Kirk v Commissioner of Police

[2018] QDC 205

DISTRICT COURT OF QUEENSLAND

CITATION:

Kirk v Commissioner of Police [2018] QDC 205

PARTIES:

George Stanley John KIRK

(Appellant)

v

Commissioner of Police

(Respondent)

FILE NO:

15 of 2018

DIVISION:

Appellate

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

Magistrates Court at Bundaberg

DELIVERED ON:

24 September 2018 (ex tempore)

DELIVERED AT:

Bundaberg

HEARING DATE:

24 September 2018

JUDGE:

Everson DCJ

ORDER:

1.   Appeal allowed;

2.   The order of the sentencing magistrate of 12 June 2018 is set aside, and the appellant is resentenced to imprisonment for six months with a parole eligibility date of 12 December 2018.

CATCHWORDS:

APPEAL – s 222 of the Justices Act1886 (Qld) – where the appellant was sentenced to nine months imprisonment for drug offences and obstructing police – where the learned magistrate was not made aware that the defendant was facing serious charges on indictment which had not yet been presented – where the prospect of parole was illusory – whether the head sentence should be reduced accordingly

Legislation
Justices Act1886 (Qld) s 222

Cases
House v R (1936) 55 CLR 499
R v Young (unreported) Byrne SJA 30/03/2011

COUNSEL:

M Whitbread for the Respondent

SOLICITORS:

Office of the Director of Public Prosecutions (Qld) for the Respondent

1. This is an appeal pursuant to section 222 of the Justices Act 1886 (Qld).

1. On 12 June 2018 the appellant pleaded guilty in the Bundaberg Magistrates Court and was sentenced for the following charges: 

(1) one charge of possessing a relevant substance or things for which he received a sentence of imprisonment for nine months;
(2) one charge of possessing property suspected of having been acquired for the purpose of committing a drug offence for which he received a sentence of imprisonment for six months;
(3) one charge of possessing a relevant substance or things for which he received a sentence of imprisonment for nine months;
(4) one charge of contravening a direction or requirement of police for which he was convicted and not further punished;
(5) one charge of contravening a direction or a requirement of police for which he was convicted and not further punished; and
(6) one charge of obstructing a police officer for which he was sentenced to imprisonment for one month.

All of the sentences imposed were to be served concurrently.

1. The basis for the appeal is that it is submitted that the head sentence of nine months is manifestly excessive in circumstances where the learned Magistrate was not made aware that the appellant was facing serious criminal charges on indictment in respect of which no indictment has yet been presented and that therefore the prospect of parole was illusory.  The parole eligibility date set by the learned Magistrate to reflect the pleas of guilty entered by the appellant was 11 September 2018, that is, after three months.

1. The learned Magistrate correctly observed the relevant considerations in arriving at the sentence she imposed.  Firstly, that the offending commenced within a week of the appellant being released on parole for earlier offending, and that this saw the appellant return to custody on 30 December 2017 and being required to serve out the balance of the 15-month sentence which he was currently serving.  The learned Magistrate also noted that it was important to impose deterrent sentences having regard to the extensive criminal history of the appellant and the fact he was on parole for other drug offending at the time he committed the offences before her.  She particularly and appropriately emphasised the need for sentences reflective of personal deterrence in the circumstances.  The learned Magistrate also gave consideration to considerations of totality, specifically stating that she took into account the overall period that the defendant will be liable to serve as a result of the sentences that she was going to impose.

1. Regrettably, however, the legal representative of the appellant did not make her Honour aware of the serious criminal charges which were in their embryonic stages which appear uncontroversially to bring about the result that the appellant will not have any prospect of obtaining parole from the eligibility date.  I accept the submissions of the defendant that, in the circumstances, in all likelihood he will serve out the entirety of the nine-month head sentence, and in these circumstances there is no allowance for the cooperation with the justice system and the deemed remorse through his pleas of guilty.  By this I mean the credit that he was given through a parole eligibility date after three months is an illusory credit given the circumstances that I am now appraised of.  I should formally say that to the extent that this involves allowing additional evidence to be placed before the Court, I have expressly allowed it to occur.

1. Even allowing for the respect to be accorded to the discretion of the learned Magistrate in the principles laid down in House v R (1936) 55 CLR 499, I am of the view that the sentence is manifestly excessive in circumstances where there is no obvious benefit for the pleas of guilty entered by the appellant. When regard is had to the comparative decision of R v Young (unreported) Byrne SJA 30/03/2011, this is clear.  I therefore accept the submission of the appellant that the sentence was manifestly excessive in the circumstances.  I therefore allow the appeal.

1. It falls to me to impose appropriate sentences in lieu of those imposed below.  In this regard, I am of the view that the appropriate way to give the appellant a tangible benefit for his pleas of guilty is to reduce the head sentence from nine months to six months imprisonment and impose an eligibility date at the end of that term.

1. In respect of each charge of possessing a relevant substance or things, I set aside the sentence of imprisonment for nine months and substitute a term of imprisonment of six months.  I set a parole eligibility date at the end of the term, being 12 December 2018.