Black v Commissioner of Police [2019] QDC 14

DISTRICT COURT OF QUEENSLAND CITATION: Black v The Commissioner of Police [2019] QDC 14 PARTIES: BLACK, Racheal Skye (Appellant) v THE COMMISSIONER OF POLICE (Respondent) FILE NO/S: DC No 2291 of 2018 DIVISION: District Court PROCEEDING: Appeal against Sentence ORIGINATING COURT: Magistrates Court at Maryborough DELIVERED ON: 18 February 2019 DELIVERED AT: Brisbane HEARING DATE: 8 February 2019 JUDGE: Loury QC DCJ ORDER: 1. Appeal allowed. 2. The appellant is convicted and sentenced to two months imprisonment for the offence of stealing. 3. I activate three months of each of the suspended sentences imposed on 1 November 2016 in the Magistrates Court. 4. All terms of imprisonment are to be served concurrently with each other. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the terms of a suspended sentence were activated – where pre-sentence custody was not declared – whether the learned Magistrate erred in their sentence Justices Act 1886 (Qld) s 222, s 223 Penalties and Sentences Act 1992 (Qld) s 147 SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent [1] The appellant pleaded guilty to one count of stealing. She was sentenced in the Magistrates Court on 21 May 2018, to three months imprisonment with a parole eligibility date of 21 June 2018. Her conviction for stealing breached a suspended -- 1 of 4 -- 2 sentence, which had been imposed upon her on 1 November 2016 for offences of threatening violence and stealing. She had been sentenced on 1 November 2016 in relation to the offence of threatening violence, to six months imprisonment wholly suspended for an operational period of three years. For the offence of stealing, she had been sentenced to three months imprisonment wholly suspended for an operational period of two years. Further on 1 November 2016, the appellant was sentenced for offences of burglary with intent to commit an indictable offence, at night, in company, deprivation of liberty and common assault. For those offences she was sentenced to a head sentence of two years imprisonment. She was released on parole on 15 May 2017, after she had served approximately six months of that two year sentence. That two year sentence was ordered to be served concurrently with the suspended sentences. [2] On 21 May 2018, the learned Magistrate activated the whole of the suspended sentence imposed on 1 November 2016 of six months imprisonment and ordered that six months be served cumulatively upon the three month term imposed for stealing. The effect of the sentence was to require the appellant to serve nine months imprisonment. A parole eligibility date was set at one month from 21 May 2018. [3] On 19 January 2018, the appellant came to be sentenced in another Magistrates Court for the offences of possessing tainted property; failing to take precautions with a syringe; possessing property acquired for the purpose of a drug offence and possessing explosives. Those offences were committed during the operational period of the suspended sentences imposed on 1 November 2016. For those offences the appellant was fined $300. The appellant’s criminal history, which was before the learned Magistrate on 21 May 2018, did not reveal that on 19 January 2018, the learned Magistrate additionally considered the issue of whether the suspended terms of imprisonment ought to be activated. He had considered that it would be unjust to activate either of the suspended terms of imprisonment, for the reason that the breaching offences were, in his opinion, trivial. He declined to activate any part of the suspended terms of imprisonment. [4] On 21 May 2018, the learned Magistrate was led to believe that the issue of whether to activate the terms of the suspended sentences had not been considered by the Magistrate on 19 January 2018. That was an error. [5] A further error arose in that the learned Magistrate believed that there were further suspended terms of imprisonment imposed on 1 November 2016. As a consequence of that erroneous belief the Magistrate activated terms of imprisonment which were in fact not suspended. It is now apparent that only the two offences of threatening violence and stealing were in fact the subject of the suspended sentences. That error arose, it seems, because of the unusual combination of sentences that were imposed on 1 November 2016. [6] A third error is also apparent in that a period of two days pre-sentence custody, which was able to be declared was not. No pre-sentence custody certificate was tendered by the prosecutor as required by section 159A(4A) of the Penalties and Sentences Act 1992 (Qld) to alert the learned Magistrate to that period of pre-sentence custody. Those two days were not otherwise taken into account in formulating a sentence. [7] The appellant appeals her sentence pursuant to section 222 of the Justices Act 1886 (Qld). Such an appeal is by way of rehearing, although the court may allow a party to -- 2 of 4 -- 3 adduce new evidence if there are special grounds to do so.1 Under these circumstances, that new evidence includes matters, which have arisen since the appellant was sentenced and released upon parole. [8] Given the errors referred to, I consider that the Magistrate’s discretion has miscarried and it therefore falls to this Court to re-sentence the appellant. [9] The circumstances of the offence of stealing involved the appellant acting to shield the principal offender as he secreted DVD’s on his person whilst in a supermarket. The value of the DVD’s that were recovered was $101. That offence was committed on 19 May 2018. [10] The appellant is 30 years of age and was so at the time of the commission of the offence. She has a criminal history, which commenced when she was 18 years of age. She was convicted of committing a public nuisance and fined. As a 20 year old, she contravened a direction given to her by police and was fined. For a period of almost five years, the appellant did not come before the courts. In 2013, when the appellant was 24 she was again convicted of committing a public nuisance and assaulting or obstructing police. She was given a good behaviour bond. Further in 2013, the appellant was dealt with for offences of possessing drug utensils and failing to appear. She was ordered to perform unpaid community service. In 2014, the appellant first served a term of imprisonment. She was convicted of a number of fraud offences, threatening violence, assault occasioning bodily harm, burglary, wilful damage and going armed to cause fear. She was sentenced to 20 months imprisonment. She was released upon parole after having served five months of that sentence. On 1 November 2016, the appellant was sentenced in relation to the offences referred to paragraph [1]. The offence of threatening violence involved the appellant threatening to kill a person who had provided information to the Department of Child Safety. The offence of stealing involved the appellant stealing a television and Xbox from her housemates. She was sentenced at the same time to other offences of burglary at night in company, deprivation of liberty and common assault. She was sentenced to two years imprisonment. Her parole release date was set at 15 May 2017, which resulted in her serving approximately seven and one-half months imprisonment if account is taken of the pre-sentence custody. [11] Upon her release on parole, the appellant committed the offences referred to in paragraph [2] of possessing tainted property, failing to take precautions with a syringe, possessing property acquired for the purpose of a drug offence and possessing explosives. [12] The offence of stealing, for which I am to sentence the appellant, was committed 12 months after the appellant had been released from custody on parole and 18 months into the operational period of the suspended terms of imprisonment. [13] At the time of the commission of the offence of stealing, the appellant was attending a rehabilitation centre. She had been in attendance since 8 April 2018. The program ran for a minimum of four months. She had entered that program with the assistance of the parole authorities. The program involved daily drug counselling and harm minimisation courses amongst others. The appellant’s problems with drugs commenced in 2013, consistent with her criminal history. In 2016, the appellant had 1 Justices Act 1886 (Qld) s 223. -- 3 of 4 -- 4 a child. That child was in the care of the appellant’s sister at the time of her sentence in the Magistrate’s Court on 21 May 2018. She was said to be taking positive steps towards her own rehabilitation in order to work towards reunification with her daughter. [14] The appellant was visiting with friends when she committed the offence of stealing not realising that she could be charged as a party to that offence. She participated in an interview with police making a full confession. The plea of guilty was an early one having been entered on her first appearance in court. The appellant was remorseful. [15] The appellant served a period three months and eight days (100 days) of the sentence imposed on 21 May 2018 before being released on parole. [16] The nature of the offence of stealing was at the lower end of the scale of seriousness. The appellant was not the principal offender, the property was recovered and the appellant confessed and was remorseful for her conduct. [17] There was no suggestion on this appeal that anything other than a term of imprisonment was appropriate in the circumstances of this case. [18] I consider a term of imprisonment of two months imprisonment is appropriate for the offence of stealing given that it was committed whilst the appellant was subject to parole and a suspended sentence. [19] Pursuant to section 147 of the Penalties and Sentences Act 1992 (Qld), I must make an order that the appellant serve the whole of the suspended term of imprisonment unless it would be unjust to do so having regard to the matters referred to in section (3). As to the nature of the offence, it falls as I have said at the lower end of the scale of seriousness for the offence of stealing. The appellant was a party to the theft rather than a principal offender. The original offences for which she received the suspended terms of imprisonment involved more serious offending. The appellant has made significant efforts at rehabilitation. She is currently living with her grandparents and engaging again in the drug rehabilitation program. She has complied with her parole and has not been subject to any breaches. [20] I consider that it would be unjust to activate the whole of the six month period of imprisonment. I do not consider it would be unjust to activate the whole of the three month period, which the appellant received for stealing given the like nature of the offending. [21] The sentences are as follows: 1. Appeal allowed. 2. The appellant is convicted and sentenced to two months imprisonment for the offence of stealing. 3. I activate three months of each of the suspended sentences imposed on 1 November 2016 in the Magistrates Court. 4. All terms of imprisonment are to be served concurrently with each other. -- 4 of 4 --