Stirling v Commissioner of Police
[2025] QDC 84
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
- Stirling v Commissioner of Police[2025] QDC 84
- Add to List
Stirling v Commissioner of Police[2025] QDC 84
Stirling v Commissioner of Police[2025] QDC 84
DISTRICT COURT OF QUEENSLAND
CITATION: | Stirling v Commissioner of Police [2025] QDC 84 |
PARTIES: | MICHAEL JOHN STIRLING (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO: | File No 1343 of 2025 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to section 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 18 June 2025 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 13 June 2025 |
JUDGE: | Loury KC DCJ |
ORDERS: |
|
CATCHWORDS: | APPEAL – MAGISTRATES – APPEAL AGAINST SENTENCE – whether there was a denial of procedural fairness – where no submissions were made on a custodial sentence – where the appellant was warned of potential custodial sentence – whether custodial sentence was manifestly excessive |
LEGISLATION: | Justices Act 1886 (Qld) s 222 Penalties and Sentences Act 1992 (Qld) s 9(10) |
CASES: | Chakka v Queensland Police Service [2024] QCA 213 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 HT v The Queen (2019) 269 CLR 403; [2019] HCA 40 R v Kitson [2008] QCA 86 R v MCW [2019] 2 Qd R 344; [2018] QCA 241 R v Robertson [2017] QCA 164 |
SOLICITORS: | NG Honnef, Legal Aid Queensland for the Appellant. AL Alder, Office of the Director of Public Prosecutions for the Respondent. |
- [1]The appellant entered pleas of guilty to four offences on 9 April 2025 and his sentence adjourned. He was sentenced on 19 May 2025 to nine months imprisonment for an offence of possessing by night instruments of house-breaking with parole release fixed after he had served three months (on 18 August 2025). For offences of possessing a knife in a public place and possessing property suspected of having been used in connection with a drug offence, both on 15 November 2024, and for possessing utensils that had been used on 16 October 2024 the appellant was convicted and not further punished.
- [2]The appellant appeals against the severity of his sentence on the grounds that:
- there was a denial of procedural fairness in failing to invite the appellant to make submissions against the imposition of a period of custody;
- the learned Magistrate erred in imposing a custodial sentence when the circumstances did not warrant it; and
- the sentence was manifestly excessive in all the circumstances.
- [3]The circumstances of the offences are as follows: on 16 October 2024 at 7.15 am the appellant was found in possession of a glass pipe that he had used to smoke methylamphetamine. On 15 November 2024 the appellant was found by police in possession of a three lock-picking devices, a Stanley knife and a glass pipe which had been used to smoke methylamphetamine. The appellant disclosed his possession of the Stanley knife. The lock-picks and pipe were found upon police searching a bag in the appellant’s possession. The appellant’s explanation for his possession of these items was that he used the lock-picking devices for “lock-pick sport”, he used the knife to cut zip ties on his scooter and the pipe was clean and therefore not illegal to possess.
- [4]The appellant was unrepresented at his sentence. He was told at the outset of the hearing by the learned Magistrate that he was at risk of being sent to jail. It was twice suggested during the course of the hearing that he speak to the duty lawyer which he declined.
- [5]The appellant, in his submissions to the learned Magistrate, said that he had been shot in the leg with a shotgun on 29 September 2024. He had not made a complaint to police. He was receiving Workcover benefits. He said that he had the lock-picks because it was a hobby. The appellant was asked what submission he made on penalty and the appellant submitted “a fine or something”.
- [6]The learned Magistrate in his reasons stated that the appellant, when intercepted by police “was fairly frank with them” and showed them everything he had, including the house-breaking implements. He took into account the co-operation given to police in the investigation. The learned Magistrate made specific reference to the plea of guilty and considered that it demonstrated remorse. He considered that the appellant’s offending needed to be considered in the context of his criminal history which was “littered with property offences”. The learned Magistrate considered that deterrence, both personal and general, and denunciation were the sentencing principles of most significance. He also commented that given the appellant’s prolific offending the sentence needed to protect the community from the risk of the appellant’s re-offending. He considered the appellant’s criminal history to be an aggravating feature of the offending. He took into account that a sentence of imprisonment was a sentence of last resort and that a sentence allowing the appellant to remain in the community was preferable. He considered that a term of imprisonment was necessary in order to achieve the purposes of sentencing.
- [7]The appeal to this court is pursuant to s 222 of the Justices Act 1886 and is by way of rehearing on the evidence given in the proceeding below. To succeed the appellant must demonstrate some legal, factual or discretionary error. As the appeal is from the exercise of the sentencing discretion the appellant must establish error in the way described in House v The King[1] in which error resulted in a sentence which is excessive.[2] If I am satisfied that, without the error identified, a lesser sentence should have been imposed the sentence should be set aside and the sentencing discretion re-exercised. If the sentence is otherwise unreasonable or plainly unjust so as to infer some error infected the exercise of the sentencing discretion, the exercise of the discretion should be reviewed.
- [8]The error identified by the appellant is a denial of procedural fairness in not inviting the appellant to make submissions against the imposition of a period of custody. The appellant contends that the learned Magistrate did not invite submissions on penalty from the prosecutor and did not invite the appellant or prosecutor to make submissions regarding the imposition of a custodial sentence. It is further contended that the learned Magistrate’s statement to the appellant “you realise that you’re at risk of being sent to jail” was wholly inadequate because the statement was made prior to the arraignment and prior to any party advocating its case on penalty.
- [9]It should be noted that this statement made by the Magistrate was made after the arraignment. The appellant was arraigned one month prior to the hearing of the sentence.
- [10]The respondent concedes that there has been a denial of procedural fairness, although the basis for such a concession is not readily apparent.
- [11]It is trite to say that there exists a common law duty to act fairly, in the sense of according procedural fairness, in the making of decisions which will deprive a person of a right or interest including their personal liberty.
- [12]
“It is a fundamental principle of our system of justice that all courts, whether superior or inferior, are obliged to accord procedural fairness to parties to a proceeding. This obligation requires not only that courts be open and judges impartial but that the person against whom a claim or charge is made be given a reasonable opportunity of being heard, which is to say appearing and presenting his or her case. In an adversarial system it is assumed, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. A party can only be in a position to put his or her case if the party is able to test and respond to the evidence on which an order is sought to be made.
Whilst stated as principles or rules deriving from the more general principle of procedural fairness, these rules do not have immutably fixed content. The content of procedural fairness may vary according to the circumstances of particular cases. Procedural fairness is not an abstract concept; rather, it is essentially practical. The concern of the law is the avoidance of practical injustice. It is that consideration which guides a court in deciding whether its procedures should be adapted to meet difficulties which may arise.” (Footnotes omitted)
- [13]In R v Kitson[4] the requirements for procedural fairness were considered in the context of the exercise of the sentencing discretion. Fraser JA referred to the principle of natural justice that a person be afforded a reasonable opportunity to present a case and a reasonable opportunity to respond to the case advanced by the opposing party. In the context of that case where the aspect of the sentence under consideration was unusual and not contemplated in the submissions of either party (the postponement of the parole release date beyond the mid-point of the sentence) it was held the applicant had been denied procedural fairness.
- [14]It is not a requirement of procedural fairness that the sentencing judge set out each and every alternative available to that judge in sentencing a defendant.[5] However procedural fairness may require the disclosure to the parties of an adverse conclusion for the purposes of comment when that conclusion is not obvious or anticipated or reasonably to be expected.
- [15]The appellant was told in the clearest of terms that imprisonment was a possible outcome. He was twice offered the opportunity to take legal advice from a qualified legal representative. He was afforded the opportunity to make whatever submissions he wished to on penalty. The requirements of procedural fairness did not require the learned Magistrate to invite submissions on the precise penalty that he had in mind. On two occasions the learned Magistrate made inquiries as to the maximum penalty available. From a review of the whole of the record it was obvious that a sentence of imprisonment was within the contemplation of the learned Magistrate. The appellant was afforded the opportunity to be heard on penalty. There is no practical injustice which arose.
- [16]I do not consider that there was any denial of procedural fairness.
- [17]Grounds two and three can be considered together. The contention is that the circumstances of the offending did not warrant a custodial sentence and thus the sentence was manifestly excessive. No comparative decisions have been referred to that would allow a consideration of whether the penalty imposed was excessive.
- [18]The appellant’s criminal history reveals convictions for breaking into premises or dwelling houses on multiple occasions since 1999. He was first sentenced to imprisonment for such offending in 1999. He was further sentenced to imprisonment for this same sort of offending in 2005, 2009, 2010, 2016, 2019, 2021, 2022 and 2023. The appellant was convicted of being found in possession of an instrument of house-breaking on 22 April 1999; 14 July 2010 and 14 October 2019.
- [19]On 14 October 2019 the appellant was sentenced to a head sentence of two years and six months imprisonment for offences of burglary and commit indictable offence, possessing by night house-breaking instruments, unlawful use of a motor vehicle, receiving tainted property, possessing dangerous drugs, failing to properly dispose of a syringe or needle, obstruct police and trespass. All of that offending occurred on 29 March 2019. He was released on parole on 24 April 2020 after serving approximately six months of that sentence. He committed further offences whilst subject to that parole order including attempted burglary, unlawful use of a motor vehicle, receiving tainted property, stealing and possessing dangerous drugs and utensils. He was given the opportunity of participating in an intensive drug treatment order which was ultimately revoked on 6 March 2023. He was resentenced and released on parole on 18 May 2023. Consistently with his submissions to the learned Magistrate he did not re-offend whilst on parole.
- [20]Section 9(10) of the Penalties and Sentences Act 1992 requires that the court treat each previous conviction as an aggravating factor if the court considers that it can reasonably be 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. The previous convictions, given the recency of some of them, demonstrate that the appellant is a recidivist offender who presents as a risk of re-offending. The appellant has not been deterred despite significant sentences of imprisonment. He has not demonstrated a commitment to rehabilitating and has not taken advantage of the opportunities that have been afforded him over a significant period of time.
- [21]The respondent, whilst citing the oft quoted statement that a contention that a sentence is manifestly excessive is not established merely because the sentence is markedly different from sentences imposed in other cases and that it must be shown that the disparity is such that it reveals a misapplication of principle or that the sentence is unreasonable or plainly unjust,[6] has not referred me to any comparable authorities that might reveal that the sentence is unreasonable. My own research has revealed that ordinarily this offence is dealt with together with offences of burglary or breaking into premises. It is conceded however by the respondent that the sentence is excessive because of the imposition of a period of actual custody.
- [22]The respondent points to several mitigating features being co-operation with police, the making of admissions and an early guilty plea. The facts referred to above reveal that the appellant did not co-operate with police by revealing his possession of the house-breaking implements, they were located during a search of his bag. The appellant provided what was a false account to police indicating that he had collected an assortment of tools from his father including the lock-picks when these were located in a separate compartment from the tools in his possession. Further, the appellant said that he used the lock-picks to participate in a “lock-pick sport”. The learned Magistrate did not accept this explanation. Participating in a lock-pick sport would not account for why the lock-picks were in the possession of the appellant in the city at 11 pm at night. If there were a lock-picking competition occurring in the city on this evening that would have provided a lawful excuse for the appellant’s possession of the lock-picks. By his plea of guilty the appellant accepted that he had no lawful excuse for his possession of the lock-picks and the appellant has not sought to withdraw his plea or appeal his conviction.
- [23]The learned Magistrate sentenced the appellant on the basis that he was “fairly frank” with the police which to my mind was not the case and that he co-operated with police by showing them everything he had including the house-breaking implements which again, was not the case.
- [24]The offence of possessing by night house-breaking implements is an indictable offence so is considered seriously by the legislature. It carries a term of imprisonment as the maximum penalty, another indication of its seriousness. Whilst the possession of such implements can be seen as an indication that a person is contemplating or intending to break into a property, it is not the case that the offence carries such an intention as an element of the offence. It is also important that the extent of the appellant’s criminal history for burglary and breaking into premises, whilst an aggravating feature to his offending does not overwhelm the exercise of the discretion. The offence is constituted by the appellant being in possession of the lock-picks, not that he intended to use them to break into a dwelling house or premises.
- [25]The respondent in particular points to the seventeen months that the appellant spent on parole without re-offending as pointing to his rehabilitation. For a man with a long-standing drug problem that is a reasonably lengthy period of time. However by the appellant’s possession of a used methamphetamine pipe on two occasions it is clear that he is not yet drug free. In circumstances where the principles that a sentence of imprisonment is a sentence of last resort and a sentence that allows the applicant to remain in the community apply, I do consider that a sentence of nine months imprisonment with release on parole after three months was excessive.
- [26]The maximum penalty for the offence of possessing by night house-breaking implements is three years imprisonment. Given the appellant’s prior convictions for possessing house-breaking implements for which he has received imprisonment as a penalty, I do not consider that a sentence of imprisonment is excessive. The imposition of a fine as contended for by the appellant does not reflect the sentencing principles of personal deterrence and protection of the community. A sentence of six months imprisonment properly reflects the need to punish the appellant in a way that is just, deter him from re-offending in a similar way and protects the community from the risk of his re-offending by requiring his supervision on parole.
- [27]The applicant has now been in actual custody since 19 May 2025, a period of 30 days. He has some outstanding charges to be dealt with on 20 June 2025. I will order that he be released on parole on 20 June 2025.
- [28]The appeal is allowed to the extent that the sentence imposed for the offence of possessing by night house-breaking implements is set aside. For the offence of possessing by night house-breaking implements the appellant is sentenced to six months imprisonment. I order that he be released on parole on 20 June 2025.
Footnotes
[1] (1936) 55 CLR 499; [1936] HCA 40.
[2] Chakka v Queensland Police Service [2024] QCA 213 at [87] - [91].
[3] (2019) 269 CLR 403; [2019] HCA 40 at [17] – [18].
[4] [2008] QCA 86.
[5] R v Robertson [2017] QCA 164 at [56]; R v MCW [2019] 2 Qd R 344; [2018] QCA 241 at [28] – [31].
[6] Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45.