Reeks v Commissioner of Police
[2024] QDC 110
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- Unreported Judgment
- Reeks v Commissioner of Police[2024] QDC 110
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Reeks v Commissioner of Police[2024] QDC 110
Reeks v Commissioner of Police[2024] QDC 110
DISTRICT COURT OF QUEENSLAND
CITATION: | Reeks v Commissioner of Police [2024] QDC 110 |
PARTIES: | ASHLEY STEWART REEKS (applicant) v COMMISSIONER OF POLICE (respondent) |
FILE NO: | 622/24 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Ipswich |
DELIVERED ON: | 14 June 2024 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 June 2024 |
JUDGE: | Allen KC DCJ |
RULINGS: |
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CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced in the Magistrates Court for unlawful possession of the dangerous drug cannabis – where the sentencing Magistrate imposed a term of 2 months imprisonment, concurrent with a longer sentence the applicant was then serving and ordered his immediate eligibility for parole – whether the sentence is manifestly excessive Legislation Justices Act 1886 (Qld), s 222 Cases House v. The King (1936) 55 CLR 499 R v Frame [2009] QCA 9 |
APPEARANCES: | Appellant self-represented C Tan for the respondent Office of the Director of Public Prosecutions for the respondent |
- [1]On 18 January 2024, the applicant appeared before the Magistrates Court at Ipswich, represented by a solicitor. He entered a plea of guilty to a charge that, on the 17th day of January 2024, at North Ipswich in the State of Queensland, he unlawfully had possession of a dangerous drug, namely, cannabis. After hearing submissions from the police prosecutor and the applicant’s solicitor, the learned sentencing Magistrate sentenced the applicant to two months’ imprisonment. The sentencing Magistrate declared one day’s pre-sentence custody as time served and ordered a parole eligibility date of the same date, 18 January 2024.
- [2]The applicant applies for an extension of time to appeal against sentence. The applicant has satisfactorily explained the delay in filing a notice of appeal against sentence and the respondent would suffer no prejudice through such an extension. Whether or not an extension should be granted should be determined according to the merits of the proposed appeal against sentence.
- [3]The applicant was 37 years of age at the time of sentence.
- [4]The police prosecutor submitted that the applicant was arrested by police on 17 January 2024 in relation to another matter and conveyed to the Ipswich Watchhouse. A search of his property revealed a small clip-seal bag containing cannabis. The clip-seal bag and its contents weighed 3.7 grams.
- [5]The police prosecutor tendered the applicant’s 26 page criminal history, which included numerous prior convictions for drug offences, the most recent of which being an offence of possession of dangerous drugs, for which the applicant was sentenced in the Magistrates Court at Ipswich on 13 December 2023 to a period of three months’ imprisonment. That sentence was concurrent with sentences imposed for other offences, the longest of which being a 15 month term of imprisonment for assault occasioning bodily harm with a circumstance of aggravation. On that occasion, the sentencing Magistrate ordered a parole release date the same day, that is, 13 December 2023. The applicant was, therefore, on parole at the time of the offence for which he was sentenced on 18 January 2024.
- [6]The police prosecutor contended for a three-month term of imprisonment with a parole eligibility date after one-third.
- [7]The applicant’s solicitor made submissions as to the adverse upbringing of the applicant and his subsequent transient lifestyle, characterised by substance abuse and association with other offenders. The applicant’s solicitor submitted as follows:
On this occasion we’ve got a small amount of cannabis, and as Veen would say, we’re not – he has that dreadful history, but the criminality of this is quite small.
There’s a lot of previous and such. Certainly, fines are out of the question because, you know, there’s no capacity.
He’s on a return to returned to prison.
I’m asking your Honour to give a short period of imprisonment, but give him a parole release – a parole eligibility date --- but you know, two weeks to a month or such like that. I mean, that will be up the Parole Board when he’s reached - because the issue with Mr Reeks will be accommodation because that’s probably – there was a lack of reporting and such like that.
I’m unaware, but just give him the least so they can – even a – with a eligibility date of today so …
- [8]The sentencing Magistrate stated that he would reduce the sentence in light of the applicant’s plea of guilty. He noted the applicant’s disadvantaged upbringing and the continuing significant effects upon the applicant by way of his mental health and substance abuse. He acknowledged, in some detail, the difficulties faced by the applicant in addressing those issues and finding accommodation and avoiding association with persons who are a bad influence. He noted the contents of the applicant’s criminal history, including that he had been subject to every type of court order, and that he was on parole at the time that he committed the offence. He noted that the applicant had about nine months further to serve of the sentence imposed on 13 December 2023. He noted that he must not let the applicant’s criminal history overwhelm him and must not impose a sentence disproportionate to the gravity of the offending. He stated as follows:
Essentially, you’re to be dealt with for having possession of a small quantity of cannabis, some 3.7 grams. You were intercepted at one of the local shopping centres there. So you were cooperative with police on that occasion and that also goes in your favour. What is real for you is your prospects of parole, which one would think is quite limited. So the order I’m going to be making today is one which sees the imprisonment which I’m about to impose run concurrently, and I’m going to give you an immediate parole eligibility date so you can start applying straightaway, okay? That’s how I’m going to structure it. And, look, I think you’ve got more – I think you’ve got bigger problems. Because if [indistinct] return to prison [indistinct] I suspect there’s other things they’re not happy with. So I suspect it’s not going to be this court order that’s going to be a problem, it’s going to be the other things.
I must impose a sentence which is just having regard to all the circumstances. Rehabilitation I don’t lose sight of, and it’s hoped that you receive the benefit of continued parole and be able to engage in that space. Imprisonment is of a last resort. To my mind, it is really the only option which is available to me on today’s occasion. Deterrence must feature, both general and specific. Of course, the caveat placed with respect to your mental health and use of illicit drugs would be clearly be placed as to the effect upon the deterrent principle, community denunciation and the protection of the community. In all the circumstances, I’m satisfied that it is appropriate and no more severe that you be sentenced to a term of imprisonment.
- [9]I should note that, in the course of his submissions, the applicant’s solicitor acknowledged that a fine would not be an appropriate penalty, given the applicant’s lack of capacity to pay upon his return to prison.
- [10]An appeal against sentence, pursuant to section 222 of the Justices Act 1886 is by way of rehearing on the record. The onus is upon the applicant to show that there has been some error in the decision under appeal. An appeal against sentence is against the exercise of discretion, and the principles in House v The King (1936) 55 CLR 499 at 504 – 505 apply. An appellate court may not interfere with a sentence unless it is manifestly excessive, that is, unreasonable and plainly unjust. A conclusion to that effect will not be reached simply because the appellate court might have taken a different view as to the penalty. To succeed in an appeal against sentence, the applicant must satisfy the appellate court that the sentence imposed is outside an acceptable scope of judicial discretion. Even if an appellate court were to find that a sentence was at the top end of the permissible range or has a different view as to how the discretion should have been exercised, that is not, in itself, sufficient justification for interference with the sentence.
- [11]The only ground of appeal on the notice of appeal against sentence is that the sentence is manifestly excessive.
- [12]The applicant submits that the quantity of cannabis he was in possession of was minute and was certainly not of the amount alleged by the prosecutor. The amount of cannabis was not disputed by the applicant’s solicitor and there seems to be no good reason why he should not be bound by the conduct of his legal representative.
- [13]The applicant submits that he should have been fined, but I note that the applicant’s solicitor, not unreasonably in the circumstances, conceded that that would not be an appropriate sentence in all the circumstances.
- [14]The sentence imposed was one in accordance with the applicant’s solicitor’s submissions on sentence. The fact that a sentence imposed accorded with that proposed by the applicant’s legal representative makes it difficult to accept that the sentence was manifestly excessive: R v Frame [2009] QCA 9 at [6].
- [15]The sentence imposed was one which not only took into account the extensive criminal history of the applicant but recognised the particular circumstances of his custody at the time of the sentence. The sentencing Magistrate ordered the immediate eligibility of the applicant to apply for parole. In circumstances where he was required to order a parole eligibility date and had no discretion to order a parole release date, the sentencing Magistrate realised that the question of the applicant’s liberty would depend upon a consideration of his eligibility for parole rather than the length of any sentence imposed by the Magistrate.
- [16]No specific error can be discerned in the Magistrate’s reasoning. It is clear that he gave careful and sympathetic consideration to the applicant’s circumstances.
- [17]I do not consider that the sentence imposed was manifestly excessive.
- [18]There is no utility in the appeal, the applicant already having served the full two month sentence.
- [19]In circumstances where the proposed appeal against sentence lacks merit, and there is no utility in the appeal, the application for an extension of time to appeal against sentence should be refused.