Ferrall v Commissioner of Police [2018] QDC 100

DISTRICT COURT OF QUEENSLAND CITATION: Ferrall v Commissioner of Police [2018] QDC 100 PARTIES: NIKOLAS LEIGH FERRALL (Appellant) v THE COMMISSIONER OF POLICE (Respondent) FILE NO/S: 1324 of 2018 DIVISION: Appellate PROCEEDING: Appeal pursuant to s222 Justices Act 1886 (Qld) ORIGINATING COURT: Magistrates Court at Richlands DELIVERED ON: 30 May 2018 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 30 May 2018 JUDGE: Everson DCJ ORDER: 1. The appeal against sentence is allowed; and 2. The order of the sentencing magistrate of 29 March 2018 is set aside, and the appellant is resentenced to imprisonment for six months with immediate release on parole. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – s222 APPEAL – where the appellant was sentenced to twelve months imprisonment for breaking and entering – where the appellant was to serve four months in custody – whether the sentence imposed was manifestly excessive Justice Act 1886 (Qld) s222 Penalties and Sentences Act 1992 (Qld) s9 SOLICITORS: Legal Aid Queensland for the appellant Office of the Director of Public Prosecutions for the respondent [1] This is an appeal pursuant to section 222 of the Justices Act 1886 against sentences imposed by a Magistrate sitting at Richlands on 29 March 2018. [2] The appellant pleaded guilty to a number of offences, which all occurred between 27 December 2017 and 10 February 2018. The appellant pleaded guilty to two charges -- 1 of 3 -- 2 of enter premises and commit an indictable offence by break, one charge of fraud, three charges of possessing dangerous drugs, one charge of possessing utensils or pipes, etcetera, that had been used, one charge of possession of a knife in a public place, one charge of contravening a direction or requirement, one charge of possessing by night an instrument of housebreaking, one charge of possession of implements that had been used in relation to particular offences, two charges of possessing utensils or pipes, etcetera, for use, and one charge of offences involving registration certificates relating to having incorrect licence plates on his vehicle. [3] The learned Magistrate imposed concurrent head sentences of imprisonment for 12 months for each charge of enter premises and commit an indictable offence by break. He imposed lesser periods of imprisonment for the other offending, and in certain instances of minor offending, he convicted the appellant and did not further punish him. [4] The learned Magistrate set a parole release date of 15 June 2018. He declared 47 days spent in custody in pre-sentence custody to be time served under the sentences. [5] The sole ground of appeal is that the sentences imposed by the learned Magistrate were manifestly excessive in all the circumstances. The respondent concedes that this is the case. I am satisfied that this is so. I therefore allow the appeal and it therefore falls to me to resentence the appellant. [6] The appellant was born on 11 March 1983. He was 35 years of age at the time he was sentenced. He was educated to the end of year 10 and ultimately obtained a Certificate II in Horticulture. He had employed with the Gold Coast City Council until December 2017, and had worked in that position for about seven years. Regrettably, his life spiralled out of control at the beginning of 2017, when he was introduced to the drug ice by friends at a party. It has cost him his relationship with his partner and his employment, and he spiralled into a life of drug addiction. To fund his drug addiction, he committed the offences the subject of the head sentences and all of the offending which was before the learned Magistrate had its genesis in his drug addiction. [7] At the hearing, favourable references were tendered, including an offer of employment by an uncle. While the appellant did have a criminal history containing two inconsequential entries in 2012 and then a number of entries for minor property and drug offending in 2017, he had only received fines before he was sentenced by the learned Magistrate on 29 March 2018. [8] The circumstances of the offending giving rise to this appeal were set out in an agreed schedule of facts which was tendered before the learned Magistrate. The most serious offences, being the enter premises and commit indictable offences by break, occurred firstly between 29 January 2018 and 30 January 2018, when entry was obtained to a warehouse that supplies tools and compressors in circumstances where substantial damage was done to the locked front door to gain entry and $300 in petty cash was stolen. The second charge of this type occurred on 10 February 2018 in circumstances where the appellant was on bail for other, less serious offending, and he again forced his way into commercial premises and, on this occasion, stole a golf bag containing golf clubs and a number of Makita power tools. Again, unquantified damage was done to a door to gain access to the premises. -- 2 of 3 -- 3 [9] I accept the submissions made on behalf of the appellant below that the offending the subject of these offences was at the lower end of the scale for such offending, given that it occurred at commercial premises where no one was present and the value of the property taken was not overly significant. [10] Although the learned Magistrate stated that he had taken into account all the matters that were required of him, pursuant to section 9 of the Penalties and Sentences Act 1992 (Qld), there is no statement in his sentencing remarks that he had regard to the principles in section 9(2) that a sentence of imprisonment should only be imposed as a last resort. Perhaps, given the age and the extent of the downward spiral of the appellant, he was of the view that there was compliance with this principle, and a sound exercise of the sentencing discretion would permit custodial sentences to be imposed. [11] I take into account, as did the learned Magistrate, the appellant’s pleas of guilty. I take into account the extent of his offending and the fact that he is a mature man. I also take into account his limited but relevant criminal history. It is necessary that I also take into account the fact that he was in the grip of a serious drug addiction at the time. [12] Balancing all of these factors, in respect of each charge of enter premises and commit an indictable offence by break, the appellant is sentenced to imprisonment for six months with each term of imprisonment to be served concurrently with the other. In respect of each of the remaining offences, which all occurred in the course of the same period, I convict and do not further punish him. I set today as his parole release date. [13] I declare 110 days from 10 February 2018 to 30 May 2018 inclusive spent in custody solely in relation to these offences to be imprisonment already served under the sentences. I direct the registrar to inform the commission of this declaration. -- 3 of 3 --