Owens v Commissioner of Police
[2021] QDC 143
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- Unreported Judgment
- Owens v Commissioner of Police[2021] QDC 143
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Owens v Commissioner of Police[2021] QDC 143
Owens v Commissioner of Police[2021] QDC 143
DISTRICT COURT OF QUEENSLAND
CITATION: | Owens v Commissioner of Police [2021] QDC 143 |
PARTIES: | GREGORY ROBERT OWENS (appellant) |
v | |
COMMISSIONER OF POLICE (respondent) | |
FILE NO: | 88/2021 |
DIVISION: | Appellate |
PROCEEDING: | Appeal against sentence |
ORIGINATING COURT: | Magistrates Court Maroochydore |
DELIVERED ON: | 16 July 2021 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 16 July 2021 |
JUDGE: | Cash QC DCJ |
ORDER: |
|
LEGISLATION: | Criminal Practice Rules 1999 (Qld), r 62 Justices Act 1886 (Qld), s 222, s 223, s 225 Penalties and Sentences Act 1992 (Qld) State Penalties Enforcement Act 1999 (Qld), s 12, s 90 |
CASES: | Allesch v Maunz (2000) 203 CLR 172, [22]-[23] R v Matauaina [2011] QCA 344, [25], [27], [35] |
COUNSEL: | L A Ygoa-McKeown for the appellant S R Drinovac for the respondent |
SOLICITORS: | Trianon Law for the appellant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]On 31 May 2021 the appellant appeared before a Magistrate at Maroochydore. He entered guilty pleas to three offences of stealing, two of burglary and stealing and one of unlawful use of a motor vehicle. The Magistrate heard submissions from the prosecutor and the appellant’s solicitor. According to the Verdict and Judgment Record,[1] the following orders were made. (Whether this record reflects what was said by the Magistrate at the hearing is discussed below.)
Offence | Date of offence | Order |
Burglary and stealing | 18 November 2019 | Conviction recorded. 488 days’ imprisonment with 488 days pre-sentence custody declared as time already served. |
Unlawful use of a motor vehicle | 18 November 2019 | Conviction recorded. 488 days’ imprisonment with 488 days pre-sentence custody declared as time already served. |
Burglary and stealing | 19 November 2019 | Conviction recorded. 488 days’ imprisonment with 488 days pre-sentence custody declared as time already served. ‘Restitution’ of $13,000 to be paid within 28 days. |
Stealing | 24 November 2019 | Conviction recorded. 2 years’ probation with special conditions. ‘Restitution’ of $85.10 to be paid within 28 days. |
Stealing | 2 December 2019 | Conviction recorded. 2 years’ probation with special conditions. ‘Restitution’ of $101.20 to be paid within 28 days. |
Stealing | 2 December 2019 | Conviction recorded. 2 years’ probation with special conditions. ‘Restitution’ of $80.10 to be paid within 28 days. |
- [2]Pursuant to section 222 of the Justices Act 1886 (Qld) the appellant appealed against the severity of the sentences imposed. In written submissions, the respondent conceded that the Magistrate erred in ordering ‘restitution’ in the amounts levied. (For convenience I will call these the ‘payment orders’.) The respondent said that the Magistrate erred by having insufficient regard to the capacity of the appellant to pay compensation for his crimes and to the potential consequences of non-payment. By this concession, the respondent accepts the decision of the Magistrate was the result of “some legal, factual or discretionary error”.[2] It was common ground at the hearing of the appeal that it was appropriate to set aside the payment orders but to let the other orders of the Magistrate stand[3]. For the reasons that follow, I agree.
Circumstances of the offences
- [3]The five offences for which the appellant was sentenced occurred in late 2019. On 18 November 2019 he snuck into a house at Parrearra and stole a set of keys from the kitchen. In possession of the keys, he stole a Toyota from the garage. Some of the appellant’s movements were recorded on a security camera and he was later identified from that footage. The next day he entered a house near Kenilworth and stole jewellery and household electrical items. When police investigated the offence, they found the appellant’s fingerprints. The three stealing offences concern what are colloquially known as ‘petrol drive-offs’. In the first, on 24 November 2019, he drove off without paying for $85.10 worth of petrol. The other two occurred on 2 December 2019 when the appellant drove off without paying for $101.20 and $80.10 worth of petrol.
- [4]The appellant was apprehended on 20 December 2019. He was not interviewed and was remanded in custody. He had spent 488 days in custody by the time he came to be sentenced.
- [5]At the sentence hearing the Magistrate was told that, in relation to the burglary near Kenilworth, an insurance company had paid the complainant $13,000.
The appellant’s personal circumstances
- [6]At the time he stood for sentence the appellant was 35 years old. His record of prior convictions was long, serious and relevant. It commenced in 2002 when he was still a child and was detained for property offences. The criminal history revealed semi-regular appearances in the Magistrates Court. It is the history of a drug addict and thief. On 17 June 2019 the appellant appeared in the District Court at Maroochydore and was sentenced in relation to an offence of possession of a dangerous drug. He was imprisoned for 5 months but the sentence was suspected for 18 months after the appellant served 15 days’ imprisonment. The appellant committed the offences dealt with by the Magistrate during the operational period of the suspended sentence.
- [7]At the sentence hearing the appellant’s solicitor described him as a plasterer by trade who had worked from time to time in the building industry. He was said to be a single father. The appellant apparently acknowledged he had ‘issues with substance abuse’ as well as mental health problems. The solicitor did not resist an order for compensation but said ‘due to his financial circumstances at the time we do request that be referred to SPER’.
- [8]Having regard to the approximately 15 months the appellant had spent in pre-sentence custody, the parties essentially agreed that he should be sentence to the time served and also released on probation.
The sentencing remarks
- [9]The Magistrate said that an otherwise appropriate sentence for the burglary offences would be around two and half year’s imprisonment. But, having regard to the pre-sentence custody, the appellant should be released immediately, coupled with probation for the stealing charges. I set out in full the orders made by the Magistrate:
BENCH: … on each burglary charge and the unlawful use, you’ll be sentenced to 488 days with time served declared, which means that you’ve served your sentence for those three serious charges.
In regard to the three stealing charges, I do accept that probation may be of assistance to you, but one of the things is, of course, that you’ve got to address your drug relapse. So on each of the stealing charges, I intend to sentence you to two years of probation with provision that you submit to drug testing, and also to participate in drug relapse prevention programs. So you understand probation? You must report to them as soon as you’re able.
APPELLANT: Yeah.
BENCH: … You must tell them where you live and where you work. If you get a job and if either of those change, you must tell them within two business days.
APPELLANT: Yeah.
BENCH: You cannot leave Queensland without a travel permit, and you certainly can’t live out of Queensland. You must do any courses, counselling, anything they think will help you, and I have required that you participate in drug relapse prevention programs and, of course, you cannot commit any further offences during the time of the probation. You understand that?
APPELLANT: Yeah.
BENCH: Do you think you can – and you’ve got to submit to any drug testing for therapeutic intervention.
APPELLANT: Yeah.
BENCH: Do you think you can accept those?
APPELLANT: Yeah.
BENCH: All right. So that’ll be on each of the stealing charges. I’ll also order that you pay the restitution of $85.10 on the first one, which will go to SPERS, and on the second charge will be $101.20 restitution to go to SPERS, and on the third charge $80.10 to go to the Cardwell service station and, of course, the big one. I am going to order the restitution. The insurance company paid it, but that means everybody in the community pays it, so I will be, on charge 3, ordering the restitution of $13,000, which will also go to SPERS, what the insurance company had to pay out. Okay. Nothing further?
Consideration
- [10]As I have noted, it is the joint position of the parties that the sentencing discretion miscarried in relation to the orders for ‘restitution’. That was because once regard was had to the potential consequences of non-payment of the payment orders the sentences imposed were excessive. Reference was made to R v Matauaina [2011] QCA 344. While that case turned upon a lack of procedural fairness, Fraser JA (with whom McMurdo P and Margaret Wilson AJA agreed) made some observations in relation to compensation orders and their effect. His Honour observed that, having regard to the statutory regime in the State Penalties Enforcement Act 1999 (Qld) (the ‘SPE Act’), orders for compensation may ‘expose [an offender] to the prospect of serious, adverse consequences, extending to a further term of imprisonment, if [the offender] is unable to pay or for any other reason fails to pay the compensation’.[4] As a result ‘the potentially punitive consequences of such an order are certainly relevant in considering the appropriateness of the overall sentence’.[5]
- [11]The Magistrate was told the appellant would be unable to pay compensation. The possibility, or even likelihood that the appellant would be subject to future, punitive action at the hands of the executive was a relevant consideration. Taken with the orders for imprisonment and probation, the payment orders render the sentences imposed excessive. In my view, the appropriate course would be to set aside the payment orders. Usually, a compensation order is expressed as being for the benefit of an identified person. Because setting aside a compensation order might adversely affect the interests of a beneficiary it would usually be appropriate that they be given an opportunity to be heard.[6] In this case, as I will discuss below, the orders of the Magistrate did not identify who was to be the beneficiaries of the payment orders. That being the case, there is no barrier to setting aside the payment orders.
- [12]The above reasons would be sufficient to deal with the appeal. However, it is appropriate to make some other observations about the orders pronounced by the Magistrate and what is recorded in the Verdict and Judgment Record.
The terms of the payment orders
- [13]Part 3 of the Penalties and Sentences Act 1999 (Qld) (the ‘PSA’) is titled ‘Releases, restitution and compensation’. Division 4 deals with ‘Order for restitution and compensation’. The authority for a court to order restitution or compensation is found in section 35 and the content of such an order is guided by section 36. Each section is set out below.
35 Order for restitution or compensation
- (1)The court may order that the offender—
- (a)make restitution of property—
- (i)in relation to which the offence was committed; or
- (ii)taken in the course of, or in connection with, the commission of the offence; and
- (b)pay compensation to a person for any loss or destruction of, damage caused to, or unlawful interference with, property—
- (i)in relation to which the offence was committed; or
- (ii)in the course of, or in connection with, the commission of the offence; and
…
- (2)An order may be made under subsection (1) in addition to any other sentence to which the offender is liable.
…
36 What order may state
- (1)An order made under section 35 (1) may state—
- (a)the amount to be paid by way of restitution or compensation; and
- (b)the person to whom the restitution is to be made or the compensation is to be paid; and
- (c)the time within which the restitution is to be made or the compensation is to be paid or, alternatively, that the proper officer of the court is, under the SPE Act, section 34, to give particulars of the amount of the restitution or compensation to SPER for registration under that section; and
- (d)if the order states the time within which the restitution is to be made or the compensation is to be paid—the way in which the restitution is to be made or the compensation is to be paid.
- (2)When making an order under section 35 (1), the court may also order that the offender is to be imprisoned if the offender fails to comply with the order.
- [14]When considered together, it is plain that in these sections ‘restitution’ is used to describe an order requiring the restoration of property and ‘compensation’ is used to describe an order for money to be paid to make up for loss or damage to property.[7] With respect to the Magistrate, it is not clear which of these orders were intended. While the word ‘restitution’ was used throughout the hearing before the Magistrate, it seems what was intended was an order for the payment of money to compensate for the loss caused by the appellant’s criminal conduct. If this is what was intended, it was necessary for it to be clearly articulated, preferably with reference to the statutory provision authorising such an order.
- [15]Another difficulty with the orders expressed by the Magistrate is that it is not clear who, or what entity, was to benefit from the payment of the money. Section 36 allows for an order to state the person to whom the compensation is to be paid. In this case the Magistrate stated that $80.10 should go to ‘the Cardwell service station’ but the other amounts, including the largest amount of $13,000, were said to ‘go to SPERS’.[8] Such an order makes no sense, and is probably not authorised by section 35 which is intended to allow compensation to the person who has suffered the loss or damage. In this case SPER suffered no loss and could not be the beneficiary of an order for compensation. What was probably intended was to act pursuant to section 36(1)(c) and to state that the proper officer of the court was to give particulars of the amount of compensation to SPER for registration under section 34 of the SPE Act, which would in turn authorise SPER to collect any unpaid amount.[9] If that was the intention, the orders as pronounced were not apt to achieve it.
- [16]Sections 35 and 36 of the PSA provide a handy template for the content of any order for restitution or compensation. Regard to the terms of the sections when formulating orders will go some way to avoid the difficulties I have set out above. One sequela of the confusing manner in which the orders were expressed in this case can be found in the Verdict and Judgment Record. This records in the case of each payment order that the ‘due date for payment’ was ‘28 days’. The Magistrate made no such order and there was no authority for this being included in a document intended to form part of the records of the Court.[10] If the payment orders were not being set aside it would be appropriate to direct the proper officer of the court to amend the Verdict and Judgment Record.[11]
The probation orders
- [17]It is a requirement of a probation order that the offender ‘must report to an authorised corrective services officer at the place, and within the time, stated in the order’. The Magistrate said the appellant ‘must report to them as soon as you’re able’. This was no doubt intended to accommodate the fact that the appellant was being held in custody. It might be doubted that order conformed to the requirements of the PSA, but neither the appellant nor respondent sought to make this an issue.
- [18]A more significant difficulty relating to the probation orders concerns how they were recorded in the Verdict and Judgment Record. The actual remarks of the Magistrate were silent as to the recording of a conviction. The Magistrate’s endorsements on each bench charge sheet are similarly silent as to the recoding of a conviction. A probation order may be made whether or not a conviction is recorded.[12] Absent a statement of the court to the contrary, the conviction is taken to be not recorded.[13] Despite this, the Verdict and Judgement Record in the case of each probation order commences with a notation ‘Conviction Recorded’. It may have been the Magistrate’s intention to record a conviction. Such would have been amply justified given the nature of the offending and the appellant’s antecedents. But in the absence of a statement that convictions were to be recorded, there was no authority for the Verdict and Judgment Record to include this notation. In the circumstances it is appropriate to direct that the proper officer of the court amend the Verdict and Judgment Record by adding the word ‘No’ in front of the words ‘Conviction recorded’ in relation to the probation orders.
Orders
- [19]For these reasons the orders are:
- The appeal is allowed;
- The orders for payment of restitution of $13,000, $85.10, $101.20 and $80.10 are set aside;
- The balance of the orders made by the Magistrate are confirmed;
- The proper officer of the court is to amend the Verdict and Judgment Record by adding the word ‘No’ in front of the words ‘Conviction recorded’ in relation to the probation orders.
Footnotes
[1] Criminal Practice Rules 1999 (Qld), rule 62.
[2] Allesch v Maunz (2000) 203 CLR 172, 180.
[3] Justices Act 1886 (Qld), section 225(1).
[4] Matauaina at [27].
[5] Matauaina at [35] (citations omitted).
[6] Matauaina at [25].
[7] There is a power to order compensation for personal injury in section 35(1)(c). This power is not presently relevant.
[8] This is probably an error in the transcript – I expect the Magistrate said ‘SPER’, a common acronym for the State Penalties Enforcement Registry.
[9] SPE Act, section 35.
[10] Criminal Practice Rules 1999 (Qld), rule 62.
[11] Criminal Practice Rules 1999 (Qld), rule 62(5).
[12] PSA, section 90.
[13] PSA, section 12.