AJM v Commissioner of Police [2019] QDC 25

DISTRICT COURT OF QUEENSLAND CITATION: AJM v Commissioner of Police [2019] QDC 25 PARTIES: AJM (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 3732 of 2017 DIVISION: Criminal PROCEEDING: Appeal against conviction and sentence ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: Ex tempore reasons given 21 February 2019 DELIVERED AT: Brisbane HEARING DATE: 20 January 2019 JUDGE: Rosengren DCJ ORDER: 1. The appeal as to conviction is dismissed 2. The appeal as to sentence is allowed 3. I order that the fine of $1800 be reduced to $1000 CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – where the appellant pleaded guilty to leaving a child under 12 unattended for an unreasonable amount of time without making reasonable provision for the supervision and care of the child – where the appellant submits that he was pressured into pleading guilty by the police prosecutor – whether plea was unequivocal CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant pleaded guilty to leaving a child under 12 unattended for an unreasonable amount of time without making reasonable provision for the supervision and care of the child – where the appellant was fined $1800 and no conviction was recorded – where the appellant does not have the ability to pay the fine – where the appellant submits that the fine imposed was manifestly excessive Criminal Code 1899 (Qld) s 364A Judicial Review Act 1991 (Qld) Part 5 -- 1 of 8 -- 2 Justices Act 1886 (Qld) ss 147A, 222(1), 222(2)(a),(b),(c) Penalties and Sentences Act 1992 (Qld) ss 3(3), 9(2)(a), 44, 48 Ajax v Bird [2010] QCA 2 Hall v Bobbermen [2009] QDC 188 Long v Spivey [2014] QCA 118 Shaw v Yule [1995] QCA 611 Smith v Ash [2010] QCA 112 COUNSEL: The appellant is self-represented M Aittola for the respondent SOLICITORS: The appellant is self-represented Director of Public Prosecutions (Queensland) for the respondent -- 2 of 8 -- 3 HER HONOUR: My reasons and decision in this matter are as follows. On the 15 th of September 2017 in the Magistrates Court at Brisbane, the appellant pleaded guilty to one offence of leaving a child under 12 unattended. The charge relates to the appellant having left his four year old son in the car in an underground carpark in February 2017. He was fined $1800 and no conviction was recorded. The appeal which was filed on the 29 th of September 2017 is pursuant to section 222 of the Justices Act 1886 (‘the Justices Act’) As I have indicated, I heard the appeal yesterday. At my invitation, the appellant provided further written submissions yesterday afternoon. These have been placed on the Court file and I have read them. The orders which are sought in the notice of appeal are two-fold. The first order is that the guilty plea be withdrawn and the matter be referred back to the Magistrates Court. If the appellant is not successful on that basis, he seeks an order that the fine of $1800 imposed by the learned Magistrate be significantly reduced or withdrawn completely. Turning to the guilty plea, the appellant asserts that there was misconduct by the Prosecution which was malicious and sought unjustly to impact the outcome of the matter. This aspect of the appeal requires a consideration of what occurred in the Magistrates Court. The appellant applied for an adjournment of his matter before Magistrate Thacker. This adjournment was apparently refused and the matter was referred to the learned Magistrate who ultimately imposed the penalty the subject of this appeal. The appellant was represented by a duty lawyer. There were further discussions regarding an adjournment before the learned Magistrate. The duty lawyer told the learned Magistrate that the appellant had a potential application to stay the proceedings. The matter was stood down, following a request from the bar table to allow the duty lawyer to look into a few issues. The Court was adjourned at 12.23 pm and resumed at 2.10 pm. At this time, the duty lawyer informed the learned Magistrate that he had taken some instructions from the appellant and the appellant had instructed that he wished to resolve the matter by way of a plea of guilty. The duty lawyer inquired of the learned Magistrate as to whether his Honour would be minded to hear the matter that afternoon. The learned Magistrate indicated that he would and the duty lawyer asked that the appellant be arraigned with respect to the charge. What then occurred can be found at page 8 of the transcript. His Honour said to the appellant, AJM: Can you stand, please. The charge is that on the 12 th day of February 2017 at New Farm, you having the lawful care of one CJ, a child under 12 years, left the child for an unreasonable time without making reasonable provision for the supervision and care of the child. The Magistrate then having read the charge, inquired of the appellant: Do you understand the charge? -- 3 of 8 -- 4 The appellant responded: Yes, your Honour. And then his Honour said: How do you plead? And the defendant responded: Guilty, your Honour. The Prosecutor then went on to set out the fact of the offence. Turning to the appellant’s rights of appeal, there is no common law right of appeal. It must be conferred in clear words by statutory provision. The appellant has a right of appeal from the learned Magistrate’s decision under s 222 of the Justices Act. The right of appeal can be found in subsection (1), which provides that a person aggrieved by an order made summarily on a complaint, which is defined in the Act to include a charge for an offence, is given a general right of appeal to a District Court Judge. Section 222(2) provides three exceptions to this general right, and in doing so limits the Court’s jurisdiction in specified ways. The first, section 222(2)(a) excludes appeals from summary convictions or orders made under section 651 of the Criminal Code. That section allows a person who is charged on indictment before the District or Supreme Court to plead guilty to summary offences and have them dealt with in that Court together with the indictable offences. The second exception is where a complainant is aggrieved by a decision in a summary determination of an indictable offence. Any appeal by such a complainant is limited to an appeal against sentence or an order for costs. The complainant cannot appeal from a not guilty finding. That can be found in section 222(2)(b). The third and final exception and the one with which this application is directly concerned, is if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under section 222 on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate. And this third exception can be found in subsection (c) of section 222(2). In Long v Spivey [2004] QCA 118, the Court of Appeal held that this provision, which was then in section 222(2)(e), is unambiguous and bears its literal meaning. In a subsequent Court of Appeal decision of Ajax v Bird [2010] QCA 2, Justices Fraser referred to Long v Spivey and said, at paragraph 4: “It is quite clear that where a defendant enters an unequivocal plea of guilty that person has no right of appeal against conviction under section 222 of the Justices Act. In some circumstances the defendant may be entitled to a remedy under the Judicial Review Act 1991, but that issue does not arise here. Other decisions cited by the applicant illustrate the point that section 222(2)(c) may not preclude an appeal to the District Court where the appellant’s plea was equivocal or, upon -- 4 of 8 -- 5 analysis amounted to a plea of not guilty (see, for example, Shaw v Yule [1995] QCA 611) or where the appellant had entered a plea of guilty to a charge “that clearly did not exist at law” (see for example Hall v Bobbermen [2009] QDC 188).” The question is whether either of these apply here. I am satisfied they do not. First, the circumstances in which the plea was entered, as I have already described, satisfies me that the plea was unequivocal. Secondly, the appellant pleaded guilty to a charge that exists at law. The charge can be found at section 364A of the Criminal Code. It provides that a person who, having the lawful care or charge of a child under 12 years, leaves the child for an unreasonable time without making reasonable provision for the supervision and care of the child during that time, commits a misdemeanour, the maximum penalty is three years imprisonment. Therefore, given I am satisfied that the language of section 222(c) precludes an appeal against conviction in circumstances when an appellant has entered an unequivocal plea – and I am satisfied that such a plea was entered here – the appellant has no right of appeal to the District Court from his conviction. Therefore, this appeal, insofar as it relates to the plea of guilty to the subject charge, is incompetent. I should say that section 147A of the Justices Act enables Justices to reopen proceedings including pleas of guilty and to set aside a conviction. As was observed by President McMurdo, as she then was, in Smith v Ash [2010] QCA 112 at paragraph 12: “The redress available under section 147A is consistent with a legislative intent in section 222(2)(c) to exclude from section 222(1) appeals against a conviction or finding of guilt where a defendant has pleaded guilty or admitted the truth of a complaint.” There are also some circumstances where an appellant may be entitled to a remedy under part 5 of the Judicial Review Act 1991. Such an application on the first instance would need to be made to a single Judge of the Supreme Court. Turning to the appellant’s other ground of appeal to the effect that the fine imposed was excessive, this requires a consideration of the facts. The complainant is the appellant’s four year old biological son. On Saturday, the 12th of February 2017 at approximately 1 pm, the appellant drove his vehicle into an underground carpark attached to the Merthyr Village Shopping Centre at New Farm. The recorded temperature on this day was 38 degrees Celsius. The appellant parked his vehicle in the undercover carpark. At this time, his son was restrained in a car seat in the front, passenger seat of the vehicle. He had been asleep, but stirred. The appellant asked his young son if he wanted to come into the shops and the young son indicated that he did not. The appellant turned the vehicle off. He left the front, passenger seat window down and he left the vehicle unlocked. He took the car keys with him. A short time later, a witness observed the appellant’s son in the vehicle. The witness remained with the young child while his wife went up the stairs to the shops to look for the appellant. She could not find him. The witness then opened the door to the vehicle so that he could fan the appellant’s son. He attempted to wake the young child but he was unable to do so. -- 5 of 8 -- 6 Approximately 15 minutes after first observing the appellant’s son in the vehicle, the witness contacted the police and they arrived about five minutes later. The police also attempted to wake the young child but were unable to do so. It was thought by the police that he was unconscious. The child was removed from the vehicle to an air-conditioned police vehicle and subsequently transported by ambulance to hospital as a precautionary measure. He was released a short time later. The appellant was spoken to by police at the scene. He was then arrested and conveyed to the Brisbane City Police Station where he participated in an electronic record of interview. The appellant told police that his son did not have any food or water with him. He stated that his son knew how to get out of the car seat. He also told police that his son knew where he was and that his son could have made his way up to the shops if he had so desired. He admitted in hindsight that he should not have left his son in the vehicle while he went upstairs to the shops. At the time of this offence, the appellant was 37 years of age. He had a dated, minor, and unrelated criminal history. It consisted of two entries each of obstructing a police officer. The first one occurred in December 2002 and the second one occurred in July 2006. He appeared in the Brisbane Magistrates Court in relation to both offences and was fine $80 and $150 respectively. No conviction was recorded for either offence. The appellant was residing in Canada at the relevant time and was in Brisbane on a holiday. He has four children. The other three children had remained in Canada with his ex-partner. He was not working at the time. He is trained in information and technology and has studied at least to some extent for a Master’s qualification in Cyber Security. Turning to the sentencing framework, the Penalties and Sentences Act 1992 (‘the PSA’) creates the regulatory framework which is relevant to this appeal. The purposes of the PSA are set out in section 3. Pursuant to section 3(3), they include providing for a sufficient range of sentences for the appropriate punishment and rehabilitation of offenders and in appropriate circumstances, ensuring the protection of the community is a paramount consideration. Part 2 of the PSA sets out the governing principles for sentencing offenders such as the appellant. Section 9(2)(a) refers to the various sentencing principles including that a sentence of imprisonment should only be imposed as a last resort. Relevantly here, section 44 of the PSA empowers the Court to impose a fine. Further, section 48 provides that in determining the amount of the fine, the Court must, as far as practicable, take into account the financial circumstances of the offender and the nature of the burden that payment of the fine will be on the offender. The Prosecutor submitted during the course of her submissions that it was a serious charge, and she referred to the fact that there was a victim involved. She stated that it was open to record a conviction. She submitted that an appropriate penalty was an extensive period of community service. -- 6 of 8 -- 7 The duty lawyer who appeared on behalf of the appellant told the learned Magistrate that the appellant and his son were living in Canada at the time, which was also where his ex-partner and other children were living. They had been visiting Australia at the time of the offence. The complainant child suffered from sleep apnoea which affected the quality of the child’s sleep. The appellant accepted that the time period over which the child was left unsupervised in the car would have been about 20 minutes. It was submitted by the duty lawyer that the recorded temperature of 38 degrees in Brisbane on that day was a high temperature. It was further submitted that it was an underground carpark so was not in full sun and that this was a less serious situation than if the complainant had been left in the car in full sun, and that the motor vehicle window next to the child was open. With respect to the state of the child, the duty lawyer said that he was taken to hospital as a precautionary measure and there were no injuries or adverse effects to the child’s health as a result of the situation. It was also observed that the comments by the police regarding the child’s state of consciousness were comments made by non-medical professionals. His Honour was also informed by the duty lawyer that the appellant intended to return to Canada and that his visa did not allow him to work in Canada. The sentencing remarks reveal that the learned Magistrate took into account: the plea of guilty by the appellant, albeit being a late one, the circumstances of the offence and the fact that it is a serious offence. As to the issue of the fine, the transcript reveals the while the appellant had been trained in information technology and had been studying for a Master’s in Cyber Security, he was not working at the time and was living in Canada, helping to care for his four children. The submission was made by the appellant’s duty lawyer that the appropriate penalty was a fine. The learned Magistrate inquired of the duty lawyer as to how the appellant was going to be able to pay for that fine. The duty lawyer said in response to this that the appellant did have capacity to pay, and he referred to the fact that the appellant had the capacity to pay for airfares and the like. The learned Magistrate then indicated that the fine would be a significant sum in the range of $2000 to $2,500 but then again raised his concern regarding the capacity to pay in circumstances where it was not clear what the appellant was doing to earn an income. The duty lawyer again confirmed that the appellant was not working and could not work in Canada on account of visa-related issues. The duty lawyer requested a period of up to 12 months to pay any fine that was to be imposed. The learned Magistrate again articulated his concern regarding the capacity of the appellant to pay a fine in the order of $2500. Having read the transcript, it does not appear to me that the learned Magistrate’s concern was adequately addressed in the course of submissions. From the Bar table yesterday, the appellant expanded on this issue. He indicated that his airfares to come back to Australia for this appeal had been paid by others and that he continues to reside in Canada and he continues not working and has no money. -- 7 of 8 -- 8 As far as I have been able to ascertain, there are no Court of Appeal authorities relevant to this particular offence. I have been provided with single judge decisions of this Court. Of course, each case turns upon its own particular facts. Taking into account that the appellant’s financial circumstances continue to be such, that he is not earning an income and is not in receipt of benefits and the consequential nature of the burden that payment of the fine will be on him, I consider the imposition of an $1800 fine to be excessive in these particular circumstances. For this reason, I vary the appealed order, but only to the extent of reducing the amount of the fine from $1800 to $1000. Otherwise, I am satisfied that what the learned Magistrate did was in proper exercise of the sentencing discretion. -- 8 of 8 --