Forlonge v Cooke

[2009] QDC 236

[2009] QDC 236

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE EVERSON

No 1670 of 2009

GARY WILLIAM FORLONGE	Appellant
and
SHANE CHRISTOPHER COOKE	Respondent

BRISBANE

..DATE 05/08/2009

JUDGMENT

HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act 1886 against the decision of a Magistrate sitting in the Magistrates Court at Caboolture on 18 May 2009. The defendant pleaded guilty to one count of possession of a utensil and received a sentence of 2 months' imprisonment with a parole eligibility date of 19 June 2009, at the conclusion of that term.

On behalf of the appellant it is submitted that the sentence imposed was manifestly excessive in all the circumstances.  Four precise grounds of appeal are identified in the appellant's outline of argument.  These are as follows:-

.Ground 1 - The learned Magistrate erred in failing to consider the appropriateness and effect of imposing a term of imprisonment;

.Ground 2 - The Magistrate erred in failing to have regard to relevant factors in determining the appropriate head sentence and variation of the parole date;

.Ground 3 - The Magistrate erred in placing undue weight on the applicant's SPER debt;  and

.Ground 4 - The Magistrate erred in failing to consider the minor nature of the offence and the appropriate sentence.

The appellant has a lengthy criminal history.  Indeed, he had only been released on parole after a lengthy period of imprisonment on 18 March 2008 when he committed the offence on 10 April 2008.  He, therefore, came before the Court in circumstances where he was in breach of his parole having offended only 23 days after he was released.

It is clear that the offending, for which he was sentenced by the learned Magistrate, also constituted a breach of a probation order which had previously been made.  The appellant's criminal history contained numerous entries which are helpfully summarised in the outline of argument on behalf of the respondent in the following terms:-

.Three previous convictions for possession utensils which resulted in conjunction with other offences in at least one term of imprisonment;

.Entries for "street offending";

.Property offences, dishonesty offences and offences of violence;  and

.Breaches of many orders.

The appellant was given the benefit of community based orders

including two intensive correction orders which were imposed on 5 April 2001 and 14 April 2005.  In each instance he breached his intensive correctional order.  The appellant's criminal history also discloses a breach of a suspended sentence and numerous breaches of bail.

The learned Magistrate stated, in imposing the sentence, that he took into account the appellant's plea of guilty but noted that he came to the Court with "an absolutely appalling criminal history".  The learned Magistrate further noted that:-

"The Court has attempted to assist you with many problems including the use of illicit drugs.  You can't even pay fines that have been imposed and from what I've been informed today you're on parole and you have not even been complying with the conditions of your parole".

It was uncontentious in the hearing below, that when the matter came before the Court the prosecution had become aware that the appellant had failed a urine analysis test and that this would result in a suspension of his parole for at least 28 days and possibly more serious consequences.

It was also brought to the attention of the learned sentencing Magistrate that the appellant had in the order of $10,000 of unpaid outstanding fines as a consequence of previous sentences which had been imposed upon him.  In his sentencing remarks the learned Magistrate expressly proceeded to state that having regard to the appellant's "extensive criminal history" and "non-compliance with previous orders made by Courts" that "a term of imprisonment must be imposed in respect of this matter".

It is firstly submitted that the learned Magistrate erred in failing to consider the appropriateness and effect of imposing a term of imprisonment because he failed to consider the effect of section 209 of the Corrective Services Act 2006, which provides that a prisoner's parole is automatically cancelled if the prisoner is sentenced to another period of imprisonment for an offence committed during the period of the order.

On behalf of the appellant, Ms Hillard submits that this was a material consideration which was not expressly brought to the Magistrate's attention and was not considered by him in imposing the sentence, the subject of this appeal.  It was, in fact, submitted to the learned sentencing Magistrate by the practitioner who appeared on behalf of the appellant at the sentencing hearing that in light of the circumstances before the Court the appellant would have to "serve custody" and that a concurrent term of imprisonment was, therefore, sought.

It is apparent to me that the learned Magistrate was alert to the fact that the breach of the appellant's conditions of parole by failing the urine analysis test was such that it was inevitable that the appellant was returning to prison for a period of time and that whether his parole was ultimately revoked or not was a matter which would fall to be determined in another context.  Against this background the fact that
s 209 of the Corrective Services Act was not expressly referred to does not justify the intervention of this Court.

The second ground that is agitated is that the learned Magistrate should have had regard to a number of factors and concluded that a wholly suspended period of imprisonment or a community based order would have been an appropriate sentencing option.

Regrettably neither of these options were expressly put to the learned sentencing Magistrate by the legal representative of the appellant. Ms Hillard particularly draws my attention to the sentencing guidelines in section 9 of the Penalties and Sentences Act 1992 and notes that section 9(2)(l) requires consideration of sentences already imposed on the offender that have not been served and that subsection (m) requires a consideration of sentences that the offender is liable to serve because of the revocation orders made under that Act or another Act for contraventions of conditions by the offender.

Significantly, section 9(2)(a), which requires that the Court must have regard to principles that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable, also were not expressly taken into account.

I note, however, that the learned sentencing Magistrate made mention of a number of factors.  He noted the inability of the appellant to pay the fines that had been previously imposed upon him and noted that he was in breach of his conditions of parole.  He had regard to the appellant's criminal history which does disclose three previous entries for the same offence and extensive non-compliance with community based orders.

It was open to the learned sentencing Magistrate to conclude that a sentence of imprisonment was the last resort and it is not possible to conclude that the learned sentencing Magistrate did not have regard to the other sentences already imposed and, in particular, those which the appellant was liable to serve.

In his sentencing remarks he placed the offending behaviour in the context of the criminal history and the breach of parole and the breach of probation that were constituted by it.  So far as ground three is concerned, it is trite to observe that it would not have been an appropriate sentence to fine the appellant in circumstances where there was no reasonable prospect of him being in a position to pay the fine.  This process evidenced the learned Magistrate weighing up whether a sentence of imprisonment was, indeed, the last resort.

As for ground four, it is true that the sentence imposed by the learned Magistrate would appear to be a heavy one.  In Muirson v. Jones (unreported Queensland Court of Appeal 21/11/95) a 30 year old with an extensive criminal history consisting of possession of dangerous drugs, supply of dangerous drugs, aggravated assault of a sexual nature and other offending was sentenced on appeal for possession of a small amount of cannabis sativa, namely 1 gram, to imprisonment for one month.

It does appear to be the case that heavier sentences imposed for this type of offending usually occur in circumstances where it is associated with other more serious offending. Nonetheless, it is important to bear in mind the principles upon which an appellate Court in these circumstances operates. These are well-established and summarised in House v. The King (1936) 55 CLR 499.

At 504-505, Dixon, Evatt and McTiernan JJ stated as follows:-
"It is not enough that the Judges comprising the Appellate Court consider that, if they had been in the position of the primary Judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the Judge acts upon a wrong principle, if he allows extraneous or erroneous matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so."

The fact that another judicial officer may have imposed a less severe penalty is, therefore, not sufficient for the purposes of disposing of an appeal such as this.  I am not persuaded that having regard to the appellant's extensive criminal history, his failure to comply with previous community based orders, his failure to pay fines which were imposed and his flagrant breach of parole in committing the offence in question, that the sentence can be described as manifestly excessive.

Although it was a stern sentence, when one considers that the maximum penalty for an offence of this type is 2 years' imprisonment, it was nonetheless within range.  It is regrettable that the legal representative of the appellant at the sentencing hearing did not place more sentencing options before the learned sentencing Magistrate.  However, I'm unable to conclude that the learned sentencing Magistrate was not alert to the consequences of the sentence which he imposed.

The learned Magistrate was open to conclude, as he did, that the conduct of the appellant had been such as to limit the options available to him.  The appeal is, therefore, dismissed.  Notwithstanding your valiant efforts, Ms Hillard.  I commend both of you for your very fulsome submissions and your very helpful observations.

MS HILLARD:  Your Honour, I neglected to mention there's no application for costs.

HIS HONOUR:  I didn't think there would be.  That's all right.  Thank you very much for your assistance this morning.

MS HILLARD:  Thank your Honour.

MS LITCHEN:  Thank you, your Honour.

-----