Currie v Queensland Police Service [2014] QDC 190

DISTRICT COURT OF QUEENSLAND CITATION: Currie v Queensland Police Service [2014] QDC 190 PARTIES: PAUL DUDLEY CURRIE Appellant V QUEENSLAND POLICE SERVICE Respondent FILE NO/S: 52 of 2014 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Ipswich DELIVERED ON: 5 September 2014 DELIVERED AT: District Court, Ipswich HEARING DATE: 22 August 2014 JUDGE: Bradley DCJ ORDER: Appeal Dismissed CATCHWORDS: CRIMNAL LAW – APPEAL AGAINST SENTENCE – where the appellant pleaded guilty to two offences of unlawful use of a motor vehicle and break and enter premises and stealing – where the appellant was sentenced to 15 months and 30 months imprisonment respectively with a parole release date after 5 months – whether the sentence was manifestly excessive Justices Act 1886 (Qld) s 222 Penalties and Sentences Act 1992 (Qld) s 9 House v The King (1936) 55 CLR 499 R v AB (1999) 198 CLR 111 REPRESENTATIVES: S Neaves of Counsel for the appellant R Reid, for the respondent Aboriginal & Torres Strait Islander Legal Service for the appellant Queensland Police Service Solicitor for the respondent -- 1 of 4 -- 2 [1] On the 11th of June 2014 the appellant pleaded guilty in the Magistrates Court at Ipswich to two offences committed on 30 January 2013. The first was one of unlawful use of a motor vehicle which was used to facilitate the commission of an indictable offence and the second was of breaking and entering the premises of Liquorland at Fairfield and committing an indictable offence, namely stealing alcohol. The appellant was sentenced to 15 months imprisonment for the first offence and 30 months imprisonment for the second offence, to be served concurrently with a parole release date of 10 November 2014 (5 months after the sentence date). [2] The appellant had spent some 138 days in presentence custody but this time could not be declared as imprisonment already served pursuant to the sentence as he was being held on remand in custody for a number of other offences for which a hearing date has been set for October 2014. The Presentence Custody Certificate tendered in the Magistrates Court indicates that the appellant was taken into police custody on 26 September 2013. He served an effective sentence of four months imprisonment between 8 November 2013 and 7 March 2014, and remained in custody on remand until he pleaded guilty to these two charges on 11 June 2014. The appellant therefore had been in presentence custody for a period of 43 days (between 26 September 2013 and 7 November 2013) and 95 days (between 8 March 2014 and 10 June 2014). [3] The appeal is against the sentence on the basis that it was manifestly excessive and in particular, that the sentencing Magistrate did not place appropriate weight upon the undeclareable time the appellant had already served in custody. The appellant also complains that the sentencing Magistrate effectively “forced on” the sentence, rather than adjourn the two charges to be dealt with once the outcome of the proceedings in October was known. [4] Quite brief facts were placed before the sentencing Magistrate by the police prosecutor. It was “believed” that the appellant had entered a house and stolen the car keys for a BMW X5 Wagon. On 30 January 2013, police were called to the scene of a break and enter at Fairfield Road where the vehicle was seen driving by at speed. A police pursuit was commenced but later terminated. The Magistrate was told that there was “a forensic examination” which confirmed that the appellant was in the vehicle. The appellant was in the vehicle at the time it was driven to the liquor store on Fairfield Road. He and four other offenders exited the vehicle and used sledge hammers to smash the glass in the front doorway of the premises. A large quantity of bottled alcohol was loaded in the vehicle and taken away. The appellant was not charged with entering the dwelling of the owner of the vehicle or stealing the vehicle. Neither did he face any charge with respect to any police pursuit of the vehicle. He was sentenced on the basis that he was a party to the unlawful use of the motor vehicle and a principal offender with respect to the break and enter. [5] The appellant was 22 years of age at the time of the commission of the offences and 24 years of age at the time of sentencing. The appellant has an extensive criminal history which commences when he was 10 years of age. He has convictions in the Childrens Court which include 44 convictions for unlawful use of a motor vehicle and some 8 other offences involving motor vehicles, including one of dangerous operation of a motor vehicle. In addition, the appellant’s juvenile history includes a number of convictions for wilful damage, stealing and entering premises and -- 2 of 4 -- 3 committing an indictable offence. In the Childrens Court the appellant was sentenced to the whole range of penalties from reprimand to probation and community service and to detention. [6] As an adult, the appellant has at least 12 previous convictions for unlawfully using a motor vehicle and 6 previous convictions for breaking and entering premises and committing an indictable offence. On 16 March 2011 the appellant was convicted in the Richlands Magistrates Court of unlawful use of a motor vehicle for which he was sentenced to imprisonment for 15 months with a parole release date after about three months. Again, on 12 July 2012, the appellant was convicted of unlawfully using a motor vehicle and sentenced to imprisonment for 12 months with a parole eligibility date of 14 September 2012. The appellant was subject to this parole order at the time of the commission of the two offences on 30 January 2013. [7] In submissions made on the appellant’s behalf, the Magistrate was informed that the appellant was in a de-facto relationship and the father of a two year old boy. That child had recently been admitted into hospital suffering from seizures but that issue appeared to have resolved. The appellant had been raised by his mother, having lost his father at a young age and had lived in Inala for most of his life. In his youth he suffered exposure to significant domestic violence and alcohol issues in the home. He now has a close relationship with his family, including his stepfather, and he is involved in cultural aspects of his aboriginal heritage. The appellant was “in a bad way” at the time of the offending with respect to substance abuse but since being in custody had been able to stay away from illicit substances. He had undergone drug testing and worked with ATODS whilst in custody. [8] In his sentencing remarks, the sentencing Magistrate stated that he would reduce the head sentence and the parole release date to reflect the appellant’s pleas of guilty. He noted that the appellant’s pleas of guilty, and that he was still a young man but that he had “a significant prior criminal history which runs to some seven pages”. [9] The Magistrate noted that the offences themselves were “quite serious” and that the appellant was subject to a parole order at the time of the commission of the offences. He noted that the appellant had spent around 5 months in presentence custody which could not be declared for the matters before him, but said that he would take that into account generally in the sentence in the setting of a parole release date. [10] The appellant complains that the sentencing Magistrate seemed to place the charge of unlawful use of a motor vehicle at a more serious level because of the use of the vehicle in a police pursuit. Whilst the Magistrate did refer to that aspect of the facts, he noted that the appellant was not charged with any offences arising out of the police pursuit. [11] The appellant also complains that in light of the fact that no restitution or compensation was sought, the sentencing Magistrate impermissibly speculated about restitution and took it into account as an aggravating factor in sentencing. The Magistrate said in this regard “there’s no restitution involved here, but one would think it would be substantial involving the use of sledge hammers to break your way into a premises and then theft of liquor”. Such a statement is completely in accordance with the facts as stated by the prosecution and there is no indication -- 3 of 4 -- 4 that this was a factor to which the sentencing Magistrate gave more weight than was appropriate. [12] The crux of the appellant’s complaint is that the formulation of a sentence which meant that the appellant had to effectively serve 10 months actual imprisonment is manifestly excessive in the circumstances. [13] A further complaint of the appellant is that he was entitled to special leniency based on the principles enunciated by the High Court in AB v R1 in that this was a case where the police were not able to identify any of the offenders and it was the appellant’s plea that “informed the Court that he was certainly involved in that car at the time”. The Magistrate was told that the appellant did not undertake an interview with the police following his arrest and, in fact, no details as to how the appellant came to be identified and charged were placed before the Court. Apart from his plea of guilty and implied acceptance of responsibility for the offending, there was no evidence before the Magistrate of any additional co-operation or admissions by the appellant for which he should have been given additional credit. [14] There is no evidence that the sentencing Magistrate either took into account irrelevant matters, or failed to take into account relevant matters, or that the sentencing discretion otherwise miscarried.2 The penalties imposed on the appellant were heavy, but in all the circumstances they cannot be said to be crushing or excessive. The facts of the offending were not particularly out of the ordinary, and certainly being a passenger in a stolen vehicle would not ordinarily result (of itself) in a particularly heavy penalty. However, when the appellant’s criminal history is taken into account, the factor of personal deterrence assumes significant importance. Breaking into a liquor store with sledgehammers and stealing a substantial amount of alcohol is a serious offence and the appellant was a principal offender. [15] Section 9 (10) of the Penalties and Sentences Act 1992 requires a sentencing Magistrate to treat each previous conviction as an aggravating factor if it can be so reasonably considered when determining the appropriate sentence. In this case, the appellant had numerous previous convictions which could be so reasonably considered. [16] Although there is some force to the argument that all matters the appellant had been charged with should have been dealt with together in order to accommodate the principle of totality and to ensure he gained full credit for the time he had spent in presentence custody, the fact that (at least some of) those other matters were being contested, and were to be heard some four months later, meant that it was not inappropriate for the Magistrate to deal with these two charges separately. [17] The Magistrate did (as he expressly stated) take into account the five months spent in presentence custody when fixing the head sentence and in setting the parole release date. If the five months presentence custody is notionally added to the head sentence, then the head sentence imposed on the appellant was one of 35 months imprisonment with parole after 10 months. Such a sentence cannot be said to be excessive. [18] The appeal is dismissed. 1 (1999)198 CLR 111 2 See: House v R (1936) 55 CLR 499 -- 4 of 4 --