Daniels v Office of the Director of Public Prosecutions
[2023] QDC 194
•22 September 2023
DISTRICT COURT OF QUEENSLAND
CITATION:
Daniels v Office of the Director of Public Prosecutions [2023] QDC 194
PARTIES:
THOMAS FRED DANIELS
(Appellant)V
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS
(Respondent)
FILE NO/S:
2403/23
DIVISION:
Civil
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court, Brisbane
DELIVERED ON:
22 September 2023
DELIVERED AT:
Brisbane
HEARING DATE:
22 September 2023
JUDGE:
Heaton KC DCJ
ORDER:
1. THE APPEAL IS ALLOWED.
2. THE SENTENCE OF THE LEARNED MAGISTRATE IMPOSED ON 1 AUGUST 2023 IS SET ASIDE.
3. THE APPELLANT IS RE-SENTENCED. THE APPELLANT IS CONVICTED BUT NOT FURTHER PUNISHED.
4. IN EXERCISING THE SENTENCE DISCRETION AFRESH, IT IS DECLARED THAT THE APPELLANT HAS BEEN REMANDED IN CUSTODY IN RELATION TO THIS OFFENDING FOR A TOTAL PERIOD OF 238 DAYS FROM 27 JANUARY 2023 UNTIL 22 SEPTEMBER 2023. IT IS DECLARED THAT THAT PERIOD OF IMPRISONMENT IS TAKEN INTO ACCOUNT IN FRAMING THE SENTENCE IMPOSED TODAY AND THAT NONE OF THAT TIME IS TAKEN TO BE IMPRISONMENT ALREADY SERVED UNDER THIS SENTENCE.
CATCHWORDS:
CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the Appellant was sentenced in the Magistrates Court to nine months imprisonment with parole eligibility after the appellant had served three months, after pleading guilty to the offence of receiving tainted property – where the Appellant committed the offence whilst on parole – where the offence was committed in the context of a concerning history of criminal offending – where the Appellant appealed primarily on the ground that the sentence imposed was manifestly excessive – whether the sentence was manifestly excessive.
COUNSEL:
TR Morgans for the Appellant.
MC Hickey for the Respondent.
SOLICITORS:
Aboriginal and Torres Strait Islander Legal Service for the Appellant.
Office of the Director of Public Prosecutions for the Respondent.
The appellant, Thomas Fred Daniels, pleaded guilty in the Magistrates Court at Brisbane on the 1st of August 2023 to one charge of receiving tainted property, contrary to section 433(1)(d) of the Criminal Code Queensland. The maximum penalty for that offence is seven years’ imprisonment. He was sentenced to imprisonment for nine months, with parole eligibility fixed at 1 November 2023, which is after the appellant had served three months of that term of imprisonment. The appellant has appealed against the sentence pursuant to section 222 of the Justices Act 1886 on the ground, primarily, that it is manifestly excessive.
The appellant was 19 years of age at the time of the offence and 20 years of age at the time he was sentenced in the Magistrates Court. He has a relevant criminal history despite his young age, which, most relevantly, includes a conviction for offences of grievous bodily harm and attempted armed robbery, for which he was sentenced to three years’ imprisonment on the 31st of October 2022. He was sentenced on that occasion on the basis that he was a party to the actions of another person. It was ordered that he be released on parole on 1 November 2022. However, he remained in custody for other offences, including wilful damage, two charges of serious assault, threatening violence and common assault.
He appeared in the Magistrates Court at Brisbane on 21 November 2022 and pleaded guilty to those offences and was sentenced to a total of 12 months’ imprisonment with immediate parole release. He was released on parole on that date, 21 November 2022. Regrettably, the incentive to remain offence-free as a result of being on parole and the threat of a return to custody in the event of further offending did not prevent the appellant from committing the offence of receiving tainted property, the subject of this appeal. As a consequence of his being charged with further offending, his parole order was suspended, and he was returned to custody on 27 January 2023. He has remained in custody as a consequence of both the suspension of his parole and on remand for the present offence through until he was sentenced on the 1st of August 2023.
The circumstances of the present offence are that on the 26th of January 2023, the appellant was in the company of a group of other youths. Some of those youths approached another male person and demanded money and threatened him if he did not comply with their demands. That fellow was robbed of his mobile phone, and demands were made of him for money. His shoes were removed from him by one of the youths and thrown onto the railway tracks. The appellant took no part in those activities and was on the opposite platform at the train station. He then retrieved the discarded shoes and put them on before he ran off in the company of the other youths. Whilst the offence to which the appellant pleaded guilty was a comparatively minor offence, it was committed in the context of a concerning history of criminal offending and whilst having only recently been released on parole.
As a result of the suspension of his parole order, he was returned to custody, where he remained for a period of 187 days, before appearing for sentence on the 1st of August 2023 in the Magistrates Court in Brisbane. The appellant submits that the learned Magistrate erred by imposing a sentence which was so far outside the bounds of a permissible sentence as to be manifestly excessive. The Director of Public Prosecutions concedes that the sentence imposed was manifestly excessive. That concession is appropriately made. The Prosecutor below submitted for a short term of imprisonment, wholly suspended. A sentence of that nature would not have cancelled the appellant’s parole order by operation of section 209(1) and subsection (3) of the Corrective Services Act 2006.
The learned Magistrate’s sentencing remarks refer, appropriately, to the concern arising from the fact that this offence was committed so soon after being released on parole. She noted also that the report of Community Corrections officer detailed the failure of the appellant to engage with the recommended interventions designed to address the factors underpinning his offending conduct, such as his association with others and substance abuse. Whilst I note those features and the poor engagement of the appellant with the parole order, I also note the limited opportunity for interventions to be given effect because of the short time spent on parole.
The learned Magistrate also referred to the disadvantaged background of the appellant. His parents separated when he was 11 years of age, and he was relocated a number of times and exposed to domestic violence and drugs. He was only schooled to year 10.
An appeal pursuant to section 222 of the Justices Act 1886 is by way of rehearing. The powers of this Court are then set out in section 225 of the Justices Act and include that this Court can confirm, set aside or vary the appealed sentence or make any other that the Court considers just. A sentence will be excessive if it is unreasonable or plainly unjust or if, in the sentencing process, it was affected by error of the kind described in House v The King [1936] 55 CLR 499.
In addition to the contention that the sentence is manifestly excessive, specific error, in the House v The King sense, is alleged, in that the learned Magistrate failed to properly comply with section 159B(3B) of the Penalties and Sentences Act 1992. That section requires a Court to declare that a period of pre-sentence custody which may be declared as time served under the sentence then imposed but which is not so declared. The sentencing remarks of the learned Magistrate reflect that whilst it was clear that her intention was to not declare the period of pre-sentence custody, she did not formally declare her intention in compliance with section 159A(3B), and, again, the concession of error by the DPP is appropriately made.
On a review of the record of this case invited by this appeal, I have concluded that the learned Magistrate erred, in that she imposed a sentence which was manifestly excessive in all of the circumstances. I also conclude that the allegation of specific error in the failure to properly comply with section 159A(3B) of the Penalties and Sentences Act is made out. The appellant must be re-sentenced.
As a result of the commission of this offence, the appellant was returned to custody, where, as I have said, he remained for 187 days before being sentenced by the learned Magistrate. Since the time of the sentence, he has remained in custody for a further period from 1 August 2023 until today, 22 September 2023. That is a period, on my maths, of 51 days.
Whilst acknowledging the concerning context of this offending – that is, it was committed whilst on parole and in the continuation of a concerning history of criminal offending – the level of actual criminality is comparatively low. In sentencing the appellant, it is necessary to impose a penalty which is just in all of the circumstances. In this case, structuring a sentence which will, to the extend available, facilitate the opportunity for rehabilitation of the appellant is, in my view, warranted. I note that the consequence of continued offending has been clearly demonstrated to the appellant by his return to prison as a result of this offence. I note also that the full-time end date of the sentence imposed by his Honour Judge Long on 31 October 2022 is the 8th of September 2024.
The consequence of that is that the appellant will continue under the constraints and supervision of the community corrections office for that period. I am satisfied that his continued supervision, under that order, will serve to protect the community from further offending by him, both in its personal deterrent effect and in the support and guidance that it will provide to facilitate the continued rehabilitation of the appellant. Therefore, it is not necessary in re-sentencing that I structure a sentence which will add to the continued supervision of the appellant in the community.
In addition, he has served the period from 1 August until 22 September 2023 as a result of the sentence imposed. As I have said, that is on my maths, an additional period of 51 days in custody which is directly attributable to this offending.
The appellant is now 20 years of age. He was 19 at the time of the offence. He pleaded guilty at an early time once his criminality was reflected in the appropriate charge. Consequently, in my view, the period of time already served as a direct consequence of his offending, whilst on parole, is such that no additional punishment is warranted to meet the requirements of a just sentence.
The order of the court is:
1. the appeal is allowed.
2. the sentence of the learned magistrate imposed on 1 August 2023 is set aside.
3. the appellant is re-sentenced. The appellant is convicted but not further punished.
4. in exercising the sentence discretion afresh, I declare that the appellant has been remanded in custody in relation to this offending for a total period of 238 days from 27 January 2023 until 22 September 2023. I declare that I have taken that period of imprisonment into account in framing the sentence I impose today and that none of that time is taken to be imprisonment already served under this sentence. A conviction is recorded.
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