Fawal v the Commissioner of Police

[2015] QDC 43

[2015] QDC 43

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE DEVEREAUX SC

No. 3294 of 2014

STEVEN FAWAL  Appellant

and

THE COMMISSIONER OF POLICE  Respondent

BRISBANE

10.42 AM, MONDAY, 2 FEBRUARY 2015

ORDER

HIS HONOUR: Steven Fawal pleaded guilty on 29 July 2014 in the Magistrates Court in Brisbane to one count of enter premises and commit an indictable offence. The offence occurred on 8 July 2014. The maximum penalty under the Criminal Code for that charge is 14 years but the maximum available to the Magistrate was three years. The sentence imposed was eight months imprisonment with immediate release on parole. I’ve learnt today that Mr Fawal has been placed in custody since late November or December last year for a breach of parole but does not face a new charge. I’ve given him leave under section 223 of the Justices Act to tender some documents. One is a short work reference and one involves the health of his long-term partner. It’s a matter that arose since the sentence and I have decided that it’s a matter of relevance and it was in the interests of justice to admit it on the appeal.

Mr Fawal was born in 1968 and has just into five pages of criminal history.  He was sentenced to imprisonment for a short period back in 1995.  Apart from that, although he has regularly appeared in Courts between that year and 2003, there were no other sentences of imprisonment.  His record includes some for dishonesty but many entries are such matters as breaching a probation order, applying for fine-option orders, breaching fine-option orders.  In July 2013, he was dealt with in the Magistrates Court for charges including entering premises and fraud.  For those charges, he was dealt with by the imposition of a fine of $400.  He was dealt with in July 2014 for one count of possessing tainted property by way of fine of $300.  In March 2014, he was convicted of unlawfully possessing suspected stolen property and was fined $350.  In April 2014, he was convicted of possessing utensils or pipes that had been used and was fined $300.  He was also dealt with on that occasion for unlawful possession of suspected stolen property. 

The facts placed before the magistrate were that, at about 12.30 pm on the 8^th of July 2014, two males entered a construction site which consisted of a former nursing home being converted into residential units.  Obviously, parts of this site had been removed or demolished.  The magistrate was told the site was bounded by temporary fencing and existing fencing.  Two male persons forcibly removed electrical cabling and components from the existing structure by using unknown tools.  They were disturbed by workers at the site who were the witnesses in the matter.  One of the persons decamped on being disturbed and jumped the fence and ran down the street.  The other person was not seen leaving the address.

The police, with the help of witnesses, identified property removed from an upstairs room and stacked under the building ready to be taken away.  That included wiring, aluminium framing and electrical switchboards.  Also, there was a quantity of tools and a toolbox and a pocket knife.  There was a car parked nearby which was connected to the appellant.  When he was located, the appellant gave a version to the police about attending the construction site, locating lengths of pipe on the outside and putting it in the other person’s van.  He said he did not go inside the fence line of the construction site.  He said he later got on a train with a view to returning to the construction site to collect scrap but did not arrive. 

He gave an apparently different story to the magistrate.  Mr Fawal, then representing himself, explained that he had had difficulties over the previous 18 months, having lost a job.  He was trying to get extra money going around to industrial sites, asking if he could have wire and any scrap metal.  He considered this site – the relevant site – had been abandoned.  It is difficult to act on that basis.  It is not clear whether the magistrate did so, given the facts put up by the Prosecution which included that witnesses disturbed the two intruders.  The appellant told the magistrate that he had seen a lot of people going into that property and that he was going to ask permission but did not.  He said, “I just sort of like – I didn’t think too honestly about it.”  He also said he wanted to apologise to the Court and that such a thing would not happen again.

Today, representing himself on the appeal, the appellant has told me at one stage that he did not intend to steal – indeed, he’s not charged with intending to steal upon entry – but I have to accept that the magistrate was sentencing on the basis that, having entered the premises, the appellant and another moved items from one place to another with the intention of stealing them.  That must be the case otherwise there was no charge of stealing. 

The material that was tendered today includes, as I said, medical material concerning the appellant’s long-term partner, Ms Goldspring.  It is a discharge summary which confirms what the appellant told me today - that in August last year she suffered a serious injury which, it seems, has continuing consequences for her and makes daily living difficult.  She cannot return to work.

The appellant’s submission seems to be that the sentence is excessive because a fine should have been imposed; the sentence is excessive because there was no forced entry and access to the premises was easily obtained; there was no breaking and entering and so his case should be distinguished from others that are more serious and did not require a sentence of imprisonment. The magistrate spoke to the appellant and made plain that his Honour took into account the plea and the other matters that the appellant had talked about but the magistrate had to also take into account the five pages of criminal history. That was a matter properly taken into account under section 9 of the Penalties and Sentences Act 1992 and the magistrate noticed that, not so long before the present offence, the appellant had been convicted of a similar kind of offence so his Honour decided that a penalty of imprisonment was required but gave the benefit of immediate parole.

I am not satisfied that it was excessive to impose a sentence of imprisonment, taking into account particularly the appellant’s background.  The question is whether the sentence of eight months, although with immediate parole, was excessive.  It might be that, had I been dealing with the case at first, I would not have imposed such a sentence.  On the other hand, it might be that if I imposed a shorter sentence, it would have involved some actual custody.  Those are really beside the point.  The question is not what an appeal court might have done but whether the sentence imposed was excessive.  Perhaps by a whisker, I am satisfied, particularly taking into account the material that was tendered today concerning the appellant’s partner, that the sentence was excessive. 

The consequence of the sentence on a third person, a family member, is normally of no real relevance.  It would take something special for it to really affect the sentence to any great degree but I accept what I have been told today and taking it into account, I am satisfied that the sentence was excessive but, as will be seen, I do not think it was excessive by any great degree.  Having made that finding, I vary the sentence imposed by the magistrate, replacing the eight-month sentence to one of seven months and I don’t change any of the other orders. 

What I have done, Mr Fawal, is simply reduced your sentence by one month and that is because I have been moved by what you have told me about the need for you to help look after your long-term partner.  Otherwise, I am quite satisfied that what the magistrate did was in a proper exercise of his sentencing discretion.

APPELLANT:   Thank you, your Honour.

HIS HONOUR:   Thank you both.

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