Purcell v Bateup
[2009] QDC 430
•24 August 2009 (ex tempore)
DISTRICT COURT OF QUEENSLAND
CITATION:
Purcell v Bateup & Ors [2009] QDC 430
PARTIES:
MIRANDA ASHLEY PURCELL
(Applicant)
V
NICHOLAS JOHN BATEUP
(Respondent)
AND
SARAH JOSEPHINE MARTIN
(Respondent)
AND
KRISTEN THOMAS
(Respondent)
AND
CLAIRE ELIZABETH VALKOFF
(Respondent)
FILE NO/S:
782/2009
DIVISION:
Appellate
PROCEEDING:
Appeal against sentence
ORIGINATING COURT:
Magistrates Court at Richlands
DELIVERED ON:
24 August 2009 (ex tempore)
DELIVERED AT:
Brisbane
HEARING DATE:
24 August 2009
JUDGE:
Irwin DCJ
ORDER:
1. Appeal allowed.
2. (a) The sentence imposed on 6 March 2009 and associated orders are set aside.
(b) The appellant is re‑sentenced as follows:
(i) Convicted, and a conviction recorded, on all counts;
(ii) On the four charges of receiving stolen property, two charges of possession of dangerous drugs, and one charge each of possession of utensils and possession of tainted property, released under the supervision of an authorised corrective services officer for a period of three years under s 92(1)(a) of the Penalties and Sentences Act 1992 on the requirements under s 93(1) of that Act;
(iii) On the three charges of contravening a direction, two charges of unauthorised dealing with shop goods, and one charge of failing to appear, not further punished;
(iv) On the charge of driving over the general but under the high alcohol limit, and the charge of unlicensed driving, one fine of $600 for both offences, and it is ordered that the proper officer of the court give, under s 34 of the State Penalties Enforcement Act, particulars of the fine to SPER for registration, and disqualified from holding or obtaining a licence for 6 months.
(c) In relation to the charge of possession of tainted property, it is ordered that the appellant pay to the State a pecuniary penalty assessed in the sum of $41.55 forthwith, being the monies held by the prosecuting authority.
3. No order as to costs.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERING – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant was convicted on her guilty plea of four charges of receiving stolen property – three counts of contravening a direction, two charges each of possession of dangerous drugs and unauthorised dealing with shop goods, and one charge each of possession of utensils, possession of tainted property, failure to appear, driving over the general but under the high alcohol limit and unlicensed driving – where in relation to the four charges of receiving, the two charges of possession of dangerous drugs and one charge each of possession of a utensil and possession of tainted property the appellant was sentenced to 4 months imprisonment and probation for 3 years under s 92(1)(b) of the Penalties and Sentences Act 1992 (Qld) – where in relation to the charge of failure to appear the appellant was sentenced to 16 days imprisonment cumulative – where it was declared that 15 days was time already served under the sentence – where the total effect of these sentences was that the appellant serve 4 months and 16 days imprisonment and probation for 3 years – where the appellant was 18 years and had a limited criminal history at the time of the most serious offences – where the appellant was in the grip of drug addiction and was under the influence of an older more serious criminal offender who was the instigator of the more serious offences – where the appellant was 21 years at the time of sentence, pleaded guilty, expressed remorse, cooperated with the administration of justice, had not previously been sentenced to actual imprisonment, had 15 days pre-sentence custody, had spent 40 days in custody before admission to bail pending appeal, had been back in the community for almost 5 months pending appeal and had compelling personal circumstances which would benefit from supervision – whether sentence imposed was manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – where in relation to the two unauthorised dealing with shop goods charges one fine of $600 was imposed on the appellant in default 6 days imprisonment with no time to pay – where the default imprisonment was to be served concurrently with the other terms of imprisonment imposed – where it was apparent form the appellant’s personal circumstances that she had no realistic means of paying the fines – whether an error of principle to effectively sentence the appellant to imprisonment on offences for which only a monetary penalty could be imposed – whether an error of principle to fail to have regard to appellant’s financial circumstances and the nature of the burden that the payment of the fine would have on her
Bail Act 1980, s 33(1)(a), s 33(1)(b), s 33(4)
Justices Act 1886, s 222(1), s 222(2)(c), s 225(3)
Penalties and Sentences Act 1992, s 48(1), s 48(3), s 49(1), s 51, s 92(1)(a), s 92(1)(b), s 97, s 182A(2)(b)
Regulatory Offences Act 1985, s 9
State Penalties Enforcement Act 1999, s 34
House v The King (1936) 55 CLR 499, applied
Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, cited
R v Briese (1997) 92 A Crim R 75, cited
R v Crofts (1998) 100 A Crim R 503; (1999) 1 Qd R 386, cited
R v Melano, ex parte Attorney-General [1995] 2 Qd R 186, cited
R v Mladenovic, ex parte Attorney-General [2006] QCA 176, cited
R v Sittcenzko, ex parte Cth DPP [2005] QCA 461, cited
COUNSEL:
K.M. Hillard for the appellant
M.J. Litchen for the respondents
SOLICITORS:
Legal Aid Queensland for the appellant
Director of Public Prosecutions for the respondents
HIS HONOUR: This is an appeal pursuant to section 222 subsection (1) of the Justices Act 1886 against the sentence imposed by a Magistrate at the Richlands Magistrates Court on 6 March 2009 for 16 offences to which the appellant pleaded guilty on that date.
These sentences which I set out to the extent possible in chronological order were one charge of drive a motor vehicle over the general alcohol limit but under the high alcohol limit on the 7th of June 2006; one charge of unlicensed driving on the same date; four charges of receiving stolen property, the first of those charges alleging that this happened between the 1st of February 2006 and the 16th of June 2006 and the other charges alleged to have occurred on or about the 25th of March 2006, the 9th of May 2006 and the 10th of June 2006; one charge of possessing tainted property on the 16th of June 2006; one charge of possession of dangerous drugs on the same date; and one charge of unauthorised dealing with shop goods on the 25th of June 2006.
I observe that it is readily apparent that these nine offences were committed in the first half of 2006 with the majority committed at or about May or June.
The other offences with which the appellant was dealt with by the Magistrate were two counts of contravening a direction on the 26th of June 2008 and the 27th of August 2008; one charge of unauthorised dealing with shop goods between the 26th of August 2008 and the 27th of August 2008. I note that one of the contravene direction charges related to that offence; and one charge of failure to appear in accordance with an undertaking on the 19th of November 2008.
This is a total of four offences committed in 2008 although I note that the bench charge sheet for the last of these charges has the charge crossed out with the addition of the handwritten words "see attached charge and proceedings". This appears to be a reference to a pro forma bench charge sheet in which there is handwritten a charge under the same section of the Bail Act in the following terms:
"That on the 6th day of March 2009, or as soon as reasonably practicable thereafter, she, the said Miranda Ashley Purcell, without reasonable cause failed to surrender into custody of the Magistrates Court at Richlands in accordance with an undertaking entered into by the said Miranda Ashley Purcell."
It is recorded on that bench charge sheet that the appellant pleaded guilty. The original charge was under section 33(1)(a)of the Bail Act 1980. The substituted charge was under section 33(1)(b).
The Magistrate referred to the latter charge at page 3 of the transcript, however the Prosecutor put the facts before the Court on the basis of a failure to appear before the Brisbane Magistrates Court on the 19th of November 2008. However, no point is made about this and I proceed on the basis that the substance of the charge is the same in either case.
There were three charges committed in 2009 which were dealt with by the Magistrate. These were one charge of possession of dangerous drugs on the 18th of February 2009 and one count each of possession of a utensil and contravening a direction on the 19th of February 2009. The contravening a direction charge was related to the two drug offences.
The Magistrate recorded convictions on all offences.
In relation to the four charges of receiving, the two charges of possession of dangerous drugs and one charge each of possession of a utensil and possession of tainted property, the Magistrate sentenced the appellant to imprisonment for a period of four months and required her to be under the supervision of an authorised Corrective Services officer for three years from that date. In other words the Magistrate made a probation order under section 92(1)(b) of the Penalties and Sentences Act 1992.
The effect of this order was that the appellant was sentenced to a term of imprisonment for four months and at the end of that term she was to be released under supervision of an authorised Corrective Services officer for the reminder of the term of imprisonment. This is often referred to as a prison probation order.
In relation to the offence against the Bail Act she was sentenced to imprisonment for a term of 16 days. It was stated that she had been in presentence custody for these offences and for no other reason on and from the 19th of February 2009 to and including the 5th of March 2009, namely 15 days, and it was declared that the whole of this period was to be time already served under the sentence. It was directed that this term of imprisonment be served cumulative to any other period of imprisonment that she was ordered to serve. This direction was required by section 33(4)(a) of the Bail Act.
From the documents attached to the file, being the order for imprisonment which is incorporated as part of the bench charge sheet, and the order for commitment of the appellant, it would appear that it was intended that the time served was declared only in relation to this sentence of imprisonment and not the period of four months. There is no reference to this declaration in the probation order and the orders for commitment in relation to the other terms of imprisonment.
That this was the intention of the learned sentencing Magistrate is apparent from his summary of the order at the end of his sentencing remarks as follows:
"Effectively my orders will take effect this way. In relation to your failing to appear you have effectively served all that time up to and including today. You will now go back to prison to serve a period of four months. After that time you will be released on this probation order which continues for a period of three years from today." Although it is doubtful that the appellant was in custody for this offence and for no other reason as her remand related to all the offences on which she was sentenced.
In addition there is the peculiar feature that the order for imprisonment and order for commitment in relation to this offence only purport to fix a parole release date as 6 March 2009. While this may indicate an intention on the part of the Magistrate that the appellant be released on parole immediately upon completing the four month terms of imprisonment, it is inconsistent with those orders because she could not be released on that date.
In relation to the two unauthorised dealing with shop goods offences, the Magistrate noted that they did not attract any term of imprisonment. He imposed one fine for each of these offences under section 49 subsection (1) of the Penalties and Sentences Act of $600 in default six days' imprisonment with no time to pay.
Pursuant to section 182A(2)(b) of the Act he ordered that the default period be served concurrently to the term of imprisonment imposed in relation to the prison probation order.
In relation to what can conveniently be described as the drink driving and unlicensed driving offences, the Magistrate again imposed one penalty for both offences of $600 with 10 months to pay in default 10 months' imprisonment being six months after her release from prison. She was disqualified from holding or obtaining a driver licence for a period of six months.
Because the magistrate had taken the contravene direction charges into account in dealing with the other sentences he imposed, he simply recorded a conviction with no further penalty in relation to those offences. The appellant was also ordered to pay restitution to the proper officer of the Court of $5,770 and ordered to pay a pecuniary penalty order of $41.55 of moneys held by the prosecuting authorities.
Therefore, despite the prison calculation document which was placed before the Court on an application for bail pending this appeal I consider that the total effect of sentence which the Magistrate intended to impose was four months and 16 days' imprisonment and three years' probation subject to the fines that I have referred to. I note that the appellant was admitted to bail on the 31st of March 2009 after serving 40 days' imprisonment from the 19th of February 2009.
She has now been on bail for four months and three days.
In the normal course of events, even on the basis of the prison calculation document, her full-time release date was the 12th of July 2009 which has now passed.
This appeal is brought under section 222(2)(c) of the Justices Act on the basis that the sentence imposed was manifestly excessive.
It was acknowledged in R v Melano, ex parte Attorney-General, [1995] 2 QdR 186 in relation to Attorney-General appeals under section 669A of the Criminal Code that the application of this provision is generally consistent with the established principals relating to appeals against discretion referred to in House v. The King [1936] 55 CLR 499 with particular reference to the judgments of Dixon, Evatt and McTiernan JJ at 504 to 505.
It follows from House that before an appellate Court will interfere with the exercise of a sentencing discretion the appellant must demonstrate that the judicial officer acted upon a wrong principle, allowed extraneous or irrelevant material to guide or affect him, mistook the facts or did not take into account some material consideration.
The principle in Melano is that unless the sentencing Judge had erred in principle, either because an error is discernible or demonstrated by a manifest inadequacy or excessiveness, the sentenced he or she has imposed will be proper. Although Melano was an Attorney-General's appeal I consider that this is what is involved in demonstrating in accordance with House that a judicial officer has acted upon a wrong principle.
As stated by Dearden DCJ in Parry v. Mansfield Holdings Queensland Pty Ltd 206 QDC 250 at [29], "The question is whether the sentence appealed against was outside the sound exercise of the sentencing Court's discretion."
To adapt what McMurdo P said in R v Mladenovic ex parte Attorney-General [2006] QCA 176 at [15] the appellant must establish error in the exercise of the sentencing Judge's discretion, here that the sentence is manifestly excessive before this Court can intervene and re-exercise the sentencing discretion.
I also refer to R v. Sittczenko ex parte Commonwealth DPP [2005] QCA 461 with particular reference to the judgment of Keane JA at paragraphs 25 and 26, while appreciating that both this case and Mladenovic concerned appeals by the Attorney-General against sentence.
The appellant was 18 years of age at the time of the 2006 offences. She was 20 and 21 at the time of the subsequent offending and is now aged 21. I rely upon her criminal history as placed before the Court on the bail application as that which was placed before the Magistrate does not appear on the Court file. There is, however, a traffic history on the Court file.
Prior to the commission of the majority of the June 2006 offences, the appellant had committed in New South Wales one count each of dealing with suspected proceeds of crime on the 5th of May 2006, possession of a prohibited drug on the same date and failure to appear in accordance with a bail undertaking on 9 June 2006. She was therefore in breach of a bail undertaking at the time that she committed some of the June 2006 offences.
On the 26th of July 2007, again in New South Wales, she was admitted to a 12 month bond for dealing with specified proceeds of crime offences. She was fined $400 for the drug offence and $400 for breaching the bail undertaking together with $400 for a similar offence committed on the 20th of April 2007.
In Queensland on the 6th of April 2006 she committed one count
each of unauthorised dealing with shop goods, public nuisance
and obstruct police for which she was fined on the 21st of
April 2006. She committed another unauthorised dealing with
shop goods on the 16th of May 2006 and was fined on the 2nd of
June 2006.
Therefore her criminal history as an 18 year old before she
committed the majority of her most serious offences was one
count each of dealing with suspected proceeds of crime,
possession of dangerous drugs and breach of a bail undertaking
and two counts each of unauthorised dealing with shop goods,
and street offences. These were also committed at or about
the time of the 2006 offences with which the Magistrate was
concerned. She had been fined in respect of all of these
offences. With the exception of the street offences these
were all like offences to the offending for which she was
sentenced.
Subsequently she came before the Courts on one count of
unlawful possession of shop goods on the 23rd of March 2007.
On 14th of May 2007 she was fined for this offence. As I
have observed, on the 26th of July 2007 she was dealt with for
the earlier New South Wales offences.
On the 6th of August 2007 in New South Wales she committed one
count each of shoplifting, receiving or disposing of stolen
property and common assault. On the 28th of August 2007 she
was fined for these offences. On the 21st of December 2007
she committed one count each of failing to hold a valid rail
ticket and giving a false name and two counts of assaulting a
law officer, not a police officer.
In relation to the assault offences, she was sentenced to six
months' imprisonment, suspended on entering into a bond for
six months. She was fined on the other offences.
It does not appear that she committed any offences in
contravention of the suspended sentence order because the
first of her 2008 offences was committed on the 25th of June
2008.
In addition to her criminal history, it was stated by the
Prosecutor at page 6 of the transcript that on the 28th of
August 2008 she was fined $100 for a failure to appear on the
26th of June 2007. Finally on the 28th of October 2008 she
was dealt with for a breach of a bail condition on the 15th of
September 2008. This cannot have been regarded as a serious
breach because she was convicted and not further punished.
Accordingly, after the commission of the 2006 offences she was
convicted of one count of receiving or disposing of stolen
goods; one count each of unlawful possession of stolen goods,
shoplifting and giving a false name; and three counts each of
breaches of bail undertaking and for assaults. Therefore, her
total previous offending of a like nature when she was
sentenced on the 6th of March 2009 were three counts of
unlawful possession of stolen goods or dealing with suspected
proceeds of crime or receiving or disposing of stolen goods as
those charges are variously described; two counts of
unauthorised dealing with shop goods; one count of
shoplifting; and four counts of breaching bail undertakings;
and one count each of possession of dangerous drugs and giving
a false name for which she had not been sentenced to
imprisonment. There were also two street offences and three
assaults, including those assaults on which she received a
suspended sentence, but not an actual term of imprisonment.
She had an insignificant traffic history to September 2006
with three offences of travelling without paying the correct
fare and one of supplying a false name and address.
The facts of the offences which were dealt with by the
Magistrate appeared in a schedule tendered to the Court with
the exception of the 2009 offences. These can be summarised
with the aid of a summary in the appellant's outline of
submissions as follows: in relation to the offences arising
on the 7th of June 2006 in relation to driving a motor vehicle
whilst over the general alcohol limit and driving without a
licence, she told police that her then partner, who on the
facts appears to have been a major influence on her offending,
was the driver of the vehicle, but told her to jump into the
driver's seat when it appeared that he was about to be
arrested. Her blood alcohol content was .066. She was unable
to produce a driver's licence because she had never held one.
She gave the reason for her driving as wanting to obtain some
cigarettes from a service station. She was released on a
notice to appear in relation to those offences.
On the 16th of June 2006 the police conducted a search of a
caravan that the applicant occupied. An ornate gold necklace
was located with a heart padlock. The applicant participated
in an interview with police and admitted to receiving the
necklace from her partner knowing it to be stolen. She did
not know where it was stolen from. As a result she was
charged with receiving stolen property between the 1st of
February 2006 and the 16th of June 2006.
In relation to the charge of receiving stolen property on or
about the 25th of March 2006, $4,000 had been stolen from a
safe at about that time from the premises of Mount Louisa
Mighty Mart. The offenders involved in the break and enter
were unknown. During the interview with police after the
search of the caravan the appellant admitted to receiving an
undetermined sum of money from that premises. She stated that
the money was used to purchase food and other necessities at
the time.
The charge of receiving stolen property on or about the 9th of
May 2006 related to money stolen from the premises of Upper
Ross Hotel. The money was taken from a safe on the 9th of
April 2006, although as I recall it was agreed at the
sentencing hearing that the date was, in fact, the 9th of May
2006.
Following the search of the caravan the applicant participated
in an interview with police. She admitted that she received
an undetermined sum of money to purchase food and other
necessities from her de facto. The amount of money stolen
from the hotel had been $5,600.
With reference to the charge of receiving on or about the 10th
of June 2006, which must have been committed whilst she was
subject to the notice to appear in relation to the driving
offences, this related to the location of $660 in a wallet
during the search of the caravan. During her interview with
police she admitted that she was present when her de facto
partner had stolen $2,600 from a business of Warwick Friendly
Society Chemist. She admitted to receiving the money knowing
it was stolen. She said the money was used to buy food and
other necessities. It is not clear how much money she
actually received.
The charge of possession of tainted property on the 16th of
June 2006 again committed whilst she was subject to the notice
to appear for the earlier offences related to $41.55 in coins
which was located during the search of the caravan. Although
she initially told the police she had won the money from poker
machines, she later admitted that she thought it was stolen.
She stated that she didn't know where it had come from.
The charge of possessing dangerous drugs on the 16th of June
2006 which again would have been in breach of the notice to
appear related to 17.9 grams of cannabis sativa which was
located during the search of the caravan. The appellant
admitted to the possession of the cannabis, but at the
sentencing hearing her plea was put on the basis that she had
knowledge that the cannabis belonging to her partner was
present in the caravan at the time.
In relation to the charge of unauthorised dealing with shop
goods, on the 25th of June 2006 a vehicle occupied by a number
of persons filled up with $48.96 worth of petrol at a service
station. Police made inquiries with the owner of the vehicle
and someone implicated the appellant. The appellant admitted
to filling the car up with petrol and getting back into the
car, leaving without paying. She was located in relation to
this offence on the 10th of November 2006.
The first of the contravene a direction charges was on the
26th of June 2008 and also must have been committed when she
was subject to the notice to appear in relation to the other
offences to which reference has been made arising out of the
search of the caravan and the subsequent interview, because
she was also released on a notice to appear in relation to
those offences.
The contravene direction offence arose when she was arrested
on an unrelated matter and issued with a further notice to
appear. The appellant failed to state her correct name to
police. Fingerprints were taken and she was later identified
as a result of that.
The second charge of unauthorised dealing with shop goods was
between the 26th of August and the 27th of August 2008. The
appellant entered a convenience store and selected items from
the shelf. Some items were paid for, however, the appellant
had hidden some items under her clothes. When asked to pay
for the additional items, she said she belonged to the Mafia,
she'd pull a gun out and that there were 20 people outside who
would smash up the shop. That obviously did not impress the
attendant who called the police as she was saying this. As a
result, the appellant fled and police located her and found
property of the store in her possession valued at $33.40. She
was located a short distance away from the store with two
males. She initially denied taking the items, but later told
police, "I live on the street. What do you expect?" She was
intoxicated at the time of speaking to police and did not
participate in an interview due to that intoxication.
In connection with that offence she contravened a direction on
the 27th of August 2008. This again was a failure to state
her correct name to police in relation to the offence of
unauthorised dealing with shop goods. When asked why she
provided an incorrect name when she was apprehended, she said,
"You don't know how I feel. My father dies and then my boy
died. You wouldn't understand." This is relevant to the
appellant's personal circumstances to which I will refer.
The breach of bail of 19 November 2008, which as I observed
was the subject of a substituted charge by the Magistrate,
came to light when police attended a house on the 19th of
February 2009 to conduct a search. During the search at which
drugs and drug utensils were located she said that she didn't
go to Court because she was sick, but did not have a doctor's
certificate. Her lawyer at the sentencing proceedings advised
that she was sick because she was withdrawing from heroin.
As I have said, on the 19th of February 2009 the police
located drugs and drug utensil. As a result she was charged
with possessing dangerous drugs on the 18th of February 2009
and possessing a utensil on the 19th of February 2009. In
relation to the former offence, she told the police that she
had given a friend $50 to buy some heroin and that when she
received it she smoked the heroin.
The possession of utensil charge related to the location of an
aluminium can with burnt residue during the search. She
admitted that the item was hers and had been used by her to
smoke the heroin.
Finally, on the 19th of February 2009 in relation to those
offences she failed to provide her correct name to the police.
She later told police that she provided her sister's name
because she knew she had a warrant for her arrest. Her lawyer
submitted at the sentencing proceedings that the appellant had
a real concern about being taken into custody because she was
responsible for two children.
In addition to the matters that I have already referred to,
when the sentence proceeded before the Magistrate the
appellant's lawyer said that she had been raped by a family
member when she was seven years of age and she had a baby when
she was 14 years of age whom she now had in her care. When
around 17 years of age she commenced a relationship with an
older man Lincoln who was a serious criminal offender. He was
the instigator of the offences and was currently serving a
sentence. This man also introduced her to heroin to which she
became addicted. It was asserted that her propensity to
reoffend had significantly diminished as he was now serving
the term of imprisonment.
The Court was also told that when she was around 17 or 18
years of age her father died and she was involved in a car
accident and suffered a miscarriage losing twins. This
lastmentioned event came immediately on top of the passing of
her father. That provides some context to one of the things
that she said to the police.
As well as the appellant having care of her young son before
her remand in custody, she also had care of her 13-year-old
brother. She was also assisting with the care of mother. Her
son was a severe asthmatic and suffered a number of attacks
since her remand in custody.
As I have indicated, the appellant was said to have attempted
to evade remand due to the concerns of her family.
In addition it was submitted that she was remorseful, that
given her circumstances it would have been difficult to
extricate herself from the offending behaviour and its
consequences. She had been clean of heroin for a period of
two months. The period in custody had given her time to
reflect. It was submitted that a noncustodial sentence should
be imposed along the lines of probation.
The Learned Magistrate stated in his decision that he was
satisfied that it was appropriate and no more severe in all of
the circumstances, particularly when one had regard to the
significant sums of money involved in relation to the
dishonesty that a period of imprisonment should be imposed.
The appellant submits that the appropriate sentence in the
circumstances was that the appellant be sentenced to three
years' probation in respect of each of the receiving offences
and each of the possession of dangerous drug offences, fined
$600 for the driving offences with the fines to be referred to
SPER with 10 months to pay and that she be convicted and not
further punished for each of the remaining offences.
It is also submitted that the appropriate penalty was not to
order restitution or the pecuniary penalty although the
initial submission in relation to the pecuniary penalty has
since been withdrawn given that it is appreciated that this
was simply an order to dispose of the $41.55 cents which had
been found in the appellant's possession.
The respondent concedes that it is appropriate that this Court
resentence the appellant in light of the structure and
substance of the original sentences. The submission is that
the appellant should be resentenced to a period of three
years' probation in relation to each of the receiving
offences. It is submitted that a community-based order is
also in range in relation to the tainted property offence and
that the Court has the discretion to order that the appellant
be similarly admitted to probation.
It is submitted that the drug offences and the possess utensil
offences would ordinarily attract fines, particularly the
offence in 2006. It is submitted that fines in the amount of
$400 to $700 are appropriate in relation to the possess
dangerous drug charges and that $150 to $300 are appropriate
in relation to the possession of utensils charge.
The respondent submits that the failure to appear offence
should not be further punished in recognition that the
appellant has already served 40 days of actual custody.
With regard to the contravene direction offences, the
respondent submits that as two of the contravene direction
offences are related to the appellant's other subject offences
there is no need for further punishment other than convictions
be recorded.
The respondent submits that the fine for the unauthorised
dealing of shop good charges ought to remain or be apportioned
between each offence so that it remains in the same amount.
It is submitted that the sentence in relation to the driving
offences should also remain unaltered.
It is submitted that it is not appropriate for the appellant
to be subject to compensation orders. The respondent also
submits that all the fines should be immediately referred to
SPER at least after a short period so that the appellant can
commence to meet her obligations in a fashion suited to her
ability to pay and does not have those amounts lingering over
her head.
Both the appellant and the respondent submit that the
Magistrate was in error in fixing one order of four months'
imprisonment rather than separate orders of imprisonment for
each offence. The respondent describes this as a global
penalty.
The respondent concedes that separate penalties in relation to
the receiving, dangerous drug and tainted property charges
should be imposed upon resentencing on the authority of
R v. Crofts (1998) 100 ACrimR 503; (1999) 1 QdR 386 at 387.
The appellant submits that the most serious offences are the
receiving offences from 2006 when the appellant was only 18
years of age. These offences occurred in circumstances when
the appellant was in the grip of a drug addiction and she was
under the influence of an older criminal offender. The
appellant made admissions to police in circumstances where she
admitted to receiving sums of money greater than located
during the search. It is submitted that the appellant was not
afforded the usual discount for her early plea of guilty.
It is submitted that the less serious offences are those from
2008 and 2009 involving relatively minor sums of money and
less serious conduct. It is also submitted that the appellant
has not been provided the opportunity to undertake
community-based rehabilitation in the past. It is submitted
that probation would have been the appropriate sentence to
impose.
Although the appellant's counsel upon the sentence did not
argue against the making of the compensation orders, it is
submitted that the appellant had no realistic means by which
to pay the monetary penalties consisting of $5,770 restitution
and the $600 fine for the driving offences. As I have said,
reference was originally made to the $41.55 cent pecuniary
penalty order however this is not pressed for the reasons that
I have given. It is noted that with the exception of the
fines, no time to pay is specified.
The appellant also submitted that while no submissions were
made to the Magistrate in relation to the appellant's capacity
to pay the monetary penalties, the Magistrate was informed
that the appellant had no work history. It is submit that the
Magistrate did not give sufficient regard to the appellant's
financial circumstances and the burden of paying the fine of
$600 as required by section 48 of the Penalties and Sentences
Act. It is submitted that the appropriate penalty was not to
order restitution or the pecuniary penalty although as I say
the last issue is not pressed.
In respect of the $600 fine, it is submitted that it is open
for the amount to be reduced by the Court or that it be
deferred to the State Penalties Enforcement Registry in the
event of non-payment.
In relation to the fines imposed for the two offences of
unlawfully dealing with shop goods, it is submitted that the
maximum penalty for this offence is six penalty units which at
the relevant time was $75. It is submitted that the
Magistrate's intent that the appellant serve time in custody
for these offences was impermissible as it was contrary to the
legislative penalty that a fine be posed for this type of
offence. It is submitted that it was also contrary to the
mandatory requirement to allow time to pay the fine required
by section 51(a) of the Penalties and Sentences Act
and was otherwise an improper exercise of the sentencing
discretion.
It is submitted that the appropriate penalty was to record a
conviction and that the appellant receive no further
punishment for these offences.
The respondent agrees with this submission, however, it
submits that the fine of $600 for both offences was not
manifestly excessive particularly having regard to section 9
of the Regulatory Offences Act 1985. However, there is
nothing to suggest that the Magistrate was acting under that
provision in setting the amount of the fine. It is submitted
that it is open for me to fine the appellant $200 for the 2006
offence, and $400 for the 2008 offence, in light of her New
South Wales criminal history for shoplifting in 2007 for which
she was fined $400.
It is submitted that the drug offences would ordinarily
attract fines as would the contravene direction and driving
offences. It is also submitted that the failure to appear
offence can attract imprisonment.
It is acknowledged that had the respondent been sentenced in
2006 she would have had a limited criminal history at the time
and at least some of the receiving offences may have predated
any of her Queensland offending, and as such she was likely to
have been sentenced to community-based orders.
Further it is acknowledged that in relation to the tainted
property offence, it is likely that the appellant would have
received a fine or a community-based order.
The respondent acknowledges that in circumstances where the
appellant has addiction issues and where it was submitted at
sentence that the appellant was in the thrall of an older and
more serious offender, that supervision is appropriate and
warranted.
The respondent submits that the offence against the Bail Act
is one that was committed where the appellant was aged 20 and
has one previous offence against the Bail Act on her
Queensland history and two other failure to appear offences on
her New South Wales history. I note that reference was made
by the prosecutor to a further Bail Act offence that does not
appear on the history.
The appellant was fined in relation to her New South Wales
offences and was convicted but not further punished with
regard to the Queensland offences. It is submitted that in
these circumstances that a short period of imprisonment was
open to the Magistrate's Court. It is acknowledged that the
appellant has spent 40 days in custody, and when seen in light
of the time already served the respondent is not submitting
that further punishment is warranted. Accordingly, the
respondent concedes that the appellant should not be returned
to actual custody.
I do not agree with the submissions by both parties that the
learned Magistrate erred in principle by fixing one order of
four months' imprisonment for the offences rather than
separate orders of imprisonment for each offence, or imposing
a global penalty.
Although it was decided in R v. Crofts that there is no power
to impose a single period of imprisonment for a number of
offences, it was recognised that a single probation order may
be made in respect of two or more offences under section 97 of
the Penalties and Sentences Act.
A probation order for the purposes of this provision includes
a prison probation order under section 92 (1)(b), as I have
described it. This is the order that the Magistrate made in
this case. All he was purporting to do was to make one
probation order for all the offences on which he imposed
imprisonment as he was entitled to do. This is confirmed when
the language he used and the orders on the Court file are
closely examined. It must be remembered that the transcript
of the sentencing remarks have not been revised.
However, at page 5 of that transcript his Honour said:
"In respect to the following offences, the receiving - on
four receiving charges, the possess tainted property, the
possess dangerous drugs on the 19th of February, possess
utensil on 19th of February, and possess dangerous drug
on the 16th of June 2006, I make one order in relation to
all of those offences.
You are convicted of each of those offences and the
convictions are recorded.
You are sentenced to imprisonment for a period of four
months and you are required to be under the supervision
of an authorised Corrective Services officer for a period
of three years from today."
I consider that the terms of imprisonment of four months, like
the conviction, relate to each offence, and this is not a
single sentence of imprisonment for all of those offences.
When the file is examined, there is a separate order of
commitment for each offence with a statement in each case that
the Court ordered that the offender be sentenced to
imprisonment to a term of four months. The probation order
forms are simply to make one probation order for all offences
in accordance with section 97.
I note that the probation order form which is attached to the
Court file and is in turn incorporated as part of the bench
charge sheet includes a statement note, "When more than one
offence, each term of imprisonment must be noted on the
relevant Court file." This confirms that a separate term of
imprisonment has been made for each offence.
The passage relied on by the respondent at the conclusion of
the sentencing remarks to support the proposition that this
was an impermissible global order are, in my view, no more
than an attempt by the Magistrate to explain the effect of the
order to the defendant. Such an approach is both sensible and
permissible.
However, I consider that both parties are correct when they
submit that there has been an error of principle with
reference to the penalties imposed for the two offences of
unlawfully dealing with shop goods where the Magistrate fined
the appellant and gave her no time to pay in circumstances
whereas the appellant submits it must have been apparent from
her personal circumstances that she had no realistic means of
paying these fines with the result that she was effectively
sentenced to a term of imprisonment for the offences for which
only a monetary penalty of a maximum of $450 could be imposed
in each case.
In my view, it is irrelevant that the default terms of
imprisonment were ordered to be served concurrently. It was,
therefore, an error of principle to impose a penalty which was
effectively a term of imprisonment. This is particularly so
when the order was contrary to section 51 of the Penalties and
Sentences Act which provides that "If a Court does not make an
instalment order under section 50(a), it must at the
time of imposing the fine order that - (a) the offender be
allowed time to pay the fine or, (b) the proper officer give
under the State Penalties Enforcement Act section 34
particulars of the fine to SPER for registration under that
section." This was not a case where an instalment order had
been made and accordingly the section applied.
In addition, there has been a failure to have regard to the
appellant's financial circumstances and the nature of the
burden that the payment of the fine would have on her as
required by section 48(1) of that Act in the circumstances to
which I have referred. I also do not consider that as
required by section 48 subsection (3) of the Act in
considering her financial circumstances, the Court took into
account its restitution orders and the pecuniary penalty
order.
Another error which appears on the face of the record is
fixing a parole release date on the day of sentence in respect
of the cumulative period of 15 days' imprisonment for the
failure to appear in accordance with an undertaking when
having regard to the prison probation order this could not be
given effect.
The existence of these errors entitle me to re-exercise the
sentencing discretion having regard to section 225(3) of the
Justices Act. Even if there was no discernible error of
principle, I consider that the sentences imposed were outside
the sound exercise of the Court sentencing discretion as they
are manifestly excessive.
On this basis also I consider that it is demonstrated that
there has been an error of principle by virtue of which the
sentencing discretion miscarried and that I should resentence
the appellant.
The most serious offences are the receiving offences which
were committed in 2006 when the appellant was 18 years. It is
clear that this was the Magistrate's approach having regard to
what he said at page 3 of his sentencing remarks to which
reference has already been made.
As the respondent acknowledges, at this time the appellant had
a limited criminal history and some of the receiving offences
could have been her first offences. Her first Queensland
offences were committed on the 6th of April 2006 being two
street offences and one count of unauthorised dealing with
shop goods. Her first New South Wales offences of dealing
with property suspected to be proceeds of crime and possessing
a prohibited drug were committed on the 5th of May 2006.
The first two receiving offences in particular could have been
committed before this. As I have previously observed, even if
this was not the case, prior to the majority of the offences
being committed her previous criminal history was two offences
of unauthorised dealing with shop goods and one each of
dealing with suspected proceeds of crime, possession of a
prohibited or dangerous drug, breaching a bail undertaking and
a street offence.
She was fined in relation to the majority of these offences
and admitted to a recognisance in relation to the dealing with
property suspected of being proceeds of crime. Although some
of the 2006 offences would have been committed whilst subject
to notices to appear on other offences, I consider that if she
had been sentenced on the receiving offences and the other
2006 offences, being nine of the 16 charges to which she
pleaded guilty, at the time that she normally would have been
expected to have been dealt with for them, she would have been
likely to have been given the opportunity of release on a
community-based order in relation to at least the most serious
offences.
This is in circumstances where she was a young person aged 18
years of age, had limited previous offences. The previous
offences were committed at or about the same time. All of the
offences committed around this period were consistent with her
being in the grip of drug addiction and under the influence of
an older and serious criminal offender. The older offender
was the instigator of the most serious criminal offences and
her drug addiction. On her account he was also the driver of
the vehicle immediately prior to telling her to swap seats as
a result of which she was convicted of the driving offences.
The drug offences related to his drugs and she pleaded guilty
on the basis of her knowledge of its presence in the premises.
She had compelling personal circumstances which could benefit
from some supervision.
She pleaded guilty. She expressed remorse. She cooperated
with the administration of justice by admitting her
involvement in interviews with the police, and although she
was sentenced on the basis that she had received half the
proceeds of the three most serious receiving offences, other
than the necklace and the $660 and the $41.55 found in her
possession, the schedule of facts stated that she received an
undetermined sum of money, therefore, the sum of money that
she received is unclear.
Although it must be accepted that she was not sentenced at
that time as a result of her own failure to appear before
Courts and exacerbated this by giving a false name on
occasions when she was subsequently questioned by police, as
well as committing further breaches of bail and other offences
while she was at large, these were still relevant factors for
the Magistrate to take into account.
At the time he sentenced her, she was still only 21 years.
Her total offending at this stage was three unlawful
possession of stolen goods or dealing with suspected proceeds
of crime offences, two counts of unauthorised dealing with
shop goods and also of giving a false name if her traffic
history is considered, four counts of breaches of bail
undertakings and one count each of shoplifting and possession
of a dangerous drug. In addition there were two street
offences and three assaults.
She had not been sentenced to a term of actual imprisonment.
She had been sentenced to a wholly suspended sentence in
relation to two of the assaults on New South Wales law
officers. As I read her history, she did not breach the
suspended sentence.
She had also been subject to a 12-month recognisance in New
South Wales imposed on the 26th of July 2007. It would have
expired on the 25th of July 2008. Although she committed
offences in New South Wales during that period, that
culminated in the suspended sentence, the only breach offence
in Queensland was contravention of a direction on the 26th of
June 2008.
These circumstances are not sufficient for me to conclude that
I should exercise the sentencing discretion in any different
manner to that which it is likely to have been exercised in
relation to the most serious offences if she had been
sentenced in 2006.
The same circumstances were relevant. Although she did not
have the benefit of an early plea of guilty in light of her
bail breaches which had delayed the resolution of the case for
over two years, she was still entitled to some benefit for the
plea of guilty. Further it was an early plea in relation to
the breach of bail and two drug offences for which she was
apprehended on 19 February 2009.
These were all offences for which imprisonment should only be
imposed as a last resort and for which a sentence that allowed
her to stay in the community was preferable. She had been in
custody for 15 days which had provided punishment and her
personal circumstances made her rehabilitation an important
principle of sentencing.
For his part the Magistrate took into account the impact that
a custodial sentence would have on her family unit. This is
not a case where this impact would overwhelm the circumstances
of the offending and the other circumstances relevant to
imposing penalty.
In balancing the need for a sentence that provides personal
and general deterrence with a need to provide her with an
opportunity of rehabilitation including, as the Magistrate
recognised, with reference to her illicit drug use which had
occurred as recently as 18 February 2009, I consider that the
only appropriate penalty for the offences for which
imprisonment was imposed as part of a prison probation order
is that she be given an opportunity to be released under a
probation order pursuant to section 92(1)(a) of the Penalties
and Sentences Act.
In coming to this conclusion, it is also relevant that she has
now spent 40 days in custody, the additional time being the
period before she was released on bail pending appeal. She
has now been back in the community for one week short of five
months.
In these circumstances the respondent concedes that she should
not be returned to custody. It is noted that in the normal
course of events the appellant's full-time release date would
have been the 12th of July 2002. This has also now passed.
It is to be remembered that probation is a serious sentence as
it involves significant restrictions on the appellant who must
comply with the conditions of the order. In addition, the
seriousness of the conduct is conveyed by the consequences of
recording a conviction which is to be considered as part of
the whole sentence with reference to the statements by Thomas
and White JJ in R v. Briese (1997) A Crim R 75 at 77.
In these circumstances I consider that the Magistrate erred in
principle in that he imposed a sentence that was manifestly
excessive. This is further emphasised by the fact that
sentences of imprisonment were imposed for the possession of
tainted property offences and the three drug offences which
involved knowledge in one case and personal use in the other
cases and for which fines would normally be expected to be
imposed.
In re-exercising the sentencing discretion I set aside the
sentences in relation to the four receiving charges, the
possession of tainted property charges, and the three drug
charges, and subject to the agreement of the appellant I will
release her on probation for a period of three years
commencing from the time when she complies with a notice
issued by the Court in accordance with the terms of her bail
release to attend the Court to sign the undertaking.
I note that despite the terms of the bail release it does not
appear that she has been notified by the Court personally as
to the requirement that she attend for the hearing of the
appeal today. That advice has been given to the Legal Aid
Office Queensland who is representing her and which, whilst in
contact with her, has not been able to directly advise her of
her requirement to appear before the Court today.
Once the sentence of imprisonment is set aside for these
offences and probation substituted, it would be
counterproductive to require the appellant to serve a short
term of imprisonment on the offence against the Bail Act. As
the appellant has spent 40 days in custody, I agree with the
respondent that no further punishment is warranted.
In these circumstances without this being a precedent for
future cases, I consider it is appropriate to record a
conviction and not further punish her in relation to this
offence. I am of the same view and make the same order in
relation to the offences of unauthorised dealing with shop
goods for which in the usual course of events a fine would be
an appropriate penalty. I consider that the time spent in
custody is also sufficient punishment for this offence.
In relation to the two driving offences, I consider that in
light of the appellant's financial circumstances which are
implicit in the submissions made as to her personal
circumstances that the appropriate order is that under
section 51(b) of the Penalties and Sentences Act the proper
officer give under the State Penalties Enforcement Act
section 34 particulars of the fine to SPER for registration
under this section.
The fine that I impose is one penalty for both offences of
$600.
In relation to the three offences of contravening directions,
as they are taken into account in imposing the sentences for
the other offences, the appellant is convicted and not further
punished.
In relation to the offence of possession of tainted property,
I order that the appellant pay the State a pecuniary penalty
assessed in the sum of $41.55 forthwith being moneys held by
the prosecuting authorities.
This is the same order as the Magistrate. There is no issue
of it being unrealistic for her to pay this amount because
these are funds which are seized by the police from her
possession in relation to which the offence was committed.
There is no additional payment sought from her in relation to
it and as I have indicated, the appellant's counsel does not
press that no such order be made in those circumstances.
However, I agree that the situation is different in relation
to restitution. I consider that similar considerations apply
as apply for fines and that the appellant's incapacity to pay
the fines is a relevant factor and the onerous nature of such
an order in these circumstances makes this an unrealistic
requirement. This is especially the case where it cannot be
proven even on the balance of probabilities how much he
received in each case with the exception of the $660 which was
found in her possession.
The evidence was that the indeterminate amount of money she
received was used to buy food and other necessities. It
cannot be expected that this was half of $4,000 or $5,600 or
the balance of $2,600 minus the $660 as the case may be.
Accordingly, I set aside the orders for restitution.
As the sentences imposed on the appellant and the associated
orders will be set aside, it will also be necessary for me to
disqualify her from holding or obtaining a driver's licence
for a period of six months.
I might ask you, though, that would be suspended, wouldn't it,
pending the outcome of this appeal?
MS LITCHEN: I don't know.
MS HILLARD: Your Honour, it should be, but sometimes they
don't.
HIS HONOUR: Yes. Well, at this stage I will proceed on that
basis and I won't order that the disqualification dates from
the date of the original sentence by the Magistrate, but in
accordance with the bail order it will be necessary that she
be advised of a time by the District Court to appear and
surrender herself into custody so that she can be given the
option of entering into the probation orders. If inquiries
are made in the meantime, I can make whatever necessary
amendments are required to the order on that date.
Accordingly, I set aside the orders for restitution. The
orders of the Court will be:
(1) The appeal is allowed;
(2) (a) The sentence imposed on 6 March 2009 and associated
orders be set aside.
(b) The appellant is resentenced as follows:
(i) convicted and a conviction recorded on all
counts;
(ii) on the four charges of receiving stolen
property, two charges of possession of
dangerous drugs, and one charge each of
possession of utensils and possession of
tainted property, released under the
supervision of an Authorised Corrective
Services Officer for a period of three years
under section 92(1)(a) of the Penalties and
Sentences Act 1992 (Queensland) on the
requirements under section 93(1) of that Act;
(iii) on the three charges of contravening a
direction, two charges of unauthorised dealing
with shop goods and one charge of failure to
appear, not further punished;
(iv) on the charge of driving over the general but
under the high alcohol limit and the charge of
unlicensed driving, one fine of $600 for both
offences and it is ordered that the proper
officer of the Court give under the State
Penalties Enforcement Act (Queensland)
section 34 particulars of the fine to SPER for
registration, and disqualified from holding or
obtaining a driver's licence for a period of
six months. I will make it clear that that
last order involving the disqualification of
the driver's licence is in relation to the
charges relating to the driving of motor
vehicles;
(c) In relation to the charge of possession of tainted
property, it is ordered that the appellant pay the
State a pecuniary penalty assessed in the sum of
$41.55 forthwith being the moneys held by the
prosecuting authorities.
There will be no order as to costs.
As to the probation orders taking effect, as I have indicated
they will take effect from the time when the appellant attends
before the Court and indicates her agreement to the period in
terms of those orders. In the event that she does so and
signs the orders, they will take effect from that date.
I adjourn these proceedings to a date to be fixed.
HIS HONOUR: Well, I direct that in accordance with the
appellant's bail undertaking that she appear and surrender
herself into custody in the District Court at Brisbane at a
date and time to be advised by the Court for the purpose of
giving her the opportunity to enter into the probation order.
That date will be at a time that is mutually convenient to
counsel and the Court.
Is there anything further? I don't think there is anything
other than that?
MS HILLARD: No, your Honour.
MS LITCHEN: No, your Honour.
HIS HONOUR: All right. Thank you for your assistance. I am
sorry that went so long, but there seemed to be a bit in it
once it all got boiled down.
------
0
5
5