Police v Banks

[2009] QDC 171

[2009] QDC 171

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE RICHARDS

Appeal No 43 of 2009

POLICE	Respondent/Plaintiff
and
KAILYN BANKS	Applicant/Defendant
IPSWICH ..DATE 12/06/2009
JUDGMENT

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HER HONOUR: This is an appeal from a sentence of the 6th of
February this year in the Warwick Magistrates Court for seven
charges of stealing, one charge of enter premises and commit
an indictable offence, unlawful entry of a motor vehicle,

fraud, possession of tainted property, two charges, failing to	10
dispose of a needle or syringe and failing to appear. The
majority of the offences were committed over a two month
period in 2005. The appellant absconded on bail on the 23rd
of July 2005 and then handed herself back - handed herself
back in or was she picked up by police?	20
UNIDENTIFIED SPEAKER: Picked up by police.
HER HONOUR: Picked up by police and put before the Court in
February 2009. When she was picked up by police, it was found	30
that she had used a Medicare card to obtain a prescription of
Xanan and that she had a syringe in the vehicle and she was
charged with offences relating to that behaviour. She had a
relevant criminal history including offences of dishonesty
over a reasonably significant time but not since 2005. And	40
those offence were in a number of different States.
The Magistrate, when she sentenced the appellant, particularly remarked on the criminal history although doesn't seem to have appreciated that the criminal history does have a number of	50

offences that are repeated and some offences which didn't
actually result in convictions. In sentencing the appellant,
the Magistrate also didn't refer to what can only be described
as a tragic period in her life which seems to have been the 1-2 JUDGMENT 60

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start of the escalation of the offending when her son was
murdered and when she was the subject to - subject to domestic
violence which involved hospitalisation and the loss of the

care of another child.

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Then the Magistrate also did not seem to take into account the
fact that she was sentenced in the New South Wales Courts in January 2006 for offences in that jurisdiction of dishonesty which occurred in 2005. Those matters would have been

relevant in terms of considering a global sentence as the	20
majority of this offending occurred in July to August of 2005. Sorry, that's not right. In 2005 in any case.
So that period of time in custody should have been taken into
account. The Crown concedes that the sentence - the overall	30
sentence of 27 months imprisonment was manifestly excessive and that concession is fairly made. The only question is what should be the appropriate sentence.
In my view, taking into account her early plea of guilty, the	40
fact that she had essentially been out of trouble for four
years, the offending for which she was convicted in 2009
involved a single charge in circumstances where she didn't
have a prescription and simply obtained - a prescription for a
drug which she was taking on one occasion using a friend's	50

Medicare card. The syringe was used to inject the drugs that
she was using.
Taking those matters into account and the fact that the 1-3 JUDGMENT 60

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Magistrate seems to have misconceived the seriousness of her criminal history, it is appropriate that the appeal is allowed.

So the order of the Court is that the appeal is allowed. The	10
applicant is sentenced - the original sentence is set aside and she is sentenced as follows.
In relation to the offences of entering premises and commit an
indictable offence, the stealing charges, the unlawful entry	20
of a motor vehicle, she is sentenced to 12 months imprisonment.
In relation to the offences of possession of tainted property
and fraud, six months imprisonment.	30
In relation to failing to dispose of a needle or a syringe, one month imprisonment.
In relation to the offence of failing to appear, one month	40
imprisonment.
I order that she be released on parole immediately. Miss
Banks, you are obliged to go from here to Corrective Services
and report on parole. If you don't do that, you will be	50

unlawfully at large. That will be a breach of your parole.
APPLICANT: Within how many days? Because I have to return to 1-4 JUDGMENT 60

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the gaol by the - the paperwork that they sent with me from

gaol, I have to go back to the gaol-----

HER HONOUR: You're irrespective, are you?

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APPLICANT: Yeah.

UNIDENTIFIED SPEAKER: I think that's only - I think that’s
just a matter of paperwork. There's no other matter that's

holding her. I think they just require to take her back to	20
the gaol before releasing her. That's my understanding.
HER HONOUR: Is that right?
UNIDENTIFIED SPEAKER: We received the paperwork at the gaol,	30
they give us the authorisation for the release, otherwise we've got to take her back and they work - administration work it out. The administration finishes at four o'clock. In other words, they'll leave it be there till Monday.
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UNIDENTIFIED SPEAKER: What needs to occur is that the Registrar will need to send the order.
HER HONOUR: Fax the paperwork through now?
50

UNIDENTIFIED SPEAKER: To Centre management straight away.
And then hopefully she-----
HER HONOUR: All right. Then I'll give her 72 hours to report 1-5 JUDGMENT 60

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to Corrective Services.

UNIDENTIFIED SPEAKER: Thank you.

HER HONOUR: So you have to report by Monday afternoon,	10
otherwise you will be unlawfully at large.
APPLICANT: At which office?
HER HONOUR: Sorry?	20
APPLICANT: At which office?
HER HONOUR: Where will you be living?
30
APPLICANT: Well, I have to arrange with my uncle who is cutting hay at [indistinct] to be up near Toowoomba in Leyburn, so-----
HER HONOUR: So where will - if you are released this	40
afternoon where will you go?
APPLICANT: I have a friend's place to go to this afternoon,
thank goodness. And then I will organise over the weekend for
picking up the keys and getting my uncle to pick me up with my	50
own car.

HER HONOUR: And where does your friend live?
APPLICANT: My friend lives in East Ipswich. 1-6 JUDGMENT 60

HER HONOUR: Okay, so report to Ipswich.

APPLICANT: Yeah, okay.	10
HER HONOUR: And then you can take it from there. If you are going up to Toowoomba or thereabouts, then just let them know where you are hoping to live.
20
APPLICANT: Okay, thank you very much.
HER HONOUR: Okay. So can you take that down straight away?
UNIDENTIFIED SPEAKER: Your Honour that's my only matter, if I	30
may be excused?
HER HONOUR: Yes, thank you.
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