Jenkins v Commissioner of Police
[2021] QDC 289
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- Jenkins v Commissioner of Police[2021] QDC 289
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Jenkins v Commissioner of Police[2021] QDC 289
Jenkins v Commissioner of Police[2021] QDC 289
DISTRICT COURT OF QUEENSLAND
CITATION: | Jenkins v Commissioner of Police [2021] QDC 289 |
PARTIES: | LUCAS PETER JENKINS (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO: | 2723 of 2021 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of Justices Act 1886 (Qld) |
ORIGINATING COURT: | Pine Rivers Magistrates Court |
DELIVERED ON: | 26 November 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 November 2021 |
JUDGE: | Dearden DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – s 222 JUSTICES ACT 1880 – where appellant sentenced on 5 charges of observations or recordings in breach of privacy, genital or anal regions and 1 charge of sexual assault – where appellant sentenced to serve 3 months actual custody in respect of the sexual assault charge – where appellant ordered to pay $500 compensation to one complaint and $1500 compensation to another complainant – where the appellant submits that the learned magistrate erred in ordering a period of actual custody to be served – whether sentence manifestly excessive in the circumstances |
LEGISLATION: | Criminal Code of Queensland 1899 ss. 227A, 352 Justices Act 1886 (Qld) ss. 222, 223 |
CASES: | Braga v Commissioner of Police [2018] QDC 48 Forrest v Commissioner of Police [2017] QCA 132 McDonald v Queensland Police Service [2017] QCA 255 R v Demmery [2005] QCA 462 R v Matauaini [2011] QCA 344 R v Mickelberg (1984) 13 A Crim R 365 R v O'Keefe [1959] Qd R 395 R v Owen [2008] QCA 171 R v Robinson; ex-parte Attorney-General [2004] QCA 169 |
COUNSEL: | J Godboldt for the appellant J Daniels for the respondent |
SOLICITORS: | O'Sullivan’s Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]This is an appeal in respect of the sentences imposed by the learned magistrate at Pine Rivers on the appellant, Lucas Peter Jenkins, in relation to the following charges:
- (a)charges 1, 2, 3, 4, and 6 – observations or recordings in breach of privacy, genital or anal region (on 12 May 2020, 8 June 2020, 13 June 2020, 7 July 2020, 14 September 2020)
- (b)charge 5 – sexual assault (on 14 September 2020).
- (a)
- [2]The appellant was sentenced to sentences of one month imprisonment, wholly suspended with an operational period of 12 months in respect of charges 1, 2, 3 and 4; two months imprisonment, wholly suspended with an operational period of 12 months in respect of charge 6; and nine months imprisonment, suspended after serving three months, with an operational period of 12 months on charge 5.
- [3]On 18 October 2021, the appellant filed a notice of appeal.
- [4]The appellant was ordered to pay $500.00 compensation to the complainant on charge 2, and $1500.00 to the complainant for charges 5 and 6.
Grounds of appeal
- [5]The appellant filed a notice of appeal against sentence on 18 October 2021 on the following grounds:
- The sentence was manifestly excessive in all the circumstances.
- The learned magistrate erred in imposing an actual period of imprisonment to be served in respect of count 5.
- [6]The appellant’s outline of submissions identified the “ground” (more properly characterised as a particular of the existing grounds) that:
- (a)the sentencing judge erred in finding that the applicant demonstrated little insight in relation to his offending.[1]
- (a)
The law – appeals
- [7]The appeal proceeds pursuant to Justices Act 1886 (Qld) (‘JA’) s.222, and is a rehearing (JA s.223).
- [8]In McDonald v Queensland Police Service [2017] QCA 255, [47], Bowskill J stated:
“It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.” [citations omitted]
- [9]
“…an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case.”
Circumstances of the offending
- [10]The sentence proceeded on an agreed sentencing schedule.[3] On four separate occasions (12 May 2020; 8 June 2020; 13 June 2020; 7 July 2020) the appellant set up a camera next to the television in his lounge-room, with the shot covering the lounge-room and open kitchen behind the lounge, and then captured various sexual acts with different females on the lounge, clearly showing each victim’s genital and/or anal area. The victims were not aware of the recording. Only one victim was able to be identified. The offences came to light when the appellant’s phone was analysed by police following the complaint which resulted in charges 5 and 6.
- [11]In respect of charges 5 and 6, the victim was an 18-year-old neighbour who lived in the same townhouse complex as the appellant. On the afternoon of 13 September 2020, the victim attended the appellant’s house to celebrate her recent birthday. After consuming alcoholic beverages, the victim fell asleep on the lounge with her head on the appellant’s shoulder. When the victim awoke, she was in the appellant’s bed upstairs, and she felt someone touching her buttocks. She was lying on her side wearing grey sweatpants, a pink G-string, a shirt and a bra. The sweatpants were pulled down, photographs were taken, then the G-string was taken off and a hand ran down her thighs, from knee to lower thigh. The victim pretended to be asleep during these events, and when she woke up saw the appellant lying on his side facing her. The appellant left the room and she contacted family, before fleeing the appellant’s residence. Police were notified.
- [12]The appellant participated in a record of interview, initially denying pulling down the victim’s pants or underwear but admitting that he had taken photographs of her without permission. The appellant voluntarily allowed police to inspect his seized phone, which revealed a series of 13 photographs of the victim in respect of charges 5 and 6, including photographs of the appellant’s hand pulling down the victim’s underwear and touching her inner buttock cheeks.
- [13]Subsequent examination of the appellant’s phone located the photographs the subject of charges 1-4.[4]
Antecedents of the appellant
- [14]At the time of the offences, the appellant was aged 34, and he was aged 36 at sentence. The appellant had no criminal history.
Discussion
- [15]The nub of the appellant’s submissions on this appeal, as clarified orally by his counsel Mr Godboldt, are that the learned magistrate erred in requiring actual custody to be served by the appellant in respect of charge 5. The sentences imposed in respect of charges 1, 2, 3, 4 and 6 were all wholly suspended, whereas the sentence in respect of charge 5 required the appellant to serve three months’ imprisonment, with an operational period of 12 months for all charges.
- [16]In particular, the appellant’s counsel submits that the learned magistrate erred in concluding that the appellant showed “little insight in relation to [his] offending”.[5] The learned magistrate acknowledged in the sentencing remarks that “the defendant has gone some way with his remorse by offering compensation to the victims”,[6] and in fact ordered $500.00 compensation in respect of the victim of charge 2 and $1500.00 compensation in respect of the victim of charges 5 and 6.
- [17]The learned magistrate acknowledged that the appellant had no criminal history and was generally of good character as evidenced by the references tendered,[7] acknowledged that the appellant had engaged with psychological counselling (four sessions immediately prior to the date of sentence), but (it is submitted) otherwise failed to acknowledge the extent of the appellant’s embarrassment, shame, expressions of remorse and offer of compensation.[8]
- [18]The report of Peter Stoker, psychologist,[9] clearly identified the appellant’s remorse;[10] his ongoing feelings of guilt in respect of his behaviour;[11] the appellant’s embarrassment;[12] and his commitment to seeking psychological counselling regarding the offending behaviour and its underlying causes arising out of past failed relationships.[13]
- [19]The letter from Ms Hassall, psychologist[14] confirms the appellant’s attendance for four sessions with her as a treating psychologist on 2, 16 and 31 August and 7 October 2021.
- [20]Mr Stoker expressed the opinion that:
“with appropriate counselling into the dynamics of his offending behaviour…it is my opinion that this man’s chances of re-offending will be significantly reduced.”[15]
- [21]The appellant’s counsel acknowledges payment of compensation does not entitle a person to buy their way out of prison[16] but submits that justice is better served if restitution is made to a victim, where possible.[17] Although compensation is not a form of punishment, a compensation order is not irrelevant to the question of whether a particular sentence is manifestly excessive[18] and can be a significant factor in mitigation if paid or made before the sentencing process is carried out.[19] As the appellant’s counsel identifies, the compensation order was made after an offer from the appellant’s legal representatives and the amount was agreed upon following consultation with the prosecution.[20]
- [22]In my view, the learned magistrate has erred in finding that the appellant had “little insight” This finding is inconsistent with the content of the references,[21] the report of Peter Stoker, psychologist,[22] as well as the documented attendances on a treating psychologist[23] and the commitment to paying compensation for the two identified victims.[24]
- [23]Given the identified sentencing error, it falls to this court to resentence the appellant. Giving appropriate weight to the pleas of guilty; the co-operation with the administration of justice (in particular, that neither victim was required to give evidence); the expressed insight, remorse and practical commitment to rehabilitation; the payment of compensation; the lack of criminal history; and the nature of the alleged offending (touching on the thigh and the buttocks, but with no actual touching on the genital area); the sentence of imprisonment (entirely appropriately set at nine months for charge 5) should have been ameliorated by being suspended earlier than the three months imposed by the learned sentencing magistrate.[25] In my view, it is appropriate to re-sentence the appellant to a suspension fixed at the time already served (34 days from the date of sentence to 18 November 2021). Accordingly, on the date of hearing of the appeal (19 November 2021), I made an order granting the appeal and suspending the nine months imprisonment sentence in respect of charge 5, effective after 34 days (time served), with these reasons to be provided at a later date.
Orders
- Appeal granted
- Order that the sentence imposed at the Pine Rivers Magistrates Court on 15 October 2021 on charge 5 (sexual assault) be varied to suspend the sentence after the appellant has served 34 days.
- Declare the period between 15 October 2021 and 18 November 2021, a total of 34 days, as time served in respect of the varied sentence.
- Otherwise affirm all sentences imposed and compensation orders made at the Pine Rivers Magistrates Court on 15 October 2021.
Footnotes
[1] Exhibit 1 – Appellant’s Outline of Submissions [3a].
[2] Forrest v Commissioner of Police [2017] QCA 132, p.5.
[3] Sentence Exhibit 1.
[4] Sentence Exhibit 1 (Sentencing Schedule).
[5] Sentencing Decision p.6, l 7 (15 October 2021).
[6] Sentencing Decision p.5, ll 43-44.
[7] Sentence Exhibits, 2, 3, 5, 6, 7, 8.
[8] Exhibit 1 – Appellant’s Outline of Submissions [12]-[22].
[9] Sentence Exhibit 9.
[10] Sentence Exhibit 9, p.6, l 9.
[11] Sentence Exhibit 9, p.6, l 9.
[12] Sentence Exhibit 9, p.6.
[13] Sentence Exhibit 9, p.9.
[14] Sentence Exhibit 10.
[15] Sentence Exhibit 9, p.9.
[16] R v O'Keefe [1959] Qd R 395, 400 (per Stanley J).
[17] R v Mickelberg (1984) 13 A Crim R 365, 370 (per Brindsen J).
[18] R v Matauaini [2011] QCA 344, [10].
[19] R v Robinson; ex-parte Attorney-General [2004] QCA 169, [13].
[20] Sentence Transcript 1-30, ll 22 – 1-31, l 10; Exhibit 1 – Appellant’s Outline of Submissions [16]-[22].
[21] Exhibits 5 – 8.
[22] Exhibit 9.
[23] Exhibit 10.
[24] Sentencing Transcript 1-30, l 22 – 1-31, l 10.
[25] See R v Demmery [2005] QCA 462, in particular Jerrard JA’s review of comparators at [10]-[26]; R v Owen [2008] QCA 171, per McMurdo P at [11]-[13]; Braga v Commissioner of Police [2018] QDC 48.