Bryant v Depart of Human Services [2012] QDC 384

1 [2012] QDC 384 DISTRICT COURT APPELLATE JURISDICTION JUDGE RYRIE ANTHONY DANIEL STEVEN BRYANT Appellant and DEPARTMENT OF HUMAN SERVICES Respondent BRISBANE ..DATE 05/10/2012 ORDER -- 1 of 9 -- 2 ORDER HER HONOUR: This is an appeal that has been brought on behalf of Mr Bryant who is the applicant in this matter. The appeal is for - pursuant to section 222 of the Justices Act. An appeal before me requires me to revisit, as it were, the decision that was made by the Magistrate because the outline of the appeal grounds are against sentence only, namely that it was manifestly excessive in all the circumstances. Those principles that are relevant in relation to what this Court can do when revisiting whether or not a sentence of a lower Court is manifestly excessive or otherwise, is dictated to by the decision of House v. The Queen, which means that I don’t just simply substitute, as it were, what I thought I might have given if I had had the matter before me originally, but rather, I need to find some sort of error or some consideration by the learned Magistrate - or failure to take into account a particular material consideration or otherwise. In this case, the outline of submissions received by both parties has been helpful and not surprisingly, the discussion before me this morning, again, has been assisted by Ms Cunningham who has an overview of both State and Commonwealth legislation and how they sit together, as it were. The original sentence, if I can just state briefly, was by a Magistrate sitting in Brisbane. A sentence was passed in respect of obtaining a financial advantage by falsely claiming an Australian Government disaster recovery payment against the Criminal Code, and that offence was said to have occurred on or about the 2nd of February 2011. The sentence that was -- 2 of 9 -- 3 ORDER handed down by the Magistrate on the 18th of May 2012 was three months' imprisonment flat with no recommendation for any parole, it seems, or any other order, as it were, that attached to it. I have had the opportunity to read the transcript of the proceedings before the Magistrate as well as the documents that were placed before her and it has to be said immediately that Magistrates are generally very busy with a series of matters and are given sometimes some assistance. It might well have been helpful, as Ms Cunningham has now acknowledged, to have had a schedule put up of the relevant range, which has now been placed before me helpfully by her which I'll mark as an Exhibit Number 1, before the Magistrate to demonstrate that the term of imprisonment imposed was, in fact, probably if one had a review of the relevant sentences for the type of offending before the Court, in the order of about one month, it seems. ADMITTED AND MARKED "EXHIBIT 1" HER HONOUR: The offence, itself, in the context of the background of the matter before the Magistrate can't be ignored. The submissions that were made before me that I've marked that are before the Court now in submission form by both is an appropriate concession by the respondent, appearing that the Magistrate in her reasons for decision when dealing with the matter didn't appear to take into account the plea of guilty. There was some reference to it but unfortunately the penalty, itself, suggests that the starting point must have -- 3 of 9 -- 4 ORDER been much higher as a penalty if, in fact, the bottom was at three months imprisonment imposed flat. The respondent also concedes that the learned Magistrate failed to refer to the totality principle when sentencing the applicant and it has to be said immediately that that appears to be correct even though both parties appearing before the Magistrate did, sort of, raise that issue with her. Significantly, the submission was made that - to her that if the offence that had been committed in February 2011 had been dealt with by the Magistrate hearing the matter on the 19th of January 2012 for a series of offences that occurred pretty much during August 2011 that the result would be probably one of the same, that the offence wouldn't have been increased at all, particularly when one has review of the amount of dishonesty offences, the type of offending that was dealt with by the Brisbane Magistrate on the 19th of January 2012. So I am satisfied that there has been some errors by the Magistrate on the face of the decision as I can glean: a failure to take into account or at least provide the necessary discount for the plea of guilty; to also take into account the possibility of what might have been the position had this matter been dealt with in a timely way on the 19th of January 2012 by the Brisbane Magistrate in respect of State matters of serious dishonesty nature. And finally, I also notice that on the last page of the decision by the Magistrate that it appears that she suggested the history after the entry of May 2010, the entries thereafter arose prior to when the offence for which she was dealing with had occurred. In fact, that's -- 4 of 9 -- 5 ORDER not correct. The converse was the result there in that all those offences post that date she refers to are actually post- February 2011 when this offence before her was dealt with, because one only has to look at the criminal history to see that all of the offences subsequently, the dates they were committed were subsequent to that. Nevertheless, in now finding error on its face, I'm entitled to deal with the matter afresh, and in that regard, it's been helpful for me to have the submissions that have been provided today. When looking at the matter, I can take into account primarily the criminal history of the defendant before the Court. At the time he was being sentenced, it can't be said that he didn't have a deplorable history of - that related to dishonesty offences, and not surprisingly, just by way of comment, that was a factor the Magistrate took into account as well. Because it was a Commonwealth offence, it required a turning of the mind to imprisonment being only of last resort and no other penalty being appropriate under section 17A of the Crimes Act and the factors that are relevant under section 16A of the Crimes Act. And in my view, taken against the background of that criminal history and the nature of the offending itself that involved obtaining and making a false claim for flood relief payment and gaining the amount of a thousand dollars with no chance of repayment against the background of serious offending subsequent to the offence itself, that was also a matter that I can take into account for which he then received a parole release date from a Magistrate on the 19th of January 2012. -- 5 of 9 -- 6 ORDER I'm satisfied that in the circumstances a term of imprisonment was well within range as penalty. The question then gets down to, having determined that, whether or not it would be appropriate in the circumstances to order the term of imprisonment to be back-dated to when the defendant would have appeared in front of the Magistrate. As I've said, it's been marked as an exhibit now by - Ms Cunningham helpfully sets out that the term of imprisonment that one would likely to have been received even with his criminal history in the nature of as it was, would have been in the order of about one month or thereabouts, even under the Crimes Act, evidenced by the schedule that's been placed before me. He has currently served 49 days already in custody and a document again has been provided to that effect, again helpfully, to me which I'll mark as Number 2. ADMITTED AND MARKED "EXHIBIT 2" HER HONOUR: And it does appear that 49 days have already been served under the sentence imposed by the Magistrate by Mr Bryant. I'm satisfied with the one month penalty that he - should have been imposed by the Magistrate that I consider is appropriate particularly in all the circumstances, taking into account, as I've said, the matters in 16A. The nature of the offence, itself, even though are at the lower of the scale, are still aggravating. This was a claim that was being offered to those who had suffered flood relief. Notwithstanding Mr Bryant may well have lost a car through the flood himself, he dishonestly nevertheless went about and -- 6 of 9 -- 7 ORDER gained $1,000 inappropriately. He also has a deplorable history of dishonesty which proceeds not only before but after this offence and consequently has now had the benefit of a recent State parole release. This offence also committed [sic] a parole order that was still in place at the time that he committed the offence but had been imposed by the Magistrate who dealt with that matter on the 14th of May 2010. The criminal history reveals that he received a nine month head sentence which would effectively have brought his end of parole period for that offending to the 14th of February 2011. That means that by committing the offence now before the Court on or about the 2nd of February 2011, he has breached that parole. It's a State order and that makes him subject to the provisions of section 209 of the Corrective Services Act which, if you commit an offence, even if your period of parole has expired during the period of the order when it's on foot which has happened here, he exposes himself to the possibility of the remaining 12 days being served and being ordered to be served. It does appear from my discussions that the term of imprisonment of 49 days does appear to be appropriate penalty in my view. I don't see that any other penalty is appropriate. I do consider that imprisonment was within range, however, it was manifestly excessive that was imposed by the Magistrate at first instance. And as I said, had the schedule been provided at first instance to her, she might have been more persuaded to give a lesser amount. But that wasn't there. -- 7 of 9 -- 8 ORDER And so, consequently, I consider that taking into account the exposure that Mr Bryant has under the previous parole order of 12 days left outstanding that the Parole Board may well still seek him to serve, that one month's imprisonment in relation to the offence committed by him on or about the 2nd of February 2011 would have more than adequately punished him as well as the 49 days already served by him would include not only that amount being appropriate sentence for that offence but would also - and should be taken into account by the parole authorities that he's already: (1) served that sentence of one month - he's done 49 days; and secondly, and more importantly, the 12 days left under the previous parole order ordered on the 14th of May 2010 of 12 days, in my calculation, outstanding is already also being served under the 49 days he's already served and I will place that in my sentencing remark for the Parole Board's reference that that time - neither order - the order I'm about to make of 49 days should, and has included, not only the one month's term of imprisonment I consider appropriate for the offence that was previously before the Magistrate committed on or about the 2nd of February 2011 but also includes the outstanding 12 day period that he would have been exposed to for having breached his parole under a State order. Accordingly, the appeal will be allowed. I set aside the decision of the Magistrate and substitute the following order, 49 days imprisonment in respect of the offence of falsely obtaining a financial advantage for self under the Crimes Act, and I also declare that the 49 days served between - Ms -- 8 of 9 -- 9 ORDER Cunningham, you might have to help me here. MS CUNNINGHAM: The 18th of May 2012 to the 28th of June 2012. HER HONOUR: Thank you very much. Between the 18th of May 2012 to the 28th of June 2012, 49 days in total, be declared time already deemed served under that sentence and the sentencing remarks, as I've said, already indicate that the appropriate penalty is, and would have been, one of one month but the Parole Board should also take into account the 12 days that he would have been exposed to under the original parole order which he breached. And it's a matter for them then to determine whether or not they consider the further 12 days in encompassed in the order. It's not a matter that I have any discretion to interfere with otherwise and that - they shall - that shall be the orders. ----- -- 9 of 9 --