Abboud v The Commissioner of Police [2019] QDC 273

DISTRICT COURT OF QUEENSLAND CITATION: Abboud v The Commissioner of Police [2019] QDC 273 PARTIES: MILED ABBOUD (appellant) v THE COMMISSIONER OF POLICE (respondent) FILE NO/S: Appeal No 1448 of 2018 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED EX TEMPORE ON: 15 March 2019 DELIVERED AT: Brisbane HEARING DATE: 7 March 2019 JUDGE: Sheridan DCJ ORDER: 1. Appeal Allowed. 2. The sentence of the Magistrate is set aside. 3. The new sentence is as follows: (i) For count 1, possessing 11 $50 counterfeit notes on 18 February 2018, the sentence is six months imprisonment. (ii) For count 2, uttering counterfeit money on 18 February 2018, the sentence is six months imprisonment. (iii) For count 3, fraud and dishonestly obtaining from JB Hi-Fi a Garmin watch with retail value of $549, the sentence is two months imprisonment. (iv) For count 4, possessing 31 $50 counterfeit notes on 19 February 2018, the sentence is six months imprisonment. (v) For count 5, possessing dangerous drugs in the amount of 9.7 grams of methylamphetamine on 19 February 2018, the sentence is 15 months imprisonment. (vi) For count 6, possessing dangerous drugs, an amount of 0.6 grams of MDMA, the sentence is six months imprisonment. (vii) For count 7, receiving tainted property, the sentence is two months imprisonment. -- 1 of 8 -- 2 (viii) For count 8, possessing utensils, namely, pipes, used in connection with smoking dangerous drugs, the appellant is convicted and not further punished. (IX) For count 9, contravening a direction by failing to provide full and correct name, the appellant is convicted and not further punished. 4. The period of 99 days spent in pre-sentence custody, being a period between 19 February 2018 and 29 May 2018, is declared as time already served. CATCHWORDS: MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) – where the Magistrate erred in law by imposing a term of imprisonment for the Commonwealth offences greater than that allowed under the relevant statute – whether the Magistrate’s approach resulted in an error of principle – whether the sentence should be set aside Crimes (Currency) Act 1981 (Cth) Drugs Misuse Act 1986 (Qld) Justices Act 1886 (Qld), s 222 Police Powers and Responsibilities Act 2000 (Qld) COUNSEL: A C Thomas for the appellant C G Ahern for the respondent SOLICITORS: Lawler Magill for the appellant Queensland Police Service for the respondent [2] HER HONOUR: On 10 April 2018, the appellant pleaded guilty and was sentenced in the Magistrates Court of Brisbane to a total of nine charges: three offences under the Crimes (Currency) Act 1981 (Cth), two for possession and one for uttering of counterfeit money, three offences under the Drugs Misuse Act 1986 (Qld) and two offences under the Criminal Code 1899 (Qld) and one offence under the Police Powers and Responsibilities Act 2000 (Qld). [3] The facts of the offending were fully admitted by the appellant, including the type and quantity of drugs alleged to have been in his possession. [4] The offending occurred on two separate occasions and involved: 1. The purchase of a $549 watch from JB Hi-Fi by uttering 11 counterfeit $50 notes on 18 February 2018; and 2. Possession of a number of items found in a backpack when the appellant returned to the same JB Hi-Fi the next day on 19 February 2018, including: (a) 31 counterfeit $50 notes (totalling a value of $1550); (b) 9.7 grams of methylamphetamine (in three separate clipseal bags); (c) 0.6 grams of MDMA; (d) Identification and bankcards and laptop (being tainted property); and (e) Three glass pipes with burnt residue. -- 2 of 8 -- 3 [5] When intercepted and questioned on 19 February 2018, the appellant failed to state his full and correct name and was charged accordingly. [6] The appellant was sentenced to 18 months imprisonment for each of the possession of the counterfeit money offences and 18 months imprisonment for the possession of 9.7 grams of methylamphetamine. For possession of MDMA, the appellant was sentenced to 12 months. For each of the fraud and possession of tainted property offences, the appellant was sentenced to six months imprisonment. For the uttering of counterfeit money, the possession of the three glass pipes and the contravening a direction, the appellant was convicted and not further punished. All sentences were to be served concurrently. [7] The 50 days spent in pre-sentence custody was declared and a parole release date set of 10 August 2018. Convictions were recorded for all offences. [8] On 18 April 2018, the appellant filed a notice of appeal and applied for appeal bail. Appeal bail was granted on conditions on 29 May 2018. Mode of Appeal Section 222 [9] This appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld). The ground of appeal was that the sentence imposed was manifestly excessive. [10] An appeal under s 222 is by way of a rehearing on the original evidence. The rehearing requires the court to conduct a real review of the evidence and make up its own mind about the case. Section 223 [11] Pursuant to s 223, “special grounds” are required before fresh, additional or substitute evidence may be admitted on appeal. [12] In approaching its task, the court ought not to interfere with the sentence unless it is manifestly excessive. It is vitiated by an error of principal, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. Appeal against sentence [13] The focus of the submissions for the appellant were in relation to the sentences of 18 months imprisonment for the possession of the counterfeit money and the 18 months imprisonment for the possession of 9.7 grams methylamphetamine. It was said that both those sentences were manifestly excessive. [14] At all times, it has been conceded by the respondent that, due to errors made by the learned Magistrate in sentencing for the counterfeit offences pursuant to the Commonwealth legislation, the sentence imposed was excessive. It was conceded that the head sentence of 18 months imprisonment for each of the possession of counterfeit note offences was in excess of the maximum penalty available under Commonwealth law where the offence is dealt with summarily, and, further, that the offence for the uttering of counterfeit notes of being convicted and not further punished was of a type not permitted under Commonwealth law. -- 3 of 8 -- 4 [15] In terms of the sentence of 18 months imprisonment for the State offences of possession of methylamphetamine, on behalf of the respondent in the written submissions, it was submitted that the original sentence was within the Magistrate’s sentencing discretion and not excessive. [16] In oral submissions it was conceded that the approach taken by the learned Magistrate to the totality of the offending with a central focus on the counterfeit offending and the seriousness of that offending resulted in a discretionary error as to the whole of the sentence. It was accepted that the sentence must be set aside and this Court must exercise its discretion afresh based on the evidence before the learned Magistrate. [17] A review of the transcript makes it clear that the concession made by the respondent is an appropriate one. The learned Magistrate was clearly focused on the counterfeit offending and made numerous references to it being “in a level of criminality which is outside the gormless methylamphetamine user”. [18] The learned Magistrate determined the head sentence for the counterfeit offending, with the sentence for the possession offending determined on the basis of the counterfeit offending, and it is accepted that the sentence for the counterfeit offending was in legal error. [19] The sentencing discretion, therefore, miscarried and the appeal is allowed. Re-sentence [20] In those circumstances, this Court must re-sentence the appellant both in respect of the Commonwealth offences and in respect of the State offences. [21] In approaching sentence, it was accepted that the drugs were for personal use. There was no suggestion of any commerciality. The quantity and type of drugs were admitted, avoiding the expense of any drug analysis testing. [22] The appellant was not a youthful first-time offender. He had a not insignificant criminal history in Victoria. At the time of the offending, the appellant was five months into a 15-month community order as a result of offending in Victoria. The evidence was that the appellant had moved to Queensland with the intention of making a new start and to try to free himself of his addiction to drugs. [23] This offending had seen the appellant in prison for the first time. [24] It was agreed that the offending was not sophisticated. The day after purchasing a watch with counterfeit notes, the appellant had returned to the same store to exchange the watch. The staff alerted police and the appellant was then intercepted. [25] Further, the counterfeit notes were not part of a sophisticated operation. It was not high-level criminal activity. Any money obtained was being used to source drugs. [26] The appellant submitted an appropriate sentence structure was one that would not have seen the appellant returned to prison. For the counterfeit offending, it having been agreed it could be dealt with summarily under the Crimes (Currency) Act 1981 (Cth), the maximum penalty was 12 months imprisonment. -- 4 of 8 -- 5 [27] Reliance was placed by counsel for the appellant on the decision of R v Vernon,1 where the sentence imposed was six months imprisonment with immediate release on parole upon the defendant entering a recognisance requiring him to be of good behaviour for two years and on the further condition that for a period of two years he be subject to the supervision of a parole officer. The offending involved the making of notes, having a nominal value of $2,400. There was no evidence of the notes having been uttered, though, there was some evidence of the notes having been circulated through poker games. [28] Counsel for the respondent, in light of the authorities, accepted the sentence proposed for the counterfeit offending was within the appropriate range. [29] In the circumstances, having regard to the need for the Court to impose a sentence “of a severity in all the circumstances of the offence” pursuant to s 16A, subsection (1) of the Crimes Act 1914 (Cth) and taking into account the requirements of s 17A of the Crimes Act 1914 (Cth), it is considered that the sentence proposed for the counterfeit offences is within appropriate range. [30] As will be commented below, the addition of a condition of parole may need to be varied so that the appellant does not become subject to two separate parole orders. [31] The issue between the parties, primarily, was the appropriate sentence to be imposed for the State offences of possession and, in particular, the head sentence for possessing the 9.7 grams of methylamphetamine. [32] Counsel for the appellant, consistent with the submissions made before the learned Magistrate, submitted that a sentence of 12 months imprisonment with an immediate parole release date on the day of sentence taking into account the 50 days being in pre-sentence custody was appropriate. In making submissions to the learned Magistrate, counsel referred to the need for supervision in the form of parole where he can undergo testing. Counsel said that as a result of the sentence imposed by the learned Magistrate, the appellant had spent a further 49 days in custody before being released on appeal bail, making the total time in pre-sentence custody 99 days. Counsel for the appellant submitted that no further time was required to be spent in actual custody. [33] In accepting the range was 12 to 18 months, counsel for the appellant submitted that the level of cooperation of the appellant, in particular, the acceptance by the appellant of the type and quantity of drugs, avoiding the need for any drug analysis, the appellants early plea, the fact that the appellant had not previously been in custody and the lack of any commerciality were factors which the Court could take into account in exercising its discretion to impose a sentence at the lower end of the range. Reference was made to the decision of R v Armstrong [2005] QCA 116, R v Warren [2014] QCA 175 and the cases referred to therein of R v Daly [2004] 147 A Crim R 440 and R v Woods [2005] QCA 204. [34] Counsel for the respondent submitted that the fact that at the time of this offending the appellant was in breach of his community order in Victoria, together with his significant past criminal history, meant that his sentence for the state offences should be in the higher range for this type of offending. Counsel for the respondent 1 North J, Supreme Court of Queensland, unreported, 22 March 2017. -- 5 of 8 -- 6 submitted that the sentence should be 18 months imprisonment with a parole release date set at one third. [35] The appellant is not a young first-time offender, being 29 at the date of sentence, and is not without criminal history. Unfortunately, the appellant has become addicted to drugs and his offending is associated with feeding his drug habit. As counsel for the appellant said in submissions before the learned Magistrate, the appellant is in need of rehabilitation and in need of supervision to assist him to achieve being free from drugs. [36] His offending on this occasion saw him imprisoned for the first time, which the appellant described to the learned Magistrate as “straightening me up”. [37] Having regard to all the circumstances and to the comparative cases to which I was referred, the sentence to be imposed is as follows: 1. For count 1, possessing 11 $50 counterfeit notes on 18 February 2018, the sentence is six months imprisonment. 2. For count 2, uttering counterfeit money on 18 February 2018, the sentence is six months imprisonment. 3. For count 3, fraud and dishonestly obtaining from JB Hi-Fi a Garmin watch with retail value of $549, the sentence is two months imprisonment. 4. For count 4, possessing 31 $50 counterfeit notes on 19 February 2018, the sentence is six months imprisonment. 5. For count 5, possessing dangerous drugs in the amount of 9.7 grams of methylamphetamine on 19 February 2018, the sentence is 15 months imprisonment. 6. For count 6, possessing dangerous drugs, an amount of 0.6 grams of MDMA, the sentence is six months imprisonment. 7. For count 7, receiving tainted property, the sentence is two months imprisonment. 8. For count 8, possessing utensils, namely, pipes, used in connection with smoking dangerous drugs, the appellant is convicted and not further punished. 9. For count 9, contravening a direction by failing to provide full and correct name, the appellant is convicted and not further punished. [38] All sentences are to be served concurrently and convictions are recorded. [39] The period of 99 days spent in pre-sentence custody, being a period between 19 February 2018 and 29 May 2018, is declared as time already served. [40] With respect to the 15 months imprisonment for the possession of 9.7 grams of methylamphetamine, and the six months imprisonment for the possession of 0.6 grams of [MDMA], I set the parole release date as today, taking into account all the circumstances, and in particular the level of cooperation, the fact that the appellant -- 6 of 8 -- 7 had not previously been in custody, and the lack of commerciality as being relevant factors as to why the appellant should not be returned to custody for that offending. [41] I am required to tell [the appellant] the conditions of his parole: (a) [The appellant] is under the corrective service officer’s supervision until the end of his term of imprisonment; (b) [The appellant] must carry out the corrective service officer’s lawful instructions; and (c) [The appellant] must give a test sample if required to do so by the corrective service officer under s 41; and (d) [The appellant] must report, and receive visits, as directed by the corrective service officer; (e) [The appellant] must notify the corrective service officer within 48 hours of any change in your address or employment during the parole period; and (f) [The appellant] must not commit an offence during that period. [42] If [the appellant] breaches any condition of parole, then [the appellant’s] parole may be suspended and [the appellant] may be returned to custody. [43] As a condition of that parole, it will be required that, upon [the appellant’s] release from custody in Victoria, [the appellant] must return to Queensland and must report to a Correctional Services officer at Spring Hill within 72 hours of release from custody. [44] In terms of the Commonwealth offences, the sentence imposed is six months imprisonment. But I will direct that the appellant be released after having served the 99 days upon [the appellant] giving security by recognisance in the sum of $1,000, conditional upon [the appellant] being of good behaviour for a period of two years. [45] The purpose of making that order is to enable [the appellant] to be released earlier than the full length of [the appellant’s] Commonwealth sentence and to provide [the appellant] with the opportunity to carry out the balance of that punishment within the community. [46] If [the appellant] commits any further offences or in any other way breaches a condition of the recognisance at any time during that period of two years, [the appellant] may be brought back before this Court to be dealt with for the breach. [47] Depending on the nature of the breach, either a monetary penalty may be imposed, the length of any bond may be extended, a community service order or intensive correction order may be imposed, or if the breach is more serious [the appellant] may be required to serve the unserved balance of [the appellant’s] sentence of imprisonment. [48] [The appellant] is not required, at this stage, to pay the amount of the recognisance which I have set at $1,000. If, however, [the appellant] breaches the conditions of the recognisance, [the appellant] may, in addition to any of the other consequences I have already referred to, be required to pay that sum. -- 7 of 8 -- 8 [49] The period of 99 days spent in pre-sentence custody declared as time already served is the period between 19 February and 29 May 2018. -- 8 of 8 --