FMA v Commissioner of Police[2023] QDC 105

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 2 December 2022, the appellant pleaded guilty to the following 14 offences and received the following penalties: 

2. [2]
   All terms of imprisonment were ordered to be served concurrently. A parole release date was imposed on the day of the sentence (after the appellant had served 44 days in pre-sentence custody).  The period between 20 October 2022 and 2 December 2022 (44 days) was declared as time served under the sentences imposed.

Grounds of appeal

3. [3]
   The appellant has appealed the sentences imposed on the following grounds:

1. the learned Acting Magistrate erred by imposing a manifestly excessive sentence;
2. The learned Acting Magistrate erred by failing to reduce the term of imprisonment for the three offences of receiving tainted property;
3. The learned Acting Magistrate erred by failing to moderate general and specific deterrence;
4. The learned Acting Magistrate erred by not imposed an immediate suspension of any balance of imprisonment. 

Nature of appeal

4. [4]
   The appellant appeals pursuant to section 222 of the Justices Act 1886.   The nature of the appeal is discerned from the statutory provision which is found in section 223 of the Justices Act 1886.  The appeal is by way of rehearing on the original evidence in the proceeding together with any new evidence that is admitted.  No application to admit new evidence has been made. 
5. [5]
   The appellant’s outline acknowledges that the appeal is by way of rehearing, however, goes on to say that “it is not, therefore, necessary to demonstrate any error on the part of the learned Magistrate”.  Forrest v Commissioner of Police^[1] is footnoted as authority for that proposition.  In fact, what Forrest v Commissioner of Police said of an appeal by way of rehearing is as follows:

“It has been said many times that such an appeal by way of rehearing requires an appellate Court to decide the case for itself. Although the reasoning of the Court from which such an appeal has been brought is relevant to be considered by an appellate tribunal, and it is sometimes said that it should be given appropriate weight and even great weight in particular cases particularly where credit is an issue, it is not the function of a court hearing such an appeal merely to consider whether or not the tribunal at first instance has made an error of fact or law. Nor is there an onus upon an appellant to demonstrate the existence of an error of fact or law, although such a demonstration will go a long way towards winning an appeal.” (emphasis added)

6. [6]
   That statement is consistent with what the High Court has said of an appeal by way of rehearing in Allesch v Maunz^[2]:

“For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all 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,  whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.”

7. [7]
   As this appeal is in relation to the exercise of a discretion, an error in the exercise of the sentencing discretion as identified in House v The King^[3] needs to be demonstrated before an appellate Court is justified in interfering. If an error of law or fact is demonstrated or it is established that the sentence is otherwise “plainly unreasonable or unjust”, the appellate Court can exercise the sentencing discretion afresh. 

Circumstances of the offences

Charges 1 & 2 – Receiving Tainted Property

8. [8]
   On an unknown date between 9 July and 30 October 2021, the defendant came into possession of the following stolen property:  a machinery trailer; a 200 litre fuel pod, auger motor, auger extension, four metres of chain, tensioning ratchets and hitch plate.  That property had been stolen from an industrial premises on 10 July 2021.  (Charge 1)
9. [9]
   On unknown date between 7 October and 12 October 2021, the defendant came into possession of the following stolen property:  an excavator, excavator bucket, auger motor, auger, ratchet strap and strobe lights. These items had been stolen from a construction site between 8 October and 11 October 2021. (Charge 2)
10. [10]
    The excavator (in charge 2) was located hidden in bush land by graziers.  The appellant’s vehicle was seen in the general area by the graziers as they waited for police to arrive.   The registration plate from the stolen machinery trailer in charge 1 was found nearby the excavator. The trailer was likely used to transport the excavator. The appellant’s fingerprint was located on the registration plate.  
11. [11]
    The stolen machinery trailer was located at the appellant’s residence on 29 October 2021. It had been repainted and modified and bore a false identification plate and manufacture plate in the appellant’s name. The original VIN was able to be recovered through forensic examination.  
12. [12]
    On that same date, 29 October 2021, police also located at the appellant’s residence, the 200 litre diesel fuel pod; four metres of chain with shackle; the auger motor, auger extension and auger bit; two chain ratchets which had been spray painted; the excavator bucket; excavator hitch plate; and strobe light. 

Charge 3 – Unlawful possession of suspected stolen property. 

13. [13]
    During the same police search on 29 October 2021, they located a plant trailer with 1000 litre water tank and Honda pump and hose at the appellant’s house.  The trailer had no identifiers attached and there were recent grinding marks on the draw bar where it was expected identifying details would be found. 
14. [14]
    The appellant told police that none of the property was stolen and belonged to him. 
15. [15]
    A forensic examination revealed a ground metal area on the drawbar which appeared recent.  Efforts had been made to grind some identifying initials off the drawbar.  A partial VIN was able to be recovered however the trailer was unable to be identified. 

Charges 4-8

Producing dangerous drugs

Possessing dangerous drugs

Possessing utensils x 2

Possessing property suspected of having been used in connection with the commission of a drug offence 

16. [16]
    On 22 December 2021 a warrant was executed at the appellant’s home.  Police located 43 cannabis plants ranging from seedlings up to approximately 50 centimetres in height; dried cannabis in a small quantity; five water pipes used to smoke cannabis; four glass pipes used to smoke methylamphetamine; an electric grinder and a hanging rack used to dry cannabis. 
17. [17]
    The appellant was charged on 22 December 2021 with receiving tainted property and the drug offences. 

Charge 9 - Contravention of Domestic Violence Order (aggravated)

18. [18]
    On 17 December 2021, in breach of a domestic violence order which prohibited the appellant from contacting, attempting to contact or asking someone else other than a lawyer to contact, his former wife; the appellant asked a mutual acquaintance to return some of the aggrieved’s personal property to her. 

Charges 10-13

Breach of bail condition

Possession of dangerous drugs

Possession of a knife

Possessing dangerous drugs

19. [19]
    On 22 February 2022, the appellant was intercepted by police driving a vehicle at 3am in breach of a curfew that required him to be at his bail address between 10pm and 5am. The appellant was in possession of an unknown dangerous drug weighing 0.97 grams along with a glass pipe and flick-style folding knife. 

Charge 14 - Receiving tainted property

20. [20]
    On 21 September 2022, the appellant was a party to the receipt by another of a stolen tipper truck worth $68,000; a compactor; two water pumps; and, water hoses. The appellant was sentenced on the basis that he aided another by attempting to sell the tipper truck, compactor and water pumps.  Those items were not recovered.

The appellant’s antecedents    

21. [21]
    The appellant was 45 – 46 at the time of the offending and 46 years of age at sentence.  He had a significant criminal history for property and drug offending.  On 5 March 2001, the appellant was sentenced to three years imprisonment suspended after serving twelve months for an operational period of five years for a multitude of offences which included unlawful possession of a motor vehicle.  On 29 March 2003, the appellant was sentenced to two and one-half years imprisonment for two offences of receiving stolen property, unlawfully using a motor vehicle and attempting to pervert the course of justice. Those offences were committed in breach of the suspended sentence imposed in March 2001. The two and one-half year sentence was ordered to be served cumulatively on the balance of the earlier suspended sentence which was activated, being two years imprisonment.  It was further recommended that the appellant be released on what was then the equivalent of parole after serving two years. 
22. [22]
    The offending in 2003 involved the appellant being seen in possession of stolen motor vehicle parts which had been stripped from a stolen vehicle and attached to a vehicle in the appellant’s possession.  That vehicle was seized by police.  The appellant unlawfully removed that vehicle from the rear car park of the police station and dumped it in bushland where it was found burnt out.  The Court of Appeal, who considered his appeal against the sentence,^[4] described the appellant’s criminal history as unenviable with his at that time, having been dealt with on 17 occasions for property-related offences. The relevant personal factors taken into account were: his unfortunate upbringing; his having been raped in prison and its serious psychological consequences; his efforts at rehabilitation from alcohol and drug addiction; and his family responsibilities with his wife having given birth to a son.  The appellate Court found that the seriousness of the offences and the appellant’s previous criminal history when weighed against those personal factors did not, as a whole, make the effective sentence imposed of four and one-half years imprisonment, manifestly excessive.
23. [23]
    After the appellant’s release from prison from serving that sentence, he did not re-offend until 2013 when he was convicted of public nuisance; assault/obstruct police and wilful damage of police property. In 2014, the appellant was convicted of possessing a knife in a public place; possessing prohibited explosives; possessing dangerous drugs and utensils.  For all of those offences he was fined.  In 2014, the appellant was also convicted of dangerous operation of a motor vehicle; failing to stop and assault/obstruct police.  He was sentenced to six months imprisonment with a parole release date after he had served approximately two months of that sentence.   The appellant again did not offend after being released from that sentence until 2016, when he was found in possession of dangerous drugs and utensils.  He was fined for those offences as he was for an offence of wilful damage committed in 2016.  The appellant again did not offend until 2020, when he was convicted of contravening a domestic violence order and fined. 
24. [24]
    A psychological report dated 1 December 2022, prepared by Dr Jacqui Yoxall was tendered at the appellant’s sentence hearing before the learned Magistrate. That report set out the appellant’s distressing upbringing.  His mother relinquished her parental rights, and the appellant was made a ward of the State of Queensland when the appellant was a child, perhaps a young teenager.  He was sent to the Wilston Detention Centre at Wacol and then onto BoysTown where he was subjected to physical and sexual abuse.  The appellant has made a claim to the National Redress scheme. 
25. [25]
    The appellant was nineteen years of age when he was raped at the Sir David Longland prison.  He attempted suicide a number of times when incarcerated at that centre.  The appellant used the lengthy period of time that he was incarcerated, in I assume 2004, to ‘get clean from drugs’ and to engage in prevocational studies.  He completed his apprenticeship as a boiler maker and welder and worked for more than ten years in the mining industry.  In 2019, he experienced a stroke at work.  It was determined that he had sustained a permanent impairment and was not able to return to his employment and he received a settlement of around $500,000.  He used that money to purchase a property and start a small lawn mowing and landscaping business which he operated until mid to late 2021. 
26. [26]
    The report of Dr Yoxall also revealed that the appellant commenced smoking cannabis when he was thirteen years of age.  He had used cannabis for most of his life to manage migraines and to help him sleep.  He was, at the time of the sentence, prescribed medicinal cannabis.  The appellant has also used methylamphetamine from the age of seventeen.  For a period of ten years, he had abstained from methylamphetamine use but relapsed in 2021. 
27. [27]
    The appellant was married around seven years prior to his sentencing in December 2022.  After he had the stroke, his wife took over management of their money. When he received the proceeds of his settlement and purchased a property, his wife took $100,000 from their shared account.  In around November 2021, the appellant discovered that his wife was having an affair with one of his friends. She moved out of their home and commenced residing with the appellant’s friend.  The appellant said that he felt lonely when his wife left him, and he started to spend time with former associates who used methylamphetamine. He relapsed into daily use of methylamphetamine as well as smoking cannabis.  The appellant said that his life was chaotic at the time and that he frequently felt suicidal and felt helpless and hopeless about his life. 
28. [28]
    Prior to being remanded in custody in October 2022, the appellant had moved to his mother’s home in Caloundra and sought her assistance to stabilise his life. He consulted his general practitioner and commenced a medicinal cannabis program for management of his migraines, insomnia and anxiety. He abstained from methylamphetamine use from late September.  The appellant’s mother confirmed that when the appellant’s wife left him, he was devastated and that he spiralled downwards and relapsed into drug use. 
29. [29]
    Dr Yoxall stated that the appellant spoke with a stutter and at times, demonstrated word-retrieval difficulties. He also suffered from some memory impairment. He said that sharing a cell triggered his distress. He felt overwhelmed and threatened. Dr Yoxall stated that when the appellant’s wife left him to pursue a relationship with a friend, and took a large amount of the appellant’s pay-out and fell pregnant to his friend, that he became overwhelmed by grief and loss and distress and relapsed to methamphetamine use and association with negative social influences which in turn, led to a return to offending. 
30. [30]
    Doctor Yoxall considered the appellant to be psychologically and cognitively vulnerable. She considered that he had a severe and chronic cannabis and methamphetamine dependence; complex post-traumatic stress disorder; and, major depressive disorder. She opined that the appellant required intensive drug rehabilitation “which is carefully coordinated with psychological intervention to address the noted PTSD arising from extensive childhood and adult trauma and associated depression”.   She considered that the appellant’s risk of re-offending was directly related to his risk of relapse to drug dependence and psychological stability. 

The learned Magistrate’s decision

31. [31]
    The learned Magistrate took into account the appellant’s timely pleas of guilty and considered them to be a demonstration of remorse and co-operation with the administration of justice. She considered the serious offences to be the receipt of tainted property. The items the appellant received were of significant value. She referred to the appellant being on bail in relation to the offending on 21 September 2021, and that the appellant engaged in conversation relating to the sale of the property over a period of two days, during which he did not distance himself from the sale of the property at all. She said that receiving tainted property is seen as a serious offence because unless there is a person to take the unlawful property, there is no demand for it. She said that the appellant was actively engaged in trying to sell the property. That created a market for people to steal property. 
32. [32]
    The learned Magistrate took into account that the appellant’s time in custody would be made more difficult because of his vulnerabilities.  She referred to the need to punish the appellant in a way that was just, having regard to the significant nature of the offending and the need to protect the community. 
33. [33]
    The learned Magistrate determined that a term of imprisonment was appropriate and sentenced the appellant to two years imprisonment for the offence of receiving tainted property committed whilst on bail (charge 14).  Lesser concurrent terms, and fines, as referred to in paragraph [1], were imposed in relation to the other offending.  The learned Magistrate fixed the date of the appellant’s sentence as the date he would be released on parole.  She considered the sentence imposed balanced the need to protect the community from the appellant’s offending and otherwise reflected some moderation for the reduced need for specific and general deterrence and denunciation as referred to in R v Yarwood.^[5]

Consideration – Grounds 2 and 3

34. [34]
    It is convenient to deal with grounds 2 and 3 together.  The substance of the argument made is that the vulnerabilities of the appellant as referred to in the report of Dr Yoxall warranted “an appropriate and distinct” moderation of the head sentence. The starting point for the sentence was two years imprisonment which ought to have been moderated because of the subjective features in mitigation.  
35. [35]
    Although not specifically said on appeal, at first instance the appellant’s legal representative argued that the report of Dr Yoxall demonstrated that the appellant was suffering from a mental disorder that was directly linked to the offending and that condition reduced the appellant’s moral culpability for the offending and thus reduced the claims that general and specific deterrence had on the sentencing discretion.
36. [36]
    Section 9(9A) of the Penalties and Sentences Act 1992 provides that voluntary intoxication by alcohol or drugs is not a mitigating factor for the court to have regard to in sentencing an offender.  
37. [37]
    In R v Adam^[6], Kelly J (with whom SofronoffP and Mullins JA agreed) said that the decisions of R v Rosenberger; ex parte Attorney-General^[7] and R v Dwyer^[8] and section 9(9A) of the Penalties and Sentences Act 1992 left open the prospect that in an exceptional case of voluntary intoxication, that there may be some other feature that excuses the taking of alcohol or drugs.  In those cases, it is the other feature and not the voluntary intoxication which calls for mitigation of the penalty. Kelly J referred to a number of cases in which such an approach had been taken. In each of those cases the offending was not solely the consequence of the voluntary intoxication.  In one such case, there was a causal connection between the offending and the painful effects of a physical disease^[9]; in another there was a causal connection between the offending and the impairing effects of bipolar disorder^[10] and in another between an underlying autistic spectrum disorder and a depressive disorder^[11]. 
38. [38]
    Kelly J said that the “affording of mitigation in these types of cases is not inconsistent with the operation of section 9(9A).  However, it should be observed that the causal link or connection between the offending and the matter, which is something other than voluntary intoxication or stupefaction, is required to be established by the evidence.”^[12]
39. [39]
    Dr Yoxall’s opinion was that the offending occurred during a period of time when the appellant’s marriage had ended, after he discovered that his wife had an affair with his best friend and subsequently became pregnant. The appellant became overwhelmed, relapsed to drug use, started associating with others involved in drugs and crime and reoffended in various ways over a period of about 12 months. There was no clear opinion expressed that the appellant’s offending was caused by his mental conditions.  Indeed the opinion expressed was that the appellant’s offending was caused by his return to drug use.
40. [40]
    In R v Verdins^[13] (referred to with approval by Keane JA in R v Goodger^[14] and by Kelly J in R v Adam), the Court observed the following with respect to the extent to which impaired mental functioning may reduce moral culpability:

“It is of the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce the blameworthiness of the offender’s conduct. The effect on the court’s assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence. It is not appropriate for an appellate court to be prescriptive in this regard, nor is it possible to be exhaustive. It may assist sentencing judges, nevertheless, if we list the various ways in which impaired mental functioning has been held – correctly, in our view – to be capable of reducing moral culpability.

Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of:

1. (a)
   impairing the offender’s ability to exercise appropriate judgment;
2. (b)
   impairing the offender’s ability to make calm and rational choices, or to think clearly;
3. (c)
   making the offender disinhibited;
4. (d)
   impairing the offender’s ability to appreciate the wrongfulness of the conduct;
5. (e)
   obscuring the intent to commit the offence; or
6. (f)
   contributing (causally) to the commission of the offence.”

41. [41]
    The learned Magistrate had specific regard to the contents of Dr Yoxall’s report and accepted that because of the appellant’s mental conditions and vulnerabilities, that his time in prison would weigh more heavily on him than a person of robust health.   She also referred to the decision of R v Yarwood^[15] (which considered Verdins and Goodger) and considered that in sentencing the appellant, claims of general and specific deterrence were reduced. Not only did the learned Magistrate specifically state she had moderated the sentence, that moderation can objectively be seen in her decision to release the appellant from actual custody on the date of his sentence, requiring him to serve only 43 days of the two year sentence. That, in itself, is a significant moderation of the sentence, well beyond how an early plea of guilty would ordinarily be reflected (by releasing an offender after serving one-third of the sentence imposed).  The sentence imposed was significantly moderated when the evidence relied upon did not, in my view, attract the Verdins’ principles.
42. [42]
    The learned Magistrate did not fail to take into account personal features relevant to the sentencing of the appellant. She did not fail to moderate the sentence as a result of the significance of those features.

Grounds 1 & 4 - Manifest excess and error in not suspending the sentence

43. [43]
    The appellant’s only argument is that a sentence suspended after the appellant had served the 43 days in pre-sentence custody, coupled with an order for probation, was the appropriate disposition rather than release on parole. 
44. [44]
    In R v MCT^[16] it was said of a ground of appeal arguing manifest excess:

“To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is “unreasonable or plainly unjust”. Consistently with accepted understanding that there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.”

45. [45]
    That a different structure to the sentence could have been imposed does not make a sentence manifestly excessive or reveal error. Dr Yoxall’s opinion was that the appellant required “intensive drug rehabilitation” carefully co-ordinated with psychological intervention to address the noted PTSD arising from extensive childhood and adult trauma and associated depression. She further opined that the appellant’s risk of reoffending was directly related to his risk of relapse to drug dependence and his psychological stability. Not only did the opinions expressed support the ordering of the appellant being released on parole, his commitment to rehabilitation and the success he demonstrated in remaining drug free after his release on parole from the 29 March 2003 sentence also favoured the ordering of a parole release date.
46. [46]
    At sentence, the following decisions were relied upon:

1. Sentencing remarks of Judge Dick SC in R v Luke James Clark dated 25 March 2021. Clark had a dated and relatively minor criminal history. He frankly confessed his conduct to police.  He was sentenced for one offence of receiving tainted property, although the circumstances of that are not discernible from the sentencing remarks. Clark had a number of medical problems which would weigh more heavily upon him than someone of robust health. Clark was responsible for the care of his partner who had some mental health issues and for his young son.  Clark was sentenced to a two year wholly suspended sentence (for an operational period of three years)
2. Sentencing remarks of Judge McGinness in R v Justin James Aurisch dated 2 August 2010.  Aurisch pleaded guilty to one count of receiving tainted property.  He received a shipping container stolen nine days earlier. The container held property with a value of between $300,000 and $350,000.  Aurisch confessed his involvement to police and was sentenced on the basis he received the container at the request of another man and that he placed padlocks on the container. Aurisch had a criminal history including convictions for drug offences and weapons offences. Aurisch was sentenced to two years imprisonment wholly suspended for two years. 
3. Sentencing remarks of Judge Rafter SC in R v Teresa-Anne Ryan dated 10 April 2019.  She pleaded guilty to receiving aviation parts which had been stolen.  She had a criminal history commencing in 2008.  The most significant offences were a breach of a protection order, unlawfully using a motor vehicle and receiving tainted property dealt with in 2016 for which she received probation.  The offending before Judge Rafter SC was committed whilst subject to the probation order.  The value of the property stolen was more than $3,000,000.  Ryan was involved in what was a commercial venture. She had taken significant steps towards her own rehabilitation.  She had some mental health difficulties.  She was the carer of a six year old child.  Ryan was sentenced to two years imprisonment wholly suspended for an operation period of two years.  

47. [47]
    The appellant’s offending involved three distinct occasions in which he received tainted property over a period of some 12 months.  The final offence was committed whilst on bail for the earlier offences.  There is nothing in the sentencing decisions relied upon which would demonstrate that there has been any misapplication of principle.  The sentence imposed cannot even be said to be markedly different from the sentences imposed in those other cases, particularly given that the appellant offended over a period of 12 months; that he offended whilst on bail and fell to be sentenced for other distinctly different offending, namely the drug offending and other assortment of offences.
48. [48]
    The appeal is dismissed.