Johnson v Commissioner of Police

[2010] QDC 268

[2010] QDC 268

DISTRICT COURT

COMMISSIONER OF POLICE	Respondent
DATE 06/05/2010

APPELLATE JURISDICTION
JUDGE SAMIOS

No 279 of 2009

Appellant

BRENDAN LEE JOHNSON
and

SOUTHPORT at Southport, the appellant pleaded guilty to a charge of stealing at the Gold Coast on 21 May 2009. The sentence imposed by the learned Magistrate was that he was convicted and sentenced to 12 months' imprisonment, with a parole release date 22nd May 2009.

The basic facts are that the day before, the appellant went to a K-Mart store and stole a rod and reel set. He admitted, when speaking to the police, that he didn't have enough money to pay for it and his intention was to steal these items. He appeared to be remorseful.

However, the appellant came before the learned Magistrate with a significant criminal history, including numerous offences of dishonesty, and he has, at some stage in the past, served a

term of custody, according to the learned Magistrate which has

not been disputed before me.

The fact remains that it is not just the stealing of the rod expressly state he took into account the plea of guilty. However, I consider that it is not fatal to upholding the learned Magistrate's decision. Clearly, in all the circumstances, I consider there is no indication that the plea of guilty was not taken into account. On the contrary, even though it was not expressly said to be taken into account, the end result is not beyond what is reasonable for the learned Magistrate to do in the circumstances.

and reel set that is involved in sentencing. It is broader
than that, and encompasses a person's criminal history as
well. It may be that the appellant was remorseful; it may be
he pleaded guilty immediately; and it may be the value of what
was involved was not significant. But nevertheless, the
learned Magistrate had to take into account, amongst other
things, the age of the appellant and his criminal history.

Therefore, I find the penalty imposed was not excessive in all the circumstances, and I dismiss the appeal.

MR McNAB: Thank you, your Honour.
HIS HONOUR: Yes, next matter?

MR McNAB: Your Honour, just in relation to that, my friend's just informed me that the appellant had spent two days in custody that wasn't declared. I was unaware of that.

HIS HONOUR: All right. Except - I dismiss the appeal, except

I order that the appellant - have you got the dates?

MR MITCHELL: Your Honour, he was in custody from the 22nd of

May to the 22nd of May, effectively two days.

HIS HONOUR: 20 of - 20 May?
MR MITCHELL: 21 May and 22 May 2009.
HIS HONOUR: That's one day.
MR MITCHELL: As I understand it, it's one night, but the
Department of Corrective Services considers the day of
sentence to also be a day in custody.
HIS HONOUR: Well, I declare the two days the appellant was in
presentence custody between the 21st of May 2009 and the 22nd

of May 2009, as time served under the sentence.

MR MITCHELL: Thank you, your Honour.

MR McNAB: Thanks, your Honour.

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