Kofoed v. Ziebarth
[2007] QDC 250
•26 July 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
Kofoed v Ziebarth [2007] QDC 250
PARTIES:
DARREN GORDON KOFOED
(Appellant)
V
CONSTABLE M J ZIEBARTH
(Respondent)
FILE NO/S:
6 of 2007
DIVISION:
Criminal
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Mornington Island
DELIVERED ON:
26 July 2007
DELIVERED AT:
Mt Isa
HEARING DATE:
26 July 2007
JUDGE:
Dearden DCJ
ORDER:
Appeal against sentence granted
CATCHWORDS:
APPEAL AGAINST SENTENCE – where the appellant was convicted of counts of possession of dangerous drugs, possessing liquor in a restricted area, possessing dangerous drugs, and permitting a place to be used for the commission of a crime – where the appellant was sentenced to an effective head sentence of 18 months’ imprisonment with a release date after 12 months’ imprisonment – whether the sentence imposed was manifestly excessive
COUNSEL:
Mr J. Greggery for the appellant
Mr N. McGhee for the respondent
SOLICITORS:
Aboriginal and Torres Strait Islanders Legal Service for the appellant
Director of Public Prosecutions for the respondent
HIS HONOUR: This is the appeal by appellant Darren Gordon Kofoed and respondent Constable M J Ziebarth. The appellant appeared in the Mornington Island Magistrates Court on 17 May 2007, where he entered pleas of guilty to the following offences and was punished as I outline:-
Possession of dangerous drugs (on 12 April 2007)
- convicted and sentenced to six months' imprisonment;
Possessing liquor in a restricted area (on 12 April 2007) - convicted and sentenced to three months' imprisonment;
Possessing dangerous drugs (1 May 2007)
- 12 months' imprisonment cumulative on the possession of dangerous drugs on 12/4/2007, and
Permitting a place to be used for the commission of a crime (Drugs Misuse Act) - 1 May 2007
- convicted and sentenced to 12 months' imprisonment.
A parole release date of 17 May 2008 was fixed, which as Mr Greggery points out in his helpful written outline, was an effective head sentence of 18 months' imprisonment with a release date after 12 months' imprisonment.
The ground of the appeal was that the sentences imposed in each case were manifestly excessive.
The appellant was 43 years of age at the time of sentencing; he was involved in a de facto relationship with a Mornington Island woman with a seven week old baby at the time he was sentenced, as well as two other children; he was employed as a grocery supervisor at the Mornington Island Store and was receiving an income. This as Mr Greggery points out in his oral submissions, is unusual and indicates in a place such as Mornington Island where there are very few paid positions, that the appellant had some significant ability to contribute in that community.
The criminal history shows both a number of convictions for possession of dangerous drugs (relevantly cannabis), but prior to this sentence the most substantial fine imposed had been a fine of $900, imposed on 21 September 2006.
Relevantly, the amounts of drugs involved were on 12 April 2007 two small amounts of cannabis in alfoil found in his wallet (by implication very small amounts), and in respect of which the appellant told police he was utilising the cannabis as pain relief, and one gram of green leaf material located on 1 May 2007 which was the remains of some cannabis, part of which had been consumed on that day with friends and the admission to that consumption with friends formed the basis of the "permit premises" charge.
The possession of liquor in a restricted area count arose from the defendant returning to Mornington Island with four bottles of spirits, which he intended to consume with friends on his birthday, and as Mr Greggery has pointed out, possesses none of the features of what is usually known as "sly grogging" i.e. the profitable import of alcohol to restricted communities.
The defendant has previously been dealt with for a similar charge some three years earlier and had been convicted and fined the sum of $200.
The use of cumulative penalties in those circumstances is clearly quite extraordinary, and difficult to understand. It is almost trite to observe that were the many offenders who come before Magistrates Courts throughout Queensland for possession of dangerous drugs charges to be dealt with in this way on a regular basis, the prisons of Queensland would have no opportunity of dealing with the demand. That of course is not necessarily a ground for granting an appeal, but it does indicate the concern that an appellant Court has with the imposition of penalties of those in line with the penalties imposed by the learned sentencing Magistrate on this occasion, when compared to the more usual penalties imposed for such offences on a State-wide basis.
It is clear that imprisonment should have been used as a last resort and that the Magistrate placed, it would seem, too much emphasis on the use of imprisonment as a blunt instrument in sentencing, and seems to have placed too little weight on the clear and obvious priority of rehabilitation. It does seem that the appellant now appreciates the need to do something about, importantly, his use of illegal drugs, especially cannabis, and of course the concurrent concern about alcohol, particularly as the possession of that alcohol breaches the relevant restrictions applicable to the possession and consumption of alcohol on Mornington Island.
The appellant has now served a period from 17 May until 26 July 2007, effectively a total of 70 days, which is a shade over two months.
The concern expressed by Mr Greggery, which I accept is legitimate, is that if the appeal is granted, rather than impose a penalty of time served which would in effect send his criminal history up a substantial notch, it would be more appropriate to grant the appeal and impose a term which serves the rehabilitative function and in effect takes into account the time served, which has been a period of enforced sobriety, but gives the appellant the opportunity to start again with appropriate assistance by way of a probation order in dealing with his problems, but at the same time enabling him to again live with his family and care for them in the context of his residence on Mornington Island.
In all of the circumstances, it seems to me that the Learned Magistrate has imposed a sentence that was manifestly excessive. That was exacerbated by the use of a cumulative sentence in circumstances where that appears, on the facts placed before the sentencing Court, quite inexplicable, and in circumstances where the appellant has not previously had the benefit of a probation order, the failure to offer the defendant that opportunity clearly in my view indicates an error in the sentencing process.
Mr Greggery points out to me that the appellant's legal representative at the sentence on Mornington Island, indicated his client's willingness to comply with probation, and in any event appellate Courts have regularly accepted submissions from counsel at the Bar table, indicating that their client was willing to comply with probation as being sufficient to deal with the relevant provisions of the Penalties and Sentences Act in respect of a person's consent to the imposition of probation, where as is usually the case on an appeal the relevant individual is not present before the Court.
In all of the circumstances then, the appeal is granted and the prison sentences imposed by the learned Magistrate in respect of the each of the four counts, relevantly six months for the possession of a dangerous drugs charge on 12 April 2007, three months for the possession of liquor in a restricted area, 12 months cumulative in respect of the possession of a dangerous drug on 1 May 2007, and 12 months' imprisonment for the permit premises on 1 May 2007 is set aside.
I substitute in respect of each of the four counts concurrent penalties of 12 months' probation, and that will in addition to the usual requirements, include an obligation for the appellant to report to a probation and parole office within five business days of his release from custody, which I assume will now probably not take place until at least tomorrow. And secondly, will have a special condition that he undertake such medical, psychiatric or psychological treatment and/or programs and/or counselling as directed by his authorised Corrective Services Officer in respect of drug and alcohol treatment.
The appeal is granted, and probation of 12 months length with those specific conditions including the reporting period which I have outlined and the special condition will be the sentence substituted in respect of each of the four charges upon which the appellant has appealed.
Any matters that I need to deal with?
MR McGHEE: No, your Honour.
MR GREGGERY: Just so long as the relevant documents get to the gaol.
HIS HONOUR: In the circumstances though, the convictions which would have automatically been recorded remain recorded in respect of each of the sentences.
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