A judge has found that a magistrate placed an “unambiguously excessive and disproportionate” emphasis on the 19-year criminal history of a woman when jailing her for six months for breaking a single pane of glass.
Brisbane District Court Judge Brad Farr granted an appeal and ordered the immediate release of Lynette Michelle West, who spent 36 days in custody after pleading guilty to one count of wilful damage.
A Redcliffe magistrate sentenced West, 44, to six-months’ jail, with release on parole after serving two months in custody, for an act of wilfully damaging a neighbour’s glass widow during a $30 debt dispute on 22 May 2022.
West appealed the matter under section 222 of the Justices Act 1886 (Qld) on the grounds the sentence was manifestly excessive.
She also argued the presiding magistrate placed undue weight on her criminal history, resulting in a sentence that was disproportionate to the gravity of the offence.
In sentencing West, the magistrate noted her criminal history dated back about 19 years and contained an estimated 50 offences, primarily comprising dishonesty, property, drug-related and bail breach offences.
Judge Farr noted West had been the beneficiary of a variety of sentencing options over the past two decades, including fines, an intensive correction order (a period of imprisonment served within the community) and two prison terms with immediate parole release dates.
Judge Farr, in a decision published yesterday, allowed West’s appeal saying: “It would appear that the decision to impose such a heavy sentence was heavily influenced by the (West’s) criminal history.
“(West’s) principal argument is that the learned magistrate placed too much weight on her criminal history resulting in an excessive sentence.
“It is a well-established principle of sentencing that an offender’s criminal history cannot be given so much weight that a penalty imposed is disproportionate to the offence itself.
“A sentence of six months’ imprisonment requiring two months to be served for the breaking of a single pane of glass is demonstrably, strikingly and unambiguously excessive and disproportionate to the offence itself.
”It follows that I accept that the learned magistrate erred in the sentencing discretion and that the sentence ought be set aside and the appellant sentenced afresh.”
Judge Farr, who released West during an ex-tempore decision on 27 July, substituted the six-month term with one of two months’ jail immediately suspended having already served 36 days in post-sentence custody.
Before adjourning the appeal, Judge Farr did warn West she had the balance of the suspended sentence – three weeks – “hanging over her head” should she offend within a two-month period.
Read the appeal decision.
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