LGJ v Queensland Police Service
[2023] QDC 119
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- LGJ v Queensland Police Service[2023] QDC 119
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LGJ v Queensland Police Service[2023] QDC 119
LGJ v Queensland Police Service[2023] QDC 119
DISTRICT COURT OF QUEENSLAND
CITATION: | LGJ v Queensland Police Service [2023] QDC 119 |
PARTIES: | LGJ (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO: | APPEAL NO: 4/23 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Cairns |
DELIVERED ON: | 28 March 2023 |
DELIVERED AT: | Thursday Island |
HEARING DATE: | 28 March 2023 |
JUDGE: | Morzone KC DCJ |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – ERROR OF LAW – review pursuant to s 222 Justices Act 1886 – conviction – [offence] – mode of hearing of appeal – whether sentence manifestly excessive – totality in sentencing – parity – criminal history. |
LEGISLATION: | Justices Act 1886 (Qld) ss 222, 223(1) & 227 Penalties and Sentences Act 1992 (Qld) ss 9(1), 13, 103(1), State Penalties Enforcement Act 1999 (Qld) ss 34, 41 38 & 119. |
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) CLR 144. 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 Harris [2008] QCA 141. 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. R v Safi [2015] QCA 13. R v Stieler [1983] 2 Qd R 573. Teelow v Commissioner of Police [2009] QCA 84. Warren v Coombes (1979) 142 CLR 531. White v Commissioner of Police [2014] QCA 12. |
COUNSEL: | B Billic of counsel for the Appellant C Peters (Crown Prosecutor) for the Respondent |
SOLICITORS: | Legal Aid Queensland for the Appellant. The Office of Director of Public Prosecutions for the Respondent. |
Summary
- [1]On 31 January 2023 the appellant pleaded guilty to one charge of wilful damage to petrol bowsers and was sentenced in the Magistrates Court on Thursday Island a six-month good behaviour bond with a recognisance of $300, and a $6,705 restitution order effective immediately consequent on the referral to the State Penalties Enforcement Registry.
- [2]The appellant now appeals his sentence on the grounds that it is manifestly excessive because:
- (a)The learned magistrate did not expressly take account of the plea of guilty according to s 13 of the Penalties and Sentences Act 1992 (Qld); and
- (b)The learned magistrate did not have proper regard to the appellant’s capacity to pay restitution.
- (a)
- [3]The appeal is not opposed. The respondent argues that the restitution order could be reduced to take account of the appellant’s capacity to pay.
- [4]On my review, I’m bound to conclude that the learned magistrate erred by failing to explicitly consider the appellant’s plea of guilty, and set restitution beyond the appellant’s capacity to pay, Therefore there is a miscarriage in the exercise of the sentencing discretion, which has resulted in an excessive sentence.
- [5]Accordingly, I allow the appeal, and set aside the sentence below and resentence the appellant to community service of 40 hours with no conviction recorded.
Appeal
- [6]The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).
- [7]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.
- [8]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 at first instance, and attach a good deal of weight to the magistrate’s view,[3] which is less relevant here.
- [9]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.
- [10]
- [11]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]
Did the learned magistrate fail to take account the plea of guilty according to s 13 of the Penalties and Sentences Act 1992 (Qld)?
- [13]Section 13 of the Act provides that in imposing a sentence on an offender who has pleaded guilty, a Court must take that plea into account and may reduce the sentence that it would have imposed had the offender not pleaded guilty. Sub-section 13(3) of the Act states: “When imposing the sentence, the Court must state in open Court that it took account of the guilty plea in determining the sentence imposed”.
- [14]The sentencing remarks of the learned magistrate do not make any reference to the appellant having entered a plea of guilty. As stated in R v Woods [2004] QCA 204 at [9]:
“the necessity to take a guilty plea into account and state that it has been done and how it has been done is an essential part of the transparency of the sentencing process”.
- [15]Further, as was said by Daubney J in R v Harris [2008] QCA 141 at page 4:
“Section 13 is a significant element in the mechanism of achieving efficient administration of criminal justice in this State. It self-evidently provides for an accused to receive appropriate and tangible recognition in the sentencing process for the savings in time and cost to the Courts, the prosecuting authorities, and to publicly funded or community-based defence organisations which result from the entering of a plea of guilty or at least to be expressly told why such recognition is not being given in a particular case…”.
- [16]It is accepted that non-compliance with s 13(3) of the Act may be inconsequential in circumstances where account of the guilty plea may be properly inferred,[12] for example, by the sentencing judge’s observation that the applicant had pleaded guilty; that all of the comparable sentences to which the sentencing judge was referred, and which the sentencing judge cited, were imposed upon pleas of guilty; and that the sentence imposed by the sentencing judge was within the range of sentences suggested by those decisions.
- [17]In this case, whilst the learned magistrate arraigned and apparently accepted the appellant’s plea of guilty, there was no explicit reference to the plea in mitigation or at all as an indication of his contrition or remorse, and there was no reference to any comparative authority.
- [18]A failure to explicitly consider the appellant’s plea in accordance with s 13, in my respectful view, bespeaks an error in the exercise of the sentencing discretion. However, it is difficult to discern how that manifests in the sentence imposed, but given my conclusion for the next ground of appeal, that does not much matter in this case.
Did the learned magistrate err by not having sufficient regard to the appellant’s capacity to pay restitution?
- [19]The sentence proceeded on an agreed statement of facts founded in the QP9 document before the court. On 23 October 2022 the 23-year-old appellant caused damage to the display panels of two petrol bowsers by throwing a coconut and striking with his hand. The appellant was upset at the time because of an argument with his partner. The appellant was intoxicated; although not permissibly mitigating, his state at least explains his otherwise uncharacteristic behaviour. He apologised to the Manager of the petrol station prior to and since sentencing. It is also noted that he cooperated by making full admissions to police at an early stage.
- [20]The prosecutor at sentence provided the court with a quotation to the value of $6,705 which set out the cost for the complainant company to repair the damage to the petrol bowsers. The quotation included travel, accommodation, and incidentals. It is also evident from the QP9 that it was an insurable loss.
- [21]The appellant’s solicitor informed the sentencing court that the appellant “works as a house parent ... he has been in that employment for about half a year and he ... earns around $800 to $900 a week”. The solicitor asserted that “Mr L tells me realistically he likely cannot pay that restitution ... he could offer to pay the repairs for the parts”. The solicitor submitted that if restitution is required it could equate to the cost of replacement parts with 12 months to pay. The solicitor intimated that a restitution order could be coupled with a community service order.
- [22]The learned Magistrate ordered that the appellant pay $6,705 in restitution and referred it to the State Penalties Enforcement Registry forthwith. As a result, the Registrar was immediately entitled to issue an enforcement order against the appellant for the whole of the unpaid amount.[13] Under s 38 of the State Penalties Enforcement Act 1999 (Qld), the appellant would have then been allowed a further 28 days within which to pay the entirety of the restitution ordered or to enter into an instalment payment plan with that registry.[14] If the appellant failed to pay the amount owing or enter into a payment plan, this could result in debt-recovery measures, including seizure of property or imprisonment.[15]
- [23]The appellant asserts that his solicitor erred in representing his earning capacity, and further contends the amount and time order were excessive and futile for want of his capacity to pay. The appellant now applies to correct this by way of fresh evidence in the appeal. “Special grounds” are required before fresh, additional or substituted evidence (new evidence) may be admitted on appeal pursuant to s 223(2) Justices Act 1886. I allowed the evidence to be adduced in the appeal. It seems to me that the discretion ought be invoked because despite being available, it obviously has an important influence on the result of the case, even though not decisive and it is apparently credible though not incontrovertible.
- [24]He deposes that in mid-February 2022, he was employed as a casual house parent at a student hostel on Thursday Island where he initially earned up to $900 per fortnight. But his hours were reduced, which resulted in a commensurate loss of income. He has changed his employment about a month ago and now works as a part time on call casual removalist earning about $300 a fortnight net of tax.
- [25]The court’s power to order restitution or compensation is found in s 35 of the Act:
“35 Order for restitution or compensation
- (1)The court may order that the offender—
- (a)make restitution of property—
- (i)in relation to which the offence was committed; or
- (ii)taken in the course of, or in connection with, the commission of the offence; and
- (b)pay compensation to a person for any loss or destruction of, damage caused to, or unlawful interference with, property—
- (i)in relation to which the offence was committed; or
- (ii)in the course of, or in connection with, the commission of the offence; and
- (c)pay compensation for personal injury suffered by a person (whether or not the person is the victim against whom the offence was committed) because of the commission of the offence.
- (2)An order may be made under subsection (1) in addition to any other sentence to which the offender is liable.”
- [26]Orders for restitution and compensation both require an offender to pay a monetary amount to the victim, but they have different meanings and purposes. The purpose of restitution is to restore the victim to the pre-offence state to make the victim "whole" again by compensating for the actual losses they suffered as a result of the offender's actions. For example, if someone steals from another person, the court may order them to pay restitution to the victim to cover the value of what was stolen. On the other hand, 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.
- [27]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.[16] 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.
- [28]Here it is properly conceded that the appellant lacks any realistic capacity to meet the order for restitution 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 business’s legal right to collect a debt or damages from the appellant should it wish to do so.
- [29]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 the nature and extent of compensation 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
- [30]Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion.
- [31]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).
- [32]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, the same can be said for an order for restitution or compensation. The gravity of this offending can also be gleaned by the relative minimum and maximum penalties, with due regard to the factors of general and as appropriate, 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.
- [33]The appellant is an indigenous man. He was 23 years old at the time of the offending and when originally sentenced. I have had regard to the conduct of the appellant in the offending, as well as the degree of cooperation constituting the offence. He entered an early plea of guilty, was apologetic and fully co-operated with police in th the investigation by candid admissions. That co-operation continued throughout the court processes and even on this appeal.
- [34]I am satisfied that this is an appropriate case, and the appellant is a suitable person to perform community service instead of a good behaviour bond and an order for restitution. Subject to the appellant’s agreement, I propose to make a community service order that he perform 40 hours community service within 12 months.
- [35]In reaching the hours and time for completion of the proposed community service, I take into account that the appellant has already completed about two months of good behaviour in accordance with the sentence below. It is also common ground, about which I agree, that no conviction should be recorded having regard to the nature and circumstances of the offending, the appellant’s age, good character without any previous offending, and the impact that a conviction will have on his social wellbeing and employability in the limited market in the small island community in which he continues to live.
Orders
- [36]For these reasons, I make the following orders:
- 1.Appeal allowed.
- 2.The sentence and orders of the Magistrates Court made on Thursday Island on 31 January 2023 are set aside, and substituted with the following sentence
- a.On Charge 1 of Wilful Damage - it is ordered (with the appellant’s understanding and agreement having been obtained) that he will perform unpaid community service for 40 hours within 12 months.
- b.The appellant must comply with the requirements set out in s 103(1) of the Penalties and Sentences Act 1992.
- c.The appellant must report to an authorised Corrective Services Officer at Thursday Island by 4 pm on 30 March 2023.
- d.No conviction is recorded.
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] R v Safi [2015] QCA 13.
[13] State Penalties Enforcement Act 1999 (Qld), s 34(4).
[14] State Penalties Enforcement Act 1999 (Qld), s 38(2), s 41(1).
[15] State Penalties Enforcement Act 1999 (Qld), s 119.
[16] Cf. R v Matauaina [2011] QCA 344.