Trezise v Queensland Police

[2006] QDC 503

[2006] QDC 503

DISTRICT COURT
CIVIL JURISDICTION

JUDGE MCGILL SC

No 151 of 2006

JOSEPH RICHARD PATRICK TREZISE	Appellant
and
QUEENSLAND POLICE	Respondent
MAROOCHYDORE ..DATE 14/07/2006
ORDER

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14072006 T13/NF M/T MCY2/2006 (McGill DCJ)

HIS HONOUR: I will formally extend the time for - I should	1
say I formally extend the time within which to appeal. The decision was on the 21st of April 2006, and the application was filed the 2nd of June. So, the delay is quite short.

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On the 24th of April 2006, the appellant appeared before a Magistrate in Maroochydore. He was charged with stealing two wheels off a Holden sedan on the 4th of April 2006. The transcript says 2026, but I assume that means 2006. He pleaded guilty. He elected to have the matter dealt with in

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the Magistrates Court. He declined an adjournment to obtain
legal advice or to consider his defence.

He pleaded guilty. It appears that this was at an early stage, although the Magistrate seems to have thought that the

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matter was to proceed the previous day. The appellant had said he was in New South Wales "And did not get back until midnight last night."

The circumstances of the offence were that the appellant had

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taken two wheels from a vehicle, similar to his own vehicle,
which had been parked down the road one night, outside the
owner's house. The owner reported the matter to police. He
subsequently noticed the similar car up the road, and

identified the two wheels. Police were contacted, and they

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spoke to the appellant.

He acknowledged that he had taken the two wheels and tyres and
he made admissions. He agreed to be interviewed, and took
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part in a recorded interview in which he made admissions. The	1
property was recovered and, indeed, I was told that the appellant had put the wheels back on the complainant's vehicle for him. No doubt it would have been a distressing incident for the complainant, but there was very prompt admission to

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police and, it seems, that there was a plea of guilty at an
early stage.

The appellant is 18 years of age. He is in employment as a removalist, but it is casual employment and, significantly, he

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has no previous convictions.

The Magistrate, in his decision, said that he gave credit for the plea of guilty and electing summary jurisdiction. But he regarded this as a serious offence because just about

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everybody in the community owns a vehicle and they are all
vulnerable to those who would prey on their vehicles the way

here.

That may be true, but indeed, he said it was so serious an

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offence, that if he was not so young he might impose a
sentence of imprisonment. And, certainly, a sentence of
imprisonment would have been quite inappropriate for a young
first offender who had made admissions and was pleading

guilty.

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I suppose Magistrates do not as often deal with the sort of offences I deal with. It does not strike me as a particularly serious offence. The wheels would have been worth only a few 14072006 T13/NF M/T MCY2/2006 (McGill DCJ) 3 ORDER 60

hundred dollars at most and, although it would have been a	1
distressing offence for the complainant, his property was recovered reasonably speedily, so it should be regarded as a relatively minor example of the offence of stealing.

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The appellant was fined $1200 and in default, imprisonment for 20 days. A conviction was recorded. He was then asked whether he wanted time to pay, or it was said, "You may do community service instead. Do you wish to do community service, or do you wish time to pay?" He then asked how long

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he would have to pay, and it was said, "You don’t want to do
community service. Is that so?", and responded, "I don't have
time to do community service." So he was allowed three months

to pay. And that was it.

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There is much that was unsatisfactory in the procedure before the Magistrate. To begin with, the Magistrate failed to comply with the requirements of section 48(1) in that it seems to me that he made no attempt to take into account the financial circumstances of the appellant and the nature of the

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burden the payment of the fine would be on the appellant.

He was told that he was in employment as a removalist, but he had no further information about his income or his financial commitments. And it seems to me that without that

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information, he could not be said to have properly complied with the obligation in section 48(1). The Legislature puts these provisions in the statute for a purpose, and they ought

not to be ignored, even by busy sentencing Magistrates.
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In addition, there was, it seems to me, a failure to comply	1
with section 53(1) in that there was no proper explanation, in my opinion, that the appellant could immediately apply verbally to the Court for a fine option order. There was something like an attempt to explain that but, in my opinion,

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it was quite inadequate.

There was also no reasons given for the decision to record a conviction. The appellant was a young first offender. It was an offence which I do not regard as a particularly serious

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example of stealing. There are much more serious offences. nature of the offence, a conviction would be recorded automatically, and it seems to me that it was precisely the sort of situation where no conviction should have been

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recorded.

It may be that the Magistrate believed that, because he was imposing default imprisonment, a conviction had to be recorded. There is, however, provision in the Penalties and

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Sentences Act, section 182A, which expressly provides in subsection 3, that a term of default imprisonment may be imposed whether or not a conviction is recorded. Whether the Magistrate recorded a conviction because of this is unknown, because the Magistrate did not give reasons for recording a

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conviction, which itself is an error of law.

It also seems to me, frankly, surprising - although it is not
an error of law - that the fine was subject to default
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imprisonment anyway. It ought, simply, to have been referred	1
to the State Penalties Enforcement Register for enforcement under the State Penalties Enforcement Act. The legislature has taken the trouble of setting up this system for enforcing
monetary penalties and one of the reasons why this was done

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was in order to reduce the number of fine defaulters who were
serving time in prison, which is a great burden to the

community, because of the cost involved.

In circumstances where the Legislature has set this up, in my

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opinion, it ought ordinarily to be used when fines are imposed
in Magistrates Courts, rather than default imprisonment. I
certainly routinely do it in circumstances where I am imposing
a fine, although because of the nature of the work I do, I do

not impose fines very often. In my opinion, it ought to be

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routinely done in the Magistrates Court. It may be that the delay.

necessary culture change has not yet occurred in the

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However, I do not say that that was an error of law on the part of the Magistrate. That was about the only thing that was not an error of law. The sentence, in my opinion, was thoroughly unsatisfactory. Because of the errors of law, it is appropriate to resentence and, in the resentencing hearing,

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it was not contended on behalf of the prosecution that the
conviction should be recorded.
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I have investigated the appellant's financial circumstances,	1
which are quite modest. His employment as a removalist is, in fact, only on a casual basis, so that his average take-home pay is of the order of $250 a week, from which he has a number of expenses, understandably, a reasonable number of expenses.

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His financial position, therefore, is extremely modest.

And, in those circumstances, and bearing in mind the stolen property was returned promptly and, as I say, it was a first offence, and bearing in mind that he pleaded guilty, and that

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he had co-operated with the police and made full admissions,
an appropriate penalty is a fine of $400.

I will not record a conviction. I will allow him three months to pay. In default of payment within that time, I will refer

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the matter for enforcement to the State Penalties Enforcement

Register.

So, I will allow an extension of time within which to appeal.

The appeal is allowed. The sentence imposed below is set

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aside, and I have resentenced accordingly.

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7 ORDER 60