North v Queensland Police Service

[2015] QDC 207

DISTRICT COURT OF QUEENSLAND

CITATION: 

North v Queensland Police Service [2015] QDC 207

PARTIES: 

JAYCE ANTONY NORTH
(appellant)

v

QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S: 

49/15

DIVISION: 

PROCEEDING: 

Appeal

ORIGINATING 
COURT: 

Magistrates Court at Ipswich

DELIVERED ON: 

21 August 2015

DELIVERED AT: 

Ipswich

HEARING DATE: 

13 August 2015

JUDGE: 

Bradley DCJ

ORDER: 

1.	The appeal is allowed.
2.	The order of the magistrate made on 18 June 2015 is varied.
3.	A sentence of two months’ imprisonment wholly

suspended for an operational period of four months is

substituted.

CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the defendant pleaded guilty to one count of trespass – where the defendant was sentenced to
three months imprisonment with a parole eligibility date fixed
two months from the date of sentence – where no reasons
were given by the learned Magistrate for fixing the parole eligibility date after two thirds of the sentence had been
served – where the learned Magistrate placed undue emphasis on an allegation – whether the sentence was manifestly
excessive
Summary Offences Act 2005 (Qld) s 11
Corrective Services Act 2006 (Qld) s 209 R v Leu; R v Togia [2008] QCA 201; at [21];
R v Hyatt [2011] QCA 55
APPEARANCES:	V Knox, solicitor, for the appellant
P O’Connor of counsel, for the respondent
INSTRUCTORS:	Aboriginal and Torres Strait Islander Legal Service (Ipswich) for the appellant
Office of the Director of Public Prosecutions (Ipswich) for the respondent
Background

1. On 18 June 2015 the appellant pleaded guilty in the Magistrates Court at Ipswich to

   one charge of trespass. He was sentenced to three months’ imprisonment with a

   parole eligibility date set at 18 August 2015.

2. The appellant has appealed against the sentence as being manifestly excessive, and on 22 July 2015 he was granted bail on his own undertaking pending the determination of his appeal.

   Facts

3. The facts placed before the sentencing magistrate by the police prosecutor were that

   Chemist Warehouse has issued a banning notice against the appellant “due to him harassing and threatening employees in the store”. The notice is for a period of five

   years. On 25 May 2015 police were contacted by one of the pharmacists at the store who said that she wanted to make a complaint about the appellant trespassing in the store at 10 a.m. The police attended at the store at 11.30 a.m. and were told that the appellant had entered the store several times since the banning notice had been issued

   to him by the owner. The court was told: “Most of the staff are too scared to approach him due to being threatened in the past and one employee’s quit her position at the store because of the defendant’s behaviour.” While speaking to the witness, police

   observed the appellant enter the store, walk to the perfume area within the store, pick up a tester bottle and spray it all over himself. When approached by the police, the

   appellant said that he knew about the banning notice and that he was “stupid” for

   going into the store and that he had no excuse for doing so.

4. The appellant’s criminal and traffic histories were before the magistrate. The criminal

   history is 12 pages in length, despite the appellant being born on 21 July 1994 and

   therefore being only 20 at the time of the commission of the offence. The appellant’s

   criminal history includes convictions in the Childrens Court for stealing, wilful damage by graffiti, unlawful use of a motor vehicle, arson of a motor vehicle, enter premises and commit indictable offence, burglary, common assault, trespass, unauthorised dealing with shop goods, and driving without a licence. In the Magistrates Court the appellant has been convicted of breach of bail conditions, assault with intent to steal, burglary, unlawful use of a motor vehicle, trespass, wilful damage by graffiti, unauthorised dealing with shop goods, possession of drugs, stealing, commit public nuisance, break and enter dwelling with intent, enter premises and commit indictable offence, possession of tainted property, contravene direction, wilful exposure, fraud, failing to appear in accordance with bail undertaking, and obstruct police. There are six entries on his criminal history for trespass, three of which were committed as an adult. His traffic history includes fines for a number of relatively minor offences.

5. In the Childrens Court the appellant has been sentenced to probation and detention, and as an adult he has been sentenced to fines, suspended periods of imprisonment, community service and actual imprisonment with immediate parole. The suspended terms of imprisonment have all been breached and the present offence was committed whilst he was on parole.

6. On his behalf before the sentencing magistrate it was submitted that the appellant acknowledged the stupidity of what he had done but that he was not threatening anyone. It was submitted that a fine was appropriate in the circumstances.

   Sentencing remarks

7. In her brief sentencing remarks, the sentencing magistrate referred to the appellant’s

criminal history and the penalties previously imposed upon him. She then went on to
say:

“You’ve previously been charged with trespass, for damage, fraud,

receiving, stealing, and eventually because of your behaviour someone has had to resign from their job. Do you know how hard it is to get a

job for a start? And because you are such a little brat you’ve really ruined that person’s life. I take into account it was 10 o’clock in the morning – it’s not like you were there after hours where there may be more sinister actions, but to brazenly walk in knowing that you’re

banned and engage in something as stupid as just spraying perfume

around you’re asking for trouble and you did it while you were on

parole.”

1. The sentencing magistrate found that no other penalty was appropriate other than a

   sentence of imprisonment and told the appellant, “You have come to the end of the

   road.”

2. It is evident that the appellant had pleaded guilty at an early stage of the proceedings,

   and the respondent concedes that the magistrate’s failure to give reasons for setting a

   parole eligibility date after the appellant had served two-thirds of the term of imprisonment rather than the usual one-third, did amount to an error, permitting this court to exercise the sentencing discretion afresh[1].

   [1] R v Leu; R v Togia [2008] QCA 201; at [21]; R v Hyatt [2011] QCA 55

3. The sentencing remarks also indicate that undue emphasis was placed on the

   allegation that “because of your behaviour someone has had to resign from their job”.

   It is true to say that the prosecution assertion in that regard was not challenged by the defence but there was no evidence before the sentencing magistrate to support the

   assertion made that “you’ve really ruined that person’s life”. It is evident from the

sentencing remarks that undue emphasis was placed on that matter. This also is
grounds for exercising the sentencing discretion afresh.

1. It was not brought to the magistrate’s attention that the appellant had been convicted

   on 12 June 2015 of an offence committed on 27 March 2015 of evading a taxi fare. This conviction occurred some six days prior to him pleading guilty to the trespass

   offence. For that offence the appellant was sentenced to 42 days’ imprisonment,

wholly suspended for 12 months. The appellant argues that this circumstance supports
a wholly suspended term of imprisonment being imposed for the trespass offence.

1. The respondent argues that the conviction on 12 June is an aggravating feature as the offence of evading fare was committed less than a month after the appellant was given a four month term of imprisonment with immediate parole for the offences of wilful damage by graffiti and possession of graffiti instrument.

   Consideration

2. The appellant pleaded guilty to an offence created by s 11(2) of the Summary Offences Act 2005. That subsection provides:

   “A person must not unlawfully enter, or remain in, a place used as a

   yard for, or a place used for, a business purpose.”

3. The maximum penalty for the offence is 20 penalty units or one year’s imprisonment.

4. The appellant conceded that he was guilty of the offence by contravening a banning notice put in place against him by the business concerned. However, the facts are that he contravened the banning notice simply by entering the premises and making a nuisance of himself with a perfume tester. It was not alleged that he made any threats or behaved in an aggressive or intimidating manner towards staff or customers in the shop. In the circumstances, it could not be said to be a serious example of trespass.

5. It is an aggravating feature that he committed the offence whilst on parole, and the

   appellant’s appalling criminal history has to be taken into account. Personal

   deterrence is of particular importance, but the relatively minor nature of the offence and the actual criminal conduct engaged in cannot be lost sight of. The appellant is still a young man and had not previously been sentenced to an actual term of imprisonment. Hope of rehabilitation could not be said to be illusory. The appellant served one month and five days in prison before being granted appeal bail, and in all the circumstances, the actual criminality with respect to the offence of trespass does not justify a penalty requiring any further actual imprisonment. A wholly suspended term of imprisonment is appropriate.

6. A partially suspended term of imprisonment (reflecting the 35 days the appellant has already served) would trigger the application of s 209 of the Corrective Services Act

   2006 and the automatic cancellation of the appellant’s bail. It is therefore just that the

   term of imprisonment be reduced to two months and wholly suspended.

7. The conviction on 12 June 2015 and the penalty imposed on that date is, in the end, of no consequence to the appropriate penalty for the offence of trespass.

8. The appeal is allowed. The order of the magistrate made on 18 June 2015 is varied,

   and a sentence of two months’ imprisonment wholly suspended for an operational

   period of four months is substituted.