Chakka v Queensland Police Service [2024] QCA 213

SUPREME COURT OF QUEENSLAND CITATION: Chakka v Queensland Police Service [2024] QCA 213 PARTIES: CHAKKA, Satish Kumar (applicant) v QUEENSLAND POLICE SERVICE (respondent) FILE NOS: CA No 115 of 2023 DC No 547 of 2023 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Criminal) ORIGINATING COURT: District Court at Brisbane – Unreported, 15 June 2023 (Rafter SC DCJ) DELIVERED ON: 8 November 2024 DELIVERED AT: Brisbane HEARING DATE: 13 March 2024 JUDGES: Mullins P and Bond JA and Brown J ORDER: Leave to appeal is refused. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where the applicant pleaded guilty to one charge of unlawful stalking in the Magistrates Court – where the magistrate fined the applicant $1,800, imposed a restraining order and recorded a conviction – where the applicant sought to appeal the decision of the magistrate pursuant to ss 222(2)(c) and 224(1)(a) of the Justices Act 1886 (Qld) – where the applicant sought to argue in the District Court that the magistrate erred by recording a conviction – where the application for an extension of time to appeal to the District Court was refused by the primary judge because his Honour determined that the magistrate did not err in the exercise of his discretion to record a conviction – where the applicant seeks leave to appeal the primary judge’s decision pursuant to s 118 of the District Court of Queensland Act 1967 (Qld) – whether the applicant can now raise errors in relation to the magistrate’s sentencing discretion in the Court of Appeal when those errors were not raised in the District Court proceedings below – whether s 222(2)(c) of the Justices Act 1886 (Qld) permits the applicant to raise specific errors of discretion, as opposed to the applicant contending that the sentence was excessive or inadequate – whether the primary -- 1 of 25 -- 2 judge was in error by failing to identify any of the specific errors of discretion now raised by the applicant – whether the primary judge was in error by failing to find that the sentence imposed by the magistrate was excessive Criminal Code (Qld), s 668E Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), s 5 District Court of Queensland Act 1967 (Qld), s 118 Justices Act 1886 (Qld), s 222, s 223, s 224, s 228 Migration Act 1958 (Cth), s 501 Penalties and Sentences Act 1992 (Qld), s 12 Commissioner of Police v Punchard [2021] QCA 166, distinguished Forrest v Commissioner of Police [2017] QCA 132, distinguished House v The King (1936) 55 CLR 499; [1936] HCA 40, considered Long v Spivey [2004] QCA 118, considered McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, cited R v Ali [2023] QCA 207, cited R v Briese; Ex parte Attorney General [1998] 1 Qd R 487; [1997] QCA 10, considered R v Brown, ex parte Attorney-General [1994] 2 Qd R 182; [1993] QCA 271, cited R v Cay, Gersch and Schell; ex parte Attorney-General (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, cited R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited R v ZB (2021) 287 A Crim R 519; [2021] QCA 9, considered Rongo v Commissioner of Police [2017] QDC 258, considered Skinner v The King (1913) 16 CLR 336; [1913] HCA 32, cited Smith v Ash [2011] 2 Qd R 175; [2010] QCA 112, distinguished Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84, distinguished COUNSEL: C J Tessmann for the applicant M A Gawrych for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent [1] MULLINS P: I agree with Brown J. [2] BOND JA: I have had the advantage of reading in draft the judgment of Brown J. Her Honour’s reasons for judgment mean that I can express in a relatively summary way my reasons for agreeing with the orders which her Honour proposes. -- 2 of 25 -- 3 [3] The right to appeal to the District Court in the present case was conferred by s 222(1) of the Justices Act 1886. The appeal was to be conducted in the way specified by s 223(1) of that Act. Further, the appeal was subject to the constraint stated in s 222(2)(c) of that Act. [4] Accordingly, the appeal was to be by way of “rehearing” and “… on the sole ground that the [sentence imposed] was excessive”. Both of these aspects of the statutory right of appeal are important. [5] The meaning of “rehearing” has been explained by the High Court in the cases conveniently identified and summarised in Wang v Hur [2024] QCA 126 at [23] – [24]. The use of the term reveals the statutory intention that the appellant must establish that the order that is the subject of appeal was the result of some legal, factual or discretionary error. In the present case the appeal was from the exercise of a sentencing discretion. Accordingly, on an appeal by way of rehearing the appellant must establish discretionary error in in the sense explained in House v The King (1936) 55 CLR 499. [6] As Brown J has noted, Commissioner of Police v Punchard [2021] QCA 166 expressed approval of reasons of a primary judge which considered that an appellant to the District Court under the provisions under consideration must demonstrate error in the House v The King sense. That approach should be followed unless this Court is persuaded to the necessary high degree that its earlier decision was wrong: see Lynch v Commissioner of Police (2022) 11 QR 609; [2022] QCA 166 at [69] – [70] and Madden v Commissioner of Police (2023) 14 QR 1; [2023] QCA 31 at [26]. I am not so persuaded. To the contrary, that conclusion seems to me to flow from the fact that the appeal is to be by way of rehearing and the appeal is from the exercise of a sentencing discretion. [7] The language in which the s 222(2)(c) constraint is expressed does not suggest any different approach. Nor does the history of the introduction of the provision, as Brown J has demonstrated. An argument could faintly be advanced that the language of the constraint specified in s 222(2)(c) was intended to limit the type of discretionary error to the final type of error discussed in House v The King, namely where the outcome was unreasonable or plainly unjust such that error could be inferred even though no specific error could be identified. But such an interpretation would be irrational. If inferred error is a ground of appeal, then obviously specific error must be. [8] The result is that on the proper construction of the provisions presently under consideration, the applicant was required to persuade the primary judge that the sentencing discretion of the Magistrates Court miscarried, and the primary judge should re-exercise the discretion so as to get a lesser outcome. The “sole ground” provision did not operate to constrain the applicant as to the means by which he could establish the existence of discretionary error. [9] The application to the Court of Appeal from the District Court is an application subject to the requirement to obtain the leave of this Court and in the context where there has already been an appeal. The considerations examined by this Court in McDonald v Queensland Police Service [2018] 2 Qd R 612, and restated in a number of cases since, apply, namely: -- 3 of 25 -- 4 (a) The discretion whether to grant leave to appeal is unfettered, and exercisable according to the nature of the case, but leave to appeal will not be granted lightly, given that the applicant has already had the benefit of two judicial hearings. (b) It will usually be necessary – but not sufficient – that the Court be persuaded that there is a reasonable argument that there is an error to be corrected, which, if corrected would justify the applicant’s claim for relief. (c) Tests which provide useful guidance as to the nature of the additional consideration over and above the existence of a reasonable argument that there is an error to be corrected include: (i) that leave is necessary to correct a substantial injustice; (ii) that the proposed appeal raises an important point of law or principle; and (iii) that the prospect appeal raises a question of general or public importance. [10] The primary judge correctly treated the appeal before him as one by way of rehearing. The notice of appeal to the primary judge was drawn by the present applicant personally and was not clearly expressed. The primary judge obviously thought that there was no argument before him of specific error and that the argument was limited to seeking to demonstrate that the decision was manifestly excessive. His Honour carried out a real review of the evidence in order to address that ground and was not so persuaded. [11] The applicant’s argument before this Court does not identify an important point of law or principle or a question of general or public importance. Reduced to its essence, the applicant’s case before this Court is that it was an error giving rise to a substantial injustice that the primary judge failed, on his own initiative, to re-formulate the appeal grounds to advance a ground of specific error, then failed to become persuaded of the error so reformulated, then failed to re-exercise the sentencing discretion so as not to record a conviction. The circumstances of the present case do not warrant that conclusion. [12] Accordingly, I agree with Brown J that leave to appeal should be refused. [13] BROWN J: The applicant, Mr Chakka, applies for leave to appeal from the decision of Judge Rafter SC DCJ, following an appeal to the District Court by Mr Chakka from a sentence imposed in Magistrates Court proceedings. [14] On 1 December 2021, Mr Chakka pleaded guilty to one charge of unlawful stalking. The Magistrate recorded a conviction, fined him $1,800 and made a restraining order. [15] On 7 March 2023, the applicant filed an application for an extension of time for filing of an appeal in the District Court to appeal the decision of the Magistrate pursuant to ss 222(2)(c) and 224(1)(a) of the Justices Act 1886 (Qld) (Justices Act). The complaint which was the basis of the applicant’s appeal was that the Magistrate had erred in recording a conviction. The sentence was not otherwise the subject of challenge. The application for an extension of time was refused by Judge Rafter on the basis that his Honour did not consider the appeal had any prospects of success as he determined that the Magistrate did not err in the exercise of his discretion to record a conviction and therefore granting the extension of time lacked utility. -- 4 of 25 -- 5 [16] Leave to appeal pursuant to s 118 of the District Court of Queensland Act 1967 (Qld) is required to be granted by this Court. While the question of leave is a matter within the unfettered discretion of this Court, it is not given lightly in circumstances where two hearings have already occurred. In order to obtain leave the applicant typically needs to show a reasonable argument that there is an error to be corrected and that it is necessary to correct a substantial injustice to the applicant, it involves an important question of law or a question of public importance is raised.1 If leave is granted, it is an appeal stricto sensu, where the sole duty of the Court is to determine whether error has been shown on the part of the court below.2 Grounds of appeal [17] In his proposed grounds of appeal, the applicant seeks to contend that Judge Rafter erred in failing to find that the sentencing Magistrate: (a) erred by taking into account that the Government department dealing with immigration matters would not have full information about the offence unless a conviction was recorded; (b) erred by treating the view that the offence ought to come to the attention of the Government department dealing with immigration matters as a matter weighing in favour of the recording of a conviction; and (c) failed to take into account relevant considerations in determining whether to record a conviction, namely the applicant’s age and/or impact the conviction will have on the applicant’s economic or social well-being and chances of finding employment. [18] None of these specific errors was raised in the court below. There is an issue as to whether they can be raised now. Seeking to raise specific errors of discretion alone, as opposed to merely contending the sentence is excessive, also raises for consideration by this Court the nature of an appeal brought pursuant to s 222(2)(c) of the Justices Act. [19] The applicant now has the benefit of legal representatives who seek to apply for further evidence to be adduced as to the effect of the recording of a conviction on the applicant being able to work as an accountant and the reasons for his failing to appeal the Magistrate’s decision within the prescribed timeframe. That fails to appreciate that the present appeal, if leave is granted, is a strict appeal. The applicant unfortunately did not seek to adduce any further evidence in his application to the District Court, despite invitations to do so by Judge Rafter. Decision of the sentencing Magistrate [20] The factual basis of the sentence was not the subject of contest before the Magistrate. The circumstances of the offending were that the applicant had rented a room in the complainant’s dwelling. On 31 October 2020 and in early November 2020, the 1 McDonald v Queensland Police Service [2018] 2 Qd R 612 at 621 [27] and 625-6 [39] per Bowskill J (with whom Fraser and Philippides JJA agreed); Ross v Commissioner of Police [2019] QCA 96 at [11] per Wilson J (with whom Gotterson and McMurdo JJA agreed); Robertson v Robertson [2024] QCA 92. 2 Fox v Percy (2003) 214 CLR 118 at 129 [32] per Gleeson CJ, Gummow and Kirby JJ; Bowskill J summarised the relevant principles in McDonald v Queensland Police Service [2018] 2 Qd R 612 at 625-6 [39]. -- 5 of 25 -- 6 applicant sent the complainant strange text messages. He then left the residence and collected his bond money and asked the complainant if she would marry him. The following events that occurred subsequently included that: (a) the complainant saw the applicant’s vehicle out the front of her house. In December 2020 and January 2021, she saw his vehicle on multiple occasions on the street of her workplace. On one occasion, she approached and questioned him as to why he was there, to which he stated he was waiting for a friend. On 20 January 2021, the complainant reported the applicant to the police; (b) the police approached the applicant in January 2021 and spoke to him about his behaviour and told him that his conduct amounted to unlawful stalking. He told the police he loved the complainant and was ready to marry her if she changed her mind; (c) despite the warning by police, the applicant continued with his behaviour. He obtained personalised number plates for his vehicle which contained a representation of the complainant’s surname and on multiple occasions in August 2021 the complainant observed the applicant driving his car with the number plates bearing her name; (d) on 27 August 2021, the complainant confronted the applicant and asked what he wanted from her, to which he responded “I just want to be with you”; and (e) in October 2021, the police located the applicant, and he was arrested. [21] The complainant was said to have suffered anxiety from the applicant’s stalking conduct. [22] The applicant had no prior criminal history. He entered an early plea of guilty. He was twenty-five years of age and had been in Australia for three years, studying a Master of Accounting. The Magistrate was informed he had taken steps to change his conduct and had moved away from the area and returned the number plates. The applicant’s legal representative submitted that no conviction should be recorded given the lack of criminal history, the early plea and that he was studying and would contribute to society in the future. She informed the Magistrate that the applicant wished to seek future employment as an accountant and apply for permanent residency in Australia. [23] The Magistrate fined the applicant $1,800, recorded a conviction and made a restraining order against the applicant attempting to locate or contact the complainant. [24] In the course of his reasoning, the Magistrate referred to the fact that the applicant was on a visa and stated: “… when you are only here on a temporary basis on a visa, in my view, if you are convicted of a serious indictable offence, which you now will be, that is a legitimate matter for the Immigration Department to take into account when assessing any future visa application you might make. The recording of a conviction in Australia will have no impact whatsoever back in the country you come from upon being an accountant, if you end up being one at all. So far as this country is concerned, the immigration authorities are entitled to know about -- 6 of 25 -- 7 criminal offending of people who are here on temporary visas and to take that into account when they assess whether or not you are a suitable person to be allowed to stay in the country any longer.” [25] Having referred to the Court of Appeal decision in R v Briese; Ex parte Attorney General,3 the Magistrate further stated: “In my view, where you are essentially a visitor, you are here only on a temporary basis for a specific purpose. The fact that you have been convicted of a serious indictable offence whilst here on that basis is a matter of legitimate interest to the Immigration Department in order to properly assess your suitability for either renewal of a visa or a granting of another visa in the future. It is in the public interest of Australia and Australians that the Immigration Department be able to do that properly in the possession of the full information as to your behaviour whilst you have been in the country, and to make an informed decision that way. It would be completely unsuitable, in my view, were you to be essentially given the opportunity to lie about your behaviour in the country by lying, albeit court-sanctioned lying if a conviction is not recorded, on a subsequent visa application. That, in my view, is completely contrary to the public interest, contrary to the legislated role the Immigration Department has to perform, and the purposes for which the Immigration legislation exists and the Migration Act exists, and that is, to assess the suitability of visa applicants, and weed out those that Australia does not want, and that can only be done when the Immigration Department is in receipt of the full information about a matter. And, as I said when I started, this was not a one-off act. It was not a short period of persistent harassment of the complainant. This is stalking over a period of 10 full months, so protracted and persistent in anyone’s language.” [26] The sentencing Magistrate therefore determined that as part of the sentence he would record a conviction. [27] The effect of recording a conviction on the applicant’s prospects in Australia was not considered by the sentencing Magistrate although submissions were made on his behalf that even though he was in Australia on a visa he wished to seek permanent residency and employment as an accountant. [28] While Magistrates have very busy lists and are required to turn around many decisions, the intemperate and somewhat pejorative language used by the Magistrate towards the applicant was plainly inappropriate for a judicial officer. It is not however the subject of this appeal, although his emphasis on the Immigration Department knowing of the conviction is the subject of the proposed grounds. Application to the District Court [29] The applicant had to apply for leave for an extension of time to appeal under ss 222(2)(c) and 224(1)(a) of the Justices Act. The respondent opposed the granting 3 [1998] 1 Qd R 487 at 491 per Thomas and White JJ (Briese). -- 7 of 25 -- 8 of an extension of time on the basis that the appeal was not viable and thus contended that granting an extension of time would lack utility. In considering whether to grant such an extension, Judge Rafter appropriately considered the prospects of success on appeal if the application to extend time was granted. [30] While the applicant, who was self-represented, did not clearly identify the basis of appeal, Judge Rafter determined that the applicant’s complaint was directed at the recording of a conviction and identified the relevant question which the applicant wished to raise to be “whether the recording of a conviction renders the overall penalty manifestly excessive.” [31] Judge Rafter correctly took account of the factual circumstances of the offending as well as the applicant’s personal circumstances. Although his Honour considered that the Magistrate had regard to all of the circumstances in exercising his discretion to record a conviction, including the relevant considerations in s 12(2) of the Penalties and Sentences Act 1992 (Qld), he, unlike the Magistrate, expressly referred to the applicant’s age and accepted that the applicant’s employment prospects as an accountant in Australia would be affected by a recorded conviction. His Honour acknowledged that submissions had been made before the Magistrate to the effect that a recorded conviction would affect the applicant’s employment prospects. He stated that “[n]evertheless, the circumstances in which he has been unable to obtain employment in the accounting field are not entirely clear”. Notably, his Honour had asked the applicant during argument whether he wished to seek an adjournment in order to place such evidence before him which was declined. [32] Judge Rafter noted that the Magistrate had regard to the observations of the Court of Appeal in R v Briese. In particular, he noted the Magistrate had regard to the fact that government departments, including immigration authorities, may have an interest in knowing of a recorded conviction. His Honour, however, did not consider that a conviction necessarily had to be recorded for it to come to immigration authorities’ attention and stated:4 “The character test in section 501 of the Migration Act may allow for the possibility that a non-recorded conviction could be considered. However, that was simply one factor that was taken into consideration. Here, the appellant’s conduct was serious, protracted and continued despite him having been warned by the police that his conduct amounted to stalking. As was submitted by Mr Crook, who appeared for the respondent, potential employers may well have an interest in knowing of such conduct.” [33] His Honour found in the circumstances the Magistrate did not err in the exercise of his discretion to record a conviction. He therefore concluded there would be no utility in extending the time within which to appeal. Issues to be determined [34] The present application presents a number of questions, some of which arose because the applicant sought to raise errors in this appeal which were not raised before the District Court below. It was assumed that those errors would result in the re-exercise of discretion if established, even though the errors were not originally said to have 4 Briese at 491. -- 8 of 25 -- 9 resulted in an excessive sentence. Following an exchange in oral submissions, counsel for the applicant confirmed that they do seek to assert that the recording of the conviction amounted to an excessive sentence as a result of the errors alleged. [35] The questions that must therefore be determined are: (a) Does an appeal under s 222(2)(c) extend to specific errors of discretion or is it limited to manifest excess or manifest inadequacy or simply whether the sentence is excessive or inadequate? (b) What approach should have been adopted in the court below? (c) Was his Honour in error in failing to identify any of the specific errors of discretion now raised by the applicant and/or not finding the sentence was excessive? Scope of s 222(2)(c) of the Justices Act [36] Section 222(1) of the Justices Act provides for an appeal to a District Court judge “[i]f a person feels aggrieved” by an order made by a Magistrate “in a summary way on a complaint for an offence or breach of duty…”.5 Section 222(2) of the Act provides three exceptions: “(2) However, the following exceptions apply— (a) a person may not appeal under this section against a conviction or order made in a summary way under the Criminal Code , section 651; (b) if the order the subject of the proposed appeal is an order of justices dealing summarily with an indictable offence, a complainant aggrieved by the decision may appeal under this section only against sentence or an order for costs; (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.” [37] Section 222(8) provides that the notice of appeal, which is required to be filed under s 222(3), must set out the appeal grounds. [38] Section 223(1) of the Justices Act provides for an appeal under s 222 to be by way of rehearing on the evidence that was given in the proceeding before the Magistrate. Under s 223(2), provision is made for the District Court to give leave to adduce fresh, additional or substituted evidence if the court is satisfied there are special grounds for the granting of leave. Under s 225, a judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just on the hearing of an appeal. In the course of doing so, the judge may exercise any power that could have been exercised by whoever made the order appealed against. The judge may send the proceeding back to the Magistrates Court with directions of any kind for the further conduct of the proceedings. 5 Section 222 refers to an appeal from “justices or a justice”. For the purposes of these reasons, the term Magistrate will be used. -- 9 of 25 -- 10 [39] The applicant contends that an appeal against sentence under s 222(2)(c) should be determined in the same way as an appeal against sentence pursuant to s 668E(3) of the Criminal Code, namely that an error needed to be identified in the exercise of the discretion by the Magistrate which could be on the basis of: (a) inferred error in the sense that the sentence was manifestly inadequate or excessive; or (b) specific error in the exercise of the discretion. [40] The applicant’s counsel submits that it is relevant to have regard to s 668E of the Criminal Code in construing s 222(2)(c) of the Justices Act as it was part of the relevant legal background and context at the time the predecessor to s 222(2)(c) was first inserted. He contends that s 222(2)(c) uses analogous wording to s 668E(3), which refers to the Court of Appeal quashing a sentence and passing another sentence if it is of the opinion that “some other sentence, whether more or less severe, is warranted in law” (emphasis added). [41] The applicant contends that, given the approach to s 668E of the Criminal Code (or its equivalent in other States) was well established6 prior to the insertion of the predecessor to s 222(2)(c) of the Justices Act, it is doubtful that the legislature intended to depart from that well established position in respect of s 222(2)(c) appeals from a sentence, which is supported by the analogous language used in s 668E of the Criminal Code. By reference to the second reading speech of the Justices Act Amendment Bill in 1949, where reference was made to abolishing three then existing modes of appeal to create a uniform method of appeal, the applicant contends there was no statement of legislative intent to narrow the scope of appeal to that adopted in relation to s 668E of the Criminal Code. [42] The applicant contends that it would be anomalous if the appeal under s 222(2)(c) was construed so as to restrict an appellant to narrower grounds of appeal compared to those which would be available to a defendant who was convicted after trial so as to only permit the Court to correct an error if the sentence was excessive or inadequate. [43] In the alternative, the applicant submits that language of “excessive” and “inadequate” in s 222(2)(c) does not mean manifestly excessive or manifestly inadequate or require that an error be identified, but rather that the language supports the District Court on a rehearing examining whether they would have imposed a lower sentence after taking into account of all the relevant matters on any appeal under s 222(2)(c). [44] The respondent contends, however, that the proper approach under s 222(2)(c) is for a District Court judge to consider the outcome of the exercise of the sentencing discretion and determine whether or not the sentence upon the evidence was excessive or inadequate. If that conclusion is not reached, the respondent contends that even if there is specific error the appeal must fail unless the sentence is found to be excessive. In that regard, the respondent relies on Forrest v Commissioner of Police, which was a decision of this Court in relation to an appeal from a conviction by a Magistrate which was dismissed by the District Court judge and discussed the nature of a rehearing.7 The respondent also relies on the approach identified by now Chief Judge Devereaux in Rongo v Commissioner of Police8 as being the correct approach. 6 Skinner v The King (1913) 16 CLR 336 at 340 per Barton ACJ. 7 [2017] QCA 132 at 6 per Sofronoff P. 8 [2017] QDC 258 at [21]-[25]. -- 10 of 25 -- 11 [45] In the present application, the difference is significant since the applicant contends that the learned District Court judge should have found specific errors by the Magistrate, albeit not argued before Judge Rafter, and that the sentencing discretion should have been re-exercised. It was not, however, contended by the applicant (quite properly) that the sentence was “manifestly excessive”, although upon further submissions being made it was contended that the sentence was excessive. Relevant Authorities [46] Where a defendant has pleaded guilty or admitted the truth of a complaint, the resulting fine, penalty, forfeiture or punishment is the consequence of the exercise of a discretion by a Magistrate. [47] It is well established that a decision as to sentencing involves an exercise of discretion. In the context of an appeal against sentence, the majority in House v The King held that:9 “It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” [48] The grounds of appeal that a sentence is “manifestly inadequate” or “manifestly excessive”10 is the residuary or inferred category of error identified in House v The King,11 which is premised on the result being unreasonable or plainly unjust. [49] There have been divergent approaches adopted in relation to the meaning of s 222(2)(c) in the District Court. On one approach, the provision was considered to limit an appeal to the ground that the sentence is manifestly excessive or manifestly inadequate, being the last kind of error identified in House v The King.12 Another approach was that it permits any error in the exercise of the discretion, as identified in House v The King, to be raised regardless of whether the sentence is not alleged to be excessive.13 Another approach is a hybrid of the two insofar as it was 9 (1936) 55 CLR 499 at 504-5 per Dixon, Evatt and McTiernan JJ. 10 Hili v The Queen (2010) 242 CLR 520 at 538 [58] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. 11 As discussed in Wong v The Queen (2001) 207 CLR 584 at 605-6 [58], referred to in Hili v The Queen (2010) 242 CLR 520 at 538-9 [59]. 12 See, for example, Berner v MacGregor [2013] QDC 33 where Dorney QC DCJ adopted a literal interpretation and regarded the provision as limiting an appeal to manifestly excessive or inadequate. 13 See, for example, Pullen v O’Brien [2014] QDC 92; Goodman v Commissioner of Police [2017] QDC 252 where Reid DCJ adopted the view that identification of an error would lead to the re-exercise of discretion. -- 11 of 25 -- 12 determined that specific error of discretion could be raised upon appeal but only if it is relevant to demonstrating that the sentence was excessive or inadequate.14 [50] While this Court has considered decisions from the District Court which were themselves appeals under s 222(2)(c), the meaning of the words “a person may only appeal … on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate” has not been a matter the subject of controversy and therefore not the subject of any detailed consideration. [51] In Long v Spivey, Davies JA (with whom Williams JA and Holmes J agreed), briefly set out the history of s 222 appeals, at a time when s 222(2)(c) was s 222(2)(e) of the Justices Act, in finding an appeal against conviction where a plea of guilty had been entered was incompetent:15 “[26] The relevant history of the Justices Act is as follows. Until 1949 it provided three means of appeal or review; an order to show cause under s 209, a case stated under s 226 and an appeal to a District Court under s 237. In none of these was there a prohibition against relief where the appellant or applicant had pleaded guilty. [27] Then by the Justices Acts Amendment Act of 1949 a new Part 9 was substituted for the previous Part 9 which had contained the above provisions. The new Part 9 conferred a right to an order to review under s 209 and an appeal to a judge of the Supreme Court under s 222. Section 209 did not contain the limitation contained, at the relevant time, in s 222(2)(e). However the powers of the Full Court on review under that provision were limited. Section 222, in the form in which it was then, contained a provision in terms identical to those in s 222(2)(e). That limitation has remained in s 222 ever since.” (footnotes omitted). [52] Justice Davies stated that, in order to have a right of appeal to the District Court under s 222(2)(e), the respondent had to prove that his appeal was only on the ground that the punishment was excessive.16 His Honour found the section bore its literal meaning and did not extend to permitting an appeal against conviction.17 [53] In support of his argument that s 222(2)(c) should not be construed literally and permits an appeal on the ground of any error in the exercise of the sentencing discretion, discussed in House v The King, and a literal construction should not be adopted, the applicant placed some reliance on cases decided by this Court: Smith v Ash,18 Teelow v Commissioner of Police19 and Commissioner of Police v Punchard.20 14 See, for example, Rongo v Commissioner of Police [2017] QDC 258 at [21]-[25] per Devereaux SC DCJ; Ross v Commissioner for Police [2018] QDC 99 at [10]-[11] per Muir DCJ, where error could be raised upon appeal but the question remained whether it led to the sentence being excessive or inadequate. 15 [2004] QCA 118. 16 Long v Spivey [2004] QCA 118 at [23]. 17 Long v Spivey [2004] QCA 118 at [29]. See also Costigan v Marshall [2010] QCA 344 at [14] per Philippides J, with whom Muir and Chesterman JJA agreed. 18 [2011] 2 Qd R 175 (Smith v Ash). 19 [2009] 2 Qd R 489. 20 [2021] QCA 166. -- 12 of 25 -- 13 None of those decisions had to grapple with the particular point this Court must presently consider. [54] The applicant relies on the decision in Smith v Ash to contend that s 222(2)(c) should not be construed literally and, rather, should be construed to avoid otherwise anomalous results. Consistent with the majority’s statements that s 222(2)(c) was directed to preventing appeals against convictions, the applicant contends that s 222(2)(c) only operates to restrict appeals to being against sentence and not the grounds of sentence. [55] While Smith v Ash did consider s 222(2)(c), it is of little assistance to the present case. The question the Court of Appeal had to consider was whether or not s 222(2)(c) permitted an appeal from an order as to costs. McMurdo P and Chesterman JA considered, albeit for different reasons, that s 222(2)(c) was only a prohibition against appeals in respect of findings of guilt or convictions and did not exclude an appeal from an order as to costs, notwithstanding the wording of the provision. Justice Fraser dissented, adopting a literal construction of the provision. [56] In the context of the present case, Smith v Ash has limited relevance. While McMurdo P and Chesterman JA departed from construing s 222(2)(c) by reference to its literal terms and all judges referred to s 222(2)(c) being intended to prevent appeals against conviction, there was no analysis as to whether the grounds of appeal against sentence were further confined or the meaning of “excessive or inadequate”. [57] In Teelow v Commissioner of Police, the applicant sought to appeal to the District Court, in circumstances where the appeal to the District Court was under s 222(2)(c), against the recording of a conviction.21 The application to the Court of Appeal sought leave to raise as a ground of appeal that the District Court judge had erred in failing to conduct the appeal by way of a rehearing. A further ground was raised by way of amendment that the District Court judge erred in law in concluding that there had been no error in the exercise of discretion by the Magistrate. That error was that the Magistrate had failed to make available a transcript of proceedings before the Magistrate which was tantamount to a failure to give reasons. It was contended that the absence of reasons should have caused the District Court judge to conclude the Magistrate’s decision was “infected with error” and exercise the sentencing discretion afresh.22 [58] Neither of the alleged errors were found to be established. Significantly for the present argument, Muir JA found that the District Court judge had conducted a rehearing and considered that there was no error in the Magistrate’s reasons having regard to the principles in House v The King. Leave to appeal was refused. [59] The specific construction of s 222(2)(c) was not the subject of consideration by the Court of Appeal. However, insofar as Muir JA made reference to the District Court judge having properly considered whether there was an error in the exercise of discretion as discussed in House v The King, his Honour appeared to assume that all errors identified in House v The King could be considered under s 222(2)(c).23 No argument was raised by the parties that the ground was incompetent or as to the scope of s 222(2)(c). More significantly no consideration was given to what was intended 21 [2009] 2 Qd R 489 (Teelow). 22 Teelow at 494 [8]. 23 See Teelow at 496 [20]. -- 13 of 25 -- 14 by the words “excessive or inadequate”. While the Court of Appeal may have acted on the basis that s 222(2)(c) extended to any error of discretion identified in House v The King, given it was not raised as a contentious issue the decision cannot be regarded as authoritative in relation to the present issue. [60] In Commissioner of Police v Punchard, there had been a successful appeal against sentence from the Magistrates Court to the District Court.24 Chowdhury DCJ considered that error of the kind described in House v The King must be demonstrated where the ground of appeal was against a sentence after a guilty plea. In that case the ground of appeal was manifest excess, which was found to be made out. In considering the prosecution’s appeal, Sofronoff P, Fraser and Mullins JJA stated:25 “The question therefore was whether the sentence was manifestly excessive. No issue was taken, or could be taken, on the application to this court to his Honour’s conclusion that the approach to be taken on the appeal to the District Court was to discern whether there was error in the exercise of the sentencing discretion by the Magistrate.” [61] The present question being considered was again not a point of contention before the court and the above statement must be seen in that context, particularly where the only alleged error was whether the sentence was manifestly excessive.26 [62] The respondent sought to place reliance on Forrest v Commissioner of Police27 and Rongo v Commissioner of Police28 in contending that s 222(2)(c) should be construed literally. [63] The case of Forrest v Commissioner of Police, relied upon by the respondent, did not consider s 222(2)(c) but was dealing with an appeal against conviction under s 222(1) Justices Act and is therefore of no relevance to the present question.29 [64] The respondent asserts that the approach in Rongo v Commissioner of Police is the correct approach. Devereaux DCJ (as his Honour then was) stated:30 “[22] My view of it is that the purpose of that provision is to focus the appellate proceeding on whether the sentence imposed was excessive. Whether a sentence is “manifestly excessive” can be assessed against various criteria. They are collected neatly in R v Morse [1979] 23 SASR 98. King CJ, with whom the other two members of the court agreed, said: “To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime; the standards of sentencing customarily observed with respect to the crime; the place which the criminal conduct occupies in the scale of seriousness of crimes of that type; and the personal circumstances of the offender.” 24 [2021] QCA 166. 25 Commissioner of Police v Punchard [2021] QCA 166 at [36]. 26 Similarly, Commissioner of Police v Punchard [2021] QCA 166 at [46]. 27 [2017] QCA 132. 28 [2017] QDC 258. 29 [2017] QCA 132. 30 [2017] QDC 258 at [22]-[24]. -- 14 of 25 -- 15 [23] It seems to me, then, that the focus in this and many appeals brought to this court on attempting to demonstrate an error in the exercise of the sentencing discretion is not misguided but slightly misplaced. The real question is whether the sentence was excessive, so that, although the appellant may argue that the magistrate made a certain error, the success of the appeal does not depend on persuading the appeal court on that point. On the other hand, successfully demonstrating an error does not guarantee success of the appeal, because, in each case, the question is whether the sentence was excessive. [24] Identifying a particular error might assist because it might explain why the sentence was excessive. And that is ultimately, as I understand it, the appellant’s argument in this case.” [65] The applicant also places some reliance on his Honour’s reference to “excessive” in his alternative construction. While what his Honour intended when referring to “excessive” is unclear, it appears more likely that his Honour was referring to that term consistently with the inferred error in the exercise of discretion based on the principles of House v The King, given that the statement by King CJ in R v Morse referred to by his Honour was made in the context of an appeal contending a sentence was manifestly excessive.31 [66] There is much to be said for his Honour’s approach in Rongo, given the wording of s 222(2)(c). However, if his Honour was suggesting that “excessive” and “inadequate” should be construed as “manifestly excessive” and “manifestly inadequate”, then I disagree for the reasons set out below. Statutory Construction [67] In the absence of an authoritative decision, it is necessary to return to the text of the provision and principles of statutory construction. [68] A right of appeal is not a right that exists at common law. It must be conferred by a statutory provision.32 Necessarily, the extent of any right of appeal is dictated by the terms of the statute.33 [69] The approach to be adopted to statutory interpretation is well established. In SZTAL v Minister for Immigration and Border Protection, Kiefel CJ, Nettle and Gordon JJ articulated the modern statutory approach in the following way:34 “The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context 31 See [1979] 23 SASR 98. 32 Long v Spivey [2004] QCA 118 at [25] per Davies JA. 33 Fox v Percy (2003) 214 CLR 118 at 124 [20] per Gleeson CJ, Gummow and Kirby JJ. 34 (2017) 262 CLR 362 at 368 [14]. See also R v A2 (2019) 269 CLR 507 at 520-1 [32]-[34] per Kiefel CJ and Keane J. -- 15 of 25 -- 16 and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose that meaning must be rejected.” (citations omitted). [70] The Court is to prefer the interpretation that will best achieve the purpose of the Act.35 [71] The relevant context of a statutory provision includes its legislative history and extrinsic materials. A review of parliamentary materials casts little light on the legislative intention at the time, save to that it was to consolidate provisions in respect of appeals.36 [72] The current wording of s 222(2)(c) followed amendments introduced by the Evidence (Protection of Children) Amendment Act 2003 (Qld). The explanatory notes to that amending Act stated that the new section 222, and the exceptions contained in paragraph (2)(c), echoed those in the old legislation, with s 222(2)(c) having formerly been s 222(2)(e).37 [73] Similar wording had been used when the Justices Acts Amendment Act 1949 (Qld) provided for an appeal right. It was the first occasion when an exception was made for appeals where a defendant had pleaded guilty. The version of s 222(2)(vi) inserted by that amending Act provided:38 “Except where the sole ground of appeal is that the fine penalty forfeiture or punishment is excessive or inadequate, as the case may be, no appeal shall lie under this section where the defendant pleaded guilty or admitted the truth of the complaint.” [74] Looking at the text of s 222(2)(c), there are three obvious features in the language used which indicate that Parliament intended to limit the scope of an appeal beyond simply excluding an appeal against conviction, namely “may only appeal”, “on the sole ground” and “that a …punishment was excessive or inadequate”. [75] The language used in s 222(2)(c) is in contrast to the other exceptions in s 222. While they are also exceptions to the general right of appeal provided for in s 222(1), s 222(2)(a)39 refers to an appeal “against a conviction” and s 222(2)(b)40 refers to a proposed appeal “only against sentence or an order for costs”. The distinction in the language used appears to be deliberate. Although s 222(2)(c) had been in a similar form prior to the inclusion of subsection (2)(a) and (2)(b),41 the language used was not altered when s 222 was inserted in its consolidated form in 2003.42 Both the amending Act and the Act which is to be amended are to be read as “a combined statement of the will of the legislature”.43 35 Acts Interpretation Act 1954 (Qld) s 14A. 36 Queensland, Parliamentary Debates, Legislative Assembly, 5 April 1949, 2448 (David Gledson, Attorney-General); Smith v Ash [2011] 2 Qd R 175 at 178 [7] per McMurdo P and at 185 [37] per Fraser JA. 37 Explanatory Notes, Evidence (Protection of Children) Amendment Bill 2003 (Qld) 36-7. 38 Justices Acts Amendment Act 1949 (Qld) s 34. 39 Introduced by the Justice and Other Legislation (Miscellaneous Provisions) Act (No. 2) 1997 as s 222(1B). 40 Introduced by the Courts Reform Amendment Act 1997 (Qld) as s 222(1A). 41 Recall that s 222(2)(c) was formerly s 222(2)(e). 42 Explanatory Notes, Evidence (Protection of Children) Amendment Bill 2003 (Qld) 36-7. 43 Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 463 per Brennan CJ, Dawson and Toohey JJ. -- 16 of 25 -- 17 [76] The applicant submits that the mischief that s 222(2)(c) was seeking to address was the possibility of appeals against conviction after a plea of guilty. However, while that formulation was referred to by the judges in Smith v Ash and it may be part of the mischief being addressed, the wording of the text itself does not suggest that the provision is only directed to excluding appeals from convictions. Had that been intended by Parliament, one would have expected that different language would have been used given that s 222(2)(a) uses the language of “conviction” while s 222(2)(b) uses broader language, referring to “sentence”. The contrast in language suggests that the legislature intended to narrow appeals further than prohibiting an appeal against conviction. [77] A statutory provision must be construed in the context of the statute as a whole. While s 222(2) provides for exceptions to the general right of appeal in s 222(1), the appeal to the District Court is, as is the case of other appeals under s 222, by way of rehearing pursuant to s 223. That is of some relevance in construing s 222(2)(c) insofar as the nature of the rehearing by the District Court has been held to require that a legal, factual or discretionary error to be identified before intervention by an appellate court and the appellate court may substitute its own decision based on the facts and law as they stand at the date of the decision of the appeal.44 [78] The fact that the appeal is to be by way of rehearing under s 223 demonstrates why the respondent’s proposed construction cannot be accepted when s 222(2)(c) is construed in context of other statutory provisions. On the respondent’s construction no error would have to be identified and the only question is whether the sentence is excessive or inadequate. A further reason as to why that construction is unlikely to accord with the legislative intention is the fact that given a sentence is the result of an exercise of discretion, it is not limited to a single outcome. It has long been held that appellate intervention is not justified merely because the Court would have exercised the discretion in a different way.45 [79] The legal background at the time a provision is introduced may form part of the relevant context of a provision for the purposes of its construction and extrinsic material may be considered to identify the state of the law prior to the enactment of the original provision.46 The applicant has sought to have the Court construe the provision by reference to the available appeal rights under s 668E of the Criminal Code, contending that the state of the law at the time that the appeal right in a substantially similar form was included in 1949 is relevant to the context and therefore construction of s 222(2)(c). [80] Appeal rights from sentences were only introduced by statute after 1907. In 1949, when the original version of s 222(2)(c) was included in the Justices Act, the approach to appeals against sentence under s 668E, which by then had been inserted into the Criminal Code, was generally well settled.47 Section 668E(3) of the Criminal Code provided that: 44 Teelow at 492-3 [3]-[4], citing Allesch v Maunz (2000) 203 CLR 172 at 180-1 [23] per Gaudron, McHugh, Gummow and Hayne JJ. Cf Forrest v Commissioner for Police [2017] QCA 132; Wang v Hur [2024] QCA 126 at [23]-[24]. 45 Minister for Immigration v SZVFW (2018) 264 CLR 541 at [37]. 46 Perry Herzfeld and Thomas Prince, Statutory Principles (Thomson Reuters, 2nd ed, 2020) [8.50]. 47 See Criminal Code Amendment Act 1913 (Qld) s 9, which inserted s 668E into the Criminal Code. The version of s 668E that was inserted in 1913 replicated s 4 of the Criminal Appeal Act 1907 (UK) and s 6 of the Criminal Appeal Act 1912 (NSW). -- 17 of 25 -- 18 “On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.” (emphasis added). [81] By 1949, the approach to appellate intervention under s 668E had been considered authoratively by the High Court. In Skinner v The King, Barton ACJ stated that, in relation to an appeal from sentence under the New South Wales equivalent to s 668E(3):48 “… a Court of Criminal Appeal is not prone to interfere with the Judge’s exercise of his discretion in apportioning the sentence, and will not interfere unless it is seen that the sentence is manifestly excessive or manifestly inadequate. If the sentence is not merely arguably insufficient or excessive, but obviously so because, for instance, the Judge has acted on a wrong principle, or has clearly overlooked, or undervalued, or overestimated, or misunderstood, some salient features of the evidence, the Court of Criminal Appeal will review the sentence; but, short of such reasons, I think it will not.” [82] This was later followed by House v The King,49 which has been relevantly referred to above and which is the seminal authority as to appeals in relation to discretionary decisions. [83] While it may be inferred that Parliament would have been cognisant of the law with respect to appeals from sentencing under s 668E of the Criminal Code, it provides little assistance in terms of construing s 222(2)(c). There is nothing to suggest that Queensland Parliament intended s 222(2)(c) replicate the same appeal rights as s 668E.50 Given the different terminology used in s 222(2)(c), it cannot be reasonably inferred that Parliament intended that s 222(2)(c) be construed as providing the same appeal rights. Section 668E uses broader language than s 222(2)(c), “some other sentence… is warranted in law”. Where the sentence is infected by error, another sentence is warranted at law.51 Notably, the appeal right provided in s 668E(3) also first requires leave to be obtained. [84] The reference to the general language of “excessive or inadequate” as the “sole ground of appeal” suggests that the Parliament did not, however, intend to confine any appeal to the final kind of error discussed in House v The King, namely that the outcome of the sentence was unreasonable or plainly unjust such that error was inferred. Had that been the legislative intention, one would have expected that the words “manifestly excessive” or “manifestly inadequate” would have been used given such language was commonly used to identify an error of the final kind discussed by House v The King.52 The fact that Parliament avoided such language in s 222(2)(c) suggests that that was not the legislative intention. 48 (1913) 16 CLR 336 at 340 per Barton ACJ, with whom Isaacs, Gavan Duffy, Powers and Rich JJ agreed, referred to by the majority in Lacey at 579 [11]. 49 (1936) 55 CLR 499. 50 Cf Lacey v Attorney-General (Qld) (2011) 242 CLR 573 where the Attorney-General in the second reading speech had stated that the Attorney-General should enjoy the same right of appeal against sentence as a convicted person. 51 Kentwell v The Queen (2014) 252 CLR 601 at 618 [42]. 52 Or similar terms such as “substantially excessive” or “inadequately excessive”. -- 18 of 25 -- 19 [85] In the absence of clear words, it is unlikely Parliament intended to restrict the right of appeal from sentence to one only where the outcome could be said to be excessive or inadequate and deprive an appellant of the right to raise as a ground of appeal specific error, particularly where an appellant was not so confined after a trial. However, as discussed below, the words of the section can be construed in a way so as not to produce such an anomalous result but also to give meaning to the language used. [86] The applicant additionally contends that if the right of appeal is not construed to provide the same grounds of appeal as are available under s 668E of the Criminal Code, the result would be anomalous with the appeal rights being more restrictive than other statutory rights to appeal from sentence which do not limit the grounds of appeal. The applicant contends that there would be an anomaly in the sense that there would be two different standards of appeal depending on whether the defendant pleaded guilty or was convicted after trial and that errors of law or fact could only be corrected on a sentence if the sentence was found to be excessive or inadequate. That contention would have some weight if not for the fact that the right to appeal under s 222(2)(c) is of right where the appeals are from a court dealing with lesser offences and s 222(2)(c) can be construed to avoid such an anomalous result. Construction of s 222(2)(c) of the Justices Act [87] In my view, the correct construction of s 222(2)(c) having regard to the language used and the context of the provision is that “sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate” permits appellate intervention where an error in the exercise of the discretion of the kind recognised by the House v The King is established, and the error has resulted in a sentence which is excessive. Similarly, if a sentence is said to be inadequate, it must be established that the error has resulted in a sentence being inadequate. [88] The above construction that requires an appellant to demonstrate not only that the sentencing discretion has miscarried due to error but also that the resulting sentence is excessive or inadequate: (a) is consistent with the language used in s 222(2)(c) and gives effect to “may only”, “sole ground” and “excessive and inadequate”; (b) construes the provision in the context of the Justices Act as whole, particularly the appeal provisions in Division 1 of the Justices Act which provides that the nature of the appeal is by way of rehearing in s 223(l); (c) adopts the interpretation which produces “the fairer and more convenient operation”53 in adopting a construction which provides for appellate intervention on the basis of any of the errors of discretion identified in the decision of House v The King provided the resultant sentence is excessive or inadequate; (d) is consistent with a rational legislative intention reflected by the language used to limit appeals from the lower court to the District Court and is the interpretation which best achieves the purpose of the Act; and (e) may give rise to a potential injustice insofar as an offender is entitled to be sentenced according to law and may result in an error going uncorrected if the 53 See Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 320-1 per Mason and Wilson JJ. -- 19 of 25 -- 20 sentence is not excessive or inadequate, however such a construction accords with the inferred legislative intent.54 [89] Such a construction does not require the appellate judge to undergo an artificial exercise of determining the degree to which the sentence could be said to be excessive, but rather for the judge to be satisfied absent the error, the appellate judge would in all the circumstances have sentenced the defendant to a lesser sentence. Once the appellate judge is satisfied that without the error identified a lesser sentence should have been imposed in all of the circumstances that were before the lower court, the sentence should be set aside and the sentencing discretion re-exercised. That would similarly apply where the sentence is said to be inadequate. [90] Obviously, if the ground of error raised is that a sentence is “manifestly excessive” or “manifestly inadequate”, that two stage process will not be required given the nature of the error raised. Otherwise, the two different types of error in the exercise of discretion would be conflated. The difference in approach adopted in determining whether there is specific error in the course of the sentencing decision, as opposed to considering by reference to the outcome of the sentencing discretion whether it is manifest excessive or manifestly inadequate, was discussed by Hayne J in AB v The Queen.55 [91] Thus, while specific error alone is not a sufficient to establish a ground of appeal under s 222(2)(c), it will be sufficient if it is shown to have caused a sentence to be excessive or inadequate. To the extent that the applicant sought to contend that specific errors had occurred which resulted in the sentence being excessive, it would not have been outside the jurisdiction of the District Court on appeal had it been raised below. Approach to the appeal in the present case [92] The basis of the appeal below to Judge Rafter was that the Magistrate should not in the circumstances have recorded a conviction. As identified by Judge Rafter, the recording of a conviction which is not warranted may support a finding the sentence is manifestly excessive.56 [93] Judge Rafter’s decision was not a determination of the appeal but was made in the context of determining whether the applicant should be granted leave to appeal. Insofar as his Honour considered whether the applicant’s proposed appeal was viable, his Honour adopted a proper approach. In R v Tait, the Court of Appeal identified the relevant approach to determining whether to extend time in criminal appeals, namely:57 “…whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. That may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all such cases 54 Cf Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 304 per Gibbs CJ and Mills v Meeking (1990) 169 CLR 214 at 242-3 per McHugh J. 55 (1999) 198 CLR 111 at 159 [128] and 160 [130]. While his Honour was in dissent, the statement was referred to with approval in Kentwell v The Queen (2014) 252 CLR 601 at 615 [35] per French CJ, Hayne, Bell and Keane JJ. 56 R v Waite [2017] QCA 270 at [26] per Philippides JA, with whom Morrison JA and I agreed. 57 [1999] 2 Qd R 667 at 668 [5]. -- 20 of 25 -- 21 the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant's appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay it being much easier to excuse a short than a long delay.” (citations omitted). [94] As set out above, the applicant now seeks to raise specific errors in the exercise of the Magistrate’s discretion, which were not identified by Judge Rafter or raised in the appeal before his Honour. Under the construction of s 222(2)(c) discussed above, specific errors could have been raised on the appeal if they were said to have caused the sentence imposed to be excessive. The applicant contends, however, that the District Court should have identified the errors now complained of by the applicant, given Judge Rafter examined the Magistrate’s decision and considered whether he erred in the exercise of discretion. An appellate court, in hearing an appeal under s 223 of the Justices Act by way of rehearing, is required to carry out a real review of the decision below and make an independent assessment of the evidence before the original decision maker (unless fresh evidence is admitted) as well as the reasons of the Magistrate. [95] It is open for a District Court judge to amend a notice of appeal or the statement of grounds of appeal under s 224(1) of the Justices Act and, in particular circumstances, they may be obligated to do so.58 Section 228 of the Justices Act also provides that “[n]o appeal shall be defeated merely by reason of any defect whether of substance or of form in any notice of appeal or in the statement of the grounds of appeal”. However, the occasion when that would arise would be rare, given an appellate judge is not required to search for error, nor run a self-represented litigant’s appeal for him.59 It is a rare case where an appellate court would be found to be in error for not identifying an error not raised by an appellant, even if self-represented. [96] In the context of a strict appeal, it will be rare for this Court to find that the District Court has committed an error of law or factual errors if those errors were not raised in the court below. Did the District Court judge err? [97] In considering whether the Magistrate had erred in recording a conviction, Judge Rafter did not err. [98] In the present case, Judge Rafter approached the question of the extension of time and whether the appeal was viable by conducting a rehearing based on the Magistrate’s reasons and all of the matters before the Court below. It is evident that, in conducting the rehearing, his Honour considered whether any error of discretion had occurred and whether it was open to record a conviction in all of the circumstances. [99] Pursuant to s 12 of the Penalties and Sentences Act 1992 (Qld), there is a wide discretion in determining whether or not to record a conviction. Sections 12(1) and (2) of the Act provide that: 58 Madden v Commissioner of Police (2023) 14 QR 1 at 18 [59]-[60]. 59 Bahonko v Sterjov (2008) 166 FCR 415 at 417 [3]. -- 21 of 25 -- 22 “(1) A court may exercise a discretion to record or not record a conviction as provided by this Act. (2) In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including— (a) the nature of the offence; and (b) the offender’s character and age; and (c) the impact that recording a conviction will have on the offender’s— (i) economic or social wellbeing; or (ii) chances of finding employment.” [100] As to the approach required by this section, Macrossan CJ in R v Brown, ex parte Attorney-General considered that:60 “Where the recording of a conviction is not compelled by the sentencing legislation, all relevant circumstances must be taken into account by the sentencing court. The opening words of s. 12(2) of the Act say so and then there follow certain specified matters which are not exhaustive of all relevant circumstances. In my opinion nothing justifies granting a general predominance to one of those specified features rather than to another. They must be kept in balance and none of them overlooked, although in a particular case one, rather than another, may have claim to greater weight.” [101] In R v Briese, Thomas and White JJ noted that not recording a conviction is capable of considerable effect in the community.61 They identified a number of persons who “may have an interest in knowing the truth in such matters include potential employers, insurers, and various government departments, including the Immigration Department”.62 Conversely, their Honours stated that:63 “[T]he beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation, and it may be thought to be a reasonable tool that has been given to the courts to avoid undue oppression.” [102] Justices Thomas and White also acknowledged the authorities which observed that the purpose of the provision is not to enable convictions to be concealed from bodies who may have to consider whether the person is a fit and proper person and that the purpose of s 12 is for the protection of the public.64 60 [1994] 2 Qd R 182 at 185. 61 Briese at 491. 62 Briese at 491. 63 Briese at 491. 64 Briese at 492. -- 22 of 25 -- 23 [103] In R v ZB,65 Sofronoff P identified that in determining not to record a conviction “it is to the greater benefit of the community to afford the offender the privilege of non- disclosure”.66 Section 12 of the Penalties and Sentences Act 1992 (Qld) requires the sentencing judge to “consider the potential benefits and detriments to the community of adopting either course”.67 His Honour found that the considerations in s 12(2)(b) and (c) as to the offender’s future prospects “raise for consideration whether the promise of future rehabilitation calls for and justifies affording the offender the advantages that flow from not recording a conviction”.68 His Honour’s reasons in this regard has been followed on a number of occasions, including most recently R v RBN.69 [104] There was no evidence in the present case as to the effect of the recording of the conviction on the applicant’s wellbeing or future employment, save that the Magistrate was informed the applicant was studying accounting and intended to work as an accountant in Australia if granted a visa. [105] In R v Cay, Gersch and Schell; ex parte Attorney-General (Qld), this Court recognised that a bare possibility the conviction may affect an offender’s economic or social well-being or chances of finding employment is insufficient,70 but it is not essential that specific employment opportunities be identified.71 [106] In R v Ali, Buss AJA (with whom Flanagan JA and Kelly J agreed) stated that: 72 “Although the sound exercise of the discretion conferred by s 12 does not require the identification of specific employment opportunities that will be lost to an offender if a conviction is recorded (Cay [43]), the absence of any information or the provision of vague information about the prospective impact that the recording of a conviction will have on the offender’s future employment will ordinarily result in diminished weight being given to the consideration specified in s 12(2)(c)(ii). See R v Mitchell-Herden [2023] QCA 39 (pp 4–5) (Henry J; Mullins P and Gotterson AJA agreeing).” [107] In determining whether to grant leave, Judge Rafter considered the applicant’s age, lack of criminal history and, unlike the Magistrate, expressly accepted that the applicant’s employment prospects were affected by the recording of the conviction, although no specific evidence was presented to him and the circumstances as to how his prospects would be affected were unclear. It was a factor which should at least have been given consideration by the Magistrate given the applicant intended to enter into a profession in Australia in the future if granted a visa. However, in the absence of any evidence, it would be of diminished weight. By failing to consider the effect of recording a conviction on the applicant’s employment prospects and his future wellbeing, the Magistrate was in error. Judge Rafter’s approach was however the correct one and he took into account the matters which the applicant contends the 65 (2021) 287 A Crim R 519 (ZB). 66 ZB at 522 [9]. 67 ZB at 522 [10]. 68 ZB at 522 at [10]. 69 [2024] QCA 185 at [14]. 70 (2005) 158 A Crim R 488 at 490 [7] per de Jersey CJ and 502 [74] per Mackenzie J, referring to R v Sanders [2007] QCA 165 per McMurdo P, Jerrard JA and Philippides J. 71 [2005] QCA 467 at [43] per Keane JA. 72 [2023] QCA 207 at [76]. -- 23 of 25 -- 24 Magistrate failed to take into account in relation to the applicant’s economic and social wellbeing. [108] The applicant provided very detailed submissions as to why, given the legislative regime provided by the Penalties and Sentences Act 1992 (Qld) and the Migration Act 1958 (Cth), which enabled the Department of Immigration to request information as to a conviction not recorded, the Magistrate erred by taking into account that the government department dealing with immigration matters would not have full information about the offence unless a conviction was recorded. [109] There is no doubt that in determining whether to record a conviction the Magistrate placed emphasis on the applicant’s visa status and the fact that the Department of Immigration would, in assessing the question of suitability, need to be aware of the conviction. In particular, the Magistrate was concerned that disclosure of the conviction to the Department would depend upon voluntary disclosure by the applicant in circumstances where the conviction would be relevant to the assessment of his suitability as a visa applicant. The Magistrate’s concern in this regard was also in the context that he considered that the conduct giving rise to the offence was serious behaviour. The concern that the applicant would not be obligated to disclose the conviction would appear to accord with s 5(2) of the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), unless the applicant’s offending falls within the exceptions to that Act or there is Commonwealth legislation to the contrary. Notwithstanding his intemperate language, it is not apparent that the Magistrate assumed that unless a conviction was recorded it would not otherwise come to the Immigration authorities’ attention, nor that he considered the applicant’s visa status, absent the nature of the offending, required a conviction to be recorded. [110] It is not irrelevant, as identified by the Court of Appeal in R v Briese, to take into account that the members of the public, including government agencies, may have a legitimate interest in knowing of a conviction as a factor weighing in favour of recording a conviction. The Minister may refuse to grant a visa if a person does not pass the character test under s 501(1) of the Migration Act 1958 (Cth). Past criminal conduct may be a factor which could result in a person not being considered to be of good character.73 Even if the Department of Immigration has the means under s 501L of the Migration Act 1958 (Cth) to request information from the State as to convictions not recorded, which are maintained in a register under s 12(3A) of the Penalties and Sentences Act 1992 (Qld), as contended on behalf of the applicant, it is not irrelevant to take into consideration that the Department of Immigration would have an interest in knowing of the conviction. This does not mean this consideration should assume prominence over other considerations contained in s 12(2) of the Penalties and Sentences Act. [111] Judge Rafter did not err in not identifying errors raised by grounds 2 and 3 of the proposed appeal in circumstances where those errors were not raised by the applicant for his Honour’s consideration. [112] In any event, while Judge Rafter did not identify specifically that the Magistrate had erred, in carrying out his review, his Honour correctly took into account the fact that the applicant was on a temporary visa and that s 501 of the Migration Act 1958 (Cth) may allow a conviction to still be taken into account in the character test without a conviction being recorded. 73 Migration Act 1958 (Cth) s 501(6)(c)(i). -- 24 of 25 -- 25 [113] Judge Rafter also properly identified that the fact that immigration authorities may have an interest in the recording of a conviction was only one factor that was taken into consideration. His Honour considered that “the appellant’s conduct was serious, protracted and continued despite him having been warned by the police that his conduct amounted to stalking”. He accepted that “potential employers may well have an interest in knowing of such conduct”. [114] Judge Rafter was not in error in concluding that the conviction was not manifestly excessive. The applicant’s counsel quite properly conceded that the sentence was not manifestly excessive. His Honour was therefore not in error in concluding that the appeal would not have been viable and refusing the extension of time to bring the appeal. [115] As to the applicant seeking to contend that this Court should find that his Honour erred in not identifying specific errors by the Magistrate, the mere fact his Honour stated that the Magistrate did not err in the exercise of his discretion was said in the context of his Honour having carried out a real review of the material before the Magistrate. It does not suggest that his Honour was assuming a broader obligation to identify any error that might have been made by the Magistrate.74 In any event, the only reasonably arguable error made by the Magistrate is the failure of the Magistrate to consider the matters in s 12(2)(c) of the Penalties and Sentences Act 1992 (Qld). However, Judge Rafter was not necessarily in error in this regard in not specifically identifying the error, given the lack of evidence that had been presented as to how it would affect the employment and economic wellbeing of the applicant and the applicant declining the invitation of his Honour to adjourn to obtain evidence in that regard. His Honour, unlike the Magistrate did consider the matters relevant to s 12(2)(c) insofar as his Honour considered the relevant matters in his review of the Magistrate’s decision and in reaching a view that the recording of the conviction was not in error. As his Honour pointed out, those considerations are only one aspect of the matters to be considered when determining whether a conviction should have been recorded. I am not satisfied that leave is necessary to rectify a substantial injustice in circumstances where that specific error was not raised below and, his Honour considered all circumstances, quite correctly, in reaching the view that the Magistrate did not err in recording a conviction and that the appeal was not viable in those circumstances. I consider that the applicant has little prospect of demonstrating that the identification of that error would have led to any lesser sentence such that his Honour should have reformulated the appeal grounds to include that specific error. There is no question of public importance or important point of law raised which would require leave to be given. [116] In light of the above, leave to appeal should be refused. Disposition [117] I consider that leave to appeal should be refused. 74 See Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 280 FCR 479 at 492 [56]. -- 25 of 25 --