CEJ v Commissioner of Police [2020] QDC 32

DISTRICT COURT OF QUEENSLAND CITATION: CEJ v Commissioner of Police [2020] QDC 32 PARTIES: CEJ (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: D152/19 DIVISION: Appellate PROCEEDING: Appeal against sentence ORIGINATING COURT: Maroochydore Magistrates Court (Magistrate Baldwin) DELIVERED ON: 25 March 2020 DELIVERED AT: District Court of Queensland at Maroochydore HEARING DATE: 27 February 2020 JUDGE: Cash QC DCJ ORDERS: Orders as set out in paragraphs [15] to [17] of the judgment. CATCHWORDS: MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – GROUNDS – where appellant pled guilty to various offences before a Magistrate – where appellant sentenced to: one month imprisonment wholly suspended, probation for two years, pay a fine of $1,800, pay $1,398 in compensation, and his driver’s licence was disqualified for two years – where appellant had no prior convictions – where appellant suffered from various mental disorders – whether the punishment was excessive – whether voluntary intoxication and or the appellant’s personality traits played a role in the offending – whether the Magistrate “failed to sufficiently regard the appellant’s financial capacity” to pay fines and compensation Justices Act 1886 (Qld), s 222, s 225 Penalties and Sentences Act 1992 (Qld), s 95, s 96 Allesch v Maunz (2000) 203 CLR 172 Kumar v McGarvey [2010] QDC 249 R v Goodger [2009] QCA 377 R v Matauaina [2011] QCA 344 R v Tsiaras [1996] 1 VR 398 R v Verdins (2007) 16 VR 269 -- 1 of 7 -- 2 COUNSEL: N Turner of counsel for the appellant S Drinovac for the respondent SOLICITORS: Anderson Fredericks Turner for the appellant Office of the Director of Public Prosecutions for the respondent [1] On 29 August 2019 the appellant appeared before a Magistrate at Maroochydore. The appellant pled guilty to a number of offences, most of which were committed in January and February 2019. After hearing submissions, the Magistrate made various orders. The effect of the orders were that the appellant was imprisoned for a month, but the imprisonment was wholly suspended. He was also placed on probation for two years, fined a total of $1,800, ordered to pay $1,398 in compensation, and his driver’s licence was disqualified for two years. [2] Pursuant to section 222 of the Justices Act 1886 (Qld) the appellant appealed against the severity of the sentences imposed. In written submissions, the respondent conceded that the Magistrate erred in ordering fines and compensation in the amounts levied, notwithstanding that the Magistrate had regard to the matters set out in section 48 of the Penalties and Sentences Act 1992 (Qld). It was said by the respondent that the Magistrate “failed to sufficiently regard the appellant’s financial capacity”. By the concession the respondent accepts the decision of the Magistrate was the result of “some legal, factual or discretionary error”.1 It was common ground at the hearing of the appeal that it was appropriate set aside the orders of the Magistrate and to make other orders I consider just;2 that is, to consider the sentencing exercise afresh. Circumstances of the appellant’s offences [3] The appellant committed a series of offences across January and February 2019. A further offence of aggravated contravention of a domestic violence protection order was committed in June 2019. The table below sets out each offence, a brief summary of its circumstances and the penalty imposed: Date Offence and Circumstances Penalty 17 January 2019 Driving while disqualified Driving an unregistered vehicle Driving an uninsured vehicle The police stopped the appellant who was driving a car with no registration plates. The car was not registered or insured. The appellant’s licence had been disqualified in October 2018. He told police he recently bought the car for $500 and could not afford registration or insurance. $600 fine for disqualified driving and disqualification of licence for two years. Single fine of $600 for driving an unregistered vehicle and driving an uninsured vehicle. 24 January 2019 Contravene requirement Police directed the appellant to attend a police station within seven days to be photographed and to provide fingerprints. The appellant did not comply. Convicted and not further punished. 1 Allesch v Maunz (2000) 203 CLR 172, 180. 2 Justices Act 1886 (Qld), section 225(1). -- 2 of 7 -- 3 29 January 2019 Wilful damage After being declined a loan at a Cash Converters store the appellant kicked an advertising sign and caused $189 damage. 2 years’ probation $189 compensation 30 January 2019 Driving while disqualified Driving an unregistered vehicle Driving an uninsured vehicle The appellant was again stopped by police driving his unregistered and uninsured car, and while his licence remained disqualified. 1 month’s imprisonment, wholly suspended for 2 years for disqualified driving. Single fine of $600 for driving an unregistered vehicle and driving an uninsured vehicle. 2 February 2019 Wilful damage During an argument at Sunshine Plaza the appellant banged and dented the roof of a car with the palm of his hand and kicked and smashed a taillight. The damage totalled $1,209.80 2 years’ probation $1,209.80 compensation 7 February 2019 Public Nuisance Refused entry to licensed premises Assault police Obstruct Police The appellant was ejected from a nightclub at Mooloolaba. He attempted to re-enter and became aggressive when refused entry. When police intervened he swore abuse at them and resisted physically. He pushed a police officer in the chest causing her to stumble and briefly escaped. When he was grabbed again the appellant resisted and yelled threats at the police. 1 month’s imprisonment, wholly suspended for 2 years for assault police 2 years’ probation for obstruct police and public nuisance Convicted and not further punished for being refused entry. Around 24 February 2019 Enter premises and steal The appellant smashed the window to a Church kitchen, entered and stole groceries and cash from the donation box. 2 years’ probation 22 June 2019 Contravene a domestic violence protection order The appellant breached a condition of an order intended to protect his parents swearing, acting aggressively and threatening violence to them. 2 years’ probation [4] As well, the appellant was re-sentenced for offences first dealt with in February 2019 as a result of his failure to comply with a good behaviour bond. [5] The total effect of the orders made were as follows: (a) Imprisonment for one month wholly suspended for two years; (b) Probation for two years; (c) Fines totalling $1,800; (d) Compensation totalling $1,398.80; -- 3 of 7 -- 4 (e) Forfeiture of a recognisance of $300; and (f) Disqualification of driver’s licence for two years. The appellant’s personal circumstances [6] The appellant was 23 years old when he offended and 24 years old when sentenced. In February 2019, when he committed the majority of offences the subject of these proceedings, he had no prior criminal convictions. By the time he came to be sentenced the appellant had twice appeared before a Magistrate at Maroochydore. On those occasions he was convicted of contravening domestic violence protection orders (two charges), contravening a police direction, public nuisance, receiving tainted property and possessing suspected tainted property. These proceedings resulted in a fine and good behaviour bond. The appellant had also been convicted twice in 2018 of offences of driving while a relevant drug was present in his body. [7] As an 18 year old the appellant was diagnosed with schizophrenia and then bi-polar disorder. For a time he managed his mental health with medication. But prior to these offences the appellant started using cannabis with devastating consequences on his mental health. At times the appellant was detained under the Mental Health Act 2016 (Qld). He spent several weeks as an involuntary psychiatric inpatient immediately following the offences committed in February. The Magistrate had the benefit of a report from a consultant psychiatrist with experience in acute care and homelessness. The appellant’s mental health presented a complicated picture. While it is likely he suffers from a severe and enduring mental illness that is most likely bipolar disorder, he also displayed personality traits that probably contributed to his antisocial and criminal behaviour. An assessment at the time of the appellant’s arrest in February 2019 indicated that he was thought disordered and in a vulnerable state. [8] Since the appellant left hospital he returned to live with his parents. He also engaged again with his treating psychiatrist and resumed medication. In a letter written by his parents they described the appellant as “becoming well”. The submissions of the parties as to the appropriate orders on the appeal [9] For the appellant it was submitted that the appropriate orders were for probation, fines in a substantially smaller amount than originally imposed, and licence disqualification. For the respondent it was submitted that the appropriate orders were to, in effect, replace the fines with a community service order and otherwise leave the orders of the Magistrate intact. Consideration [10] The Magistrate was conscious that the appellant had little, if any, capacity to pay fines and compensation. Her Honour attempted to deal with this reality by ordering the fines and compensation be referred to the State Penalties Enforcement Registry (‘SPER’) to be dealt with by them in the event of default. The difficulty with such an approach is that it is likely to result in additional sanctions being imposed upon the appellant. While the present system does not operate as harshly as orders for default imprisonment, referral to SPER is not without consequence. The Magistrate considered the appellant’s capacity to pay a fine and compensation and was clearly conscious of the difficulty the appellant would face paying these penalties. It may be that the Magistrate felt that a referral to SPER would be sufficient to take the “sting” -- 4 of 7 -- 5 out of the monetary orders. But considering the appellant’s position, it was in my view an error to impose upon him such a financial burden with all its attendant consequences.3 [11] There was discussion at the sentence hearing about the extent to which voluntary intoxication played a role in the appellant’s offences. It may be assumed intoxication played some role. It might also be assumed that personality traits, as opposed to mental illness, also contributed. In this as in many cases it would not be possible to determine what role each factor played. There is ample authority for the proposition that mental illness that contributes to offending may be relevant in a number of ways.4 It may reduce the offender’s moral culpability. It may render denunciation and deterrence of less significance. These are factors that suggest a more lenient sentence might be appropriate. On the other hand, mental illness may in some cases suggest that an offender will have difficulty rehabilitating and may represent an ongoing risk of further offences. Such may require a sentence in which the protection of the community is the primary concern. While the precise position of the appellant was not clear, diagnosed mental illness played a not insignificant role in his offending. The circumstances he faced, and the steps taken to address his difficulties, favoured a sentence that gave more weight to rehabilitation than to deterrence, denunciation and the protection of the community. [12] The Magistrate was faced with a difficult sentencing exercise. The goals of deterrence and denunciation were very much in tension with the desirability of promoting rehabilitation. The appellant came to be sentenced as a relatively young man with little prior contact with the criminal justice system. He laboured under the difficulties of mental illness. The offences he committed were numerous but mostly not serious. The appellant was unlikely to be able to pay and fines or compensation. [13] In the circumstances, a sentence of imprisonment, even one that was wholly suspended, was inappropriate. As well, imposing fines and compensation when it was unlikely the appellant would be able to pay only added to the burden of the sentence. Notwithstanding the appellant had committed an offence of violence, for which imprisonment was no longer a sentence of last resort, sentences that provided for the rehabilitation of the appellant were in his interests and those of the community. [14] Considering matters afresh, I have reached the conclusion that the appropriate sentences are ones that involve probation for a total period of two years from the date of sentence, a modest fine, the removal of the orders for compensation and the disqualification of the appellant’s licence. Each of the orders I make are taken to have effect from the date of sentence, 29 August 2019.5 It is also necessary to consider whether or not convictions should be recorded. The matter was not addressed at the hearing of the appeal. There is nothing in the material to suggest the recording of a conviction would have a particular impact upon the appellant. On the other hand he is a young man and, with the exception of assaulting police, his offences are not serious. In order to allow the appellant the best chance at rehabilitation I do not intend to record convictions. Of course, if he were to be re-sentenced as a result of breaching the probation orders the recording of convictions will be mandatory. 3 Kumar v McGarvey [2010] QDC 249; R v Matauaina [2011] QCA 344. 4 R v Tsiaras [1996] 1 VR 398, 400, R v Verdins (2007) 16 VR 269, 271 [5], 276 [32]; R v Goodger [2009] QCA 377, [21]. 5 Justices Act 1886 (Qld), section 225(4). -- 5 of 7 -- 6 [15] Prior to the delivery of these reasons the appellant’s lawyers explained to him the purpose, effect and possible consequences of a probation order.6 The appellant also indicated he agreed to the making of the orders and he will comply with them.7 To give effect to the conclusion I have reached, I will allow the appeal and set aside the orders made by the Magistrate in relation to Magistrates Court file numbers MAG- 00023925/19(2), MAG-00024598/19(5), MAG-00026916/19(4), MAG- 00032588/19(1), MAG-00040449/19(1) and MAG-000124542/19(7). Instead, I make the orders set out below. [16] I make no order concerning the sentences imposed by the Magistrate in relation to MAG-00034535/19(1) which involved re-sentencing the appellant for breaching the recognisance ordered on 19 February 2019. [17] The sentences I impose are as follows: MAG-00023925/19(2): 1. Vehicles used on roads must be registered and 2. Drive uninsured vehicle: For both offences the appellant is fined a total of $100 and I order that the proper officer give, under section 34 of the State Penalties Enforcement Act 1999 (Qld), particulars of the fine to SPER for registration under that section. No convictions are recorded. 3. Driving without a licence disqualified by court order: The appellant is released under the supervision of an authorised corrective services officer for a period of 12 months. The appellant must comply with the conditions set out in section 93 of the Penalties and Sentences Act 1992 (Qld) and report to an authorised corrective services officer at Maroochydore on or before 4.00 pm on Monday 30 March 2020. I strongly recommend that the appellant first report by telephone on (07) 5373 4800. No conviction is recorded. The appellant is disqualified from holding or obtaining a driver licence for two years. MAG-00024598/19(5): 1. Wilful damage: The appellant is released under the supervision of an authorised corrective services officer for a period of two years. The appellant must comply with the conditions set out in section 93 of the Penalties and Sentences Act 1992 (Qld) and report to an authorised corrective services officer at Maroochydore on or before 4.00 pm on 4.00 pm on Monday 30 March 2020. I strongly recommend that the appellant first report by telephone on (07) 5373 4800. No conviction is recorded. 2. Driving without a licence disqualified by court order: The appellant is released under the supervision of an authorised corrective services officer for a period of two years. The appellant must comply with the conditions set out in section 93 of the Penalties and Sentences Act 1992 (Qld) and report to an authorised corrective services officer at Maroochydore on or before 4.00 pm on 4.00 pm on Monday 30 March 2020. I strongly recommend that the appellant first report by telephone on (07) 5373 4800. No conviction is recorded. The appellant is disqualified from holding or obtaining a driver licence for two years. 3. Vehicles used on roads must be registered and 4. Drive uninsured vehicle: For both offences the appellant is fined a total of $100 and I order that the proper officer give, 6 Penalties and Sentences Act 1992 (Qld), section 95. 7 Penalties and Sentences Act 1992 (Qld), section 96. -- 6 of 7 -- 7 under section 34 of the State Penalties Enforcement Act 1999 (Qld), particulars of the fine to SPER for registration under that section. No convictions are recorded. MAG-00026916/19(4) 1. Commit public nuisance within licenced premises or within the vicinity of licenced premises, 2. Refused entry to licensed premises and 4. Obstruct police licenced premises: The appellant is released absolutely pursuant to section 19(1)(a) of the Penalties and Sentences Act 1992 (Qld). No convictions are recorded. 3. Assault police licenced premises: The appellant is released under the supervision of an authorised corrective services officer for a period of two years. The appellant must comply with the conditions set out in section 93 of the Penalties and Sentences Act 1992 (Qld) and report to an authorised corrective services officer at Maroochydore on or before 4.00 pm on 4.00 pm on Monday 30 March 2020. I strongly recommend that the appellant first report by telephone on (07) 5373 4800. No conviction is recorded. MAG-00032588/19(1) 1. Contravene direction or requirement of police: The appellant is released absolutely pursuant to section 19(1)(a) of the Penalties and Sentences Act 1992 (Qld). No conviction is recorded. 2. Wilful damage: The appellant is released under the supervision of an authorised corrective services officer for a period of two years. The appellant must comply with the conditions set out in section 93 of the Penalties and Sentences Act 1992 (Qld) and report to an authorised corrective services officer at Maroochydore on or before 4.00 pm on 4.00 pm on Monday 30 March 2020. I strongly recommend that the appellant first report by telephone on (07) 5373 4800. No conviction is recorded. MAG-00040449/19(1) 1. Enter premises and commit indictable offence by break: The appellant is released under the supervision of an authorised corrective services officer for a period of two years. The appellant must comply with the conditions set out in section 93 of the Penalties and Sentences Act 1992 (Qld) and report to an authorised corrective services officer at Maroochydore on or before 4.00 pm on 4.00 pm on Monday 30 March 2020. I strongly recommend that the appellant first report by telephone on (07) 5373 4800. No conviction is recorded. MAG-000124542/19(7) 1. Contravention of domestic violence order (aggravated offence): The appellant is released under the supervision of an authorised corrective services officer for a period of two years. The appellant must comply with the conditions set out in section 93 of the Penalties and Sentences Act 1992 (Qld) and report to an authorised corrective services officer at Maroochydore on or before 4.00 pm on 4.00 pm on Monday 30 March 2020. I strongly recommend that the appellant first report by telephone on (07) 5373 4800. No conviction is recorded. -- 7 of 7 --