Constable v Queensland Police Service [2024] QDC 61

DISTRICT COURT OF QUEENSLAND CITATION: Constable v Queensland Police Service [2024] QDC 61 PARTIES: LAURA CONSTABLE (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: 343 of 2023 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: District Court at Southport DELIVERED ON: 30 April 2024 ex tempore DELIVERED AT: Southport HEARING DATE: 30 April 2024 JUDGE: Prskalo KC DCJ ORDER: 1. On ground 1 leave is not granted to amend the notice of appeal. 2. Ground 2 is allowed, and the orders for restitution are set aside. 3. Ground 3 is dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – SENTENCE EXCESSIVE – s 222 Justices Act 1886 (Qld) – appeal against sentence – whether sentence imposed was excessive. Justices Act 1886 (Qld), ss 222, 223 Penalties and Sentences Act (Qld) ss 9, 10, 13, 35 R v Matauaina [2011] QCA 344 R v Ferarri [1997] 2 Qld R 472 COUNSEL: A Smith for the Appellant B Baldry for the Respondent -- 1 of 9 -- 2 SOLICITORS: Legal Aid Queensland for the Appellant Office of the Director of Public Prosecutions for the Respondent -- 2 of 9 -- 3 [2024] QDC 61 DISTRICT COURT OF QUEENSLAND APPELLATE JURISDICTION JUDGE PRSKALO KC Appeal No 343 of 2023 LAURA KAY CONSTABLE Appellant v QUEENSLAND POLICE SERVICE Respondent SOUTHPORT 10.05 AM, TUESDAY, 30 APRIL 2024 JUDGMENT -- 3 of 9 -- 4 HER HONOUR: On the 22nd of November 2023, in the Southport Magistrates Court, the appellant pleaded guilty to a total of 34 charges. These included 22 offences of fraud, all of which engaged the same modus operandi of offending. The appellant dishonestly obtained property from Bunnings Warehouse through the fraudulent use of a credit card number and then gained a benefit or advantage by obtaining a refund on that fraudulently acquired property. The most serious of the fraud offences was said to be charge 9, which was committed on 4 May 2023. On that charge, the appellant was sentenced to nine months’ imprisonment, wholly suspended for a period of 24 months. In respect of the other charges, the appellant was placed on probation for a period of 24 months. Aside from the 22 fraud offences, the appellant was convicted of a number of drug and traffic offences, as well as a summary property offence. The appellant was also disqualified from driving for a period of four months. The appellant was ordered to pay restitution totalling $10,494, referable to 11 of the 22 fraud offences and payable to Bunnings. The restitution was referred to the State Penalties Enforcement Registry. By notice of appeal pursuant to s 222 of the Justices Act 1886 (Qld), the appellant appeals her sentence on the ground that the Magistrate did not adequately take into account her capacity to pay restitution, rendering the sentence manifestly excessive. Leave was sought by the appellant’s legal representatives to amend the notice of appeal to include two further grounds. The grounds of appeal Ground 1 asserts that the learned Magistrate unduly fettered her sentencing discretion in a way which gave rise to a reasonable apprehension of pre-judgment. Ground 2 is in the same terms as the notice of appeal and relates to the restitution order. Ground 3 is that the learned Magistrate failed to reflect the plea of guilty and personal circumstances when imposing sentence. -- 4 of 9 -- 5 Pursuant to s 223, the appeal is by way of a rehearing on the original evidence. However, the District Court may give leave to adduce fresh, additional, or substituted or new evidence if the Court is satisfied there are special grounds for giving leave. The respondent does not argue against ground 2 and concedes that the sentence imposed by the learned Magistrate did not adequately take into account the appellant’s capacity to pay restitution, rendering the sentence manifestly excessive. The appellant does not seek to adduce fresh evidence or new evidence and no longer relies upon ground 1 of the amended grounds of appeal. In respect of the final amended ground of appeal, that is, ground 3, the respondent further concedes that the learned Magistrate failed to explicitly consider the plea of guilty when imposing sentence but does not concede the other aspects of that ground of appeal. This Court ought not interfere with the Magistrate’s decision unless there is some demonstrated error in the decision-making process. A mere difference of opinion about the way in which the discretion was exercised is not a sufficient justification to allow an appeal. It must be shown that the discretion miscarried. The appellant must establish some legal, factual, or discretionary error. Such an error may be specifically identifiable, but an otherwise undiscernible error may be inferred from the imposition of an excessive or inadequate sentence. As the appellant does not rely upon ground 1, I do not give leave to amend the notice of appeal by the addition of that ground and that ground is therefore disposed of, in the sense it is not enlivened. GROUND 2 The Court’s power to order restitution or compensation is found in s 35 of the Penalties and Sentences Act 1992 (Qld). The Court of Appeal in R v Matauaina [2011] QCA 344 held that in determining whether to make a restitution or compensation order, a Court is required to consider the offender’s capacity to meet the order. During the sentence hearing, it emerged that the appellant had previously paid part of a SPER debt and had also spent money on her drug addiction. It can properly be inferred from the circumstances placed before the sentencing -- 5 of 9 -- 6 Magistrate that the appellant had committed the dishonesty offences to obtain money at least in part to fund her addiction. It is argued on appeal that in spite of the fact of the payment of a past SPER debt and the funding of a drug addiction, there was no cogent evidence before the Court that the appellant had the capacity to pay restitution. It is argued that referring the restitution to SPER did not remedy an inability to pay. The learned Magistrate was referred to the relevant authorities and was told that the appellant would be unable to pay restitution. It is submitted that the possibility or even likelihood the appellant would be subject to future punitive action by the executive should have been considered prior to making an order and that the Magistrate had failed to do so. It was further submitted on behalf of the appellant that the orders for imprisonment and probation adequately addressed the principles of specific and general deterrence, citing R v Ferarri [1997] 2 Qld R 472, in which Justice McPherson, JA, observed that an order under s 35, although part of the sentence or judgment, is not a form of punishment. Nevertheless, the potentially punitive consequences of such an order are certainly relevant in considering the appropriateness of the overall sentence. The appellant’s ultimate submission is that the orders for restitution render the sentence manifestly excessive. Having regard to all the circumstances, I consider that the orders for restitution render the sentence excessive. The respondent concedes that to be so and ground 2 is allowed. GROUND 3 In relation to ground 3, leave is given to amend the notice of appeal by the addition of ground 3. By this ground, it is argued that the learned Magistrate failed to reflect the plea of guilty and the personal circumstances of the applicant. By the written outline of submissions, two complaints are agitated, and it is said these failures in turn led to a failure to properly balance the competing considerations in determining the appropriate penalty. -- 6 of 9 -- 7 Firstly, it is submitted that the Magistrate failed to state in open court that the guilty plea was taken into account in determining the sentence, as required by s 13 of the Penalties and Sentences Act. Pursuant to s 13, a court must take the guilty plea into account and may reduce the sentence that it would have imposed had the offender not pleaded guilty. Pursuant to s 13 (3): When imposing sentence, a court must state in open court that it took into account the plea of guilty in determining the sentence imposed. Pursuant to s 13(4): A court that does not reduce the sentence for the guilty plea must state in open court that fact and its reasons for not reducing the sentence. Pursuant to s 13 (5): A sentence is not invalid merely because of a failure of the court to make the statement in s 13 (4); however, such a failure may be considered by an appeal court. The sentencing Magistrate did not expressly refer to the appellant’s plea of guilty, and that much is conceded by the Crown. Accordingly, the parties agree, and I find that s 13 has not been complied with. The issue, then, is not whether there was a non-compliance but what the consequences are of that non-compliance. The fact of non-compliance does not inevitably mean that a sentence must be reviewed in all cases, and as indicated, the Crown concedes that the learned Magistrate failed to explicitly consider the appellant’s plea of guilty. The submissions of the parties in the Court below were such that both parties submitted for a period of imprisonment, effectively, to be imposed. The appellant’s solicitor accepted that given the amount of dishonesty offences, terms of imprisonment in the range of up to nine months were not outside the proper exercise of the sentencing discretion; it was submitted that such a term could attach to the most serious offence and be wholly suspended, coupled with probation on the remaining charges. -- 7 of 9 -- 8 A similar concession has been made in the appellant’s written outline of submissions on this appeal, to the extent that it is conceded a suspended period of imprisonment could attach to the fraud offending. It is submitted that it is only when such an order is coupled with probation and restitution that the sentence is rendered manifestly excessive. It can be inferred from all the circumstances that the parties in the Court below made submissions cognisant of the fact that the matter proceeded as a plea of guilty, and aside from the restitution order, the Magistrate adopted the course urged by defence counsel. In this case, I conclude that the non-compliance with s 13 does not justify a review of the sentence because, despite the non-compliance, it can be inferred that the sentencing Magistrate did take the guilty pleas into account in formulating the sentence. The second related complaint is that the learned Magistrate did not enunciate reasons when ordering the period of imprisonment as required by s 10. I do not accept that submission. The learned sentencing Magistrate expressly stated that terms of nine-months’ imprisonment, wholly suspended for 24 months, were imposed to act as a deterrent to the appellant, and that comment was made in the broader circumstances of the appellant’s drug addiction. Ultimately, I am not satisfied that the sentencing discretion miscarried through a failure by the sentencing Magistrate to apply ss 10 and 13 such that the sentence was rendered manifestly excessive by those failures. Finally, with respect to ground 3, by the written outline of submissions, two complaints were agitated, and it is said broadly by the appellant that these failures in turn led to a failure to properly balance the competing considerations in determining the appropriate penalty in a global sense, particularly having regard to s 9. I deal with this ground of appeal because I am required to address all grounds of appeal and the concession by the Crown does not relieve me of that obligation. -- 8 of 9 -- 9 Ultimately, as I have indicated, I am not satisfied that the sentencing discretion miscarried through a failure by the sentencing Magistrate to apply ss 10 and 13 such that the sentence was rendered manifestly excessive by those failures. Ground 3, accordingly, fails. The formal orders are ground 2 is allowed and the orders for restitution are set aside. Any corrections, errors? MR SMITH: No, thank you, your Honour. I believe that concludes the matter. HER HONOUR: Thank you, Mr Smith. And, Ms Baldry, thank you for your submissions – very helpful submissions – in relation to the matter. We will adjourn the Court. -- 9 of 9 --