DISTRICT COURT OF QUEENSLAND

CITATION:	Tryhorn v The Commissioner of Police [2022] QDC 194	
PARTIES:	DRUE PHILIP TRYHORN
(appellant)
v
THE COMMISSIONER OF POLICE
(respondent)	
FILE NO:	629/22	
DIVISION:	Criminal 	
PROCEEDING:	Appeal	
ORIGINATING COURT:
	Brisbane Magistrates Court	
DELIVERED ON:	26 August 2022	
DELIVERED AT:	Brisbane	
HEARING DATE:	28 July 2022	
JUDGE:	Prskalo A/DCJ	
ORDER:	Appeal allowed. 
Set aside the sentences of imprisonment of 18 months imposed at first instance and instead substitute sentences of 12 months imprisonment.
Set aside the parole release date imposed at first instance and instead substitute a parole release date of 28 July 2022.
The sentences imposed at first instance are otherwise confirmed.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant was sentenced to 18 months’ imprisonment for 13 offences with a six-month non-parole period – whether undue weight was placed on the appellant’s criminal history – where the sentence found to be manifestly excessive.	
LEGISLATION:	Justices Act 1886 (QLD), s 222
Penalties and Sentences Act 1992 (Qld), s 9	
CASES:	Director of Public Prosecutions v Ottewell [1970] AC 642
House v The King (1936) 55 CLR 499
R v KAV [2020] QCA 28
R v Mackay [2019] QCA 97
R v Nagy [2003] QCA 175
R v Vaughan [2005] QCA 348
Veen v The Queen [No 2] (1988) 164 CLR 465	
COUNSEL:	McKenzie B for the appellant
Phillips C for the respondent	
SOLICITORS:	KLM Solicitors for the appellant
Director of Public Prosecutions (QLD) for the respondent

Introduction
[1]	On 21 February 2022, the appellant was convicted by his pleas of guilty of 13 offences.  The learned Magistrate sentenced the appellant to a total period of 18 months’ imprisonment with a parole release date fixed after serving six months.  The terms of 18 months’ imprisonment were imposed on the most serious of the offences, which were two counts of enter premises and commit an indictable offence, namely stealing.  Lesser concurrent terms were imposed on the other offences.
Enter premises and steal
[2]	On 5 March 2021, the appellant and a female associate entered the car park of an apartment complex at South Brisbane.  An electronic gate was open at the time of their entry.  At approximately 1:12 pm, the appellant left the property carrying a carton of beer and his female associate left carrying an item believed to be the lid of a car battery box for a camping fridge.
[3]	On 21 May 2021, the appellant was interviewed by police.  He told police that he did not remember much as he was under the influence of drugs and alcohol.  He did however recall that he took a carton of beer from that location.
[4]	On 28 April 2021 at approximately 10:10 pm, the appellant walked past a business in the Valley Centre Plaza.  He noticed a number of Uber Eats tablets sitting on a bench. He entered the premises and stole one.  The appellant was later interviewed by police and admitted to stealing the tablet.  He told police that he was not sure what he was doing however stated that it was him. He was apologetic for taking the item, stating that he knew better.

The other offences 
[5]	For an offence of possess tainted property, the appellant was sentenced to nine months’ imprisonment.  On 21 March 2021, police found him in possession of a mountain bike which was reasonably suspected of being tainted property.  
[6]	For an offence of stealing, the appellant was sentenced to a term of one month imprisonment. On 16 May 2021, the appellant and a female associate entered First Choice Liquor at Newstead.  The appellant placed a bottle of Jack Daniels whiskey in his jacket and left without paying. During the police interview on 23 June 2021, the appellant also admitted to committing this offence.  The Jack Daniels whiskey was valued at $55.00.
[7]	For an offence of stealing, the appellant was sentenced to a term of one month imprisonment.  On 2 June 2021, he attended Coles at Alderley, placed numerous grocery items in a wheeled bag and left the store without paying. On 23 June 2021, the appellant was interviewed by police. He told them that he was intoxicated but that he wanted to clear up some stealing matters.  When questioned about this offence, the appellant admitted to stealing the groceries.  It is estimated that the value of the groceries was at least $200.00.
[8]	For an offence of stealing, the appellant was sentenced to three months’ imprisonment.  On 15 August 2021, he and a female associate entered a Woolworths store and stole groceries to the value of $375.05.
[9]	For an offence of stealing, the appellant was sentenced to two months’ imprisonment. On 23 August 2021, he stole several dry hair shampoo products and two Neutrogena products from a sales bin at the front of a Priceline store.  The dry shampoo products fell out of his bag while on the escalator, but he managed to retain the Neutrogena products, valued at $53.98.
[10]	For an offence of stealing, the appellant was sentenced to two months’ imprisonment. On 12 October 2021, the appellant stole a bottle of McGuigan red wine from Liquorland. A short time later, he was approached by police, who recovered the bottle of wine.  The appellant told police that he had a drinking problem and he had stolen the wine as he felt he needed it.  The wine was valued at $15.00.
[11]	The appellant was convicted and not further punished for an offence of unauthorised dealing with shop goods. On 30 November 2021, the appellant and a female associate entered Woolworths Macarthur Central Store.  In the cooking isle, the female selected around 14 bottles of vanilla essence and concealed them in her handbag.  They went to the drinks isle. The female selected two orange flavoured drinks and also concealed those in her handbag.  They left without paying. Police searched the female and retrieved the vanilla essence, valued at $112.00 in total.  The female told police that she had stolen the items for her and the appellant to drink, as each bottle contained approximately 1.4 standard drinks.  Both offenders were forthcoming with police, stating they were trying to resolve their substance addiction but had substituted the use of heroin for alcohol.
[12]	The appellant was also convicted and not further punished for one offence of contravene a direction or requirement, one offence of failing to take reasonable care and precautions in respect of a syringe or needle and two offences of failing to properly dispose of a needle and syringe.
Notice of appeal
[13]	The notice of appeal contains a sole ground of appeal that the sentence is manifestly excessive.  At the hearing of the appeal, leave was given to amend the notice of appeal filed on 17 March 2022 and rely on further grounds of appeal as follows:
Ground 1	The sentence imposed by the learned Magistrate was manifestly excessive in all the circumstances.
Ground 2	The learned Magistrate erred in imposing global head sentences of imprisonment that were disproportionate to the gravity of the offending.
Ground 3	The learned Magistrate erred in placing undue weight on the appellant’s prior criminal history.
Ground 4	The learned Magistrate erred in failing to give effect to section 9(2)(a)(ii) of the Penalties and Sentences Act 1992 (Qld).

The sentence proceedings
[14]	Before the learned sentencing Magistrate, the police prosecutor contended for a total period of imprisonment of between 12 to 18 months and indicated that a sentence of 15 months’ imprisonment would be appropriate in the circumstances.  The appellant’s lawyer submitted that the sentence should be between nine and 12 months’ imprisonment with an immediate release on parole. The learned sentencing Magistrate was not provided with comparative cases.
The appellant’s submissions
[15]	On the hearing of the appeal, the appellant’s counsel did not dispute that a sentence of imprisonment was within the appropriate exercise of the sentencing discretion and further did not point to circumstances which justified looking behind the concession that was made in the Magistrates Court.  It was argued however that the period of 18 months’ imprisonment attached to the two counts of entering premises and committing an indicatable offence, combined with the custodial requirement, rendered the sentence manifestly excessive.
[16]	On the hearing of the appeal, the appellant’s counsel conceded that the complaint in ground 3 did not amount to a specific error.   It was argued however that the learned Magistrate placed undue weight on the appellant’s criminal history, resulting in a total period of imprisonment that was disproportionate to the gravity of the offending. In that way, the complaint in ground 3 was an aspect of the complaint in ground 2.  Relying on Veen v The Queen [No 2] (1988) 164 CLR 465, the appellant’s counsel argued that, whilst the antecedent criminal history of an offender was a relevant factor to be taken into account, it was not to be given so much weight as to lead to the imposition of a penalty disproportionate to the gravity of the offence.  
[17]	The offending is at the lower end of the scale of seriousness for offences of this kind. It was submitted that the learned Magistrate’s assessment of the criminality of the offending was overborne by the appellant’s prior convictions and resulted in the learned Magistrate imposing a penalty which was disproportionate to the gravity of the offences.
[18]	Relevant to ground 4, section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) provides that a sentence of imprisonment ought only to be imposed as a last resort and a sentence which allows the offender to remain in the community is preferable.  The appellant’s lawyer in the Magistrates Court directed the Magistrate’s attention towards the application of section 9(2)(a) of the Penalties and Sentences Act 1992 (QLD), specifically submitting that the court should take into account the nature and seriousness of the offences and the principle that a term of imprisonment is a sentence of last resort.  On the appeal, it was argued that, whilst the learned Magistrate stated there was no reasonable alternative to a term of imprisonment, it could not be inferred that the learned Magistrate applied the second limb of the principle, namely that a sentence of imprisonment which allows the offender to stay in the community is preferable.  The learned Magistrate did not accept the submission that a head sentence of imprisonment with lengthy supervision on parole met the relevant sentencing objectives. In this way, it was argued, the learned Magistrate fell into error.
The respondent’s submissions
[19]	The respondent submitted that, having regard to the aggravating and mitigating features and the relevant provisions of the Penalties and Sentences Act 1992 (QLD), the sentence cannot be shown to be unreasonable or plainly unjust such as to warrant intervention.  The appellant was not a youthful first-time offender.  He was 38 years of age at the time of the offending and 39 years of age at the time of the sentence on 21 February 2022.  The appellant entered a timely plea of guilty to the 13 charges.  The appellant suffers from mental health issues and attention deficit hyperactivity disorder.  The appellant had a relevant criminal history which contained 39 prior court entries from the Magistrates and District Court.  The appellant had been subject to an array of orders in the past including periods of imprisonment where he spent time in actual custody for like offending.  The appellant’s offending continued undeterred despite past court orders aimed at rehabilitation. The appellant was on bail at the time of committing some of the offences. He had just completed the suspended sentence imposed in the Brisbane Magistrates Court on 15 February 2020 some 19 days prior to committing the first offence on 5 March 2021.
[20]	Section 9(10) of the Penalties and Sentences Act 1992 (Qld) specifies when a court must treat a previous conviction as an aggravating factor.  The provisions of section 9(10) and (11) of the Penalties and Sentences Act 1992 (Qld) are clearly reflected in the common law as it stood and was proclaimed in Veen v The Queen [No. 2] (1988) 164 CLR 465:
“… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell (35). The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.”
[21]	The appellant had 78 dishonesty offences on his criminal history.  Particularly relevant were nine previous entries for enter premises and commit indictable offence and 23 entries for stealing.  He had been sentenced to periods of imprisonment and served actual time in custody for like offences.  
[22]	The appellant’s criminal history shows little or no reason for concluding that extending leniency to him would promote efforts at self-improvement or assist in breaking his pattern of stealing and committing dishonesty offences.  
[23]	The learned sentencing Magistrate adopted the approach endorsed by the Court of Appeal in R v Nagy [2003] QCA 175 and imposed the substantive sentences in relation to the two most serious offences of enter premises and commit indictable offence, which reflected the totality of the offending. 
[24]	The respondent does not accept that the Magistrate failed to properly have regard to the principles set out in section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) or that his Honour failed to consider the full range of available sentencing options.  
[25]	The respondent cited R v KAV [2020] QCA 28 at [35] in which the Court of Appeal held:
“… there is no basis to conclude that the failure of the sentencing Judge to specifically refer to a sentence of imprisonment as a sentence of last resort constituted an error in the sentencing discretion.”
[26]	The respondent also cited R v Mackay [2019] QCA 97 at [25] where the Court of Appeal found that:
“… once it was conceded that a head sentence of two years’ imprisonment was not beyond the scope of appropriate sentencing discretion, the contention had to be that it was simply not open to the learned sentencing judge to impose a period of actual custody.  That proposition need only be stated to be seen to be wrong.”
[27]	The respondent ultimately submitted that the sentence fell within the sound exercise of the sentencing discretion having regard to the circumstances of the offences and the appellant’s antecedents.  
[28]	Given all the circumstances, it cannot be said that the learned Magistrate did not have sufficient regard to section 9(2)(a)(i) of the Penalties and Sentences Act 1992 (QLD) or to have placed undue weight on the appellant’s criminal history.  It is not evident from the sentencing remarks that the learned Magistrate placed too much weight on the appellant’s criminal history.  It is evident that the learned Magistrate had sufficient regard to all relevant sentencing principles when imposing sentence.
[29]	On the hearing of the appeal, the respondent’s counsel referred to R v Vaughan [2005] QCA 348 at [16] where Keane JA observed that there was little difference between breaking into a dwelling house and a business premises which had closed for the evening, because in either case there is always the possibility that there may still be other persons present.  
The appeal
[30]	The appeal is brought under section 222 of the Justices Act 1886 (QLD).  Section 222(2)(c) provides:
“(c)	if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.”
[31]	An appeal against sentence is an appeal against an exercise of discretion such that error of the kind identified in House v The King (1936) 55 CLR 499 must be established.
[32]	The error contended for in ground 1 is of the second kind stated by the High Court in House v The King – that the sentence imposed is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure to properly exercise the discretion at first instance.
[33]	Absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence. A conclusion to that effect will not be made simply because the appellate court, if in the position of the primary judge, would have imposed a different sentence.
Discussion 
[34]	The appellant has a criminal history spanning just over 20 years, largely for property and drug offences. He has previously been sentenced to terms of actual imprisonment. In the sentence proceedings below, the appellant was not to be sentenced for those earlier offences.  The antecedent criminal history was a relevant aggravating factor.
[35]	Over a nine month period, the appellant stole property, principally targeting groceries, personal care products, wine, beer, whiskey and vanilla essence (in lieu of proper alcohol).  On two occasions he entered premises and respectively stole a carton of beer and an Uber Eats electronic device. Neither event involved breaking into closed premises and both were opportunistic thefts. 
[36]	The primary offending is most accurately characterised as petty thieving. Stated thus, the sentences of 18 months’ imprisonment combined with a non-parole period of six months were manifestly excessive, even allowing for the aggravating feature of the appellant’s criminal history.  
[37]	There was, as the learned sentencing Magistrate correctly observed, little to commend the appellant to the court.  Nevertheless, the appellant was to be sentenced for offences largely involving the petty theft of alcohol and food. It may well be, as argued in ground 2, that the learned sentencing Magistrate’s assessment of the appellant’s criminality was simply overborne by the criminal history.
[38]	Whatever transpired, the result is unreasonable and plainly unjust. I have found that the sentences were manifestly excessive and thus it is not necessary to deal with the remaining grounds of appeal.  
Disposition
[39]	At the hearing of the appeal, I ordered that the appeal be allowed; that the sentences of 18 months’ imprisonment be set aside and instead sentences of 12 months’ imprisonment be substituted; the parole release date of 20 August 2022 be set aside, and a parole release date be set as at the date of hearing, namely 28 July 2022; and that the sentences otherwise imposed in the first instance be affirmed.