Brack v Commissioner of Police [2023] QDC 90

DISTRICT COURT OF QUEENSLAND CITATION: Brack v Commissioner of Police [2023] QDC 90 PARTIES: CALEB DANIEL BRACK (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO: D22/23 DIVISION: Appellate PROCEEDING: Appeal against sentence ORIGINATING COURT: Magistrates Court Caloundra DELIVERED ON: 12 May 2023 (ex-tempore) DELIVERED AT: Maroochydore HEARING DATE: 12 May 2023 JUDGE: Cash DCJ ORDER: The appeal is dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to 2 years’ imprisonment for property offences – where appellant submits that the sentence imposed by the sentencing judge was manifestly excessive – where the appellant submits that the only appropriate sentence was one of 12 to 15 months’ imprisonment – whether the sentence was manifestly excessive in all the circumstances LEGISLATION: Justices Act 1886 (Qld), s 222 APPEARANCES: L Ygoa-McKeown instructed by Lumme Rynderman Legal for the appellant M Olivero instructed by the Commissioner of Police for the respondent Introduction [1] On the 7th of February 2023, the appellant appeared before the Magistrates Court in Caloundra in relation to a total of 26 charges. Of the 26 charges, 15 were offences of breaking and entering premises and stealing; four were entering premises with intent to commit an indictable offence, two were attempting to enter premises with that same -- 1 of 4 -- 2 intent and the remaining five offences were contrary to the Drugs Misuse Act 1986 (Qld). The appellant pleaded guilty to each of those offences. [2] For each of the offences that involved entering or attempting to enter premises, he was sentenced to imprisonment for two years. The appellant had been in pre-sentence custody since the 5th of October 2022. The time from then until the day of sentence was declared to be time already served under the sentences that were imposed. The Magistrate fixed a parole release date of 5 June 2023. That is eight months after the appellant had been taken into custody or otherwise a third of the head sentence. For each of the drug offences, the appellant was convicted but not further punished. Scope of the appeal [3] This is an appeal against the sentence imposed, the focus of which is the sentences imposed for the offences involving entering premises or attempting to do so. It is convenient to begin with a summary of that offending. [4] A schedule of facts was tendered at the sentence and became Exhibit 1. It reveals that on two days in September of last year the appellant committed the various offences of breaking into or attempting to break into premises. On the 9th of September he broke into and stole from four businesses in the Caloundra CBD at times between 2:30 and 5am. He did so either by levering open doors or smashing glass to enter the businesses. Once inside he stole items such as cash registers, cash safes, computers, phones, and in one instance special edition collectible trading cards. [5] A couple of weeks later, on the 21st of September, he engaged in an even more serious spree of offending when he committed, between 2:30 and 5am that morning, 11 further offences of breaking and entering premises and stealing, four of entering premises with intent, and two of attempting to do so. This was very similar offending. Again, he forced open doors or smashed glass to enter premises. On 11 occasions, he stole phones, cash or shop goods. On four occasions, there was nothing to steal. And on two occasions, he was unable to get the door open. [6] The property stolen included a large number of keys from a business that runs body corporate management. These were keys to various apartments and units on the Sunshine Coast. There was evidence before the Magistrate that it cost some $18,000 to replace locks and the like as a consequence of the appellant’s offending. The total value of the loss or damage he caused must have exceeded $30,000. Apart from the $18,000 specified by the one business there would undoubtedly have been loss or damage caused to the other businesses. The value of the property actually stolen was around $12,000, though some of it had been recovered. [7] The appellant was a young man. He was 26 at the time of the offences. He had some criminal history but it was not serious and not for the kind of offending dealt with by the Magistrate. The appellant had been placed on probation and dealt with for breaching a probation order. He was, however, not on probation or bail at the time of the present offending. In the proceedings below, the prosecutor submitted the appropriate sentence was up to three years imprisonment with release on parole after the appellant had served one third of the sentence. The solicitor appearing for the appellant immediately and appropriately conceded that imprisonment was within range but said the appropriate orders would be 12 to 15 months imprisonment with parole at a third of the sentence or earlier. -- 2 of 4 -- 3 [8] The defence solicitor outlined the appellant’s personal circumstances. The Magistrate was informed that he had been in a relationship and its end saw a deterioration in his mental health. He had worked as a machine operator for an earthworks company but began using methylamphetamine in 2022 in the context of another relationship. That seemed to be connected with him losing employment. The appellant’s methylamphetamine use escalated quickly. The implication is that he committed the various offences in order to get money to buy drugs. He had spent four months in presentence custody before being sentenced during which time it was said that he experienced lockdowns and had the opportunity to complete a substance abuse program. The matters in his favour seemed to be his plea, his remorse (which was expressed immediately at the time of his arrest), his youth, his limited criminal history, and his prospects of rehabilitation. [9] I pause to note that it was implicit in the submissions of both the prosecution and the defence solicitor that a sentence of imprisonment with a period of actual time in custody was the only appropriate sentence in the circumstances. Perhaps this reflected the reality that the defendant had already then spent four months in jail. The Magistrate sentenced immediately. She noted the appellant’s plea and said that would be reflected in the date she fixed for his release on parole. [10] The Magistrate said that the amount he stole was valued at more than $20,000, a statement to which I will return to in a moment. She observed that he had no history for this type of offending, but the number of businesses involved and the amount of loss are serious matters to which to have regard. The Magistrate highlighted the importance of personal and general deterrence and denunciation. She then imposed the sentences that I have mentioned. Grounds of appeal [11] The appellant advances three bases upon which he asked this Court to interfere with the sentence, although in the course of submissions that perhaps collapsed down to two. The first that I mention is that the Magistrate did not have regard to the principle in section 9(2)(a)(ii) of the Penalties and Sentences Act 1992 (Qld) which articulates that sentences that permit an offender to remain in the community are to be preferred. I do not accept the submission that there is specific error demonstrated because the Magistrate did not speak of this principle. The Magistrate was presented with a defendant who was already in custody and submissions from both the prosecutor and defence solicitor that imprisonment was the appropriate sentence. In the circumstances, there was no more for the Magistrate to say, and it was unnecessary to refer directly to section 9(2)(a)(ii). Had either prosecutor or the defence solicitor considered that the operation of s 9(2)(a)(ii) to be a significant consideration in the sentencing exercise, one would have expected that to have been raised. Indeed, it is the obligation of legal representatives in the discharge of their duties to present such matters to the judicial officers passing sentence. In these circumstances, there is no specific error revealed just because the Magistrate made no mention of the principle. That is not to say the principle is irrelevant, and it is something to which regard must be had in deciding whether the sentence is nevertheless excessive. [12] The second specific error advanced is that the Magistrate misunderstood the facts in a way that materially affected the sentence imposed. This refers to the Magistrate’s statement that the appellant stole more than $20,000. That is not literally accurate. -- 3 of 4 -- 4 The amount as quantified before the Magistrate was around $12,000. There was then the further $18,000 in consequential loss to one business and undoubtedly more that was not quantified to others. Seen in this context, what the Magistrate said can be understood as a slip and a slip of no consequence. Support for that conclusion is, in my mind, found in the failure of either prosecution or defence solicitor to draw attention to this apparent error. Again, I note the obligation of practitioners to assist the Court such that if the parties considered what was said to have been material, they were obliged to have raised that with the Magistrate at the time. [13] That leaves the question of whether the sentence was nevertheless excessive. The defendant was a young man without serious history. But against that is the very serious and large number of offences being dealt with, especially in the context of the loss and damage caused. While another Magistrate might have been more generous, having regard to the various authorities mentioned both before the Magistrate and in the submissions before me, I am unable to conclude that a sentence of two years imprisonment is excessive. That was followed by an order for release after serving eight months or one-third of the sentence in accordance with what has been described from time to time as the conventional rule of thumb. [14] The defendant’s circumstances at sentence in terms of mitigation were not unusual. He had pleaded guilty and expressed remorse and had undertaken some rehabilitation. But there is nothing to suggest that a more generous allowance for release on parole was appropriate in the circumstances. There being no error in the approach of the Magistrate, nor a demonstration that the sentence was excessive, the appeal is dismissed. -- 4 of 4 --