Liedke v Commissioner of Police

[2023] QDC 13

DISTRICT COURT OF QUEENSLAND

CITATION:	Liedke v Commissioner of Police [2023] QDC 13
PARTIES:	DANIEL JOHN LIEDKE
(appellant)
v COMMISSIONER OF POLICE
(respondent)
FILE NO:	2858 of 2022
DIVISION:	Appellate
PROCEEDING:	Appeal pursuant to section 222 of the Justices Act 1886
ORIGINATING	Magistrates Court of Queensland
COURT:
DELIVERED ON:	10 February 2023
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2023
JUDGE:	Loury KC DCJ

1.    Extend time within which to appeal to 23 November

ORDER:  2022;

2.    The appeal is allowed to the following extent:

a. For each of the following offences, the

sentences imposed in the Beenleigh Magistrates Court are wholly suspended for an operational period of two years:

i.       Eight offences of stealing on:

30 August 2020, 18 January 2021, 3 March 2021, 14 March 2021, 23 April 2021, 21 May 2021, 28 May 2021 and 8 June 2021;

ii.      Two offences of receiving tainted

property on:

16 April 2021 and 2 June 2021;

iii.       Four offences of fraud on:

16 April 2021 (x2) and 2 June 2021
(x2).

b.	For each of the two offences of enter premises and commit indictable offence by break committed on 21 June 2021, and the two offences of enter premises with intent committed on 21 June 2021, the sentences imposed in the Beenleigh Magistrates Court are set aside and in lieu, the appellant is sentenced to two years imprisonment wholly suspended for an operational period of two years.
c.	For the offences of enter premises and commit indictable offence committed on 17 July 2021, 16 August 2021 and 22 May 2022, set aside the sentences imposed in the Beenleigh Magistrates Court and substitute sentences of two years imprisonment on each to be served concurrently with all other sentences imposed;
d.	Order that the appellant be released on parole on 10 February 2023.

LEGISLATION:	Corrective Services Act 2006 (Qld) s 209, s 211
SOLICITORS:	Legal Aid Queensland for the appellant Office of the Director of Public Prosecutions for the respondent
Introduction

1. The appellant was convicted and sentenced on 51 charges on 21 July 2022. On 23

   November 2022, the appellant filed a Notice of Appeal and Application for an

   extension of time within which to appeal. The Notice of Application for an extension

   of time indicates that his solicitors (not his current representatives) attempted to

   reopen his sentence on 5 October 2022, however that application was refused on the

   basis it appears, that the learned Magistrate did not consider that he had a power to

   re-open the sentence. The respondent does not oppose the granting of an extension

   of time.

2. The ground of appeal is that the learned Magistrate erred in advertently imposing a

   sentence which resulted in the automatic cancellation of the appellant’s previous

   parole order.

   Circumstances of the offences

3. For the purposes of this appeal, it is sufficient to summarise the appellant’s offending

   in the following way.

Date	Offence	Brief summary	Penalty
(imprisonment)
30/8/20	Stealing	Stole tools valued at $99 from Bunnings	6 months
8/10/20	Trespass	Trespassed in the yard of a residential	Convicted but not
property	further punished
(CNFP)
18/1/21	Stealing	Stole meat and groceries from an IGA	6 months
3/3/21	Stealing	Stole an invertor from a marine store	6 months
14/3/21	Stealing	Stole meat and groceries from Coles	6 months
24/3/21	Breach	Failed to report to police	CNFP
bail
condition
7/4/21	Breach	Failed to report to police	CNFP
bail
condition
16/4/21	Receiving	Received a stolen wallet and contents	4 months
16/4/21	Fraud x 2	Used stolen bank card to buy cigarettes	2 months on each
and other items in 2 transactions
17/4/21	Breach	Failed to report to police on 2 days	CNFP on each
and	bail	charge
18/4/21	condition
23/4/21	Stealing	Stole an inverter worth $150 from a	6 months
marine store
21/5/21	Stealing	Stole a package containing two vacuum	6 months
cleaner batteries from a letterbox
28/5/21	Stealing	Stole meat and groceries from	6 months
Woolworths
28/5/21	Fail to	CNFP
appear
2/6/21	Receiving	Received a lost bank card	4 months
2/6/21	Fraud	Fraudulently used the bank card to	2 months
purchase cigarettes
2/6/21	Fraud	Fraudulently used the bank card to	2 months
purchase groceries worth $330 at Woolworths across 6 transactions
8/6/21	Stealing	Stole softdrink from Woolworths	6 months
21/6/21	Break and	Entered a carpark through a closed fire	2 years
enter	exit door and stole a bicycle worth $1200	suspended after
from a storage area	serving 6 months
premises	imprisonment for
and steal	3 years
21/6/21	Break and	In the same carpark stole electronic items	2 years
enter	and shoes valued at $2000 from a secured	suspended after
premises	storage area	serving 6 months
and steal	imprisonment for 3 years
21/6/21	Enter	Entered a neighbouring complex carpark	2 years
premises	and searched through secured property.	suspended after
with intent	serving 6 months imprisonment for 3 years
21/6/21	Enter	Entered a carpark and searched through	2 years
premises	secured property.	suspended after
with intent	serving 6 months imprisonment for 3 years
14/7/21	Fail to	CNFP
appear
17/7/21	Enter	Entered a parked car and stole a bank card	2 years
premises	suspended after
and steal	serving 6 months imprisonment for
3 years
17/7/21	Fraud	Used stole bank card to fraudulently	2 months
purchase a grinder from Bunnings
17/7/21	Fraud	Used stolen bank card to fraudulently	2 months
purchase a boardgame
17/7/21	Fraud	Used stolen bank card to fraudulently	2 months
purchase tobacco products
16/8/21	Enter	Entered a car and stole a wallet	2 years
premises	suspended after
and steal	serving 6 months imprisonment for
3 years
16/8/21	Fraud	Used a stolen bankcard from the wallet to	2 months
fraudulently buy cigarettes and giftcards
valued at more than $300
16/8/21	Fraud	Used the stolen bankcard to fraudulently	2 months
purchase a mobile phone
16/8/21	Fraud	Used the stolen bankcard to fraudulently	2 months
purchase a watch
19/8/21	Attempted	Attempted to return the watch in return for	2 months
fraud	cash
17/9/21	Fail to	CNFP
appear
23/9/21	Stealing	Stole a bicycle valued at $3000 from a	6 months
carpark
23/9/21	Fraud	Pawned the stolen bicycle for $200	2 months
4/10/21	Breach	Failed to report to police	CNFP
bail
condition
9/10/21	Stealing	Stole two vacuum cleaners from Bunnings	6 months
9/10/21	Stealing	Stole a security camera and speaker from	6 months
Videopro
14/10/21	Stealing	Stole a statue from a gaming store	6 months
17/10/21	Stealing	Stole softdrink and a tablet from	6 months
Officeworks
18/10/21	Fail to	CNFP
appear

21/10/21 Drive Tetrahydrocannibinol; CNFP, 3 month

while	methylamphetamine; amphetamine and	licence
relevant	pregalbin	disqualification
drug present in
blood

25/11/21	Fail to	CNFP
appear

19/4/22	Stealing	Stole perfumes from a chemist	6 months
16/5/22	Receiving	Received a stolen electric scooter	4 months
22/5/22	Stealing	Stole a vacuum cleaner from a retailer	6 months
22/5/22	Stealing	Stole earbuds, SD cards and charger	6 months
valued at around $300
22/5/22	Break and	Entered the reception office area of a	2 years
enter	residential building through a closed	suspended after
premises	window and stole the master keys for the	serving 6 months
and steal	premises which he used to enter the	imprisonment for
secured garage	3 years
22/5/22	Unlawful	Found in possession of a new pair of Nike	CNFP
possession	Airforce 1’s
of suspected stolen
property

The learned Magistrate’s approach

1. The learned Magistrate took into account in determining the appropriate sentence that

   the appellant had spent two months in pre-sentence custody. He did not declare this

   period as time served, however took it into account in determining to suspend the

   sentences after the appellant had served a further six months in custody.

2. The offences shaded in the table at paragraph [3] were committed whilst the appellant

   was on parole. The respondent concedes that the learned Magistrate erred in failing to take into account a relevant consideration, being that a conviction for those

   offences shaded in the table, together with an order that he serve actual imprisonment

   for each of them, would automatically result in the cancellation of the appellant’s

   previously ordered parole.[1]

   [1] Corrective Services Act 2006 (Qld) s 209, s 211.

   Consideration

3. The appellant was 45 years of age at sentence. He has an extensive criminal history

   for property offending. His history demonstrates a long-standing problem with

   substance abuse. He has been sentenced to imprisonment on many occasions.

   Relevant to the sentence that the learned Magistrate imposed, were sentences imposed

   on 12 November 2019 in the Brisbane Magistrates Court. The appellant was

   sentenced to a head sentence of two years imprisonment for 55 offences including 11

   offences of entering into premises and stealing property together with other property

   offences. He was released on court ordered parole on 20 March 2019 after serving

   approximately eight months in actual custody.

4. The sentences imposed by the learned Magistrate resulted in the automatic

   cancellation of the appellant’s parole from 30 August 2020. He then became liable to

   serve a further 314 days of that earlier sentence with his full-time discharge date

   calculated as 30 May 2023. The appellant has been considered eligible for parole

   from 23 January 2023. It is accepted by the respondent that it was the intention of

   the learned Magistrate to fashion a sentence which resulted in certainty of release of

   the appellant on 23 January 2023.

5. The intention of the learned Magistrate can be achieved if the sentences imposed for

   the offences shaded in the table at paragraph [3] are each wholly suspended for an

   operational period of two years. It is further submitted that for the remaining

   sentences, the appellant ought to be released on parole. By fashioning a sentence in

   this way, the appellant can be released on court ordered parole on the date of the

   publishing of this judgement.

   Orders

6. Extend time within which to appeal to 23 November 2022.

7. The appeal is allowed to the following extent:

(a) For each of the following offences, the sentences imposed in Beenleigh

Magistrates Court are wholly suspended for an operational period of two years:

i.       Eight offences of stealing on:

30 August 2020, 18 January 2021, 3 March 2021, 14 March 2021, 23

April 2021, 21 May 2021, 28 May 2021 and 8 June 2021;

ii.       Two offences of receiving tainted property on:

16 April 2021 and 2 June 2021;

iii.       Four offences of fraud on:

16 April 2021 (x 2) and 2 June 2021 (x 2).

(b) For each of the two offences of enter premises and commit indictable offence

by break committed on 21 June 2021, and the two offences of enter premises

with intent committed on 21 June 2021, the sentences imposed are set aside

and in lieu, the appellant is sentenced to two years imprisonment wholly

suspended for an operational period of two years.

(c) For the offences of enter premises and commit indictable offence committed

on 17 July 2021, 16 August 2021 and 22 May 2022, set aside the sentences

imposed in the Beenleigh Magistrates Court and substitute sentences of two

years imprisonment on each to be served concurrently with all other sentences

imposed;

(d) Order that the appellant be released on parole on 10 February 2023.