Amin v Queensland Police Service [2020] QDC 260

DISTRICT COURT OF QUEENSLAND CITATION: Amin v Queensland Police Service [2020] QDC 260 PARTIES: SHORASH NAZEER AMIN (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO: 621/20 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Holland Park Magistrates Court DELIVERED ON: 15 October 2020 DELIVERED AT: Maroochydore District Court HEARING DATE: 25 August 2020 JUDGE: Byrne QC DCJ ORDER: 1. Both the appellant’s and the respondent’s applications for leave to adduce additional evidence are granted. 2. Appeal dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – s 222 JUSTICES ACT 1880 – where the appellant was charged and convicted of 3 offences of making a false declaration – where the presiding Magistrate ordered a fine of $2,500 and recorded convictions – whether the presiding Magistrate erred in recording convictions – whether the sentence was manifestly excessive. LEGISLATION: Justices Act 1886 (Qld), s 222, s 223. Penalties and Sentences Act 1992 (Qld), s 12. CASES: Allesch v Maunz (2000) 203 CLR 172. Fox v Percy (2003) 214 CLR 118. House v the King (1936) 55 CLR 409. Kentwell v the Queen (2014) 252 CLR 601. Markarian v The Queen (2005) 228 CLR 357. McDonald v Queensland Police Service [2018] 2 Qd R 612. -- 1 of 9 -- 2 R v Brown; ex-parte Attorney General [1994] 2 Qd R 182. R v Cay, Gersch & Schell; ex-parte A-G (Qld) (2005) 158 A Crim R 488. R v Hooper; ex parte Cth DPP [2008] QCA 308. Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679. COUNSEL: Mr D. Gates for the appellant. Mr T. O’Brien (sol) for the respondent. SOLICITORS: Hounsell Cunningham Lawyers for the appellant. Office of the Director of Public Prosecutions for the respondent. Introduction [2] On 6 February 2020, the appellant was convicted, by his plea of guilty, in the Holland Park Magistrates Court of three offences of making a false declaration. The offences were alleged to have been committed on two separate dates, namely 15 July 2019 and 17 September 2019. Each offence was concerned with the appellant’s false declaration as to the identity of the driver of a motor vehicle at the time that a camera detected offence notice was issued. [3] The presiding Magistrate imposed a global fine of $2,500 and ordered that a conviction be recorded for each offence. It is against the recording of the convictions on the three offences that the appeal has been brought. The nature of the appeal [4] 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. Section 223(2) of the Justices Act allows for leave to be given to adduce fresh, additional or substituted evidence if the Court is satisfied there are special grounds for giving leave. In this appeal, both parties have sought to put before me material that was not before the Magistrate. It is appropriate that I receive this material, and that is with the consent of both parties. [5] In this appeal 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 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 of 9 -- 3 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 submit that there is both specific error and an error of the last category referred to by the High Court in that case. [6] 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 Factual summary [7] The appellant’s father was in the business of selling motor vehicles. He is a refugee from Iraq. It seems to have been accepted below that his grasp of the English language is poor. [8] The exact circumstances of the offending are little opaque, but on three separate occasions camera detected offence notices were issued to the appellant’s father in respect of motor vehicles which had been sold prior to the respective ticket-able offences. It was accepted below that the appellant had offered to find the owners of the vehicles in his father’s paperwork, and in the meantime had allowed his father to transfer each ticket into his name. Upon sifting through the father’s paperwork, the appellant came to realise that he could not identify the actual driver of each vehicle. He then set about finding similar make, model and colour motor vehicles and attributed the name of the buyers of those vehicles to the declaration on the tickets to the effect that they were driving the actual offending vehicle at the time. On the third occasions he used the name of a non-existent person. [9] Camera detected offence notices were issued in relation to these matters on 27 May 2019, 1 August 2019 and 27 August 2019. The appellant completed the offending false declaration in respect of the first of those notices on 15 July 2019. The defendant completed the offending declarations in respect of the other two notices on 7 September 2019. All declarations were completed before the same Justice of the Peace, and on both occasions it is accepted that the Justice of the Peace warned the appellant that it was an offence to make a false declaration. [10] The defendant pleaded guilty. Although not expressly referred to, it seems that it is a timely plea of guilty, at least that is the basis on which I will proceed. The sentencing remarks 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]. -- 3 of 9 -- 4 [11] In order to understand the sentencing remarks below, one needs to understand the course of defence submissions. After hearing the prosecutor, the Magistrate indicated that he was considering a disqualification of the appellant’s driver’s licence. The experienced solicitor appearing for the appellant recognised that the offences struck “at the heart of the administration of justice” and that there was a need for general deterrence in relation to this style of offending. The Magistrate then indicated, that being the case, he would receive submissions as to the appropriateness of suspended sentences of imprisonment. Cogent and focussed submissions were then made by the appellant’s solicitor and he submitted that either a community based order or a significant fine should be imposed with no convictions recorded. The Magistrate replied, “You’ll need to work very hard on section 12”. The solicitor made further submissions on that matter. [12] In sentencing, the Magistrate noted that false declaration offences of this nature go to the heart of the administration of justice and that a lot of the legal and regulatory systems in the State depended upon the honesty of people using those systems. He noted the maximum penalty for the offences was 3 years’ imprisonment. [13] He noted a previous conviction which he said did not specifically aggravate for the purposes of penalty, but did say something about the appellant’s character. His Honour accepted that the circumstances of the offences are different to the norm for this type of offence in that the appellant was not trying to preserve his own licence. He did not accept that the conduct however could be categorised as “simply stupid decisions” and considered them to be deliberate, conscious acts of dishonesty. He noted the need for a strong general deterrence as well as personal deterrence and that the appellant was an educated man who intended to become a medical practitioner. He considered that this type of behaviour was “well beneath such a profession”. He noted that the appellant had significant health issues as well as future plans in the medical profession. [14] His Honour then said: “In the circumstances where you have some significant health issues but also some significant future plans, and accepting that the charges fall outside the usual scope – that does not diminish their dishonesty in any way - I have been persuaded to move away from periods of suspended imprisonment. I have also been persuaded to move away from consideration of the disqualification of a driver’s licence. I am not, however, persuaded that your actions are sufficient and the consequences are sufficient to move away from recording convictions. You will face another seven years of study. You will have that seven years, at the very least, to demonstrate your integrity which has been badly damaged by these actions.” [15] His Honour then imposed the global fine that has been referred to, and referred that directly to SPER. His Honour then continued: -- 4 of 9 -- 5 “And convictions, as I have indicated, will be recorded, there being insufficient grounds for me to exercise my discretion in your favour, in my view.” The parties’ submissions [16] The appellant directs attention to s 12 of the Penalties and Sentences Act 1992 (“PSA”) and to authorities dealing with the correct approach as to whether or not to record a conviction. In particular, the appellant cites R v Cay, Gersch & Schell; ex- parte A-G (Qld)5 where earlier observations of Macrossan CJ in R v Brown; ex-parte Attorney General6 were considered to reflect the correct approach. That approach requires that all matters be taken into account and that the wording of s 12(2) of the PSA is not an exhaustive list of all relevant circumstances. There is nothing to justify granting predominance to one of those matters rather than to another, and they must all be kept in balance. [17] Keane JA in R v Cay, Gersch & Schell; ex-parte A-G (Qld)7 referred to a presumption that the existence of a criminal record as a general rule is likely to impair a person’s employment prospects. His Honour noted that the sound exercise of the discretion under s 12 of the PSA did not require the identification of specific employment opportunities which would be lost if a conviction is recorded. [18] The appellant’s submissions emphasise that the recording of a conviction is likely to affect the appellant’s intended future career in the medical profession. That intention is being supported by an affidavit upon which leave is sought to file in the appeal which informs the Court of the appellant’s tertiary qualifications, namely a Bachelor of Biomedical Science with Honours at QUT, and a doctorate of Philosophy at the same institution. The affidavit also confirms the presence of a previous lesion in the appellant’s brain which has been treated. [19] As to specific error, the appellant submits that the Magistrate formulated his sentence by a graduated reduction in penalty, having started at a point of suspended imprisonment which it is submitted was not appropriate, as opposed to properly exercising his discretion on the various relevant circumstances. In other words, the appellant submits that the Magistrate fettered his sentencing discretion. [20] It is said that an appropriate exercise of this discretion would have resulted in no convictions being recorded. [21] The respondent contends that the Magistrate was doing nothing more than airing his preliminary views after having heard only the prosecution statement of facts. It is submitted the Magistrate did not fetter his discretion and had taken the submissions of the appellant’s solicitor in to account in arriving at the appropriate sentence. 5 (2005) 158 A Crim R 488. 6 [1994] 2 Qd R 182. 7 ibid at [43]. -- 5 of 9 -- 6 [22] The respondent refers to a number of matters of principle which are designed to demonstrate that the recording of the conviction is not necessarily outside an appropriate exercise of discretion given the serious nature of the offending, notwithstanding the unusual circumstances of this particular offending. [23] Furthermore the respondent seeks leave to rely upon an affidavit which, apart from providing the transcripts of the proceedings below, also attaches some publicly available documents as to the registration standards of the Australian Health Practitioner Regulation Agency (“AHPRA”). The admission of the additional evidence [24] It is appropriate that both affidavits be received, and there is no objection from either party. [25] The contents of the respondent’s affidavit need to be explained in a little more detail. The AHPRA documentation indicates that the factors that the Board will consider when deciding whether a prospective health practitioner’s “criminal history” is relevant to their registration include, so far as is presently relevant: 1. the nature and gravity of the offence and its relevance to health practice; 2. the period of time since the health practitioner committed the offence; 3. whether a finding of guilty or conviction was recorded for the offence or a charge for the offence is still pending; 4. the sentence imposed for the offence; 5. the age of the health practitioner at the time the health practitioner committed the offence; 6. the health practitioner’s behaviour since he committed the offence; 7. the likelihood of future threat to a patient of the health practitioner; 8. any information given by the health practitioner; and 9. any other matter that the Board considered relevant. [26] Elsewhere the material shows that the AHPRA guidelines draw a distinction between the recording and non-recording of a conviction. It is expressly stated that convictions will be considered of more relevance than findings of guilt; I take that to mean findings of guilt without the recording of a conviction. Was there specific error? [27] The two passages from the sentencing remarks reproduced above tend to suggest, at face value, that the Magistrate did approach the imposition of sentence in a staged or graduated process. However it must be remembered that the sentence was delivered -- 6 of 9 -- 7 ex tempore, and no doubt in the context of disposing of a busy criminal list for the day. It is proper that some recognition be given to that when parsing the sentencing remarks for their true effect.8 [28] Having read all submissions carefully, and noting the course that they took, I am however satisfied that the Magistrate did not undertake a graduated approach to sentencing, and did not fetter his discretion. [29] It is only natural that a sentencer will have in mind a likely sentence, or group of likely sentences early in the sentencing hearing, based usually on the nature and number of the charges, the personal antecedents of the defendant and any facts he or she has been apprised of. The sentencer must adopt an integrated and synthesised approach to determining the appropriate sentence,9 but that does not mean that he or she cannot assume that a particular sentence is likely to be imposed, provided an open mind is maintained while all submissions are made. [30] Here, I am satisfied that the Magistrate did maintain an open mind. The Magistrate gave no indication as to any likely sentence immediately after having heard the prosecutor’s submissions (which did not include any submission as to the appropriate sentence or ranges of sentences). It was when the concession as to the seriousness of the offending was made by the appellant’s solicitor that he indicated he was considering suspended sentences. That does not mean he was earlier considering actual incarceration, and in fact suggests the opposite. [31] As he received the appellant’s submissions, he indicated a preparedness to accept that sentencing option may not be appropriate. He recognised that there was a discretion to be exercised as to the recording of a conviction, but ultimately was not persuaded that the appellant was entitled to the benefit of the non-recording of convictions given the seriousness of the offences and the specific offending itself. Whilst the reproduced passages, and particularly the latter, could have been better phrased, I consider them to be instances of infelicitous use of language rather than demonstrating relevant error. [32] Accordingly I am not satisfied that specific error has been demonstrated. Was the sentence otherwise manifestly excessive? [33] Again, this issue is directed only at the recording of convictions. As I have received additional evidence that was not before the Magistrate, I must determine this complaint on the basis of a rehearing on the material before the Magistrate as well as that additional evidence. [34] There are features which tend strongly to favour the recording of convictions. As was conceded both below and on appeal, the offences are serious and strike at the heart of the administration of justice. The conduct itself has particularly serious features about 8 R v Hooper; ex parte Cth DPP [2008] QCA 308, [23] 9 Markarian v The Queen (2005) 228 CLR 357. -- 7 of 9 -- 8 it. Although it was accepted that the notices were accepted by the appellant into his name as an act of altruism, he signed declarations that specific people were the owners when, in two instances, that was at best guesswork and in any event designed to mislead. In the third instance the name provided was of a person who did not exist; that was deliberately untruthful. [35] On each of the two occasions the declarations were made, the appellant was warned by the witnessing Justice of the Peace that it was an offence to make a false declaration. A single occasion of offending in the context of misplaced altruism might be excused, but the repetition of the serious offending cannot be so easily excused. The repetition of this serious offending puts it all into a category of seriousness. [36] The appellant presented before the Magistrate as a 28 year old man and so had some claims to the advantage of relative youth, although not extreme youth. He had a dated previous conviction for an offence of dishonesty, and while that was of limited relevance, he was not entitled to the same leniency as can be afforded to a first offender. [37] On the other hand, there are reasons to support the non-recording of convictions. The material before me satisfactorily establishes that the appellant has a defined and intended career path in the medical profession. That intended participation in that profession may be affected by the recording of convictions. That may affect his ambitions in overcoming disadvantage to participate in a noble profession. [38] However, the AHPRA guidelines also make it clear that even if convictions are not recorded, the mere finding of guilt on the three charges may be sufficient to affect his participation in the medical profession. The guidelines suggest that where convictions are recorded, the offences would be considered to be more serious than if convictions were not recorded, but regardless the appellant will have to disclose this conduct to the relevant Board. [39] Another relevant feature is the passage of time between the offending and the consideration by the Board and the health practitioner’s behaviour since that time. I was informed from the Bar table that the appellant hopes to shortly commence his four year post-graduate degree which would then be followed by three years of practical training. There is time, as alluded to by the Magistrate, for him to demonstrate that he has mended his ways. [40] The recording of convictions is not necessarily an insurmountable hurdle to the appellant achieving his career aspirations. It must be considered as one of many relevant considerations, and does not have a predominance that the appellant seeks to have it attain. What weight will be given to it, as opposed to the findings of guilt, will be a matter for the Board some years away yet. [41] I am satisfied that the Magistrate appropriately balanced all of the relevant features in arriving at the determination he did, which in my view was open as an appropriate exercise of his discretion. The further material relied upon by the appellant does not -- 8 of 9 -- 9 persuade me that a different sentence ought to be imposed when considered in light of all of the material, including the additional material relied on by the respondent. Orders [42] It follows that my orders are: 1. Both the appellant’s and the respondent’s applications for leave to adduce additional evidence are granted. 2. Appeal dismissed. -- 9 of 9 --