Mathieson v Queensland Police Service
[2023] QDC 117
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- Mathieson v Queensland Police Service[2023] QDC 117
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Mathieson v Queensland Police Service[2023] QDC 117
Mathieson v Queensland Police Service[2023] QDC 117
DISTRICT COURT OF QUEENSLAND
CITATION: | Mathieson v Queensland Police Service [2023] QDC 117 |
PARTIES: | KEITH LEWIS MATHIESON v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO: | APPEAL NO:12/23 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Mareeba |
DELIVERED ON: | 16 June 2023 (orders made on 6 June 2023) |
DELIVERED AT: | Cairns |
HEARING DATE: | 6 June 2023 |
JUDGE: | Morzone KC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – ERROR OF LAW – review pursuant to s 222 Justices Act 1886 – conviction – sentence manifestly excessive – criminal history. |
LEGISLATION: | Justices Act 1886 (Qld) s 222, s 223(1) & 227 |
CASES: | AB v R (1999) 198 CLR 111 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Allesch v Maunz (2000) 203 CLR 172 Dinsdale v The Queen (2000) 202 CLR 321 Dwyer v Calco Timbers (2008) 234 CLR 124 Forrest v Commissioner of Police [2017] QCA 132 Fox v Percy (2003) 214 CLR 118 Gronow v Gronow (1979) 144 CLR 519. House v The King (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 60 Lovell v Lovell (1950) 81 CLR 513 Lowe v The Queen (1984) 154 CLR 606. McDonald v Queensland Police Service [2017] QCA 255 Norbis v Norbis (1986) 161 CLR 513 R v Lomass (1981) 5 A Crim R 230 R v Matauaina [2011] QCA 344 R v McIntosh [1923] St R Qd 278 R v Morse (1979) 23 SASR 98 R v Perini; ex parte A-G (Qld) (No 2) [2011] QCA 384 Teelow v Commissioner of Police [2009] QCA 84 Veen v The Queen (No. 2) (1988) 164 CLR 465 Warren v Coombes (1979) 142 CLR 531 White v Commissioner of Police [2014] QCA 121 |
SOLICITORS: | Aboriginal and Torres Strait Legal Service for the Appellant. The Office of Director of Public Prosecutions for the respondent. |
Summary
- [1]On 8 February 2023, the appellant was convicted on his own plea of guilty in the Magistrates Court held in Mareeba, of one charge of stealing some crumbed fish from a store freezer and he was sentenced to two months’ imprisonment wholly suspended for an operational period of nine months and ordered to pay compensation to the value of the goods in the sum of $28.80.
- [2]The appellant now appeals his sentence on the grounds that it is manifestly excessive because:
- the sentencing magistrate erred by not acknowledging that a sentence of imprisonment is a sentence of last resort; and
- the sentencing magistrate did not deal with the matter by way of imposing a fine.
- [3]The appeal is properly conceded. The respondent argues that the sentence options included the imposition of a fine, referred to SPER or alternatively a community-based order, or increased compensation order.
- [4]On my review, in my respectful opinion, I do find that the sentencing magistrate erred in exercising the sentencing discretion by failing to take into account the material considerations of preferring imprisonment only as a last resort, the nature and extent of fine required and the appellant’s capacity to pay. And in the result the learned magistrate imposed a manifestly excessive sentence outside the permissible range in the circumstances of the case.
- [5]The appellant lacks any realistic capacity to meet the order for a substantial fine (in addition to compensation) in terms of both quantum and time to pay. In all the circumstances, an order for compensation set at three times the value of the goods is an appropriate sentence.
- [6]Accordingly, on 6 June 2023, I allowed the appeal, set aside the sentence and orders below, and resentenced the appellant to pay compensation in the amount of $86.40 within 12 months. These are my reasons.
Appeal
- [7]The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).
- [8]Pursuant to s 223 the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave if there are special grounds for giving leave.
- [9]The rehearing requires this Court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.[1] Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings.[2] In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.[3]
- [10]By operation of s 222(2)(c), the appellant can “only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate”, that is, “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”.[4] To succeed, the appellant must establish some legal, factual or discretionary error.[5] Such an error may be specifically identifiable, but an otherwise undiscernible error may be inferred from the imposition of an excessive or inadequate sentence.
- [11]The decisions of House v The King[6] and Kentwell v R[7] distinguish cases of specific error and indiscernible excess or inadequacy. In the case of specific error, the appellate court’s power to intervene is enlivened and it is dutybound to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.[8] By contrast, absent identifiable specific error, the appellate court ought only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.[9]
- [12]Even if the appellate court finds that the sentence was at the extreme end of a permissible range, or has a different opinion about the way in which the discretion should be exercised, these are not sufficient justifications for review; it must be shown that the discretion miscarried resulting in an excessive sentence.[10] In that context, it may be vitiated by an error of principle, or by a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.[11]
Sentence Proceedings
- [13]The sentence proceeded on an agreed statement of facts, backgrounded by the appellant’s criminal history, and the domestic violence protection order.
- [14]The offending was summarised as follows:
“The complainant business is Gulf Caught Seafood in Byrnes Street. At 3.05 pm on the 7th of the 2nd the defendant entered the store. He’s removed a tray of crumbed mackerel from one of the freezers in the store. He’s then left without making any attempt to pay for the property. CCTV footage, defendant was located by staff at 3.35 on Byrnes Street. He agreed to remain with them whilst they called the police. The police attended; arrested the defendant. He was under the influence of liquor. The police told the defendant told police he’d stolen the fish because he wished to eat more expensive food but he did not have the money. … [The] Seafood tray was recovered, how it was deemed contaminated. Restitution $28.80.”
- [15]The appellant’s solicitor shortly highlighted the appellant’s antecedents. At the time of the offending the appellant was a 32-year-old homeless man. The appellant has an extensive criminal history with prior like stealing convictions, as well as other relevant offending, and had a relatively poor compliance with probation and community service orders. The latter was breached by his reoffending before the sentencing magistrate.
- [16]During the course of his sentencing reasons, the learned magistrate highlighted the appellant’s criminal history and part sentences of imprisonment and indicated a custodial sentence. In doing so he accepted the timing of the appellant plea as an expression of remorse. The learned magistrate sentenced the appellant to two months of imprisonment for the offence of stealing to be wholly suspended for nine months, together with a compensation order of $28.80.
Did the learned magistrate give undue weight to the criminal history?
- [17]It is trite law that the appellant’s criminal history is a relevant matter for the proper exercise of the sentencing discretion. In particular, s 9(3)(g) required the Court to have regard to “the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed”. Further, s 9(10) provides:
“In determining the appropriate sentence for an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to –
- the nature of the previous conviction and its relevance to the current offence;
- the time that has elapsed since the conviction.
- [18]Subsection (11) provides:
“Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence.”
- [19]Clearly enough, the provisions reflect the common law as it stood and proclaimed in Veen v The Queen (No. 2)[12] as follows:
“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences; Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Applied by Cooper J (with whom Kneipp and Shepherdson JJ agreed) in R v Aston [No 2] [1991] 1 Qd R 375.”
- [20]His past record of adult offending extends to seven pages of a criminal history and two pages of traffic history, which include nine charges of stealing for which he was variously sentenced to short terms of imprisonment (including time actually served before sentence), community service orders, compensation and restitution. Although like the current offending under appeal, many of those past offences are more akin to the lesser offending of unauthorised dealing with shop goods (colloquially known as “shop lifting”) relating to goods valued at $150 or less. Other relevant offending includes four of entering premises to offend, four of unlawful use of motor vehicle, five of burglary and an attempted burglary, a robbery and an armed robbery with violence in company.
- [21]Of those matters, and in response to the submission on behalf of the appellant that “a fine would be appropriate in this instance” the learned magistrate remarked:
“Look, I’m not too - I’m not really persuaded by that, given that it’s a charge of stealing with a previous conviction, and looking at his history. He has been sentenced to periods of imprisonment for stealing on a couple of occasions in the past, I think, and I’m not sure that he has the ability to pay a fine, given his current circumstances, so I’m thinking more in line with a suspended sentence, in fact.”
- [22]No further submissions were made or invited on that approach. During the sentencing remarks his Honour said:
“You are only 32 years of age I think, and you have an 11-page criminal history which is littered with offences of dishonesty, primarily of course include the stealing but also robbery and entering premises burglary type 5 offences. You have been sentenced to periods of imprisonment in respect to this type of offence, in fact since 2009 it would seem. Whilst you were apprehended shortly after committing the actual offence and the goods were - whilst contaminated - returned, it does seem to me that the sentence 10 could include a custodial sentence.”
- [23]Having regard to his Honour’s remarks and characterisation of the appellant’s past offending and the nature and extent of the offending before him, it seems to me that his Honour allowed the criminal history to overwhelm his sentencing discretion. In that way, in my respectful view, I think the learned magistrate erroneously allowed those matters to guide or affect him and he failed to take into account some material considerations, which resulted in a manifestly excessive sentence outside the permissible range in the circumstances of the case.
Did the learned magistrate apply the principles that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable?
- [24]Sub-sections 9(2)(a)(i) and (ii) of the Penalties and Sentences Act 1992 applied to this case. That is, “a sentence of imprisonment should only be imposed as a last resort” and “a sentence that allows the offender to stay in the community is preferable”.
- [25]Ultimately, the learned magistrate sentenced the appellant to period of two months’ imprisonment, which was ordered to be wholly suspended for an operational period of nine months. The critical issue is whether consideration was given to the first statutory limb in s 9(2)(a)(i) that the offending warranted the imposition of the sentence of imprisonment as the last resort.
- [26]It seems to me that the learned magistrate was so distracted by the appellant’s criminal history that it usurped a proper consideration of the the statutory mandate in s 9(2)(a)(i) to prefer a sentence that allows the appellant to stay in the community. Save for the sole submission of an imposition of a fine, I am unable to discern, either from exchanges during submissions or in the sentencing remarks, any consideration of that statutory requirement.
- [27]In my respectful opinion, the failure by the learned magistrate to explicitly consider s 9(2)(a)(ii) in passing sentence bespeaks an error in the exercise of the sentencing discretion.
- [28]However, in determining whether to impose an order for restitution or compensation the court ought consider the offender’s capacity to meet the order. The court ought avoid the futile exercise of making a hollow order against an impecunious offender, and in doing so, expose the offender to punitive consequences for inevitable breach.[13] Consideration ought be had to an offender’s financial circumstances and any burden an order may have, any loss or destruction of, or damage caused to, a person’s property because of the offence, and any value of any benefit received from the offence.
- [29]Here it is properly conceded that the appellant lacks any realistic capacity to meet the order for fine in terms of both quantum and time to pay. Further it seems to me that the better approach was to consider compensation for the victim business as distinct from restitution for a likely insurable loss. Here the business likely suffered loss and inconvenience, including expenditure of insurance claim costs and security. Of course, any insurer has the right of subrogation to assume the victim’s legal right to collect a debt or damages from the appellant should it wish to do so.
- [30]For these reasons, in my respectful view, the sentencing magistrate erred in exercising the sentencing discretion by failing to take into account the material considerations of preferring imprisonment only as a last resort, the nature and extent of fine required and the appellant’s capacity to pay. And in the result the learned magistrate imposed a manifestly excessive sentence outside the permissible range in the circumstances of the case.
Resentence
- [31]Having reached that conclusion, it is incumbent on this Court to re-exercise the sentencing discretion.
- [32]The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act 1992 (Qld) is to punish an offender to an extent or in a way that is just in all of the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, make it clear that the community denounces the conduct in the offending and to protect the community. The relevant factors to which the court must have regard are in the subsequent subsections of s 9 of the Penalties and Sentences Act 1992 (Qld).
- [33]It is trite to say that the appropriate sentence will depend on the particular circumstances of the offending and the degree of culpability of the offender. The nature of the penalty, in the form of a fine, provides little by way of rehabilitation, particularly in circumstances where its payment is likely to be unattainable and, therefore, there would be little motivation to do so. Due regard may be had to the factors of general and, as appropriate here, personal deterrence. For this offending, it is relevant that imprisonment should only be imposed as a last resort and a sentence that allows the appellant to stay in the community is preferable.
- [34]The gravity of this offending can also be gleaned from the very low end of the range in nature and quantum for stealing. The minimum penalty three years’ imprisonment, due to the jurisdictional ceiling. However, it is not clear why the charge of stealing was preferred. The offending is plainly more akin to the lesser offending of unauthorised dealing with shop goods (colloquially known as “shop lifting”) relating to goods valued at $150 or less. For such offending s 9 of the Regulatory Offences Act 1985 provides that:
- The court convicting an offender of an offence defined in this Act may also order the offender to pay by way of fine an amount not exceeding the costs of bringing the charge, including the costs of all reasonable investigations relating thereto, the costs of court and the cost of compensating any person injured thereby.
- The court may make such order as it deems just for the payment of that part of the fine representing compensation
- [35]The appellant is an indigenous man. He was 32 years old at the time of the offending and was 32 when originally sentenced. He endured a very challenging childhood without stable parenting or housing. He grew up under the care of child safety from the age of eight to 18 and moved from various houses in different towns. He was ejected from home about a month before the sentence and had been sleeping behind the offices. His offending was motivated by hunger.
- [36]He completed most of his education while he was in youth detention, and left school at about Grade 8.
- [37]He has done farm work and has partially completed his second-year apprenticeship as a chef, which he aspires to finish. He is trying to get his life back in order and get to Cairns where he feels he would be able to get further work and accommodation. He was receiving JobSeeker allowance of about $500 a fortnight at the time of sentence. He is now on remand for further offending.
- [38]He has offered to pay restitution and was willing to complete an existing community service order. The learned magistrate did impose an order to pay compensation to the complainant for the value of the stolen goods, being $28.80.
- [39]The Court’s power to order compensation is found in s 35 of the Act:
35 Order for restitution or compensation
- The court may order that the offender—
…
- pay compensation to a person for any loss or destruction of, damage caused to, or unlawful interference with, property—
- in relation to which the offence was committed; or
- in the course of, or in connection with, the commission of the offence; and
….
- An order may be made under subsection (1) in addition to any other sentence to which the offender is liable.
- [40]The purpose of compensation is to provide financial compensation for damages resulting from the offender’s actions. In R v Stieler [1983] 2 Qd R 573 it was held that compensation is to be assessed on the same basis as damages are assessed in a civil case, the quantum of the order made being determined by considering what is appropriate in all the circumstances for the injury suffered.
- [41]It seems to me that the better approach was to consider compensation for the victim business. Here the business likely suffered loss profits, costs of goods, sale and inconvenience, which I assess in the order of three time the value of the goods.
- [42]However, in determining whether to impose an order for restitution or compensation the court ought consider the offender’s capacity to meet the order. The court ought avoid the futile exercise of making a hollow order against an impecunious offender, and in doing so, expose the offender to punitive consequences for inevitable breach.[14] Consideration ought be had to an offender’s financial circumstances and any burden an order may have, any loss or destruction of, or damage caused to, a person’s property because of the offence, and any value of any benefit received from the offence. The appellant received no benefit from the offending having returned the goods albeit spoiled. He is in receipt of the meagre JobSeeker allowance, although desirous of resuming his chef apprenticeship, and has no other means, and is presently on remand for further matters.
- [43]The appellant lacks any realistic capacity to meet the order for a substantial fine (in addition to compensation) in terms of both quantum and time to pay. In all the circumstances, an order for compensation set at three times the value of the goods.
Order
- [44]For these reasons, I make the following orders:
- Appeal allowed.
- The sentence and orders of the Magistrates Court made in Mareeba on 8 February 2023 are set aside, and substituted with the following:
- The defendant will pay compensation in the sum of $86.40 to be paid within 12 months to the Registrar of the District Court at Cairns by transmission by the Registrar to the complainant.
- I direct the Registrar to refer payment arrangements to the State Penalties and Enforcement Registry.
Judge DP Morzone KC
Footnotes
[1] Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255 at [47].
[2] White v Commissioner of Police [2014] QCA 12 at [5]-[8].
[3] White v Commissioner of Police [2014] QCA 12 at [5]-[8]; Forrest v Commissioner of Police [2017] QCA 132, 5 & 6; McDonald v Queensland Police Service [2017] QCA 255 at [47].
[4] R v Morse (1979) 23 SASR 98; R v Lomass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v The Queen (1984) 154 CLR 606.
[5] Allesch v Maunz (2000) 203 CLR 172 at [22]–[23] followed in Teelow v Commissioner of Police [2009] QCA 84 at [4]; White v Commissioner of Police [2014] QCA 121, [8], McDonald v Queensland Police Service [2017] QCA 255 at [47]; contrast Forrest v Commissioner of Police [2017] QCA 132 at 5.
[6] House v. The King (1936) 55 CLR 499 at 504 and 505.
[7] Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111 at [130] per Hayne J (minority).
[8] Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111 at [130] per Hayne J (minority).
[9] House v The King (1936) 55 CLR 499, 504 and 505, Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519, and Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111, [130] per Hayne J (minority). See also Dinsdale v The Queen (2000) 202 CLR 321 at 325 per Gleeson CJ and Hayne J, also applied by Chesterman J in R v Perini; ex parte A-G (Qld) (No 2) [2011] QCA 384 at [54].
[10] Lovell v Lovell (1950) 81 CLR 513 at 519 per Latham CJ, 533-534 per Kitto J; see also Gronow v Gronow (1979) 144 CLR at 519, 525, 534 and 537.
[11] House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519, (1936) 55 CLR 499, 504 and 505.
[12] Veen v The Queen (No. 2) (1988) 164 CLR 465 at [14]
[13] Cf. R v Matauaina [2011] QCA 344.
[14] Cf. R v Matauaina [2011] QCA 344.