Demeter v Commissioner of Police [2011] QDC 140

DISTRICT COURT OF QUEENSLAND CITATION: Demeter v Commissioner of Police [2011] QDC 140 PARTIES: FRANK DEMETER (Appellant) v COMMISSIONER OF POLICE (Respondent) FILE NO/S: 13/2011 DIVISION: Appellant PROCEEDING: Appeal from Magistrate’s Court ORIGINATING COURT: Magistrates Court, Beenleigh DELIVERED ON: 7 April 2011 DELIVERED AT: Beenleigh HEARING DATE: 7 April 2011 JUDGE: Dearden DCJ ORDER: (1) Appeal granted. (2) Set aside the parole release date imposed below of 10 November 2011 and substitute a parole release date of 7 April 2011. CATCHWORDS: APPEAL OF SENTENCE – where the learned magistrate’s sentencing discretion was in error – where the parole release date was set at effectively 50% of the head sentence – where the parole release date did not reflect the time served but not declared, the usual release at one-third for pleas of guilty, -- 1 of 10 -- 2 cooperation with the administration of justice, or the early pleas of guilty LEGISLATION: Corrective Services Act 2006 (Qld) ss. 41 and 200 Justices Act 1886 (Qld) s.222 Penalties and Sentences Act 1992 (Qld) s.160G CASES: Rowe v Kemper [2009] 1 Qd R 247 Stevenson v Iasso [2006] 2 Qd R 150 COUNSEL: Mr P Saggers (solicitor) appeared for the appellant. Mr Lee (legal officer) for the respondent SOLICITORS: Howden Saggers, solicitors for the appellant. Director of Public Prosecutions for the respondent HIS HONOUR: [1] This is an appeal from the sentence of the learned Magistrate at Beenleigh on 11 November 2010, in respect of a large number of offences, both indictable and summary. [2] In respect of those offences, for which the defendant was sentenced on that date, he was sentenced to an effective head sentence of two and a-half years, which the learned Magistrate attached to the burglary offences. He identified them as being seven, although it may be that there are only six, but it is clear that the intent of the Magistrate was to impose an effective head sentence of two and a-half years (30 months). The learned Magistrate imposed sentences of two years -- 2 of 10 -- 3 imprisonment concurrent, on all remaining indictable offences, for which the defendant/appellant was sentenced on that date. [3] The issues though, are these. The defendant, Mr Demeter, had, as at the sentence date, served a period of 154 days, that is, five months and four days and none of that time was declared. Although, without being articulated, it seems clear that the learned Magistrate started, quite appropriately, in my view, with a nominal head sentence of three years or thereabouts and chose two and a-half years as the effective head sentence (therefore recognising on the top, the undeclared time served), it's the setting of a parole release date which, in my view, represents a clear error in the exercise of the learned Magistrate's discretion. [4] As I'll indicate in a moment, although I consider that to be a clear sentencing error, the provisions of the relevant appeal legislation don't necessarily require error to be shown. Firstly, however, I just want to analyse the issues arising from the structure of the sentence. The nominal head sentence that the Magistrate started with, which I accept was perfectly within range, was a nominal head sentence of three years or slightly less. The effect of the sentence, however, was to require the defendant to serve 17 months of that nominal three years before being released on parole and that, therefore, was an effective actual sentence of three years, to -- 3 of 10 -- 4 serve 50 per cent, which, with all due respect to the learned Magistrate, is the outcome that would have been expected had the defendant proceeded to trial on the significant number of indictable offences before the Court. [5] To sentence a defendant without taking account of the early plea of guilty (the earliest possible opportunity in reality) and the summary election (the defendant could have chosen to have all of these matters sentenced in the District Court, perhaps with some matters not being able to be brought up under section 651 of the Criminal Code), then to have received the same effective outcome as if he'd proceeded to trial is clearly both unfair and in my view, a clear sentencing error on the part of the learned Magistrate. [6] In respect of the law, appeals under section 222 of the Justices Act proceed as a re-hearing and this Court (exercising its appellate jurisdiction in criminal matters), is required, "to make [its] own determination of the issues on the evidence, giving due deference and attaching a good deal of weight to the Magistrate's view", (Stevenson v. Iasso [2006] 2 Qd R 150, 162 (Per McMurdo at p.162, para 36); see also Rowe v. Kemper [2009] 1 Qd R 247, (Per McMurdo at p.253, para 3). -- 4 of 10 -- 5 [7] In my view, as I've indicated, the effective head sentence of two and a-half years was entirely appropriate and well within range and also, appropriately recognises the time served but not declared (starting, it appears, from a nominal head sentence of three years). [8] The parole release date does not, however, reflect either the time served but not declared, nor does it effect the usual release at one-third for persons who have entered pleas of guilty, cooperated with the administration of justice and in this case, entered pleas of guilty at the earliest possible occasion, avoiding both committal proceedings and trial proceedings, which, no doubt, would have been lengthy, may not have been able to be dealt with in a single trial and would have imposed enormous expense on the criminal justice system. [9] In all of the circumstances, then, having, as I'm required to, come to my own determination of the issues on the evidence, which I've perused and having given due deference to and a great deal of weight to the Magistrate's view, it is my very clear view that the learned Magistrate fell into sentencing error and, even absent that error, imposed a sentence which did not reflect the mitigation evidenced by the early plea of guilty and cooperation with the administration of justice. -- 5 of 10 -- 6 [10] Accordingly, therefore, I order as follows: (1) Appeal granted. (2) Set aside the parole release date imposed below of 10 November 2011 and substitute a parole release date of 7 April 2011. [11] The applicant will, of course, have to comply with the provisions of the Penalties and Sentences Act s.160G, requiring him to report to a Probation and Parole office between 9 a.m. and 5 p.m. today or the next business day and will be subject to the conditions of parole, which are set out in s. 200 of the Corrective Services Act 2006. ... [12] Thank you Mr Demeter. We apologise. We hadn't realised you were downstairs until the end of the argument and for that matter, my reasons for decision in respect of your appeal, but I will tell you the effect of the decision that I've made. I have granted your appeal to this extent. Your effective head sentence remains the same, two and a-half years on the burglaries; two years on all other indictable offences, but I consider that you should have been required, effectively, to serve a period of 10 months in respect of that. The 154 days you served, which was presentence custody, but was not declarable, should, I consider, have been considered part of the time of the 10 months and so I form the view that you should have served a further period of five months, less four -- 6 of 10 -- 7 days, effectively and happily for you, that, in total, works out as being a parole release date of today. [13] Now, there are some very, very important things that I need to tell you and because you're here personally, I can tell you them personally. Firstly, I'll tell you the precise wording of the order that I've made. (1) Appeal granted. (2) On all offences subject of the appeal, I order that the parole release date of 10 November 2011 be set aside and a parole release date of 7 April 2011 be substituted and for the benefit of my associate, that's on a piece of paper which I've just written. [14] Now, what I want to tell you is this, because this is the important part of it. If you stuff this up, you go straight back inside, so----- [15] DEFENDANT: Yes, your Honour. HIS HONOUR: [16] -----it's very important that you understand this. Between 9 a.m. and 5 p.m. today, which is your parole release date, you must report to a Probation and Parole office. Now, that's practically, of course, going to depend on how quickly you're processed; whether it's through this watch-house or -- 7 of 10 -- 8 back at the prison. I don't know the answer to that. That's for others to work out. But however or wherever that happens, essentially by 5 p.m. tomorrow at the latest, you have to have reported to a Probation and Parole office. If you fail to do so, you're unlawfully at large. That's just fancy words for meaning a man on the run, okay? You'll be arrested immediately and go straight back inside. [17] Second thing is this and you'll be given a notice about this either from the watch-house or at the prison. But these are the conditions of your parole and if you stuff this up, you will definitely go back inside. Where I say chief executive, that means your parole officer. You'll be under the chief executive's supervision until the end of your period of imprisonment and that is 30 months, less 10 months and a few days. So you've got about another 20 months to go, roughly. [18] You must carry out the chief executive's lawful instructions. That simply means, you do what your parole officer tells you to do lawfully. You must give a test sample, if required to do so by the chief executive, under section 41 of the Corrective Services Act. If you've got a drug history, you'll be tested. No doubt about it and if you are stupid enough or foolish enough to smoke marijuana, it stays in your system for eight to 10 weeks. That will take -- 8 of 10 -- 9 you straight back inside and that's the thing on which you're most likely to be picked up on a test sample, so whatever you do, don't "celebrate" by smoking dope or for that matter, using any other form of illegal drugs on your release, because it'll just take you straight back inside. [19]You must report and receive visits as directed by the chief executive. That means you turn up for every parole visit and if you're required to receive a visit from your parole officer, you make sure that you're there to receive the visit. [20] You must notify the chief executive, within 48 hours, of any change of your address or employment during the parole period. They want to know where you are at all times, where you're working at all times and any change and finally, you must not commit an offence during the parole period. [21] Now, none those are going to be easy for you because you've got a lengthy criminal history and if you continue to commit crimes, you will continue to go back to prison. On the other hand, if you seize this opportunity and decide that you'd like to spend some period of your life outside of gaol, then it is an opportunity for you, but it carries a big sting in the tail and it's a sting that will grab you immediately if you do anything wrong, because they'll just issue a warrant -- 9 of 10 -- 10 for suspending your parole or potentially revoking it and you go straight back inside. [22] So, I wish you the best with it. If it works and of course, it's going to be good for you because you get to spend your time outside the prison rather than inside it, but if it doesn't work, then I don't think it can be any clearer what the consequences are going to be. [23] DEFENDANT: Thank you very much, your Honour. [24] HIS HONOUR: You understand all that? [25] DEFENDANT: Yes, sir. [26] HIS HONOUR: Good, okay. Thank you for that. ----- -- 10 of 10 --