Anderson v Commissioner of Police [2019] QDC 136

DISTRICT COURT OF QUEENSLAND CITATION: Anderson v Commissioner of Police [2019] QDC 136 PARTIES: DONNA MAREE ANDERSON (Appellant) v COMMISSIONER OF POLICE (Respondent) FILE NO/S: 2318 of 2019 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 19 July 2019 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 19 July 2019 JUDGE: Kefford DCJ ORDER: 1. The appeal is allowed. 2. I order that the sentence for stealing and breach of a suspended sentence be set aside. 3. With respect to the stealing offence, a conviction is recorded. The appellant is sentenced to two months imprisonment. I order that the date the defendant be released on parole be fixed at 19 July 2019. It is declared that 18 days spent in custody between 1 July 2019 and 19 July 2019 be deemed time already served under the sentence. 4. With respect to the breach of a suspended sentence, I find that the appellant has been convicted of an offence punishable by imprisonment committed during the operational period of the suspended sentence of 2 months imposed at the Brisbane Magistrates Court on 30 November 2017. I order the appellant serve part of the suspended imprisonment, being the period between 1 July 2019 and 18 July 2019. I order that the defendant be immediately released on parole. It is declared that 18 days spent in custody -- 1 of 10 -- 2 between 1 July 2019 and 19 July 2019 be deemed time already served under the sentence. 4. Otherwise the sentence imposed on 1 July 2019 is confirmed. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the appellant pleaded guilty to an offence of stealing – where the appellant breached a suspended sentence – whether the sentence was manifestly excessive. LEGISLATION: Justices Act 1886 (Qld), s 222, s 223 CASES: Hili v R [2010] HCA 45; [2010] 242 CLR 520, cited Moran v Queensland Police Service [2019] QDC 105, approved R v Lawley [2007] QCA 243, cited R v McConnell [2018] QCA 107, cited R v Tout [2012] QCA 296, cited Rongo v Commissioner for Police [2017] QDC 258, approved COUNSEL: K Fuller (solicitor) for the Appellant H Mangione (solicitor) for the Respondent SOLICITORS: Fuller & White Solicitors for the Appellant Office of the Director of Public Prosecutions for the Respondent Introduction [1] Donna Anderson is a 56 year old lady who was previously the victim of a domestically violent relationship where she was subjected to severe domestic violence for over 30 years. She is the grandmother to 11 children. Her four children are aged between 19 and 37 years old. She has a close relationship with all of them, and she assist in the day-to-day care of her grandchildren. [2] On the 27th of March 2019, Ms Anderson attended a self-serve checkout in the Coles supermarket at Cannon Hill Kmart Plaza. At the checkout, she paid for some food items, but left a number of items in her handbag. The items stolen had a value of $63.45. Ms Anderson was approached by security and then police. She made full admissions to police, stating that she had received a large telephone bill and stole the items to eat. [3] On 1 July 2019, in the Magistrates Court at Roma Street, Brisbane, Ms Anderson pleaded guilty to one charge of stealing after a previous conviction. She also pleaded guilty to one charge of possess utensils. She was sentenced to three months imprisonment for the stealing charge and was convicted and not further punished for the possess utensils offence. This offending was committed during the two-year operational period of a two-month suspended sentence for stealing that had been imposed by the Brisbane Magistrates Court on 30 November 2017. The learned Magistrate ordered Ms Anderson serve the whole of the suspended sentence. The sentences of imprisonment were to be served concurrently, and a parole release date was set at 1 August 2019, effectively after having served 1 month. -- 2 of 10 -- 3 [4] The maximum penalty for the stealing after a previous conviction offence was 10 years. The maximum that could be imposed by the Magistrate was three years. [5] Ms Anderson appeals against the sentence imposed with respect to the stealing after a previous conviction charge on the basis that it is excessive. At the hearing, it transpired that Ms Anderson also intended that the notice of appeal convey that the appeal was also against the decision by the Magistrate to require one month of the suspended sentence to be served prior to release. The Office of Director of Public Prosecutions had not understood the appeal to be so framed. However, Ms Mangione indicated that she was prepared to deal with the appeal on that basis and to respond to the submissions about that aspect of the appeal today. I appreciate Ms Mangione’s cooperation in that respect. Relevant legal principles [6] Ms Anderson’s right to appeal is founded in s 222 of the Justices Act 1886. As she pleaded guilty to the offence, she may only appeal on the ground that the punishment was excessive. Pursuant to s 223 of the Justices Act 1886, the appeal is by way of re- hearing on the evidence given before the Magistrates Court. It involves a review of the record of proceedings below, rather than a completely fresh hearing, subject, of course, to the grant of leave on special grounds to adduce fresh, additional or substituted evidence. Under s 223 of the Justices Act 1886, the court may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just. [7] In this case, the issue to be determined is whether, on a review of the original record, the sentence, including dealing with the appellant for the breach, was excessive in that it required the appellant to serve one month actual custody. [8] Whether a sentence is excessive is revealed by a consideration of all of the matters that are relevant to fixing the sentence – Hili v R [2010] HCA 45; [2010] 242 CLR 520 at 539 [60]. To demonstrate that a sentence is excessive, an appellant must do more than show that other offenders have received lesser sentences for similar conduct or that the sentence is markedly different from sentences in other cases – R v Tout [2012] QCA 296 at [8]. It is not sufficient basis to intervene that this court might have struck a different balance between the competing considerations that had to be weighed in the exercise of the discretion – R v Lawley [2007] QCA 243 at 18. [9] I respectfully agree with the observations of her Honour Judge Muir in Moran v Queensland Police Service [2019] QDC 105 at [7] that: “There is a breadth of sentencing discretion and an obligation on appeal courts to respect the role assigned to those who have the “difficult task of balancing competing considerations of deterrence, protection of the community, denunciation of crime and vindication of victims’ rights on the one hand, and rehabilitation and compassion on the other”.” [10] In R v McConnell [2018] QCA 107 at 15, Justice of Appeal Fraser, with whom President Sofronoff and Justice of Appeal Philippides agreed, identified that whether a sentence is excessive: “…is not established unless the sentence is “unreasonable or plainly unjust” such as to justify the conclusion “that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance”.” -- 3 of 10 -- 4 [11] As to the approach to be taken, I respectfully agree with the observations of his Honour Judge Devereaux SC in Rongo v Commissioner for Police [2017] QDC 258, where he said: “[22] My view of it is that the purpose of that provision is to focus the appellate proceeding on whether the sentence imposed was excessive. Whether a sentence is “manifestly excessive” can be assessed against various criteria. They are collected neatly in R v Morse [1979] 23 SASR 98. King CJ, with whom the other two members of the court agreed, said: To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime; the standards of sentencing customarily observed with respect to the crime; the place which the criminal conduct occupies in the scale of seriousness of crimes of that type; and the personal circumstances of the offender. [23] It seems to me, then, that the focus in this and many appeals brought to this court on attempting to demonstrate an error in the exercise of the sentencing discretion is not misguided, but slightly misplaced. The real question is whether the sentence was excessive, so that, although the appellant may argue that the magistrate made a certain error, the success of the appeal does not depend on persuading the appeal court on that point. On the other hand, successfully demonstrating an error does not guarantee success of the appeal, because, in each case, the question is whether the sentence was excessive.” [12] I turn, then, to consider the matters that are relevant to fixing the sentence that were before the Magistrate. Circumstances of the offending [13] The facts of the offence were set out by the prosecutor at the hearing before the Magistrate as follows: “The victim business in the matter is Coles Australia Proprietary Limited trading as Coles Cannon Hill. It was the 27th of March at about 1 pm. Police were contacted by a witness who was performing loss prevention officer duties at Coles at the Kmart Plaza in Cannon Hill. The witness told police he had observed a female, being the defendant, in the store secreting items in a handbag. She was at the checkouts and was not removing the items from her handbag for payment. Police met the witness outside the store. He pointed out the female to them. Police and the witness approached the female, introducing themselves, and she accompanied them back to the store. The female accompanied police to a secluded area where she produced identification confirming that she was the defendant. The witness stated to the defendant that he had seen her secret items in her bag at which point she began removing items from her bag. The items were a roast chick, Lindt chocolate, mince, ice cream, a drink and socks, and the total value of all of those was $63.45. She had other consumable goods in her possession that she paid for. She was cautioned, questioned. She stated that she had a large phone bill and because of that money – because of that, money was tight, and so she took things to eat.” -- 4 of 10 -- 5 [14] Ms Anderson was 55 years of age at the time of the offending and 56 at the time of the sentence. Ms Anderson’s Antecedents [15] Ms Anderson has a four-page criminal history. It includes 13 stealing offences, and a charge for stealing after a previous conviction. It also includes charges of unauthorised dealings with shop goods and other dishonesty offences and some drug- related offending. [16] Ms Anderson has only ever been dealt with in the Magistrates Court. She has received various orders including fines, community service orders, suspended terms of imprisonment, probation orders, recognisance orders and has been subject to parole. She has served an actual term of imprisonment of one month. That was served in relation to a stealing offence committed on 9 July 2015, in respect of which she was sentenced by the Cleveland Magistrates Court on 28 July 2015. On that occasion, she was sentenced to six months imprisonment, five days pre-sentence custody was declared and a parole release date was set for 23 August 2015. [17] Ms Anderson’s criminal history demonstrates multiple breaches of court orders. On two occasions, she has been dealt with for breaches of fine option orders, having not undertaken any hours of community service. Those breaches are dated, being in 1999 and 2006. No details of the reasons for the breaches are before me. [18] In the past, Ms Anderson has also been dealt with for offending that breached probation orders. On 27 November 2012, Ms Anderson was sentenced to nine months probation for a number of stealing offences. That nine-month probation order would have expired on the 27th of June 2013. On 19 February 2014, the Cleveland Magistrates Court dealt with Ms Anderson for a stealing offence committed on the 13 May 2013, about eight months into the probation order. There is no evidence of that breach having been formally dealt with. With respect to the stealing offence committed on 13 May 2013, and other stealing committed in late 2013, the Cleveland Magistrates Court imposed a three month sentence suspended for two years and ordered restitution of $75.23. With respect to charges of unauthorised dealing with shop goods, it imposed a two year probation order and ordered restitution of $15. [19] The suspended sentence and probation imposed by the Cleveland Magistrates Court on 19 February 2014 would have expired on 19 February 2016. Further stealing offences were committed during their currency, as is evident from the entry of the Cleveland Magistrates Court on 1 April 2014, where the Cleveland Magistrates Court dealt with Ms Anderson for stealing that occurred on 5 May 2013 and 4 January 2014. With respect to that offending, the Cleveland Magistrates Court imposed three months imprisonment suspended for two years and ordered three amounts of restitution, being $300, $150 and $50. That suspended sentence was due to expire on 1 April 2016. It was breached, and on 28 July 2015, the Cleveland Magistrates Court fully invoked the suspended sentence and set a parole release date of 23 August 2015. That is the sentence I have already referred to where Ms Anderson was required to serve an actual term of imprisonment. [20] On 10 November 2016, the Cleveland Magistrates Court again dealt with Ms Anderson for stealing – this time stealing after previous conviction. The offending occurred on 22 June 2016. The sentence was a six-month sentence of imprisonment with a parole release date of 10 November 2016. That period of -- 5 of 10 -- 6 imprisonment was due to expire on 10 May 2017. Parole was breached as is evident from the sentence imposed by the Holland Park Magistrates Court on 30 May 2017. On that occasion Ms Anderson was dealt with for stealing that occurred on 14 February 2017. The sentence on that occasion was conviction recorded, sentence of imprisonment of one month to be suspended for nine months. That nine-month suspended sentence expires on 28 February 2018. [21] On 30 November 2017, Ms Anderson was dealt with for a further offence of stealing committed on 27 May 2017, for which she was sentenced to an imprisonment of two months to be suspended for two years. That is the suspended sentence that she was subject to when she committed the subject offending. [22] Ms Anderson has also breached bail on one occasion and failed to appear on one occasion. [23] As I said, Ms Anderson was serving a suspended sentence for stealing at the time she committed the current offences. [24] No details were before the magistrate, nor are there any details before me, about the facts and circumstances of the previous stealing offences, nor the circumstances for of any of the breaches. However, having regard to the sentences imposed, it is reasonable to infer that it was all low level offending. [25] As I have mentioned, Ms Anderson is now 56 years of age. She was born in Queensland and is separated, having previously left a domestically violent relationship. Sentencing hearing before the Magistrate [26] The material before the learned Magistrate included a patient health summary. It records that she suffers post-traumatic stress disorder as a consequence of being subjected to severe domestic violence for over 30 years. It also records that she suffers from other mental health conditions, including anxiety disorder and severe and chronic depression. She has severe bilateral sciatica and pain in her lower back. It records an inactive past history of cannabis abuse and alcohol misuse. The patient health summary demonstrates that Ms Anderson is medicated for her post-traumatic stress disorder, depression and anxiety. [27] A letter from Dr Percy Tucker of the Brisbane Clinic dated 12 January 2015, which was before the Magistrate, said this of Ms Anderson: “Thank you for referring Donna, a pleasant, intelligent lady who has a long history of recurrent alcohol, cannabis and caffeine abuse against a background of chronic complex PTSD from a childhood of domestic violence experiences (“I often thought Paul would kill me”). She says substance misuse has declined in recent years.” [28] That letter goes on to say Ms Anderson’s physical health is fairly poor and that she had separated from her abusive husband, who lives nearby, but that she is still worried that he might kill her. She considered him a sociopath. It recorded that she has no support from family. She has five siblings, but her parents are deceased, and it recorded that her daughter was an alcoholic. The letter referred to her having very few friends and that she got pregnant at age 17 and lived with a criminal until she met Paul later and that they were both abusive and controlling. -- 6 of 10 -- 7 [29] That letter recorded that, in 2015, she was struggling financially and had not worked since 1998. It said: “MAX Employment has been trying to help me, but nothing is coming of it. They say I’m heading for a pension.” [30] The letter gave a psychiatric diagnosis of severe chronic complex PTSD associated with anxiety and depression and a history of substance abuse, which may have caused problems with short-term memory fluctuation. It said that Ms Anderson’s physical health is indifferent and that her mental health had deteriorated in recent years. It suggested management under a mental health care plan. [31] The Magistrate also had a letter from Dr Paul Mercer of Silky Oaks Medical Practice, dated 27 June 2019. It indicated a mental health plan had been completed for Ms Anderson. It records the PTSD is suffered as a consequence of severe domestic violence over 30 years. It attached a GP mental health care plan indicating that Ms Anderson was seeking assistance from doctors for her mental health. [32] The Magistrate also had a letter from Sisters Inside, dated 17 June 2019. Sisters Inside is an independent community organisation that provides support to women in prison. It has a decarceration program that supports women in Brisbane City watch- house to meet support needs, including housing, healthcare and referrals to other services. The letter was provided in support of Ms Anderson and indicated an understanding that Ms Anderson was being sentenced. It recorded that Ms Anderson had contacted Sisters Inside for ongoing support. It described her as a friendly and caring person and recorded an understanding that she had faced a number of challenges throughout her life, including 30 years of domestic violence perpetrated against her by her then-husband. It recorded that Ms Anderson had been accessing general health support for her slipped disc, as well as mental health support organised through her general practitioner. That information accords with the letter that I have just referred to from Dr Mercer of Silky Oaks Medical Practice, to whom Dr Tucker of Brisbane Clinic had addressed his letter on 12 January 2015. The letter from Sisters Inside indicates that Ms Anderson is willing to receive support from Sisters Inside and that they are able to support her to meet her ongoing obligations. [33] The Magistrate also had before him a mental health assessment by the Court liaison service. It recorded an opinion that she was suffering from a mental disease at the time of the alleged offence, being depression, anxiety and post-traumatic stress disorder. She reported a low mood at the time of the offences, including crying a lot, and had been in argument with her son’s ex-partner, who had moved into her address under bail conditions. The report also notes that she was visibly upset with her actions. She had a good relationship with her GP, was being treated for PTSD, depression and anxiety, for which she was taking medication, and that she had been under significant stress at the time as a result of her son’s ex-partner moving into her house. [34] Immediately before sentencing Ms Anderson, the learned Magistrate asked Ms Anderson whether there was anything she wished to say. She responded: “There is one thing, your Honour. I would like to say that while I was incarcerated for that month I never really received any sort of assistance. It was on parole that I received the best kind of therapy in regards to sorting out my stealing offences, which are closely interlocked with – with domestic violence. I used to have to go and seek food to survive, and it became a mental kind of addiction as well as, you -- 7 of 10 -- 8 know, the worst abuse I could give myself to self-destruction. Then I thought I was worth nothing more anyway than a dog, and so when I get help through parole, it makes me feel like that I am a – a human being.” Approach of the Magistrate on sentence [35] The Magistrate’s determination was to send Ms Anderson to jail. He gave the following reasons for doing so: “Donna, I am going to send you to jail today because I think everything tells me that you have got to serve some of that term of imprisonment, and the reason why I am doing that is because you have continued to commit offences over the years, exactly the same type of offending. It is all the stealing. In this particular case, you were on a suspended sentence for stealing. Now, that two months was suspended for two years, and yet you still went ahead and steal. The other thing that troubles me: you sat in a prison for a month when you were released on that parole order that you referred to. I do not understand why - if you have been in that prison environment, why you still think it is okay to steal. … But there needs to be something here to make it clear to you that what you are doing, you cannot do that. … There is a level of cunning in the way that you secreted those goods, too. You paid for some, but you hid the others in your bag. They followed you out. That is when you were challenged, and to your – … --- the thing is, whether you steal one penny or a million pennies, it is the act of dishonesty. Now, Ms Fuller has made the point - and it is a valid point - that you look at the degree of stealing, you know, and I think there are regulatory offences where if you steal from a shop you could conceivably have been charged with stealing under the regulatory offences, shop stealing, but because of your history, it is so ingrained with the stealing the police have elected to deal with you on a stealing charge, which makes it up to three years. It is an indictable matter. Makes it more serious. But when you do that in the currency of a suspended sentence and there is an aggravating circumstance attached to the charge where you have been branded as a previous offender of this type of offending, all that tells me that, you know, there needs to be a personal deterrent. Now, I look at the underlying issues here, and you sound to me like you have really done it tough. You are a hard – you have had a hard life, and you have survived, but there is another generation now - I do not know – you sound like you have got a kid who is – probably needs a good clip under the ear. Sounds very disrespectful, that daughter of yours. But you also have grandchildren. … And you just hope that these kids can find their way, but the thing is, you are not setting your grandkids or your children any positive message by actively engaging in this sort of criminal conduct. That is the problem. Now, in regard to the charge today, I’m going to convict and sentence you to three months imprisonment. In regard to the suspended sentence, I’m going to activate the suspended sentence and order that you serve the two months.” -- 8 of 10 -- 9 [36] The appellant has now served 18 days for her offending. The respondent submits that the sentence is not excessive. I disagree. In my view, the Magistrate lost sight of the overall criminality of Ms Anderson’s offending. I say that despite her criminal history. Relevant legal principles [37] A sentence imposed must not be disproportionate to the criminality of the offending. The Magistrate made no reference to the criminality, being one that involved stealing of consumable items from a supermarket to the value of $63.45. Rather, when referencing criminality, as I have already noted, the Magistrate said: “The thing is, whether you steal one penny or a million pennies, it is the act of dishonesty.” [38] The only reference the Magistrate made in his sentencing remarks to the level of criminality was to compare the offending for which she was being sentenced to the fact that other types of offences exist, for which she was not charged. The Magistrate, in my view, placed too much weight on Ms Anderson’s criminal history and not enough weight on the low level of criminality of the overall offending. This resulted in the imposition of an excessive sentence. For those reasons, I set aside the sentence imposed for the stealing after a previous conviction offence and for the breach of the suspended sentence, and I will sentence the appellant afresh. [39] In re-sentencing Ms Anderson, I take into account that this is a guilty plea. I take into account that she is a 56 year old woman with a lengthy criminal history, though I observe that the criminal history is of a type that she has only ever been dealt with in the Magistrates Court, and that all of the previous penalties were of short duration. Many of the earlier sentences included orders of restitution, where the amount of restitution were for very small amounts. Without knowing more about those offences, I infer from the range of fines and short periods of custody, and the small amounts of restitution involved, that they were at the lower end of the range of offending for those types of offences. [40] In sentencing Ms Anderson, I have taken into account that she has now served a period of time in custody. She was taken into custody on 1 July 2019 and has been in custody until today. Conclusion and order [41] In relation to the stealing, I intend to set aside the previous sentences and in relation to the stealing after previous conviction offence. The sentence with respect to the possess utensils will remain in place. [42] With respect to the stealing offence, Ms Anderson is convicted and sentenced to two months imprisonment. I declare the period between 1 July 2019 and today to be time served under that sentence, and order that she be immediately released. So the parole release date will be today. I also set aside the sentence imposed with respect to the breach. In determining the sentence I have had regard to Ms Anderson’s antecedents, which I have already mentioned, and the material that was before the Magistrate, which I have referred to at length, the low level of offending for the subsequent offence, the full cooperation, the early plea, and Ms Anderson’s mental health. -- 9 of 10 -- 10 [43] In terms of setting aside the decision with respect to breach of the suspended sentence, I have also had regard to the recent efforts made by Ms Anderson to address her mental health and to her contacting Sisters Inside to seek the benefit of their assistance, and the fact that they are willing to assist in her paying attention to her obligations to the Court. [44] In terms of the breach, I set aside the decision of the Magistrate. The Magistrate had made no reference to the fact that she was 14 months into the two year operational period for the two month sentence. When I have regard to that, the motivation for the subsequent offence being a motivation of need and not greed; Ms Anderson’s antecedence, including her mental health; and again, the fact that she is attending to her mental health needs and has sought assistance from Sisters Inside, I am satisfied that it would be unjust to activate the whole of the suspended imprisonment. I will activate part only, being the time already spent in custody between 1 July and today. My intention is that the balance of the suspended sentence will remain hanging over your head, Ms Anderson, as a motivator to seek to address your need to eat in other ways. -- 10 of 10 --