Julian v Commissioner of Police
[2024] QDC 173
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- Julian v Commissioner of Police[2024] QDC 173
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Julian v Commissioner of Police[2024] QDC 173
Julian v Commissioner of Police[2024] QDC 173
DISTRICT COURT OF QUEENSLAND
CITATION: | Julian v Commissioner of Police [2024] QDC 173 |
PARTIES: | JULIAN, Crystal Lee (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | BD727/24 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to section 222 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 9 October 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 October 2024 |
JUDGES: | Smith AM DCJA |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant committed 46 offences over about 2 years some in breach of probation, some in breach of a parole order and in breach of suspended sentence – whether the Magistrate took into account as a mitigating factor domestic violence sustained by the appellant – whether plea of guilty taken into account – whether the sentence was manifestly excessive – where the provisions of the Weapons Act 1990 (Qld) required a mandatory sentence of 12 months imprisonment. Penalties and Sentences Act 1992 (Qld) s 9 Police Powers and Responsibilities Act 2000 (Qld) s 754 Transport Operations (Road Use Management) Act 1995 (Qld) s 78 Weapons and Other Legislation Amendment Act 2012 (Qld) Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, cited Commissioner of Police v Broederlow [2020] QCA 161; (2020) 5 QR 296; (2020) 284 A Crim R 276, cited R v BEM [2024] QCA 175, applied R v Hatahet [2024] HCA 23; (2024) 98 ALJR 863, applied R v Markarian [2005] HCA 25 (2015) 228 CLR 357, applied R v Pearce [2010] QCA 338, considered R v Pham [2015] HCA 39 (2015) 256 CLR 550, applied |
COUNSEL: | Solicitors for the appellant Solicitors for the respondent |
SOLICITORS: | Legal Aid Queensland for the appellant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]This is an appeal pursuant to s 222 of the Justices Act 1886 (Qld). The appellant alleges that the sentence imposed upon her is manifestly excessive.
- [2]On 22 February 2024 the appellant received a head sentence of two years and three months imprisonment with a parole eligibility date set as at 7 November 2024. 106 days pre-sentence custody was declared.
- [3]The particulars of the penalties are as follows:
Charge no | Charge | Penalty |
1 | False declarations | 12 months imp |
2 | Dangerous Operation of a vehicle | 12 months imp disqualified for 6 months |
3 | Evasion | 12 months imp disqualified for 2 years[1] |
4 | Driving without a licence never held a licence | 1 month imp |
5 | Receiving tainted property | 6 months imp |
6 | Fraud | 3 months imp |
7 | Possess tainted property | 3 months imp |
8 | Stealing | 1 month imp |
9 | Possession of knife public place | 1 month imp. Knife forfeited. |
10 | Unlawful possession stolen property | 1 month imp |
11 | Enter premises and commit indictable offence | 18 months imp |
12 | Stealing | CNP |
13 | Possession dangerous drugs | 2 months imp |
14 | Unlawful possession stolen property | 3 months imp |
15 | Breach bail condition | CNP |
16 | Fail to appear | No action taken |
17 | Breach bail condition | Dismissed |
18 | Stealing | 3 months imp |
19 | Unlawful possession stolen property | 1 month imp |
20 | Possession property used for drug offence | 1 month imp |
21 | Unlawful possession cat D, H or R weapon- shortened firearm in public | 12 months imp. Gun forfeited. |
22 | Possess S4 or S8 medicines | CNP |
23 | Possess S4 or S8 medicines | CNP |
24 | Possess utensils | CNP |
25 | Stealing | 3 months imp |
26 | Stealing | 3 months imp |
27 | Stealing after previous conviction | 6 months imp |
28 | Stealing after previous conviction | 6 months imp |
29 | Stealing | 3 months imp |
30 | Receiving tainted property | 6 months imp |
31 | Enter premises and commit indictable offence by break | 2 years imp |
32 | Breach bail condition | CNP |
33 | Stealing | 3 months imp |
34 | Trespass | CNP |
35 | Stealing | 3 months imp |
36 | Trespass | CNP |
37 | Receiving tainted property | 3 months imp |
38 | Stealing | Withdrawn |
39 | Fraud | 3 months imp |
40 | Stealing | 6 months imp |
41 | Receiving tainted property | 3 months imp |
42 | Fail to appear | 1 month imp cumulative |
43 | Fail to appear | CNP |
44 | Stealing | 3 months imp |
45 | Stealing | 3 months imp |
46 | Contravene direction | CNP |
47 | Receiving tainted property | 1 month imp |
2 x breach probation | Resentenced | |
Wilful Damage 4 Feb 2021 | 1 month imp | |
3 x possess dangerous drugs 19.11.21 | 1 month imp each | |
Unlawful possession D, H or R weapon 9.11.21 | 1 month imp | |
Possess utensils 9.11.21 | 1 month imp | |
Failure to appear x 2 9.8.21and 19.11.21 | 1 month imp on each cumulative | |
Failure to appear 1.9.21 | CNP | |
Unauthorized dealing shop goods | CNP | |
Stealing 16.9.21 | 1 month imp |
- [4]In order to consider the appeal, it is necessary to see whether the result was the product of any legal, factual or discretionary error. It is necessary to review the evidence which was before the Magistrate.[2]
Proceedings below
- [5]The matter proceeded before the Magistrate on 22 February 2024. The appellant pleaded guilty to the charges. The schedule of facts was tendered as Exhibit 1, her criminal history Exhibit 2, her traffic history as Exhibit 3 and a pre-sentence custody certificate as Exhibit 4. This disclosed she had been in custody between 8 November 2023 and 21 February 2024.
- [6]As to charge 1, the offence of false declarations, the appellant was in an intimate personal relationship for three years with Bradley Crittenden. This was a domestic violence relationship. On 11 February 2022, the appellant attended the Brisbane Magistrates Court and completed an application to vary a domestic violence order and claimed that she did not want Bradley to miss the birth of a baby and wanted it varied so he could be present at the birth of the first child. As it turns out, no baby was born.
- [7]The appellant fashioned a false story to enable Crittenden to be released early from custody (Charge 2 false declarations).
- [8]As to charge 2, dangerous operation, on 12 February 2022, the appellant dangerously drove a motor vehicle on Ipswich Motorway, Riverview. Police activated lights and sirens to intercept the vehicle but it did not stop. The vehicle travelled at speeds at over 150 kilometres per hour forcing other drivers to get out of their lanes so she could get past them. She travelled west on the Cunningham Highway at high speed. Police had to discontinue the intercept due to the manner of the appellant’s driving. On 31 July 2022, she was interviewed and admitted being the driver and was speeding and was unlicenced and was scared because she was under the influence of ice at the time.
- [9]Charge 3 relates to evasion concerning Charge 2. Charge 4 relates to driving without a motor vehicle licence at the time.
- [10]As to Charge 5, receiving tainted property, on 25 May 2022, the victim’s motor vehicle was stolen from her address in New South Wales. On 3 June 2022, police intercepted a vehicle being driven by the defendant which had the registration plate of the stolen New South Wales vehicle. The defendant also had the victim’s licence, Medicare card and Centrelink card and the victim’s wallet.
- [11]As to Charge 6, fraud, on 17 September 2022 an intoxicated victim had his wallet stolen. The defendant used his Commonwealth Bank debit card to make five transactions totalling $261.96.
- [12]Charge 7 relates to tainted property of the same card.
- [13]As to Charge 8, stealing, on 20 October 2022 the appellant stole numerous clothing items from Target Brisbane . Charges 9 relates to possession of a knife in a public place at the same time and Charge 10 relates to unlawful possession of suspected stolen property.
- [14]As to Charge 11, entering premises and commit, the appellant broke into premises at Newstead and stole a number of parcels in the premises. The appellant made admissions to the offence and said she was there to buy drugs for herself and her partner. The parcels had party supplies, women’s clothing and perfume.
- [15]Charge 12, a count of stealing relates to Charge 11.
- [16]As to Charge 13, possessing dangerous drugs, the appellant was located at 3.30am at 27 October 2022 in George Street, Brisbane. She was affected by drugs. They found bank cards which had been stolen from the Treasury Casino. She provided a false name and they found .1 grams of methylamphetamine in a clip seal bag and syringes. The appellant made some admissions.
- [17]Charge 14, unlawful possession of suspected stolen property and Charge 15 breach of bail condition and Charge 16 failing to appear relate to this occasion.
- [18]As to Charge 17, breach of bail condition, the appellant failed to appear in court on 28 October 2022 and then later failed to report to the police station.
- [19]As to Charge 18, stealing, on 30 November 2022, the appellant stole clothing items from Myer at Carindale.
- [20]Charge 19, unlawful possession of suspected stolen property relates to Charge 18 and Charge 20, possessing property suspected of having been used in the connection with the commission of a dangerous drug relates also to Charge 18.
- [21]As to Charge 21, unlawful possession of weapons Category D, H or R- short firearm in public, on 23 January 2023 police from Brisbane City Police Station received information the appellant and her co-accused were in a possession of methylamphetamine at Roma Street Parklands and had returned to an address at a backpackers in the city. Police approached the co-accused at an outdoor table who was standing next to a black duffle bag. The appellant stood up and moved the duffle bag. The appellant was affected by drugs. In the bag was a set of gloves and a revolver style BB air pistol. The serial number was scratched off and it was loaded with five ball bearings. The appellant said it was her pistol and it had been in the bag for about half an hour. She did not believe it to be illegal.
- [22]Charge 22 an offence of purchasing medicines relates to the same occasion. Charge 23 an offence of possessing medicines relates to the same occasion and Charge 24 possession of utensils or pipes relates to the same occasion.
- [23]As to Charge 25, stealing, the appellant stole personal items and medication from a person near the casino on 17 February 2023.
- [24]Charge 26, stealing, the appellant stole grocery items worth $47.20 from Coles Supermarket in Brisbane City.
- [25]Charge 27, stealing after previous conviction. On 20 February 2023, the appellant at 4am in public toilets in the city stole the victim’s photo ID, debit card and mobile phone.
- [26]At 4.30am the appellant stole a backpack with an iPhone and debit card.
- [27]Charge 28 relates to stealing after previous conviction, relates to the same event.
- [28]Charge 29, stealing, relates to 1 March 2023 when the appellant stole a bag containing clothing and paperwork in the city.
- [29]Charge 30, receiving tainted property, relates to 17 March 2023; the appellant misused the credit card of another person in an amount of $1,495.
- [30]Charge 31, enter premises and commit indictable offence by break, the appellant stole clothing items from Glue in Brisbane City on 15 April 2023.
- [31]Charge 32, breach of bail condition, the appellant failed to report to the police station.
- [32]Charge 33, stealing, on 23 June 2023, the appellant stole alcohol valued at $138.99 from Dan Murphy’s Newstead.
- [33]Charge 34, trespass, relates to Charge 33.
- [34]Charge 35, stealing, relates to 5 July 2023 the appellant stole clothing from a store at MacArthur Central Shopping Centre, Queen Street, Brisbane. The appellant also entered Woolworths and Big W stores in breach of a ban.
- [35]Charge 36, trespass, relates to Charge 35. Charge 37, receiving tainted property, relates to Charge 35.
- [36]Charge 38, stealing, on 15 July 2023 at 10pm the appellant stole the victim’s wallet and mobile phone after he had fallen asleep in Fortitude Valley. The appellant used the victim’s bank card to engage in transactions worth about $200.
- [37]Charge 39, fraud, relates to Charge 38.
- [38]Charge 40, stealing, on 17 July 2023 the appellant stole the victim’s bag from McDonalds restaurant in Brisbane City. The appellant had possession of a large number of cards. Charge 41 relates to Charge 40.
- [39]Charge 42, failing to appear, relates to the appellants’ failure to appear in court on 23 August 2023. The appellant gave false information to police on 8 November 2023 and the appellant had a driver’s licence in the name of another person in her purse.
- [40]Charge 43, failing to appear, relates to Charge 42.
- [41]Charge 44, stealing, the appellant stole fuel worth $196.85 from a BP Service Station on 6 November 2023.
- [42]Charge 45, stealing, the appellant stole fuel worth $100.60 from a Caltex Service Station in Marlborough on 7 November 2023.
- [43]Charges 46 and 47 are related charges
- [44]The appellant was born on 5 February 1985 and thus is presently 39 years of age. She first appeared in the Brisbane Magistrates Court in 2003. Since then, she has been convicted of stealing, unlawful use of a motor vehicle, cruelty to children, drug offences, committing public nuisance, other property offences, wilful damage and failing to appear. She has breached probation orders. She has committed the offence of entering premises and commit.
- [45]The appellant has previously received imprisonment, fines and on 21 January 2022 received 12 months’ probation and on 13 April 2022 received nine months’ probation. Some of the offences before the court breached those probation orders.
- [46]The appellant also had an unenviable traffic history including having SPER suspensions, being involved in a crash and unlicenced driving.
- [47]The prosecutor submitted that the possession of weapons charge involved a short firearm in a public place and there was a mandatory minimum penalty of 12 months imprisonment. It was pointed out that a number of the offences were committed whilst subject to a parole order. The prosecution submitted that in light of the weapons charge the court would impose the mandatory minimum 12 months imprisonment with a parole eligibility as at that date.
- [48]The defence lawyer submitted that the appellant was 39 years of age and was born in New South Wales and completed year 11 at school. One of her brothers committed suicide in 2020 and her father passed away the previous year. She had worked since leaving school. She had four children two of whom are in care. She was subjected to a domestic violence relationship. Most of the offending occurred while she was living transient and on drugs. She was also undergoing counselling to deal with historical child sexual abuse perpetrated against her by her stepbrother. She had completed a number of courses in custody. She wanted to deal seriously with her drug addiction upon release. She was going to live with her mother in Caboolture and was remorseful. She had also been employed whilst in custody and a letter in this regard was tendered as Exhibit 5.
- [49]The defence accepted that the weapons charge carried a mandatory sentence of 12 months imprisonment and it was submitted that the head sentence should be around 18 months. It was accepted that the parole eligibility date would be set as at the 12-month mark.
- [50]In his sentencing remarks, the Magistrate noted the maximum penalty for the entering and commit offence was life imprisonment. He noted that the offending occurred over a long period of time. It was noted that probation was breached as was parole. He said that he was going to sentence her to two years jail together with cumulative terms for the failures to appear. Parole eligibility date was set at the 12-month mark. He took into account cooperation with the law enforcement agencies and the plea of guilty. He took into account her personal circumstances. He noted that rehabilitation together with deterrence and denunciation was relevant. He noted that the 12-month imprisonment order had to be made on the Weapons Act offence.
Submissions
- [51]The appellant submits that the sole ground of appeal is that the sentence is manifestly excessive. It is submitted that the entering premises offence on 15 April 2023 was at the lower end of the range. It is submitted that the Magistrate incorrectly referred to this as a burglary offence. It is further submitted that the Magistrate gave insufficient weight to the provisions of s 9(10B) of the Penalties and Sentences Act namely the fact that the appellant was subjected to domestic violence. It is submitted that having regard to the total of the offending and the antecedents the Magistrate ought to have given consideration to structuring the sentence so she received certainty of release. A number of comparable decisions are relied on.
- [52]The respondent on the other hand points out that the appellant was sentenced to 44 charges and was dealt with for breaching two probation orders. The respondent says this is an exercise of discretion and no error can be shown. The respondent relies on the appellant’s previous convictions. It is submitted the Magistrate took into account all relevant matters and the sentence imposed is not manifestly excessive. It is submitted the Magistrate did take into account the difficulties suffered by the appellant, the plea of guilty and the other mitigating factors. A number of comparable decisions are relied upon.
Discussion
- [53]When one comes to consider whether a sentence is manifestly excessive it is only where a sentence is plainly unreasonable or unjust that a challenge on the basis of manifest excess succeeds.[3] There is no one correct sentence and sentencing judges are allowed much flexibility in sentencing provided it is consonant with consistency and the statutory regime that applies.[4] Reasonable minds can differ as to the appropriate outcome in a given case. The court must consider whether the sentence falls outside the range of proper sentencing discretion. It is no sufficient to establish that a different judge may have imposed a lesser penalty.[5]
- [54]In my respectful opinion, it has not been established in this case that the sentence was manifestly excessive. The appellant was a mature woman who committed 44 offences over a reasonably long period of time. Some of the offences were serious for example the dangerous operation and the fraud involving people’s property. Some of the offences were in breach of two probation orders, a suspended sentence and a parole order.
- [55]The appellant had been given many opportunities to reform but had not taken advantage of these.
- [56]To my mind the range of penalties here was anywhere from about 18 months to 3 years imprisonment. In light of the criminal history I would have thought towards the upper end of the range.
- [57]For the offence of dangerous operation alone I would have thought a head sentence of 9 to 18 months imprisonment was appropriate.[6] It was very dangerous behaviour on a busy road by a driver (who has never held a licence) and affected by drugs. It is fortunate no-one was killed or injured.
- [58]Then of course there are the many other offences to consider including two entering offences and the weapons offence.
- [59]As to the weapons offence, the mandatory minimum regime was introduced in 2012 by the Weapons and Other Legislation Amendment Act 2012 (Qld).
- [60]The explanatory memorandum notes:
- On 30 April 2012, the Premier announced the Government’s intention to introduce mandatory minimum penalties for weapons offences in an effort to address the unlawful use of firearms. That announcement was made in the context of growing concern about criminal activity involving the use of firearms both in Queensland and nationally. The possession and use of firearms by persons engaged in criminal activity poses a risk to community safety.
- [61]It is of concern that the appellant was involved in the possession of a shortened firearm in a public place. Deterrent sentences are needed when it comes to the possession of shortened weapons which can be easily concealed and used. This one was loaded as well.
- [62]In my view, deterrence both general and specific were very relevant in this particular case. The other aspect to be considered was of course the 12 months mandatory jail had to be imposed for the weapons offence. That was a requirement of law which could not be avoided by the sentencing Magistrate.[7]
- [63]In all of the circumstances, having read the entirety of the transcript I am satisfied the Magistrate took into account all mitigating factors.[8]
- [64]The appellant argued that more should have been said concerning the section 9(10B) issue. I disagree. The magistrate referred to it. I consider that was sufficient. This is clear from the Court of Appeal decision in R v BEM.[9]
- [65]I consider he reflected the mitigating factors in imposing the minimum period for the weapons offence and fixing the parole eligibility date as at that date.
- [66]I have had regard to the comparable decisions relied on by both parties. At the end of the day though each case depends on its own facts.[10] I am more assisted by statements by the Court of Appeal concerning sentence ranges.
- [67]As to the appropriateness of changing this sentence to a partly suspended sentence, the fact is the appellant breached parole, probation and a suspended sentence by the offending. A parole eligibility date was the most suitable outcome here as it should be for the parole board to determine suitability for release. As to whether or not the appellant will receive parole, this is not a relevant sentencing consideration. In R v Hatahet[11] the High Court held that it was not appropriate to mitigate a sentence on the basis that the defendant may not receive parole.
- [68]In all of the circumstances, I am not satisfied it has been established the sentence was manifestly excessive. It may even have been towards the higher end of the range but it was still within the range. In the circumstances, I am not satisfied that error has been established with one exception.
- [69]The mandatory minimum disqualification period on the unlicenced driving charge was three months[12]. The disqualification period must be imposed and needs to be corrected.
Conclusion
- [70]For the reasons given I make the following orders:
- The appeal is allowed to the extent that the appellant is disqualified from holding or obtaining a driver licence for the period of 3 months on the charge of unlicensed driving.
- The appeal is otherwise dismissed and the orders of the Magistrate are otherwise confirmed.
Footnotes
[1] In argument it was submitted the disqualification period was 12 months however page 4.40 of the transcript reveals the Magistrate did disqualify her for 2 years see section 754(5) of the Police Powers and Responsibilities Act 2000 (Qld). The VJR seems to be in error.
[2] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172.
[3] R v Pham [2015] HCA 39 (2015) 256 CLR 550 at 56.
[4] R v Markarian [2005] HCA 25 (2015) 228 CLR 357 at 27.
[5] R v Hili [2010] HCA 45 (2010) 242 CLR 520 at 58-61.
[6] R v Pearce [2010] QCA 338 at [9]-[14].
[7] Commissioner of Police v Broederlow [2020] QCA 161; (2020) 5 QR 296; (2020) 284 A Crim R 276.
[8] In particular His Honour referred to the appellant’s deprived background at pages 3 and 4 of the decision. At page 3 he referred to co-operation and the pleas of guilty page.
[9] [2024] QCA 175 at [19]-[21].
[10] In this regard I note the respondent’s submissions at [24]-[30].
[11] [2024] HCA 23; (2024) 98 ALJR 863.
[12] Section 78(3)(k) of the Transport Operations (Road Use Management) Act 1995 (Qld).