Magistrate’s sentence for e-bike thief overturned for taking ‘victim centric view’
A Cairns magistrate’s decision to order a methamphetamine addict to pay $6000 for stealing an e-bike has backfired in the appeal court.
A north Queensland magistrate’s decision has been successfully appealed after adopting a “victim centric view” and considering his own experience of crime in ordering an ebike thief to repay the 71-year-old owner.
Reginald Edward Charles Jackson, a methamphetamine addict who had endured “a profoundly deprived and traumatic childhood”, was sentenced in August to three months jail for common assault, fraud – dishonest application of property of another, possession of a knife in a public place or school, breach of bail condition, obstructed police officer and possessing of suspected stolen property.
The Cairns magistrate, who was not named in the appeal decision, added another month on, to be served cumulatively, for Jackson’s theft of an ebike. He also ordered the 21-year-old to pay the victim $6000 – the nominal value of the bike, which in turn had been stolen from Jackson, the court heard.
“I must look through the eyes of the victim – take a victim centric view and look at what the effect on the victim is,” the magistrate said at the time of sentence.
“He has been deprived of something that he used his hard-earned cash and resources (for).”
The magistrate then personally empathised with the complainant, drawing on his own experience as a victim of a stolen bike.
“I can indicate before I came to this job, in a previous life, my previous occupation when I was in Sydney, I had a similar thing happen to me with an electric bike, and it puts you in a very difficult position,” he said.
The final result was a four month jail term, with release after about two months, and a $6000 restitution order.
Barrister Gavin Reece, instructed by the Aboriginal and Torres Strait Islander Legal Service, appealed the sentence for stealing on the basis it was excessive and infected by irrelevant considerations.
The appeal was conceded by the Office of the Director of Public Prosecutions which accepted that the magistrate erred by failing to properly consider Jackson’s financial capacity to repay the victim.
The District Court’s Judge Dean Morzone found the sentence was excessive saying the magistrate explicitly adopted a “victim-centric view” when it came to the theft.
“In doing so, his Honour misdirected himself in the exercise of the sentencing discretion 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 said.
“I am unable to discern any other basis upon which the unusual imposition of a cumulative sentence was warranted.”
He also found the order to pay $6000 to the victim was excessive given Jackson lacked any “realistic capacity to meet the order for restitution in terms of both quantum and time to pay.”
He allowed the appeal and set aside the restitution order and the cumulative one month sentence.
Jackson, who had pleaded guilty at the earliest opportunity, was resentenced to three months for stealing to be served concurrently with the other sentences.
