McIntyre v Commissioner of Police
[2021] QDC 163
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- Unreported Judgment
- McIntyre v Commissioner of Police[2021] QDC 163
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McIntyre v Commissioner of Police[2021] QDC 163
McIntyre v Commissioner of Police[2021] QDC 163
DISTRICT COURT OF QUEENSLAND
CITATION: | McIntyre v Commissioner of Police [2021] QDC 163 |
PARTIES: | PATRICIA ANN MCINTYRE (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO: | D64/2021 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | Magistrates Court at Maroochydore |
DELIVERED ON: | 30 July 2021 (orders) 3 August 2021 (reasons) |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 26 July 2021 |
JUDGE: | Long SC, DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE OF MAGISTRATE – where the appellant committed and was sentenced in respect of 17 offences and a breach of a probation order in the Magistrates Court – where the Magistrate ordered terms of imprisonment and payment of compensation – whether the Magistrate appropriately considered the making of compensation orders – whether the Magistrate failed to appropriately have regard to the effect and impact of the sentencing orders and the principle of totality – whether the sentence imposed was manifestly excessive in the circumstances |
LEGISLATION: | Justices Act 1886, ss 222, 223 Penalties and Sentences Act 1992, ss 9, 35, 48, 351 State Penalties Enforcement Act 1999 |
CASES: | AB v The Queen (1999) 198 CLR 111 Bugmy v the Queen (2013) 249 CLR 571 Commissioner of Police v Al Shakarji [2013] QCA 319 Forrest v Commissioner of Police [2017] QCA 132 Fox v Percy (2003) 214 CLR 118 Hili v The Queen (2010) 242 CLR 520 House v R (1936) 55 CLR 499 McDonald v Queensland Police Service [2018] 2 Qd R 612 Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181 Monsell v Commissioner of Police [2020] QDC 250 Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313 Pullen v O'Brien [2014] QDC 92 R v Ferrari [1997] 2 Qd R 472 R v Flint [2015] QCA 275 R v Kendrick [2015] QCA 27 R v Margaritis; Ex-parte Attorney-General (Qld) [2014] QCA 219 R v Matauaina [2011] QCA 344 R v Pham (2015) 256 CLR 550 R v Shillingsworth [2002] 1 Qd R 527 R v Silasack [2009] QCA 88 Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 Teelow v Commissioner of Police [2009] 2 Qd R 489 Tierney v Commissioner of Police [2011] QCA 327 White v Commissioner of Police [2014] QCA 121 Wieland v QPS [2020] QDC 292 |
COUNSEL: | LA Ygoa-McKeown for the appellant |
SOLICITORS: | Lumme Rynderman Legal for the appellant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]By notice of appeal filed on 29 April 2021, the appellant appeals against orders made, on 13 April 2021 in the Magistrates Court at Maroochydore, in sentencing her for a number of offences. The sole ground of appeal expressed in that notice is that “the sentence was manifestly excessive”.[1] However, the hearing proceeded, without objection, on the basis of the following amended grounds, as set out in the appellant’s written submissions:
- “(a)The sentence was manifestly excessive in all of the circumstances.
- (b)The Magistrate did not have proper regard to the applicant’s deprived background and childhood exposure to trauma.
- (c)The Magistrate erred in making an order for restitution in circumstances where the applicant had no meaningful capacity to pay that restitution.
- (d)The Magistrate erred in failing to apply the principle of totality or alternatively to have proper regard to the principle of totality.”[2]
- [2]Such appeal is brought pursuant to s 222 of the Justices Act 1886 and pursuant to s 223 and, as is the case here, in the absence of the admission of any “new evidence”, is in the nature of a rehearing upon the record and more particularly the evidence adduced in the original sentencing proceedings. Notwithstanding the terms of s 222(2)(c), the reliance upon the expanded grounds of appeal is consistent with my earlier decision in Pullen v O'Brien [2014] QDC 92 and is indeed common practice in this Court.
- [3]In such an appeal, this Court is required to conduct a review of the sentencing hearing and ultimately correct any legal, factual or discretionary error of the sentencing Magistrate, determined on the basis of that review and this Court’s own conclusions.[3] Necessarily, regard must be had to the issues raised by the grounds of appeal.[4]
- [4]Moreover and in proper recognition that the appeal is brought in respect of the exercise of discretion by the sentencing Magistrate and consistently with established authority,[5] specific reference is made to the applicability of the well known principles in respect of the ultimate identification of error in respect of a discretionary determination and in warranting intervention on appeal, as explained in House v R,[6] in the following terms:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. 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. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."
- [5]It may be noted that a sense of distinction between a ground alleging specific error and one alleging manifest excessiveness, as an allusion to the concept of a result being “unreasonable or plainly unjust”, was recognised in the plurality judgment in Hili v The Queen.[7] It was then observed:
“[59] As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
[60] The Court of Criminal Appeal also said that “manifest error is fundamentally intuitive”. That is not right. No doubt, as the Court went on to say, manifest error “arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it”. But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.
[61] The applicants’ submissions criticising the sufficiency of the reasons given by the Court of Criminal Appeal pointed out that the Court of Criminal Appeal identified no specific error in the sentencing judge’s findings of fact or reasons. That is right, but because the only ground advanced by the Director was the ground of manifest inadequacy, it had to be assumed that the Director alleged no specific error. That the Court of Criminal Appeal identified no specific error is, therefore, unsurprising. The absence of identification of such an error does not bespeak error on the part of the Court of Criminal Appeal. The reasons given by the Court of Criminal Appeal for concluding that the sentences passed were manifestly inadequate sufficiently revealed the bases for that conclusion.”[8] (citations omitted)
And as Hayne J had earlier observed in AB v The Queen,[9] an appellate approach which seeks to contend for manifest excessiveness of sentence on the basis of identification of some specific error:
“… wrongly melds two distinct contentions: that the judge made a specific error in sentencing and that although no specific error can be identified, the sentence was manifestly excessive”.
His Honour subsequently elaborated:[10]
“As I have already said, the argument melds two radically different circumstances for appellate review of sentencing: specific error and manifest excess. Saying that a sentence is manifestly excessive is not the same as saying that a sentencing judge made a specific error in arriving at the sentence that is under consideration. To equate manifest excess and specific error is to invite appellate error and to obscure the true nature of appellate review of sentences. Unless the legislature has prescribed a fixed penalty, a judge sentencing an offender makes a discretionary judgment. Necessarily, then, judges may differ about the proper sentence to be imposed on the offender; there will be a range of possible sentences that could be imposed without error.
…..
The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be resentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.”
And that distinction is also reflected in the following re-emphasis of established principle, in R v Pham:[11]
“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”
The Circumstances
- [6]In the first instance, the sentencing orders were in respect of 17 offences committed by the appellant over a period approximating three months, between October 2020 and January 2021. They were nine offences of fraud, four offences of forgery and four offences of uttering. In respect of each of the offences of fraud, the appellant was sentenced to serve two years imprisonment. On each of the forgery and uttering offences, she was sentenced to six months imprisonment. And in respect of that period of two years imprisonment, her parole release date was fixed at 14 September 2021, or after serving eight months imprisonment because of the declaration of 89 days of pre-sentence custody from 14 January 2021.
- [7]In broad terms, those offences related to the defendant’s conduct in seeking to take advantage of persons who were seeking accommodation through advertisements placed on Facebook, to purportedly offer and negotiate tenancy of a property in which she herself was a tenant, at Ilkley, and in circumstances where, due to her own defalcations in respect of the payment of rental, she was evicted in late December 2020. In the course of the purported negotiations for the leasing arrangements, the defendant’s modus operandi was to represent to the prospective tenants a need to pay amounts of money to her in order to secure their tenancy in the context of competition for others for that right. Her dealings were with some nine individuals (albeit one transaction in respect of two brothers and another, a couple) and by which she managed to obtain a total of $26,010.00 by way of purported early payments of bond, rental and for some appliances.
- [8]Accordingly, although over a period of only a few months, the defendant’s conduct may be seen as exhibiting a degree of persistence and organisation or a level of sophistication in that she sought to support her deception by the forgery, in four instances, of tenancy agreements or leases and the uttering of those documents to some of the victims. Otherwise, the facts placed before the Court indicated her dishonesty in terms of ongoing deception of the victims in terms of various excuses for delays in being able to put in place the tenancy. Various sums of money ranging from $900.00 to $9,800.00 were obtained and remained as the losses of the different victims and in the case of the couple, a total amount of $6,830.00.
- [9]The defendant’s scheme, it may be observed, was always doomed to be exposed and that happened in the case of the victim who had paid her the amount of $10,900.00, by 24 December 2020. In early December that victim had become suspicious in terms of the delaying tactics engaged by the appellant including the provision of false screen shots of bank transfers in purported repayment of money to him (although it is acknowledged that an amount of $1,100.00 was ultimately returned, leaving $9,800.00 outstanding). On 24 December 2020 he confronted the appellant. She further indicated that she had spent all of the complainant’s money and would have to get a bank loan to repay him. They then drove together to the Nambour Police Station to have the matter dealt with by police. There, the appellant was interviewed by police and made admissions as to her dishonest conduct. That included explaining that she had spent the money and that she “had lived outside her means and was unable to pay the complainant all the money at that time”. On that occasion she was also interviewed in respect of a complaint that had been made by the brothers, with whom she had dealt until late November 2020, when they realised that she was being deceitful and made their complaint to police. Her further offending subsequently came to light and from 14 January 2021, the appellant was in pre-sentence custody.
- [10]At the time of the offending the appellant was aged 49 to 50 years and it was explained that offending occurred in the situation of financial stress and her use of the money obtained to pay bills. To the extent that some repayments had been made to complainants prior to sentence, those were with money obtained by her continued offending.
- [11]Her personal circumstances were elaborated in terms of a difficult childhood involving foster care, abuse and relocation to more than 30 schools. Reference was made to her exposure and indeed involvement in some dishonest and manipulative behaviour as directed by her stepmother. A documented “Mental Health Treatment Plan” was tendered to support the contention that she had psychological issues including anxiety and depression, particularly related to the trauma of sexual abuse by another when she was seven years old, in respect of which charges against that man were proceeding in the Victorian justice system at the time of sentence. Further submissions made for her were to indicate the benefit of the support of her partner and father, her attendance at a session with a psychologist under the Mental Health Treatment Plan prior to her remand in custody and that she had potential employment as a farm hand.
- [12]The applicant had a limited but relevant prior criminal history. That is particularly because of the understanding that only shortly before the commission of these offences, the appellant had, on 21 September 2020, been placed on probation for a period of 18 months with various orders referred to as being for restitution of sums of money which totalled $1,250.00, made in respect of four offences of fraud and an offence of stealing committed in a period between December 2019 and March 2020. Notwithstanding some criticism directed for the appellant at the effect of the material placed before the Magistrate in respect of her breach of probation and most particularly an opinion that the appellant “does not appear to have benefitted from the opportunity afforded to her”, in circumstances where it is pointed out that she appears to have done all that was required of her including the obtaining of the Mental Health Care Plan to which reference has been made, the particular difficulty, as the Magistrate recognised, arising from these circumstances is the fact of her re-offending so soon after being placed on probation.
- [13]The circumstances of that earlier offending were explained to the Magistrate as follows:
“The defendant advertised on Gumtree certain items that being a fridge and a generator. She negotiated with the delivery and price for victims. Once the victims had paid the deposit she also asked for further money and never supplied them with the items. That was a total loss of $1,600.00 in that case. There are also notes that she was convicted on that date of a steal. It would be my submission that the steal is also a breach of trust. She stole $600.00 from her employer, who she had hired as a cleaner.”[12]
As was correctly submitted by the prosecutor below, that offending bore some hallmark of similarity to the appellant’s further and more elaborate offending and more importantly, demonstrated that the earlier order had not had any deterrent effect in respect of the appellant’s conduct.
- [14]It was determined that it was appropriate to revoke the probation order and to re-sentence the appellant for the offences for which the order had been made. On each of the four fraud offences, she was resentenced to a term of six months imprisonment and in respect of the additional offence of stealing, one month imprisonment. Each of those terms was then suspended for an operational period of three years. As was specifically noted by the sentencing Magistrate, the “restitution” orders made on 21 September 2020 (for sums totalling $1,250) remained undisturbed and those orders are not the subject of this appeal.
- [15]It may be accepted that there was, in sentencing the appellant, particular need to reflect the extent and persistence of her offending, the direction of it at the vulnerability of her victims due to their difficulties in securing accommodation and her preparedness to take advantage of that vulnerability to repeatedly secure payments of money from them and so that her conduct had the consequence of substantial financial and emotional impact upon so many victims. And in doing so in breach of the earlier probation order and whilst subject to it, therefore engaging a particular need to reflect personal deterrence in the sentence. However and as was appropriately acknowledged by the sentencing Magistrate, she had pleaded guilty at an early stage, with a sense of remorse for her conduct.
- [16]It was explained to the sentencing Magistrate that after she had been placed on probation and consequent to a loss of prior employment, she began a traffic controller’s course only to find that her convictions would preclude her from obtaining that qualification. The further offending occurred in that context and where she did not inform her partner of that realisation and resorted to the offending due to their financial difficulties. It was further noted that although disclosure of her offending due to her arrest and remand in custody had led to a breakdown in that relationship, there was said to have been some reconciliation and some guarded support for her by the time of sentence. It was also noted that her partner had lost his employment in the aftermath, in the context of the publicity of the offending and what was described as threats and harassment of him. Although, he was noted to have since obtained another job.
- [17]It was first asserted that the money received by the appellant “went only to cover her bills”. But after the Magistrate pointed out the implications as to the extent of such expenditure over the three months or so that were involved, it was clarified that:
“Later in the period of time, she says that when she was being confronted by people with demands for payment and threats that they were going to go to the police, etc, she says that she tried to gamble some in an effort to make some money to pay them back and she was making some payments. So it kind of just snowballed where she – people were demanding money because they’d not heard from her for some time, so she then either gambles or defrauds some further people to pay them back and it just snowballed out of control until she was remanded in custody.”[13]
However, there was no further elaboration as to the extent of the bills or how much was repaid to any victims.
- [18]The appellant had been in pre-sentence custody for 89 days from 14 January 2021 to 12 April 2021 and it was submitted that she had behaved well and engaged with bible studies in the custodial environment.
Discussion
- [19]It may be observed, at the outset, that there is considerable difficulty with the appellant’s contention that the overall effect of the sentencing orders is unreasonable or plainly unjust. Some particular emphasis is placed on the imposition of the compensation orders and also the effect of the order made in resentencing her for the offences for which the probation order had been made. That is particularly in respect of the operational period of the suspended sentences which has the effect of extending the effect of the orders 12 months beyond the expected conclusion of the period of imprisonment imposed in respect of the fraud offences and her parole period, with her potentially being exposed to liability to serve a further six months imprisonment should there be any breach of those suspended sentences. However, each of those complaints is also encompassed within the other contentions as to specific error in ordering the compensation and in failure to have regard to the totality principle.
- [20]It is unnecessary to seek to specifically review the comparative sentences to which reference has been made and it is certainly not just a matter of comparing such cases on the basis of the amounts of money that are involved. When regard is had to the nature and extent and persistence of the offending behaviour, in breach of the earlier probation order and in terms of the obvious and substantial impact it had on eight victims, it should not be concluded, as effectively contended for the appellant, that it was inappropriate to impose a head sentence beyond 18 months imprisonment or that the comparable cases do not support a head sentence of two years imprisonment, for the subject offending, nor that the Magistrate erred in indicating that she considered that “the prosecution submission of up to two and a half years is certainly not out of range”.[14] That is particularly when the sentence is to be seen as also encompassing the resentencing for the offences for which the probation order had been made.
- [21]Notably, none of the cases to which reference is made involve offending in breach of a probation order and apart from Wieland v QPS [2020] QDC 292, such multiplicity of victims. The sentencing Magistrate undertook some considerable review of the comparable cases to which she was referred. Her assessment of the effect of the decision in Wieland and in distinguishing it from the appellant’s position was the subject of some inappropriate criticism. That is because the complaint tended to overlook the particular evidence relied upon in Wieland as to the effects and connection of that offender’s mental health conditions to her offending, which were not features of this case.
- [22]However, there is more substance to the specific complaint in terms of failure to appropriately have regard to the totality principle. Relevantly and correctly, reference is made to the observations in R v Kendrick[15] in respect of the application of that principle to the aggregate effects of a sentence which is imposed. There, reference is made to the requirement of bearing in mind the following observations made in the earlier decision of R v Margaritis; Ex-parte Attorney-General (Qld),[16] and the necessity to make any adjustment in the sentence to reflect an assessment of appropriate response to the overall criminality involved:
“The application of the totality principle does not require that there must invariably be some reduction in the accumulation of otherwise appropriate sentences to avoid the so-called ‘crushing’ effect. The appropriate course is to arrive at an appropriate sentence and then assess the cumulative effect to gauge whether the overall sentence is disproportionate to the offender’s criminality.”
- [23]The particular considerations that arise here are in respect of the appropriateness of the additional sentencing effects of the terms of imprisonment suspended for the breach of probation and in ordering the payment of compensation.
- [24]Although the compensation orders are referred to in the materials as being made for “restitution”, it is apparent that the orders were made in respect of the financial losses of the victims of the appellant’s offending and therefore empowered pursuant to s 35(1)(b) of the Penalties and Sentences Act 1992 (“PSA”), rather than for any restitution of property in relation to which the offence was committed or taken in the course of or in connection with the commission of any offence, pursuant to s 35(1)(a).
- [25]Although such orders are themselves made as a matter of exercise of discretion and are recognised to not be in the nature of punishment, as such, consistently with the notation in s 35(2) that such an order may be made “in addition to any other sentence to which the offender is liable”, such orders are properly regarded as being part of a sentence imposed on an offender and there is authority for the proposition that when a court sees fit to make such an order, there is a need for that to be taken into account and otherwise reflected in respect of any other sentence which is imposed. In the first instance, such an order may tend to ameliorate the effect of loss caused by an offender, a matter to which the court is specifically required to have regard pursuant to s 9(2)(e) of the PSA. Also and where appropriate, preparedness to make or the prior making of reparation and the basis upon which that is to be or has been done, may be to varying degrees, demonstrative of an offender’s remorse for the offending conduct.
- [26]In R v Matauaina,[17] and in setting aside an order requiring the payment of compensation in the sum of $27,080, extensive review of the potential effect of a compensation order, including, as was the case both there and here, upon referral under the State Penalties Enforcement Act 1999, was undertaken to demonstrate the correctness of the submission made to the Court that:
“the effect that the compensation order did not merely provide the applicant’s employer with a summary remedy to enforce her existing civil liability; it also exposed her to the prospect of serious, adverse consequences, extending to a further term of imprisonment, if she is unable to pay or for any other reason fails to pay the compensation”.
It was then observed as follows:
“[34] ……. The conclusion is inevitable that the applicant was adversely affected by the order and the adverse consequences extended well beyond the mere summary enforcement of her existing civil liability. Because the applicant was not given any notice or opportunity to be heard about this order at the sentence hearing, the compensation order must be set aside.
[35] For that reason, and in the absence of any fresh application for any similar order upon notice to the applicant, it is not necessary to decide whether the effect of the order was to render the sentence manifestly excessive. Nevertheless I should briefly discuss the respondent’s submission that the compensation order was severable from and did not affect the issue concerning the length of imprisonment. As a matter of principle, that submission must be rejected. In R v Ferrari,[18] McPherson JA observed that an order under s 35, although part of the sentence or judgment, is not a form of punishment. Nevertheless, the potentially punitive consequences of such an order are certainly relevant in considering the appropriateness of the overall sentence.[19] The appropriateness of the term of imprisonment imposed by the sentencing judge cannot be considered in isolation from the consequence that an offender might be sent to prison for non-payment of compensation.”
- [27]The circumstances in which the compensation orders were made are separately considered below. For present purposes, it is to be noted that it is apparent that the sentencing magistrate primarily, if not solely, proceeded upon the basis that the compensation orders were appropriate and necessary in order to ameliorate the losses of the victims. However, and as has been noted, there are also relevant considerations as to the effect and impact of such orders, as part of the sentence imposed upon an offender. There is no express reference in the sentencing remarks to having regard to the total or overall effect of the orders made as a reflection of the criminality being dealt with. What the Magistrate did observe as to the structure and effect of her orders was:
“In view of those cases, obviously, I do not believe there is any alternative to a jail term, and in view of the circumstances and the vulnerability of the victims, I also consider that the prosecution submission of up to two and a–half years is certainly not out of range. However, taking into account the early plea of guilty and your circumstances and the fact that you, at least, are starting a mental health plan, I do think it is important, though, to consider a strong message of deterrent, particularly to these type of people.
…
So what does all this mean? This means that, come September, you are getting out on parole. You will have served a third of your sentence, which I – as I said – I have taken into account the other matters. The third of the sentence will be up, which means that two-thirds of it – which is 16 months – you will be on parole. That is where we are hoping your rehabilitation comes in, okay? So your eight months is your punishment, your parole is your rehabilitation and your suspended sentences, I hope, are clear deterrent to you and to the rest of the community.
So you have got a few more months there to really think about what you are going to do from the point of view of – I think you have got five months – when you come out, how you are going to choose to live your life, how you are going to address those things such as paying your restitution. So, hopefully, we have covered it all and all I can say is good luck and I hope you can manage to have a more fruitful 40 years of life ahead of you – like, it appears you had a pretty good fruitful first 40 years in staying out of the criminal justice system.”[20]
- [28]It is abundantly clear that there has been a failure to appropriately take into account the impact or burden placed upon the defendant by the imposition of the compensation orders or to consider any sense of conjunction with or amelioration of what was otherwise considered to be the appropriate sentencing orders. The further preferable view is that there has also been a failure to consider the total or overall effect of the orders made upon the breach of the probation order, both in terms of imprisonment imposed and the operational period in extension of the effect of the sentencing orders by a further 12 months. In this respect, sight should not be lost of the relevance of the fact that the further offences were committed in breach of the probation order, as an aggravating factor to be taken into account in the sentence fixed directly for that further offending and of the expected current effect of the terms of imprisonment imposed in the requirement of actual serving of imprisonment for those offences.
- [29]This is not a case where the appellant pressed any offer to pay compensation as a factor to be taken into account in sentencing her. On the contrary and cognisant of her position of having been in pre-sentence custody, the submission made for her was:
“MR LUMME: … She has a tentative offer of casual farmhand work upon her release at this stage, but it’s – I would suggest it’s far from certain and I would suggest that any order for restitution at this stage may well be inappropriate and there are other means by which those people can recover their money if they - - -
HER HONOUR: How?
MR LUMME: Well, they could sue her civilly. They can make applications to sue her personally and the plea of guilty can be used against her in those proceedings. So I’m not suggesting that your Honour would make orders for restitution in the circumstances where she has, at this stage, no proper capacity to pay that back and your Honour’s ordering a period of imprisonment. I’m not suggesting that period of imprisonment’s not appropriate.”[21]
It was the Magistrate who sought to return to the issue, in the following exchange:
“HER HONOUR: Why don’t – I know what I was going to ask you. Well, I’ll wait until you finish that, I won’t interrupt you.
MR LUMME: No, no, that’s fine.
HER HONOUR: Because one of the applications that the bail thing is that she had every – she already started work, supposedly, on a lettuce farm at that stage but she had every intention of paying compensation.
MR LUMME: Well, your Honour, frankly the – any bail file ought to be a separate file. Your Honour shouldn’t have any regard to what’s contained in it, in my submission.
HER HONOUR: No, except that she said that she intended to pay compensation and now you’re saying - - -
MR LUMME: But your Honour’s - - -
HER HONOUR: - - - she can’t.
MR LUMME: But your – well, no, I’m saying her position is not that certain. She says that she’s got a tentative offer of casual employment but there’s no certainty in relation to that. There’s nothing that I can put before your Honour to say she will definitely have employment and she’ll be earning this amount or roughly this amount.
HER HONOUR: Sure, sure.
MR LUMME: So that you can have any confidence.
HER HONOUR: No.
MR LUMME: And the cases - - -
HER HONOUR: Well, I clearly wouldn’t be setting a default, you know, show cause state. If I did order it, it would all go to SPERs but I’ve - - -
MR LUMME: But the – but the position in the cases regardless of whether you refer it to SPER or not, that has significant consequences including one can be imprisoned and have other rights taken away from them like drivers licence and other things. So it can affect them in other ways and there’s support for the proposition that you really shouldn’t – that whether you refer to it SPER or set a default period really doesn’t make too much of a difference that you need to assess the earning capacity.
HER HONOUR: Where’s that? Where’s the support for that?”[22]
Further exchanges then occurred without the Magistrate being referred to any particular authority for the proposition as to any need to consider capacity to pay compensation, except that the prosecutor began to have some input and made reference to Monsell v Commissioner of Police,[23] after the Magistrate observed:
“Hang on, I’m just asking about why Mr Lumme thinks that I should consider her inability to pay a fine scenario on base of restitution.”[24]
The prosecutor then made a contestable submission as to the effect of inability to pay compensation but which at least sought to draw attention to the need to consider such orders in the context of the overall effect of the sentencing orders and that such orders “are not automatic”.[25]
The final submission for the appellant on this point was at the conclusion of the following further exchanges:
HER HONOUR: Okay. With restitution as well, I think, Mr Prambury you’ve got 7800 but I think it’s seven – sorry, you had 9800, I think it’s 9700.
MS BOOL: Nine thousand, seven hundred?
HER HONOUR: Yes.
MS BOOL: That’s correct, your Honour. Does your Honour wish for me to print that case that I’ve just referred to? I sent it to your clerk for assistance. Regarding restitution that if restitution cannot be payable, there’s a hierarchy of orders and it can – prosecutions are meant to ask for an increased sentence range to reflect the victims will never be paid.
MR LUMME: I accept that. I accept that as a principle. That’s obviously right, you don’t - - -
HER HONOUR: But I don’t think the restitution is that high that we could say it can never be paid.
MR LUMME: No.
MS BOOL: She has no means, your Honour.
HER HONOUR: Well - - -
MR LUMME: No.
HER HONOUR: But there’s no deadline to paying it either.
MR LUMME: That’s right.
HER HONOUR: You know, so.
MR LUMME: There’s really a couple of ways to do it, but your Honour would – I can’t see the – that it is specifically referred to under the Penalties and Sentences Act but your Honour would have regard to the overall effect of those orders. If your Honour were – as I say, she’s got that offer of employment. That’s as high as I can take it. If your Honour’s satisfied that that means that she can pay it if it’s referred to SPER, your Honour would have regard to that and that might support a conclusion that she’s released to parole today. The alternative might be that if your Honour didn’t order the restitution, your Honour might consider that she may well need to serve a third of that sentence, but she certainly maintains the expression of the willingness to pay it. I was simply raising it as a matter of whether that’s – whether she has that meaningful capacity to or not, given that she’s currently in custody so the offer of employment is there but that’s as high as I can take it.
HER HONOUR: Is that where she was working before, at the lettuce farm?
MR LUMME: Yes.”[26]
- [30]The position taken by the Magistrate in drawing a distinction with the legislative provisions relating to the imposition of a fine as a penalty and the absence in respect of compensation orders, of any provision like those in s 48 of the PSA, requiring regard to be had to the financial circumstances of an offender and the nature of the burden to be placed on an offender by the obligation to pay a fine, whilst correct to that effect, is not determinative of the issue.
- [31]Neither is there anything signalling any statutory imperative to make compensation orders in sentencing proceedings, in ss 48(3) and (4) of the PSA, which are simply directed at circumstances where there is capacity to pay compensation and acknowledgment that priority should then be given to the payment of compensation rather than the imposition of a fine. Whilst that tends to reinforce what would otherwise necessarily be a consideration for a court that where there is capacity to do so, a victim’s loss might be ameliorated by a compensation order, as noted in Matauaina, an existing civil liability is also recognisable. Moreover, it is necessary to understand the exercise of discretion which is involved in a decision to make a compensation order and therefore the need to identify the appropriate circumstances warranting the making of the order as part of a sentencing process and therefore, in dealing with the position of an offender. An expression of principle appropriate to like circumstances and some identification of relevant considerations, is to be found in the following observations in R v Flint[27]:
“In the absence of cogent evidence that an offender has the capacity to pay compensation after release from a term of actual imprisonment imposed as part of a sentence, courts are reluctant to order offenders to pay compensation after serving a term of imprisonment. To do so may jeopardise the offender’s prospects of rehabilitation; it would be apt to amount to a crushing sentence and would risk setting up the offender to fail at the time of release from prison when most in need of support to reintegrate into society.”
- [32]It must be concluded that the following reasoning of the sentencing Magistrate for ordering the payment of compensation, is not consistent with such an application of appropriate principle:
“I thought a lot about the restitution and I accept that, in your circumstances, you have no capacity at this stage to pay it and, therefore, I did not make it payable via this registry; I sent it to SPERS and it may well take you a number of years to pay it, but at least those people will have some sense of justice that, ultimately, they will be getting their funds. I do not accept the argument from Mr Lumme that they could sue you civilly; that would only be throwing good money after bad and significant, and I do not think it is the Court’s duty to stand back and require that.”[28]
- [33]There is no duty upon a sentencing court to make compensation orders and certainly not without taking into account the prospective burden to be placed on an offender, including upon any referral to SPER for recovery, and accordingly to the defendant’s capacity to meet the order. It is clear that the sentencing Magistrate did not have regard to any such considerations and nor to the context of the other sentencing orders which were made.
- [34]Accordingly, what has been observed is sufficient to warrant intervention by this Court and re-sentencing of the defendant.
- [35]However, and although it may be strictly unnecessary to do so, it may otherwise be observed that there is no merit in the further contention of specific error, in failing to have proper regard to the applicant’s deprived background and childhood exposure to trauma. The authority relied upon in respect of such an obligation is Bugmy v the Queen.[29] However, that authority does not indicate that such reference must always be for the purpose of favouring a defendant, or given weight in the absence of some identified connection to a purpose to be achieved in sentencing such an offender or a consideration relevant to such a purpose. The paragraph to which reference is specifically made is as follows:
“Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.” (citations omitted)
- [36]Neither is the submission that the sentencing Magistrate placed “inadequate weight on the applicant’s antecedents” apt to properly engage the appropriate principles, as noted above in the passage from House v R. The Magistrate did not fail to have regard to those antecedents, in any event. What she said was:
“I have, of course, been given, in exhibit 5, the Palmwoods Medical Centre mental health treatment plan. It does not really take me very far, to be honest. It indicates that you have got some problems of anxiety and depression which a vast majority of people seem to be having these days as well. You were given some medication. There was a bit of a social history and certainly you have had some difficult times in your life, but not the worst one I have seen and certainly not the best one, but it was, and nothing in there really makes – gives me any reason for why you would have gone down this crazy track of behaviour. You had certainly managed to cut down your alcohol of your own volition, and certainly your general behaviour in what was marked did not – other than the anxiety symptoms and maybe some sleeping pattern problems, there is nothing in this report at all that would suggest to me that there are any significant matters that I should take into account in regard to that.”[30]
And as has already been noted, she otherwise specifically noted the appellant’s circumstances and that she had started a mental health plan as a considerations of some importance in imposing the period of two years imprisonment.
Conclusion
- [37]Consistently with established authority,[31] the respondent sought and placed before the Court, evidence of the understandable desire of the beneficiaries of the compensation orders, for them not to be set aside, as a means of providing opportunity for them to be heard on the issue, and sought to advocate against those orders being set aside. None of those victims sought to be further heard in the matter. However and in the circumstances where, as was acknowledged by the Magistrate, the defendant had no present apparent capacity to meet the compensation orders, and where there could be no reality of expectation that she would in the future have such capacity, I am driven to the conclusion that the Magistrate erred in not heeding the submissions of each of the parties before her and in making the compensation orders, so as to leave open only a bare hope of recovery in the future when there was an absence of cogency of evidence as to any such expectation. In particular, it is clear that she has also failed to have regard to the relevant principles to be applied in having regard to the impact that such an obligation was likely to have upon the appellant in the future and her prospects of rehabilitation. Moreover, the remaining difficulty is the absence of sufficient circumstances to provide any appropriate basis for the making of any such compensation orders.
- [38]The appeal should be allowed. As noted above, the appellant has also established that error has occurred in the exercise of sentencing discretion and in the terms of failure to have proper regard to the total effect of the sentencing order, including the compensation orders. That in itself is sufficient warrant for this Court to reassess an appropriate sentence for her.
- [39]Need for a sentence having deterrent effect, particularly from a personal perspective, is clear. However it is far from clear as to why that is not appropriately achieved by the period of two years imprisonment imposed with the parole release date after serving eight months and necessarily taking into account the breach of the probation order involved in the commission of the offences to which those orders attach. Neither does there appear to be any particular warrant for the suspension of the additional terms imposed upon the resentencing for the breach of probation, during and in potential complication of any cancellation of her parole order should that occur, or beyond the effect of those orders. The submission for the appellant that terms of six months imprisonment for the earlier fraud offences were in themselves unnecessarily high, should also be accepted, particularly when they were committed at a time when the appellant’s prior criminal history only extended to four court appearances between January 2012 and March 2020, for two offences of contravention of a direction or requirement and two regulatory offences of unauthorised dealing with shop goods, met with the imposition of fines.
- [40]Accordingly, the appeal is allowed. The appropriate orders are that only the following variations be made to the orders made in the Magistrates Court at Maroochydore on 13 April 2021:
- (1)All orders requiring that the defendant pay ‘Restitution’ are set aside; and
- (2)In respect of the orders made consequently to the revocation of the probation order made on 21 September 2020:
- (a)each term of six months imprisonment be varied to four months imprisonment; and
- (b)each order for suspension of the term of imprisonment (including that of one month imprisonment for the offence of stealing) is set aside.
Footnotes
[1] Notice of appeal, filed 29/4/21, at p 2.
[2] Outline of submission of the appellant, filed 5/7/21, at [2(a)] – [2(d)].
[3] s 223 Justices Act 1886 and see: Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313, at [33]-[34] and Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, at 686-7, Fox v Percy (2003) 214 CLR 118, at [25], Teelow v Commissioner of Police [2009] 2 Qd R 489, at [2]-[4], Tierney v Commissioner of Police [2011] QCA 327, at [26], Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181, at [10], Commissioner of Police v Al Shakarji [2013] QCA 319, White v Commissioner of Police [2014] QCA 121 and McDonald v Queensland Police Service [2018] 2 Qd R 612, at [47].
[4] Justices Act 1886, s 222(8)(a) and see: Forrest v Commissioner of Police [2017] QCA 132.
[5] Teelow v Commissioner of Police [2009] 2 Qd R 489 at [18]-[20].
[6] (1936) 55 CLR 499, at 504 – 505.
[7] (2010) 242 CLR 520, at [58].
[8] Hili v The Queen (2010) 242 CLR 520, at [59]-[61].
[9] (1999) 198 CLR 111, at [109].
[10] Ibid, at [128]-[130].
[11] (2015) 256 CLR 550, at [28].
[12] T1-13.1-7.
[13] T1-20.31-38.
[14] D1-10.1-4.
[15] [2015] QCA 27, at [65] – [66].
[16] [2014] QCA 219, at [12].
[17] [2011] QCA 344, at [27]-[33].
[18] [1997] 2 Qd R 472, at 477.
[19] The footnote is: “See R v Silasack [2009] QCA 88, at [31] - [35], [49]; R v Shillingsworth [2002] 1 Qd R 527, at 528 [3] per Thomas JA.
[20] D1-10.1-7, D1-11.36-1-12.3.
[21] T1-20.43-1-21.8.
[22] T1-26.14-1-27.12.
[23] [2020] QDC 250, at [15].
[24] T1-27.34-35.
[25] T1-28.4-7.
[26] T1-29.5-1-30.6.
[27] [2015] QCA 275, at [24].
[28] D1-11.1-9.
[29] (2013) 249 CLR 571, at [44].
[30] D3.31-44.
[31] R v Matauaina [2011] QCA 344, at [25], R v Ferrari [1997] 2 Qd R 472, at 479.