Young v Commissioner of Police

[2009] QDC 187

[2009] QDC 187

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE RYRIE

No 1001 of 2009

PETA LOUISE YOUNG	Appellant
and
COMMISSIONER OF POLICE	Respondent
BRISBANE ..DATE 05/05/2009
JUDGMENT

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HER HONOUR: This is an appeal against the order of Magistrate

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Sarra given on the 23rd of March 2009, at which time he
imposed a period of imprisonment of two months to commence on

the date of sentence with no parole date allocated, giving a full-time release date of the 22nd of May 2009 in respect of the offence for which the defendant pleaded guilty, in this	10
case the defendant - being the appellant before the Court - one of failure to dispose of a needle or syringe, which had a maximum penalty of two years' imprisonment.
The submissions that have been received on behalf of the	20
appellant set out the grounds on which the appeal is based, in
which it is conceded quite properly by Ms Litchen who appears
on behalf of the respondent, that a number of errors in the
sentencing process took place. Amongst others, that there was
no declaration made in relation to pre-sentence custody	30
already served, and Magistrate erred in failing to fix a
parole release date as required by the Penalties and Sentences
Act.
The Magistrate, amongst other things, imposed a period of	40
imprisonment which - on any view of it taking into all the
matters that one takes into account when exercising the
sentencing discretion whether it be in this Court or another
Court - matters of significance such as age, previous criminal
history, the nature of the offending and other necessary	50

considerations was in itself manifestly excessive.
The Magistrate ordered two months' imprisonment with no verbal 1-2 JUDGMENT 60

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order as to parole. It is clear, as Ms Litchen pointed out
and I agree, that Magistrate Sarra was genuinely attempting to watch out for the interests of the young appellant, who was 24 years of age, before him who had clearly been addicted to

heroin for a period of time as demonstrated by her criminal	10
history of which previous offending of a drug nature as well as stealing offences associated with drug offending to support that habit gave cause for some concern to him.
It appears that Magistrate Sarra, in exercising his sentencing	20
discretion, even with the good intentions he had in mind, in
my mind did make a number of errors which warrants this
Court's intervention. As Ms Litchen has said it is
appropriate that an order from the respondent's point of view
be considered by me as a substitute order, namely one of	30
probation. I note that the appellant has put in an affidavit
to suggest she would accede to probation if it was ordered. The minimum amount of probation that could be ordered by me however is a period of six months, as required under the
Penalties and Sentences Act, for this type of offence.	40
She has already served, as I understand it, approximately 45
days in custody under the sentence that was given to her. In
other words, she is and would have been eligible for release
under parole at least had one been ordered as a fixed date as	50

at, really, now. That however is beside the point. The
question that I have to determine is whether or not on the re-
sentence, taking into account all the matters before
Magistrate Sarra, what the order should have been in the first 1-3 JUDGMENT 60

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place. As I've said, acknowledging the good intentions by
Magistrate Sarra as raised before this Court, it does strike me however that the appropriate sentence would have been one of probation with or without conviction, depending on

submissions that may well have been made but weren't.	10
She was 24 years of age, she did have some criminal history,
which as I've said included a failure by her in the past to
properly dispose of the needle and the syringe. Other
offending on her criminal history, of which she's received no	20
conviction and good behaviour bonds in the past, strike me as
dishonesty offences, some of which could be trite for me to say would be associated with the use of heroin from a young age. All in all, however, her history in itself is not one at
the worst end of the scale and is one that is readily	30
understood, not excused, in the context of a young woman being addicted to heroin for approximately four years.
She had made attempts, as I understand it in the submissions,
to participate in programs and she succumbed to the temptation	40
and commenced heroin again. The actual circumstances of the
offence for which she received imprisonment was that she'd
injected herself with heroin in the car park, police -
ambulance attended, when police arrived she had injected, an
uncapped syringe was found in the front passenger foot well of	50

the car. She had failed to attend Court as required, notice
was to appear and the warrant was issued and there were no new
charges arising and, as a consequence, the term of
imprisonment that was imposed seems to suggest that the 1-4 JUDGMENT 60

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proposed order that the Magistrate was thinking of initially,
of one month imprisonment and one year's probation, was
appropriate particularly as far as imprisonment because she'd
neglected her obligations to the Court. She needed an

opportunity to recover and withdraw from drug use and	10
imprisonment perhaps warranted her own safety.
Those, as I've said, the first of which may well be relevant;
the other two however do not ever warrant or justify a
sentence of imprisonment being used for the purpose of putting	20
someone on the right path or using it as rehabilitative
process, as I've said, notwithstanding the intentions for
good. In light of the fact that the offender - sorry, the
offender being the appellant in this case, has already served
the time I've already mentioned under the sentence, I don't	30
consider a period of imprisonment was justified at first instance. I consider a period of probation would have been appropriate. She hadn't been offered that in the past, she was still only young with a serious drug problem.
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I believe an appropriate order would have been one of
probation without a conviction recorded, notwithstanding that
she'd been in front of the Court before, mainly because of the
circumstances of the offence which did not include possession
of heroin as such, but rather a failure to dispose of a	50

syringe appropriately in the circumstances described by me.
In those circumstances I set aside the order made by the 1-5 JUDGMENT 60

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Magistrate at first instance, as I have the power to do, and I
make the exercise my discretion in sentencing as follows
taking into account the time already served and the errors of
which have already been identified that a conviction be

recorded. No further punishment but that no conviction be	10
recorded for the purpose of the record to reflect, as I've
said, the fact that she has already served time under the
sentence of imprisonment. So, no conviction shall be recorded
essentially and no further action be taken.
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