Ellis v Queensland Police Service [2022] QDC 175

1 TRANSCRIPT OF PROCEEDINGS © The State of Queensland (Department of Justice and Attorney-General). Apart from any use permitted under the Copyright Act 1968 (Cth), all other rights are reserved. You must not copy, modify or distribute this material without the written authority of the Director, Recording and Transcription Services, Queensland Courts. DISTRICT COURT OF QUEENSLAND APPELLATE JURISDICTION JUDGE SMITH Appeal No 885 of 2022 PETER WILLIAM ELLIS Appellant and QUEENSLAND POLICE SERVICE Respondent BRISBANE 10.44 AM, MONDAY, 25 JULY 2022 JUDGMENT Any Rulings that may be included in this transcript, may be extracted and subject to revision by the Presiding Judge. WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. -- 1 of 4 -- 20220725/BSD/DC/22/Smith DCJ __________________________________________________________________________________ 2 JUDGMENT HIS HONOUR: The Appellant appeals the sentences imposed on him in the Brisbane Magistrates Court on 14 February 2022. On that occasion, he pleaded guilty to the following charges. Twenty-five October 2020, possession of a dangerous drug, methylamphetamine, possession of property, (scales), failing to 5 dispose of a syringe, and possessing tainted property, a lime scooter helmet. Eleven February 2021, possession of dangerous drugs, methamphetamine, possession of a controlled drug, another count of possession of a controlled drug, possessing utensils, possessing GHB, drug driving. 10 Seventh of, November 2021, drug driving, possessing property in connection with drugs, (syringe plunger), possessing GHB. With respect to the ones on 25 October 2020, no conviction was recorded and a fine of $1200 was imposed. With respect to the charges from February 2021, For the possessing tainted property, 25 October 2020, there was a $200 fine. No conviction was recorded. With respect to a 15 possession of dangerous drug on 11 November 2020, $600 fine, no conviction recorded. With respect to the 11th of February 2021 charges, excluding the drug driving, a $1500 fine was imposed, no conviction was recorded. And with respect to the 20 November 2021 offences, excluding the drug driving, a $400 fine was imposed with no conviction. As for the drug driving on 11 February 2021, $350 fine, conviction recorded, disqualified for two months. Then for the drug driving on 7 November 2021, conviction recorded, a $500 fine, disqualified for three months. 25 ... The Appellant was born on 11 September 1985. He had two previous Court 30 appearances of a minor nature, imposition in 2003, and contravening a direction in 2006. After pleas of guilty were taken by the Magistrate, the Magistrate raised the fact he had been a Registrar when the Appellant was a Clerk. The Magistrate said he had limited contact with the Appellant. The Magistrate advised the Defence, if they had any reservations, they should raise them. 35 The Defence lawyer took instructions and indicated after that he had instructions they were content to proceed. The facts were, on 25 October 2020, the Appellant was seen on a motor vehicle in Fortitude Valley. He was drug-affected. Three syringes, a small amount of methylamphetamine, a set of scales, a Lime scooter 40 helmet were located in the car. On 11 February 2021, the police were patrolling Bowen Hills, and they intercepted the Appellant’s car. A small amount of methylamphetamine was located, together with Xanax, melatonin, and GHB, together with a straw. 45 -- 2 of 4 -- 20220725/BSD/DC/22/Smith DCJ __________________________________________________________________________________ 3 JUDGMENT A roadside saliva test was conducted, which confirmed the presence of methylamphetamine. On 11 November 2020 at 6 pm, the Appellant was found asleep in his car. He had methylamphetamine in his pants. On 7 November 2021, the police intercepted the Appellant’s vehicle in New Farm. There was a positive roadside test to drugs – methylamphetamine. GBL and plungers were found. The 5 Prosecution submitted for probation, noting there was significant drug use. The mandatory minimum disqualification period was submitted for, noting there would be cumulative. The Defence solicitor agreed probation was in the range. The Appellant was 36, single, and on JobKeeper. He was given a medical redundancy 10 from DJAG. He left school in year 10 and completed a traineeship of DJAG, and had worked for the Department for 17 years. He had been subjected to sexual abuse at school, and legal proceedings had been brought. In 2018, he broke up with his partner, and he found his partner overdosing, who subsequently died. This drug use commenced after that. 15 It was pointed out, the quantity of drugs was small. The drugs were for personal use. The Appellant was engaging with mental health professionals. He had been diagnosed with a borderline personality disorder. He was on medication. It was submitted that no convictions should be recorded. The Magistrate took into account 20 the pleas of guilty. He took into account the Appellant’s difficulties, but also the principle of deterrence. In written submissions, the Appellant submits there was a conflict of interest for the Magistrate dealing with the matter. He notes the Magistrate also raised an issue about the Appellant’s twin brother. He 25 submits the penalties were too high, bearing in mind his lack of capacity to pay. In the written submissions, he submits the disqualification periods were excessive, although as it turns out now, they have expired. The Respondent submits, in written submissions, the appeal should be dismissed, and the application to extend time refused, although it is conceded today that the accumulation of fines does seem very 30 high. As to the allegation of bias, the Respondent relied on the fact that no objection was taken to the Magistrate hearing the matter. Although it is unusual, the twin brother issue was raised, there was no application for recusal at that stage. In written submissions, it was submitted the penalties were in 35 the range, and not excessive. Although today it is conceded that the accumulation of fines – particularly on the non-driving offences – seems high. The appeal is by way of rehearing. As to the bias point, the Appellant did have the opportunity to object to the Magistrate hearing the matter. He did not. I infer, reading the transcript, he gave instructions for the point not to be taken. 40 There was no application for recusal after the twin brother issue was raised. In my opinion, the Appellant has waived any right to rely on this point. In any event, they did not seem to affect the penalties here. I reject this ground. As to the convictions on the driving offences, drug driving is a serious matter. It involved 45 methamphetamine. They are matters of concern, particularly bearing in mind there were two of them. I do not find any error on that ground, and reject the ground concerning that. On the other matters though, I consider the fines too high. -- 3 of 4 -- 20220725/BSD/DC/22/Smith DCJ __________________________________________________________________________________ 4 JUDGMENT Leaving aside the driving matters, the total penalty is $3900. Bearing in mind the mitigating factors, I agree with the Prosecution that the range was more rather 2000 to $3000. In the ordinary course, probation would have been the most appropriate option, as submitted for by both the Prosecution and Defence. I would have liked to have given this man probation. But the difficulty is, he informed me today that 5 whilst he is in Queensland now, he starts a job in New South Wales, and it would be very difficult to transfer the probation order to New South Wales in such a short time. In all of the circumstances, I am satisfied that the fines of $3900 was beyond the 10 permissible sentence range. In my view, total fines of $2500 should be imposed, bearing in mind the mandatory requirement to take into account, as far as practicable, the financial circumstances of the offender, and the nature of the burden that the fine would have on him. (See section 48 of the Penalties and Sentences Act). In those circumstances, I make these orders. One, the appeal is allowed to the extent that 15 with the exception of the driving charges, the fines are set aside, and I make one fine order in the sum of $2500. Two, the Magistrate’s orders are not otherwise disturbed. ______________________ 20 -- 4 of 4 --