Ahmad v Commissioner of Police [2020] QDC 212

DISTRICT COURT OF QUEENSLAND CITATION: Ahmad v Commissioner of Police [2020] QDC 212 PARTIES: ALI ABDUL RAHMAN AHMAD (Appellant) V THE COMMISSIONER OF POLICE (Respondent) FILE NO/S: Appeal No 3537 of 2018 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 8 September 2020 DELIVERED AT: Brisbane HEARING DATE: 7 August 2020 JUDGE: Porter QC DCJ ORDERS: 1. Extend time to appeal to 30 September 2019. 2. Appeal allowed. 3. The sentence imposed by the Magistrates Court on 19 July 2017 be varied so as provide that no conviction be recorded. CATCHWORDS: MAGISTRATES – APPEAL AND REVIEW QUEENSLAND – APPEAL – where the appellant pled guilty in the magistrates court to one count of sexual assault – where the learned magistrate recorded a conviction – where the appellant demonstrates limited intelligence and lack of knowledge of legal processes – where the appellant was unaware of the ramifications of recording a conviction – where the appellant now appeals the recording of a conviction – where the appeal is brought over 2 years since the recording of a conviction – whether to grant leave to extend time to appeal under s. 224(1)(a) of the Justices Act 1886 (Qld) – where there -- 1 of 8 -- 2 has been no offending since the original offence – where probation has been fully complied with – where fresh evidence should be admitted under s. 223 of the Justices Act Legislation Justices Act 1886 (Qld) ss. 222(2)(c); 223(2); 224 Cases Pavlovic v Commissioner of Police [2007] 1 Qd R 344 R v Briese; ex parte Attorney-General [1998] 1 Qd R 487 R v Cay, Gersch and Schell; ex parte A-G (Qld) 158 A Crim R 488 R v Kane [2019] QCA 86 R v LAL [2019] 2 Qd R 115 R v Verdins (2007) 16 VR 269 R v Yarwood [2011] QCA 367 COUNSEL: A Ahmad (self-represented) E A G McGregor for the respondent SOLICITORS: Appellant self-represented Office of the Director of Public Prosecutions Introduction 1. Mr Ali Ahmad was convicted on his own plea of guilty to one count of sexual assault on 19 July 2017. He was sentenced to 2 years’ probation with a conviction recorded. 2. In September 2019, over two years after the expiry of the appeal period, he filed a Notice of Appeal which, in effect, sought to have the recording of a conviction reversed. For the reasons which follow, I consider he should have an extension of time to file his Notice of Appeal and that the appeal should be allowed. The first instance decision 3. The circumstances of the offending were troubling. I am fully conscious of them. The following occurred: 2.1 On 11 August 2014, the complainant was studying in the Queensland State Library at South Brisbane. At 6:50pm, she was approached by the appellant who attempted to have a conversation with her. She ignored the appellant and continued studying. 2.2 At 7:52pm, the complainant was laying down on a nearby couch reading when she felt something hit the right side of her neck. She looked up and saw the appellant standing next to her holding his penis. The complainant saw ejaculate on the end of the appellant’s penis and realised that that was what had hit her neck. 2.3 The defendant’s ejaculate had also landed on the right shoulder of her jacket and on the couch she was lying on. 2.4 The appellant immediately ran away, down a nearby lift and into the main foyer area. Library security was alerted by the appellant running through the building. He was stopped at the entrance. The applicant was detained by a nearby Police Patrol who had also been alerted. -- 2 of 8 -- 3 2.5 The appellant told police that he had been masturbating and ejaculated within the library but denied any interactions with the complainant. He was taken to the Dutton Park Police Station where he was formally charged. 4. The offence occurred in 2014. The learned Magistrate noted that the long delay between detection and the sentencing was caused by a reference to the Mental Health Tribunal to determine if Mr Ahmad was fit to stand trial. Ultimately, the Mental Health Tribunal concluded he was fit to stand trial. 5. The material before the Mental Health Tribunal was not put before me on the appeal. However, it is evident from a report of Associate Professor Freeman put before the Magistrate, that the Mental Health Tribunal reference was very likely the result of the very low intelligence of Mr Ahmad. 6. When the matter came before his Honour, evidence was placed before his Honour in the form of a psychology report from Associate Professor Freeman. That reports primary main conclusions were sufficiently summarised in the submissions by Mr Clements to his Honour as follows: I won’t go through much, but I just thought I’d highlight a couple of issues from that report. It – it discusses that he’s likely – suffers from intellectual impairment. He doesn’t have any aggressive violence or any social tendencies. There’s no evidence that he was suffering from any form of sexual arousal, desire or misfunction disorder at the time. There’s no underlying deviant ideation or outstanding criminogenic needs that can explain the offence; rather, he appears to have engaged in opportunistic behaviour for the purpose of immediate sexual gratification. The current offence appears to represent an isolated incident with non- consequential thinking, and in regard to his risk of reoffending, the defendant can be considered in the low-risk category, based on the sexual offender appraisal guide. And he notes that sexual recidivism on top of that is also one of the least likely committed crimes. He notes that Mr Ahmad presents as an individual who would abide by the conditions of a community-based order.1 7. Importantly, Mr Clements went on to make this submission to His Honour: In my submission, taking into account the considerations from the High Court decision of Muldrock v The Queen, which discussed – that’s [2011] HCA 39 – general deterrence will often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such a person is not an appropriate idiom for making an example to others. Taking into account that consideration, the fact that Mr Ahmad has pleaded guilty to this offence; that he – the offence is dated 2014. Aside from that one fail to appear on this charge, there is no other criminal history. The fact that, as the opinion of the psychologist that he’s a low-risk of reoffending, and he is someone who would abide by conditions of a community- based order, I would submit that a lengthy period of probation is appropriate with the additional condition that he undertake psychological counselling, which is what is recommended by Professor James Freeman in his report 8. Mr Clements went on to submit that no conviction ought to be recorded. In doing so he made these points: (a) Mr Ahmad had not offended except to fail to appear on one occasion since being granted bail some 3 years before; (b) Mr Ahmad had had difficulty with study and work given his Intellectual Impairment; (c) He had no criminal history and had shown remorse so far as he seemed able; and 1 TS 1-5. -- 3 of 8 -- 4 (d) He was still relatively young. 9. The learned police prosecutor submitted for a lengthy term of probation and Mr Clements for Mr Ahmad more or less accepted that proposal as appropriate. 10. His Honour made that order. He also recorded a conviction. His Honour’s reasons on this issue were brief: In terms of recording or not recording a conviction, there is discretion in the court, pursuant to section 12 of the Penalties and Sentences Act. Mr Clements, there’s a decision of Keenan J [sic Keane JA] in the Court of Appeal; what was that case – that judgment of the Court of Appeal, in particular the judgment of Keenan J?2 But I’ve taken into account the possibility of a nexus between your mental state and your impaired status and the offending in question. Nonetheless, the offence is a serious one. The victim was not known to you. In addition to that, I note at paragraph 4.1 of the psychologist’s report it states: He was only able to articulate an extremely basic level of remorse and did not provide any victim empathy. Example, “I feel bad.” So there are some matters in support of not recording a conviction, but, in my view, a conviction must be recorded, in the exercise of my discretion. All right. Thank you, Mr Prosecutor, Mr Clements.3 Appeal against sentence 11. Mr Ahmad filed his Notice of Appeal in about September last year, over 2 years since the sentence was imposed. He has had no assistance with this appeal, despite his very significant challenges in acting for himself, bearing in mind his very limited abilities. However, he has more or less complied with the formal steps required to get this matter before the Court. That shows a determination to do things properly, despite his limitations. 12. Mr Ahmad’s Notice of Appeal was brief. It is best understood by reference to his short submission which provides: Introduction After trial at the victim Ali at the magister (sic) court was convicted with a charge of Sexual Assaul (sic) charge with a sentenced (sic) to 2 years of probation. Grounds of appeal Section 1 - Can’t get a visa on criminal record. - If its removed from the system it might a better chance to get a visa. Section 2 - I can’t work on criminal record, stuck at home like a mum. - More access to more jobs for the future and better to get my career goals hopes and dreams. Section 3 - I didn’t know about the law. - I thought it would be removed after 2 years from my record. 13. Although brief, the outline informed the Court of two important matters: 2 His Honour appears to be referring to Justice Keane in R v Cay, Gersch and Schell; ex parte A-G (Qld) 158 A Crim R 488. The transcript incorrectly states Keenan J. 3 TS1-3 of His Honour’s reasons. -- 4 of 8 -- 5 (a) First, the explanation for the delay in appealing was that Mr Ahmad did not understand that there would be on-going consequences from his sentence after completion of his probationary period, and only realised that when the probation expired; and (b) Second, his appeal was limited to challenging the recording of a conviction. Leave to appeal out of time 14. The respondent Commissioner has opposed leave to appeal out of time because it is contended: (a) The delay is not explained sufficiently and not explained on oath at all; and (b) The appeal has poor prospects of success. 15. At the hearing, I granted leave under s. 224(1)(a) Justices Act 1886 (Qld) to extend time to appeal to the date the Notice of Appeal was filed, being 25 September 2019. I made that order for the following reasons. 16. First, Mr Ahmad has communicated, albeit not on oath, that he did not understand that he would have a conviction which affected him after the expiry of the probation period. That seems objectively credible given his limited intelligence and evident lack of understanding of the legal process. It is also consistent with the fact that he instituted this appeal not long after the expiry of the probation period. It is quite likely that it would have taken him a couple of months to realise the effect of the recording of the conviction. Although there are good reasons to subject unsworn statements by litigants in person to careful scrutiny, it seems to me that the reason identified in the outline in this case is credible and consistent with Mr Ahmad’s conduct and no suggestion was made by Ms McGregor, the counsel for the Commissioner, to the contrary. Ultimately, after adjourning to take instructions, Ms McGregor did not press the argument that there was no adequate explanation of the delay as a reason to refuse an extension of time to appeal. I think that position correctly on taken on the facts of this case. 17. Second, the Commissioner could point to no specific prejudice which flowed from the delay in bringing the appeal. Given that, the long duration of the delay loses much of its relevance to the exercise of the discretion to extend time. It is to be remembered also that Mr Ahmad’s appeal does not seek to upset the sentence imposed. Quite the opposite. He has served the period of probation and (as is conceded by the Commissioner) with success. It seems unlikely to me that any prejudicial consequence could flow to the complainant from permitting reconsideration at this stage of the recording of a conviction. 18. Third, the main argument advanced by Ms McGregor as to why the extension of time should be refused was that the appeal had poor prospects of success. However, as will be seen, even on the material before His Honour, I consider the appeal was very likely to succeed. And taking into account the further matters which I permitted to be put before this Court, the appeal must succeed. Appeal should be upheld 19. The recording of a conviction has been characterised as being a part of the sentencing process.4 In my view, therefore, the recording or a conviction should be properly 4 R v Briese; ex parte Attorney-General [1998] 1 Qd R 487 at 489 – 490. Recently applied in R v LAL [2019] 2 Qd R 115, at [37]. -- 5 of 8 -- 6 characterised as an appeal against the “fine, penalty, forfeiture or punishment” imposed by the Magistrates Court. As this involved a plea of guilty, Mr Ahmad may only appeal on the sole ground that recording the conviction, along with the 2 years’ probation, comprised a punishment that was excessive.5 There is some uncertainty as to how precisely that that statutory limit on the scope for appeal is to be applied.6 However, it is unnecessary to consider that in this case. In my view, for the reasons I now give, I consider that his Honour’s decision to record a conviction was, on the evidence before him, excessive and involved a number of legal errors. 20. It is not strictly necessary to establish that the sentence was excessive before his Honour however. That is because I have admitted new evidence on this appeal. The consequence of doing so is that I must sentence afresh. Doing so in the circumstances now before me, the decision to record a conviction should be reversed. I turn to identify the fresh evidence put before me. Fresh evidence 21. It is a remarkable aspect of this appeal that Mr Ahmad did not bring it until after the performance of his 2 years’ probation. However, where an appeal is brought in relation to recording a conviction, it seems to me that a compelling consideration will be whether, and to what extent, the probation was served without incident. Ms McGregor accepted from the Bar Table that the probation had been served satisfactorily and without a material breach. 22. It was also conceded that there was no other offending since the sentencing hearing in 2017. It seemed to me proper to take into account this material on the appeal. It met the test usually identified as relevant to the exercise of the discretion to admit new evidence under s. 223(2) of the Justices Act (Qld). That being that the evidence is credible, it is material to the outcome of the appeal and it could not have been obtained at the time of the sentence hearing.7 That is not to say that every party who complains about recording of a conviction will be able to come along years later, after performing well on probation or parole, and seek to impugn the original decision. 23. However in this particular case, the discretion to admit the evidence is favoured by the facts that: (a) I have already accepted that Mr Ahmad did not understand the effect of his sentence at the time and only realised the impact of recording of a conviction after completion of his probation; and (b) I consider in any event there was a strong argument, even without this additional evidence, that the exercise of the discretion to record a conviction miscarried. 24. I have already dealt with the first matter in paragraph [16] above. Recording a conviction made the sentence excessive 25. In my view, on the evidence before his Honour, the discretion to record a conviction miscarried for one or more of the following reasons, so as to make the inclusion of the recording of the conviction in the sentence excessive. 26. First, it was plain from Associate Professor Freeman’s report that Mr Ahmad was not an ordinary 25 year old man. He had a very much younger mental age. He should 5 S. 222(2)(c) Justices Act (Qld) 6 Ross v Commissioner of Police [2018] QDC 99 at [10] 7 Pavlovic v Commissioner of Police [2007] 1 Qd R 344 at [15] – [22] -- 6 of 8 -- 7 properly have been treated in a similar way to a much younger offender. His Honour did not refer to that as a consideration. A Court should take particular care in recording a conviction for a youthful first offender because of the significant impact a conviction can have on someone starting out in life. Rehabilitation assumes much greater significance in such cases. Mr Ahmad in my view should have been treated in that way. 27. Second, that consideration is all the more compelling where low intelligence is sufficiently marked to engage one or more of the sentencing considerations identified in R v Verdins (2007) 16 VR 269, which have been recognised and applied in this State.8 Reduced intelligence is not of itself necessarily a matter which will tend to sustain the conclusion that the discretion should be exercised not to record a conviction. However, where it is linked to immaturity and lack of impulse control, and where there is evidence that there is a low risk of re-offending (as there was in Associate Professor Freeman’s report), they are material. Relevant to whether to record a conviction are the reduction in moral culpability, the adequacy of the probation order to provide supervision for Mr Ahmad in his conduct post sentence, the lesser significance of general deterrence and denunciation as factors which taken with the serious of the offence, justify refusal to exercise the discretion. 28. His Honour did comment that he had taken into account the possibility of a link between his impaired status and the offending in question. However that comment is difficult to reconcile with his Honour’s subsequent reasoning. His Honour focused on the objective seriousness of the offence and adopted the view that the basic level of remorse expressed seemed to overwhelm those other considerations. I accept that this approach might be argued to reflect that his Honour took all these factors into account and simply reached a different view from the one I reach on this appeal. If his Honour did so, however, it is difficult to see how that was done properly without a little more explanation of his reasoning. Further, it appears to proceed on the assumption that the limited insight which made remorse basic at best reflected some risk of re-offending. That was inconsistent with the evidence, both as to Mr Ahmad’s performance on bail and as to the report’s conclusions. 29. Third, his Honour referred to a case in the quote in paragraph [10] above. The case was undoubtedly the decision of Justice Keane while in the Queensland Court of Appeal in R v Cay 158 A Crim R 488. However, his Honour did not refer to the considerations raised in that case which, on the facts of this case, might have favoured not recording a conviction. These factors include the prospect that recording a conviction would affect Mr Ahmad’s chance of obtaining employment.9 They also include that opinion of Associate Professor Freeman that the conduct in this case was “an isolated incident of non-consequential thinking”.10 30. Ultimately, it is not necessary to conclude that his Honour’s discretion miscarried in a manner which resulted in an excessive sentence. However, for the above reasons, if I had been required to reach that conclusion, I would have done so. I say that respectfully and bearing in mind the pressures on Magistrates in the conduct of their extremely busy courts. Exercising the discretion afresh 8 R v Yarwood [2011] QCA 367 at [22] and more recently, R v Kane [2019] QCA 86 at [35] 9 See [43] of his Honour’s judgment. 10 See [46] of his Honour’s judgment and paragraph 12.2 of the report. -- 7 of 8 -- 8 31. No challenge was made to the probation order imposed by his Honour. It was plainly not excessive. I consider that was the correct order to make in this case. 32. However, in re-exercising the discretion as to whether to record a conviction, I have decided that a conviction should not be recorded. The reasons for that decision are evident from what I have written so far. To summarise, however, I consider that the discretion should be exercised not to record a conviction because: (a) Mr Ahmad was young at the time of the offending and for reasons I have given should be treated in the same way as the youngest of adult offenders; (b) Recording a conviction is very likely to affect his limited employment chances, particularly given the kinds of food service jobs he might be able to obtain; (c) Mr Ahmad must be treated as being a very low risk of re-offending. Not only did the report opine as much on credible grounds, he has also gone over 6 years without re-offending and completed his probation without incident. (d) Those events provide a very firm basis for concluding that the incident was, as the report suggested, an isolated incident; and (e) Given his limitations, not recording a conviction will not weaken general deterrence nor community denunciation which might be called for in a similar case for a person of normal intelligence. 33. This was a serious offence, but in the above circumstances, a conviction should not have been recorded. -- 8 of 8 --