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- Unreported Judgment
Tooth v The Commissioner of Police QDC 326
DISTRICT COURT OF QUEENSLAND
Tooth v The Commissioner of Police  QDC 326
THE COMMISSIONER OF POLICE
1527 of 2021
Brisbane Magistrates Court
DELIVERED EX TEMPORE ON:
17 December 2021
Brisbane District Court
17 December 2021
MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) – where Magistrate imposed a term of six months imprisonment to be served by an intensive correction order and the payment of $440 restitution – where Magistrate told that appellant does not have capacity to pay – whether Magistrate erred in characterisation of the offending – whether Magistrate erred in ordering restitution – whether Magistrate erred in not placing sufficient weight on appellant’s personal circumstances – whether sentence is manifestly excessive
Justices Act 1886 (Qld), s 222
Penalties and Sentences Act 1992 (Qld), s 12, s 93
7 of the Criminal Code 1899 (Qld)
Hili v The Queen  HCA 45; (2010) 242 CLR 520, cited
House v The King  HCA 40; (1936) 55 CLR 499, cited
Lowe v The Queen  HCA 46; (1984) 154 CLR 606, cited
R v Flint  QCA 275, cited
R v Lemass (1981) 5 A Crim R 230, cited
R v McIntosh  St R Qd 278, cited
R v Morse (1979) 23 SASR 98, cited
R v Zye Chaste Allen (Unreported, Judge Kent QC, Southport 1 April 2020), cited
Wong v The Queen  HCA 64; (2001) 207 CLR 584, cited
WPT v QPS  QDC 250, cited
M Coburn, solicitor from Legal Aid Queensland for the appellant
S Kingston, legal officer from the Office of the Director of Public Prosecution Queensland for the respondent
- This was an appeal against sentence. This morning I allowed the appeal and resentenced the appellant. These are my reasons.
- On 15 June 2021, the appellant pleaded guilty and was sentenced in the Magistrates Court of Brisbane to a total of six charges; two drug related offences of possessing dangerous drugs on 1 January 2021 and possessing utensils or pipes on 2 February 2021 and four offences committed on 8 February 2021 involving offences of common assault, attempted stealing, wilful damage and entering premises and commit an indictable offence.
- The facts of the offending were fully admitted by the appellant. The first three offences committed on 8 February 2021, related to the appellant attending a convenience store, removing a flavoured milk from the refrigerator in the store and placing it down his pants. The appellant was stopped by the complainant. The appellant was given two chances to pay for the drink before the complainant then grabbed the appellant by his shoulder bag to stop him leaving. The appellant then turned on the complainant and punched him in the head. The complainant deflected the punch but the appellant’s fist still made contact with the complainant’s forehead. The appellant left the store, leaving behind his skateboard and other property. The appellant attempted to return but the complainant had locked the door. The appellant hit the glass doors with his hands and then picked up a shop sign and threw the sign at the door causing damage to the window.
- The last of the offences related to the appellant later that day, in the company of others, attending a car wrecking yard. Four vehicles in the yard were damaged by kicking in the windscreens and driving the vehicles into each other. It was conceded that the appellant was charged pursuant to the party provisions in s 7 of the Criminal Code 1899 (Qld) but not for having caused the damage to the vehicles.
- The appellant was sentenced to six months imprisonment on each count, to be served concurrently with each other and served as an intensive correction order. A condition of the intensive correction order was that the appellant was required to submit to urinalysis testing and participate in therapeutic intervention to address illicit drug use as required by an authorised corrective services officer. The appellant was ordered to pay an amount of $440 by way of restitution on the wilful damage charge.
- Prior to sentence the appellant had served 125 days of presentence custody, which was not declared.
- It is accepted that the practical result of the sentence imposed was the imposition of a head sentence of over ten months imprisonment.
- On 21 June 2021, the appellant filed a notice of appeal. The sole ground of appeal was that the sentence was manifestly excessive.
- At the hearing of the appeal, leave was granted for the filing of an amended notice of appeal. The respondent did not object to leave being granted.
- By the amended notice, the grounds of appeal were said to be:
- (1)“The Learned Magistrate erred in his characterisation of the attempted stealing and common assault;
- (2)The Learned Magistrate erred in ordering restitution be paid;
- (3)The Learned Magistrate erred in not placing sufficient weight on the Appellant’s personal circumstances; and
- (4)The sentence was manifestly excessive in all the circumstances.”
Mode of Appeal
- This appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld).
- An appeal under s 222 is by way of a rehearing on the original evidence. The rehearing requires the court to conduct a real review of the evidence and make up its own mind about the case.
- To succeed, the appellant must establish some legal, factual or discretionary error. Given the grounds of appeal, the appellant must show the sentence to be “unreasonable or plainly unjust.”
- A sentence has been described as excessive if it is “beyond the acceptable scope of judicial discretion” or “so far outside the appropriate range as to demonstrate inconsistency and unfairness.”
- The concept of a sentence being manifestly excessive was considered in Hili v The Queen where the Court in referring to the plurality in Wong v The Queen stated:
“[A]ppellate 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, it was said, again referring to the plurality 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.”
Appeal against sentence
- The written submissions for the appellant focused on principally three matters, which aligned with the first three grounds of appeal in the amended notice of appeal. It was submitted that in addition, or in the alternative, the consideration of these acts rendered the sentence manifestly excessive.
- The first ground was that the Magistrate had characterised the attempted stealing and common assault as an offence of robbery. It is submitted that there are passages from the transcript of proceedings where the Magistrate makes comments suggesting that he was proceeding to sentence with the offence of robbery in his mind; albeit aware that the appellant was not charged with that. The submissions refer to passages where the Magistrate commented “it’s very, very close to being a robbery.” The Magistrate then observed, “There’s not much difference in the elements present – or that acts present here, in satisfying the elements of a robbery.”
- The second ground was that the ordering of the payment of $440 in compensation for the convenience store’s smashed window in circumstances where the Magistrate had been told that that the appellant does not have capacity to pay that amount, due to being in custody and being unemployed on his release. The Magistrate was told that on the appellant’s release he would have support from NDIS to obtain employment.
- In the written submissions reference was made to the comments by McMurdo P in R v Flint where his Honour had stated that courts are reluctant to order offenders to pay compensation after serving a term of imprisonment.
- The third ground was that the Magistrate erred in not placing sufficient weight on the appellant’s personal circumstances, in particular it was submitted that by his remarks about “sending a clear message”, the Magistrate made it clear that his focus was on general deterrence and that the Magistrate did not place significant weight on the need for rehabilitation and ongoing supervision.
- It was submitted that the factual and legal errors in combination with the compensation order rendered the sentence excessive.
- In submissions on behalf of the respondent, it was conceded and appropriately so, that the prioritisation of general deterrence over the appellant’s antecedents and prospects of rehabilitation given his youthful age, his disabilities and his prejudicial upbringing was inconsistent with Court of Appeal authorities and led the Magistrate into error.
- Further, it was appropriately conceded that the ordering of the payment of $440, in combination with the intensive correction order, made the sentence manifestly excessive.
- I accept the submissions on behalf of the respondent that the Magistrate did not characterise the offence of attempted stealing and common assault as offences of robbery. Rather, I agree the Magistrate’s comments were intended to highlight the seriousness of the actions of the appellant. I do not find that the Magistrate erred in this regard.
- Nevertheless, on the basis of the other errors, the sentencing discretion miscarried, the sentence imposed was excessive and the appeal is allowed.
- In those circumstances, this Court must re-sentence the appellant.
- Both the appellant and the respondent are agreed as to the sentence to be imposed being a sentence of 12 months’ probation for each of the offences of wilful damage, attempted stealing, common assault and enter premises and commit an indictable offence and not further punished for the offence of possessing a dangerous drug and possess utensils or pipes, with no conviction to be recorded on all counts.
- In support of that sentence, reference was made to the appellant being only 18 at the time of committing the offences and at the time of sentence, the appellant’s prejudicial childhood of being subjected to physical and emotional abuse in the family home resulting in significant intervention from the Department of Child Safety including spending six years in a residential care facility and the appellant’s diagnosis of ADHD and ASD with, it is said, anxiety and depression that he is usually medicated for and substance abuse issues, using both alcohol and cannabis heavily.
- The appellant’s circumstances are such that he has obtained a funding package under the National Disability Insurance Scheme who are structuring a plan to assist with accommodation, mental health and therapeutic support.
- In support of the proposed sentence I was referred to the single judge decision of Judge Kent in R v Zye Chaste Allen given on 1 April 2020, which supports the making of a probation order for this type of offending, though in that case the defendant had gone into the store armed with a knife.
- I agree that a sentence of probation is appropriate and that, in all the circumstances exercising the discretion given to me under s 12 of the Penalties and Sentences Act 1992 (Qld), a conviction should not be recorded on all counts. I agree it is appropriate that the period of probation be moderated to take account of the 125 days spent in pre-sentence custody.
- Counsel for the appellant confirmed that that they had explained to the appellant the conditions of an order of probation and that, having done so, the appellant consented to the making of such an order, including an order containing the additional requirement to submit to such medical, psychiatric or psychological treatment as directed.
- Having regard to all the circumstances, the sentence to be imposed is as follows:
- For each of the counts of wilful damage on BCS 2100524492, attempted stealing on BCS 2102104164, common assault on BCS 2102104105 and entering premises and commit indictable offence on BCS 2102104245, noting the appellant has consented, through his solicitors, to the making of such an order, I order that the appellant be released under the supervision of an authorised corrective services officer for a period of 12 months. The appellant must comply with the requirements in s 93 of the Penalties and Sentences Act 1992 (Qld), with the additional requirement that the appellant to submit to medical, psychiatric or psychological treatment as directed. The appellant must report to an authorised corrective services officer at Pine Rivers Probation and Parole Office by 4:00 pm on Monday, 20 December 2021;
- For each of the counts of possessing dangerous drugs on BCS 2100012131 and possessing utensils or pipes on BCS 2100420557, there be no further punishment; and
- No conviction be recorded on all counts
 House v The King (1936) 55 CLR 499, 505.
 WPT v QPS  QDC 250 citing R v Morse (1979) 23 SASR 98; R v Lemass (1981) 5 A Crim R 230; R v McIntosh  St R Qd 278; Lowe v The Queen (1984) 154 CLR 606, 610 – 611.
 (2010) 242 CLR 520.
 (2010) 242 CLR 520 at  quoting Wong v The Queen (2001) 207 CLR 584 at  (Wong).
 Hili v The Queen (2010) 242 CLR 520 at  quoting Wong at .
  QCA 275 at .
- Published Case Name:
Tooth v The Commissioner of Police
- Shortened Case Name:
Tooth v The Commissioner of Police
 QDC 326
17 Dec 2021