Hamilton v Commissioner of Police
[2024] QDC 18
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- Hamilton v Commissioner of Police[2024] QDC 18
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Hamilton v Commissioner of Police[2024] QDC 18
Hamilton v Commissioner of Police[2024] QDC 18
DISTRICT COURT OF QUEENSLAND
CITATION: | Hamilton v Commissioner of Police [2024] QDC 18 |
PARTIES: | HAMILTON (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | Appeal No. 2800 of 2023 |
DIVISION: | Appellate |
PROCEEDING: | Section 222 Appeal |
ORIGINATING COURT: | Magistrates Court at Richlands |
DELIVERED ON: | 1 March 2024 |
DELIVERED AT: | Brisbane District Court |
HEARING DATE: | 31 January 2024 |
JUDGES: | Chief Judge Devereaux SC |
ORDER: | Appeal dismissed. |
CATCHWORDS: | CRIMINAL LAW – APPEAL – appeal pursuant to s 222 of the Justices Act 1886 (Qld) – appeal against sentence after pleas of guilty – whether sentence excessive because sentencing Magistrate was distracted by the number of charges, ailed to give appropriate weight to the reasons behind the offending and the appellant’s demonstrated remorse, and erred in the approach to sentencing for 4 charges of failing to appear. |
LEGISLATION: | Bail Act 1980 (Qld) Criminal Code 1899 (Qld) Justices Act 1886 (Qld) |
CASES: | Liedke v Commissioner of Police [2023] QDC 13 Penhaligon v QPS [2020] QDC 289 R v Taylor [2007] QCA 214 Saunders v Commissioner of Police [2022] QDC 157 Smith v Commissioner of Police [2012] QDC 48 |
COUNSEL: | J Diefenbach (Solicitor) for the appellant M Hickey (Solicitor) for the respondent |
SOLICITORS: | Legal Aid Queensland for the appellant Office of the Director of Public Prosecutions for the respondent |
Background
- [1]On 8 September 2023, the appellant pleaded guilty and was sentenced in respect of 60 offences before the Richlands Magistrates Court. The learned Magistrate concluded that the appropriate penalty for the overall criminality was two and half years imprisonment, taking into account the plea of guilty and matters personal to the appellant. Four of the charges were for failing to appear, in breach of section 33 of the Bail Act 1980 (Qld). That Act requires that if a term of imprisonment be imposed, it must be imposed cumulatively. In the result, the learned Magistrate fixed a term of two years and two months to certain property offences which were considered the most serious of the offending and four consecutive terms of one month for the failures to appear. His Honour declared 71 days of pre-sentence custody and fixed 28 April 2024 as the parole release date (after 10 months).
- [2]The appeal is brought under section 222 of the Justices Act 1886 (Qld). Because the appellant pleaded guilty, the ground of appeal is that the sentence was excessive. The appellant submits that the learned Magistrate made certain errors which informed the inflated total.
The charges
- [3]This table, helpfully supplied by the appellant’s legal representative on the appeal, sets out the offences.
Date of offence | Offence and maximum penalty | Facts | Penalty (Imprisonment) |
22/07/22 | Stealing – 398 CC | Stole $92.04 worth of fuel from Coles Express. | 6 months |
24/07/22 | Operate vehicle during number plate confiscation period – 105B PPRA | Drove vehicle with false plates while vehicle was subject to 90-day confiscation period. | CNFP |
24/07/22 | Use vehicle for which number plate attached granted for another vehicle – 211(1)(e) TORUMR | Drove vehicle with false plates while vehicle was subject to 90-day confiscation period. | CNFP |
15/08/22 | Fail to appear – 33(1) BA | Failed to appear at Richlands MC on 15/08/23. | 1 month (cumulative) |
08/09/22 | Possess knife in public place – 51(1) WA | Possessed black folding knife in cupholder of vehicle. | 1 month |
20/09/22 | Stealing – 398 CC | Stole $50 worth of fuel from Ampol. | 6 months |
20/09/22 | Driver without licence (demerit point suspended) – 78(1) & (3)(b) TORUMA | Drove vehicle while subject to 3-month demerit point suspension. | Disqualified for 6 months |
20/09/22 | Drive unregistered vehicle – 10(1) TORUMR | Drove vehicle without current registration. | CNFP. |
21/09/22 | Driver without licence (demerit point suspended) – 78(1) & (3)(b) TORUMA | Drove vehicle while subject to 3-month demerit point suspension. | Disqualified for 6 months |
21/09/22 | Drive with relevant drug in saliva (unlicensed) – 79(2AA)(a) & 86(2)(e) | Drove vehicle. Saliva analysis indicated presence of methylamphetamine. | 1 month |
23/09/22 | Fail to appear – s 33(1) BA | Failed to appear at Richlands MC on 23/09/23. | 1 month (cumulative) |
25/09/22 | Stealing – 398CC | Stole $20 worth of fuel from Coles Express. Note: Sentencing Schedule states offence date is 04/10/22. Facts state offence occurred 25/09/22. | 6 months |
25/09/22 | Driver without licence (demerit point suspended) – 78(1) & (3)(b) TORUMA | Drove vehicle while subject to 3-month demerit point suspension. Note: Sentencing Schedule states offence date is 04/10/22. Facts state offence occurred 25/09/22. | Disqualified for 6 months |
25/09/22 | Drive unregistered vehicle – 10(1) TORUMR | Drove vehicle without current registration. Note: Sentencing Schedule states offence date is 04/10/22. Facts state offence occurred 25/09/22. | CNFP |
04/10/22 | Stealing – 398CC | Stoles $50.08 worth of fuel from E-G Fuel. | 6 months |
12/10/22 | Possess tainted property – 252(1) CPCA | Possessed (with co-accused) tainted Commonwealth Bank debit card. | 6 months |
12/10/22 | Fraud – 408C(1)(a) CC | Used tainted Commonwealth Bank debit card to spend $10.40 at car wash (with co-accused). | 6 months |
12/10/22 | Fraud – 408C(1)(a) CC | Used tainted Commonwealth Bank debit card to spend $96.20 on 2 x Telstra recharge cards, cigarettes, and drink (with co-accused). | 6 months |
12/10/22 | Fraud – 408C(1)(a) CC | Used tainted Commonwealth Bank debit card to spend $150 at the Annerley Road Motor Inn (with co-accused). | 6 months |
12/10/22 | Fraud – 408C(1)(a) CC | Used tainted Commonwealth Bank debit card to spend $29.99 on icy poles, fuel, and Neurofen at BP Annerley. | 6 months |
12/10/22 | Driver without licence (demerit point suspended) – 78(1) & (3)(b) TORUMA | Drove vehicle while subject to 3-month demerit point suspension. | Disqualified for 6 months |
09/11/22 | Stealing – 398 CC | When apprehended for offences on 21/11/22, checks revealed plates attached to vehicle were reported as stolen. Appellant admitted to stealing the plates. | 6 months |
10/11/22 | Stealing – 398 CC | Stole items from a trolley valued at $225.49 at Garden City Shopping Centre. | 6 months |
21/11/22 | Enter premises with intent – 421(1) CC | Entered National Storage by following another customer through the security gates at 6.47am. Was unable to exit the facility without an access code and was apprehended by police at 8.30am. Admitted that entered National Storage with the intention of breaking into storage lockers and stealing items to sell on Facebook marketplace. | 26 months |
21/11/22 | Enter premises and commit indictable offence by break – 421(2) & (3) CC | Entered storage unit 78 by rotating the long lock to the side and opening the sliding door. Removed property from the unit with the assistance of co-offender. Items taken include Guess suitcase, assorted toiletries, and candles. | 26 months |
21/11/22 | Enter premises and commit indictable offence by break – 421(2) & (3) CC | Entered storage unit 447 by rotating the long to the side and opening the sliding door. Removed 4 x air conditioners with the assistance of co-offender. | 26 months |
21/11/22 | Enter premises and commit indictable offence – 421(2) CC | Entered storage unit 40, which was empty, to store stolen items for later retrieval. Stolen items included a television and three canvas prints. Storage unit was locked with Appellant’s own padlock. | 26 months |
21/11/22 | Enter premises with intent – 421(1) CC | Entered storage unit 47 at 6.53am, triggering an alarm. | 26 months |
21/11/22 | Enter premises with intent – 421(1) CC | Entered storage unit 50 at 7.01am and 8am, triggering an alarm. | 26 months |
21/11/22 | Enter premises with intent – 421(1) CC | Entered storage unit 54 at 7am, triggering an alarm. | 26 months |
21/11/22 | Enter premises with intent – 421(1) CC | Entered storage unit 65 at 7.03am, triggering an alarm. | 26 months |
21/11/22 | Enter premises with intent – 421(1) CC | Entered storage unit 81 at 7.07am, triggering an alarm. | 26 months |
21/11/22 | Enter premises with intent – 421(1) CC | Entered storage unit 90 at 7.08am, triggering an alarm. | 26 months |
21/11/22 | Enter premises with intent – 421(1) CC | Entered storage unit 292 at 6.41am, triggering an alarm. Note: Time is inconsistent with alleged entry to National Storage. | 26 months |
21/11/22 | Enter premises with intent – 421(1) CC | Entered storage unit 296 at 6.21am, triggering an alarm. Note: Time is inconsistent with alleged entry to National Storage. | 26 months |
21/11/22 | Enter premises with intent – 421(1) CC | Entered storage unit 405 at 7.44am, triggering an alarm. | 26 months |
21/11/22 | Enter premises with intent – 421(1) CC | Entered storage unit 408 at 7.46am, triggering an alarm. | 26 months |
21/11/22 | Enter premises with intent – 421(1) CC | Entered storage unit 419 at 7.43am, triggering an alarm. | 26 months |
21/11/22 | Enter premises with intent – 421(1) CC | Entered storage unit 426 at 7.40am, triggering an alarm. | 26 months |
21/11/22 | Enter premises with intent – 421(1) CC | Entered storage unit 438 at 7.33am and 7.38am, triggering an alarm. | 26 months |
21/11/22 | Enter premises with intent – 421(1) CC | Entered storage unit 532 at 8.06am, triggering an alarm. | 26 months |
21/11/22 | Enter premises with intent – 421(1) CC | Entered storage unit 907 at 8.06am, triggering an alarm. | 26 months |
21/11/22 | Enter premises and commit indictable offence by break – 421(2) & (3) CC | Entered storage unit 227 by rotating the long to the side and opening the sliding door. Stole 3 x canvas prints, Guess suitcase with assorted items, and National Storage box. Placed items in empty storage unit 40 for later retrieval. | 26 months |
21/11/22 | Driver without licence (demerit point suspended) – 78(1) & (3)(b) TORUMA | Drove vehicle while subject to demerit point suspension. | Disqualified for 6 months |
21/11/22 | Drive unregistered vehicle – 10(1) TORUMR | Drove vehicle without current registration. | CNFP |
21/11/22 | Drive uninsured vehicle – 20(1) MAI | Drove vehicle that was not insured. | CNFP |
21/11/22 | Use vehicle for which number plate attached granted for another vehicle – 211(1)(e) TORUMR | Drove vehicle with false plates. | CNFP |
01/12/22 | Fail to comply with reporting – 50(1) CPORA | Failed to comply with quarterly reporting obligations. | 1 month |
03/12/22 | Use vehicle for which number plate attached granted for another vehicle – 211(1)(e) TORUMR | Drove vehicle with false plates. | CNFP |
03/12/22 | Drive unregistered vehicle – 10(1) TORUMR | Drove vehicle without current registration. | CNFP |
03/12/22 | Drive uninsured vehicle – 20(1) MAI | Drove vehicle that was not insured. | CNFP |
03/12/22 | Driver without licence (demerit point suspended) – 78(1) & (3)(b) TORUMA | Drove vehicle while subject to demerit point and high-speed driving suspensions. | Disqualified for 6 months |
05/12/22 | Stealing – 398 CC | Stole $600 worth of toys from Big-W. | 6 months |
17/12/22 | Stealing – 398 CC | Stole bottle of perfume from David Jones. Item recovered. | 6 months |
17/12/33 | Possess knife in public place – 51(1) WA | Possessed Baccarat cooking knife in backpack. | 1 month |
10/01/23 | Stealing – 398 CC | Stole a bag of Lego and Hot Wheel toys from Target. | 6 months |
31/05/23 | Fail to appear – 33(1) BA | Failed to appear at Brisbane MC on 31/05/23. | 1 month (cumulative) |
31/05/23 | Fail to appear – 33(1) BA | Failed to appear at Brisbane MC on 31/05/23. | 1 month (cumulative) |
15/06/23 | Breach bail – 29(1) BA | Failed to report on 15/06/23. | 1 month |
22/06/23 | Breach bail – 29(1) BA | Failed to report on 22/06/23. | 1 month |
- [4]As the table shows, offending commenced on 22 July 2022 and continued until 22 June 2023. On 22 July 2022, the appellant stole petrol from a service station. On 24 July 2022, the appellant was driving a car with false registration plates while the car was subject to a 90-day confiscation period. The first failure to appear happened on 15 August 2022. On 8 September 2022, the appellant was in possession of a knife in public i.e. in a car with a black folding knife. On 20 September 2022, the appellant stole fuel from a service station and drove an unregistered vehicle without a licence. On 21 September 2022, the appellant again drove without a licence and this time with a relevant drug in his saliva namely methylamphetamine. On 23 September 2022, the appellant again failed to appear. On 25 September 2022, the appellant stole petrol from a service station and drove an unregistered vehicle without a licence. On 4 October 2022, the appellant stole petrol from a petrol station. On 12 October 2022, the appellant was in possession of another person’s debit card. This was tainted property. The appellant used it four times, leading to four counts of fraud. On the same day, the appellant drove without a licence. On 9 November 2022, the appellant stole registration plates. On 10 November 2022, the appellant stole items from a trolley at a shopping centre.
- [5]On 21 November 2022, the appellant committed the offences of entering premises with intent and entering premises and committing an indictable offence by break, resulting in 20 charges. At 6.47 am, the appellant and another offender drove through the security gates of the National Storage facility at Albany Creek Road, Aspley by following another car in. The intention was to break into storage units and steal items to sell on Facebook marketplace. The appellant and the other offender entered numerous storage units, triggered alarms, and removed property from some of the units. They were unable to exit the premises without a gate code. The police were called and arrived at 8.30am to find the offenders parked inside the premises with the utility tray loaded with stolen property. On the same day, the appellant, without a licence, drove an unregistered, uninsured vehicle with false plates.
- [6]On 1 December 2022, the appellant failed to comply with quarterly reporting obligations. On 3 December, the appellant again drove an unregistered, uninsured vehicle that had false plates without a licence. On 5 December 2022, the appellant stole from a department store. On 17 December 2022, the appellant stole from a department store and was in possession of a knife in public i.e. Baccarat cooking knife in a backpack. On 10 January 2023, the appellant stole from a department store. On 31 May 2023, the appellant failed to appear with respect to two separate orders. On 15 and 22 June 2023, the appellant breached bail conditions by failing to report.
The appellant
- [7]The appellant was born on 17 December 1975 and was therefore about 46 years old at the time of the offending and 48 at the time of this appeal. He has significant criminal history which includes property offences. The most recent property offences were committed in 2011 and were heard before the District Court at Maroochydore These included robbery in company with personal violence, deprivation of liberty and stealing as a clerk or servant. On the same day, the appellant was dealt with for the summary charge of fraud. The sentence imposed, described as cumulative upon another sentence, was five years imprisonment. That entry appears on page four of the appellant’s 12 page criminal history. Some of the other entries are:
In July 1995 when he was 19 years old, the appellant was sentenced for breaking and entering a dwelling house, breaking and entering and stealing and attempted breaking and entering a dwelling house. The sentence was two years imprisonment suspended for three years.
In May 1997, when aged 21, the appellant was sentenced in the District Court at Maroochydore for numerous property offences: breaking and entering a place with intent; breaking and entering and stealing’, another stealing; unlawful damage; housebreaking in the night-time, and false pretences. The head sentence imposed seemed to have been three years imprisonment. He was then before Magistrates Courts once in 1997, 1999 and 2002.
At age 28 in 2004, the appellant was before the District Court at Maroochydore charged with dangerous operation of a vehicle causing death or grievous bodily harm whilst adversely affected by an intoxicating substance. The sentence was three years imprisonment with eligibility for release after nine months.
On the same day in 2004 also before the District Court at Maroochydore, the appellant was dealt with for summary charges including contravening a direction, driving with a high alcohol reading and licence plate offences. He was before Magistrates Courts in 2007 and 2010.
I have already described the Maroochydore District Court entry in 2011.
In 2016 the appellant was before the District Court at Brisbane for possessing child exploitation material. Since then, the remaining four pages of the criminal history comprise largely of contraventions of domestic violence orders and breaches of probation orders. The appellant also has a seven page traffic history.
- [8]The appellant’s representative told the learned Magistrate that the appellant’s mother died in a car accident in July or August 2022, and this resulted in a relapse into drugs which caused the offending spree. Before that he was working as a support worker for people on NDIS. He attended three meetings a week with Narcotics Anonymous and was at step 7 of the 12-step recovery process. The material before the learned Magistrate included a letter written by the appellant expressing his remorse for his conduct, a relapse prevention plan and a letter from Brisbane Correctional Centre confirming he was on the waiting list for the short substance intervention course.
The Magistrate’s decision
- [9]The learned Magistrate expressed that he took into account the pleas of guilty and noted the submission that the offending was the result of a drug relapse. His Honour commented that that was not a mitigating factor – that is, it might explain the conduct but did not mitigate the offending “because at the end of the day it is 60 charges”.[1] The learned Magistrate mentioned the significant criminal history but that the sentence would be moderated by requiring the appellant to serve no more than one-third of the head sentence. His Honour also commented that the appellant’s having apparently woken up to himself about the reasons for his behaviour and given some thought about how not to repeat it, would assist in his performance on parole. Having determined that two and half years was the appropriate total sentence, his Honour imposed two years and two months for the “enter premises”[2] charges and added one month for each failure to appear. The learned Magistrate noted that he had taken into account the appellant’s cooperation with police and admissions. His Honour imposed concurrent terms for other charges as set out in the schedule.
Submissions on Appeal
- [10]The appellant submitted the sentence was excessive, relying on three aspects of the Magistrate’s reasons which led to that result.
- [11]First, it was submitted the learned Magistrate was simply overborne by the number of offences, misapplying the totality principle as: “The more offences you commit, of course, the greater the totality of the criminality and, necessarily the higher the sentence ought to be.”[3]
- [12]The appellant submitted that the apparent emphasis on the number of charges diverted his Honour from a thorough examination of the nature of the charges. The 20 seriously named offences of breaking and entering all occurred in a confined space and time in circumstances where the undisguised and trapped offenders were bound to be quickly apprehended, resulting in no actual loss of property.
- [13]Second, the appellant pointed to his demonstrated co-operation with police, admissions and, most importantly, the circumstances which it was said led to the offending and the measures taken since to show the prospect of rehabilitation. The latter included a written apology and a detailed recovery plan. The appellant had not committed property offences since 2011. He had been working until his mother’s death led to his spiralling back into drug use and this offending.
- [14]Third, each sentence for failing to appear was excessive and their total was excessive. Two of the failures occurred on the same day – that is, the appellant failed to appear once, but in respect of bail orders of two different Magistrates’ Courts.
Consideration
- [15]Each aspect of the appellant’s argument has some attraction. But the total sentence of two and a half years’ imprisonment for almost 12 months of offending, was not excessive. The offending showed disregard for the property of others and the safety of road users committed by a mature aged offender with significant criminal history and included failing to appear three times in respect of four different bail orders.
- [16]The statement relied on in paragraph 11 is not an accurate statement of the totality principle, but the learned Magistrate did not claim it was. That rule requires the sentencer to assess the overall criminality balanced by matters in the offender’s favour, then stand back and consider whether the sentence imposes a crushing blow likely to defeat the interests of rehabilitation.[4] For all this offending, a period of 30 months with release on parole after serving 10 months was neither excessive nor crushing for a seasoned offender. I have examined the cases referred to by both parties which were designed to set a range and demonstrate each party’s argument. They included: R v Taylor [2007] QCA 214; Smith v Commissioner of Police [2012] QDC 48; Penhaligon v QPS [2020] QDC 289; Saunders v Commissioner of Police [2022] QDC 157; Liedke v Commissioner of Police [2023] QDC 13.
- [17]The learned Magistrate did not speak much of the appellant’s written material. His Honour expressly took into account, in setting the pre-release period, the appellant’s a co-operation and pleas of guilty. On one view of it, the appellant did all one in his position could to show his prospects of rehabilitation, including engaging with narcotics anonymous, presenting a written plan against relapse and expressing remorse articulately. The appellant’s admirable aims support the setting of his parole release at one-third of the total. The true test will be upon him release in the community. The sentence had to address the purposes of personal and general deterrence, punishment and community condemnation of such persistent criminality as well as keeping an eye on the appellant’s rehabilitation.
- [18]Several cases were relied on to show that each term of imprisonment for one month was excessive and so was their total. The maximum penalty is 2 years imprisonment. Whatever was thought in other cases to be appropriate, the circumstances of this case called for a real penalty for each failure to appear. It would be tinkering to adjust one of the terms to acknowledge that a single omission resulted in two of the offences. And, in any case, two orders were breached.
The appeal is to be dismissed.
Footnotes
[1] Decision of Magistrate Shearer 8 September 2023,1.
[2] Criminal Code 1899 (Qld) s 421.
[3] Decision of Magistrate Shearer 8 September 2023, 3.
[4]The time-honoured statement of the principle in DA Thomas Principles of Sentencing 2nd ed (1979) is reproduced, among other places, in Johnson v The Queen [2004] HCA 15 at [18].