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Goltz v Commissioner of Police[2021] QDC 220

Goltz v Commissioner of Police[2021] QDC 220

DISTRICT COURT OF QUEENSLAND

CITATION:

Goltz v Commissioner of Police [2021] QDC 220

PARTIES:

ROSLYN JOYCE NICOLE GOLTZ

(appellant)

v

COMMISSIONER OF QUEENSLAND POLICE SERVICE

(respondent)

FILE NO:

796/2021

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Richlands Magistrates Court

DELIVERED ON:

3 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2021

JUDGE:

Williamson QC, DCJ

ORDER:

In accordance with paragraph [37].

CATCHWORDS:

CRIMINAL LAW – APPEAL PURSUANT TO THE JUSTICES ACT 1886 s 222 – appeal against sentence – where appellant sentenced for stealing, common assault, wilful damage, breach of bail – where offences committed on parole – where compensation was ordered – where no evidence of appellant’s capacity to pay compensation – where sentence excessive – where appeal allowed.

LEGISLATION:

Justices Act 1886 (Qld)

Penalties and Sentences Act 1992 (Qld)

CASES:

R v D [1996] 1 Qd R 363

R v Hoeksema [2010] QCA 357

COUNSEL:

L Berkeley for the appellant

N Dagan for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Office of the Director of Public Prosecutions for the respondent

  1. [1]
    On 12 March 2021, the appellant pleaded guilty in the Magistrates Court at Richlands to ten offences. The offences involve shop stealing, common assault, wilful damage and breach of bail. Two of the stealing charges involve, in combination, about $6000 worth of stock, including electronic devices. One stealing charge is associated with an assault of an employee who was seeking to prevent the appellant from leaving the premises with stolen goods.  
  2. [2]
    The Magistrate at first instance imposed an effective head sentence of 18 months imprisonment in relation to the stealing offences, with shorter concurrent terms of imprisonment imposed for the other offences. Parole eligibility was set at the one third mark. Parole release could not be fixed because the offences were committed whilst the appellant was on parole. Three days pre-sentence custody was also declared. Compensation orders were made, totalling $6,767.81. The compensation orders were referred to SPER.
  3. [3]
    The offences and sentences imposed, including compensation orders, were as follows:
    1. (1)
      Stealing on 15 April 2020:  18 months imprisonment and compensation order of $385.00;
    2. (2)
      Stealing after previous conviction on 7 August 2020:  18 months imprisonment and compensation order of $3,500.00;
    3. (3)
      Stealing on 31 August 2020:  18 months imprisonment and compensation order of $2,392.88;
    4. (4)
      Stealing on 1 September 2020:  18 months imprisonment; 
    5. (5)
      Common assault on 1 September 2020:  18 months imprisonment;
    6. (6)
      Breach of bail condition between 7 September 2020 and 18 September 2020:  3 months imprisonment; 
    7. (7)
      Stealing on 15 September 2020:  18 months imprisonment and compensation order of $489.93;
    8. (8)
      Wilful damage of police property:  3 months imprisonment;
    9. (9)
      Breach of bail condition between 21 January 2021 and 26 January 2021:  3 months imprisonment; and
    10. (10)
      Stealing on 1 March 2021:  18 months imprisonment.
  4. [4]
    The appellant, who pleaded guilty to these offences, appeals against the sentence imposed.  It is submitted on her behalf that the sentence is excessive, for the purposes of section 222(2)(c) of the Justices Act 1886. It is said this is because the Magistrate (1) took into account uncharged acts; and (2) ordered compensation in the absence of evidence of capacity to pay. 
  5. [5]
    The respondent concedes the Magistrate erred by taking into account an uncharged act. I agree with this concession. It is clear from the sentencing remarks that the Magistrate sentenced the appellant on the basis that the offending included an aggravating feature, namely that she threatened a 16 year old shop attendant. This act was not charged and could have been. To take that act into account as an aggravating feature of the offending was contrary to R v D [1996] 1 Qd R 363, as was fairly conceded by the respondent. 
  6. [6]
    The respondent also conceded the Magistrate erred by making orders for compensation which, upon registration, would be a debt collected by SPER. Again, I agree.  To make orders of that kind in this case constitutes an error. There was, as is the position before this Court, no evidence that the appellant has capacity to pay compensation, if ordered. Ms Berkeley informed the Court that her instructions were, in any event, to this effect.
  7. [7]
    A further difficulty I have in relation to the compensation order is that the appellant’s legal representative did not appear to be given, at first instance, an opportunity to address a sentence structure involving compensation orders. The need to invite such submissions is clear enough once it is appreciated that the appellant could be imprisoned if an unsatisfied amount registered with SPER is not capable of being satisfied in any other way. I note a decision to imprison the appellant in those circumstances would not be reviewable. 
  8. [8]
    The issue for this Court is whether, on re-hearing, the sentence imposed was excessive. That has, in my view, been established at least insofar as the orders for compensation are concerned. Any penalty imposed should not include an order for compensation. As to the balance of the sentence, it is necessary to consider the relevant facts and circumstances. 
  9. [9]
    The appellant was aged 39 years at the time of the offending, and 40 years at the time of sentence. She is an indigenous woman who has been a victim of domestic abuse for some 23 years. She also has a criminal history with previous convictions for stealing, offences of robbery, robbery with actual violence, burglary, fraud, assault occasioning bodily harm, property, dishonesty and bail offences. 
  10. [10]
    The appellant was subject to parole when she committed the first eight offences. She was also on bail for stealing when she committed four of the stealing offences. These are circumstances of aggravation, of which I need to take into account.
  11. [11]
    The circumstances of the offending are set out in a schedule of facts that was marked exhibit 1 before the Magistrate. The circumstances of the offending which can be taken into account can be fairly summarised as follows:
    1. (1)
      The offence on 15 April 2020 involved stealing $385.00 of alcohol from Liquor land at Inala;
    2. (2)
      The offence on 7 August 2020 involved stealing approximately $3,500.00 worth of stock, including electronic devices, from Officeworks at Oxley; this offence was aggravated by reason it occurred after a previous conviction;
    3. (3)
      The offence on 31 August 2020 involved stealing approximately $2,392.00 of stock from Officeworks at Woolloongabba, again including electronic devices;
    4. (4)
      The offences on 1 September 2020 involved stealing and a common assault; the appellant stole groceries to the value of $46.55 from ALDI at Oxley and used force to push an employee out of the way to affect her escape;
    5. (5)
      Between 7 September and 18 September 2020, the defendant failed to report as required by the bail conditions imposed on her own undertaking of 10 August 2020;
    6. (6)
      The offence on 7 September 2020 involved stealing $489.93 of stock from Dan Murphy’s at Oxley;
    7. (7)
      On 20 September 2020, the appellant was arrested by police for an unrelated warrant. During a pat down search, she headbutt a police car three times, causing a dent in the door of 10 centimetres long and 5 centimetres wide;
    8. (8)
      The breach of bail between 21 January 2021 and 26 January 2021 involved a failure to report; and
    9. (9)
      The offence on 1 March 2021 involved stealing groceries from ALDI at Oxley for an unspecified amount; I note the Statement of Facts suggests the defendant left the store without paying for a half-full trolley of groceries. 
  12. [12]
    It was submitted on behalf of the respondent that the most serious of the offending was that occurring on 1September 2020, namely, a stealing and common assault. This involved stealing in combination with violence, albeit low-level. The violence did not result in any injury to the employee of the store. The offences, however, occurred in circumstances where the appellant is (a) a mature offender with a relevant criminal history; (b) she was on parole; and (c) she was on bail. 
  13. [13]
    Taking all these factors into account, I agree with the respondent’s submission that the offence committed on 1 September 2020 involving stealing and a common assault, are, when viewed in combination, the most serious. The stealing offence is the one to which a head sentence should attach.
  14. [14]
    As to the head sentence, it was submitted at first instance by the prosecution that a period of two years imprisonment ought be imposed. No authorities were cited in support of this submission. As against this, it was submitted on the appellant’s behalf at first instance that a head of sentence of 12 months imprisonment was appropriate. It was also accepted an actual period of custody was required, with parole eligibility fixed – identified at the one to three month mark. No authorities were cited in support of these submissions.
  15. [15]
    The Magistrate in his sentencing remarks said:

“So in terms of penalty. I disagree with both parties.  The sentence – having regard to the aggravating features, 12 months is not sufficient, but two years is too much, so the orders will be these:  for the six counts of stealing and the common assault, on each charge you are convicted and sentenced to 18 months imprisonment; for the two breaches of bail and wilful damage of the police car, on each charge you are convicted and sentenced to three months imprisonment. Three days pre-sentence custody is declared to be time served under the sentences. 

You are going to be eligible for parole after you have served one-third; that is the 9th of September 2021. And the Prosecutor is going to provide my clerk with a schedule of the compensation orders that are going to be made in relation to each of the quantities of goods that are stolen and those amounts will be referred to SPER...”

  1. [16]
    The Magistrate’s sentencing remarks do not identify whether any particular decisions of this Court, or the Court of Appeal, guided the exercise of the sentencing discretion.
  2. [17]
    Unlike the Magistrate, I was referred to a number of decisions to support a 12-month head sentence, or alternatively, an 18-month head sentence. The decision I found to be of most assistance is a single Judge decision in the matter of R v Jeffrey
  3. [18]
    In Jeffrey, the defendant was convicted on his own plea of two counts of stealing and one count of common assault. In respect of both stealing charges, he stole alcohol from a liquor outlet.  On the first occasion, he stole $528.00 of stock.  On the second occasion, he stole $222.00 of stock. Further, in relation to the second occasion, he pushed a baby pram into the leg of a shop attendant who attempted to challenge him and prevent him from leaving the store. Mr Jeffrey was 29 years of age at the time of the offending and had a relevant criminal history. It is to be noted that none of the offences on that history involved sentences imposed by the District Court.
  4. [19]
    In Jeffrey, which was a matter before the District Court, the sentencing Judge referred to the decision of R v Hoeksema [2010] QCA 357. The sentencing Judge held that this decision suggested up to two years imprisonment could be imposed for the type of offending with which he was considering. Jeffrey was ultimately sentenced to eight months imprisonment in respect of each count of stealing and three months imprisonment for the common assault. Mr Jeffrey was released immediately on parole.
  5. [20]
    Here, the most serious offending on 1 September 2020 involved stealing, combined with a common assault. It was for groceries in the order of $46.55. The sum of the stock taken is considerably less than that taken by Mr Jeffrey. The level of violence in terms of this case and Jeffrey is comparable, being at the lower end of the spectrum.  There is no evidence here to suggest that the shop attendant was, in fact, injured.  Whilst the value of the goods stolen in Jeffrey is greater, the offending here is more serious, in my view, given it was committed by the appellant whilst she was on parole and subject to a bail undertaking. It can also be said that the appellant’s criminal history is, at face value, more significant than that of Mr Jeffrey.
  6. [21]
    In my view, Jeffrey does not support a sentence of 18 months imprisonment with an actual term served in custody, plus compensation in the order of $6,700.00. Indeed, it falls well short of demonstrating anything of that kind was appropriate. The sentence imposed is, in all of the circumstances, excessive. I say this even taking into account that this case involves more offences than the court was dealing with in Jeffrey. This case also includes circumstances of aggravation that were not present in Jeffrey.
  7. [22]
    There are matters in mitigation that were drawn, not only to my attention, but the Magistrate’s attention. In addition to the plea of guilty, those matters can be stated as:
    1. (1)
      The appellant is remorseful for her offending;
    2. (2)
      The appellant has taken steps to obtain assistance from organisations such as Sisters Inside, demonstrating her commitment to rehabilitation and demonstrating she is focusing on her transition into the community once released; and
    3. (3)
      The appellant is a long-suffering victim of domestic violence. 
  8. [23]
    I accept these matters can be taken into account.
  9. [24]
    Taking into account all of the aggravating and mitigating circumstances to which I have referred, a head sentence of 12 months is appropriate to reflect the criminality of all of the appellant’s offending. Further, given her criminal history, actual time in custody is required. Personal deterrence in relation to stealing offences is a matter of some import in structuring an appropriate sentence for the appellant. That term of imprisonment, to reflect her plea of guilty, should not exceed the one-third mark, which is a period of four months. 
  10. [25]
    The difficulty here is that the appellant has served, at the time of the hearing before this Court, nearly six months in custody for these offences. There is no doubt this time can be declared. 
  11. [26]
    The question of importance is how her sentence should be structured to provide for her release. The Crown contended that release by way of parole eligibility fixed immediately is appropriate. This is unattractive for two reasons: (1) in practical terms, it means parole eligibility would be fixed after the appellant has served about 50% of the sentence imposed, or put another way, it would be fixed after she has served one-third of a notional head sentence of 18 months.
  12. [27]
    The circumstances here do not call for a sentence of that order. 
  13. [28]
    Second, there is evidence before the court establishing an application for parole, if made in the month of August 2021, would be unlikely to be processed until April 2022. If that is accepted without question, it would mean the appellant’s application for parole, even if made today, would, on the balance of probabilities, be unlikely to be processed before the expiration of her sentence. In this sense, there is a genuine risk that parole would be elusive for the appellant. That, in my view, would be entirely unsatisfactory.
  14. [29]
    How then should the sentence be structured to balance a number of matters, namely, to impose a sentence that is (1) just in all the circumstances; (2) provides personal deterrence; (3) communicates denunciation; and (4) provides appropriate conditions for the appellant’s rehabilitation? 
  15. [30]
    In my view, the appellant has served sufficient time in actual custody for the offences she has committed. 
  16. [31]
    The structure of the sentence I am satisfied is appropriate to balance all of the above matters, is that urged upon me by Ms Berkeley. It would involve adopting a starting point of 12 months imprisonment, and reducing that period by six months to reflect the time already served in custody.  That pre-sentence custody will not be declared.  The sentence of six months will be wholly suspended.
  17. [32]
    The transcript will reveal I had difficulty during the course of the hearing with immediately suspending the appellant’s sentence, that is, I was concerned that her immediate release into the community without supervision called for closer examination. The appellant’s criminal history, on its face, suggests supervision is required, or, at the very least, she needs something to motivate her to stay on the right path.
  18. [33]
    In response to this concern, an instanter application was made by both parties to adduce fresh evidence. The fresh evidence was directed towards the steps taken by the appellant, in terms of her rehabilitation, and her suitability for community-based orders. Given the issue to which this material is directed and that it arose as an issue before this Court, strikes me as an example where special circumstances exist for the admission of fresh evidence. The evidence has assisted the court in the exercise of the sentencing discretion.
  19. [34]
    The further evidence establishes that the appellant is unsuitable for community-based orders. I accept that without reservation. 
  20. [35]
    The further evidence also establishes that the appellant has sought to take steps to advance her rehabilitation, and has sought to take steps in relation to transitioning into the community upon release. Those steps are at their early stages, but it is clear she has contacted Sisters Inside. This group is providing her with support, not only while she is in custody, but will assist in her transition into the community upon release. The support the appellant will receive includes support with respect to domestic violence and substance abuse, both of which appear to be matters that have plagued her and are reflected in her criminal history.
  21. [36]
    These matters are of particular import in the assessment of the appellant’s personal circumstances. That she has taken these steps and, I am told, removed herself from a long-term abusive relationship, is sufficient to persuade me that a suspended sentence is appropriate in these particular and unusual circumstances. To impress the need upon the appellant to continue her rehabilitation efforts, I will order that the sentence have an operational period of 6 months. During that time, an offence punishable by imprisonment is committed, the appellant can be returned to this Court and dealt with for a breach of suspended sentence. The starting point for that is, of course, that the sentence is activated, save where it would be unjust to do so.
  22. [37]
    For all of the above reasons – and before making final orders, I will hear from the parties – those orders will be:
    1. (1)
      The appeal be allowed.
    2. (2)
      The sentence imposed on 12 March 2021 be set aside; and
    3. (3)
      The appellant be re-sentenced as follows:
      1. In relation to the stealing on 1 September 2020, I order the appellant be imprisoned for a period of 6 months, which will be wholly suspended. She must not commit an offence punishable by imprisonment within an operational period of 6 months;
      2. With respect to the common assault on 1 September 2020, I order the appellant be imprisoned for 3 months;
      3. With respect to the stealing offences on 15 April 2020; 7 August 2020; 31 August 2020; 15 September 2020; and 1 March 2021, the appellant be convicted and not further punished;
      4. With respect to the breach of bail conditions between 7 September 2020 and 18 September; and between 21 January 2021 and 26 January 2021, I order the appellant be imprisoned for 3 months;
      5. With respect to the wilful damage of police property, I order the appellant be imprisoned for 3 months; and
      6. All terms of imprisonment will be concurrent.
  23. [38]
    Given the criminality of all the offending is reflected in the head sentence, I do not regard it as necessary to impose shorter concurrent terms in respect of all of the stealing offences. 
  24. [39]
    There are two final matters: (1) I invite an undertaking to be given to the court by the appellant’s legal team to explain to her the suspended sentence and the consequences of breach; and (2) I will hear from the parties as to the period of custody which will be recorded in the order as to the time that has not been declared.
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Editorial Notes

  • Published Case Name:

    Goltz v Commissioner of Police

  • Shortened Case Name:

    Goltz v Commissioner of Police

  • MNC:

    [2021] QDC 220

  • Court:

    QDC

  • Judge(s):

    Williamson QC, DCJ

  • Date:

    03 Sep 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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