Borchardt v Queensland Police Service [2021] QDC 101

DISTRICT COURT OF QUEENSLAND CITATION: Borchardt v Queensland Police Service [2021] QDC 101 PARTIES: NATASHA LEE BORCHARDT (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) FILE NO: 256/21 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Richlands Magistrates Court DELIVERED ON: 10 June 2021 DELIVERED AT: Brisbane HEARING DATE: 28 April 2021. JUDGE: Byrne QC DCJ ORDERS: 1. Appeal allowed. 2. The sentences imposed in the Richlands Magistrates Court on 19 January 2021 are vacated. 3. In their stead the following sentences are imposed: (i) In respect of the offences of contravene a direction or requirement on 30 April 2020, disqualified driving on 6 August 2020, fail to appear on 19 November 2020, contravene a direction or requirement on 28 November 2020 and disqualified driving on 28 November 2020 the appellant is admitted to probation for a period of two years on the conditions outlined in s 93(1) of the Penalties and Sentences Act 1992, and further conditioned that she report to an authorised Corrective Services officer at Inala by 4.00pm on 11 June 2021. (ii) Convictions on each of these offences are not recorded. 4. In respect of the offence of disqualified driving on 7 December 2020, I order that the appellant be -- 1 of 11 -- 2 imprisoned for a period of three months, wholly suspended with an operational period of 12 months. A conviction is recorded. 5. In respect of each offence of disqualified driving, the appellant is disqualified from holding or obtaining a driver’s licence for a period of two years. CATCHWORDS: APPEAL – s222 Justices Act 1886 – APPEAL AGAINST SENTENCE – ADHERENCE TO THE PRINCIPLES OF OPEN JUSTICE – where material which was before the Magistrate was relied upon in exercising his sentencing discretion – where the fact of the material being provided to the Magistrate prior to the hearing was not made known in an open Court – where the material relied upon by the sentencing Magistrate was not formally tendered at the hearing – where in exercising his sentencing discretion the Magistrate referred to the material – whether the Magistrate failed to conduct the sentence hearing consistently with the principles of open justice – whether the Court should vacate the sentences imposed by the Magistrate and exercise its sentencing discretion afresh. LEGISLATION: Justices Act 1886 (Qld) Penalties and Sentences Act 1992 (Qld) CASES: Allesch v Maunz (2000) 203 CLR 172 Ballard v Commissioner of Police [2017] QDC 174 Fox v Percy (2003) 214 CLR 118 Hay v Commissioner of Police [2016] QDC 358 Hogan v Hinch (2011) 243 CLR 506 House v the King (1936) 55 CLR 409 Johnson v Queensland Police Service [2015] QDC 264 Johnstone v Commissioner of Police [2019] QDC 109 Kentwell v the Queen (2014) 252 CLR 601 McDonald v Queensland Police Service [2018] 2 Qd R 612 Parker v Commissioner of Police [2016] QDC 354 R v Hannan; ex-parte Attorney-General (Qld) [2018] QCA 201 REW v Commissioner of Police [2018] QDC 213 -- 2 of 11 -- 3 Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 Russell v Russell (1976) 134 CLR 495 Scott v Scott [1913] AC 417 COUNSEL: Ms R. Fogerty (sol) for the appellant. Ms K. Le Mass for the respondent. SOLICITORS: Jasper Fogerty Lawyers for the appellant. Office of the Director of Public Prosecutions for the respondent. Introduction [1] The appellant appeals against sentences imposed in the Richlands Magistrates Court by Magistrate Shearer on 19 January 2021, following the entry of pleas of guilty. The details of the offences and sentences imposed are: 1. Contravene direction or requirement on 30 April 2020. 2. Driving a motor vehicle whilst disqualified by court order on 6 August 2020. 3. Fail to appear in accordance with undertaking on 19 November 2020. - for all of these three offences, fined $1500.00. Convictions recorded. 4. Contravene a direction or requirement on 28 November 2020. - convicted but not further punished. 5. Driving a motor vehicle whilst disqualified by court order on 28 November 2020. - three months’ imprisonment, wholly suspended with an operational period of two years. 6. Driving a motor vehicle whilst disqualified by court order on 7 December 2020. - five months’ imprisonment. Parole release date on 2 March 2021 (i.e. after six weeks). [2] In respect of each disqualified driving offence, the appellant was disqualified from holding or obtaining a drivers license for a period of three years. In each instance the legislation required that the period of disqualification be not less than two years but not more than five years. -- 3 of 11 -- 4 Grounds of appeal [3] The appellant appealed on a total of four grounds, three of which were added on the day of the hearing. They were: 1. The sentence imposed was manifestly excessive in all of the circumstances. 2. The sentencing magistrate erred in failing to consider s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld), namely the principle that imprisonment is a sentence of last resort. 3. The sentencing magistrate erred in failing to consider the full range of sentencing options that were available when dealing with multiple offences, including community-based orders and/or a suspended sentence of imprisonment and/or a combination thereof. 4. The sentencing magistrate failed to give sufficient weight to the impact of imprisonment on the appellant’s seven dependent children. [4] In addition, an issue was raised in the course of the hearing concerning adherence to principles of open justice in the course of the hearing. Nature of appeal [5] The appeal has been brought pursuant to s 222 of the Justices Act 1886, and so is by way of a rehearing on the record. [6] It is necessary for me to consider the evidence and make up my own mind about the effect of it, particularly where any inferences are to be drawn from primary facts.1 The onus is upon the appellant to show that there is some relevant error in the decision under appeal.2 Given the present appeal is an appeal against the exercise of a discretion, the principles from House v the King3 apply. The appellant submits that there is both specific error and an error of the last category referred to by the High Court in that case. [7] Where specific error is established, the Court’s power to intervene is enlivened and it has a duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. In terms of error of the last category in House v The King, the Court may only intervene if it concludes that the sentence falls outside the permissible range of sentences in light of all of the relevant circumstances including the circumstances pertaining to the offender and to the offence itself.4 1 Fox v Percy (2003) 214 CLR 118 at [22]-[25]; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at [43], [57]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47]. 2 Allesch v Maunz (2000) 203 CLR 172 at [23]; McDonald v Queensland Police Service, ibid. 3 (1936) 55 CLR 409, 505-506. 4 Kentwell v the Queen (2014) 252 CLR 601, [35]. -- 4 of 11 -- 5 Factual summary [8] In respect of the offence on 30 April 2020 for contravention of a direction or requirement, the appellant had been issued with a drug diversion notice on 5 April 2020 which required her to telephone an assessment program provider on 30 April 2020. She failed to do so. [9] In respect of the disqualified driving offence on 6 August 2020, the appellant was apprehended by police while driving a motor vehicle in Inala. She said she was driving to collect her daughter’s school shoes. She was issued with a notice to appear in the Richlands Magistrates Court on 4 September 2020. She failed to appear on that date and a warrant was issued for her arrest. [10] In respect of the fail to appear offence on 19 November 2020, she had again failed to appear in court on that date. At sentencing the court was informed this was because she said she had no-one to look after her children on that date. [11] For the offences of contravention of a direction or requirement and disqualified driving offence, both committed on 28 November 2020, the appellant was apprehended by police while driving a motor vehicle at a shopping centre at Ellen Grove. When required to provide her name, she initially provided a false name, namely her sister’s, but shortly afterwards admitted her identity. [12] In respect of the disqualified driving offence on 7 December 2020, the appellant was intercepted while driving a motor vehicle at Richlands. She admitted to police that her license was disqualified and that she said that she had been dropping her daughter off to childcare. [13] The background to the disqualified driving offences is that the appellant had been disqualified, whilst on a learner’s permit, for a period of 12 months in the Richlands Magistrates Court on 3 February 2020. [14] It is to be noted that the effect of the sentences is to require a period of actual incarceration. The appellant was granted bail pending this appeal on 15 February 2021, that is after serving 27 days imprisonment. Reasons for sentence [15] Magistrate Shearer recognised the entry of the plea of guilty, but was otherwise highly critical of the appellant. The following passages from the sentencing remarks, although lengthy, illustrate the tone of his approach to sentence: “When you were disqualified, that was an order of the court. You didn’t have a license anyway, but it was an order of the court. Orders of disqualification are not made – well they’re not suggestions. They’re not requests of people. They are orders and disqualified driving is a serious offence, because it consists in defiance of the law. It nullifies the order of disqualification if people who have been disqualified by the courts think they can just ignore it and get behind -- 5 of 11 -- 6 the wheel and drive again. Disqualifications are imposed for the protection of other members of the public… …and these sort of offences are far too prevalent. They come before this Court every single day – more than once a day usually, and they simply cannot be ignored with impunity…. You didn’t have a driver’s license. You knew you’d been disqualified. You knew the circumstances in which you had been disqualified and what that was for. You had no emergency of any type requiring you to drive. You were simply putting your own personal convenience ahead of compliance with the law, and ahead of the rights of other road users to drive their cars without the risk of coming across you or others like you, and running the risk of injury or death. You had no necessity to drive whatsoever. You could have called a taxi. Your partner could have driven. You could have walked. You could have got a lift from somebody else. You just – as I said, drove to suit your own convenience, and you were well aware you couldn’t drive but you chose to do it anyway. And the fact that you’ve done this not just once, not just twice, but three times whilst subject to disqualification, and two of those whilst you were unlawfully at large, having failed to appear in court for the first of the charges, aggravates the seriousness of the offending. The fact, as I pointed out to (your solicitor), that despite only ever having had a learner’s permit, in the last two years, you still managed to rack up 24 demerit points, plus two convictions for unlicensed driving, plus a conviction for being involved in a crash and failing to fulfil your duties, and now, three convictions for disqualified driving – just indicates what a serious risk you are to other road users – your ongoing and persistent contempt, and disregard for compliance with the law, and the need for a deterrent penalty, because quite clearly, the penalty that was imposed in February of last year wasn’t deterrent enough, so perhaps after today, you’ll get the message. But at the end of the day, road safety’s the paramount consideration, as well as the need to deter those who want to treat court orders with contempt, and a persistent disqualified driving inevitably results in the sentence of imprisonment. The fact that you’ve got nine children is a mere fact. It is not an overwhelming matter in terms of sentence. If all it took just to stay out of jail was breeding prolifically, then those with children would never go to jail, and it would be an excuse to get out of it every time you commit an offence, so having children is not a basis upon which you’d stay out of jail, because the children can either be cared for by a grandparent, their other parent, or the Department of Child Safety in an extremity, to the period you are in custody. I’ve taken into account all matters (your solicitor) has raised. In the last couple of years though, you’ve been dealt with repetitively by the court – serious criminal offending and as I’ve already pointed out, the serious traffic offending, and your behaviour hasn’t stopped, so I regard a sentence of actual imprisonment as being necessary in the circumstances – particularly, in relation to the third offence of -- 6 of 11 -- 7 disqualified driving, in the space of four months, and it is the only appropriate penalty in the circumstances.” [16] That passage of the sentencing remarks reflects the Magistrate’s other comments during the course of receiving submissions. Nonetheless the following passage of his observations during submissions is illuminating: “And when you drive disqualified once…you can legitimately expect a fine. You do it again while you’re on bail or unlawfully at large, you can’t expect another fine. You might legitimately think that a suspended sentence is an appropriate sentence. You do it a third time…” [17] The Magistrate was then interrupted by the solicitor appearing for the appellant but he went onto indicate he considered the appellant’s conduct indicated “a persistent attitude of contempt for the court order and disobedience of the law”. Submissions [18] The submissions of each party need not be recited in full. [19] The respondent correctly concedes that nowhere does the sentencing magistrate appear to have considered any sentencing option for the second and third of the disqualified driving offences other than imprisonment, and further accepts that the way that the impact of actual incarceration on the appellant’s children was considered may also speak of error, particularly in combination with the other conceded error. [20] Further, the respondent correctly concedes the point raised during the course of the hearing and accepts that there has been a fundamental error in the conduct of the sentence hearing in that it was not conducted according to principles of open justice. Consideration [21] It can be seen from the extracted portions of the sentencing remarks that the appellant’s criminal and traffic histories – both of which he described as “serious” – heavily influenced the sentences imposed. [22] However, while it is obvious that the sentencing Magistrate had both documents before him and relied on them (particularly the traffic history), neither were tendered at the hearing, and there is no record of them on the Court file. This Court had to be provided with copies of each document in order to conduct the appeal. [23] As has been authoritatively observed: “It is the ordinary rule of the Supreme Court, as of the other Courts of the nation, that their proceedings shall be conducted ‘publicly and in open view’. This rule has the virtue that the proceedings of every Court are fully exposed to public and professional scrutiny and -- 7 of 11 -- 8 criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the Courts. The fact that Courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’.”5 (footnotes and citations omitted) [24] There are recognised exceptions to this important principle, but none apply here. [25] This Court has on numerous previous occasions stressed the need for tendered exhibits to be marked and to form part of the Court records.6 I endorse the observations in those earlier decisions, but the use of material that was not open to scrutiny is more egregious. [26] The need to ensure material relied upon is available in a public way is well illustrated in the present instance. The sentencing Magistrate referred to the criminal history as “serious”. It clearly was not. There had been one prior appearance for offences of wilful damage and trespass on the same date and for an offence of fail to appear on an earlier date (presumably for a traffic offence). The failure to properly comprehend the limited seriousness of the criminal history could arguably amount to an error sufficient to justify appellant intervention, even though the traffic history was undoubtedly serious. This error would have been undetectable had the parties not sensibly provided the material on the appeal. [27] It is no answer that both parties also obviously had access to the material. First, that assumes that they all had the same material before the hearing, a proposition which cannot now be tested because the material that the sentencing Magistrate had before him is not now known. Secondly, this is not an issue of procedural fairness where one party does not have access to relevant and cogent material. This issue is concerned with the allied but distinct principle of open justice. [28] It can readily be accepted that slips can and will occur when dealing with the long lists of maters in busy Magistrates Courts such as that at Richlands. Often mere slips or errors are of little moment. But this is not merely forgetting to mark a document tendered in the course of the hearing but which nonetheless forms part of the Court file. It was not tendered in the course of the hearing but formed a central plank in the reasoning towards what was on any view a heavy sentence in the circumstances. [29] I see no difficulty in material, from either side, being provided to the sentencing judicial officer prior to the hearing, provided that the fact is made known in open 5 Russell v Russell (1976) 134 CLR 495, 520. See also Scott v Scott [1913] AC 417, 434-435; Hogan v Hinch (2011) 243 CLR 506, [20]. 6 See for example Johnson v Queensland Police Service [2015] QDC 264; Parker v Commissioner of Police [2016] QDC 354; Hay v Commissioner of Police [2016] QDC 358; Ballard v Commissioner of Police [2017] QDC 174; REW v Commissioner of Police [2018] QDC 213. -- 8 of 11 -- 9 Court and that all documentation earlier received forms part of the Court records. It is these two provisos which were not complied with in the present matter. [30] The failure to conduct the sentence hearing consistently with principles of open justice, particularly where the subject matter was central to the outcome of the hearing, was a breach of a fundamental principle and, in my view, vitiated the whole of the sentencing hearing. [31] It follows that appealable error is established and I need not consider the other grounds of appeal before exercising the sentencing discretion afresh. However, I do wish to make some brief observations about two of them. [32] First, I accept that the regimented observations about first time, second time and third time offending suggests that the only relevant consideration for sentencing purposes was thought to be the repetitive nature of the offending. The fallacy in this is obvious and suggests a failure, to have regard both to the express provisions of s 9(2)(a) of the Penalties and Sentences Act 1992 and to the appropriateness of other sentencing options in all of the circumstances. That is not to say that periods of actual incarceration can never be imposed in these or similar circumstances, but the decision-making must accord with the requirements of both legislation and accepted practice. [33] Second, the sentencing Magistrate’s approach to the impact of the period of actual incarceration on third parties involved a material mis-statement of principle. As was made clear in R v Hannan; ex-parte Attorney-General (Qld)7 the impact of a sentence on third parties is a relevant consideration on sentence but cannot, other than in exceptional or extreme circumstances, be allowed to overwhelm the punishment that would otherwise be appropriate. The mere fact that the appellant had seven children8 aged between nine months and 10 years should have been enough to alert the sentencing Magistrate to the possibility that this may be one of those rare matters where the consideration fell within the categories of exceptional or extreme. However he does not appear to have paused to consider that at all. The approach taken to the issue was far from that required by principle and may also reveal appealable error. Sentencing afresh [34] When sentenced in the Magistrates Court the appellant was 26 years of age and she is now 27 years. She has a minor criminal history but a notably poor traffic history. Overall, the picture is one of continued offending and of a poor regard for Court orders. She has not previously been offered the rehabilitative benefits of a community-based order and, as noted earlier, she cares for seven young children. 7 [2018] QCA 201, [45] – [50]. 8 The Magistrate referred to nine children, but the error is of no moment. -- 9 of 11 -- 10 [35] However, it cannot be forgotten that at least some of the current offences occurred while she was unlawfully at large and all of the disqualified driving offences occurred in the context of a previously Court ordered disqualification in circumstances where she holds only a learner’s permit. Her continued offending militates against the mitigatory factors in her favour to some degree. [36] Notwithstanding the submissions urging only a period of probation, the survey of cases undertaken by Loury QC DCJ in Johnstone v Commissioner of Police9 does not preclude the imposition of a period of actual incarceration in an appropriate case, particularly for a repeat or continuing offender. Whether or not this case required the service of a period of actual incarceration is a moot point given that the appellant has now served 27 days of custody before being released on bail. I need not grapple with that any further, given that any further period of actual incarceration would necessarily be for a particularly short period and therefore would not be appropriate in the circumstances before me. That period of 27 days actual incarceration should, act as a personal deterrent for future offending, and it will be taken into account in the framing of the sentences that I impose. [37] I consider that in the circumstances, combined orders of wholly suspended imprisonment and probation would be appropriate. They cannot however be combined in the one order for any single offence10 and so the orders will be spread across the charges. The conditions of probation have been explained to the appellant and I am told she consents to an order on the standard conditions. Orders [38] The orders I make are as follows: 1. Appeal allowed. 2. The sentences imposed in the Richlands Magistrates Court on 19 January 2021 are vacated. 3. In their stead the following sentences are imposed: (i) In respect of the offences of contravene a direction or requirement on 30 April 2020, disqualified driving on 6 August 2020, fail to appear on 19 November 2020, contravene a direction or requirement on 28 November 2020 and disqualified driving on 28 November 2020 the appellant is admitted to probation for a period of two years on the conditions outlined in s 93(1) of the Penalties and Sentences Act 1992, and further 9 [2019] QDC 109. 10 Section 92(5) of the Penalties and Sentences Act 1992. -- 10 of 11 -- 11 conditioned that she report to an authorised Corrective Services officer at Inala by 4.00pm on 11 June 2021. (ii) Convictions on each of these offences are not recorded. 4. In respect of the offence of disqualified driving on 7 December 2020, I order that the appellant be imprisoned for a period of three months, wholly suspended with an operational period of 12 months. A conviction is recorded. 5. In respect of each offence of disqualified driving, the appellant is disqualified from holding or obtaining a driver’s licence for a period of two years. -- 11 of 11 --