Hemmings v Commissioner of Police
[2021] QDC 172
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- Hemmings v Commissioner of Police[2021] QDC 172
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Hemmings v Commissioner of Police[2021] QDC 172
Hemmings v Commissioner of Police[2021] QDC 172
DISTRICT COURT OF QUEENSLAND
CITATION: | Hemmings v Commissioner of Police [2021] QDC 172 |
PARTIES: | CHRISTOPHER JOSEPH HEMMINGS (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 53 of 2021 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to section 222 Justices Act 1866 |
ORIGINATING COURT: | Magistrates Court of Queensland |
DELIVERED ON: | 4 August 2021, ex tempore |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 August 2021 |
JUDGE: | Loury QC DCJ |
ORDER: |
|
COUNSEL: | C Oswald for the appellant K McFarlane for the respondent |
SOLICITORS: | Legal Aid Queensland for the appellant Office of the Director of Public Prosecutions for the respondent |
- [1]On 18 December 2020 the appellant pleaded guilty to 25 offences in the Magistrates Court at Redcliffe. Those convictions and the sentences imposed were:
Charge | Date of offence | Penalty imposed |
Unlawful use of motor vehicles | 17 September 2020 | 6 months imprisonment $2000 restitution |
Fraud – dishonestly make off without paying | 17 September 2020 | 1 month imprisonment $46.72 restitution |
Unlawful use of motor vehicle | 21 September 2020 | 6 months imprisonment |
Fraud – dishonestly make off without paying | 21 September 2020 | 1 month imprisonment $43.26 restitution |
Unlawful use of motor vehicles | Between 28 September and 1 October 2020 | 6 months imprisonment |
Fraud – dishonestly make off without paying | 30 September 2020 | 1 month imprisonment $65.27 restitution |
Stealing | 3 October 2020 | 1 month imprisonment $47.76 restitution |
Unlawful use of motor vehicles | Between 21 October and 26 October 2020 | 6 months imprisonment |
Fail to properly dispose of a needle and syringe | 14 October 2020 | Convicted and not further punished |
Fraud – dishonestly make off without paying | 25 October 2020 | 1 month imprisonment $49.97 restitution |
Fraud – dishonestly make off without paying | 25 October 2020 | 1 month imprisonment $49.57 restitution |
Fraud – dishonestly make off without paying | 28 October 2020 | 1 month imprisonment $59.93 restitution |
Fraud – dishonestly make off without paying | 28 October 2020 | 1 month imprisonment $60.59 restitution |
Enter dwelling and commit indictable offence | 28 October 2020 | 2 years imprisonment |
Enter dwelling and commit indictable offence | 10 November 2020 | 2 years imprisonment |
Unlawful use of motor vehicles | 11 November 2020 | 6 months imprisonment |
Breach of bail condition | 11 November 2020 | Convicted and not further punished |
Breach of bail condition | 11 November 2020 | Convicted and not further punished |
Breach of bail condition | 12 November 2020 | Convicted and not further punished |
Breach of bail condition | 16 November 2020 | Convicted and not further punished |
Breach of bail condition | 18 November 2020 | Convicted and not further punished |
Breach of bail condition | Between 23 November and 26 November 2020 | Convicted and not further punished |
Failure to appear in accordance with undertaking | 30 November 2020 | Convicted and not further punished |
Failure to appeal in accordance with undertaking | 30 November 2020 | Convicted and not further punished |
Failure to properly dispose of needle and syringe | 11 December 2020 | Convicted and not further punished |
- [2]A parole release date of 17 December 2021 was imposed. Seven days of presentence custody were declared from 11 December 2020 to and including 18 December 2020.
The circumstances of the offending
- [3]The offending occurred between September and December 2020. On 17 September 2020 the appellant stole his foster father’s car. On that day and again on 21 September the appellant filled his foster father’s car with fuel at a service station and drove away without paying. The car was located by police on 30 September 2020 with damage to the value of $2,000. On 21 September 2020 the appellant was a passenger in a stolen Mitsubishi ASX.
- [4]On 29 and 30 September 2020 the appellant drove a stolen Range Rover. He filled it with fuel on 30 September 2020, which he did not pay for. On 3 October 2020 the appellant filled another vehicle with fuel which he did not pay for.
- [5]On 14 October 2020 the appellant was searched by police and a used syringe and needle were located down the front of his pants. Between 21 and 26 October 2020 the appellant drove another stolen car which he filled with fuel he didn’t pay for on four occasions. On 28 October 2020 the appellant broke into a home in Bray Park by kicking the door in and stole a generator and some power tools from the dwelling before fleeing.
- [6]The appellant was granted bail on 9 November 2020 in relation to the burglary and other offences. He subsequently breached his bail reporting and curfew conditions on six occasions.
- [7]On 10 November 2020 the appellant broke into a home in Burpengary by kicking in the front door. He stole jewellery, clothing and other property. The appellant then stole the keys to a BMW and fled in the stolen vehicle.
- [8]On 11 December 2020 the appellant was charged with failure to dispose of a needle or syringe when the vehicle he was travelling in was intercepted by police. Upon identifying himself to police it was revealed that he was wanted on multiple warrants. The appellant was then apprehended and remanded in custody.
The appeal
- [9]The appellant appeals pursuant to s 222 of the Justices Act 1886. Such an appeal is by way of rehearing on the evidence below, that is, a review of the record of proceedings below rather than a fresh hearing, together with any new evidence that I allow to be admitted. I am required to conduct a real review of the evidence and the learned Magistrate’s decision and make my own determination giving due deference and placing a good deal of weight on the Magistrate’s view.[1] In order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.[2]
- [10]As the appellant’s appeal is against his sentence, that involves the exercise of a discretion. Accordingly the principles referred to in House v The King[3] are apposite. If it appears that some error has been made in the exercise of the Magistrate’s discretion because they have allowed irrelevant matters to affect them, mistaken the facts or failed to take into account some material consideration, then the decision should be reviewed and it is open for me to exercise the discretion afresh.
- [11]The appellant was 27 at the time of his offending and at sentence. He was apprehended by police on 11 December 2020 and remanded in custody. He entered his pleas of guilty to these 25 offences only seven days later on 18 December 2020.
- [12]The learned Magistrate took into account the appellant’s pleas of guilty; that he had the support of his family and the impact of his early experiences on him (a reference to the contents of a dated psychological report). He considered that the appropriate head sentence to reflect the seriousness of the offending, the need for general and personal deterrence and to reflect community denunciation and to protect the community from the appellant was two years imprisonment. He declared seven days of pre-sentence custody as time served under the sentences. The learned Magistrate said that he considered that the appellant’s diagnosis (of attention deficit disorder); his difficult circumstances and remorse and his otherwise good character warranted the fixing of a parole date “at what I believe is a relatively reasonable time, almost halfway through that sentence”. A little later in his remarks he said “It is, as I said, around a 12 month sentence. Really, effectively, a two month sentence but with parole in 12 months time.” He ordered a parole release date of 17 December 2021. He also ordered the appellant pay compensation in the amount of $2423.07.
- [13]The effect of the sentences that were passed is that the appellant was sentenced to two years imprisonment with a parole release date after serving one year and seven days of that sentence.
Ground of appeal
- [14]The appellant submits that the learned Magistrate erred by failing to provide reasons as to the imposition of a parole release date beyond the halfway point of the sentence and by failing to consider the appellant’s capacity to pay restitution. That made the sentence imposed manifestly excessive.
- [15]From a consideration of the learned Magistrate’s reasons it does not seem to me that she intended to impose a parole release date which would see the appellant spending more than half the sentence in custody. His reference to a parole release date “almost halfway through the sentence” indicate that he did not intend to impose a parole release date which extended beyond the midpoint of the sentence. His reference later in her reasons to a sentence of two months imprisonment with parole after 12 months also make it difficult to determine what sentence the learned Magistrate intended to impose. The learned Magistrate did not indicate that he was reducing the head sentence to take into account the pleas of guilty. That also adds to the circumstances such that error has been established and it is necessary for me to exercise the discretion afresh as I am unclear as to the what the learned Magistrate intended and how the pleas of guilty are to be taken into account.
Re-sentencing
- [16]A six page criminal history was tendered. Both the appellant and respondent have referred to that criminal history in their submissions. The police prosecutor who appeared at first instance referred to section 9(10) of the Penalties and Sentences Act 1992 and said that the criminal history was “very relevant”. He said that the sentences imposed in the past of probation, suspended sentences and parole have failed to deter the appellant from offending. In considering the comparable authorities he relied upon he referred to the appellant’s history as including “a history of violent convictions”.
- [17]A proper understanding of the appellant’s criminal history demonstrates that when he was 17 years of age (and as now recognised, a child) he was convicted of a number of offences where convictions were not recorded. Those convictions are not admissible pursuant to section 148(1) of the Youth Justice Act 1992. The police prosecutor and the appellant’s representative at sentence ought to have ensured those entries were not admitted at the hearing. At the very least the learned Magistrate should have been informed that they were not admissible.
- [18]Having proper regard to the admissible entries, the criminal history reveals the following; in 2010 the appellant, then 17, assaulted someone and was sentenced to probation for two years with a conviction recorded. He had committed that offence whilst subject to probation. He thereafter committed offences of public nuisance, failing to appear, breaching the Bail Act 1980, stealing and fraud. He committed another offence of common assault when he was 18 and was sentenced to imprisonment for that and other offences also committed whilst subject to probation. In February 2016 the appellant was convicted of a sexual assault (committed when he was 21 years of age). He was sentenced to 12 months imprisonment which was wholly suspended for two years. On that same date he was convicted of eight offences of entering premises and stealing committed on three separate dates. It is unknown what sort of premises he entered and stole from or what he stole. He was sentenced to nine months imprisonment to be served by way of an intensive correction order for those dishonesty offences.
- [19]On 25 July 2018 the appellant was convicted of stalking which was a domestic violence offence and sentenced to two years imprisonment with an immediate parole release date. He was also sentenced for some summary offences on that same date which included wilful damage, common assault and contravene domestic violence order (all domestic violence offences). Those offences all breached the suspended sentence and intensive correction order imposed on 2 June 2016. The suspended sentence was activated in full with an immediate parole release date. For the breach of the intensive correction order the appellant was fined and not re-sentenced. On 17 January 2020 the defendant was convicted of obstructing police and sentenced to one month imprisonment wholly suspended for a period of six months.
- [20]The appellant’s representative at sentence (not the same representative in the appeal), revealed that he had breached his parole and was returned to custody. However the reasons for that and the period of time he served are not clear.
- [21]The appellant’s criminal history can be seen to have included offences of common assault committed when he himself was a very young man. His history suggests a difficulty with his relationships with women as evidenced by his conviction for sexual assault and stalking and other domestic violence offences. His offending otherwise does not contain significant convictions for dishonesty offences.
- [22]The appellant comes to be re-sentenced for a spree of offending which occurred over a three month period. The two most serious offences are those of burglary. Those offences were committed in the daytime when no persons were at home. A car was stolen during one of those burglaries and one of those burglaries was committed the day after the appellant’s release on bail. Otherwise the appellant unlawfully used another four cars, one of which belonged to his foster father. The appellant stole fuel from service stations which was pumped into those stolen vehicles.
- [23]A significant aggravating feature was that the appellant committed the second burglary the day following his release on bail.
- [24]In 2011 a psychological report was prepared in relation to the appellant for the purposes of a sentencing hearing which occurred when the appellant was 17 years of age. The convictions were not recorded in relation to that offending and are as such not admissible for the purposes of re-sentencing him.
- [25]The report (which was tendered incomplete), while dated, includes some information as to the appellant’s background which is relevant. He was raised in a violent and dysfunctional environment marked by substance abuse and domestic violence. As an infant the appellant sought refuge at his neighbours who cared for and bonded with him. When his parents separated they abandoned the appellant to the neighbours. He was raised predominantly by his neighbours who became his foster parents. He was diagnosed with ADHD at the age of four and with a learning disability at the age of six. He was educated to grade 10 although did not complete that year of schooling or pass any subjects. He lived with his mother for a period of some two months as a teenager but ran away from her. He also lived for a period with his father which he found traumatic. He returned to his foster parents who described him as reacting to the rejection from his parents by becoming “wild and unmanageable”. As at the time of the report he was drinking heavily and smoking cannabis but had not commenced using methylamphetamine.
- [26]The appellant’s foster father was present in court at his sentence and remains supportive of him despite the appellant being sentenced for stealing his car. The appellant’s partner and mother of his children was also present at court and supportive of him. She provided a reference in which she indicated that she had two children with the appellant who were then aged six and four. Whilst they had separated four and one half years earlier they had reconnected in October 2020. She had spoken to the appellant about undertaking drug counselling and rehabilitation programs. She considered that he was remorseful and that spending time with his children had motivated him to stop using drugs. She had contacted a Drug and Alcohol Practitioner/Psychotherapist and made an appointment for the appellant and herself to engage in drug counselling. The appellant was using methylamphetamine at the time of his offending.
- [27]Tendered also was a letter containing an offer of employment. A further personal reference was tendered from a woman who had known the appellant for seven years. She considered that his having reconnected with his partner and children had a positive impact on the choices he was making and was helping him keep away from drugs. That reference indicated that the appellant was “incredibly remorseful” and “willing to do whatever it takes to make reparations, financially and emotionally, if possible”.
- [28]Both the appellant and respondent agree that the head sentence imposed of two years imprisonment was appropriate and supported by the authorities.[4] It is argued that the many mitigating features ought to be reflected in a parole release date after the appellant has served eight months of the sentence reflecting the usual discount given to a person who pleads guilty at an early stage.
- [29]A two year head sentence, in my view, appropriately recognises the serious nature of the offences, the number of them and the period over which they were committed. The appellant made admissions to police and pleaded guilty at the very earliest opportunity. He is supported in the community by his foster father and his partner, the mother of his children. The appellant’s childhood is marked by significant neglect and rejection. Those who took him in as a child still remain supportive of him despite his having stolen from them. The appellant has a significant drug problem which he needs to address if he is to be rehabilitated.
- [30]The many mitigating features are properly reflected in a parole release date of 10 August 2021. The appellant is serving his sentence during the COVID-19 pandemic which I accept involves some hardship to him.
- [31]The appellant also argues that the learned Magistrate erred in imposing a restitution order as he had no capacity to make payment. It is important to a consideration of this ground that the appellant’s legal representative at sentence indicated to the court that he had no submissions contrary to the restitution sought in the matter. It can be assumed that he held instructions to make such a concession. The material placed before the learned Magistrate indicated that the appellant had an offer of employment and was wanting to make financial reparation. It may be inferred that is the case because the vast majority of the restitution ordered would go to the appellant’s foster father. The loss to him as a consequence of the damage to his car was $2000. The remaining $423 was the value of the petrol which the appellant stole. It may also be inferred that the concession made by the appellant’s legal representative as to the restitution was reflective of the appellant’s remorse.
- [32]In light of the evidence placed before the learned Magistrate it was not an error for him to make a restitution order. However, in re-sentencing the appellant I must take into account his capacity to pay compensation after his release from serving a term of actual imprisonment. I give leave to the appellant to rely upon a document from the State Penalties Enforcement Registry which sets out the appellant’s current debt as being in the amount of $9,240.67. That significant debt has the potential for the appellant to be imprisoned for a further period of 67 days as a consequence of non-payment.[5]
- [33]Although not a form of punishment, the potential consequences of a restitution order are relevant to a consideration of the overall appropriate sentence[6]. The making of a restitution order, in the matter before me, subjects the appellant to the possibility of being imprisoned for a period of 17 days as a consequence of non-payment.[7] I should also consider his capacity to pay compensation after his release from custody. In R v Flint[8] McMurdo P said “…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.”
- [34]The appellant intends to return to live with his partner, the mother of his children, on the Gold Coast upon his release from custody. The offer of employment made at the time of his original sentence was subject to his being released on parole on the date of sentence. It is unknown whether this offer of employment is still open.
- [35]I do not consider that there is cogent evidence that he has the capacity to pay compensation. In those circumstances I will not make a compensation order.
- [36]My orders are:
- Leave is granted to adduce new evidence.
- The appeal is allowed to the extent of setting aside the order for the appellant’s release on parole on 17 December 2021 and substituting an order that he be released on parole on 10 August 2021 and no order be made for restitution.
Footnotes
[1] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, 686 at [43].
[2] McDonald v Queensland Police Service [2018] 2 Qd R 612.
[3] (1936) 55 CLR 499.
[4] R v Farr [2018] QCA 41; R v Vaughan [2005] QCA 348; R v Donald [2000] QCA 399.
[5] See State Penalties Enforcement Act 1999
[6] R v Matauaina [2011] QCA 344 at [35]
[7] See State Penalties Enforcement Act 1999
[8] [2015] QCA 275 at [24].