Alexander v Commissioner of Police [2024] QDC 62 (2024) 4 QDCR 84

DISTRICT COURT OF QUEENSLAND CITATION: Alexander v Commissioner of Police [2024] QDC 62 PARTIES: ALEXANDER, Emily Renee (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 946/24 DIVISION: Appellate PROCEEDING: Appeal pursuant to s 222 of the Justices Act 1886 (Qld) ORIGINATING COURT: Magistrates Court at Richlands DELIVERED ON: Date of orders: 26 April 2024 Date of publication of reasons: 3 May 2024 DELIVERED AT: Brisbane HEARING DATE: 26 April 2024 JUDGES: Smith DCJA ORDER: Date of Orders: 26 April 2024 1. The appeal is allowed. 2. The Magistrate’s order is varied to the extent that the parole release date is fixed as at 26 April 2024 and the activated suspended sentence is to be served concurrently with the other terms of imprisonment. 3. The sentence is not otherwise disturbed. 4. Pursuant to s 159A of the Penalties and Sentences Act I declare the appellant has served 46 days in pre-sentence custody. I state the dates are 11 March 2024 to 25 April 2024 and I declare that to be time already served under the sentence. 5. Pursuant to section 160G(5) of the Penalties and Sentences Act the requirements of parole have been explained to the appellant. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the appellant was sentenced on counts of fraud, possessing small quantities of drugs – where she had been subjected to domestic violence – whether the magistrate took this into account – whether the magistrate took into account that a sentence of imprisonment was one of -- 1 of 6 -- 2 last resort and a sentence involving one where the appellant stayed in the community was preferable – whether an error in the structure of the sentence imposed – did the activated suspended sentence have to be imposed first where cumulative on substantive offences Corrective Services Act 2006 (Qld) Domestic Violence and Family Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 Justices Act 1886 (Qld) s 222 Penalties and Sentences Act 1992 (Qld) ss 9, 147, 148, 159A, 160A, 160F, 160G Hoger v Commissioner of Police [2018] QDC 145, cited R v Gander [2005] QCA 45; [2005] 2 Qd R 317, considered R v Oliver [2018] QCA 348; [2019] 3 Qd R 221, cited Sauney v Commissioner of Police [2019] QDC 200, cited COUNSEL: K Long for the appellant N Aganoff for the respondent SOLICITORS: Legal Aid Office Queensland for the appellant Director of Public Prosecutions for the respondent Introduction [1] Pursuant to section 222 of the Justices Act 1886 (Qld) the appellant appeals against sentences imposed on her in the Richlands Magistrates Court on 11 March 2024. [2] The appellant pleaded guilty to 25 counts of fraud, two counts of stealing, two counts of possessing dangerous drugs, two counts of possessing property suspected of being stolen, one count of unlawful use of a motor vehicle, one count of possessing a knife in public and one count of failing to properly dispose of a needle. [3] These matters breached a suspended sentence of three months imprisonment imposed on 26 August 2022 and extended on 24 August 2023. [4] The Magistrate sentenced to her to an effective term of six months imprisonment on the substantive charges, activated the suspended sentence in full and ordered it be served cumulatively on the six months imprisonment. A parole release date was fixed as at 10 June 2024. Submissions [5] The appellant submits that the sentence was manifestly excessive. It is further argued that the Magistrate failed to have regard to the principle that a sentence of imprisonment was one of last resort and further he failed to have regard to s 9(10B) -- 2 of 6 -- 3 of the Penalties and Sentences Act. It is also argued that the Magistrate erred in making the suspended sentence cumulative. [6] The respondent on the other hand submits that any errors in this case were not material and further submits in reliance on Sauney v Commissioner of Police1 and Hoger v Commissioner of Police2 that the sentence was not manifestly excessive and within the appropriate sentencing range. The respondent submits that the Magistrate erred in imposing the activated cumulative term last in reliance on the case of R v Gander3but submits that any error in this regard is immaterial. Proceedings below [7] The prosecutor tendered a schedule of facts which were not disputed by the defence which revealed the following: 1. The stealing involved taking a $20 light from Bunnings. 2. Possession of the knife related to possessing a hunting blade. 3. The unlawful use of a motor vehicle related to the appellant being given permission to use a car to collect tyres, but she kept it longer. 4. The second stealing related to stealing bedding items from Kmart. 5. The drug charges related to possessing a small quantity of cannabis and a small quantity of methylamphetamine. 6. The syringe charge related to a syringe not being disposed of properly. 7. One of the counts of possessing suspected property related to some gemstones. 8. The fraud charges related to false requests for refunds from stores like Bunnings and Kmart. [8] On 18 October 2023, the appellant was interviewed by police and made full admissions to finding receipts and then falsely claiming refunds. She told the police that she was the victim of domestic violence and that particular partner had introduced her to methylamphetamine. She also told the police she was homeless at the time of the offences and was living in her car at the time but had been sober for 46 days. She told the police she committed the fraud offences as it helped her and her son survive the winter. No further offences were identified after 8 August 2023. [9] The appellant had a criminal history with previous convictions for stealing, drug offences, fraud, possessing a knife and possessing stolen property. She had previously received probation and a suspended sentence. This offending breached those orders. [10] The defence solicitor submitted for a sentence which allowed the appellant to stay in the community given the following factors: 1 [2019] QDC 200. 2 [2018] QDC 145. 3 [2005] QCA 45; [2005] 2 Qd R 317. -- 3 of 6 -- 4 (a) She shared the care of four young children; (b) She had spiralled downwards following the end of her relationship resulting in her becoming homeless until December 2023; (c) Shortly after obtaining housing, her car and most of belongings were stolen; (d) She had struggled with drug addiction and the gaps in her criminal history reflected when she was sober; (e) She had been the victim of significant domestic violence by former partners experiencing physical violence and she had been raped; (f) She had accessed counselling and drug support through QuIHN and a letter was tendered to that effect; (g) She had enrolled in a hospitality course in the hopes of regaining employment and a letter was tendered showing her enrolment; (h) The motivation for the offending was to support her and her son; (i) There had been no further offending since September 2023; (j) While her history was aggravating, her steps to rehabilitation demonstrated the appropriateness of her remaining in the community. [11] The Magistrate in his sentencing remarks took into account the plea of guilty, the principle of totality and the breach of the suspended sentence. He said that leniency of the Courts had come to an end because she breached orders. She had exhausted all leniency. The counselling was not effective. People had been “ripped off” or “defrauded” and punishment and protection loomed far above rehabilitation. [12] In the circumstances, the penalties to which I referred earlier were imposed. Discussion [13] Section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) provides that in sentencing an offender a Court must have regard to the principle that a sentence of imprisonment should only be imposed as a last resort and a sentence which allows the offender to stay in the community is preferable. [14] This section is at odds with the statements made by the Magistrate. Rehabilitation was still important in the appellant’s case. There was a reasonable evidence of self- rehabilitation before sentence. In particular, she had remained out of trouble for about six months before being sentenced. In my opinion, the Magistrate erred in failing to take into account this important principle.4 [15] In my opinion an order involving immediate release on parole was an appropriate one– she had not received this type of order previously. I note in this regard that one of the principles of sentencing includes providing conditions in the court’s order that the court considers will help the offender to be rehabilitated. [16] I now turn to the issue of domestic violence. 4 R v Oliver [2018] QCA 348; [2019] 3 Qd R 221 at [22]. -- 4 of 6 -- 5 [17] Section 9(10B) of the Penalties and Sentences Act provides: “(10B) In determining the appropriate sentence for an offender who is a victim of domestic violence, the court must treat as a mitigating factor— (a) the effect of the domestic violence on the offender, unless the court considers it is not reasonable to do so because of the exceptional circumstances of the case; and (b) if the commission of the offence is wholly or partly attributable to the effect of the domestic violence on the offender—the extent to which the commission of the offence is attributable to the effect of the violence.” [18] The legislature requires this to be considered as a mitigating factor. Section 9(10B) was introduced by the Domestic Violence and Family Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023. [19] The explanatory notes state that the Bill is to give effect to the Women’s Safety and Justice Taskforce first report. It requires the Court to take into account domestic violence as a mitigating factor unless there are exceptional circumstances to the contrary. In this case, it should have been treated as a mitigating factor. It is true that the appellant’s solicitor did not specifically mention section 9(10B), but a judicial officer is presumed to know the law. [20] The Magistrate did not mention the domestic violence history of the appellant. In my view, this was an error in the sentencing process. [21] The respondent conceded that the Magistrate erred in making the activated suspended cumulative on the substantive sentences. It relied on R v Gander.5 [22] I have my doubts that Gander is still the applicable law. The reason the suspended sentence had to be activated first was because section 157 of the Penalties and Sentences Act did not allow a court to impose a recommendation for parole on the activated suspended sentence. [23] Section 157 has been repealed6 and has been replaced with Division 3 of Chapter 9. Section 160F makes it clear that one of the objects of sections 160A to 160E is to ensure there is one parole release date in existence for an offender and it applies to the period of imprisonment as opposed to a particular term of imprisonment. Indeed section 151A acknowledges there may be a date for parole on an activated suspended sentence. “Period of imprisonment” is defined to include the unbroken duration of imprisonment an offender is to serve for 2 or more terms. 5 [2005] QCA 45; 2 Qd R 317 at [24]. 6 Corrective Services Act 2006 (Qld). -- 5 of 6 -- 6 [24] The explanatory notes reveal the major objective of the legislation was to ensure that the sentence imposed by a court operates for the whole of the period of imprisonment.7 [25] In my view there was no error in the Magistrate imposing the activated suspended sentence last. Normally it would be first (see section 148) but the court may otherwise order as happened here. [26] As to whether the Magistrate erred in activating the suspended sentence, I note this was the second breach. The starting point was activation under section 147. In my view there was no error in the Magistrate activating the suspended sentence. [27] As I have found two specific errors which are not immaterial, I will now consider the appropriate sentence here. [28] The respondent in its submissions before me, accepted that the above two matters were not referred to by the Magistrate but submits that despite this the sentence imposed was within the range of sentences appropriate for this kind of offending. [29] The comparable decisions are of assistance but of course at the end of the day each case depends on its own facts. In this case, it seems to me to be of importance that the appellant had stayed out of trouble for some six months before being sentenced and had engaged in a degree of self-rehabilitation. [30] In all of the circumstances, I am satisfised that the appellant has served a sufficient custodial portion of the sentence. [31] Taking into account the mitigating factors, in particular the pleas of guilty, the self- rehabilitation and the domestic violence issues, I would order the suspended sentence to be served concurrently with the other terms of imprisonment and I would order her release immediately on parole Orders [32] In the circumstances, I make the following orders: 1. The appeal is allowed. 2. The Magistrate’s order is varied to the extent that the parole release date is fixed as at 26 April 2024 and the activated suspended sentence is to be served concurrently with the other terms of imprisonment. 3. The sentence is not otherwise disturbed. 4. Pursuant to s 159A of the Penalties and Sentences Act I declare the appellant has served 46 days in pre-sentence custody. I state the dates are 11 March 2024 and 25 April 2024 and I declare that to be time already served under the sentence. 5. Pursuant to section 160G(5) of the Penalties and Sentences Act the requirements of parole have been explained to the appellant. 7 Pages 2 and 239 of the explanatory Notes to the Corrective Services Bill 2006. -- 6 of 6 --