Burmeister v Queensland Police Service [2017] QDC 278

DISTRICT COURT OF QUEENSLAND CITATION: Burmeister v Queensland Police Service [2017] QDC 278 PARTIES: DAMIEN SCOTT BURMEISTER (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: D45/2017 DIVISION: Criminal PROCEEDING: Appeal pursuant to s 222 of the Justices Act 1886 ORIGINATING COURT: Mackay DELIVERED ON: 9 November 2017 DELIVERED AT: Brisbane HEARING DATE: 25 October 2017 JUDGE: Richards DCJ ORDER: Appeal allowed. Sentence set aside. Convictions recorded. The appellant is ordered to pay a fine of $1000.00 within 6 months. In default of payment within that time the matter is to be referred to the State Penalty Enforcement Registry. CATCHWORDS: CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – GENERAL PRINCIPLES – where appellant allowed another to take stolen property from his possession – whether the sentence was manifestly excessive in the circumstances COUNSEL: B Hartigan for the appellant A Baker for the respondent SOLICITORS: Fisher Dore Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent -- 1 of 6 -- 2 [1] On 12 June 2017 the appellant pleaded guilty to contravening a direction or requirement (s 791(2) of the Police Powers and Responsibilities Act 2000), possession of property suspected as being tainted property (s 252(1) of the Criminal Proceeds Confiscation Act 2002) and fraud (s 433(1) of the Criminal Code 1899). [2] He was convicted and not further punished for contravening a direction, sentenced to six months imprisonment for the possession of tainted property and three months imprisonment for the fraud charge. A parole release date of 12 August 2017 was set for both charges. The sentences of imprisonment were to run concurrently. [3] The appellant has appealed against the sentences imposed for the charges of possession of tainted property and fraud. Facts [4] Between 29 March 2017 and 30 March 2017, during Cyclone Debbie, a sports shop had a number of items stolen. A search warrant was executed at the address of Allana Reumer on 3 May 2017 and police located two sports watches. [5] On 11 May 2017, the police spoke to the appellant who told them that after Cyclone Debbie he located a number of items underneath his house including sports and heartrate watches. He knew these items were stolen as he could see the toy shop tags and barcodes still on the items. He took the items upstairs. Reumer attended his property on 2 April 2017 and noticed the watches. He told her to “take what you want.” She took the two sports watches that were located at her residence by police on 3 May 2017. When speaking to the police the appellant told them that he took the items upstairs and contacted the person whom he thought might have put the goods under his house and told him to collect them. He did not contact police. He did, however, give the police the name of the person he thought was responsible as well as providing further details of some looting that he saw at a service station nearby. [6] The appellant was a mature man, born on 24 December 1979. He had previous, but mostly irrelevant, convictions with the exception of a previous conviction for stealing on 20 March 2017 for which he received a $500 fine. [7] The magistrate indicated at the beginning of the sentence that he was thinking of putting the appellant in prison. In light of that indication the solicitor appearing for the appellant submitted that if a fine was not contemplated then a short period of -- 2 of 6 -- 3 suspended imprisonment would be appropriate. That submission was made on the basis of his early plea of guilty, his co-operation with the police, the fact that he had a young child of seven months, that he had shown remorse by his plea and that he only had the one offence of dishonesty in his history. [8] By way of contrast the defendant Reumer had a four page criminal history including previous convictions on two separate occasions for stealing (a total of six offences), receiving tainted property on two occasions as well as a significant history of supplying and possessing drugs. She pleaded guilty to the more serious offence of receiving stolen goods. At the time of her sentence she had spent five days in presentence custody and was sentenced to 6 months imprisonment with immediate parole. [9] In handing down his sentence, the magistrate referred to 3 cases, R v Anderson (unreported) Judge Britton SC, District Court Emerald, 21 February 2008, R v Carpenter (unreported) Judge Britton SC, District Court Emerald 21 February 2008 and R v Collins (unreported) Judge Dearden, District Court Beenleigh 28 September 2009. He did not seek submissions in relation to those cases or give defence an opportunity to make submissions in relation to those cases. This was an error of law. [10] A perusal of these cases shows that they were not really comparable to the present circumstances. All of the cases involved stealing by looting during the Emerald floods. His Honour referred to Carpenter as the most comparable of the three sentences: “Carpenter was a young man at 19 years of age. He’d committed three offences, and that is basically where the row of houses have been evacuated – compulsorily evacuated for the flood warnings. Three of these young men were drunk, broke in and committed a range of offences, including stealing and damage to property. Now, Carpenter didn’t have a particular involvement. His sole benefit out of this was a bottle of whiskey I think. – He had a – similarly he had a very limited history. He had received a two year probation order and 200 hours of community service.” 1 Carpenter was charged with two counts of burglary with intent and one count of stealing by looting. He pleaded guilty in the District Court. He was one of the actual looters. He and his co-offenders stole an iPod, accessories and quantity of alcohol 1 T-2, L26. -- 3 of 6 -- 4 and he received a bottle of scotch. He did cease his offending and disassociate from the others before they committed further offences. The offending is clearly more serious. [11] The other two sentences were not in any way comparable. Collins was a juvenile and pleaded guilty to 11 counts of burglary and one count of stealing by looting, two counts of wilful damage and one count of burglary with intent. He was sentenced under the Youth Justice Act 1992. Anderson pleaded guilty to 31 charges namely four charges of burglary and wilful damage, 12 charges of stealing by looting, 11 charges of burglary with intent, three charges of wilful damage and one charge of wilful destruction. The looting involved the vandalisation of property and theft. The total property stolen was $16,500 and the damage was $55,000. He was unsurprisingly sentenced to a term of imprisonment of three and a half years. [12] In this case the appellant was sentenced on the basis that he did not steal the property. He was unaware of the identity of the thief. The property was left at his house and he did not attempt to do anything with it other than allow someone to take some of the property when asked. Although he was a mature offender, his involvement was largely passive and at a much lower level than any of the sentences referred to by the magistrate. [13] In coming to his decision on sentence the magistrate referred to the sentence that he had previously passed on Reumer: “His co-offender if I can use that word Ms Reumer who was also in receipt of those two watches, having acquired them from Mr Burmeister who she nominated as where she got them from. She said she paid some money for it. I don’t think anything turns on that, because that’s not alleged here today. She received a period of six months’ imprisonment with immediate parole release. She did have some limited similar history for receiving. She had some personal mitigating circumstances that Mr Burmeister does not share. I can see no reason why given the circumstances, Mr Burmeister has at least the same, if not more, responsibility for these watches than Ms Reumer. He passed them on to her, and that’s the fraud that is the possession of the tainted property in the circumstances that creates the difficulty. And it is a serious difficulty indeed.” 2 2 T-2, L44. -- 4 of 6 -- 5 [14] It is mystifying that the magistrate having referred to the more serious case of Carpenter then proceeded to impose a much more significant sentence on the appellant for offending which was much less serious. Additionally, the categorisation of Reumer being, in effect, in a better position than Burmeister is also difficult to justify. Reumer had a more serious criminal history than the appellant, running to four pages with a number of previous convictions for stealing and receiving tainted property. She was also of mature years having been born in 1984. She had children that she cared for as did Mr Carpenter who had a small baby and although the magistrate indicated that the fraud was the passing of the watches on to her, that is difficult to see as Burmeister did not hold the watches out to be his property. He simply said she could take some if she wanted. [15] The magistrate, in comparing Reumer’s sentence, did not supply any details of Reumer’s charges, the circumstances of the charges, her personal mitigating circumstances or her criminal history to the defence so that further submissions could be made in relation to parity. This was clearly an error of law. [16] It was submitted by the appellant’s counsel, and accepted by the Crown, that the magistrate had made errors in the sentencing process namely by relying on cases and upon Reumer’s sentence without giving the appellant’s representative an opportunity to make submissions. That is clearly a correct submission. [17] The appellant also submits that there was too much emphasis placed on the context of the offending. Whilst taking advantage of a natural disaster to profit from criminal activity is obviously a serious aggravating factor, the magistrate does appear to have been overwhelmed this fact. At the end of the day the appellant was found in possession of two stolen watches. He did not steal them, he did not attempt to sell them, he simply had possession of them and ultimately allowed someone else to take them who was not the rightful owner. While this is conduct that is obviously criminal and clearly undesirable it cannot be allowed to overwhelm the sentencing process in a situation where the appellant had very little by way of previous relevant convictions. The appellant pleaded guilty, he cooperated with police and he had a young child in his care. [18] The appellant has now spent 12 days in custody before appeal bail was granted to him. He intends to travel interstate to live with his family and as a result community -- 5 of 6 -- 6 service is not available to him. Accordingly it is appropriate for a fine to be imposed instead. [19] The sentence was clearly manifestly excessive. It is appropriate that the sentences be set aside and instead a $1,000 fine be imposed in relation to this conduct. ORDER Appeal allowed. Sentence set aside. Convictions recorded. The appellant is ordered to pay a fine of $1000.00 within 6 months. In default of payment within that time the matter is to be referred to the State Penalty Enforcement Registry. -- 6 of 6 --