Moseley v Morrison

[2005] QDC 468

[2005] QDC 468

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE BRABAZON QC

No BD 1414 of 2005

NEIL ADAM MOSELEY	Appellant
and
PLAIN CLOTHES CONSTABLE DONNA	Respondent
MORRISON
BRISBANE ..DATE 13/03/2006
ORDER
13032006 D.1 T4/GFH (Brabazon DCJ)
HIS HONOUR: This is an appeal about the severity of the	1
sentence imposed by the learned Magistrate. It followed a plea of guilty on 23 March last year. The learned Magistrate sentenced Mr Moseley for the destruction of a mattress and a television set. The charge was brought under the provisions of the Corrective Services Act. It is an offence to be a prisoner and wilfully and unlawfully damage the property, in this case of a prison. The learned Magistrate imposed a sentence of six months' imprisonment cumulative upon existing terms of imprisonment.	10
20
Mr Moseley has a fairly serious criminal history. At the time the learned Magistrate was referring to a term of imprisonment of five years for armed robbery and other offences imposed in this Court on 11 January 2005. There is no need here to go into the somewhat complicated history that Judge Healy had to deal with. However, taking into account imprisonment in Western Australia and some other features, including time in custody, he said that the five year term should be suspended after serving two years. I am told this morning that the actual suspension date was 21 January this year. The result is that Mr Moseley is presently serving the six month cumulative sentence which is the subject of this appeal.	30
40
50
There are really two points which are to be mentioned. The
learned Magistrate said that he had regard to "what could be

called a late plea of guilty", in addition to some other matters which were placed before him. They included the 13032006 D.1 T4/GFH (Brabazon DCJ) 2 ORDER 60

criminal history which, of course, was not an encouraging one	1
for Mr Moseley to have before the Court. Overall, it is necessary to see whether or not the description of a late plea of guilty could fairly describe what had happened.

10

For the prosecution it is here said that it did not have a significant impact, because one can compare the facts here to the facts before the Court in Brisbane on 24 February 2000 when he was convicted for an offence rather like the present one - that is to say, he was a prisoner. He set alight a bed sheet and damaged some other property in his prison cell. There was fire and smoke damage to the building. The actual monetary value of the damage is not known, but it does seem to be a bit worse than in this case. There was a trial and he was sentenced to nine months' imprisonment with a recommendation for parole at the end of that trial. The recommendation was because of, as I understand it, the need to make a recommendation after the trial because of a previous recommendation.	20
30
40
Putting aside that suggestion by the prosecutor, I think it is
demonstrated here that on the face of things that was not
really a fair description of what had happened. He had
appeared before the Court on 11 January 2004 and pleaded not
guilty. He represented himself. There is no transcript
50
available to us. The endorsement on his file indicates that
he elected to proceed by way of indictment, and he was then
remanded to appear on 22 March 2005 and he was remanded in
custody, there being no application for bail. A mistake had

3 ORDER 60

13032006 D.1 T4/GFH (Brabazon DCJ)

been made about such a procedure because that was a summary	1
offence and no election, that is for trial in the District Court on indictment, was available to him.
Before the matter was mentioned on 22 March his solicitor corresponded with the police and indicated that it would be a plea of guilty. The police had assembled some information, in anticipation of a trial on indictment, but there was no committal held. The plea of guilty being indicated before the 22nd, it was mentioned on that day and the Court was told it would be a plea. Accordingly, the following day it came before the learned Magistrate and he was sentenced.	10
20
Under all the circumstances I think it is demonstrated that the facts do show that the comment referring to a late plea was not really justified by what had happened. It is, of	30
course, always a significant consideration to take into account a timely plea of guilty, and in this case there was no discussion by the learned Magistrate as to the mistake that had been made about an election for trial on indictment, even though that had been pointed out by Mr Moseley's solicitor during the sentencing proceedings.	40
The next matter relates to the question of compensation. The
prosecutor asked for compensation because the mattress was destroyed by fire and the television set was smashed. The value together was $267. The solicitor for Mr Moseley	50
indicated that compensation could be paid. It is true that
the language used is less than definite about that and there

4 ORDER 60

13032006 D.1 T4/GFH (Brabazon DCJ)

was, for example, no mention made of whether it could be paid	1
immediately or after some time. This was said:

"Now, in terms of restitution, for what it is worth, my
client says he is willing to pay restitution. I
understand he does have some funds in his trust account,
so perhaps money can be directed to rectifying the

damage. That is something that your Honour can also take	10
into account".

I am told by Mr Buckland, who appears for him today and indeed appeared for him on that occasion, that the money was and is available in the trust account.

20

It is true, of course, that an accused person cannot buy his

way out of the consequences of an offence by simply paying
compensation. However, there is no doubt that the payment of

compensation is routinely taken into account as a matter

30

favourable to an accused person, among other things. It does
suggest a degree of genuine recompense and remorse for what
had happened. It is true in this case that the amount of
damage was quite small compared to the significance of the

offence. However, it can be observed that the learned

40

Magistrate gave no reasons for declining the offer to make a compensation order, simply saying, "I make no order as to restitution." Since no reasons were given, the discretion was not properly exercised. For those reasons, it seems to me, by a somewhat narrow margin, that the duty falls on this Court to

50

exercise the discretion with respect to the sentence.

Of course, there is not a great deal to be said in favour of

Mr Moseley. He had a bad criminal history. He had done a

5 ORDER 60

13032006 D.1 T5/SDH (Brabazon DCJ)

very similar thing before and, to set fire to anything, I	1
should think, in a prison cell is undoubtedly a potentially dangerous thing to do. Not only is the prisoner himself or herself exposed to the quite likely effects of a fire in what
is, I suppose by definition, a confined space, but, of course, there is also the damage which may be caused to the building or inmates nearby and to prison staff. In this case, I am told prison staff as well as Mr Moseley were treated for the effects of smoke inhalation. That is why Mr Moseley was told on an earlier occasion by Judge Healy that it was indeed a serious offence because of those dangers.	10
20
Also I should think the question of deterrence is significant in these circumstances. It could hardly be a valuable thing for prisoners to think that they can cause damage, particularly damage by fire, and not be appropriately punished for it.	30
It should be kept in mind that, as I say, the earlier nine month imprisonment followed a trial. It was also a prosecution under the provisions of the Code which carried a five year maximum sentence rather than the two year maximum in this case. All things considered, it seems to me that the appropriate sentence in the circumstances is or was five months' imprisonment.	40
50
Therefore the orders of the Court are that the appeal is
allowed. I should say, in reaching that conclusion, I
likewise decide that there should be no order for

6 ORDER 60

13032006 D.1 T5/SDH (Brabazon DCJ)

compensation, but I give the reasons that it is, in fact, a	1
very small amount of money and there is not perhaps so much need to satisfy the pockets of the department as there is to satisfy personal complainants whose property is damaged. So no order will be made in this case. The appeal is allowed. Vary the order.	10
Now, gentlemen I am just looking for the actual order. I see it is simply this, I think, it is the stamp, "Offender is convicted and sentenced to imprisonment for a term of six months. Conviction is recorded." I vary that part of the order simply so that "six months" is replaced by a term of "five months".	20
Bearing in mind all the things I have heard, it seems to me
30
the appropriate order is, taking into account that this is an
appeal about a sentence, order the respondent to pay the
appellant's costs fixed at $1,000.
40

-----

50

7 ORDER 60