Appleton v Commissioner of Police [2011] QDC 250

1 [2011] QDC 250 DISTRICT COURT APPELLATE JURISDICTION JUDGE JONES No 15 of 2011 MICHAEL APPLETON Appellant and COMMISSIONER OF POLICE Respondent MARYBOROUGH ..DATE 01/11/2011 ORDER -- 1 of 4 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act 1886. Essentially the notice of appeal asserts that the sentence imposed by the learned Magistrate below was manifestly excessive. Briefly stated the background is that on 28 February 2011, the appellant was convicted on his own plea of two counts of unlawful use of a motor vehicle and one count of burglary. In respect of those three offences, the learned Magistrate sentenced the appellant to two years imprisonment and ordered a parole release date be set at 31 October 2011, yesterday. On 31 May 2011, the appellant was again convicted on his own pleas of guilty in respect of one further count of unlawful use of a motor vehicle and one count of stealing. Relevantly these offences were committed in between the first of the offences and the last of the offences dealt with by the Magistrate on 28 February 2011. Both counsel agree that the essential issue is, if the latter two offences were dealt with at the same time as the previous offences on 28 February 2011, what if any difference would it have made to the sentences imposed. Of course, it is impossible to put oneself in the mind of the Magistrate at the time. In the respondent's outline of submissions at paragraph 5.11 to 5.13, it is said and I quote. "The learned Magistrate -- 2 of 4 -- 3 ORDER 1 10 20 30 40 50 60 erred in failing to refer to and apply the totality principle. The Crown concedes the sentence of nine months imprisonment cumulative is manifestly excessive in any event. The appellant should be sentenced afresh applying the totality principle. The appropriate range is a concurrent term of imprisonment of between nine months and 12 months and a fixed parole release date between 31 October 2011 and 31 December 2011. An order should be made that the appellant pay $1,587 by way of compensation." It is, of course, well established by a number of authorities that in dealing with the exercise of a sentencing discretion by the Court below, the Court cannot merely substitute a sentence that it might have considered appropriate in the circumstances. It needs to be established that an error below was made. It is clear in this case that such an error did exist and quite properly the Crown concedes that. Also, during argument, Ms Coker made a further concession which was broadly in line with that advanced by Mr Cassidy to the effect that the parole release date could be set for this week and in sufficient time to allow the appellant to be able to report to the appropriate authorities by Friday. Having read the outlines of argument, I agree that an error exists and that this Court ought make orders sentencing the appellant afresh. Accordingly, for the reasons given, the orders of the Court will be that the appeal is allowed. That the appellant be -- 3 of 4 -- 4 ORDER 1 10 20 30 40 50 60 sentenced in respect of the offences committed on 31 May 2011 to nine months imprisonment with a parole release date set 3 November 2011, that sentence to be served concurrently with the sentences imposed in respect on 28 February 2011. Now no-one dealt with the compensation order in submissions. MR CASSIDY: No. Obviously that should remain in my submission. Your Honour can either re-impose it or in re- sentencing him just amend the original sentence regarding the imprisonment. It might be clearer if your Honour just re- orders. HIS HONOUR: Sorry? MR CASSIDY: I was going to say your Honour could allow the appeal----- HIS HONOUR: Yes. MR CASSIDY: -----and to the extent of amending the original period of imprisonment. HIS HONOUR: And that would leave the compensation in place. MR CASSIDY: Yes. MS COKER: Yes, I have no objection to that. HIS HONOUR: All right. Well, I think I have already done that. I will just make it clear that save for the orders made by me today, the sentences imposed by the Magistrate on 28 February 2011 will remain otherwise undisturbed. ----- -- 4 of 4 --