EBH v Commissioner of Police [2019] QDC 115

DISTRICT COURT OF QUEENSLAND CITATION: EBH v Commissioner of Police [2019] QDC 115 PARTIES: EBH (Appellant) v COMMISSIONER OF POLICE (Respondent) FILE NO/S: 40/2018 DIVISION: Appellate PROCEEDING: s 222 Appeal ORIGINATING COURT: Magistrates Court at Longreach DELIVERED ON: 24 May 2019 (delivered ex tempore) DELIVERED AT: Rockhampton HEARING DATE: 24 May 2019 JUDGE: Dearden DCJ ORDER: 1. Application for leave to adduce additional evidence contained in the affidavit of EBH sworn 21 May 2019, granted; 2. Appeal granted; 3. The sentence imposed by the learned sentencing magistrate at Longreach Magistrates Court on 13 June 2018, for the charge of assault occasioning bodily harm, namely 12 months imprisonment, to be served by way of an intensive corrections order, is set aside. 4. In lieu, order that the defendant be fined the sum of $250, and that the fine be referred to the registrar of the State Penalties Enforcement Registry. 5. Order that no conviction be recorded. CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL – POWERS OF APPELLATE COURT – TO ADMIT NEW EVIDENCE – where the appellant pleaded guilty to one count of assault occasioning bodily harm – where the appellant was sentenced to 12 months imprisonment, to be served by way of an intensive corrections order – where submissions as to the effect of a conviction were not made at -- 1 of 10 -- 2 sentence – where additional evidence was sought to be relied upon by the appellant in s 222 Justices Act 1886 (Qld) rehearing – whether the appellant would suffer miscarriage of justice if additional evidence was not admitted – whether the additional evidence satisfied the test of Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where the appellant pleaded guilty to one count of assault occasioning bodily harm – where the appellant was sentenced to 12 months imprisonment, to be served by way of an intensive corrections order – where the appellant was aged 21 at the time of offence and sentence – where the appellant had no criminal history – where the appellant had undertaken rehabilitation – whether the sentence was manifestly excessive LEGISLATION: Justices Act 1886 (Qld) s 222, s 223, s 224(1)(c) Penalties and Sentences Act 1992 (Qld) s 12, s 12(2) CASES: Gallagher v The Queen (1986) 160 CLR 392 McDonald v Queensland Police Service [2018] 2 Qd R 612 Pavlovic v Commissioner of Police [2007] 1 Qd R 344 R v Cay, Gersch and Schell; Ex-parte Attorney-General (2005) 158 A Crim R 488 R v Maniadis [1997] 1 Qd R 593 Ratten v The Queen (1974) 131 CLR 510 COUNSEL: M Willey for the appellant E Sargent (sol) for the respondent SOLICITORS: Aboriginal and Torres Strait Islander Legal Service for the appellant Office of the Director of Public Prosecutions for the respondent -- 2 of 10 -- 3 [1] HIS HONOUR: The appellant EBH appeals in respect of the sentence of 12 months imprisonment, to be served by way of an intensive corrections order, imposed by the learned magistrate at the Longreach Magistrates Court on 12 June 2018 in respect of a charge of assault occasioning bodily harm.1 Grounds of appeal [2] The notice of appeal identifies the grounds as follows: – (1) That the sentence imposed was manifestly excessive; and (2) Conviction should not be recorded.2 [3] The appellant submits that it is a particular of the first ground of appeal that “the sentencing magistrate failed to have proper regard to the matters in mitigation raised on behalf of the appellant at sentence.”3 That in my view is an appropriate approach. [4] The appellant seeks leave to add a further ground of appeal, namely: – “That the learned magistrate erred in fettering her discretion by determining the victim’s age and injury precluded her from imposing a period of probation.”4 [5] The respondent accepts that the further ground is a matter relevant to the consideration of ground 1. In the alternative, and in my view appropriately, I will grant leave to the appellant to add the further ground of appeal.5 In any event, the litigation of the matter including that further ground of appeal, is not controversial between the parties. Additional evidence [6] The appellant seeks leave to adduce additional evidence contained in the affidavit of EBH sworn 21 May 2019.6 The respondent, Queensland Police Service, opposes the appellant’s application to rely on that additional evidence.7 The law – appeals [7] In McDonald v Queensland Police Service [2018] 2 Qd R 612, Bowskill J stated: – “It is well established that, on an appeal under [Justices Act] s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.”8 [citations deleted] 1 Notice of Appeal to a District Court Judge filed 8 November 2018. 2 Notice of Appeal to a District Court Judge filed 8 November 2018. 3 Appeal Exhibit 2 – Further Submissions on behalf of the Appellant, [4.2]. 4 Appeal Exhibit 2 – Further Submissions on behalf of the Appellant, [4.3]-[4.4]. 5 Justices Act 1886 (Qld), s 224(1)(c). 6 Application for leave to adduce additional evidence on behalf of the Appellant, filed 21 May 2019. 7 Appeal Exhibit 5 – Additional outline of Submissions on behalf of the Respondent, [1.2]. 8 McDonald v Queensland Police Service [2018] 2 Qd R 612, 627 (Bowskill J). -- 3 of 10 -- 4 The facts [8] The appellant, aged 21 at the time of the offence and at sentence, is the father of the complainant. On 9 April 2018, when the complainant was 17 months old, the appellant smacked the complainant child on the thigh, leaving a bruise which was still apparent and was able to be photographed by police on 11 April 2018.9 “The appellant participated in an interview with police on 14 April 2018. He stated he had been working night shifts and had been tired and stressed. The complainant child had been making noise during the day. He stated when he woke in the afternoon, he saw the child was pulling items out of a cupboard onto the floor. The appellant tried moving the child away and chastised him but it did not work. He stated the child opened the drawer containing knives and the appellant smacked him on the right thigh. The child started crying immediately and left the room.10 [9] The submissions before the learned magistrate are helpfully summarised in the Outline of Submissions on behalf of the Respondent as follows: – “4.1 At the outset, the appellant’s lawyer sought a presentence report as to the appropriateness of an intensive correction order (‘ICO’) or probation. The learned Magistrate indicated that as the appellant came before the court with no criminal history, he would be considered suitable and as such the appropriateness of either order were relevant to submissions. After instructions were confirmed, the appellant pled guilty and the hearing continued. 4.2 The prosecutor submitted an actual term of imprisonment was within range due to the complainant child’s age, the forcible nature of the assault which left a hand impression on the child’s thigh and that it occurred in the context of losing self- control. In light of those features, the prosecutor submitted community denouncement and personal deterrence were relevant features. The prosecutor highlighted imprisonment was not a sentence of last resort in matters involving violence. 4.3 The appellant’s legal representative submitted the assault was “fleeting”, occurred once, and was out of concern when the appellant saw his son put his hand in a knife drawer. It was submitted that the appellant had moved his son away previously but when he saw his child was opening the knife drawer, he lost control and committed the offence. 4.4 The appellant’s legal representative highlighted the appellant’s lack of criminal history, employment at the local bakery and recent engagement with Relationships Australia. A spokesperson from Relationships Australia indicated he had engaged with the service in May at which time referrals were made. The court was advised that the appellant had commenced the Positive Parenting Program the day preceding sentence and Circle of Security commenced the following Wednesday. It was later clarified that was the day of intake. 4.5 The matter was adjourned for the learned magistrate to consider the District Court decision provided by the appellant in support of the appellant’s submission for a lengthy period of probation to ensure supervision and support. When the 9 See Appeal Exhibit 4 - Outline of Submissions on behalf of the Respondent, Annexure A. 10 Appeal Exhibit 4 - Outline of Submissions on behalf of the Respondent, [3.4]. -- 4 of 10 -- 5 court returned the following day, further submissions were made regarding the appellant’s exposure to domestic violence during his childhood. The magistrate was also advised the complainant child was residing with his maternal grandparents in Tasmania. The learned magistrate indicated that as it was an incident of domestic violence, she viewed it important to ensure the sentence provided a framework for the appellant to access counselling, information about appropriate discipline and the impact of violence upon young children. 4.6 The appellant’s representative submitted, due to the appellant’s age, remorse and assistance to police, an actual term of imprisonment was inappropriate. It was submitted the appellant had a good prospect of rehabilitation and a lengthy period of probation was within range. The learned magistrate disagreed given the age of the child and photograph depicting the extent of the injury. The appellant’s legal representative submitted the appellant “did not expect the injury to be as severe as it was”. He conceded that if probation was not considered suitable, an immediate parole release or wholly suspended sentence was appropriate given Court of Appeal decisions. The appellant’s legal representative noted short periods of incarceration have not been found to be of assistance to rehabilitation of youthful offenders. Considering those principles, the appellant’s legal representatives submitted for an ICO or immediate parole to allow structured rehabilitation or alternatively a suspended imprisonment orders. The learned magistrate indicated the supervision element was essential and a suspended sentence did not meet that objective. The appellant’s legal representative agreed that an ICO, as suggested in his submissions as an alternative to actual imprisonment, would facilitate that supervision. 4.7 The magistrate asked if there were any other submissions. The appellant’s legal representative replied “I suppose there’s no point trying to persuade the court that a probation order would be appropriate, if only for the reason that, as well, he will not have a conviction recorded but ultimately there’s no way that that can be avoided given the way I think the court’s mind is leading in this and ultimately I have no further submission to make.” The learned magistrate replied [that in] her view, the order would be out of range given the breach of trust, the detection of the offence was not through any means of the appellant and as a result was not at the low end necessitating an exercise of discretion in imposing a probation order. The prosecutor observed an ICO would have a similar effect of a custodial term. 4.8 Relevantly, no submissions were made to the learned magistrate as to the impact of recording a conviction.”11[citations deleted] Additional evidence [10] Justices Act 1886 (Qld) s 223 provides as follows: “223 Appeal generally a rehearing on the evidence (1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices. 11 Appeal Exhibit 4 - Outline of Submissions on behalf of the Respondent, [4.1] – [4.8]. -- 5 of 10 -- 6 (2) However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave. (3) If the court gives leave under subsection (2), the appeal is – (a) by way of rehearing on the original evidence; and (b) on the new evidence adduced.” [11] Ms Willey on behalf of the appellant, readily concedes that paragraphs 1, 2, 4(a) – (d), 5 - 8, and 11 of the appellant’s affidavit12 are not “fresh evidence”, in that, with reasonable diligence, that material could have been placed before the learned sentencing magistrate.13 I note that paragraphs 3, 4(d), 9 - 11 contain information that relate, either completely or substantially, to matters that postdate the Magistrate’s Court sentence.14 [12] Ms Willey identifies that, at the original sentence, the appellant’s solicitor, when making submissions before the learned sentencing magistrate that the appellant should be granted probation, was challenged by the magistrate in these terms: “…my view is it [probation] is clearly out of range,”15 and at that point, the appellant’s solicitor effectively abandoned any further submissions in respect of the recording of a conviction under the Penalties and Sentences Act 1992 (Qld) (PSA) s 12, and consequently, any such materials were not contained in the “original evidence” before the learned sentencing magistrate, as that term is used in the Justices Act 1886 (Qld) s 223(1). [13] In my view, the further material contained in the affidavit of the appellant is “apparently credible,”16 and if leave is granted, that evidence might reasonably have led the tribunal of fact to reach a different sentence.17 [14] In R v Maniadis [1997] 1 Qd R 593, Helman J and Davies JA stated: Subject to what we say later about the decision of this Court in R v Cornale [1993] 2 Qd R 294, the power to admit evidence not adduced below appears to be at least as wide in an appeal against sentence as in an appeal against conviction. In an appeal against conviction, the grounds of unreasonableness, that the evidence did not support the verdict and error of law all appear to relate to a verdict upon the evidence adduced at trial and the law existing at the time of trial. Only the ground of miscarriage of justice appears to allow the admission of evidence not adduced at trial. The sole ground in [Criminal Code (Qld) s 668E(3)] that some other sentence is warranted appears to allow at least the same latitude to an appellate court to admit such evidence. That is not to say that the discretion to admit new evidence in an appeal pursuant to [Criminal Code (Qld) s 668E(3)] will be commonly exercised by an appellate court. But a court of appeal will admit new evidence on such an appeal, 12 Appeal Exhibit 3 – Affidavit of EBH, sworn 21 May 2019. 13 Pavlovic v Commissioner of Police [2007] 1 Qd R 344, 349 [31]; Gallagher v The Queen (1986) 160 CLR 392, 395 (Gibbs CJ). 14 Appeal Exhibit 3 – Affidavit of EBH, sworn 21 May 2019. 15 Appeal Exhibit 4 - Transcript of submissions, Tr 1-7, ll 39. 16 Pavlovic v Commissioner of Police [2007] 1 Qd R 344, 349 [35]; Gallagher v The Queen (1986) 160 CLR 392, 395 (Gibbs CJ). 17 Pavlovic v Commission of Police [2007] 1 Qd R 344, 350 [36]; Gallagher v The Queen (1986) 160 CLR 392, 396 (Gibbs CJ). -- 6 of 10 -- 7 notwithstanding that it is not fresh in the above sense [a reference to the decision of the High Court in Ratten v The Queen (1974) 131 CLR 510 being ‘evidence which was not actually available to the appellant at the time of trial, or which could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case’]18, if its admission shows that some other sentence, whether more or less severe, is warranted in law; in this case, that the sentence in fact imposed was unwarranted in the sense that it was manifestly excessive… In the end, the reception of such [additional] evidence will depend on whether, if it were excluded, there would be a miscarriage of justice; and it would be undesirable, in our view, to state in advance those matters which, in every case, must be proved in order to establish such a miscarriage.”19 [citations deleted] [15] The respondent notes that the proposed additional evidence is not “fresh” but is “apparently credible.”20 However, they argue that even if that evidence had been before the learned sentencing magistrate, it would not have led to a different outcome. In essence, the respondent submits that the additional evidence refers to the mere possibility of future studies in psychology and in any event, the fact of the appellant’s conviction, whether recorded or not, would be relevant to professional registration and/or obtaining a ‘blue card’ to work with children. Discussion – Additional evidence [16] It is clear that a proper consideration as to whether leave should be granted to adduce additional evidence, requires a consideration of the merits of the substantive appeal, before returning to the issue of the additional evidence. [17] The learned sentencing magistrate ruled out consideration of probation as a sentencing option, which could have enlivened the discretion whether or not to record a conviction, in the following comments made during submissions: My view is it is clearly out of range. There is a significant breach of trust. It is a parent/child relationship, the child is a toddler. The detection of the offence was not through any concerns by your client [the appellant] about the injury sustained by his son as a consequence of his behaviour. It was detected through the posting of the image which is marked Exhibit 1 of the injury being made known to police. So in those circumstances, your client is not [at] the low end which gravitates towards an exercise of discretion which would make a probation order suitable.21 [18] With respect, the learned sentencing magistrate has, in my view, placed undue weight on those matters, and has failed to give sufficient weight to the following:- (1) The appellant’s early plea of guilty, and cooperation in a frank record of interview; (2) The appellant’s youth (aged 21 at offence and sentence) and the fact (inferentially) of the appellant becoming a parent aged 20; (3) The appellant’s lack of any criminal history whatsoever; 18 Ratten v The Queen (1974) 131 CLR 510, 516 (Barwick CJ). 19 R v Maniadis [1997] 1 Qd R 593, 596 - 597 (Helman J and Davies JA). 20 Appeal Exhibit 5 – Additional Outline of Submissions on behalf of the Respondent, [3.3], [3.6]. 21 Appeal Exhibit 4 - Transcript of submissions - Tr 1-7, ll 39-45. -- 7 of 10 -- 8 (4) The appellant’s excellent work history; (5) The appellant’s demonstrated steps towards rehabilitation as at the sentence, including attending at Relationships Australia and enrolling in The Triple P - Parenting Program, noting of course that the appellant was sentenced just two months after the offence (which was a short period in which to take any positive steps towards rehabilitation); (6) The appellant’s demonstrated and palpable remorse; (7) The fact that the injury was caused by a single slap, with no allegation of, nor any other concerns about, ill treatment of the complainant by the appellant, nor any broader issues which might have been revealed had the appellant had any form of criminal history.22 [19] The appellant submits that, if leave is granted to adduce additional evidence, the following further matters would also become relevant:- (1) Since sentence, the appellant has returned to living with his wife and the complainant in Tasmania; (2) The appellant has continued with his rehabilitation and completed the Positive Parenting Program; (3) The appellant seeks to pursue an alternate career as a psychologist (his trade to date being as a baker), and a conviction recorded may preclude him from that profession.23 [20] With respect, I consider the learned sentencing magistrate, perhaps understandably given her specialist involvement in the domestic violence courts, to which she made comment during submissions,24 has placed too much weight on the age of the child and the nature of the injury, and insufficient weight on the matters that I’ve just identified. [21] It follows that the learned sentencing magistrate has erred in the exercise of her sentencing discretion, having considered, inappropriately in my view, that probation should be excluded from consideration as a sentencing option in the circumstances of this youthful first time offender who, in my view, would and clearly could, have responded equally as positively to the rehabilitation and supervision of probation, as to an intensive correction order, which is a prison sentence served in the community. [22] Once that conclusion is reached, it is a situation where, as a result of the appellant’s solicitor not putting forward any material and/or submissions on the recording of a conviction (in the light of the clearly expressed view of the learned sentencing magistrate), then the appellant would suffer a miscarriage of justice if that additional material was not received by this court.25 With respect, I note in passing, that even in the face of clear expressed views from a judicial officer about the likelihood of success of a particular submission, material should still be placed on the record, on key issues such as the recording of a conviction (as here), so that those matters are both before the learned sentencing magistrate, and before the appellate court if the matter is appealed, without the further difficulty for the appellant of having to make an application for leave to file additional evidence. 22 Appeal Exhibit 2 – Further submissions on behalf of the Appellant, [7.1]. 23 Appeal Exhibit 2 – Further submissions on behalf of the Appellant, [7.2]. 24 Appeal Exhibit 4 – Transcript of Sentence submissions - Tr 1-12, ll 3-6. 25 R v Maniadis [1997] 1 Qd R 593, 597. -- 8 of 10 -- 9 Discussion – Re-sentencing [23] The issue that remains is how the appellant should be re-sentenced, given that he’s completed virtually all of his 12-month intensive correction order, and currently resides in Tasmania. I note that, had the re-sentence occurred proximately to the original sentence, rather than 12 months later (and Ms Willey has outlined the difficulties in obtaining the transcript which has led to a significant delay in this appeal being heard), then I would have imposed a sentence of two years’ probation, with no conviction recorded, recognising the factors again that I’ve identified above, pursuant to the Penalties and Sentences Act 1992 (Qld) (PSA) s 12(2), and mindful of the comments of Mackenzie J in R v Cay, Gersch and Schell; Ex-parte Attorney- General (2005) 158 A Crim R 488, at 502, namely:- [74] Section 12(2)(c) speaks of the impact a conviction “will” have on the offender’s economic or social wellbeing or chances of finding employment. This involves an element of predicting the future. Ordinarily, the word “will” in that context would imply that at least it must be able to be demonstrated with a reasonable degree of confidence that those elements of an offender’s life would be impacted on by the recording of a conviction. The notion of impact on the offender’s “chances of finding employment” is another way of describing the impact of a conviction on the opportunity to find employment in the future or the potentiality of finding employment in the future. [75] In cases involving young offenders, there is often uncertainty about their future direction in life. Perhaps, because of this, the concept may, in practice, often be less rigidly applied than in the case of person whose lifestyle and probable employment opportunities are more predictable. [24] I note the reservations that Ms Sargent, who appears for the respondent, has expressed on this issue, but as always the prognostication of the future when dealing with young appellants, particularly those who have at the least indicated an admirable aim to pursue a professional goal in their life, should still receive recognition and have an appropriate value placed on that aspiration in these circumstances. [25] I make the following orders:- (1) Application for leave to adduce additional evidence contained in the affidavit of EBH sworn 21 May 2019, granted; (2) Appeal granted; (3) The sentence imposed by the learned sentencing magistrate at Longreach Magistrates Court on 13 June 2018, for the charge of assault occasioning bodily harm, namely 12 months imprisonment, to be served by way of an intensive corrections order, is set aside. (4) In lieu, order that the defendant be fined the sum of $250, and that the fine be referred to the registrar of the State Penalties Enforcement Registry. -- 9 of 10 -- 10 (5) Order that no conviction be recorded. -- 10 of 10 --