MRH v Queensland Police Service
[2023] QDC 230
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- Unreported Judgment
- MRH v Queensland Police Service[2023] QDC 230
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MRH v Queensland Police Service[2023] QDC 230
MRH v Queensland Police Service[2023] QDC 230
DISTRICT COURT OF QUEENSLAND
CITATION: | MRH v Queensland Police Service [2023] QDC 230 |
PARTIES: | MRH (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 1559/23 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Holland Park Magistrates Court |
DELIVERED ON: | 26 October 2023 (delivered ex tempore) |
DELIVERED AT: | Brisbane District Court |
HEARING DATE: | 26 October 2023 |
JUDGES: | Dearden DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – where the appellant pleaded guilty to three counts of stealing – where the appellant was sentenced to nine months imprisonment with immediate parole – where the appellant has an extensive but low level criminal history – whether the sentence of nine months imprisonment was manifestly excessive |
COUNSEL: | H Farr for the appellant S Poplauski for the respondent |
SOLICITORS: | Legal Aid Queensland for the applicant Office of the Director of Public Prosecutions for the respondent |
- Introduction
- The appellant pleaded guilty in the Holland Park Magistrates Court on 18 May 2023 to the following offences and was sentenced as follows:
- 1.Stealing (24 July 2022) - two months’ imprisonment;
- 2.Stealing (5 August 2022) - nine months’ imprisonment;
- 3.Stealing (26 January 2023) - one month imprisonment.
- The sentences were ordered to be served concurrently and parole was set for the day of sentence (18 May 2023).
- Grounds of appeal
- The sole ground of appeal is as follows:
The sentence on charge two namely nine months’ imprisonment is manifestly excessive in all the circumstances.
- The law - appeals
- I repeat and rely upon my exposition of the law in respect of sentence appeals in this court as set out in Jenkins v Commissioner of Police [2021] QDC 289.
- As House v The King [1936] 55 CLR 499, 505 summarises:
If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
- The gender-specific nature of that quote, of course, reflects the fact that there were only male judges at the time.
- In R v Morse [1979] 23 SASR 98, King CJ stated:
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime; the standards of sentencing customarily observed with respect to the crime; the place which the criminal conduct occupies in the scale of seriousness of crimes of that type; and the personal circumstances of the offender.
Circumstances of the offending
- Mr Farr of counsel, who appears pro bono on this appeal, has helpfully set out a summary of the circumstances as follows:-[1]
- 9.The offences for which the appellant was sentenced were committed on three separate occasions between July 2022 and January 2023.
- 10.The stealing offence on 5 August 2022 was the second charge in a group of two offences (the first being the stealing on 24 July 2022). It involved the theft of two sets of sunglasses from a display cabinet in a Sunglasses Hut in Garden City, Mount Gravatt. The cumulative value of the stolen sunglasses was $1,200.00.
- 11.On 6 January 2023, police took up with the appellant, at which time she made admissions to the offending.
- 12.The earlier and later offences of stealing each involved the theft of grocery items from Woolworths in Logan Central and Mount Gravatt, respectively. Admissions were also made to police with respect to those offences.
- 13.Prior to the sentence proceedings on 18 May 2023, the appellant had entered pleas of guilty in relation to each offence. Relevantly, however, in March 2023, a warrant was issued for the appellant’s arrest following her non-attendance at a scheduled appearance at the Holland Park Magistrates Court. In his sentencing remarks, the presiding magistrate held that this earlier non-attendance was attributable to the appellant’s attendance at her mother’s funeral and not because of an attempt to flee the jurisdiction or unreasonably delay the proceedings.
- 14.Her pleas of guilty were therefore treated as timely pleas.
- The appellant has criminal history, which is clearly relevant, and that too has been helpfully summarised in the appellant’s outline:-[2]
- 15.The appellant’s Queensland criminal history, which was tendered at her sentence, reveals a demonstrable pattern of similar offending. As at the date of the sentence, her history contained five prior entries for offences of unauthorised dealing with shop goods (maximum $150) and 13 prior entries for stealing. Notwithstanding this, the previous sentences imposed generally ranged from modest fines to short periods of imprisonment, the longest being a period of two months, with no orders requiring the appellant to serve time in actual custody.
- 16.Relevantly, the appellant breached two previous suspended sentences, resulting in those sentences being invoked in full and the appellant being placed on parole.
- 17.Notwithstanding this, the appellant was not subject to any pre-existing sentences at the time of the commission of the present offences. Moreover, a period exceeding 10 months had elapsed between the commission of the final offence on the appellant’s criminal history and the stealing offence committed on 24 July 2022.
- The appellant’s personal circumstances were placed before the learned magistrate in some detail, and the appellant’s outline again helpfully summarises that background as follows:-[3]
- 18.The appellant is a 42 year old indigenous woman who was 42 at the time of the offending. She is a single mother of two adult children - a daughter aged 20 and a son aged 18. She acts as a carer for her son, who suffers attention deficit hyperactivity disorder (“ADHD”) and autism spectrum disorder (“ASD”). She has no family support. At the time of the offending, the appellant was unemployed, relied on the Queensland Department of Housing for accommodation and living a destitute lifestyle.
- 19.Relevantly, the appellant had a troubled upbringing and had experienced historical and adult sexual abuse and domestic and family violence. She suffers various associated psychological ailments, including, inter alia, post-traumatic stress disorder (“PTSD”), severe depression and anxiety, for which she is heavily medicated and receives counselling.
- 20.At sentence, a dated victim impact statement prepared by the appellant for proceedings relating to the historical abuse she suffered was tendered for the purpose of outlining pertinent personal circumstances to the court.
- 21.A bundle of material was also tendered on the appellant’s behalf, which included, inter alia, records of her longstanding engagement with the Aboriginal and Torres Strait Islander Community Health Service (“ATSICHS”) and a letter confirming her history of engagement with the Murrigunyah Family and Cultural Healing Centre.
- 22.Importantly, that letter, which was prepared by Ms Kristy Edwards, sexual assault counsellor, on 20 February 2023, outlined that the appellant had recently re-engaged in regular face-to-face counselling after ‘many months’ without support. Ms Edwards also relayed that the appellant reported having suffered exacerbated difficulties throughout those months, which resulted in ‘some poor decision-making.’
- The appellant then summarises (and where relevant comments upon) the learned magistrate’s sentencing remarks as follows:-[4]
- 23.The presiding magistrate considered that:
- (a)the appellant was a recidivist offender;
- (b)the appellant’s offending represented the continuation of a longstanding and disgraceful pattern of behaviour of similar offending;
- (c)the appellant’s timely plea of guilty is much closer to a ‘full early plea’ and was to be applied as such;
- (d)the appellant’s prospects of rehabilitation were ‘incredibly modest, if at all’;
- (e)the steps taken by the appellant to deal with her personal choices have not appeared to have had the effect of reducing her offending behaviours;
- (f)the appellant’s theft of the two pairs of sunglasses was cynical offending; and
- (g)the appellant’s personal circumstances and childhood trauma were relevant to sentence, but, despite evidence suggesting a connection between that trauma and the appellant’s ongoing mental health difficulties, it was difficult to accept that correlation given that the appellant’s pattern of offending had not changed over many years.
- 24.In the sentencing remarks, the magistrate considered that although a period of imprisonment was a sentence of last resort, such an order was appropriate in this matter. In keeping with the principle that a sentence allowing an offender to remain in the community is preferable, an immediate parole release date was imposed.
- 25.Importantly, in setting a head sentence of nine months’ imprisonment, the magistrate did not refer to the defence solicitor’s contention that an order in the range of two months was appropriate, which is of particular significance given the magistrate appeared to place no reliance on the relevance of the appellant’s disadvantaged background, her recent participation in counselling, or her full cooperation with investigating police.
- In Jones v Queensland Police Service [2022] QDC 281, [11] - [12], Morzone KC DCJ helpfully summarises the approach of an appellant, in respect of a matter such as this:
- 11.This court ought not interfere with a sentence unless it is manifestly excessive, that is, “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”.
- 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 a manifestly excessive sentence. In that context, it may be vitiated by an error of principle, if there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. [citations omitted]
- Further, as Morzone KC DCJ identifies at [15] in the same judgment:
- 15.……Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed. By contrast, an error may not be discernible; but the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
Submissions on appeal
- The appellant submits:[5]
- Personal deterrence should the primary consideration in sentencing the appellant;
- The previous sentences imposed in the appellant’s criminal history reflect the low level of past offending - in that context, the repetition of offending (as opposed to the objective seriousness of charge 2) has resulted in a sentence which is disproportionate;
- The learned magistrate appears, in submissions at least, not to accept the relevance of the appellant’s disadvantaged background, given her ongoing offending;
- The learned magistrate has erred in assessing the appellant’s prospects of rehabilitation as being “incredibly modest, if at all”, given the gap of 10 months between the appellant’s previous offending and the first of the current group of offences; the lack of offending in the 4 months from the last of those offences and the sentence date; the reference demonstrate insight into the offending; and the commitment to reengaging in face-to-face counselling.
- The respondent submits:[6]
- The learned magistrate took into account the relative seriousness of the offences and acknowledged the early plea;
- The learned magistrate was justified in concluding the appellant was a recidivist offender, with 21 offences over 15 court appearances for stealing or unauthorised dealing with shop goods;
- The learned magistrate did take into account the appellant’s steps in rehabilitation, but noted her ongoing offending, and gave that greater weight;
- The learned magistrate did acknowledge the appellant’s disadvantaged background, but was entitled to give that less weight in the context of the continued offending;
- The learned magistrate identified and concluded that prison was a sentence of last resort; and
- In that context, a sentence of 9 months (in respect of charge 2) was not manifestly excessive.
Discussion
- As is often the case in matters before the Magistrates Court, neither the prosecutor nor the defence counsel assisted the learned magistrate with comparative decisions. The defence counsel, appropriately in my view, conceded that imprisonment was within range in the context of this offending by the appellant.
- In that context, the issue then before this court is whether the 9 months sentence imposed on charge 2 is “manifestly excessive” in the context of the facts of that offence (the theft of two sunglasses worth $1200), when compared with charge 1 (the theft of $233.90 of groceries) and charge 3 ($93.20 of groceries).
- It should be noted that all offences have occurred in the context of an appellant with challenging personal circumstances, a background of significant trauma, but with some relatively substantial periods both before and after the current offending period where no offences had occurred, and in the context of her commitment to further counselling. Relevantly, the criminal history, although concerning, is comprised substantially of low-level offending and spreads over a period of more than 16 and a-half years.
- In that context, it is clear, in my view that the sentence imposed on charge 2, set at nine months’ imprisonment, is clearly disproportionate to the sentences imposed previously and to the sentences imposed on the concurrent offending matters in charges 1 and 3. Although it is clear that the quantum and the circumstances of charges 1 and 3 are different to charge 2, the sentence imposed on charge 2 is so dramatically out of step with those sentences on charges 1 and 3, that it bespeaks a discretionary error, and in my view, quite clearly “lies outside the permissible range”.
- It follows that the appeal should succeed and the sentence imposed on appeal should, as I have identified, be appropriate to the sentences imposed on charges 1 and 3 (whilst reflecting, of course, that it is more serious than each of those two charges), in the context of the appellant’s criminal history (albeit extensive but relatively low level over a long period) as well, of course, as the matters placed before the court in mitigation and as objectively verified by the documentation placed before the learned magistrate.
Orders
- Accordingly, I make the following orders:
- Appeal granted.
- Set aside the sentence of nine months imposed on charge 2 - stealing, 5 August 2022.
- Resentence the appellant to three months’ imprisonment.
- Otherwise affirm the sentences imposed on 18 May 2023 at Holland Park Magistrates Court.
Footnotes
[1] Exhibit 1 – Outline of submissions on behalf of the appellant, [9]-[14].
[2] Exhibit 1 – Outline of submissions on behalf of the appellant, [15]-[17].
[3] Exhibit 1 - Outline of submissions on behalf of the appellant, [18]-[22].
[4] Exhibit 1 - Outline of submissions on behalf of the appellant, [23]-[25].
[5] Exhibit 1 - Outline of submissions on behalf of the appellant, [28]-[31].
[6] Exhibit 4 – Outline of submissions for the respondent, [18] - [26].