Beardsley v Queensland Police Service [2020] QDC 172

DISTRICT COURT OF QUEENSLAND CITATION: Beardsley v Queensland Police Service [2020] QDC 172 PARTIES: JORDAN BEARDSLEY (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: 01/20 DIVISION: Appellate PROCEEDING: Appeal under s 222 Justices Act 1886 ORIGINATING COURT: Magistrates Court, Normanton DELIVERED ON: 18 June 2020 (delivered ex tempore) DELIVERED AT: Cairns HEARING DATE: 17 June 2020 JUDGE: Fantin DCJ ORDER: 1. The appeal is allowed; 2. The appellant is resentenced; 3. The appellant is convicted and sentenced to eight days imprisonment; 4. Eight days served in watch-house custody between 13 January 2020 and 21 January 2020 inclusive are deemed time served under the sentence. I direct the registrar to inform the commission of that declaration. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE – where the appellant sought to adduce fresh evidence on appeal under section 223 Justice Act 1886 – where the Crown does not oppose the application to adduce fresh evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty to one count of receiving tainted property – where the appellant was convicted and sentenced to 12 months imprisonment with a parole release date after 3 months – where the appellant appeals the sentence pursuant to section 222 of -- 1 of 8 -- 2 the Justices Act 1886 – whether the Magistrate proceeded on an erroneous factual basis - whether the sentence imposed was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – whether there was parity between the appellant’s sentence and the sentence of the co-offender Legislation Criminal Code Act 1899 (Qld) s 433 Justices Act 1886 (Qld) s 222, s 223 Penalties and Sentences Act 1992 (Qld) s 9 Cases AB v The Queen (1999) 198 CLR 111 Cox v The Queen (1991) 55 A Crim R 396Hili v The Queen (2010) 242 CLR 520R v Pham (2015) 256 CLR 550 R v Clode & Dobbs (District Court of Queensland, Burnett DCJ, 30 May 2017) R v Addo (District Court of Queensland, Everson DCJ, 6 February 2013) R v Moore [2005] QCA 400 R v Cummins [2004] QCA 350 R v Owens [1995] QCA 214 R v Franklin [1998] QCA 457 R v Hoeksema [2010] QCA 357 COUNSEL: J Johnsen for the appellant SOLICITORS: Legal Aid Queensland for the appellant Office of the Direction of Public Prosecutions for the respondent (J Marxson) [1] On 17 June 2020, I made an order allowing this appeal. I resentenced the appellant for the offence of receiving tainted property committed on 26 December 2019, to eight days imprisonment, and I declared eight days served in custody between 13 January 2020 and 21 January 2020 as time served under that sentence. The hearing was adjourned to this morning. These are my reasons for that decision. [2] On 13 January 2020, the defendant pleaded guilty in the Normanton Magistrates Court to one count of receiving tainted property contrary to section 433(1) of the Criminal Code Act 1899 (Qld). That offence had a maximum penalty of seven years imprisonment. He was convicted and sentenced to 12 months imprisonment with a parole release date of 13 April 2020, after he had served three months imprisonment. [3] On 20 January 2020, he filed a notice of appeal on the basis that the sentence imposed was manifestly excessive. On 21 January 2020, he was granted bail pending appeal. -- 2 of 8 -- 3 [4] I was assisted by written outlines of submissions and oral argument from both parties. The written outlines of submissions were prepared by different advocates to those who appeared on the hearing. As a consequence, there were some changes to the issues in dispute and the grounds of appeal. [5] At the time he committed the offence, the appellant was 25 years old. He was 26 at sentence. For the charge of receiving tainted property, he was charged with two co- offenders, Jonathon Douglas and Louis Baker. The facts of that offence, in short, involved the appellant receiving alcohol which he knew had been stolen from a local bottle shop and consuming it. There were three other defendants charged with unlawfully entering the bottle shop in question on the night of 26 December 2019. The appellant was not charged with that offence and was not one of the three who entered the bottle shop and stole the alcohol. The total value of the alcohol stolen was $456.92. The three defendants who stole the alcohol took it to a unit in Normanton. There they shared the alcohol with the three other men, including the appellant, who were each charged with receiving tainted property. [6] The three principal offenders had formed a plan to break into the bottle shop and steal the alcohol. On the basis of the submissions made on behalf of the appellant to the Magistrate, the appellant conceded that he knew the alcohol had been stolen. But he did not think that the other defendants would really follow through with their plan to steal it, and he was a bit surprised when they came back with it. [7] At the time of sentence, the appellant had a criminal history. He had been convicted of receiving tainted property in the Magistrates Court in July 2011. For that offence, he received a fine of $300, and a conviction was recorded. He appealed the recording of that conviction, and the conviction was set aside by an order of the Mt Isa District Court in November 2011. The penalty was replaced with a fine of $300 and no conviction was recorded. At the time he committed that offence, the appellant was only 17 years of age and would, if dealt with today, have been dealt with as a child. There were other entries on his criminal history relating to offences committed as a 17 year old, for which he received fines and community-based orders. [8] Most relevantly in his criminal history, there was an entry in the Magistrates Court in May 2012, where he was convicted of enter premises and commit an indictable offence on the 7th of April 2012. He was 18 years old at the time he committed that offence. He was sentenced to 12 months probation and no conviction was recorded. He was sentenced again in the Magistrates Court in October 2012 for failing to appear, enter premises and commit indictable offence, and contravene direction or requirement. For the enter premises offence, which again was committed as an 18 year old, he was sentenced to nine months imprisonment and a conviction recorded. He received two months imprisonment for the failure to appear, which was to be served cumulatively. He also received one month imprisonment, to be served cumulatively for a second failure to appear. That resulted in a total period of imprisonment of 12 months for offences committed as an 18 year old. He received a parole release date on the date of sentence after he had served seven days in pre- sentence custody. That is the only entry on his criminal history which included terms of imprisonment. The offending in it predated the offending the subject of this appeal by more than seven years. [9] There was a further entry in his criminal history, when he was dealt with in the Magistrates Court in 2016 for six offences, committed on the same day, including -- 3 of 8 -- 4 enter premises with intent to commit indictable offence – there were four of those charges – an attempted enter premises, and a wilful damage. He committed those offences as a 22 year old. For all of those charges, he was convicted and sentenced to 12 months probation and 100 hours of community service. There are then some other minor entries in his criminal history which were not relevant. [10] The effect of that history was that by the time he committed this offence on Boxing Day of December 2019, the appellant had not committed any offences for over three years and had not committed any property-related offences for over three and a-half years. And it was more than seven years since a term of imprisonment had been imposed on him. [11] In the Magistrates Court, the police prosecutor submitted that the appellant’s conduct was similar to the co-defendant, Louis Baker. That person was also sentenced by the same Magistrate. The decision with respect to Baker is not before the Court, however, the criminal history of Mr Baker reveals that at the time, he had no criminal history. He was dealt with in the following way. No conviction was recorded, and he was sentenced to 75 hours of community service. The other co-offender, Jonathan Douglas, was not dealt with by the same Magistrate, but was dealt with on a later date. I will come to his sentence in due course. [12] For the appellant, the police prosecutor submitted that a period of probation or imprisonment was within range. Although the prosecutor made no firm submissions as to penalty for the appellant, he seemed to suggest that either a wholly suspended sentence or a community-based order was within range. [13] The appellant’s solicitor submitted to the Magistrate that a period of imprisonment, wholly suspended, or an immediate parole release date would be within range. After further discussion with the Magistrate, that solicitor also suggested a sentence of three to six months imprisonment with a parole release date after serving one third. [14] The Magistrate gave very brief sentencing remarks. He emphasised the fact that the appellant, in his view, had “…a significant criminal history. Certainly for dishonesty.” He went on to say: “The issue really is – is deterrence. You have had your chances at rehabilitation. You keep doing the same thing, so deterrence now looms large rather than rehabilitation, although rehabilitation is not to be ignored … previous sentencing options which have provided insufficient deterrence to you, the fact that the offences were personal gain, and the prevalence of the offence in the community.” [15] He concluded that in view of the serious nature of the offence and the appellant’s personal circumstances, there was no reasonable alternative to a term of imprisonment to achieve the purposes of sentence. [16] There were three grounds of appeal relied upon at the hearing of the appeal. The first was that the sentence imposed was manifestly excessive. In particular, that the learned Magistrate failed to give adequate weight to the fact that a sentence of imprisonment was a last resort for this offending. Further, that the sentencing discretion miscarried because the Magistrate imposed a sentence disproportionate to the gravity of the current offence, and contrary to section 9(11) of the Penalties and Sentences Act 1992 (Qld). In short, that he allowed the appellant’s previous convictions to overwhelm the sentencing discretion. The second ground is that the Magistrate proceeded on an -- 4 of 8 -- 5 erroneous factual basis as to the appellant’s level of cooperation. The third ground is that there was a lack of parity between the appellant’s sentence and that of the co- accused, Jonathon Douglas. [17] Those second and third grounds were raised orally at the hearing of the appeal and are not dealt with in the written outlines. They were also the subject of an application to adduce new evidence on the appeal, which was confined to placing the criminal histories of the co-offenders before the Court. Sensibly, the Crown did not object to the appellant being granted leave to amend the grounds in that way, so that the proper issues were ventilated at the hearing of the appeal. Leave was granted, and the appeal hearing proceeded on that basis. A number of other grounds which had been articulated in the written outlines were not relied upon. Therefore, it is not necessary to deal with them in these reasons. [18] I will deal first with the second ground, which is that the Magistrate proceeded on an erroneous factual basis. This issue was not in dispute. Both parties agreed that the police prosecutor made a factually incorrect submission to the Magistrate about the appellant’s level of cooperation, and that the Magistrate proceeded on an incorrect factual basis. That was that the appellant had, in fact, made a confession to police. That was incorrect. The true state of affairs was that the appellant and other offenders had been nominated by two other defendants in records of interview with police, but formal statements had not yet been taken from them. The appellant was issued with a notice to appear, and when he appeared on the first return date, he pleaded guilty. The appellant himself did not participate in a record of interview with police and did not make admissions to police. However, at the time that the appellant entered his plea, there was no strictly admissible evidence against him. It was accepted that the appellant cooperated with the administration of justice by the entry of an early plea in circumstances where the QP9 did not disclose any admissible evidence against him, but his level of cooperation did not rise to the level of AB v The Queen (1999) 198 CLR 111. [19] The Magistrate referred, in his sentencing remarks, to the appellant’s level of cooperation by making a confession. That was an error, which was in the appellant’s favour. Nonetheless, it is clear the Magistrate proceeded on an erroneous factual basis. On that basis, the Court should set aside the decision and proceed to resentence. The respondent accepts that is the appropriate course. The error made by the Magistrate, however, does not explain why the sentence was excessive. Indeed, the error was in the appellant’s favour. Even without that error occurring, I would have allowed the appeal on the basis that the sentence imposed by the Magistrate was manifestly excessive, for reasons I will explain. [20] Turning to the third ground, parity, Jonathon Douglas was also charged with receiving tainted property on the same date. He was sentenced two weeks after the appellant. He was also sentenced for one charge of possessing dangerous drugs. Douglas was convicted and fined $500 for the charge of receiving tainted property. There is no transcript of the sentencing submissions or remarks available. However, Douglas had a lengthy criminal history which was more serious than the appellant’s. Douglas was one year younger than the appellant. He was 24 at the date of the offence and 25 at the sentence. [21] In August 2019, Douglas had been sentenced for three charges of contravening a domestic violence order and four breaches of bail. He received a head sentence of 12 -- 5 of 8 -- 6 months imprisonment with a parole release date after one third, on the 2nd of December 2019. Douglas was released on parole on that date and committed this offence within only weeks of his release on parole. Douglas had also received previous sentences of imprisonment, including one of two years imprisonment in 2014 for dangerous operation of a vehicle while adversely affected by an intoxicating substance. He had also been sentenced to nine months imprisonment in 2018 for the serious assault of a police officer while adversely affected by an intoxicating substance. Those were in addition to the 12 months imprisonment imposed in 2019. [22] In contrast, the appellant’s criminal history of property offending was less serious than Douglas’s. [23] The appellant’s counsel relied upon the decision of the Court of Criminal Appeal in Cox v The Queen (1991) 55 A Crim R 396, arguing that the discrepancy here between the sentence of the appellant and the sentence of Douglas was sufficient to engender a justifiable sense of grievance and that there was no satisfactory explanation for it. On that basis, it was submitted that the Court should intervene. It is true that the sentence of Douglas is extremely lenient compared to that imposed by the Magistrate on the appellant, but caution must be exercised in placing too much weight on the discrepancy because there is no transcript of the sentencing submissions or remarks available. There is no information about what was taken into account on sentence. In particular it is unknown whether, by the time of Douglas’s sentence, his parole had been suspended or cancelled and he had been returned to custody. [24] I turn now to consider the first ground, which is the argument that the sentence imposed was manifestly excessive. The principles applicable in considering that ground are well known. I must consider whether the sentence fell outside range of the proper sentencing discretion. Appellate intervention on the ground of manifest excess is not warranted unless having regard to all of the sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, I am driven to conclude that there must have been some misapplication of principle. The result of the impugned sentence must be unreasonable or plainly unjust, and I must infer that in some way there has been a failure to properly exercise the discretion which the law reposed in the Court at first instance, see R v Pham (2015) 256 CLR 550 and Hili v The Queen (2010) 242 CLR 520. Of course, it is not sufficient that the sentence is severe or that a different Judge might have imposed a lesser sentence. That is because there is no one right penalty. In any case, there is always a range of permissible sentences. In order to succeed on appeal, the appellant must demonstrate that the sentence imposed was beyond the permissible range. [25] In my view, this is such a case. [26] The respondent submits that the penalty imposed was not outside the range of the proper sentencing discretion. [27] This sentence was imposed by the Magistrate on a busy circuit. The Magistrate heard brief submissions with respect to five separate defendants at once. The information provided to the Magistrate was cursory, at best. In particular, the Magistrate was not assisted by the provision of any comparative cases, despite giving the legal representatives an opportunity to provide them to him. -- 6 of 8 -- 7 [28] On appeal, both parties relied upon a number of decisions by way of comparatives. They included decisions of the District Court as well as the Court of Appeal. On my review of those decisions, the sentence imposed by the Magistrate was so unreasonable or plainly unjust in the circumstances as to give rise to an inference that the Magistrate’s discretion miscarried. [29] I will summarise briefly each of the relevant decisions relied upon. [30] In R v Clode & Dobbs (District Court of Queensland, Burnett DCJ, 30 May 2017), two defendants pleaded guilty to receiving tainted property. Clode was sentenced to four months imprisonment with immediate release to parole after serving 45 days on remand. Dobbs was sentenced to three months imprisonment, partially suspended after having served 42 days on remand. Both defendants were considerably older than the appellant, both had a history of dishonesty offending, including fraud, but had not previously been sentenced to imprisonment. The value of the property was significantly more than in the subject case. It included wallets, phones, and jewellery to the value of about $2000. The defendants knew that the property had been stolen during a violent home invasion, for which they were not charged. Their knowledge was significantly more serious than the appellant’s in this case, who drank alcohol stolen by others from a bottle shop, where he was not a party to that offence. [31] R v Addo (District Court of Queensland, Everson DCJ, 6 February 2013) involved a 21 year old defendant convicted of receiving tainted property. He received a wallet. He was present when the wallet was stolen, using violence, from the original owner. Addo was slightly younger than the appellant but had a “regrettably lengthy history” including dishonesty offences and offences of violence. He had served a number of periods of imprisonment. He had very poor prospects of rehabilitation. He received a sentence of 21 days imprisonment after having served 21 days on remand. [32] R v Moore [2005] QCA 400 (‘Moore’) concerned a slightly older offender with a significant and relevant criminal history for drug and property offending. He pleaded guilty to one count of receiving tainted property and one count of fraud. He received a stolen phone and then pawned it. His offending was more serious than the appellant’s. Moore not only received the phone but went on to defraud an innocent business. Moore also committed this offence during the operational period of a suspended sentence and while on bail for like offending. In Moore, a sentence of 12 months, to be served by way of intensive correction order, was not disturbed on appeal and the operational period of the suspended sentence was extended. [33] R v Cummins [2004] QCA 350 involved a younger offender who was sentenced for more serious charges. He was sentenced to four counts of attempted burglary, six counts of enter dwelling with intent, three counts of receiving tainted property, one count of enter premises and commit indictable offence, and one count of common assault. He received a sentence of three months imprisonment for all of that offending, followed by two years probation. The sentence was not disturbed on appeal. He received a wallet, a street sign, and phones. His offending was aggravated by the fact that he was on a community service order at the time he committed the majority of the offences and on bail when he committed others. [34] The respondent referred to three other decisions. -- 7 of 8 -- 8 [35] R v Owens [1995] QCA 214 involved a 31 year old defendant sentenced to 18 months in prison for dishonestly receiving a long list of expensive items of property, including a stereo, a microwave, CDs, crossbow, and other items stolen from a house. [36] R v Franklin [1998] QCA 457 involved a single count of receiving various items of property. Again, those items were numerous and significantly more valuable than the alcohol drunk here. A sentence of two years imprisonment, suspended after nine months, was reduced on appeal to allowing suspension after four and a-half months. [37] In R v Hoeksema [2010] QCA 357, a 23 year old defendant was convicted of two counts of receiving stolen property. A sentence of three years imprisonment was substituted for a sentence of two years imprisonment on appeal. The property the subject of the offending was more numerous and more valuable, involving a laptop, a jigsaw, a handbag, jewellery, and a wallet. [38] All the cases relied upon by the respondent involve much more serious examples of this offence involving receiving multiple items of significantly higher value. They are not comparable in any way to the objective gravity of this offending. [39] The above decisions demonstrate that the sentence imposed by the Magistrate was so far above the permissible range in all of the circumstances of this case as to be manifestly excessive. It is surprising that the Crown did not concede this. On no analysis was the Magistrate’s sentence defensible when regard is had to those decisions. [40] In this case, the appellant’s culpability was limited to drinking alcohol stolen by others. He had no role in the theft, nor in its planning. He was not present when the theft occurred. It was a very low-level example of this particular offence. In addition, the appellant had a number of factors in mitigation. They included his early plea, the fact that he was still a relatively young man, his cooperation in the administration of justice, his demonstrated rehabilitation since 2006, and the fact that it had been more than three years since he had committed any other offences. In addition, a sentence of imprisonment was a sentence of last resort. The appellant, at the time of sentence, had found a job in Normanton and was intending to remain there. He was an Aboriginal man raised in Doomadgee. [41] In my view, ordinarily, the appropriate penalty would have been a fine or a community-based order, particularly given the appellant’s demonstrated rehabilitation in the three years earlier. [42] However, by the time of the appeal hearing, the appellant had spent eight days in watch-house custody before being granted appeal bail. In light of that time served in custody, the appropriate sentence is one of time served. [43] In those circumstances, the orders I made were these: the appeal is allowed; the appellant is resentenced; the appellant is convicted and sentenced to eight days imprisonment; eight days served in watch-house custody between 13 January 2020 and 21 January 2020 inclusive are deemed time served under the sentence. I direct the registrar to inform the commission of that declaration. -- 8 of 8 --