Buchester v Johnson [2014] QDC 196

DISTRICT COURT OF QUEENSLAND CITATION: Buchester v Johnson [2014] QDC 196 PARTIES: SHANNON MARY BUCHESTER (Appellant) v BENJAMIN JOHNSON (Respondent) FILE NO/S: BD – 1089/14 DIVISION: Criminal Appeal PROCEEDING: Appeal s 222 Justice Act 1886 ORIGINATING COURT: Brisbane Magistrates Court DELIVERED ON: 11 September 2014 DELIVERED AT: Brisbane HEARING DATE: 22 August 2014 JUDGE: Searles DCJ ORDER: 1. APPEAL DISMISSED 2. MAGISTRATES COURT DECISION AFFIRMED COUNSEL: Appellant – A D Anderson Respondent – K D Ashen Offences the Subject of Appeal [1] On 10 March 2014 the Appellant pleaded guilty in the Magistrates Court at Brisbane to the following offences: 1. Unauthorised dealing with shop goods on 8 February 2013 (a pair of women’s gloves): s 5 Regulatory Offences Act1; 1 Maximum penalty: six penalty units. -- 1 of 9 -- 2 2. 35 counts of Stealing (on various dates between 1 September 2012 and 16 February 2013): s 398 Criminal Code2; 3. 22 counts of Fraud (on various dates between October 2012 and January 2013): s 408C(1)(d) Criminal Code3; and 4. 3 counts of Attempted Fraud (on various dates between October 2012 and January 2013): s 408C(1)(d) & s 535 Criminal Code.4 Sentences Imposed [2] In sentencing the Appellant, Her Honour said:- “For the 22 frauds, you are convicted and sentenced to six months imprisonment. For the three attempted frauds, the same. For stealing, that’s the 25 stealing offences, four months imprisonments. And I order that the parole release date is today. So you will be on parole for six months, which I think is an adequate period of time for you to show your proof that you won’t do it again. In relation to the unlawfully taking away shop goods, taking into account the sentence I’ve just imposed, you are convicted but not further punished. And I’ll order restitution for the amount outstanding, which is the $1,429.15. Now, I’ll also put in there time to pay, one month, or SPER. And you can make arrangements with SPER to pay it by instalments. And in case it’s possible, I also order all items forfeited to the Crown for return to the rightful owners where possible. I know that largely that may well have been done.”5 Offending Conduct [3] The offending conduct occurred over a five and a half month period from September 2012 to February 2013.6 [4] The Appellant stole thirty-five clothing items from David Jones (Queens Plaza) and Myer (Carindale and Brisbane City) stores. The fraud and attempted fraud charges arise from the Appellant offering for sale twenty-five of these items on eBay. Twenty-two of these items sold (fraud) and three of the items did not sell (attempted fraud). Ten of the stolen items were retrieved by police on 16 February 2013.7 [5] The total value of the stolen items, based on the recommended retail price, was $6,099.25. On 5 June 2013 the Appellant made restitution payments of $1,450.00 to David Jones, $588.95 to Myer Brisbane City and $2,631.05 to Myer Carindale, a total of $4,670.00, being 77% of the value of the stolen items. At sentence the Appellant indicated a willingness to meet the remaining restitution.8 2 Maximum penalty: five years imprisonment. 3 Maximum penalty: five years imprisonment. 4 Maximum penalty: two and a half years imprisonment. 5 Transcript, MAG-33198 & 54875/13, p 3 [41-47] and p 4 [1-5]. 6 Submissions on Behalf of Shannon Mary Buchester, page 3, para 18. 7 Ibid, para 19. 8 Ibid, pp 3-4, para 20. -- 2 of 9 -- 3 Prior Offending [6] The Respondent conceded that prior to the current offending, the Appellant’s criminal history was minor, comprising one offence of Stealing and one of possessing tainted property, both in 2006. The offending was of a similar nature to the subject offending, involving stealing clothing from Myer as an employee. For those offences she was fined $750.9 Preliminary Point re Clarity of Sentence [7] At the outset of the appeal hearing the Appellant raised an issue as to the lack of clarity of the sentences imposed. The Appellant submitted that, in relation to the sentences imposed for the multiple counts of Stealing, Fraud and Attempted Fraud, Her Honour did not specifically state that sentences were to attach to each count and to run concurrently with all other sentences. In that regard, as I have said, Her Honour said:- “For the 22 frauds, you are convicted and sentenced to six months imprisonment. For the three attempted frauds, the same. For the stealing, that’s the 25 stealing offences, four months imprisonment.”10 [8] The Appellant relied on R v Jobsz [2013] QCA 5 in which it was said:- “[3] The applicant contends that the Judge failed to impose separate penalties for the respective offences and thereby erred. Counsel for the applicant relies on R v Crofts [1998] QCA 60, affirming “there is no power to impose a single sentence of imprisonment for a number of different offences”. In Crofts, the error was patent because the term imposed exceeded the maximum penalty for some of the offences. That was not the case here. [4] This sentencing Judge would have been alive to the need to impose a penalty in respect of each offence. But it is difficult to read what she said as amounting to the imposition of the term for the counts respectively, and that term would have plainly been excessive for counts 3 to 5 especially, which were clearly much less serious offences than 1 and 2. The applicant must accordingly be re- sentenced.” [9] The Respondent conceded that the order could have been worded more clearly.11 I agree. [10] The Appellant did not seek to amend the grounds of appeal and conceded the point would not be determinative of the appeal.12 Rather the Appellant said that, if the appeal was unsuccessful, she would be seeking clarification of the sentence under the court’s discretion contained in section 188 of the Penalties and Sentences Act 9 Outline of Submissions on Behalf of the Respondent, p 2, para 3.2. 10 Transcript, MAG-33198 & 54875/13, p 3 [41-44]. 11 Transcript, Appeal 1089/14, p 1-15 [29-33]. 12 Ibid, p 1-3 [22]. -- 3 of 9 -- 4 1992.13 I consider the circumstances of this case are distinguishable from both Jobsz and Crofts. In this case the offences are all of a similar nature and the sentence imposed did not exceed the maximum for any offence. It would be illogical for Her Honour to have intended the sentences to be anything other than concurrent and for each offence within the three categories of Stealing, Fraud and Attempted Fraud. I find Her Honour intended to sentence on each count respectively to run concurrently each with the other within each category and with all other sentences in other categories. Grounds of Appeal [11] The Appellant’s sole ground of appeal was that the sentence imposed by the Learned Magistrate Thacker was manifestly excessive.14 Submissions of the Appellant [12] The Appellant submitted that the particular circumstances of the Appellant were not adequately reflected in the sentence imposed.15 Specifically, she asserts that the opinion of the forensic psychologist Mr Smith characterising the Appellant as a very low risk of re-offending was not taken into account thus rendering the sentence manifestly excessive.16 In his report Mr Smith said: “[86] Ms Buchester’s overall risk profile on the LS/CMI fell in the Very Low range…Overall Ms Buchester presents as a pro social individual, whose offending behaviour would appear to be quite aberrant in comparison to the rest of her life”.17 [13] And later: “[94] Given the lack of mood stabiliser medication and any form of ongoing mental health care or counselling at the time of Ms Buchester’s recent offending, it must be at least considered that continuing to receive pharmaceutical treatment and ongoing sessions with her Psychologist will constitute a primary risk management strategy.”18 [14] The Appellant submitted that she had undergone an operation which had caused her significant physical pain and due to that pain she was taken off her mood stabiliser. The offending occurred in the period when she was not on her mood stabiliser and occurred on limited occasions over a protracted period.19 It was the asserted failure of Her Honour to appreciate the offending occurred whilst the Appellant was off medication that founded or significantly contributed to the asserted miscarriage of the sentencing discretion. 13 Ibid, p 1-4 [4-11]. 14 Submissions on Behalf of Shannon Mary Buchester, p 2, para 3. 15 Transcript, Appeal 1089/14, p 1-5 [17-19]. 16 Ibid, [19-20]. 17 Forensic Psychologist’s Report of Mr Nick Smith, dated 16 July 2013, p 18, para 86. 18 Ibid, p 20, para 94. 19 Transcript, Appeal 1089/14, p 1-5 [21-27]. -- 4 of 9 -- 5 Authorities Relied Upon by the Appellant [15] The Appellant relied on R v Sweeton (Brisbane District Court; 1 September 2010) where Robertson DCJ imposed a sentence of 18 months probation and 180 hours of community service on a 26-year-old defendant who, over a six month period, stole more than $12,000 worth of clothes, perfume and fashion accessories from Myer and then sold them to colleagues. She was depressed and had a criminal history which evidenced a “real problem with other peoples’ property”. She was on probation at the time of being sentenced. She continued to steal from retailers even after being charged. She had become involved in illegal drugs through an ex- partner. She had indicated an early guilty plea. She was ordered to pay restitution, which was not voluntarily paid like in the Appellant’s case, and a conviction was recorded against her.20 [16] The appeal transcript shows the only information the Appellant had on Sweeton on sentencing day was a newspaper article which was placed before Her Honour.21 It was common ground that the sentencing remarks did not detail the facts. The newspaper referred to the Defendant as a chronic shoplifter who used wire cutters to remove security tags on the $12,000.00 worth of clothes stolen. [17] Relying on that authority and the asserted causal link between her mental state at the time (off medication) and her offending, the Appellant submitted the sentence of imprisonment was manifestly excessive in that it failed to afford appropriate weight to all the relevant considerations.22 Orders Sought by the Appellant [18] The Appellant sought to have the original sentence quashed and substituted with a short good behaviour order with no conviction recorded.23 Submissions of the Respondent [19] The Respondent submitted the sentence was not excessive and it was appropriate for a conviction to be recorded given the seriousness of the offending and the importance of general deterrence. Those factors outweighed any detriment a conviction may have on the Appellant’s employment prospects. The recidivism of the Appellant over the offending further justified a conviction being recorded.24 Authorities Relied Upon by the Respondent [20] The Respondent relied on several authorities summarised below. R v Bird [2004] QCA 196 [21] The applicant pleaded guilty to stealing as a servant. Although a more serious offence, the conduct was not protracted, and the offending occurred on one occasion rather than multiple times. The applicant stole $1,000.00 while employed by Woolworths as a Night Fill Manager. That is considerably less than the value of the 20 Submissions on Behalf of Shannon Mary Buchester, p 8(2/2), para 37. 21 Transcript, Appeal 1089/14, p 1-12 [14-34]. 22 Submissions on Behalf of Shannon Mary Buchester, p 8(2/2), para 39. 23 Ibid, p 9, para 40. 24 Outline of Submissions on Behalf of the Respondent, p 8, para 9.1. -- 5 of 9 -- 6 property stolen by the Appellant in this matter. The commission of the offence was recorded by a security camera. He repaid the full sum of money prior to being sentenced. Similarly to this Appellant, the applicant had a relevant prior offence of a like nature where he had stolen $100.00 from his employer. The applicant was slightly older than the Appellant in this matter in that he was 51-years-old. The Court of Appeal did not interfere with the sentence of 9 months imprisonment, suspended after a period of 10 weeks, for an operational period of 18 months.25 The Queen v Rhonda Jane Jacob [1997] QCA 149 [22] The applicant pleaded guilty to stealing as a servant. Although a more serious offence, only one offence was committed rather than multiple offences to which the Appellant in this matter has been convicted. The applicant was employed at the post office for some years and then in a self-employed capacity during which she abstracted approximately $8,000.00, which is slighter more than the value of the property stolen by the Appellant in this matter. The applicant was younger than the Appellant in this matter, being 34-years-old, and was a single mother with two children. Unlike the Appellant in this matter, the applicant had no previous convictions. The applicant’s mother had died when she was aged 11 and she had been raised by her elder sister. There was no prospect of restitution, but the applicant did plead guilty at an early stage in what would have been a difficult case for the Crown to prove at trial. On appeal the sentence was varied to 12 months imprisonment with a recommendation for parole after three months.26 The Queen v James McKenzie Sailor CA No 21 of 1995 [23] The applicant pleaded guilty to one count of stealing, and not to multiple offences of which the Appellant has been convicted. The level of remorse displayed by the Appellant in this matter was not present in the applicant’s case. The applicant stole a number of artefacts valued at $5,000.00 from a Thursday Island School which had cultural significance. He had an intention to derive a profit through the eventual sale of the artefacts. Most of the artefacts were recovered. The applicant was younger than the Appellant in this matter and was married with three children. He also had a grandson. He supported his wife, two daughters and grandson and had occasional employment. The applicant had not been in serious trouble before but had previously been convicted of wilful and unlawful damage of property and a few other anti-social offences. On appeal a sentence of 6 months imprisonment was substituted for the original sentence of 18 months imprisonment.27 The Queen v Yvonne Marie Shelli Hewson (Brisbane District Court; 11 April 2003) [24] The defendant pleaded guilty to one count of stealing property valued at over $5,000.00 and to eight counts of stealing over an 11 month period. The offending came to the attention of police when the defendant was observed by a Loss Prevention Officer stealing a DVD player and chocolates from Myer at Carindale. The defendant consented to police searching her vehicle where they located a second DVD player, which the defendant admitted had been stolen from Myer earlier that morning. The defendant stated to Police that there were some further stolen items at her home address and agreed to allow Police to search her house 25 Ibid, pp 4-5, para 7.1. 26 Ibid, p 5, para 7.2. 27 Ibid, pp 5-6, para 7.3. -- 6 of 9 -- 7 where they located a large quantity of stolen property in various locations. It was admitted the property had been stolen from a number of stores including Bunnings, Lincraft and Loot. The value of the property stolen was greater than that taken by the Appellant in this matter, being just under $15,000.00 and the value of the property recovered was around $3,000.00. The defendant was older than the Appellant in this matter being 56 and 57 when the offences were committed and 58 at the time of sentence. Unlike the Appellant in this matter, the defendant did not have a criminal history. She was sentenced to 6 months imprisonment, wholly suspended, for 9 months.28 Appellant’s Response to Authorities Relied Upon by the Respondent [25] The Appellant sought to distinguish the circumstances in the present case from the authorities relied upon by the Respondent. She argued that many of the authorities submitted by the Respondent were aggravated stealing offences where the maximum penalty was different. Also, the circumstances of aggravation, the amount stolen and the range were different when comparing the Respondent’s authorities to the case the subject of this appeal. The Appellant submitted that the stealing was not undertaken for financial gain. The offending was consequent upon the Appellant no longer taking the mood stabilising medication. Thus the offending was assuaging an emotional state.29 [26] The Appellant further submitted that none of the Respondent’s authorities featured offenders with significant psychiatric and psychological context to their offending.30 As such the Appellant submitted that the case of Sweeton was most comparative.31 Was the Sentence Manifestly Excessive? [27] In Her sentencing remarks Her Honour noted: “I’ve now read all of the material in some detail.”32 The material included all the psychiatric and psychological reports. In relation to the Appellant’s mental health issues, Her Honour said: “In your case, I know you would have me comprehend, and I do, that there’s something else going on in your life in terms of mental health issues. But the concerning thing is that you have had those for a long time. You have managed those very well for a long time. And to some extent, it remains a mystery as to why in the middle of your 40s you would come unstuck and remain unstuck for a period of time, six months. You didn’t stop voluntarily. You were stopped when the shop, I think it was the Myer shop, made the complaint to the police and things moved on from there. These are the most significant concerns that this court must have when deciding on what the appropriate penalty must be.”33 [28] I am satisfied from the reasons of Her Honour that she took into account the Appellant’s mental health issues including the fact the Appellant was not on 28 Ibid, p 6, para 7.4. 29 Transcript, Appeal 1089/14, p 1-10 [34-47] and p 1-11 [1-11]. 30 Ibid, p 1-11 [29-31]. 31 Ibid, [32]. 32 Transcript, MAG-33198 & 54875/13, p 2 [2-3]. 33 Ibid, [33-41]. -- 7 of 9 -- 8 medication at the time of the offending, although that was not specifically mentioned. It was not necessary to do so as Her Honour clearly gave weight to the protection of the community and in my view rightly so. Her Honour said: “I take into account your age. I take into account your criminal history for the same sort of behaviour. But the most important thing to take into account is the absolute necessity for the community to know that the court must denounce this sort of behaviour, as well as protect the community from this sort of behaviour which is potentially very prevalent in the community into the future and has been a source of major concern. Systems must be protected.”34 [29] In Dubois v Rockhampton Regional Council [2014] QCA 215, His Honour Justice Muir noted in reference to Samuels JA in Strbak v Newton [1989] NSWCA 202: “What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given.’” (citations omitted) [30] I am satisfied from the sentencing remarks that Her Honour appropriately considered the material relating to the psychological and psychiatric state of the Appellant and the particular circumstances of the Appellant. Relevance of Mental Health in Sentencing [31] As to the relevance of the mental state of a defendant in the sentencing process, in R v Engert (1995) A Crim R 67, Gleeson CJ, as he then was, noted: “Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application to those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. Those purposes were set by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 as follows: "protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform". A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an 34 Ibid, p 3 [23-29]. -- 8 of 9 -- 9 aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the Court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender. It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.”35 Conclusion [32] I do not consider the sentence was manifestly excessive. Having regard to the above authorities it was clearly within range. Order [33] Appeal dismissed. [34] Decision of the Magistrates Court affirmed. 35 R v Engert (1995) A Crim R 67, 68. -- 9 of 9 --