MIL v Commissioner of Police[2021] QDC 330

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant pleaded guilty in the Richlands Magistrates Court on the 7^th of September 2021 to the following offences:  two counts of unlawful use of a motor vehicle for which he was sentenced on the 14^th of September to six months’ imprisonment, one count of burglary for which he was sentenced to nine months’ imprisonment, and one count of possession of a dangerous drug for which he was convicted and not further punished.  At the time of sentence on the 14^th of September he had spent seven days in pre-sentence custody which was declared. 

2. [2]
   He now appeals against the sentences imposed, as I understand it, in respect of the first three of those charges.  The notice of appeal lists the charge of possession of a dangerous drug but quite obviously, the appeal is not said to relate to that charge, notwithstanding that technically it appears to do so.  So just for clarity, the appeal in relation to the charge of possessing a dangerous drug is dismissed.  He has appealed pursuant to section 222 of the Justices Act 1886 on the ground that the sentence imposed was manifestly excessive in all the circumstances.  He also seeks leave to add a ground of appeal.  That being that the learned Magistrate failed to have regard to the principle that imprisonment should be imposed only as a sentence of last resort, which as a result renders the sentence manifestly excessive.  There is no opposition to that ground of appeal being added.

3. [3]
   An appeal under section 222 is by way of re-hearing on the original evidence.  It requires this court to conduct a real review of the evidence.  The concept of a sentence being manifestly excessive was considered in Hili v The Queen (2010) 242 CLR 520 where the court, in referring to the plurality in Wong v The Queen, stated:

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.

4. [4]
   Rather, it was said again referring to Wong:

Intervention 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.

5. [5]
   It is well established that in order to succeed, the appellant must establish some legal, factual or discretionary error.  And in that regard, I refer to House v The King^[1].  It should be noted from the outset that the respondent concedes that the sentence imposed for the three offences in this matter was excessive and that the appeal should succeed. 

6. [6]
   The offending conduct, the subject of these three charges can be summarised briefly.  On the 13^th of July this year, the owner of a Mercedes Benz vehicle reported the car stolen and the appellant’s DNA was subsequently located on the inside of the back passenger window.  That is the subject of one of the unlawful use charges.  On the 6^th of September this year the appellant and two co-accused were in a different stolen vehicle – or what’s described as a stolen vehicle – that’s the subject of the second count of unlawful use.  They attended an address at Sunnybank Hills and gained entry to a house by smashing a back security door.  Once inside the house, what was described as an untidy search was committed by the offenders.  That is, of course, the subject of the burglary charge.  They were observed by someone though who called the police and police arrived a short time later and the offenders ran away from the house.  But they were located by police shortly thereafter and that includes the defendant.  When questioned, the defendant exercised his right to silence and did not participate in an interview with police. 

7. [7]
   When this matter first came before the court, the defendant entered pleas of guilty to the charges.  The Magistrate indicated at that stage that he required Court of Appeal authority in relation to the offending conduct, whilst indicating that in his view, a sentence of imprisonment was the likely sentence to be imposed, notwithstanding that the prosecution below made the submission that a period of probation and community service would have been the appropriate sentence. 

8. [8]
   The defendant was represented by a duty lawyer.  Neither the prosecutor nor the duty lawyer had Court of Appeal authority at the time, hence the matter was adjourned for a week and the defendant was remanded in custody.  Upon resumption, the prosecution submitted that anything up to 12 months’ imprisonment would be appropriate and referred to a couple of cases, but particularly placed heavy reliance upon a statement made by Justice of Appeal Jerrard in R v Bryant [2007] QCA 247 where his Honour said:

Persons pleading guilty to the commission of a number of offences against property, and who have either no prior history of convictions or very little relevant history, can also be sentenced to relatively short terms of imprisonment and which this Court will uphold.

9. [9]
   It must be noted, though, the context in which his Honour made that comment.  That particular matter involved nine property offences and the offender was 35 years of age.  He was considered a recidivist offender and was on bail and probation when the offending subject to the appeal was committed.  When the appeal was heard, counsel for the applicant seemed to place some emphasis on sentences imposed for young people in some way as an attempt to persuade the court that the sentence imposed on Bryant was excessive, but the court found that that provided little assistance to the court, and it is in that context that that comment was made.  But the facts of that matter were in no way similar to the facts in this and little regard to the particulars of a person’s age or criminal history was given in that decision because that was of no relevance to that decision. 

10. [10]
    His Honour made a further comment of some similarity which the learned Magistrate also placed emphasis upon, at paragraph 11, where he spoke of a person having committed a series of property offences, notwithstanding their youth.  They’re effectively at risk of a term of imprisonment, but again, that comment must be viewed in its proper context.  Immediately prior to his Honour making that comment, in the preceding paragraphs his Honour assessed other cases and when one considers those cases, it immediately becomes apparent what he meant by the term “a series”.  Now, a series may constitute just two, depending upon the circumstances of offences, for instance.  But that is clearly not the context in which his Honour intended that term. 

11. [11]
    He referred to R v McDowall [2005] QCA 260.  That person was charged with four counts of breaking, entering and stealing; two of receiving; one of possession of things used for unlawful entry.  It’s useful to note some of the details relevant as well.  He was 23 to 24 years of age, had no prior convictions and made full admissions.  The premises the subject of the offending conduct were all business premises, and he was on bail when he committed the last of the break and enters.  He was sentenced to nine months’ imprisonment but to only serve one. 

12. [12]
    His Honour referred to R v Williams [2004] QCA 27.  That person was charged with eight counts of burglary, fraud, unlawful use of a motor vehicle and stealing.  He committed two of the offences whilst on bail.  There were seven thousand dollars worth of property involved.  He was 41 years of age, had no prior convictions and was sentenced to 18 months’ imprisonment. 

13. [13]
    R v Cummins [2004] QCA 350 involved a person charged with four counts of attempted burglary, six counts of enter a dwelling with intent, three counts of receiving, one of entering a premises and stealing, one of common assault.  He was sentenced to three months’ imprisonment and two years’ probation.  There was only $460 worth of property involved;  mostly damage to doors that he was attempting to break through.  On two occasions residents were home.  But also, he made full admissions and had a relevant criminal history.  He was 18 to 19 years of age when he committed all of those offences. 

14. [14]
    R v Ross involved someone charged with one count of aggravated burglary; thirteen counts of entering and stealing; one of attempted entry of premises with intent; one of stealing; one of break, enter and steal; two of enter a premises with intent; three of unlawful use of a motor vehicle and eight summary offences.  He committed these offences just before and just after he turned 18.  Mostly involved entry to vehicles, but one house was involved.  He was on bail for three of them.  There was $8400 worth of property involved.  He made full admissions.  Initially he was – sorry, I should say that he had prior convictions for dishonesty and had previously failed to comply with a community service order.  He was initially sentenced to six months’ imprisonment, plus three years’ probation, but that was reduced on appeal to three months’ imprisonment which was the time that he had served, plus three years’ probation. 

15. [15]
    And finally R v Smith [2000] QCA 127, where that person was charged with one count of receiving; two of entering a premises and stealing; four of fraud; two of stealing; two of break, enter and steal; one of attempted burglary with intent and six counts of burglary and stealing.  He had a minor criminal history which was largely irrelevant.  There was just under $20,000 worth of property.  He made full admissions and did offend whilst on bail.  His age is unknown from reading the judgment, but he was described as being youthful.  Initially he was sentenced to three months’ imprisonment with three years’ probation but that was set aside for a 12-month intensive corrections order. 

16. [16]
    Immediately upon seeing the nature of the offences that each of those persons faced, it is quite apparent that when Justice Jerrard spoke of a series, he was speaking of something significantly greater than that which this appellant was facing.  There’s no ambiguity in that whatsoever.  His comments, therefore, have little application, if at all, to the case at hand. 

17. [17]
    There has therefore undoubtedly been an error on the part of the Magistrate in relying upon that remark.  Those cases also, in my view, demonstrate that the penalty imposed in this matter was excessive.  All of those cases were significantly more serious than this, yet frequently resulted in less serious sentences being imposed.  The submission is also made that his Honour made no reference at all to the provisions of section 9, subsection 2(a) of the Penalties and Sentences Act that requires that a sentence of imprisonment in circumstances of this – such as this, should only be imposed as a last resort and that a sentence that allows a defendant to stay in the community is preferable. 

18. [18]
    Given that the appellant was only 18 years of age at the time, with little criminal history, the absence of reference to that particular legislative provision unfortunately causes me to take the view that his Honour did not have regard to it and there can be no question that again, such a failure would constitute an error of law such that this court’s discretion to overturn or set aside the sentence imposed and re-sentence afresh is enlivened. 

19. [19]
    In that regard, I note, relevantly, that the appellant, as I’ve already indicated, was only 18 years of age at the time that he committed these offences.  But the most serious offence – that being the burglary – occurred during daylight hours whilst no one was home.  It would seem on the material before the court that his involvement in the unlawful use offences was as a passenger, not a driver.  Those vehicles were recovered and returned to their owners without damage.  I infer, given that the offenders for the burglary were caught very soon thereafter, that any property that was stolen was recovered.  The defendant has no relevant criminal history.  Importantly, he’s not previously had the benefit of supervision in the community – at least adult supervision.  Submissions were made that he had a prejudicial upbringing involving domestic violence and alcoholism.  That is a relevant consideration on sentence.  And prior to his incarceration, he had actively sought employment in labouring – labouring type positions. 

20. [20]
    On top of all of that, of course, is the fact that he entered what were described as early pleas of guilty to these charges.  Whilst general deterrence is an important consideration on sentence, it seems to me that the Magistrate placed excessive weight on that consideration to the unfair detriment of the other considerations.  Particularly, the defendant’s rehabilitation and the view that the courts have often expressed over many years that sending a young person to prison for the first time is something which should be avoided if that is appropriate in the circumstances, consistent with the provisions of section 9, subsection 2(a) of the Penalties and Sentences Act. 

21. [21]
    No quantum of the property stolen and value of it has been provided to the court, I note.  And in all the circumstances, taking all of those mitigating factors into account, in my view, the appropriate sentence at first instance for a matter such as this would have been one of a combination of probation and community service.  Two years’ probation, I would have thought would have been appropriate with a reasonably lengthy period of community service, perhaps even 150 hours.  And in those circumstances, given his age and lack of relevant criminal history, no convictions should have been recorded. 

22. [22]
    I’m told that the appellant has now spent 64 days in custody as a consequence of the sentence which was imposed upon him on the 14^th of September.  Both parties have submitted that I should take that period of 64 days into account, but not declare it, and then impose a short period of probation for the most serious of the charges.  In the circumstances, that appears to me to be an appropriate approach to this matter to counterbalance the fact that he has spent 64 days in custody in relation to these matters. 

23. [23]
    All right, now, MIL.  What I propose to do is allow the appeal and re-sentence you and in relation to the burglary offence, require you to be subject to a probation order for a period of nine months.  Before I can do that, you have to agree to me doing it.  So you have to know what the conditions are that you have to meet. 

24. [24]
    So the conditions are these:  you mustn’t commit another offence during the period of that order, you must report to an authorised corrective services officer at Brisbane within 24 hours of your release from prison.  You must report to and receive visits from an authorised corrective services officer as directed by the officer.  You must take part in counselling and satisfactorily attend other programs as directed by the court or an authorised corrective services officer during the period of the order.  You must notify an authorised corrective services officer of every change of your place of residence or employment within two business days after the change happens.  You mustn’t leave or stay out of Queensland without the permission of an authorised corrective services officer.  And you must comply with every reasonable direction of an authorised corrective services officer. 

25. [25]
    You understand if you don’t – if you breach any of those conditions, all that’s going to happen is that you’re going to get brought back to this court and one of the options open to this court is that you can be sentenced again for this charge. 

26. [26]
    All right, well the orders of the court are as follows:

3. 1)the appellant be granted leave to amend the notice of appeal and add the ground of appeal.
4. 2)that the appeal is allowed for the three charges which I’ve identified in the course of this judgment.
5. 3)in relation to those three offences, the sentence order of the 14^th of September 2021 is set aside, and
6. 4)the appellant is re-sentenced as follows: 

1. i.
   In relation to the offence of burglary, he get released under the supervision of an authorised corrective services officer at Brisbane for a period of nine months.  He must comply with the requirements set out in section 93, subsection 1 of the Penalties and Sentences Act 1992, and he must report within 24 hours of his release to an authorised corrective services officer at Brisbane.
2. ii.
   for the offences of unlawful use of a motor vehicle, each of those offences, he is convicted and not further punished. 
3. iii.
   and finally, given his age and lack of relevant prior convictions notwithstanding the seriousness of the offending conduct, it is still appropriate in the circumstances that no convictions be recorded for these offences and I so order. 

[APPEAL REOPENED]

27. [27]
    Just for the record, I note that the appellant, of course, was 18 years of age at the time of the commission of the offence.  The drug involved was cannabis sativa.  It was a very small amount.  He had little by way of criminal history, and pleaded guilty in a timely way.  In those circumstances, when taking into account the provisions of section 12(2) of the Penalties and Sentences Act, it is most appropriate that no conviction be recorded for that charge.  The recording of a conviction was manifestly excessive on the part of the Magistrate in the court below.  Given that that error exists, it is appropriate now that this court intervene.

28. [28]
    So for those brief reasons, I order as follows:  the order dismissing the appeal made on Tuesday of this week is set aside – or the oral order that was made on Tuesday of this week is set aside.  Secondly, the appeal in relation to the charge of possession of a dangerous drug is allowed to the extent that the recording of a conviction is set aside.  And thirdly, that no conviction is to be recorded for that offence.