APS v Queensland Police Service [2022] QDC 164

DISTRICT COURT OF QUEENSLAND CITATION: APS v Queensland Police Service [2022] QDC 164 PARTIES: APS (Applicant) v Queensland Police Service (Respondent) FILE NO/S: 117/22 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Brisbane DELIVERED ON: 25 July 2022 DELIVERED AT: Southport HEARING DATE: 27 June 2022 JUDGES: Judge Wooldridge QC ORDER: 1. The Application for extension of time in which to file the Notice of Appeal is allowed. The time for filing of the Notice of Appeal is extended to 17 January 2022. 2. The Application to adduce fresh or further evidence is refused. 3. The Appeal is allowed. 4. The orders of the Magistrate of 5 October 2021 in the Magistrates Court at Brisbane are varied to the extent, and only to the extent of it being ordered that for the offence of Contravention of a police banning notice, no conviction is recorded. 5. The respondent is to pay the applicant’s costs of and incidental to the appeal, in the amount of $1800. Such costs are to be paid to the Registrar of the District Court at Brisbane within 14 days, to be paid over to the applicant. -- 1 of 10 -- 2 CATCHWORDS: LEGISLATION: CASES: CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – SENTENCE EXCESSIVE – RECORDING OF A CONVICTION – where the applicant seeks an extension of time in which to appeal – where the applicant seeks to adduce further evidence – where the applicant did not appear at sentence hearing but had entered a plea of guilty in writing and was fined $600 – where the Magistrate did not order that no conviction be recorded – where applicant contends sentencing discretion miscarried and the recording of a conviction was excessive Justices Act 1886 (Qld) ss 221, 222, 223, 224, 225, 226, 232A Penalties and Sentences Act 1992 (Qld) s 12 Police Powers and Responsibilities Act 2000 (Qld) s 602Q R v Tait [1998] QCA 304 Allesch v Maunz (2000) 203 CLR 172 Teelow v Commissioner of Police [2009] 2 Qd R 489 White v Commissioner of Police [2014] QCA 121 McDonald v Queensland Police Service [2017] 2 Qd R 612 Holden v Queensland Police Service [2018] QDC 217 R v Pham (2015) 256 CLR 550 Robinson Helicopter Co Inc v McDermott [2016] 90 ALJR 679 COUNSEL: L Ygoa-Mckeown for the applicant R McInnes for the respondent SOLICITORS: Fisher Dore Lawyers Office of the Director of Public Prosecutions -- 2 of 10 -- 3 Introduction [1] On 5 October 2021 the applicant was sentenced for an offence of Contravene police banning notice under section 602Q Police Powers and Responsibilities Act 2000. The applicant was convicted and fined $600. [2] The applicant appeals to this Court pursuant to section 222 of the Justices Act 1886, solely as concerns the order of a conviction having been recorded as part of the sentencing orders.1 As the appeal was filed out of time,2 the applicant also seeks leave for an extension of time in which to appeal. The proceedings in the Magistrates Court [3] The applicant was charged with one offence of Contravene police banning notice under section 602Q Police Powers and Responsibilities Act 2000, namely: “That on the 27th day of August 2021 at Brisbane City in the Central Division of the Brisbane Magistrates Court District in the State of Queensland, one [the applicant], being a person named in a police banning notice, did without reasonable excuse, contravene the banning notice, namely by entering and remaining within the Brisbane City Safe Night Precinct”. [4] On 7 September 2021 the applicant was served with a Notice to Appear before the Magistrates Court at Brisbane on 5 October 2021 in relation to the charge. [5] Also, on 7 September 2021, the applicant sent correspondence to the Magistrates Court. That correspondence referred to the applicant having received a summons to attend court on 5 October 2021 on the aforementioned charge. The correspondence included the following: “I plead guilty to the charge laid down in the summons, and request that it be dealt with in my absence, as I will be unable to attend Court on the day mentioned. I desire that the following submission be brought to the attention of the justices with a view to mitigation of penalty: I had a complete brain fade in terms of forgetting the banning notice was still in play – after dinner with some friends they wanted to carry on for a couple more drinks at the specified venue and the banning notice mistakenly did not cross my mind at the time as I have not been going out in that 1 Outline of Submissions of the Applicant, paragraph 31. The $600 fine has been paid by the applicant. 2 As prescribed by s 222(1) Justices Act 1886 (Qld). -- 3 of 10 -- 4 area at all since the specified incident. As soon as Management notified me, I went round the corner and called an Uber and went straight home. The contravening was not done in any malicious attempts, merely an oversight on my part, for which I am very apologetic. I do wish to emphasise how regretful I am that I completely forgot it was still valid.” [6] The matter was heard in the Magistrates Court at Brisbane, on 5 October 2021, as per the Notice to Appear served on the applicant. The proceedings took only a total of approximately one minute. The transcript evidences the limited nature of the submissions made prior to the decision of the Magistrate being given: “PROS: It’s – HIS HONOUR: Or – 98. Who’s got 98? PROS: [Applicant name]. HIS HONOUR: [Applicant name]. Plea of guilty to the charge. Banning notice. It’s the same thing. Okay. Plea of guilty in writing. No appearance.” [7] The transcript of the decision then reads as follows: “HIS HONOUR: Convicted and fined $600. Referred to SPER.” [8] The reference to “convicted” within the order of the Magistrate would be understood firstly as being to confirm the finding of guilt by the Magistrate by virtue of the plea in writing of the applicant.3 It is not an express indication that the intended order was that a conviction be recorded, although clearly enough no order was made that a conviction not be recorded, to give effect to that intention. [9] The bench charge sheet is stamped to indicate “PGIW4 on file not/accepted”.5 The bench charge sheet also appears to be stamped to record “convicted and fined the sum of $600” – the amount being endorsed by hand. It is not evident that the bench charge sheet was endorsed to further indicate an intention either way that a conviction be recorded, or that no conviction be recorded. Again, the absence of a specific order 3 See Justices Act 1886 (Qld) s 146A(4). 4 PGIW being to indicate “plea of guilty in writing”. 5 While not completed, it is clear from the record that the plea of guilty in writing was accepted. -- 4 of 10 -- 5 that no conviction be recorded had the consequence that a conviction was taken to have been recorded. [10] Accordingly, the verdict and judgment record states the judgment or order of the Court to have included the order of “conviction recorded” as well as the fine of $600 to be paid within 28 days. The applicant’s appeal to this Court [11] On 17 January 2022 the applicant filed a Notice of Appeal pursuant to section 222 Justices Act 1886. As the appeal was not brought within the timeframe provided for under section 222(1), the appeal was accompanied by an application for an extension of time in which to appeal. [12] The stated ground of appeal on the Notice of Appeal was that “the sentence was excessive by reason of the recording of a conviction”. As extrapolated upon within the written submissions of the applicant, it is contended “that the sentence was manifestly excessive because a conviction was recorded, and the Magistrate failed to properly consider section 12 of the Penalties and Sentences Act in the recording of a conviction”. In so framing the ground the applicant seeks to identify both legal and discretionary error on the part of the Magistrate at first instance, to the effect that this Court would conclude that the recording of a conviction ought to be set aside. Implicit within the ground of appeal, and confirmed in oral submissions at the hearing, no complaint is made about the quantum of the fine imposed. [13] In furtherance of his appeal, the applicant also makes an application pursuant to section 223(2) of the Justices Act 1886 to adduce further evidence to be considered on the appeal. The respondent’s position on the appeal [14] The application to adduce the further evidence and the application for the extension of time in which to bring the appeal are not opposed by the respondent.6 The respondent submits that this is an exceptional case whereby the court should receive the further evidence sought to be adduced by the applicant as pertains to the effect of the recording of a conviction on the applicant. 6 Paragraph 5.1 and 7.1 of the Outline of Submissions on behalf of the Respondent. -- 5 of 10 -- 6 [15] Further, the respondent’s position on this appeal is also to submit that there was identifiable error in the exercise of the sentencing discretion at first instance – namely that the learned Magistrate failed to consider the impact the recording of a conviction would have on the applicant.7 It is submitted by the respondent that this Court therefore ought to allow the appeal and sentence the applicant afresh, and that in doing so, in circumstances where the applicant left the premises immediately, co-operated with police, entered a plea of guilty, and had no criminal history, that the recording of a conviction was, and is, excessive.8 The legal framework for the appeal [16] Section 222(2)(c) of the Justices Act 1886 provides that 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 excessive9 or inadequate. [17] In order to succeed on such an appeal, an appellant must establish some legal, factual or discretionary error.10 [18] Subject to any granting of leave to adduce new evidence, an appeal pursuant to section 222 of the Justices Act 1886 is by way of rehearing on the evidence below.11 A judge on appeal is required to conduct a real review of the evidence and the learned Magistrate’s decision and make their own determination, giving due deference to, and placing a good deal of weight on, the view of the learned Magistrate at first instance.12 [19] As was stated in R v Pham (2015) 256 CLR 55013 by French CJ, Keane and Nettle JJ: “Appellate intervention on the ground/grounds of manifest excess/excessiveness … is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.” 7 Paragraph 5.2, 6.1 and 7.2 of the Outline of Submissions on behalf of the Respondent. 8 Paragraph 5.2, 6.1, 6.3, 7.3 and 7.4 of the Outline of Submissions on behalf of the Respondent. 9 The term “excessive” is not defined within the Act. 10 Allesch v Maunz (2000) 203 CLR 172, [22] – [23] followed in Teelow v Commissioner of Police [2009] 2 Qd R 489, [4]; White v Commissioner of Police [2014] QCA 121, [8]; McDonald v Queensland Police Service [2018] 2 Qd R 612, [47]. 11 Justices Act 1886 (Qld) s 223. 12 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, 686 at [43]. 13 At [28]. -- 6 of 10 -- 7 [20] Section 225(1) of the Justices Act 1886 states that: “225 Powers of judge on hearing appeal (1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just. … (3) For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against. …” Consideration of the application for an extension of time [21] Pursuant to section 222(1) of the Justices Act 1886, the time limit for filing a Notice of Appeal is one calendar month. A District Court Judge has the power to extend the time for filing a Notice of Appeal pursuant to section 224(1)(a) of the Justices Act 1886. [22] By way of the Notice of Application for Extension of Time for filing a Notice of Appeal to a District Court Judge filed 17 January 2022 it is alleged, by way of grounds for why time ought to be extended, that the applicant did not realise that a conviction had been recorded until the 6 January 2022 when he received an email from a potential employer advising that a criminal history check had revealed a criminal conviction. The applicant then sought legal advice and commenced the appeal. This is attested to in affidavit material under the hand of the applicant.14 [23] In R v Tait [1998] QCA 304 the Court of Appeal articulated the two considerations of relevance when determining whether an application to extend time for filing an appeal should be granted – namely whether there is any good reason shown for the delay; and whether it is in the interests of justice to grant the extension. In determining whether it is in the interests of justice to grant the extension, there must be a provisional assessment of the general merits of the appeal, along with a consideration of any prejudice to the respondent. 14 See also paragraphs [19]-[22] of the Outline of Submissions of the Applicant. -- 7 of 10 -- 8 [24] It is relevant that the application for an extension of time in which to appeal is not opposed. [25] I am satisfied in the circumstances that the application for an extension of time for filing of the Notice of Appeal ought to be granted. Application for leave to adduce evidence [26] Pursuant to section 223(2) of the Justices Act 1886 the District Court may give leave to adduce fresh, additional or new evidence, if the Court is satisfied that there are special grounds for so giving leave.15 [27] The evidence which the applicant seeks to adduce is an affidavit under the hand of the applicant sworn 1 February 2022. [28] To the extent that the affidavit pertains to the circumstances of the offence of Contravene police banning notice, or the applicant’s personal circumstances, the content is information that would have been available prior to the original sentence and could readily have been placed before the Court at that time. Some explanation has been proffered for why that course was not taken by the applicant. [29] In the circumstances, having ultimately determined from a review of the record at first instance that the appeal should be allowed, it is unnecessary to consider such further material as leave is sought to adduce. Accordingly leave is not granted. The affidavit material is considered only to the extent that it evidences the explanation for the delay in bringing the appeal. Disposition [30] It must be identified that it is perhaps not clear that the learned Magistrate had determined that a conviction ought to be recorded. However, it remains that no order was made that a conviction not be recorded. [31] Section 12 of the Penalties and Sentences Act 1992 provides that: “12 Court to consider whether or not to record conviction (1) A court may exercise a discretion to record or not record a conviction as provided by this Act. 15 See also Holden v Queensland Police Service [2018] QDC 217 at [24], [27]. -- 8 of 10 -- 9 (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. …” [32] As identified above, due to the manner in which the sentence hearing proceeded, the Magistrate did not hear submissions about the applicant’s character, and age,16 or the impact of the recording of a conviction would have on the applicant directly. No reference was made to such factors being of relevance in the course of the Magistrate’s perfunctory remarks. [33] The offence itself is one that carries a maximum penalty of 60 penalty units. [34] The reference during the proceedings and within the endorsement on the charge to the “plea of guilty in writing” is to indicate that the learned Magistrate was furnished with the correspondence of the applicant to the Court of 7 September 2021.17 In the absence of any submissions to the contrary from the prosecution, the applicant fell to be sentenced on the factual basis as contained within that correspondence. There is nothing about the circumstances of the offence or the offending that in and of itself would strongly mandate toward the recording of a conviction. [35] Further, in the absence of any positive submissions by the prosecution, the applicant fell to be sentenced on the basis that he did not have any adverse criminal history. [36] Mindful of the due deference to be shown to the decision of the Magistrate at first instance, in not making an order that no conviction be recorded, I am unable to conclude other than that the exercise of the sentencing discretion miscarried. I 16 Although the date of birth of the applicant was stated upon the charge. 17 As was required by Justices Act 1886 (Qld), s 146A(2A)(b)(i). See also Transcript of Proceedings of the hearing of 27 June 2022, at page 7. -- 9 of 10 -- 10 determine that the sentencing orders of the Magistrate ought to be varied to the extent of it being ordered that “no conviction be recorded”. Costs [37] The applicant seeks an order for costs to be calculated in accordance with Justices Regulation 2014, schedule 2, being an amount of $1800. [38] Such an order is acceded to by the respondent, in the circumstances of the case. [39] In accordance with sections 226, 232 and 232A(1) of the Justices Act 1886, I make an order that the respondent pay the applicants costs on this appeal, calculated18 to be in the amount of $1800. Orders [40] The orders are therefore as follows: 1. The Application for extension of time in which to file the Notice of Appeal is allowed. The time for filing of the Notice of Appeal is extended to 17 January 2022. 2. The Application to adduce fresh or further evidence is refused. 3. The Appeal is allowed. 4. The orders of the Magistrate of 5 October 2021 in the Magistrates Court at Brisbane are varied to the extent, and only to the extent of it being ordered that for the offence of Contravention of a police banning notice, that no conviction is recorded. 5. The respondent is to pay the applicant’s costs of and incidental to the appeal, in the amount of $1800. Such costs are to be paid to the Registrar of the District Court at Brisbane within 14 days, to be paid over to the applicant. 18 Calculated in accordance with Justices Regulation 2014, schedule 2. -- 10 of 10 --