Judge overturns sentence for e-bike thief after magistrate cited own experience
A 21-year-old thief has escaped paying $6000 compensation to his elderly victim after a judge ruled the magistrate let personal experience cloud his judgment.
A Cairns judge has overturned a magistrate’s order that an e-bike thief should repay $6000 to his 71-year-old victim and reduced his jail sentence by a month, saying the Magistrate’s “victim-centric” approach “drew too heavily” on his personal experience of having his own bike stolen.
Reginald Edward Charles Jackson, 21, was sentenced in Cairns Magistrates Court in August this year to four months imprisonment on 14 charges, including stealing a 71-year-old man’s ebike, along with bail breaches, fraud, common assault, obstructing police and possessing stolen property.
He committed the crimes over six months in Cairns, the court was told.
At his original sentencing, the magistrate ordered Jackson to pay restitution of $6000 for the stolen e-bike and imposed three months jail on the bulk of the charges, adding an extra month for theft of the e-bike.
He mentioned his own experience during the sentence, saying he had “a similar thing happen in a previous life … and it puts you in a very difficult position.”
Jackson appealed against the stealing sentence on the grounds that is was “excessive and infected by irrelevant considerations”, and the appeal was heard before Judge Dean Morzone KC this month.
The appeal was not challenged by the Queensland Police Service and the Director of Public Prosecutions, which Judge Morzone described as “proper”.
“The appellant argues that the learned magistrate lost neutrality by drawing on his personal experiences of being a victim of stealing, and thereby misdirected himself in the imposition of a cumulative sentence and compensation,” Judge Morzone’s decision said.
“His Honour regarded the theft of the electric bike from a 71-year-old victim as especially serious and explicitly adopts a ‘victim-centric view’ saying he ‘must look through the eyes of the victim’,” Judge Morzone noted in his appeal judgment.
“But in doing so, his Honour misdirected himself … by having regard to irrelevant considerations by drawing on his own experience and speculating in the absence of evidence of the impact of the offending on the complainant.”
Judge Morzone described the sentence as “excessive” and said the magistrate had also failed to take into account that Jackson “lacked any realistic capacity to meet the (restitution) order”.
“The court ought to avoid the futile exercise of making a hollow order against an impecunious offender, and in doing so, expose the offender to punitive consequences for inevitable breach,” Judge Morzone said.
He allowed the appeal and varied the sentence, removing the $6000 restitution order and making the one-month prison sentence for the stealing charge concurrent, rather than cumulative.
This had the effect of reducing the total sentence from four months imprisonment to three months.
“I am unable to discern any other basis upon which the unusual imposition of a cumulative sentence was warranted, in contrast to the other concurrent sentences,” Judge Morzone said.
During the original sentencing procedure, the prosecutor submitted that the offending demonstrated “a flagrant and persistent disregard for court orders” and submitted for a sentence of three to four months imprisonment.
His defence solicitor submitted for three months, saying Jackson had an “extremely deprived and traumatic childhood”, was homeless at the time, and had entered early guilty pleas.
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Originally published as Judge overturns sentence for e-bike thief after magistrate cited own experience
