Forte v Commissioner of Police
[2024] QDC 172
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Forte v Commissioner of Police[2024] QDC 172
- Add to List
Forte v Commissioner of Police[2024] QDC 172
Forte v Commissioner of Police[2024] QDC 172
DISTRICT COURT OF QUEENSLAND
CITATION: | Forte v Commissioner of Police [2024] QDC 172 |
PARTIES: | FORTE, Jackson Roy (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | BD No 965 of 2024 |
DIVISION: | Criminal |
PROCEEDING: | Section 222 Appeal |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 11 October 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 August 2024 |
JUDGES: | Prskalo KC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – Appeal against sentence after a plea of guilty – s 222 of the Justices Act 1886 (Qld) – where the appellant was sentenced by a magistrate for a single charge of stealing – where it was submitted the sentence was excessive – where the appeal is allowed. Justices Act 1886 (Qld) ss 222, 223 Criminal Code (Qld) s 398 Penalties and Sentences Act 1992 (Qld) s 9 House v The King (1936) 55 CLR 499 Kentwell v The Queen (2014) 252 CLR 601 MRH v Queensland Police Service [2023] QDC 230 R v Amos [2020] QDCSR 388 R v Coutts [2016] QCA 206 R v Hyatt [2011] QCA 55 R v Robertson [2017] QCA 164 Teelow v Commissioner of Police [2009] QCA 84 |
COUNSEL: | J R Alcorn for the Appellant N T Aganoff for the Respondent |
SOLICITORS: | Legal Aid Queensland for the Appellant Office of the Director of Public Prosecutions for the Respondent |
- Introduction
- [1]On 24 August 2023 in the Magistrates Court at Holland Park, the appellant pleaded guilty to a single charge of stealing pursuant to s 398 of the Criminal Code (Qld). He was sentenced to a term of one month imprisonment wholly suspended for a period of six months and was ordered to pay compensation in the amount of $226.95 within one month.
- [2]By Notice of Appeal pursuant to s 222 of the Justices Act 1886 (Qld), the appellant appeals the sentence on the ground that the sentence was manifestly excessive in all the circumstances.
- [3]Leave was sought by the appellant’s legal representatives to amend the Notice of Appeal to assert that:
Ground 1: | The sentence imposed was excessive. |
Ground 2: | The magistrate had inadequate regard to the principle of imprisonment as a last resort. |
Ground 3: | The Magistrate failed to take into account mandatory sentencing considerations contained in the Penalties and Sentences Act 1992 (Qld). |
- The nature of the appeal
- [4]Section 222(2)(c) of the Justices Act provides that, if a defendant pleads guilty, they may appeal on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.
- [5]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.
- [6]It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are only exercisable where the appellant can demonstrate that the order is the result of some legal, factual or discretionary error: Teelow v Commissioner [2009] QCA 84.
- [7]In House v The King (1936) 55 CLR 499 at 504 to 505, the principles governing appeals against the exercise of discretion were stated as follows:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. 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. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."
- Application for an extension of time
- [8]The appellant applies for an extension of time to file his notice of appeal. In determining whether to grant such an application, a court is required to consider, inter alia: (a) whether there is a good reason explaining the delay; (b) whether it is in the interests of justice to grant the extension; (c) an assessment of whether the appeal seems to be a viable one; (d) any prejudice to the respondent, noting in the case of criminal appeals this is often not a live issue; and (e) the length of the delay.
- [9]The appellant’s grounds for seeking leave to file the appeal out of time are articulated as follows:
"I was self-represented at my sentence in the Magistrates Court and had not received any legal advice regarding my right to appeal until I met with a duty lawyer for unrelated matters on 9 April 2024. That was the first time I received advice about the appeal process and having made the decision to appeal my sentence, I then acted promptly to lodge my Notice of Appeal."
- [10]The appeal notice was filed well out of time. However, having regard to the relevant considerations, I consider that it is in the interests of justice to grant the extension of time.
- The offence
- [11]On 6 April 2023, the appellant went to Woolworths Mount Gravatt and, with a female co-accused, stole items worth $226.95. The items included meat, eggs, chocolate sauce, water, cheese, toys, a torch, bath towels, body spray, cleaning products and some frozen goods.
- The hearing
- [12]The appellant was not legally represented at the sentence hearing. The prosecutor outlined the factual basis for the summary plea of guilty. The prosecutor tendered the appellant’s criminal history.
- [13]The appellant had previously been sentenced to community-based orders and fines. In 2012, the appellant was convicted of supplying dangerous drugs and other summary drug offences, as well as the unlawful possession of suspected stolen property. He was placed on a probation order for 12 months and a conviction was not recorded. Some seven years later, the appellant was convicted in May 2019 of an offence of stealing and was ordered to complete 40 hours of community service. In August 2019, he was convicted of an offence of contravening a direction or requirement and fined $400. A conviction was not recorded on either of those occasions.
- [14]In October 2019, the appellant was convicted of stealing, enter premises and commit an indictable offence, two offences of unlawful entry of a motor vehicle for committing an indictable offence at night, and two offences of fraud. He was placed on a probation order for 18 months and a conviction was recorded.
- [15]On 20 March 2020, there was a successful application to extend the period within which to comply with the community service order by eight months. There is no recorded history of the appellant breaching any of the community-based orders to which he had been sentenced.
- [16]The appellant’s submissions on his own behalf were brief. When asked what he had to say for himself, he apologised. He offered to make amends (so to speak) and ‘fix up the total costs’. The learned Magistrate, noting a 'long and disgraceful history of similar offending' asked the appellant what he had to say about the penalty. The transcript records this question: "Why should I send you to jail today". In the context of the entire short exchange, I infer that the question was rather why he should not be sent to jail.
- [17]The appellant offered that he had made a mistake. The Magistrate countered that this was not a mistake, but rather a deliberate stealing and a deliberate set of actions to avoid detection. The Magistrate did not see a mistake, noting that the appellant had been sentenced to probation and community service, neither of which had changed his behaviour. The Magistrate told the appellant that people ‘go to jail for this’ kind of offending.
- [18]The Magistrate asked the appellant this question: “I want to know why, in your submission, you should not be sent to jail today. It’s a genuine question and I genuinely need the answer.”
- [19]The appellant replied: “I don’t think. I – yeah. I apologise and ….”
- [20]Soon after, the appellant asked if the court could just give him one more chance. When asked how many chances he needed, he asked for ‘only one more’. The Magistrate agreed to give him one more chance, which would take the form of a suspended prison sentence.
- The sentencing remarks
- [21]The Magistrate acknowledged the early plea of guilty and credit was given by way of a reduction in penalty. This type of conduct remained a significant problem in the community, which was seen by the courts on a repeated and daily basis.
- [22]The Magistrate considered there needed to be both general and personal deterrence. The appellant’s criminal history suggested that something more significant needed to be imposed because the 2019 sentences did not have the desired effect in changing the offending behaviour. The Magistrate considered this was a ‘quite cynical offence’, although noted it had been sometime between offences.
- [23]The Magistrates’ reasons were stated as follows:
“Jail is a last resort and is preferably served in the community as a matter of law. I am satisfied, however, that in the circumstances a wholly suspended sentence of imprisonment is the appropriate outcome, principally by way of giving Mr Forte one more chance. He will serve the sentence in the community. It will be proportionate to the offence, which is still a less serious example of this charge, and the sentence must be proportionate to that.”
- Ground one
- [24]By ground one, the appellant argues that the sentence of imprisonment, albeit suspended, was a disproportionate punishment for what was ultimately a relatively low-level stealing offence. The items stolen – which could be described broadly as necessities – and their value, placed the offence at the lower end of the spectrum of seriousness for stealing offences under s 398 of the Criminal Code. The appellant was not on any orders and had not committed a criminal offence since September 2019, some three and a half years previous. Given the gap in the appellant’s offending since 2019, it could not be reasonably said that the earlier sentences had failed to engender a change in the appellant’s behaviour. The appellant argues that the Magistrate was over-borne, or placed too much weight, on the appellant’s criminal history.
- [25]The appellant referred the court to a single judge decision of R v Amos [2020] QDCSR 388 (Cash DCJ, 20 April 2020), in which a 21-year-old female offender with a minor criminal history was fined $500 for assisting an older man to steal a $900 bike from a 14-year-old.
- [26]The appellant also referred the court to MRH v Queensland Police Service [2023] QDC 230. On appeal, the District Court set aside a term of nine months’ imprisonment for the theft of two sets of sunglasses valued at $1200 and re-sentenced the offender to three months imprisonment. That appellant was a 42-year-old indigenous woman, who had a prejudicial background and presented with extensive criminal history for dishonesty offences. The offending breached two suspended sentences.
- [27]The respondent submits that these cases are of little assistance to demonstrate that the sentence imposed by the Magistrate was excessive or otherwise outside the permissible range. The appellant stole items beyond bare necessities and presented with a relevant prior criminal history. The respondent submits that it was within the sound exercise of the sentencing discretion to sentence the appellant to a wholly suspended sentence.
- Ground two
- [28]By ground two, the appellant submits that inadequate regard was given to the principle of imprisonment as a last resort. It was argued that no consideration was given to any other sentencing option, despite an acknowledgment that the offence was a 'less serious example of the charge' and that it had 'been sometime between offences’. Further, the Magistrate appeared to act on the view that as other sentencing options had been imposed on previous occasions, a form of imprisonment was inevitable.
- [29]It was ultimately submitted that the failure to adequately apply this principle contributed to the imposition of an excessive penalty.
- [30]The respondent submits that the learned Magistrate's dialogue with the appellant does not demonstrate a predisposition toward imposing a term of imprisonment. Recognising that the appellant was self-represented, the learned Magistrate indicated that a term of imprisonment was within range and a possibility, having regard to the appellant's criminal history for relevant offences. The respondent argues that the Magistrate genuinely sought mitigating submissions from the self-represented appellant, which was successful in part.
- [31]During the hearing, the appellant's counsel conceded that, as ground two asserts that inadequate regard was had to a relevant sentencing principle, the complaint is more correctly to be treated as an aspect of ground one: see R v Coutts [2016] QCA 206 at [4].
- Ground three
- [32]Ground three implicitly raises an argument that the appellant was denied procedural fairness. For the reasons which follow, it is not necessary to determine this ground of appeal.
- Consideration – ground one
- [33]In the case of a specific error, the appellate court's power to intervene is enlivened and it becomes its duty to re-sentence unless, in the separate and independent exercise of its discretion, it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence: see Kentwell v The Queen (2014) 252 CLR 601 at [35].
- [34]A cautious approach is to be adopted by appeal courts in respect of the exchanges between the bench and counsel in amplification of the reasons given when passing sentences. Exchanges between the bench and counsel are designed to draw out and test submissions and remarks made by a judge during such exchanges are often at odds with a conclusion at which he or she ultimately arrives after hearing both sides and giving their submissions due consideration: see R v Hyatt [2011] QCA 55 at [13].
- [35]This is not to suggest that there may not be cases in which the exchanges between the bench and bar are properly used to amplify the reasons for a sentence that are given: see R v Robertson [2017] QCA 164 at [40].
- [36]A sentencing judge is not obliged to set out each and every alternative available to that judge in sentencing a defendant who appears before them: see R v Robertson at [55].
- [37]By asking the appellant the question of why he should not go to jail, it may be accepted, as the Crown submits, that the learned Magistrate was genuinely seeking to glean information relevant to some of the factors outlined in s 9(2) of the Penalties and Sentences Act 1992 (Qld). In the result, nothing much was gleaned from the applicant apart from a stammering apology and a plea for mercy.
- [38]The fact that the learned Magistrate had a genuine need to understand why an actual custodial sentence was not warranted suggests an error in the exercise of sentencing discretion. In the circumstances though, the question may have been deployed as a scare tactic and I am not prepared to infer anything more than that from the exchange.
- [39]Pursuant to s 9(10) of the Penalties and Sentence Act 1992, in determining the appropriate sentence, a court is to treat each previous conviction as an aggravating factor if the court considers that it can be reasonably treated as such having regard to the nature of the previous conviction and its relevance to the current offence and the time that has elapsed since the conviction.
- [40]The appellant was to be sentenced for a single charge of stealing. The fact that the appellant had previously been sentenced to community-based orders did not preclude the imposition of a community-based order or a fine. The fact the appellant had not breached the community-based orders imposed in 2019 was relevant, as was the elapse of some three and half years during which he had not committed further offences.
- [41]The learned Magistrate took into account that it had been some-time between offences. However, the fact that the learned Magistrate considered that the criminal history suggested that something more significant needed to be imposed bespeaks an error in the exercise of the sentencing discretion. The sentence imposed was disproportionate to the gravity of a single offence of low-level stealing having regard to an absence of offending for a period of some three and a half years prior and the appellant’s compliance with previous community-based orders.
- [42]As the appellant has succeeded on ground one, it is unnecessary to determine the remaining grounds of appeal.
- Disposition
- [43]For the reasons given, I make the following orders:
- The appellant is granted an extension of time to file the appeal until 11 April 2024;
- The appeal is allowed;
- The sentence of one month imprisonment wholly suspended for six months is set aside;
- On the charge of stealing, the appellant is fined $250.00 payable within 4 months and in the event of non-payment, the fine is referred to SPER.