Nakeenan Allan Fisher-Cairns Appellant v Commissioner of Police

[2025] QDC 172

[2025] QDC 172

DISTRICT COURT OF QUEENSLAND

KENT KC DCJ

Indictment No 258 of 2025

NAKEENAN ALLAN FISHER-CAIRNS  Appellant

v

COMMISSIONER OF POLICE  Respondent

BRISBANE

FRIDAY, 16 MAY 2025

JUDGMENT

HIS HONOUR: In this matter, the appellant, Mr Fisher-Cairns, appeals against the severity of his sentence imposed in the Wynnum Magistrates Court on the 12^th of September 2024 for five offences.  Evasion at night, two of possession of a dangerous drug, possessing utensils or pipes, possessing property suspected of having been used, and buying or possessing schedule 4 or schedule 8 medicines, which adds up to six, not five.  In any case, the penalties included a sentence of nine months imprisonment, wholly suspended for 18 months for all of the drug offences.  The evasion offence attracted a $9,000 fine and the buying schedule 4 or schedule 8 medicines was conviction – convicted and not further punished.  Convictions were recorded. 

What is said on behalf of the applicant is that this was, in essence, manifestly excessive, in the history of Mr Fisher-Cairns’ criminal history and the relative seriousness of the offences that he committed.  Helpfully, the respondent concedes appropriately that the suspended term of imprisonment, in all the circumstances, was excessive.  True it is – as is conceded – that it does seem, with respect, that the learned magistrate did place excessive weight on the appellant’s criminal history, although it was in some ways unattractive. 

Further, there appears to have been an inadvertence to or inappropriate application of the totality principle and there may have been a lack of procedural fairness in that a suspended sentence had not been discussed during the submissions.  In any case, the respondent appropriately – and in my respectful view, correctly concedes – that the combination of these features resulted in error and that overall, in a House v The King type examination of the relevant discretion, the sentence was also self-evidently manifestly excessive. 

Helpfully, the parties are also in agreement as to the appropriate resolution. It does seem, from Mr Fisher-Cairns’ criminal history and from – including these charges – and also from some dialogue that took place at the sentencing hearing in the Magistrates Court, that Mr Fisher-Cairns has an acknowledged problem with substance abuse. In those circumstances, it seems that, particularly given his relatively young age, I think he is only 27 at the moment, a period of probation, including the support that corrective services may be able to offer during a period of supervision of that kind is a more appropriate exercise of the sentencing discretion. This takes into account the purposes of the sentencing process in section 9 of the Penalties and Sentences Act and also takes into account the feature that imprisonment is a last resort and I think it is correct to say that Mr Fisher-Cairns, at a relatively young age, had served one previous sentence but had a parole release date.  The present offences were just simply not terribly serious. 

In all the circumstances then, the orders will be that the appeal is allowed.  The sentence below for the offences that I have mentioned is set aside and pursuant to the powers in the Justices Act, Mr Fisher-Cairns is re-sentenced to a period of nine months probation for those offences. A conviction is recorded, having regard to the relevant matters in section 12 of the Penalties and Sentences Act and I note that although Mr Fisher-Cairns is not here, Mr Honnef has appropriately undertaken to explain to him the matters listed in section 95 of the Penalties and Sentences Act and, of course, that takes place against the background that Mr Fisher-Cairns has been on probation previously and presumably understands and undertakes to comply with the requirements thereof.  I think I have already given leave for an amended notice of appeal to be filed.  Is there anything else? 

MR HONNEF:   The only other – well, I guess as a matter of prudence, perhaps if your Honour could grant leave for the extension of time for filing the notice of appeal as at ‑ ‑ ‑

HIS HONOUR:   I did – did I not do that?  I thought I did.  But anyway ‑ ‑ ‑

MR HONNEF:   Sorry, your Honour may have – very well may have ‑ ‑ ‑

HIS HONOUR:   If I have not done it, I will give you leave to file the amended notice of appeal, given the extended timeframe. 

MR HONNEF:   Thank you, your Honour. 

HIS HONOUR:   Okay.  Thanks very much. 

MR HONNEF:   Thank you, your Honour. 

MS MAOECKAS:   Thank you, your Honour.