Roy v Commissioner of Police

[2008] QDC 149

[2008] QDC 149

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE HOWELL

DANIEL PETER ROY Appellant/Defendant
And

COMMISSIONER OF POLICE Respondent/Complainant

HERVEY BAY

..DATE 07/04/2008

ORDER
07042008 T(2)08/CSA(CAB) M/T HERV03 (Howell DCJ)

HIS HONOUR: On the 24th of January 2008 the appellant pleaded	1
guilty to three simple offences of some seriousness of being in possession of tainted property. The tainted property in each of the three counts was electrical wiring and copper piping property of real value, each being from a residence in

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the process of construction.

This particular offence is increasing, if not proliferating, judging on matters that come before me. I have made it clear that for this type of offence the deterrent element is more

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than ordinarily important. The offending on each occasion was
not trivial, it was not spur of the moment, it required some
planning and sadly the solicitor for the appellant on sentence
made a submission that it was opportunistic. That is clearly

not correct.

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It would have been much more helpful to the learned Magistrate if the solicitor for the appellant had made certain submissions that were open and had real relevance, such as, what was the level of cooperation and the effect of the

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cooperation in relation to the inculpation of the third
offender who does not seem to have been before the Court and

may not yet have been charged.

The first offence occurred in the period from the 28th of

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August 2007 until the 2nd of September 2007 at Lot 73,
Blueberry Street. The second offence occurred at Lot 29,
Vanielli Court and the period within which such offending
occurred was between the 4th and 5th of September 2007. It
07042008 T(2)08/CSA(CAB) M/T HERV03 (Howell DCJ) 2 ORDER 60

appears on the accused's out of Court interview that he said	1
that the third offence occurred when the three offenders returned to 73 Blueberry Street and committed a similar offence, such being between the 2nd of September 2007 and the 5th of September 2007. The loss to good citizens was

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substantial in the second charge the loss was $9,500 and the
total for one and three was $10,277.62, making a total of

$19,777.62.

The appellant was no callow youth being aged 26 at the time.

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What is of concern is that he was the subject of a recently imposed wholly suspended sentence for two offences of producing a dangerous drug, one of possession of property suspected of having been used in the commission of a drug offence and one of possessing or acquiring items related

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thereto.

On the 13th of December 2006 for those offences the appellant was not sentenced, he was provisionally dealt with leniently on the basis that he behaved himself for 12 months, namely 12

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months probation. He was also ordered to perform unpaid
community service for 100 hours. He breached those orders and
on the 4th of July 2007 when re-sentenced for those offences
the effective order was two months imprisonment wholly

suspended for 12 months.

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Not long in to that suspended sentence he committed the simple offences of some seriousness which were the subject of the fresh charges. The appellant is entitled to allowance for the 07042008 T(2)08/CSA(CAB) M/T HERV03 (Howell DCJ) 3 ORDER 60

plea of guilty manifesting cooperation in the administration	1
of justice.
A second matter, as I said, which could have resulted in a not insubstantial allowance was information supplied in relation

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to a co-offender and how useful that might have been. An
accused does not have to enter into a section 13A contract to

receive an allowance thereunder.

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4 ORDER 60

07042008 T(2)09/CXW(CAB) M/T HERV 03 (Howell DCJ)

Pursuant to section 9(2)(i) of the Penalties and Sentences Act	1
a Court takes into account how much assistance the offender
gave to law enforcement agencies in the investigation of the
offence or other offences. If there were material before me
that satisfied me that the authorities were unaware of the	10
third offender or the name of the third offender or had
insufficient evidence against such third offender, that if an
accused identified that third offender and, more importantly,
gave material to inculpate that third offender, that such	20
would have been the subject of a further allowance.
The appellant's criminal history shows an offence of
dishonesty, namely stealing, for which he was fined in April,
1998; the regulatory shoplifting that occurred on the 31st of	30
December, 1998; and then the drugs offences to which I have
referred.
When one looks at all the material it was clearly open to the	40
learned Magistrate to impose a not insubstantial custodial
head term for the new offences and one might think that such
was the appropriate order and a sentence of nine months
imprisonment for the three new offences was clearly not
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inappropriate.
The sentence had a further sting in the tail. The appellant

who was indebted to SPER in the sum of about $4000 was further
07042008 T(2)09/CXW(CAB) M/T HERV 03 (Howell DCJ) 5 ORDER 60

ordered to pay compensation amounting to one-third of the	1
total sum, namely, $6592.54, with the said substantial sum to
be referred to SPER also.
In an unusual procedure the learned Magistrate sentenced the	10
appellant for the three new offences then gave the parties an
opportunity to make further submissions in relation to the
application to activate the suspended sentence. He then
separately gave his order in relation to that matter and	20
activated in full the said wholly suspended terms of
imprisonment resulting in an order of two months imprisonment.
One would arguably have found it unsurprising if he had made
such activated term of imprisonment cumulative because, as the	30
first two Lord Chief Justices in England after the
introduction of similar legislation in England, namely, Lord
Parker and Lord Widgery said ever so often, if suspended
sentences are made concurrent they are, in effect, rendered	40
nugatory. Activated suspended sentences can be made
concurrent as part of the process of making allowance for
things such as pleading guilty, et cetera. If a Court is
structuring the order such that allowance is made thereunder
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one might expect the Court would express that clearly.
One might have found it unsurprising if the procedure had been

the learned Magistrate said, "Well, they should be cumulative
07042008 T(2)09/CXW(CAB) M/T HERV 03 (Howell DCJ) 6 ORDER 60

and the global head term would be 11 months, so the bottom	1
will be somewhere about a third of 11 months.". That is not
what happened here. The new offences were the subject of nine
months order with parole at, one might say, about halfway then
a subsequent hearing, after the opportunity for further	10
submissions, the activated suspended sentences were made
concurrent and it is to be remembered there is a substantial
compensation order in addition.
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As the learned Magistrate decided that the appropriate global
head sentence was nine months the question then has to be
considered what allowance was made for the matters in the
accused's favour. At the end of the day, a matter I throw
into the melting pot in coming to the conclusion that I do, is	30
that the order does contain that substantial compensation
order and I have expressed on a number of occasions that if I
send someone to gaol I rarely make a compensation order in
addition. There is usually a special circumstance, such as	40
the compensation has already been paid or defence counsel asks
that I make such order as an indication of the accused's bona
fides.
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At the end of the day I am of the view that the bottom is manifestly excessive or, to put it another way, that there is
not sufficient allowance within the range when dealing with a

head sentence of nine months imprisonment. The Court of
07042008 T(2)09/CXW(CAB) M/T HERV 03 (Howell DCJ) 7 ORDER 60

Appeal has made it clear that an appellate Court may in law	1
say that the head sentence is appropriate but that the bottom
is manifestly excessive.
The end result of the order will be that the nine months	10
global head term will stand but the global parole release date
will be after one-third. Accordingly, the appeal is allowed
to the extent of varying the global parole release date being
fixed at the 24th of April, 2008.	20
Now, what is the procedure in Hervey Bay in relation to 222 Appeals. In some jurisdictions if Legal Aid is for the appellant the parties agree that whatever happens there will be no order as to costs.
MR GOODWIN: That's - that's the case.
HIS HONOUR: Yes.	30
MR GOODWIN: Be no orders.
HIS HONOUR: There will be no order as to costs. Thank you,
Mr Goodwin. Thank you, Mr Cummings.
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8 ORDER 60