Vallis v Queensland Police Service

[2006] QDC 235

[2006] QDC 235

DISTRICT COURT
CIVIL JURISDICTION

JUDGE BRITTON SC

JEREMY ROBERT VALLIS	Appellant
and
QUEENSLAND POLICE SERVICE	Respondent
ROCKHAMPTON ..DATE 12/06/2006
JUDGMENT

12062006 D.1 T1/RPP(ROK) M/T ROK1/2006 (Britton DCJ)

HIS HONOUR: This is an appeal against sentence by Jeremy	1
Robert Vallis (the appellant) who was convicted and sentenced at the Magistrate's Court Rockhampton on the 3rd of February 2006 in respect of two offences of break, enter and steal. He had pleaded guilty to each of those charges.

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The first, in time, of those offences was committed between the 7th of November 1998 and the 10th of November 1998. I will refer to this offence as the "Gympie offence."

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The second, in time, was committed between the 13th of January
2002 and the 19th of January 2002. I will refer to this

offence as the "Chatsworth offence."

At the time he was sentenced, the appellant was serving a

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number of sentences previously imposed. They were:

(1) A sentence of four and a-half years imprisonment

imposed at the District Court Gympie on the 14th of

January 2003, in relation to which a declaration was

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made in respect of 319 days of presentence custody and
a recommendation was made for post-prison community

based release after serving 18 months; and

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2 JUDGMENT 60

12062006 D.1 T1/RPP(ROK) M/T ROK1/2006 (Britton DCJ)

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(2) A sentence of one year imprisonment imposed at the Supreme Court Brisbane on the 2nd of November 2005 which was ordered to be served cumulatively upon the

previous sentence. A recommendation was made for

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post-prison community based release, six months from

the date of that sentence; and

(3) A sentence of one months' imprisonment imposed at the

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Magistrate's Court Brisbane on the 24th of November
2005 which was ordered to be served cumulatively on the

two previous sentences.

On the 3rd of February 2006, the learned Magistrate sentenced

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the appellant to six months' imprisonment for the Gympie
offence and ordered that that sentence be served concurrently
with the sentences he was then serving. He was also ordered
to pay $5000 restitution and in default of payment he was

ordered to be imprisoned for four months. He was allowed 18

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months to pay the restitution.

In respect of the Chatsworth offence the appellant was sentenced to four months' imprisonment to be served cumulatively upon the sentences he was then serving and he was

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ordered to pay $1,500 restitution and allowed 18 months to
pay, and in default, it was ordered that he be imprisoned for
30 days.
12062006 D.1 T1/RPP(ROK) M/T ROK1/2006 (Britton DCJ) 3 JUDGMENT 60

On the hearing of the appeal the appellant advanced argument	1
that the appellant contends that the sentence for the
in relation to three grounds of appeal. The first matter was concurrently with all other sentences. The argument was

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simply that if the two charges, the subject of this appeal,
had been dealt with by the District Court at Gympie on the
14th of June 2003 the sentences imposed would have been
ordered to be served concurrently. The respondent argues that

there is no basis for concluding that the sentences imposed by

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the Magistrate were manifestly excessive, either as to the
length of them or by reason of the sentence for the Chatsworth
offence being ordered to be served cumulatively on the other

sentences he was then serving.

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Before me, the appellant did not advance any argument on this ground other than that the sentence for the Chatsworth offence should have been ordered to be served concurrently. The respondent argued that the appellant had failed to demonstrate that the Magistrate's sentencing discretion had miscarried.

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It was argued that the effect of making the sentence for the Chatsworth offence cumulative was not to make the overall period of imprisonment a "crushing" one for the appellant, and that making the sentence cumulative was an appropriate exercise by the Magistrate of her sentencing discretion to

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reflect the criminality involved.

4 JUDGMENT 60

12062006 D.1 T1/RPP(ROK) M/T ROK1/2006 (Britton DCJ)

In that regard, when he committed the Chatsworth offence the	1
appellant was 20 years of age and had convictions for a number of similar offences. In fact, between the commission of the Gympie offence in November 1998 and the commission of the Chatsworth offence, he had been convicted of one offence of

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entering premises and committing an indictable offence, 18
offences of break, enter and commit an indictable offence, and
also two offences of wilful damage. The Chatsworth offence
was committed during the operational period of two suspended

sentences for like offences which had been imposed on the 12th

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of February 1999.

I accept the respondent's arguments on this ground of appeal. acted on a wrong principle or had regard to extraneous or

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irrelevant matters, mistook the facts, or failed to take into
account any material consideration. I am not persuaded that
the learned Magistrate erred in the exercise of her sentencing
discretion in ordering that the sentence for the Chatsworth

offence be served cumulatively.

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The appellant's counsel argued that the main point of the appeal was that the Magistrate had failed to make a recommendation for post-prison community based release pursuant to section 157(3)(b) of the Penalties and Sentences

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Act 1992. The respondent conceded this ground of appeal, but whereas the appellant argued that there should have been a recommendation for post-prison community based release after serving one month of the cumulative term imposed by the 12062006 D.1 T1/RPP(ROK) M/T ROK1/2006 (Britton DCJ) 5 JUDGMENT 60

Magistrate, the respondent argued that it should have been a	1
recommendation for post-prison community based release after serving two months. No argument was advanced on behalf of the appellant in support of his contention that the recommendation should have been for post-prison community based release after

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one month.

In my view, pursuant to section 157(3)(b) the learned community based release and it seems to me, having regard to

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all of the circumstances, including the appellant's criminal
history, that a recommendation for release after two months of

the cumulative sentence would have been appropriate.

The final point which was argued by the appellant was also

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conceded by the respondent. This was that in all of the
circumstances, at the time of the sentence, it was very
unlikely that the appellant would be able to pay the
restitution which was ordered in respect of each of the

offences and that, therefore, imprisonment in default of

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payment should not have been ordered.

It was agreed that in respect of each sentence the order for default imprisonment should be set aside and that there should be an order that, in default, the matter be referred to the

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SPER agency. In The Queen v Anderson(1995)1QdR49, the Court of Appeal held that it was not a proper function, or purpose, of ordering restitution, where a cumulative term of imprisonment was imposed in default of payment, the offender 12062006 D.1 T1/RPP(ROK) M/T ROK1/2006 (Britton DCJ) 6 JUDGMENT 60

was manifestly unable to make payment and the practical result	1
was, therefore, to merely increase his effective sentence of imprisonment. The respondent conceded that there was no realistic possibility of the restitution being paid and that in this respect the Magistrate's sentencing discretion had

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miscarried. I accept that that is so.

The appeal will be allowed to the extent that I will make a recommendation for post-prison community based release as required by section 157(3)(b) of the Penalties and Sentences

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Act 1992 and that the imprisonment ordered in default of payment of restitution be set aside and an order made for referral to the SPER agency. The orders are:

(1) That the appeal be allowed; and

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(2) That the orders for imprisonment, in default of payment

of restitution, be set aside; and

(3) That in default of payment of the restitution, the

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default be referred to the SPER agency; and

(4) That in respect of the sentence of four months'

imprisonment, I recommend a non-release period of two

months from the commencement of that sentence.

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7 JUDGMENT 60