offence of failure to appear in accordance with an undertaking, (5) the imprisonment is excessive as the magistrate was led into error by the Prosecution submitting that circumstances of aggravation applied when it was not charged.
- And, effectively, from argument this morning, there is a sixth which is that the magistrate’s error was compounded by the prosecutor causing the magistrate to impose an excessive sentence for those charges for which the magistrate was not led into error specifically.
- Section 222, subsection (2)(c) of the Justices Act 1886 provides that:
…if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that the penalty was excessive –
- As for excessiveness of sentence, the sentence at first instance must be shown to be excessive and – and exceeding the permissible or accepted sentencing range for that type of offence so as to show that the sentencing discretion miscarried. The respondent has referred the Court to R v Morse  23 SASR 98, specifically to the following quote:
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of the sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender.
- The appeal court has a wide discretion in the orders that it can make pursuant to section 225(1) of that Act. If I turn then to the compensation order that was made in this matter, it is not necessary for me to particularise how that total sum was comprised in these remarks as the respondent concedes that the order was a compensation order, effectively, and that such an order rendered that part of the sentences excessive. It is clear that the learned acting magistrate was exercising a power under section 35, subsection (1)(b) of the Penalties and Sentences Act 1992 when ordering restitution although it should properly have been referred to as compensation.
- On the information before the Court, the appellant presented as a recidivist offender with a lengthy relevant criminal history. He was 23 years of age, I understand, at the time of sentence. It is accepted that the amount ordered of – amount of compensation ordered was a considerable amount of money for any person, let alone a person who is serving time in custody, has no employment prospects that the Court knew of and for which little information was placed before the Court, if any, as to his capacity to pay. The absence of submissions in that regard does not indicate a capacity to pay the compensation order, and in the absence of such evidence, the learned magistrate – the learned acting magistrate should have concluded that there was no evidence to support the appellant’s capacity to pay. In the circumstances, making such an order could be considered nothing other than excessive.
- There are various further submissions that have been made as to the excessive nature of the order for a variety of reasons. I do not need to canvass those in the course of these remarks. It is patently obvious that on the information that was and was not before the Court at the time that no such compensation order should have been made because there was no indication before the Court that the appellant had any capacity to pay it at all. In fact, on the material before the Court, it would appear to be of little doubt that the appellant lacked any ability to pay the compensation order. The referral of that order to the State Penalties Enforcement Register does not in any way mitigate the excessive nature of such an order and still renders the appellant at risk of a lengthy term of imprisonment for failure to pay. As I have indicated, of course, the – the respondent does not dispute that ground of appeal.
- I then turn to the second ground which relates to the sentence imposed for the appellant’s failure to appear. Again, the respondent does not oppose this ground of appeal. The appellant failed to appear in person on the 30th of July 2018, and a warrant subsequently issued. On the 7th of August 2018, he was questioned about his failure to appear by police, and he advised that he had simply forgotten about Court on that date. The learned acting magistrate ordered the appellant to serve, as I have indicated, a cumulative three-month term of imprisonment for that offence. The remark made was:
The failure to appear, similarly, attracts three months in custody.
- In fact, there were no submissions from either party regarding that particular charge at the time. The maximum penalty for the offence of failure to appear is two years imprisonment. It is not submitted by the respondent that there was an error in ordering a term of imprisonment, but the respondent does submit that the learned acting magistrate failed to have regard to the absence of any failure to appear charges on the appellant’s criminal history and failed to take into account the entry of an early plea of guilty.
- During the course of submissions, I was referred to the decision of R v SCM  QCA 175 which is of some assistance on this issue. When this matter is compared against that decision, which obviously involves more serious offending, it is apparent that the sentence of imprisonment for this matter being cumulative is excessive and that the appeal in that regard should be allowed.
- I then turn to the third ground of appeal, that is, that the magistrate was led into error by the Prosecution in relation to circumstances of aggravation applying to certain charges. The appellant pleaded guilty to three charges of unlawful use of a motor vehicle. Pursuant to section 408A, subsection (1)(a) of the Criminal Code, each offence carried a maximum penalty of seven years imprisonment. The respondent accepts that the learned acting magistrate may have been led into error by the prosecution who incorrectly submitted that circumstances of aggravation applied to charges 6 and 7. The appellant has extracted portions of the transcript at 32 and 34 in his outline, and it is quite obvious that the learned magistrate may well have been led into error by the submissions that were made at that time.
- Charge 8 did not contain a circumstance of aggravation, and, again, I note that when the learned acting magistrate was listing the compensation orders, it seems that he may have taken the fact that that particular vehicle was found burnt out into account which was an aggravating circumstance that was not contained on the charge itself. As I have said, the respondent concedes that the submissions made by the prosecutor may have led the learned acting magistrate into error. That appears to me to be a reasonable concession in all the circumstances, and there is no dispute in that regard. And I so find.
- The appellant submits that as a consequence of that, the learned magistrate imposed an excessive sentence, being one of two years, three months imprisonment having taken into account improper material. Whilst I accept that the magistrate did take into account improper material, that does not necessarily result in a conclusion that the sentence which was imposed was excessive in the circumstances. I note that charges 5, 10, 12 and 13 are not relevant to this particular ground of appeal although the penalty imposed for each of those charges was two years and three months. The appellant submits that this Court would conclude that the learned acting magistrate was led into error for those charges as a consequence of the error regarding the charges to which the erroneous submissions applied.
- I have been referred to a number of comparable decisions which suggest that offending of this nature for a person with the defendant’s criminal history and noting that he was on parole at the time would ordinarily result, in my view, in a head sentence in the range of two to three years. Notwithstanding the magistrate’s errors in taking into account circumstances of aggravation for some of the charges that he was not entitled to, that, as I have said, does not of necessity mean that the sentences imposed for any one of those charges was excessive. In my view, sentences of two years three months for these particular matters are not excessive. They fall within the appropriate range.
- So whilst I accept that errors were made, I do not accept that there has been an excessive sentence imposed for any one of the charges involved; accordingly, taking all of those matters into account, the orders of this Court are as follows: that the appeal be allowed to the following extent: (1) that the compensation orders for police charges 7, 8, 11 and 12 be set aside, (2) that the sentence for police charge 3, that is, the failure to appear in accordance with an undertaking on the 30th of July 2018, be set aside and he be – and be varied to convicted and not further punished and (3) that the parole eligibility date be varied to the 27th of August 2019.
- Published Case Name:
Clayton v Commissioner of Police
- Shortened Case Name:
Clayton v Commissioner of Police
 QDC 145
26 Jul 2019