DISTRICT COURT OF QUEENSLAND
CITATION:
Jones v The Commissioner of Police [2021] QDC 267
PARTIES:
TRISTAN ADAM JONES
(appellant)
v
COMMISSIONER OF POLICE
(respondent)
FILE NO/S:
87/21
DIVISION:
Appeal
PROCEEDING:
Appeal against sentence
ORIGINATING COURT:
Magistrates Court
Maroochydore
DELIVERED EX TEMPORE ON:
22 October 2021
DELIVERED AT:
Maroochydore
JUDGE:
Cash QC DCJ
ORDERS:
The appeal is dismissed
APPEARANCES:
M Robinson instructed by Legal Aid Queensland for the appellant
M Olivero instructed by the Office of the Director of Public Prosecutions for the respondent
HIS HONOUR: This is an appeal by Tristan Adam Jones. On 18 May 2021 the appellant appeared before a magistrate at Maroochydore and was convicted of a total of 16 offences. The sentences that were imposed were a combination of imprisonment with suspension of the sentence, imprisonment with a parole release date, fines, and licence disqualifications.
The applicant complains that the effect of the sentences was excessive. The respondent agrees that the sentence is excessive, but with respect, I do not agree with the submissions made by both the appellant and the respondent. To explain why that is so it is necessary to set out in a little detail the proceedings at first instance.
The offending for which the appellant was sentenced was comprised of the following. In February of 2020 he was found in possession of a not insubstantial amount of chemicals, including methylamphetamine. In September of 2020 he committed an offence of unlawful possession of a motor vehicle by being found in possession of a stolen motorcycle and was also in possession of stolen registration plates. About three weeks later he was found driving while disqualified by a court order in a car that also had false registration plates. Between late 2020 and January 2021 he unlawfully used a stolen car. In January of 2021 he was found in possession of a stolen licence, a stolen car key, he was unlawfully using another stolen car, and driving it while disqualified, with false registration plates. Finally, in February of 2021 he was found asleep in a car. He was in possession of tainted money, some stolen jewellery and a computer, pipes for smoking drugs, and other drug paraphernalia. The appellant is a man who was at the time of the offences and his sentencing in his early 40s. He has a very substantial criminal history for similar offending, and a lengthy traffic record which includes many convictions for disqualified driving.
There is no doubt that a sentence involving actual imprisonment was the only appropriate sentence for the Magistrate to impose. Her Honour was obviously concerned to punish the appellant in a way that was just in all the circumstances, and also to promote his rehabilitation. Despite the appellant’s age and criminal history her Honour did not consider him to be a lost cause.
To achieve the aims that her Honour had stated she combined parole and suspended sentences, and, as I have said, for some offences imposed fines. For a number of offences Her Honour imposed imprisonment of between two and 18 months and fixed a parole release date on the 24th of August of 2021. This reflected six months spent in actual custody before release, taking into account some time in pre-sentence custody. But for the offence of unlawful possession of a motor vehicle, an offence of receiving tainted property, and for an offence of disqualified driving, her Honour ordered terms of imprisonment but wholly suspended them. The effect of those orders was to expose the appellant to 14 months imprisonment if he committed an offence punishable by imprisonment during the three-year suspension of the sentence.
Her Honour expressed the intention that by suspending sentences of imprisonment for three years it would give the appellant a real incentive to stay out of trouble when he was released and after his period of parole. It is this component of the order that is said to have produced an excessive sentence. The appellant submits that because there is a possibility that the appellant will re-offend and some or all of the suspended sentences might be ordered to be served, that has produced excessiveness in the sentence.
The approach of the appellant is to assume that at some point in the future he will be imprisoned for the 14 months, or some period of that, that was suspended by the magistrate. This is said to have the same effect as if the magistrate ordered the appellant to serve cumulative sentences totalling some 32 months.
The apotheosis of the appellant’s argument is that the sentence of 32 months seen in this way is excessive. And, as I have said, the respondent agrees. Had the appellant actually been sentenced to 32 months imprisonment there would be no doubt the sentence was excessive in the circumstances, but that is not what has occurred. The appellant was imprisoned for some offences. He has to serve, or has served, six months of those sentences, and will then be on parole for about 12 months.
He was also sentenced to imprisonment for 14 months but has no present liability to actually serve any of that sentence unless he commits an offence punishable by imprisonment during the next three years. It is an entirely contingent liability and one that may be avoided if the appellant stays out of trouble. Even if the appellant breaches the suspended sentence there is no certainty that he will be required to serve the 14 months that has been suspended. The starting point is that he will have to serve the whole of the suspended imprisonment, but it is not mandatory. Such an order may be avoided if the judicial officer dealing with the breach concludes that it would be unjust to do so.
There are specific matters to consider in deciding if it would be unjust, but the discretion is not fettered, and the court is permitted to consider any relevant matter. In this case that would no doubt include the fact of the other sentences imposed by the magistrate. To put it simply, if the appellant breached the suspended sentence there is scope for the judicial officer who deals with him to ensure the outcome is just. If the appellant does re-offend, and if he is dealt with for the breach, and if he is unhappy about the result, he would then be entitled to appeal against that outcome and whatever order was made on that occasion. The mere possibility that he may, in the future, be ordered to serve some or all of the suspended imprisonment does not, in the particular circumstances of this case, render the sentences imposed by the magistrate excessive.
In the course of oral submissions, the appellant recast an aspect of the argument to attack the length of the operational period. That was an operational period of three years as against a potential term of imprisonment of 14 months. The length of the suspension must be seen in the context of the other sentences imposed by the magistrate and the purpose of the magistrate in approaching the sentence this way. It also has to be seen in light of the appellant’s antecedents, especially his criminal and traffic record. The magistrate, as I have observed, intended to provide a strong incentive for the appellant to not re-offend. The combination of a period of parole followed by a long suspension, while perhaps unorthodox, was apposite to achieve that goal.
There is not, in my view, a sense of disproportion between the 14 months imprisonment and the three year suspension, or between that sentence and the other sentences imposed by the magistrate on the occasion of sentence such as to indicate itself the sentence was excessive. In the circumstances I am not persuaded that the order, on its own, the 14 months imprisonment suspended for three years, was excessive.
It does remain to observe though, as I have touched upon, that if the appellant is unfortunate enough to find himself being dealt with for the breach, it will be for the judicial officer dealing with him to take into account all relevant matters, including the effect of the sentences imposed by the magistrate and the time the appellant has spent in custody, in deciding if it would be unjust to order that he serve the whole or some of the suspended imprisonment. For these reasons the appeal is dismissed.