Driessens v Queensland Police Service [2010] QDC 281

DISTRICT COURT OF QUEENSLAND CITATION: Driessens v Qld Police Service [2010] QDC 281 PARTIES: MICHAEL WESLEY JOHN DRIESSENS (Appellant) AND QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: Appeal No. 21/10 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: District Court, Toowoomba DELIVERED ON: 13 July 2010 DELIVERED AT: Brisbane HEARING DATE: 21 May 2010 JUDGE: Reid DCJ ORDER: 1. Appeal allowed. 2. Order that the appellants sentence of nine months imprisonment for each offence be subject to a parole release date fixed at half that period, namely 16 July 2010 CATCHWORDS: APPEAL – Sentencing principles – erroneous decision by Magistrate – where parole release date set at the full term of head sentence – setting a parole release date COUNSEL: R. Davies for Appellant C. Winlaw for Respondent SOLICITORS: David Burns Lawyers for Appellant Office of the Director of Public Prosecutions for the Respondent -- 1 of 6 -- 2 [1] The appellant was convicted on 2 March 2010 on his pleas of guilty to one count of breaking, entering and stealing, seven offences of stealing and one of possession of tainted property. He was also dealt with for breach of a six months’ suspended sentences ordered on 14 April 2009 for possessing dangerous drugs with an operational period of 15 months. [2] The learned magistrate sentenced him to a period of nine month’s imprisonment on all offences, and activated the whole of the six months’ period of the suspended sentence, to be served concurrently with the nine months’ sentence. Importantly, the magistrate ordered a parole release date of 1 December 2010, effectively the full term of the head sentence of nine months. [3] The appellant appeals on the basis that a parole release date of one-third to one-half of the sentence ought to have been imposed and that the magistrate failed to comply with the procedures referred to in R v Kitson [2008] QCA 86. That case makes clear that whilst a court retains a discretion, not relevantly fettered, to fix the relevant parole release date, it is very unusual to set a parole release date significantly beyond the midpoint of the head sentence and that if such an unusual order is to be made, the duty of the court is to give reasons explaining the process of reason underlying the decision. Further, it was said that because such a sentence would be unusual (and was not specifically sought or contemplated by either party in this case), it should not be imposed without the learned judge adverting to it and giving the parties an opportunity to be heard. In this regard, Fraser JA, with whom Fryberg and Lyons JJ agreed, said at paragraph 22: “In re Hamilton; In re Forrest [1981] AC 1038 Lord Fraser of Tullybelton said, at 1045, that: ‘One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or -- 2 of 6 -- 3 someone acting on his behalf, may make such representations, if any, as he sees fit.’” [4] The respondent accepts that the magistrate erred in law by ordering a parole release date of the full term of the head sentence without first adverting to his intention to make such an order, and then allowing the parties to make submissions in that regard. The respondent nevertheless argued that the magistrate didn’t adequately explained his reasons for making the order. [5] In that circumstance, the respondent submitted that I should refer the matter back to the Toowoomba Magistrates Court for resentencing, having regard to the provisions of s 225(2) of the Justices’ Act, but conceded I have a discretion under subsection (1) of that section to myself resentence the appellant. [6] In circumstances where all of the facts are before me, I see little benefit in requiring the matter to be re-determined by a magistrate, and intend to impose the sentence which I consider appropriate. [7] During the course of submissions, it became apparent to me that there has been a tendency in Toowoomba for a particular magistrate to impose sentences involving a parole release date well beyond the halfway mark of the head sentence without adequately drawing to the attention of the appellant’s legal advisers the magistrate’s intention to do so. In that regard I was referred to a number of cases by counsel for the appellant including Rowe v Queensland Police Service [2007] QDC 327; Whyte v Queensland Police Service [2010] QDC 29 and Knibbs v R (2008) QDC 288. A further matter also came before me in the same sittings of Strong v Queensland Police Service in which I have also given a decision today. Any practice of not clearly and adequately informing counsel of any such intention is be deplored. Furthermore attention is drawn to the passage in the decision in R v Kitson (supra) -- 3 of 6 -- 4 which cited with approval the judgment of Douglas J in R v Northern [2007] QCA 320. In that case His Honour said that a parole release date that is significantly beyond the midpoint of the head sentence is very unusual. In my opinion it would be very regretful if any particular court, be it a magistrates court or another court, made it a practice to regularly impose sentences which are only available in “very unusual” circumstances and especially so if it were to be done without adequately informing the defendant’s legal advisers of an intention to do so. Such disregard for the usual sentencing principles causes all parties undue delay and expense and can also lead to significant injustice. [8] In this case the most serious offence was one of burglary committed on 19 September 2009 at a residence in Dalby. The appellant gained entry by smashing a window and unlatching a window through which he gained entry to the house. He stole jewellery and a camera. He was at the time in fact living in the unit next door to the premises he broke into. As a result of information received by police they executed a search warrant of his premises on 21 September 2009 and on that day all of the stolen items were recovered, although the appellant himself was not located until his arrest on 7 January 2010. [9] Another offence involved him stealing an antique clock phone and inkwell from the business premises of Dalby Antiques in September 2009. It was essentially a shoplifting offence. These items too were recovered when police went to his premises on 21 September 2009, as referred to previously. [10] The appellant committed five offences of stealing involving his taking donation boxes belonging to a number of different charities which had been left on the counters of business premises for members of the public to place cash donations -- 4 of 6 -- 5 into. On each occasion about $30 was involved. On one occasion the cash box was retrieved by the business before the appellant was able to flee the scene. [11] The appellant was also involved in the theft of a bicycle from in front of a shed of a home in Dalby belonging to a sports store. The bicycle was also located when police searched his room on 21 September 2009. [12] Finally, he was convicted of possession of tainted property. This involved a DVD player found in his room on 21 September when police executed the search warrant. The item, he said, had been stolen from a shop but he could not remember where it was and police were not able to locate the owner of the DVD player. [13] It can immediately be seen that the offences were not at the top end of the scale of seriousness for offences of their kind, although, the theft of charitable donations is a matter about which people might find some particular abhorrence. [14] The appellant had a significant past criminal history and was described by the respondent, appropriately, as a “middle-aged recidivist offender who has consistently defied court orders designed to assist his rehabilitation”. Counsel for the appellant correctly noted that the factual basis of the charge of possession of dangerous drugs and the phone for which he received a suspended sentence of six months’ imprisonment on 14 April 2009 had not been placed before the Magistrates Court. [15] Counsel for the appellant also accepted that the magistrate’s decision to order that he serve the full term of the suspended sentence, concurrently with the head sentence for break, entering and stealing was appropriate. -- 5 of 6 -- 6 [16] I take into account the appellant’s past criminal history but also his early guilty plea, the fact that the offences did not involve violence against any person, and that they were not of the more serious kind for offences of break, enter and stealing. It is my view that a sentence of nine months with a parole release date fixed at half that period, namely four and a half months, would be appropriate. Accordingly, I allow the appeal and fix the parole release date as 17 July 2010. I otherwise concur with the sentence imposed by the magistrate. -- 6 of 6 --