Muir v Commissioner of Police

[2009] QDC 86

[2009] QDC 86

DISTRICT COURT
APPELLATE JURISDICTION

SENIOR JUDGE TRAFFORD-WALKER

Appeal No 3113 of 2008

FRANKIE DOUGLAS MUIR	Appellant
and
COMMISSIONER OF POLICE	Respondent
BRISBANE ..DATE 06/04/2009
ORDER

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HIS HONOUR: On the 6th of November 2008 the appellant pleaded

guilty and was convicted of a number of property offences. In	1
imprisonment with a parole release date fixed at the 20th of
relation to each offence he was sentenced a period of the sentence imposed was manifestly excessive.

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In his reasons for the sentence, the Stipendiary Magistrate took into account all factors which were in the appellant's favour and those matters which were not in his favour.

However, of significance is a report, psychiatric report,

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which has been tendered and I shall refer to that myself. The Magistrate also considered the provisions of the Penalties and Sentences Act and the general principles of sentencing for

offences such as burglary.

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There is nothing in his reasoning which you could say points to an error. There are, of course, arguments that he didn't necessarily give sufficient weight to the psychiatric report.

I shall set out, in a summary form, the facts of the offences

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which were placed before the Magistrate. On the 24th of Agencies situated at Slacks Creek and stole a purse and contents. The offences of stealing involved two instances of pumping petrol into a motor vehicle and then driving away

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without paying.

On the 11th of May of 2007 he was involved in damaging a wall

by graffiti. The most serious offence was that of burglary.

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At about 3.45 p.m. on the 27th of August 2008 the appellant

was dropped off at a residence situated at 33 Jolimont Street,	1
Sherwood. He went to the rear of the house and jemmied open a window. He entered the house and stole property.
He was later intercepted by police carrying two bags

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containing property which had been taken from the residence. was charged with the offence of breaking and entering into the residence and possession of the bar which could be used for housebreaking.

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His date of birth is the 28th of June of 1981 and he has previous convictions as set out in his criminal history which was placed before the Magistrate. Those indicated on the 24th of February of 2000 the offence of entering premises with

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intent. He was placed on probation. On the 8th of April of
2002, offences of fraud, entering premises, receiving, matters

such as that. Again he was placed on probation.

Then on the 28th of January 2003, an attempted unlawful use of

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a motor vehicle and stealing and for that he was given

community service, I think, is it?

MS REECE: Yes, your Honour.

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HIS HONOUR: Now the psychiatric report which has been

tendered is a detailed report tracing the history and problems which the appellant has had for a number of years. He has had psychiatric problems perhaps brought on by the use of

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substances such as amphetamines and cannabis but, in any

event, from an early age he has suffered from these problems.	1
It is clear that during the offending, from the 24th of suffering from such problems.

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After that he has been treated and could not brought before the Mental Health Act. When he did come before the Magistrate, in relation to these matters the opinion as set out in the psychiatric report is rather positive.

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It says this:

"Mr Muir is a 27 year old man who presents with an extensive

history of poly substance abuse and dependence and associated

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drug induced psychosis. In the past he received the diagnosis
of paranoid schizophrenia and had multiple admissions to
psychiatric hospitals in a psychotically diagnosed state. In
addition to this he has a history of overdosing and deliberate

self-harm. Over the course of several years he was treated

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with a number of antipsychotic medications although his

adherence to treatment had been generally erratic.

According to his account over the last eight to nine months

Mr Muir has been abstinent from illicit substances and full-

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time employed as a contractor. He's in a stable and
supportive relationship and he's completely free from
psychotic symptoms and requires no further antipsychotic

treatment at this time."

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A further quote from the report states:	1
"After the extended period of abstinence from illicit substances Mr Muir's psychotic symptoms have resolved completely".

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This was his condition when he appeared before the Magistrate having suffered years of problems as set out in that report. Of course a Magistrate is perfectly right in taking into account that burglary creates a great deal of harm in the

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community. It's a prevalent offence and regarded very
seriously.

As I indicated to counsel, a number of years ago, for first offenders, they could expect three years or more imprisonment.

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That was examined by the Court of Criminal Appeal in the case of Joyce where a Court came to the conclusion that five years should be the minimum period, but things have changed since
then. There is a much lower quantum generally ordered in

matters such as this.

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So we come down to the question of what should happen to this appellant. Now, in my view, the Magistrate came to the conclusion that a short period of imprisonment was to be served. The problem with that is that it seems to me that the

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appellant having got himself to the stage where, after years
of problems with various substances, the psychiatrist was able

to say that: "After the extended period of abstinence from

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illicit substances Mr Muir's psychotic symptoms have resolved

completely".	1
The information now is that he's in a stable relationship, has employment and that could be put at risk by a short period of imprisonment. A number of comments have been made recently in

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relation to short periods of imprisonment, that they may do more harm than good. Of course there are counter arguments that it might bring home to someone who's been involved in

drugs that eventually it's prison.

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Taking all these matters into account it seems to me that insufficient reliance was placed upon the psychiatric report. In the circumstances I think the period of imprisonment is excessive. When I say, the period of imprisonment, I ought to say that it would have been appropriate to impose a period of

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imprisonment but fix a parole release date as at the date of

sentence, namely, the 6th of November 2008.

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So in the circumstances I allow the appeal. I vary the

sentence. Now in relation to that, the normal order is that	1
he be granted parole. I would fix a parole release date at today but he is to be warned, so he should be brought in.
...

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HIS HONOUR: I'm allowing the appeal. I'll fix the parole
release date that day. I'll continue the sentence of

15 months. He'll be on parole and give the usual warnings.

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...

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