Dart v Jacklin & Ingerson [2007] QDC 371

DISTRICT COURT OF QUEENSLAND CITATION: Dart v Jacklin & Ingerson [2007] QDC 371 PARTIES: TARA NICOLE DART Appellant and Senior Constable B. JACKLIN Respondent And Senior Constable S. INGERSON Second Respondent FILE NO: D4 of 2007 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Toowoomba DELIVERED ON: 9 August 2007 DELIVERED AT: Toowoomba HEARING DATE: 7 August 2007 JUDGE: Searles DCJ ORDER: Appeal Against Sentence Allowed CATCHWORDS: APPEAL – Appeal Against Sentence – Manifestly Excessive Sentence Penalties and Sentences Act 1992 ss 9, 48 and 49 R v Michael Waynes Booth [1997] QCA 256 COUNSEL: Mr. R. Davies for Appellant SOLICITORS: Director of Public Prosecutions for Appellant 1. By notice of appeal to this Court dated 22 February 2007 the appellant appeals against the sentence imposed upon her by order of Magistrate B T Schemioneck 1 -- 1 of 8 -- made at Toowoomba on 21 February 2007. On that day the appellant was convicted of the following offences and with the following penalties: Offence No. Date Offence Penalty 1 07/12/2006 Commit public nuisance $600 fine in default 24 days imprisonment with no time to pay. 2, 3, and 4 12/12/2006 Stealing ) 5 12/12/2006 Common Assault ) One fine of $1200 under section 49 of the Penalties and Sentences Act in default 48 days imprisonment with no time to pay. 2. The appellant appeals on the following grounds: a) that the sentence was manifestly excessive in all the circumstances and was tantamount to actual imprisonment in all the circumstances; b) that the learned Magistrate erred in the exercise of his sentencing discretion by: i) not granting time to pay the monetary penalties; or ii) failing to give consideration to the grant of a fine option order; or iii) failing to give consideration to a straight community services order in the event that he considered that a fully suspended sentence was not appropriate; c) that the learned Magistrate erred in not giving sufficient weight to the timely pleas of guilty, the youth of appellant, being 18 years of age at the time of the offence and at the date of sentence and the personal circumstances of the appellant, both emotional and financial; d) that the learned Magistrate erred in not applying or not adequately applying the sentencing principle of totality in structuring the sentence to result in cumulative default periods as opposed to concurrency of such terms. 3. Charge number 1 being the public nuisance took place on 7 December 2006 at the Department of Child Safety in the Condamine Centre Toowoomba at 11.15 am. The police received information from the staff at the Condamine Centre with respect to a disturbance. The appellant had attended the centre in respect of 2 -- 2 of 8 -- an authorised child visitation in relation to her infant child. She spoke briefly with a departmental staff member with respect to the guidelines governing visitation and the staff member then left the appellant in the foyer to prepare the private visitation room for the appellant's infant child. 4. The appellant then became suddenly abusive and threatening towards staff members and in front of other members of the public, both adult and children and said directly at a staff member, "I'll kill you, you're dead". She also threatened violence to other case managers and security personnel within the office area indicating that she would gain access to the premises by force to see her infant child. She was dissimulating vigorously with her arms and hands while swearing, abusing and threatening various staff members, case managers and security personnel. 5. The appellant then left the reception area and commenced hitting and kicking at an elevator as she left the relevant level to go to the ground floor. At about 11.30 a.m. the same day police located the appellant in a distressed state in Finchley Street near the intersection of Mort Street. When asked about her behaviour the appellant became aggressive towards the police, was generally uncooperative and attempted to provide the police with a false name. The appellant told the police that she had been at the Department of Child Safety to see her infant child, however she was of the belief that she had been prevented from doing so and that is why she became upset. She was then taken into custody. 6. Stealing Charges These three charges all occurred on 12 December and relate to the stealing of a Somwir portable DVD player valued at $149 from Woolworths at Clifford Gardens, the stealing from Big W at Clifford Gardens of certain ladies underwear with a total value of $89.40, and the theft of four DVDs, three chap sticks, six hair bands and a packet of girls underwear and a packet of chocolates from Supa IGA, Clifford Gardens, at a total value of $120.28. 3 -- 3 of 8 -- 7. Common Assault This involved the throwing by the appellant of a cigarette butt at the security officer of Supa IGA who had pulled her up for stealing. When the security officer was dealing with the defendant in a room in Supa IGA the appellant lit a cigarette and the security officer asked her to put it out. The appellant ignored that request. The security officer then asked her again to put the cigarette out and said to her, "If you want to be treated like an adult instead of a child then you should act like an adult". At that point the appellant stubbed the cigarette out on the desk and threw the cigarette stub at the security officer and hit her in the front of her shirt about chest height. The appellant later told the police that she had become angry with the security officer because she had called the appellant a stupid little girl, and this had made her feel very angry, and she wanted to hurt the complainant. She told the police that she didn't feel in control of herself. 8. When dealing with the matter the learned Magistrate ascertained that the appellant had a $3138 debt owing to SPER (State Penalties Enforcement Registry) and told the defendant that her non-payment of fines reflected in that debt ruled her out from any further fines being imposed that day. He then ascertained from an unidentified speaker in the court (See transcript page 8, line 5) that the appellant was not suitable for community based orders. It is common ground that the person described as the unidentified speaker was Mr Lapthorn, an officer from Department of Corrective Services. Before Mr Lapthorn informed His Honour of the appellant's lack of suitability for community based orders the learned Magistrate had said to her that it may be the case after she was interviewed by Mr Lapthorn that she was not a person suitable for further community based orders, and if that was the case it left him little else other than a period of imprisonment. 9. It is clear in the sentencing remarks that the learned Magistrate came to the view that the appellant was not a person suitable for community based orders because 4 -- 4 of 8 -- he made a statement in those terms when imposing the penalty in relation to charges 2, 3, 4 and 5. 10. The learned Magistrate questioned the appellant as to her financial position and any social networks she had in Toowoomba. She explained that she had only Grace, who I take to be her infant daughter, and a cousin Sasha and an Uncle Shane, apart from another friend Jocelyn Wilson who was then in prison. She explained that she had lost her father at the age of eight and that her mother lived in New Zealand. She related further that she had $100 in the bank to get her through to the following Tuesday when she got paid. 11. The learned Magistrate then asked her whether anyone in her social network in Toowoomba or her mother in New Zealand might be able to assist her to which the appellant replied that she might. The learned Magistrate then went on to say (transcript page 10, line 30): "She might? Well I'll give you that opportunity because I'm not going to deal with you by way of a period of imprisonment today, not straight out imprisonment, because I don't believe you've got to that stage of your life even though the sentencing options have been exhausted. You've been given fines, you don't pay your fines. You've got $3138 in SPER." That indicates to me that the learned Magistrate was of the view that imprisonment of the appellant that day was inappropriate. On the issue of her outstanding fines the appellant told the Court that she had taken the Centrelink forms from Centrelink so that she could start having money transferred to SPER. 12. Immediately after that there was the following exchange: "BENCH: All right. But because you've got that outstanding SPER debt and because of the fact that you're not a suitable person for further community based orders because you've been given probation and you've breached… DEFENDANT: I basically have run out of options and I … 5 -- 5 of 8 -- BENCH: You've run out of options? DEFENDANT: I realise that. BENCH: All right." 13. I do not take that exchange to be a statement by the learned Magistrate that because of the matters of the SPER debt and the unsuitability of the appellant for probation, that the Court had run out of options other than prison. That seemed to be the impression that the appellant held but it was not endorsed by the learned Magistrate. I say that because the appellant's counsel Mr Davies submitted that that exchange was evidence that the learned Magistrate had himself come to the view that he had run out of options. I do not accept that and I repeat that I regard the reference to running out of options as being that which was in the mind of the appellant but which was not adopted by the learned Magistrate. 14. The appellant's criminal record was put before me. It involved relatively minor charges where no prison sentence was involved and involved only one previous occasion involving stealing. That was on the 6th of April 2006 when she was convicted and placed on probation for two years. 15. Given the information provided to the learned Magistrate by the appellant as to her financial position prior to sentencing it was clear that she had no capacity to meet any fine imposed. Section 48(1)(a) and (b) of the Penalties and Sentences Act 1992 obliges a Court when determining the amount of any fine to be imposed to take into account as far as practicable the financial circumstances of the offender and the nature of the burden that payment of the fine will be on the offender. Any possibility of the appellant’s friends or mother being able or prepared to pay any fines imposed was entirely speculative. 16. The imposition of the fines in question with the default prison period in the event of non-payment coupled with the absence of any time to pay any of the 6 -- 6 of 8 -- fines had, and would have been seen by the learned Magistrate to have had, the immediate effect of a prison term for the periods of the default periods imposed. Further, as the unreported decision of the Queensland Court of Appeal in the Queen v. Michael Wayne Booth (1997) QCA 256 establishes, any default period of imprisonment attached to fines is to be served cumulatively and not concurrently. Given that, the total default periods of the fines imposed totalled 72 days, against the background of the appellant's clear incapacity to pay, the fines in effect amounted to orders for imprisonment for that period. 17. As the appellant's counsel Mr Davies submitted, when one takes into account the not unusual practice of the Courts in allowing a prisoner's release at one third of the term with a fixed parole release date or partial suspension the effective and real sentence imposed upon the appellant in this case was 216 days if one treats the 72 day cumulative default period as the amount of time to be actually served by the appellant. That 72 day period would be the actual custodial period on the authority of the abovementioned Queen v. Booth if the current sentences are allowed to stand. 18. Having regard to all the circumstances and the principles governing sentencing as set forth in section 9 of the Penalties and Sentences Act 1992 I'm of the opinion that the learned Magistrate’s sentencing discretion miscarried in relation to each of the penalties imposed by him, were manifestly excessive and should be set aside. The offences in question did not warrant such penalties. 19. I allow the appeal. The sentences should be set aside and the appellant re- sentenced. The appellant is convicted of the following offences with the following penalties: (a) Charge 1 07/12/2006C Commit public nuisance The appellant is released upon her entering into a recognisance, without sureties, in the amount of $200 conditional upon the appellant keeping the peace and being of good behaviour for a period of 12 months from today. 7 -- 7 of 8 -- (b) Charge 1 07/12/2006 Commit public nuisance In relation to charges 2, 3 and 4 being three charges of stealing on 12/12/2006 and the charge 5, being a charge common assault on 12/12/2006, the appellant is fined $450 as one fine under section 49 of the Penalties and Sentences Act 1992 to be paid on or before 09/02/2008. In default, referral to the Registrar of the State Penalties Enforcement Registry. 8 -- 8 of 8 --