DISTRICT COURT OF QUEENSLAND

CITATION:	McClintock v Commissioner of Police [2020] QDC 147	
PARTIES:	Marc Christian McClintock 
(Appellant)
v
Commissioner of Police
(Respondent)	
FILE NO:	306 of 2020	
DIVISION:	Appellate   	
PROCEEDING:	Appeal 	
ORIGINATING COURT:	Magistrates Court at Maroochydore 	
DELIVERED ON:	12 June 2020 	
DELIVERED AT:	Brisbane	
HEARING DATE:	15 June 2020	
JUDGE:	Reid DCJ	
ORDER:	1.	Appeal allowed.
2.	The head sentence for each of the fraud offences be reduced to 12 months imprisonment, to be served concurrently with one another but cumulative on those sentences imposed on the 16th of November 2018.
3.	Set a parole eligibility date of the 15th of June 2020.
4.	Appellant to report.	
CATCHWORDS:	MAGISTRATES - APPEAL AND REVIEW- appeal brought pursuant to s 222 of the Justices Act 1886 (Qld) -  where appellant appeals against the sentence imposed by the learned Magistrates – where the appellant was sentenced to 28 months imprisonment for each of two counts of fraud and a parole eligibility of 8th September 2020 was set – where this sentence was made cumulative on an earlier sentence of two and a half years imprisonment made on the 16th November 2018 – where the appellant spent from 21st of December 2018 up to his sentence in imprisonment - where the defendant has a personality disorder involving antisocial elements and a number of other mental health issues and intellectual impairments – whether the learned Magistrate placed sufficient weight into these issues when sentencing the appellant -  whether the appeal should be allowed 
Justices Act 1886 (Qld) s 222
R v Guode [2020] HCA 8
R v Macklin [2016] QCA 244
R v Verdins (2007) 16 VR 269 
R v Yarwood [2011] QCA 367

COUNSEL:

	J. Feely for Appellant  
T. Little for Respondent  	
SOLICITORS:	A W Bale & Son Solicitors for the Appellant   
The Office of Director of Public Prosecutions for Respondent  
	
Introduction 
[1]	The appellant appeals against the sentence imposed by the Magistrates Court at Maroochydore on the 31st of October 2019.  An appeal against his conviction was discontinued.  He was sentenced to 28 months imprisonment for each of the two charges of fraud.  A parole eligibility date of the 8th of September 2020, some 10 months, eight days after sentence, was set.  That sentence was made cumulative on an earlier sentence of two and a half years imprisonment imposed on the 16th of November 2018, for each of three fraud offences.  Two hundred and forty-nine days of pre-sentence custody was at that time declared as time served, and an immediate parole release date was set.
Background 
[2]	Consequently, the appellant was released on the 16th of November 2018.  He committed the subject offences between the 27th of November and the 21st of December 2018, so within about five weeks of his release.  
[3]	The overall effect of his sentences, including the pre-sentence custody up to the time of his sentence for the subject offence, was thus: 
(i)	pre-sentence custody of 249 days, a little over eight months, from about the 10th of March 2018 to the 16th of November 2018;  
(ii)	he was in the community for a period of about five weeks from the 16th of November to the 21st of December 2018; and
(iii)	he was returned to custody when parole was cancelled from the 21st of December 2018 to the 31st of October 2019, a period of a little over 10 months.
[4]	Thus, from the 10th of March 2018 the appellant was in custody up to the day of sentence on the 31st of October 2019, except for that five-week period when he was in the community, a total period of about 19 months.  
[5]	The effect of his Honour's sentence that is the subject of the appeal was that he would not be eligible for parole until the 8th of September 2020.  Consequently, he would have been in prison for all but five weeks of the period from the 10th of March 2018 to the 8th of September 2020, i.e. is a period of about two years, four and a half months in actual imprisonment. Furthermore, the full-time discharge date of his October 2019 sentence would be the 22nd of January 2023, almost five years after his incarceration in May 2018.
[6]	Of that four years, 10 and a half months, he will have served at least two years, four and a half months, plus, of course, any time that he might serve after the 8th of September awaiting parole.  
[7]	What has the defendant done to deserve such treatment?  
[8]	The first point to note is that there has been no actual violence in respect of any of his offences.  The offending in March 2018 involved three fraud offences.  It involved him defrauding a motor vehicle sales outlet in the amount of $50,000.  The two other offences involved him engaging escorts and fraudulently evading paying them a significant pre-arranged fee.  He was, as I have said, sentenced to a head sentence of two and a half years in relation to those three matters.
[9]	This sentence was given in circumstances where, in August 2015, he had committed four fraud offences and one attempted fraud.  Those offences involved a fraud of $18,360 of a commercial retail outlet.  The balance, I understand, involved similar fraudulent activity in relation to escort services.  He had on that occasion been sentenced to two years imprisonment with parole release after a bit more than six months, being four months plus 72 days of pre-sentence custody.  
[10]	The subject offending involved him engaging an escort for a night for an agreed fee of $7,000.  He tricked her into engaging with him on that night and did not pay her.  I should add that he also told her he had previously been in jail for murder.  Whilst this was false, it might well have intimidated the complainant.  Whether it was designed with that in mind is uncertain.
[11]	The second offence involved him agreeing to engage another escort for a weekend for a pre-arranged fee of $16,000. They met, but nothing further eventuated as he was arrested by police at the venue where they had met.  
[12]	For those matters, he was, as I have said, sentenced to two years and four months cumulative on the earlier two-and-a-half-year sentence. A parole eligibility date of 8th of September 2020, over 10 months after the date of sentence, was set. 
[13]	In order to consider the appropriateness of that sentence, it is necessary to understand something of the appellant's personal circumstances.  This had earlier been considered by Judge Robertson when sentencing the appellant to 18 months with immediate parole release for four fraud offences, one attempted fraud and one breach offence of a probation order in June 2008.  His Honour's remarks were extensively referred to by the learned Magistrate when imposing the sentence in this case.
[14]	Again, some of those earlier offences concerned fraudulent activity towards escorts.  It seems from the learned Magistrate's remarks in this case that the Magistrate accepted that the appellant suffers from: 
(i)	a personality disorder involving antisocial elements; 
(ii)	borderline intellectual function;  
(iii)	Asperger's syndrome; 
(iv)	limited insight into his offending; and
(v)	an egocentric personality.  
[15]	Ultimately, the learned Magistrate accepted, as did Judge Robertson, that this is a case where, as a consequence of his conditions, the appellant's criminality was reduced.  The Magistrate also said that the appellant had "experienced substantial trauma" whilst in prison, and was told that he had in fact been raped.  It is not clear, how the learned Magistrate's acceptance of those matters was reflected in the sentence that was imposed.
[16]	The learned Magistrate referred to the appellant's overall history of offending, to which I have referred. He spoke of the deterring aspects of sentence, but that aspect of sentencing has, of course, limited relevance in cases of mental disorder, especially of a disorder associated with borderline intellect and limitation of insight.  See R v Yarwood, especially at paragraphs 32 to 34.  
[17]	In his remarks, the Magistrate considered the effect of the appellant's plea being a late one entered on the morning of trial. His Honour indicated in his sentencing remarks, that if he had entered a plea in July 2019, when the matter was before the court but adjourned to enable a trial:
“You would have got an eligibility date on that date, perhaps.”
[18]	The consequence of such an order in July 2019 would have been a sentence of two years, four months (I assume, as later occurred), but with an immediate parole eligibility date.  The full-time discharge would be the same, but eligibility would have been delayed from July 2019 till the 8th of September 2020, meaning he would have served 14 months of actual imprisonment more than if he had been sentenced before parole eligibility arose.  The Crown informed me that where no earlier eligibility date had been prescribed, the legislation means that a parole eligibility date of December 2020, only some three months beyond the date set by the learned Magistrate, would have arisen.
[19]	The consequences of the appellant seeking a trial and then in fact pleading guilty on the morning of the trial, can thus be seen to have extended the parole eligibility date from July 2019 to September 2020, and that date is, as I have said, only three months earlier than the legislation would have allowed after conviction at a trial (assuming the same head sentence). The question then arises whether such a sentence of 28 months, where a late plea has been entered, was appropriate. The reference suggests to me that the comment in his Honour’s sentencing remarks that he had taken into account the plea of guilty, and recognised the assistance to the administration of justice by such a plea, was little more than a hollow assertion, since, even without the Magistrate's order, the legislation would have allowed a parole eligibility date of December 2020.
[20]	In my view, the learned Magistrate, whilst indicating he took into account the plea of guilty, has in fact done so only in a very minor and insufficient way.  
[21]	His Honour also paid, in my assessment, lip service to the notion that the appellant's intellectual and psychiatric or psychological difficulties reduced the impact of his criminality.  Having referred to the substantial trauma the appellant suffered whilst in prison, to his personality disorder, borderline intellectual functioning, Asperger’s syndrome and lack of insight into his crime, and the reducing effect of these on his criminality, the learned Magistrate said, however, that the appellant was "a significant risk of reoffending", and that:
“The only thing I can do today is to impose another term of imprisonment.”
[22]	The learned Magistrate remarked that the:
“…effect of the order that I make today requires me to consider whether I suspend the term of imprisonment or impose another term of imprisonment, which requires me then to consider an eligibility date.”
[23]	He appears to have ignored the possibility of a parole release date being set, since this was not a schedule 1 offence. In any case, the Magistrate considered, with some justification, that the appellant was someone in need of supervision.  He said:
“The law says that it is normally the case that if people keep doing the same thing, it is proper sentencing process to increase the penalties, because sentences are about deterring people.”
[24]	The learned Magistrate continued: 
“it says that I have to consider deterring you.  Personal deterrence of you is an important consideration … general deterrence is also important.”
[25]	Whilst the learned Magistrate then did refer to the fact that:
“Your case is not the best for general deterrence because you have significant mental health issues … I'm still required to take that into account.”
[26]	He referred to the appellant's offending and earlier offending as "like for like offending", despite the more significant frauds in those two earlier sentences in 2015 and 2018, being the $18,360, and the $50,000 frauds on commercial outlets, and said there were similar offences before him.  
[27]	He then determined it was appropriate to impose a cumulative sentence.  His Honour said he started with a three-year sentence "as appropriate" and reduced that by eight months, apparently on the basis of "the overall aspect of what I am doing", and the "delayed plea".  That is for the issues of totality and the plea date but not appropriate consideration for his intellectual and psychological difficulties. As I have said, in relation to that, the learned Magistrate indicated that:
“If you had pleaded guilty back in July (2019) without any witnesses here, you would have got an eligibility date on that day, perhaps, or even by now.”
[28]	Finally, I note that he said in relation to the plea he said: 
“I will try to give you as much benefit as I can today.”
Consideration 
[29]	I accept the submissions of the appellant's counsel:  
1.	That the learned Magistrate does not appear to have had regard, or sufficient regard, to the fact the appellant had spent from the 21st of December 2018 up to sentence, in imprisonment.  Although such time of 10 months and 10 days up to sentence was not declarable, it is to be taken into account (see, for example, observations of McMurdo P on the totality principle in R v Macklin at paragraph 32);  
2.	The learned Magistrate placed insufficient weight on the appellant's mental health and intellectual impairment.  Those principles have been reaffirmed by the High Court decision in R v Guode, and see R v Verdins, and R v Yarwood (supra) at paragraphs 32 to 34.
[30]	In my view, it is clear the appellant's moral culpability for the offending is significantly reduced by his mental illness.  That illness too meant his time in custody was especially difficult, a fact accepted by the Magistrate who referred to his significant abuse whilst in prison.  In my view, the sentence imposed suggests the Magistrate paid only lip service to those matters. The learned Magistrate also appears to have misunderstood the seriousness of the offending and the nature of the fraud.  He said he took into account the loss caused to the complainant and the fact that;
“They had performed services for you.”
[31]	In fact, escort services were supplied only by the first complainant, but the second did nothing more than meet the appellant before he was arrested. Neither complainant actually lost money directly; rather, they suffered the loss of their bargain, and the circumstances of the fraud of the first complainant include the aggravating circumstances of his implied threat that I earlier referred to. The Magistrate's reference to increasing penalties for "like for like offending" each time, if it be otherwise correct in relation to a defendant who suffers mental and psychological problems, in any case misunderstands the fact that the offending in 2015 and 2018 also involved significant financial fraud on retail outlets.
[32]	Quite apart from those identifiable errors, in my view, the sentence imposed was, in any case, manifestly excessive.
Conclusion 
[33]	I accept the submission of counsel for the appellant that an appropriate sentence in this case is one of 12 months imprisonment on each offence, to be served concurrently on one another but cumulative on the sentence imposed on the 16th of November 2018.  I will set an immediate parole eligibility date.  
[34]	I therefore allow the appeal in relation to sentence:  
1.	By varying the sentence imposed so that the head sentence for each of the fraud offences be reduced to 12 months imprisonment to be served concurrently to one another but cumulative on those sentences imposed on the 16th of November 2018; and 
2.	I set a parole eligibility date of the 15th of June 2020. i.e. immediate parole release.
[35]	I also order that the appellant report to a Probation & Parole office within 48 hours of his release from prison.