JIK v Queensland Police Service
[2022] QDC 61
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- JIK v Queensland Police Service[2022] QDC 61
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JIK v Queensland Police Service[2022] QDC 61
JIK v Queensland Police Service[2022] QDC 61
DISTRICT COURT OF QUEENSLAND
CITATION: | JIK v Queensland Police Service [2022] QDC 61 |
PARTIES: | JIK (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | 148/2021 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | Magistrates Court at Cairns |
DELIVERED ON: | 17 February 2022 ex tempore |
DELIVERED AT: | Cairns |
HEARING DATE: | 17 February 2022 |
JUDGES: | Farr SC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE OF MAGISTRATE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant was convicted on his own pleas of guilty and was sentenced in respect of 7 offences – where the appellant appeals against the penalties imposed for charges 1, 2 and 3 – whether sufficient consideration given to s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) – whether sentence was excessive |
LEGILSATION: | Justices Act 1886 (Qld) s 222, s 225 Penalties and Sentences Act 1992 (Qld) s 9, s 93 |
CASES: | House v The King [1936] 55 CLR 499 MIL v Commissioner of Police [2021] QDC 330 R v Bates [2021] QCA 229 R v Hopper; ex parte Attorney-General (Qld) [2014] QCA 108 R v Dance [2009] QCA 371 R v McDowall [2005] QCA 260 R v Myles [2007] QCA 47 Teelow v Commissioner of Police [2009] 2 Qd R 489 Thompson v State of Queensland [2009] QDC 242 Vaevae v Queensland Police Service [2018] QDC 66 |
COUNSEL: | C Tessmann for the appellant T Watkins for the respondent |
SOLICITORS: | ATSILS for the appellant Director of Public Prosecutions for the respondent |
- [1]HIS HONOUR: The appellant pleaded guilty on the 21st of September 2021 in the Magistrates Court at Cairns to seven offences. The offences and the sentences imposed were as follows:
- (i)Charge one, unlawful use of a motor vehicle on 28 February 2021 and he was sentenced to six months imprisonment to be served by way of an Intensive Corrections Order;
- (ii)Charge 2 was a charge of burglary and commit an indictable offence which occurred on the 1st of March 2021, for which he was sentenced to nine months imprisonment to be served by way of an Intensive Corrections Order;
- (iii)Charge 3 was another count of burglary and commit an indictable offence, again, on the 1st of March 2021 and he was sentenced to six months imprisonment to be served by way of an Intensive Corrections Order. Count 4 was a charge of stealing on the 1st of March 2021. He was convicted and not further punished;
- (iv)Charges 5 and 6 were each breaches of bail; one on the 28th of April 2021, the other on 29 April 2021, for which he was convicted and not further punished; and
- (v)Charge 7 was a charge of stealing which occurred on the 10th of August 2021 and, again, he was convicted and not further punished.
- (i)
- [2]The appellant now appeals against the penalties imposed on charges 1, 2 and 3 pursuant to section 222 of the Justices Act 1886 (Qld). I have already granted leave allowing the appellant an extension of time within which to file his notice of appeal which was only two weeks late. Such an extension was not opposed by the Respondent. The principal ground of appeal was that the sentences imposed were manifestly excessive. A second ground alleges that the Magistrate failed to give proper weight to the principle that imprisonment is a sentence of last resort. Given that section 222(2)(c) relevantly states that if a defendant pleads guilty, a person may only appeal under this section on the sole ground that a punishment was excessive or inadequate, I will treat the appellant’s second ground of appeal as a particular of the principal ground; that being one of excessiveness.
- [3]Turning then to the relevant law, section 225(1) of the Justices Act 1886 (Qld) provides that on the hearing of an appeal, the Judge may confirm, set aside or vary the appealed order or make any other order in the matter the Judge considers just. In Teelow v Commissioner of Police [2009] 2 Qd R 489 at 493, Justice of Appeal Muir stated:
“It is a normal attribute of an appeal by way of rehearing that the powers of the Appellate Court are exercisable only where the appellant can demonstrate that having regard to all of the evidence now before the Appellate Court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.”
- [4]The relevant principles regarding appeals against sentence are those set out in the well-known case of House v The King [1936] 55 CLR 499 at 504 to 505. There are two categories of appeal grounds. Those that allege a specific error by the first instance decision maker and those that allege a miscarriage of the sentencing discretion resulting in a sentence that is manifestly excessive or inadequate. In cases in which a specific error is established, the appellate courts power to intervene is enlivened and it becomes its duty to resentence unless in the separate and independent exercise of its discretion, it concludes that no different sentence should be passed. In cases of complaints of manifest excess, an appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences that could have been imposed upon the appellant for the offence in question. It is not a sufficient basis of intervention that the appellate court may have imposed a different sentence in the exercise of the sentencing discretion. A mere difference about the way in which the discretion should be exercised is not a sufficient justification for review. It must be shown that the discretion, in fact, miscarried.
- [5]If I now turn to the circumstances of the offences. Between 27 and 28 February 2021, a car was stolen from Cairns North. At about 9 pm on 28 February, the appellant was in Edmonton and was advised on a social media application that another person had a stolen motor vehicle and that that person would come and pick him up. A short time later, the vehicle arrived, and the appellant and three other boys got in. He then remained a passenger as that vehicle travelled around Cairns and then to Trinity Park. That is the behaviour the subject of Charge 1.
- [6]Once at Trinity Park, the occupants of the vehicle alighted and involved – well, the appellant then involved himself in three property offences. In relation to charge 2, the offenders went to an address at 11 Marina Close. The group entered the house and stole three to four bottles of alcohol, about six bottles of wine, four to five packets of cigarettes and two sets of keys to the vehicles at that address, although, they were unable to steal any vehicle itself. The appellant had entered the house. He looked for coins, stole a bottle of alcohol and carried a bag that the other offenders had used to fill with alcohol. The occupier of that premises who was home at the time, awoke at 4.30 am and realised he had been broken into upon seeing graffiti in black pen on his living room wall and on the wall in the study.
- [7]In relation to charge number 3, the offenders then went to 18 Marina Close. On this occasion, the appellant stood as a lookout whilst the others attempted to break in. They gained entry and stole a handbag. The appellant held the gate open to allow the co-offenders to escape. They stole $350 cash and a wallet with four credit cards and identity cards. Police officers subsequently recovered the wallet, but the cash and credit cards were missing. They did that after the appellant informed them during his interview where it had been discarded. Again, the occupier of that premises was home at the time but did not realise that there had been a break into the premises until he or she woke up later that morning.
- [8]In relation to charge 4, the appellant went to 20 Marina Close and tried to gain entry but was unable to because the doors were locked but he did steal a packet of cigarettes that had been left on a table on a balcony. As is obvious, each of these three charges occurred in quick succession on the same evening or early morning.
- [9]For completion, I should mention the remaining charges. Charges 5 and 6 comprise the Defendant breaching a curfew condition when he was not located at his bail address on the two occasions I have already spoken of. And charge 7 made an allegation of him stealing seven bananas from a banana stand in Innisfail which he was said to have done because he was hungry. As I have indicated, the appellant, when questioned by police officers, made full admissions in relation to all seven offences.
- [10]Turning then to his antecedents, he was 18 years and one week old at the time of the commission of charges 1 to 4. He was born in Tully and left school after grade 10. He then worked in landscaping for a few months before becoming unemployed. At the time of sentence, he had left Cairns and moved to Innisfail and had been employed for two months picking bananas. He worked from 7 am to 4.30 pm five days a week and was living at a backpackers retreat in Innisfail, which itself had a 9 pm lockout. He was, therefore, supporting himself and had taken control and responsibility for his own life at that stage. It was submitted that his hopes are to either join the Australian Army or to obtain, what I infer to be, fulltime employment in the mines. Relevantly and importantly, he had no prior convictions and entered early pleas of guilty, as well as having cooperated with the police, making the admissions to which I have already referred. It was submitted, additionally, that he was very much chastened by the court process.
- [11]If I then turn to the submissions on sentence. At sentence, the Prosecutor placed two comparable decisions before the Magistrate. The first was Vaevae v Queensland Police Service [2018] QDC 66. It involved 14 property offences, six offences of either burglary or entering a dwelling and committing indictable offences, six offences of unlawful use of a motor vehicle, one offence of stealing and one offence of dangerous operation of a motor vehicle. The offending spanned a period of approximately one month. On six separate occasions, Vaevae broke into a dwelling, stole keys and vehicles and drove the stolen vehicles himself on, at least, two occasions. The dangerous operation of the motor vehicle charge involved him crashing into two police vehicles and causing $6365 worth of damage to those vehicles. On my reading of that decision, that did not include the value of the damage to the car he was in. He pleaded guilty, made admissions. He was 18 years of age and had prior convictions for two minor offences for which no convictions had been recorded. On appeal, he was sentenced to an effective sentence of 14 months imprisonment, suspended after having served 78 days in pre-sentence custody.
- [12]The second decision to which the Prosecutor referred the learned Magistrate in the court below was R v Dance [2009] QCA 371. That was a matter that involved 19 indictable property offences as well as the offence of dangerous operation of a motor vehicle. The Applicant or the offender in Dance was 19 years of age, he had favourable antecedents, but he was on probation for three offences of unlawful use of a motor vehicle when the subject offences took place. On appeal, he was resentenced to 18 months imprisonment with a parole release date at the date of the appeal hearing, he having served a little over two months in custody by that time. I note that the offending in that matter took place over a period of approximately four months.
- [13]Relevantly, the Prosecutor in the court below submitted quite accurately, in my opinion, that Dance had a far more serious “factual matrix” than this matter. I note he also submitted that, excluding the charge of dangerous operation of a motor vehicle, the offending in Vaevae is quite similar to the present matter. It is not clear, however, how one excludes the most serious of the charges that a person is facing when one is assessing the penalty imposed, when it is calculated on a global basis taking a number of offences into account, in reaching the sentence that is said to reflect the full criminality of the conduct, if the sentencing Judge does not particularise the extent to which each offence contributed to the sentence imposed. In Vaevae, his Honour Judge Morzone QC did not go into any such particularity.
- [14]I note relevantly, that in this matter, the Prosecutor below made this submission on sentence:
“Although, you do have a wide range of sentencing discretion available to you today, imprisonment, in my submission, is open and your Honour would grant the defendant a parole release date today to provide him with some rehabilitation and supervision in the community.”
- [15]Mr Watkins, the solicitor for the Respondent today, has quite properly conceded that that submission, effectively, meant that the Prosecutor was acknowledging that community-based orders were within the appropriate range as was a term of imprisonment that was coupled with an immediate release order. Mr Watkins has also, again, quite properly conceded that community-based orders were within the appropriate range but submits that the appeal should fail because the Magistrate did not err in failing to consider the provisions of section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld). That is the section that deals with a sentence of imprisonment being a last resort and one that allows the offender to stay in the community is to be preferred. That submission is made on the basis that the sentences which were imposed were not excessive. The appellant submits that the sentences imposed were excessive when compared to truly comparable matters, as well as by virtue of the fact that the Magistrate failed to give due and proper consideration to the provisions of section 9(2)(a), thus resulting in inappropriate sentences of imprisonment.
- [16]Dealing with the latter submission first, I note that in his sentencing remarks, the learned Magistrate did refer to a sentence of imprisonment being the last resort but did not give any reasons as to why community-based orders were not within the appropriate range, as had been submitted by both the Prosecutor and Defence solicitor. His Honour did say at one stage:
“I am not persuaded that this offending is other than serious offending but notwithstanding the pleas of guilty and your cooperation, that noting that imprisonment is a last resort, that noting in the context of imposing a sentence, the purposes are punishment, rehabilitation, personal and general deterrence and community denunciation, that periods of imprisonment are not called for. It is serious offending. It is offending that strikes at the heart of a person’s entitlement to enjoy quiet possession of their own homes. It was, notwithstanding your youth, deliberate and quite organised offending.”
- [17]But to say that “I am not persuaded,” and then to continue later “that periods of imprisonment are not called for” is not sufficient explanation for why the sentence of last resort should be imposed. In circumstances where both the Prosecutor and Defence agree that a community-based order is within the appropriate range, the sentencing Judge or Magistrate needs to identify precisely why such an outcome is not appropriate. That did not happen here and that, on the face of it, is an error of law, because I cannot be satisfied that proper consideration was given to this issue. Once again, I note that the legal representative for the Respondent agreed with this proposition. This error is sufficient to enliven the power of this Court to sentence afresh. Furthermore, I am also of the view that the sentences imposed were excessive, even putting aside the issue involving section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld).
- [18]In Thompson v State of Queensland [2009] QDC 242, the offender was sentenced for 23 indictable property offences including eight offences of enter dwelling and commit indictable offences, three offences of enter premises and commit indictable offence, seven offences of unlawful use of a motor vehicle to commit an indictable offence and five of stealing. The offences were committed over nine days in the company of others. Three of the dwellings were occupied at the time of entry. There was an order for restitution in the amount of just under three and a-half thousand dollars. The appellant or the offender in question was 18 years of age. He had entered timely pleas of guilty and cooperated with the authorities and had no criminal history and was prepared to pay restitution.
- [19]By the time of sentence, it was said that his life was back in order and that he was employed and was hoping to recommence tertiary studies and join the air force. He was initially sentenced to 12 months imprisonment which was wholly suspended but on appeal, the Respondent conceded that that was manifestly excessive, and the Court agreed, and he was resentenced to two years probation and 60 hours community service with no convictions recorded. The Court noted during the course of that decision that:
“The recitation of factors in mitigation was so significant that one wonders how his Honour came to the conclusion that imprisonment was the appropriate sentence and that convictions should be regarded.”
- [20]The subjective features of that matter are very similar to that of this other than, perhaps, that in that matter, Thompson had actually lodged his application to join the military. However, it is quite clear the offending in that matter was significantly more serious than the offending in this matter. The result in that matter when compared to this, leaves one with the sense of justifiable grievance if one were the appellant here.
- [21]I have also been referred to MIL v Commissioner of Police [2021] QDC 330 which is a matter I presided over. That involved an 18-year-old offender who had little criminal history. He pleaded guilty to two charges of unlawful use of a motor vehicle, one of burglary and one of possession of a dangerous drug. For one of the unlawful use charges, he was a passenger. For the burglary offence, he and two others entered an unoccupied house in daylight hours when no one was home by smashing a door. They then conducted what was described as an untidy search before being apprehended by police after fleeing the scene. After taking into account the fact that he had spent 64 days in pre-sentence custody, I ordered that he be placed on probation for a period of nine months on the burglary charge with no convictions recorded. Now, these two matters unambiguously demonstrate that the sentences imposed in this matter were excessive.
- [22]The Respondent, I must say, has also referred the Court to R v McDowall [2005] QCA 260. It involved seven property offences which were mostly entering premises and stealing. He was 23 and 24 years of age when he committed these offences and was, therefore, described by the sentencing Judge as a mature man. He also committed one of the break and enter offences the day after being placed on bail for one of the earlier offences. The offending conduct occurred over a period of approximately four months. He was sentenced to nine months imprisonment suspended after one month. As is obvious, the distinguishing features between that case and this render that matter of little, if any, comparable value, particularly the age disparity between the offender there and the offender here and the fact that the person there offended whilst on bail.
- [23]Of course, in this matter the appellant’s youth is of particular significance, as was accepted in – or as was said in R v Bates [2021] QCA 229 at paragraph 6:
“The learned sentencing Judge would have to take into account the well-established sentencing principles that call for the seriousness of the offending conduct to be balanced against the fact that the offender was a youthful first offender with an unblemished record, good character and excellent prospects of rehabilitation.”
- [24]In R v Hopper; ex parte Attorney-General (Qld) [2014] QCA 108 at [28], Justice of Appeal Fraser said:[1]
“… that because rehabilitation of young offenders is in the interests of the community, “youthful offenders with limited criminal histories and promising prospects of rehabilitation, who have pleaded guilty and cooperated with the administration of justice, even when they have committed serious offences … should receive more leniency from Courts than would otherwise be appropriate.”
- [25]A little later Justice Fraser said:
“… so that it had been universally accepted by the Courts in England, Australia and elsewhere, that in the case of a youthful offender, his reformation is always an important consideration and in the ordinary run of crime, the dominant consideration in determining the appropriate punishment to be imposed.”
- [26]So taking all this into account, I am of the view that the sentence imposed on the appellant fell outside the permissible range in the circumstances of this case. In my view, the appropriate sentence, given that he was in fulltime employment at the relevant time of sentence, would have been one of 18 months probation. Given that he has served some of the intensive corrections order, though, I will reduce the order that I would, otherwise, have considered to be appropriate to one of 15 months. I am also of the view that, taking into account the provisions of section 12(2) of the Penalties and Sentences Act 1992 (Qld), particularly, his age, lack of criminal history and the nature and seriousness of the offences, that it would not be appropriate to record convictions.
- [27]The order of the Court is as follows:
- The appeal is allowed;
- The sentences imposed on charges 1, 2 and 3 are set aside;
- For each of charges 1, 2 and 3, the appellant is released under the supervision of an authorised Corrective Services officer at Innisfail for a period of 15 months and must comply with the conditions set out in section 93(1) of the Penalties and Sentences Act 1992 (Qld), and must report by 4 pm tomorrow, the 18th of February 2022.
- No convictions are recorded.
- [28]HIS HONOUR: Now, can I seek your undertaking, Mr Tessmann, to explain the provisions of section 93(1) of the Penalties and Sentences Act to the appellant?
- [29]MR TESSMANN: Yes. We certainly will undertake to make all reasonable endeavours to do that.
- [30]HIS HONOUR: Well, no, not all reasonable endeavours; it must be done.
- [31]MR TESSMANN: It will be done.
Footnotes
[1] Quoting McMurdo P in R v Myles [2007] QCA 47 at [21].