Eldridge v The Commissioner of Police [2013] QDC 75

DISTRICT COURT OF QUEENSLAND CITATION: Eldridge v The Commissioner of Police [2013] QDC 75 PARTIES: ROBERT GARNOR ELDRIDGE (Appellant) v THE COMMISSIONER OF POLICE (Respondent) FILE NO/S: 537 of 2012 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court Southport DELIVERED ON: 15 March 2013 DELIVERED AT: Southport HEARING DATE: 28 February 2013 JUDGE: K J O’Brien DCJA ORDER: The appeal is allowed and the sentencing orders are set aside. In resentencing the appellant, he is convicted and not further punished, save for an order for restitution in the amount of $78.67 CATCHWORDS: CRIMINAL LAW- APPEAL – APPEAL AGAISNT SENTENCE – where the applicant was previously convicted in the District Court for a related offence - where the applicant was convicted in Magistrates Court – where the applicant was sentenced to pay fine in the sum of $500, in default 10 days’ imprisonment – where the applicant was ordered to pay restitution of $78.67, with a default period of 2 day’s imprisonment - Section 48 of Penalties and Sentences Act 1998 – where the Magistrate was obliged to consider the Totality Principle of Sentencing –where the Magistrate was obliged to make inquiry of the financial circumstances of the offender and the nature of the burden that the payment of the fine would have on the offender - penalty manifestly excessive – summary offences – time for payment Criminal Code Act 1899, s 651 Justices Act 1886, s 225(3) Penalties and Sentences Act 1992, ss 41, 48; 182(A)(2)(b) Regulatory Offences Act 1985, s 5, 51(c) -- 1 of 5 -- 2 Mill v The Queen (1988) 166 CLR 59 The Queen v Crofts [1999] 1 QR 386 COUNSEL: Mr J A McNab for the applicant Mr P D Kay for the respondent SOLICITORS: DC Law for the applicant Director of Public Prosecutions for the respondent [1] On the 16th of October 2012, the appellant, appeared in the Magistrates Court at Southport, charged with an offence against section 5 of the Regulatory Offences Act 1985, of unauthorised dealing in shop goods. He was convicted of that offence and fined the sum of $500, in default, 10 days' imprisonment. He was also ordered to pay restitution of $78.67, with a default period of two days' imprisonment. No order was made permitting time for payment of either the fine or of the restitution. [2] The appellant now contends that the penalty imposed was manifestly excessive in all the circumstances. It is argued that the learned Magistrate did not have proper regard to the so called totality principle of sentencing, and did not have proper regard to the requirements of section 48 of the Penalties and Sentences Act. [3] On the 15th of October 2012, the appellant had appeared in the District Court at Southport where he pleaded guilty to an offence of dangerous operation of a motor vehicle, whilst adversely affected by an intoxicating substance. [4] The appellant was 36 years of age. He had a criminal history which commenced in 1994 and which included offences of dishonesty. He had, in addition, an unenviable traffic record. He was sentenced to a period of two years' imprisonment with a parole release date fixed after serving six months of that sentence. [5] On the following day, when the matter the subject of this appeal, came before the Court, the learned Magistrate was informed of the proceedings in the District Court and informed also that although the offending arose out of one course of conduct, it had not been possible to arrange the transfer of the summary charge to the District Court pursuant to section 651 of the Criminal Code. The first return date for the summary charge in the Magistrates Court, had been the 15th of October 2012, leaving insufficient time to enable compliance with the requirements of the relevant practice direction relating to the disposal of summary charges in the District Court. [6] In those circumstances the solicitor who appeared for the appellant argued that had the matter been before the District Court, with the driving charge, then the appellant would have received no greater penalty than that which was imposed. [7] The offence before the Magistrates Court was described as, "a petrol drive-off.", and the solicitor for the appellant, continued his submission as follows: "The offence before your Honour occurred at 2 o'clock in the afternoon. Effectively, it's a petrol drive-off that occurred immediately prior to the dangerous operation matter which was dealt with yesterday. And, on that basis it is one course of conduct, and I reiterate my submission that he ought to be convicted and not further punished and ordered to pay the restitution." -- 2 of 5 -- 3 [8] In imposing the sentence on the appellant, the learned Magistrate said: "Nothing presented to me here today says that her Honour took into account this earlier offence. It appears to me to be a discrete offence and in the circumstances, quite a serious one, because you enabled yourself to commit the other serious offence for which you were dealt with yesterday. You do not get discount for bulk here. You want that, you go to Kmart.. [9] The maximum penalty that could be imposed for an offence against section 51(C) of the Regulatory Offences Act, was six penalty units, or $600. The option of a custodial sentence was not available and the penalty imposed, a fine of $500, was therefore towards the upper end of the permissible range. Moreover, by imposing a fine upon a defendant serving a term of imprisonment and allowing no time in which to pay that fine, the inevitable result was that the appellant was effectively sentenced to a term of imprisonment for an offence, for which imprisonment was not a sentencing option. [10] The effect of section 182A(2)(b), of the Penalties and Sentences Act, is that the default period of seven days' imprisonment would be served cumulatively upon the sentence imposed in the District Court for the driving offence. The error is compounded in this case by the failure of the learned Magistrate to have regard to the requirements of section 48(1) of the Penalties and Sentences Act. [11] Although the appellant's legal representative had submitted that his client could pay the relatively small amount of restitution involved, no inquiry was made or account taken, of the financial circumstances of the offender and the nature of the burden that the payment of the fine would have upon him. Section 48(1) requires that the Court must, so far as possible, take such matters into account. [12] As counsel for the appellant has submitted, it should have been apparent, in the circumstances, that the appellant had no realistic means of paying the significant fine imposed. [13] The matters above demonstrate a miscarriage of the sentencing discretion but it is necessary to consider also the application of the so-called totality principle of sentencing in the circumstances of this case. [14] In Mill v. The Queen, [1988] 166 CLR 59 at 62, the High Court referred to the totality principle as being, "a recognised principle of sentencing formulated to assist a Court when sentencing an offender for a number of offences.". [15] The Court went on to refer, with approval, to the following passage in Thomas, Principles of Sentencing 2nd Edition, page 56 to 57: "The effect of the totality principle is to require a sentencer who has passed a series of offences, each properly calculated in relation to the offence for which it is imposed, and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and to consider whether the aggregate is, 'just and appropriate.'. The principle has been stated many times in various forms. 'When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the Court to take -- 3 of 5 -- 4 a last look at the total, just to see where it looks wrong.'; when cases of multiplicity of offences have come before the Court, the Court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences?'". [16] In The Queen v. Crofts [1999] 1 Queensland Reports 386 at 387, the Court of Appeal observed: "Of course sentences of imprisonment for a number of offences often ought to reflect that the offences were not committed in isolation. This is commonly referred to as the totality principle. The totality principle requires a Judge who is sentencing an offender for a number of offences, to ensure the aggregation of sentences of imprisonment is a just and appropriate measure for the total criminality involved. When an appropriate sentence imposed for the most serious offence is adequate to punish the total criminality involved other sentences are made concurrent. When the sentence for the most serious offence is inadequate for that purpose, and cumulative sentences are imposed for one or more other offences, lower sentences than would otherwise be called for, can be imposed to achieve a suitable total punishment over all.". [17] In my view, it is apparent from the sentencing remarks set out above, that the learned Magistrate in this case, has failed to have proper regard to this principle. The approach seems to have been that as the subject offence was a "discreet offence", and as the Judge in the District Court had apparently not taken it into account, therefore an additional penalty was justified. [18] Such an approach fails to have proper regard to the penalty imposed in the District Court for an offence which effectively arose from the same course of conduct on the appellant's part. In particular, the sentencing Court has failed to consider whether the sentence imposed for the most serious of the charges, was adequate to reflect the totality of the criminality involved in the appellant's conduct. [19] It follows from all of the above, that I am satisfied that the sentencing discretion has miscarried in this case and that this appeal should be allowed. In the circumstances, it is appropriate that I should now proceed to re-exercise the sentencing discretion in accordance with section 225(3) of the Justices Act 1886. [20] The sentencing options available in this case are limited, both as a matter of law, and as a matter of practical reality, given the appellant's incarceration. However, had the matter been dealt with in conjunction with the driving charge, I am satisfied that the appellant would have received no greater penalty than that which was then imposed, save perhaps, for an order for restitution, which he was apparently capable of paying. [21] In the result, my orders are that the appeal is allowed and the sentencing orders made below are set aside. In resentencing the appellant for the offence the subject -- 4 of 5 -- 5 of this appeal, he is convicted and not further punished, save for an order for restitution in the amount of $78.67. [22] He is allowed seven months in which to pay that amount to the Registrar of the Magistrates Court at Southport for payment out to United Parkwood, 310 Olsen Avenue, Parkwood. If that amount is not so paid then the recovery is to be referred to the State Penalties Enforcement Register. [23] Pursuant to section 232 the respondent shall pay the appellants costs fixed in the amount of $1800. Such costs to the paid to the Registrar of the District Court of Southport within a period of one month. -- 5 of 5 --