Carter v Commissioner of Police [2024] QDC 141

DISTRICT COURT OF QUEENSLAND CITATION: Carter v Commissioner of Police [2024] QDC 141 PARTIES: SHAY NIKELLE CARTER (Appellant) v COMMISSIONER OF POLICE (Respondent) FILE NO/S: BD 1124/24 DIVISION: Appellate DELIVERED ON: 8 August 2024 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 8 August 2024 JUDGE: Allen KC, DCJ ORDERS: 1. Appeal against sentence allowed. 2. The sentences are varied by: (a) Setting aside the order of a parole release date of 23 December 2024. (b) Instead ordering that the date that the appellant be released on parole is 9 August 2024. 3. The sentencing orders are otherwise confirmed. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant appeals against sentence pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant pleaded guilty to numerous offences of dishonesty and drug offences – where the appellant was sentenced to an effective term of 2 years imprisonment with parole release date after 8 months – where the appellant had an extensive criminal history – whether the learned Magistrate erred in failing to recognise the multiple factors underlying the defendant’s offending behaviour – whether the learned Magistrate erred in failing to recognise the extent and significance of the defendant’s continuing efforts towards her rehabilitation – whether the learned Magistrate erred in failing to consider whether the interruption of such efforts by an actual term of imprisonment was appropriate – whether the sentence imposed was manifestly excessive -- 1 of 8 -- 2 Justices Act 1886 (Qld), s 222 Penalties and Sentences Act 1992 (Qld), s 9 House v The King (1936) 55 CLR 499 R v Hawke [2021] QCA 179 COUNSEL: E J Sargent for the appellant M McLennan-Bird for the respondent SOLICITORS: Ryan Murdoch O’Regan Lawyers for the appellant Office of Director of Public Prosecutions (Qld) for the respondent [1] On 23 April 2024, in the Magistrates Court at Brisbane, the appellant pleaded guilty to 24 offences set out in a table included in the appellant’s outline of submissions as follows: No Date Charge Sentence imposed 1. 9/02/2023 Enter premises and commit indictable offence by break (IGA Litle Mountain) S421(2)(3) Criminal Code 2 years imprisonment 2. 9/02/2023 Possess tainted property S252(1) Criminal Proceeds Confisca�on Act Convicted and not further punished 3. 16/02/2023 Atempted enter premises with intent to commit an indictable offence (IGA Litle Mountain) S421, 535 Criminal Code 12 months imprisonment 4. 16/02/2023 Enter premises and commit indictable offence (Coles Buderim) S421(2) Criminal Code 18 months imprisonment 5. 18/02/2023 Enter premises and commit indictable offence by break (Coles Buderim) S421(2)(3) Criminal Code 12 months imprisonment 6. 18/02/2023 Stealing (Foodworks Burnside) S398 Criminal Code 6 months imprisonment 7. 18/02/2023 Enter premises and commit indictable offence by break (Thirsty Camel) S421(2)(3) Criminal Code 12 months imprisonment 8. 18/02/2023 Enter premises and commit indictable offence by break (IGA Litle Mountain) S421(2)(3) Criminal Code 12 months imprisonment 9. 18/02/2023 Stealing (Coles Express Glass House Mountains) S398 Criminal Code 1 month imprisonment 10. 18/02/2023 Possess tainted property S252(1) Criminal Proceeds Confisca�on Act Convicted and not further punished -- 2 of 8 -- 3 (footnotes omitted) [2] The appellant was sentenced to concurrent terms of imprisonment, as detailed in that table. The learned Magistrate ordered a parole release date of 23 December 2024, that is, after the appellant had served eight months or one-third of the effective head sentence. The appellant was also dealt with for contravening a probation order made in the Magistrates Court at Pine Rivers on 7 December 2021 by her commission of the offences during the three-year probation period. The appellant was fined $300 for the contravention of the probation order. The probation order was revoked, and the appellant was resentenced to a concurrent one-month term of imprisonment for the original offence of attempted fraud. [3] The most serious of the offences were the property offences detailed at numbers 1 to 10 of the above table. Those offences involved the appellant, along with her co- 11. 20/02/2023 Possessing dangerous drugs S9(1)Drugs Misuse Act 1 month imprisonment 12. 20/02/2023 Possessing dangerous drugs S9(1)Drugs Misuse Act 1 month imprisonment 13. 20/02/2023 Possess utensils or pipes etc for use S10(2)(a) Drugs Misuse Act 14. 21/02/2023 Possessing dangerous drugs S9(1) Drugs Misuse Act 1 month imprisonment 15. 21/02/2023 Possessing dangerous drug S9(1) Drugs Misuse Act 1 month imprisonment 16. 21/02/2023 Possess utensils or pipes etc that had been used S10(2)(b) Drugs Misuse Act Convicted and not further punished 17. 21/02/2023 Possess property suspected of having been used S10A(1)(b) Drugs Misuse Act Convicted and not further punished 18. 2/03/2023 Possessing dangerous drugs S9(1)Drugs Misuse Act 1 month imprisonment 19. 2/03/2023 Possess utensils or pipes etc for use S10(2)(a) Drugs Misuse Act Convicted and not further punished 20. 20/03/2023 Possessing dangerous drugs S9(1)Drugs Misuse Act 1 month imprisonment 21. 20/03/2023 Possess utensils or pipes etc that had been used S10(2)(b) Drugs Misuse Act Convicted and not further punished 22. Between 4/8/2023 – 17/11/2023 Breach of bail condi�on S29(1) Bail Act 7 days imprisonment 23. 4/01/2024 Stealing S398 Criminal Code 14 days imprisonment 24. 4/02/2024 Obstruct police officer S790(1)(b) Police Powers and Responsibili�es Act $400 fine, convic�on recorded -- 3 of 8 -- 4 offender, Aaron Reiley Burton, breaking and attempting to break into premises and offences of stealing. Charge 1 involved the appellant and her co-offender breaking into an IGA store on 9 February 2023 in the early hours of the morning and stealing tobacco products. Charge 3 involved the offenders, on 16 February 2023, attempting to break into the same IGA store. Charge 4 involved the offenders, earlier the same morning of 16 February 2023, attempting to enter a Coles Supermarket store. Charges 5 through 9 were committed on 18 February 2023. Charge 5 involved the offenders breaking into a Coles Supermarket store and attempting to open cigarette cabinets. Charge 6 involved the offenders stealing about 45 loaves of bread left in crates at the front of a Foodworks store, and Charge 7 involved the offenders breaking into a nearby liquor outlet and stealing a quantity of alcohol. Charge 8 had the offenders returning to the same IGA store the subject of Charges 1 and 3, forcing entry and stealing tobacco products. Charge 9 related to the offenders, earlier that morning, failing to pay for petrol pumped into the vehicle used in the commission of the earlier offences. Charges 2 and 10 on the table were offences of possession of tainted property on 9 February 2023 and 18 February 2023, relating to possession of the motor vehicle used by the offenders during the commission of the offences of dishonesty and a stolen number plate that was used on at least one occasion on that vehicle. [4] Charges 11 through 21 of the table of offences above were various drug offences committed by the defendant when apprehended and searched by police on 20 February 2023, 21 February 2023, 2 March 2023, and 20 March 2023. [5] Charge 22 related to breaches of bail, between 4 August 2023 and 17 November 2023, by failures to report to police as required as a condition of bail. [6] Charge 23, the offence of stealing, committed on 4 January 2024, involved the appellant stealing a four-pack of Woodstock 200 ml cans retailing at $34. [7] Charge 24, the offence of obstructing police on 4 February 2024, involved the defendant attempting to leave a house after the execution by police of a search warrant. [8] As may be noted, the most serious property offences, comprising charges 1 through 10 on the table, were committed during a period of a little less than two weeks in February 2023. Charges 11 through 21 were relatively minor offences of possession of dangerous drugs and utensils committed during a period of about one month in February and March 2023. The only offence of dishonesty subsequent to February 2023 was the stealing offence on 4 January 2024. [9] The appellant’s co-offender with respect to the most serious offences of dishonesty was sentenced for those and other offences in the Magistrates Court at Maroochydore on 15 August 2023 and was sentenced to 30 months’ imprisonment with a parole release date after having served 10 months. The co-offender, Mr Burton, had a serious criminal history, including having been previously sentenced to terms of imprisonment for offences of entering premises and attempting to enter premises and committing indictable offences or with intent to commit indictable offences. [10] By way of comparison, the appellant, who was 10 years younger than her co-offender, had a significantly less serious criminal history. That said, it was still a lengthy and significant criminal history, but it was mainly comprised of drug offences and shop stealing offences, dealt with by way of fines. -- 4 of 8 -- 5 [11] On the 7th of June 2019 in the Magistrates Court at Redcliffe, the appellant was sentenced for offences of fraud and receiving tainted property and received a six- month sentence wholly suspended for an operational period of two years. She did not re-offend by way of criminal or traffic offences during that operational period. [12] As noted earlier, on 7 December 2021, in the Magistrates Court at Pine Rivers, the appellant was placed on probation for a period of three years for an offence of attempted fraud. She committed an offence of shop stealing on 22 February 2022, for which she was fined $200 in the Magistrates Court at Pine Rivers on 12 August 2022. She then went on to commit the offences for which she was sentenced on 23 April 2024 during the currency of that probation period. [13] The appellant has appealed against her sentence pursuant to section 222 of the Justices Act 1886 (Qld), with the sole ground of appeal being that the sentence is manifestly excessive. The appeal is by way of rehearing on the record. The onus is upon the appellant to show that there has been some error in the decision under appeal. The appeal against sentence is against the exercise of discretion, and so the principles in House v The King [1936] 55 CLR 499, at [504]-[505] apply. An appellate court may not interfere with a sentence unless it is manifestly excessive, that is, unreasonable and plainly unjust. A conclusion to that effect will not be reached simply because the appellate court might have taken a different view as to penalty. To succeed on the appeal, the appellant must satisfy the appellate court that the sentence imposed is outside an acceptable scope of judicial discretion. Even if an appellate court were to find that a sentence was at the top end of the permissible range or has a different view as to how the discretion should have been exercised, that is not in itself sufficient justification for interference with the sentence. [14] The appellant submits that the sentence imposed by the learned Magistrate was manifestly excessive because the learned Magistrate: • placed insufficient or no weight upon the appellant’s rehabilitation; • failed to have regard to the material demonstrating the appellant’s history of being abused or victimised in accordance with section 9(2)(gb) of the Penalties and Sentences Act 1992 (PSA); and • placed disproportionate weight upon the appellant’s criminal history. [15] The appellant submits that the requirement the appellant serve eight months in custody before being released upon parole made the sentence unreasonable or plainly unjust. [16] The respondent submits that the learned Magistrate had proper regard for the appellant’s efforts at rehabilitation, the appellant’s history of being abused or victimised, and the appellant’s criminal history. The respondent refers to those parts of the learned Magistrate’s reasons whereby the learned Magistrate refers to steps taken by the appellant towards her rehabilitation since being charged. The respondent submits that the learned Magistrate carefully considered the appellant’s criminal history as well as her performance on previous court orders, as her Honour was entitled to do so under the PSA. It is submitted that the learned Magistrate considered the appellant’s history as well as various other features in coming to a sound sentence and concluding that an immediate parole release was not appropriate. It is submitted that there was no error demonstrated, nor was the sentence imposed manifestly excessive. -- 5 of 8 -- 6 [17] I have concluded that the learned Magistrate’s sentencing remarks do demonstrate legal, factual and discretionary error. The learned Magistrate failed to recognise the multiple factors underlying the defendant’s offending behaviour and consequently failed to recognise the extent and significance of the defendant’s continuing efforts towards her rehabilitation and failed to consider whether the interruption of such efforts by an actual term of imprisonment was appropriate. [18] The learned Magistrate’s failure to recognise the multi-factorial nature of the defendant’s dysfunction is evidenced by: (a) the learned Magistrate’s statement that the cause of the defendant’s offending was “a drug addiction” failed to recognise that as just ne factor in a more complex situation of dysfunction; (b) the learned Magistrate’s refusal to accept that the defendant had been diagnosed with mental health disorder in circumstances where there were unchallenged submissions on the defendant’s behalf, supported by a doctor’s report, that the defendant had longstanding mental health disorders of chronic anxiety with panic attacks and major depression for which she was medicated and compliant, and other reports indicating the defendant’s needs in the area of mental health; (c) the learned Magistrate’s failure to advert, in any meaningful way, to the defendant’s history of domestic violence victimhood, contrary to section 9(2)(gb)(i)(iii) of the PSA, where the unchallenged submissions of the defendant’s solicitor and documentary material before the learned Magistrate established such history; (d) the learned Magistrate’s failure to advert to the documentary material evidencing the complex needs of the defendant in areas of accommodation and finances. [19] The learned Magistrate’s failure to recognise the extent and significance of the defendant’s continuing efforts towards her rehabilitation as evidenced by: (a) the learned Magistrate’s arbitrary rejection of the generally positive conclusions of Community Corrections as to the defendant’s satisfactory reporting compliance and engagement with her probation order; (b) the learned Magistrate’s reference only to the first Court Link report, dated 16 November 2023, at week 3 of that program, and the failure to refer to the subsequent Court Link reports, including the final report, dated 15 February 2024, in which the case manager stated, inter alia: Ms Carter is currently in week fourteen of the program and has attended twelve appointments to date. Ms Carter provided medical evidence for not attending her appointment on 6 November 2023. It is unknown as to why Ms Carter could not attend her appointment in week fourteen. Attempts to contact Ms Cater were unsuccessful. To her credit, Ms Carter has engaged with the Court Link program to a high standard as indicated by attending twelve appointments to date. Court Link commends Ms Carter on her efforts towards her case plan goals and engaging with supports available to her. … -- 6 of 8 -- 7 Ms Carter has completed fourteen weeks of the program and has attended twelve appointments to date. Ms Carter has remained engaged with the Court Link program to a high standard and progressed her case plan goals outside of her Court Link appointments. Court Link commends Ms Carter on her motivation to implement positive changes in her life. (c) the learned Magistrate’s failure to advert more fully to the contents of the Anglicare report under the hand of Ms Follers, dated 18/4/2024, which read as follows: I am writing to you in my capacity as Recovery Practitioner with the Women's Early Intervention Service (WEIS) to provide support for Ms. Shay Carter's court matters. Anglicare’s WEIS program provides case management to support women to navigate service systems while they are subject to a Community Corrections Order or are part of the Courtlink program. The program supports people to maximize capacity to be independent, self-reliant, and well connected to community supports. Ms. Carter was referred to WEIS in December 2023. Since being engaged with WEIS Ms. Carter has been proactive in achieving goals and has demonstrated unwavering determination to achieve her goals. Ms. Carter has had every opportunity to allow setbacks to derail her path of recovery, instead she has shown resilience, bravery, patience and willingness to overcome. Ms. Carter has addressed all her goals of Mental Health, Housing, AOD, Relationship building, and General Health. Ms. Carter is engaged with regular counselling support, has completed all requirements to successfully submit a Department of Housing Application, engaged with services related to AOD consumption, reduced use of illicit substances, completed needed dental work, and has worked tirelessly on boundary setting, language, and communication skills to build her relationships in a healthy manner. While experiencing hardship and being in the early phases of addressing complex trauma, Ms. Carter has ensured she finds accommodation with family, friends, and in emergency accommodation, has been reaching out to support services to meet her needs, has engaged in services that will support her overall circumstances, is proactively engaged with specialized services, and will reach out for guidance when needed. Despite a long history of abuse and trauma, Ms. Carter is making meaningful change in her life. She has shown resilience, bravery, kindness, and willingness for change in the face of adversity. (d) failing to note the concluding paragraph of the report from Encircle Community Services, dated 11 April 2024, which read as follows: Counselling is provided by myself (Lisa), a qualified and experienced counsellor, who values respect, collaboration and the strengths each person brings. Shay has engaged well in the counselling process and has attended all appointment on time. Shay is also planning to attend our 8 week group for women who have experienced Domestic and Family Violence beginning on 02/05/24. (e) the learned Magistrate’s mischaracterisation of the extent of the defendant’s recidivism in breach of the probation order. The learned Magistrates stated: You have, throughout the period of probation, continued to offend. The 25 charges before the Court represent a dramatic escalation in your offending and a dramatic decrease in the intervals between the commission of these offences. -- 7 of 8 -- 8 …despite a three year probation order, you have continued to offend and your offending is unabated and indeed has dramatically escalated. [20] Whilst they may have been accurate statements as at the end of February 2023, given the escalation by way of serious offences of dishonesty committed during the two- week period in February 2023, and the continued commission of drug offences after that date, such statements by the Magistrate failed to reflect the subsequent history of offending by the appellant. As noted earlier, the only subsequent offending was by way of the breaches of bail by failure to report to police in August through November 2023, the offence of stealing alcohol on 4 January 2024, and the offence of obstructing police on 4 February 2024. I should note also in this regard that the appellant was also convicted in the Magistrates Court at Brisbane on 29 January 2024 of an offence of failing to properly dispose of a needle and syringe on 11 January 2024, for which she was fined $200 with no conviction recorded. [21] It was not accurate to state that, throughout the probation order, the appellant had continued to offend unabated and dramatically escalated. Such statement failed to acknowledge the reality of the lesser and isolated offending subsequent to March 2023. [22] The learned Magistrate’s reasons do not include her Honour adverting to the principle in section 9(2)(a)(ii) of the PSA that a sentence that allows an offender to stay in the community is preferable. [23] The learned Magistrate’s reasons do not include a consideration as to whether an interruption of the defendant’s continuing efforts towards rehabilitation, including the proposed upcoming eight-week course for women who had experienced domestic and family violence, by an actual period of imprisonment was necessary to meet the relevant purposes of sentence. [24] Further to my findings of legal, factual and discretionary error, I am of the view that the sentence imposed is manifestly excessive. The ordering of parole release at one- third of the head sentence did no more than reflect in the usual way the mitigating effect of the defendant’s pleas of guilty. It did not adequately reflect the other mitigating factors, namely the factors pursuant to section 9(2)(gb) of the PSA and the defendant’s efforts toward rehabilitation; see R v Hawke [2021] QCA 179 at [105]. [25] By tomorrow, the appellant would have spent a little over three and a half months in custody. Such time in custody adequately meets considerations of general and personal deterrence and denunciation. Considerations of rehabilitation and protection of the community are better served by the appellant’s release on parole at that time than her remaining in custody for any longer period. -- 8 of 8 --