Liedke v Commissioner of Police
[2023] QDC 13
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- Liedke v Commissioner of Police[2023] QDC 13
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Liedke v Commissioner of Police[2023] QDC 13
Liedke v Commissioner of Police[2023] QDC 13
DISTRICT COURT OF QUEENSLAND
CITATION: | Liedke v Commissioner of Police [2023] QDC 13 |
PARTIES: | DANIEL JOHN LIEDKE (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO: | 2858 of 2022 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to section 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court of Queensland |
DELIVERED ON: | 10 February 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 February 2023 |
JUDGE: | Loury KC DCJ |
ORDER: |
|
LEGISLATION: | Corrective Services Act 2006 (Qld) s 209, s 211 |
SOLICITORS: | Legal Aid Queensland for the appellant Office of the Director of Public Prosecutions for the respondent |
- Introduction
- [1]The appellant was convicted and sentenced on 51 charges on 21 July 2022. On 23 November 2022, the appellant filed a Notice of Appeal and Application for an extension of time within which to appeal. The Notice of Application for an extension of time indicates that his solicitors (not his current representatives) attempted to reopen his sentence on 5 October 2022, however that application was refused on the basis it appears, that the learned Magistrate did not consider that he had a power to re-open the sentence. The respondent does not oppose the granting of an extension of time.
- [2]The ground of appeal is that the learned Magistrate erred in advertently imposing a sentence which resulted in the automatic cancellation of the appellant’s previous parole order.
- Circumstances of the offences
- [3]For the purposes of this appeal, it is sufficient to summarise the appellant’s offending in the following way.
Date | Offence | Brief summary | Penalty (imprisonment) |
30/8/20 | Stealing | Stole tools valued at $99 from Bunnings | 6 months |
8/10/20 | Trespass | Trespassed in the yard of a residential property | Convicted but not further punished (CNFP) |
18/1/21 | Stealing | Stole meat and groceries from an IGA | 6 months |
3/3/21 | Stealing | Stole an invertor from a marine store | 6 months |
14/3/21 | Stealing | Stole meat and groceries from Coles | 6 months |
24/3/21 | Breach bail condition | Failed to report to police | CNFP |
7/4/21 | Breach bail condition | Failed to report to police | CNFP |
16/4/21 | Receiving | Received a stolen wallet and contents | 4 months |
16/4/21 | Fraud x 2 | Used stolen bank card to buy cigarettes and other items in 2 transactions | 2 months on each |
17/4/21 and 18/4/21 | Breach bail condition | Failed to report to police on 2 days | CNFP on each charge |
23/4/21 | Stealing | Stole an inverter worth $150 from a marine store | 6 months |
21/5/21 | Stealing | Stole a package containing two vacuum cleaner batteries from a letterbox | 6 months |
28/5/21 | Stealing | Stole meat and groceries from Woolworths | 6 months |
28/5/21 | Fail to appear | CNFP | |
2/6/21 | Receiving | Received a lost bank card | 4 months |
2/6/21 | Fraud | Fraudulently used the bank card to purchase cigarettes | 2 months |
2/6/21 | Fraud | Fraudulently used the bank card to purchase groceries worth $330 at Woolworths across 6 transactions | 2 months |
8/6/21 | Stealing | Stole softdrink from Woolworths | 6 months |
21/6/21 | Break and enterpremises and steal | Entered a carpark through a closed fire exit door and stole a bicycle worth $1200 from a storage area | 2 years suspended after serving 6 months imprisonment for 3 years |
21/6/21 | Break and enter premises and steal | In the same carpark stole electronic items and shoes valued at $2000 from a secured storage area | 2 years suspended after serving 6 months imprisonment for 3 years |
21/6/21 | Enter premises with intent | Entered a neighbouring complex carpark and searched through secured property. | 2 years suspended after serving 6 months imprisonment for 3 years |
21/6/21 | Enter premises with intent | Entered a carpark and searched through secured property. | 2 years suspended after serving 6 months imprisonment for 3 years |
14/7/21 | Fail to appear | CNFP | |
17/7/21 | Enter premises and steal | Entered a parked car and stole a bank card | 2 years suspended after serving 6 months imprisonment for 3 years |
17/7/21 | Fraud | Used stole bank card to fraudulently purchase a grinder from Bunnings | 2 months |
17/7/21 | Fraud | Used stolen bank card to fraudulently purchase a boardgame | 2 months |
17/7/21 | Fraud | Used stolen bank card to fraudulently purchase tobacco products | 2 months |
16/8/21 | Enter premises and steal | Entered a car and stole a wallet | 2 years suspended after serving 6 months imprisonment for 3 years |
16/8/21 | Fraud | Used a stolen bankcard from the wallet to fraudulently buy cigarettes and giftcards valued at more than $300 | 2 months |
16/8/21 | Fraud | Used the stolen bankcard to fraudulently purchase a mobile phone | 2 months |
16/8/21 | Fraud | Used the stolen bankcard to fraudulently purchase a watch | 2 months |
19/8/21 | Attempted fraud | Attempted to return the watch in return for cash | 2 months |
17/9/21 | Fail to appear | CNFP | |
23/9/21 | Stealing | Stole a bicycle valued at $3000 from a carpark | 6 months |
23/9/21 | Fraud | Pawned the stolen bicycle for $200 | 2 months |
4/10/21 | Breach bail condition | Failed to report to police | CNFP |
9/10/21 | Stealing | Stole two vacuum cleaners from Bunnings | 6 months |
9/10/21 | Stealing | Stole a security camera and speaker from Videopro | 6 months |
14/10/21 | Stealing | Stole a statue from a gaming store | 6 months |
17/10/21 | Stealing | Stole softdrink and a tablet from Officeworks | 6 months |
18/10/21 | Fail to appear | CNFP | |
21/10/21 | Drive while relevant drug present in blood | Tetrahydrocannibinol; methylamphetamine; amphetamine and pregalbin | CNFP, 3 month licence disqualification |
25/11/21 | Fail to appear | CNFP | |
19/4/22 | Stealing | Stole perfumes from a chemist | 6 months |
16/5/22 | Receiving | Received a stolen electric scooter | 4 months |
22/5/22 | Stealing | Stole a vacuum cleaner from a retailer | 6 months |
22/5/22 | Stealing | Stole earbuds, SD cards and charger valued at around $300 | 6 months |
22/5/22 | Break and enter premises and steal | Entered the reception office area of a residential building through a closed window and stole the master keys for the premises which he used to enter the secured garage | 2 years suspended after serving 6 months imprisonment for 3 years |
22/5/22 | Unlawful possession of suspected stolen property | Found in possession of a new pair of Nike Airforce 1’s | CNFP |
- The learned Magistrate’s approach
- [4]The learned Magistrate took into account in determining the appropriate sentence that the appellant had spent two months in pre-sentence custody. He did not declare this period as time served, however took it into account in determining to suspend the sentences after the appellant had served a further six months in custody.
- [5]The offences shaded in the table at paragraph [3] were committed whilst the appellant was on parole. The respondent concedes that the learned Magistrate erred in failing to take into account a relevant consideration, being that a conviction for those offences shaded in the table, together with an order that he serve actual imprisonmentfor each of them, would automatically result in the cancellation of the appellant’s previously ordered parole.[1]
- Consideration
- [6]The appellant was 45 years of age at sentence. He has an extensive criminal history for property offending. His history demonstrates a long-standing problem with substance abuse. He has been sentenced to imprisonment on many occasions. Relevant to the sentence that the learned Magistrate imposed, were sentences imposed on 12 November 2019 in the Brisbane Magistrates Court. The appellant was sentenced to a head sentence of two years imprisonment for 55 offences including 11 offences of entering into premises and stealing property together with other property offences. He was released on court ordered parole on 20 March 2019 after serving approximately eight months in actual custody.
- [7]The sentences imposed by the learned Magistrate resulted in the automatic cancellation of the appellant’s parole from 30 August 2020. He then became liable to serve a further 314 days of that earlier sentence with his full-time discharge date calculated as 30 May 2023. The appellant has been considered eligible for parole from 23 January 2023. It is accepted by the respondent that it was the intention of the learned Magistrate to fashion a sentence which resulted in certainty of release of the appellant on 23 January 2023.
- [8]The intention of the learned Magistrate can be achieved if the sentences imposed for the offences shaded in the table at paragraph [3] are each wholly suspended for an operational period of two years. It is further submitted that for the remaining sentences, the appellant ought to be released on parole. By fashioning a sentence in this way, the appellant can be released on court ordered parole on the date of the publishing of this judgement.
- Orders
- [9]Extend time within which to appeal to 23 November 2022.
- [10]The appeal is allowed to the following extent:
- (a)For each of the following offences, the sentences imposed in Beenleigh Magistrates Court are wholly suspended for an operational period of two years:
- i.Eight offences of stealing on:
- 30 August 2020, 18 January 2021, 3 March 2021, 14 March 2021, 23 April 2021, 21 May 2021, 28 May 2021 and 8 June 2021;
- ii.Two offences of receiving tainted property on:
- 16 April 2021 and 2 June 2021;
- iii.Four offences of fraud on:
- 16 April 2021 (x 2) and 2 June 2021 (x 2).
- (b)For each of the two offences of enter premises and commit indictable offence by break committed on 21 June 2021, and the two offences of enter premises with intent committed on 21 June 2021, the sentences imposed are set aside and in lieu, the appellant is sentenced to two years imprisonment wholly suspended for an operational period of two years.
- (c)For the offences of enter premises and commit indictable offence committed on 17 July 2021, 16 August 2021 and 22 May 2022, set aside the sentences imposed in the Beenleigh Magistrates Court and substitute sentences of two years imprisonment on each to be served concurrently with all other sentences imposed;
- (d)Order that the appellant be released on parole on 10 February 2023.
Footnotes
[1]Corrective Services Act 2006 (Qld) s 209, s 211.