ARS v Queensland Police Service [2018] QDC 103

DISTRICT COURT OF QUEENSLAND CITATION: ARS v Queensland Police Service [2018] QDC 103 PARTIES: ARS (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: 113/2017 DIVISION: Appellate PROCEEDING: Criminal Appeal ORIGINATING COURT: Magistrates Court at Cairns DELIVERED ON: 8 June 2018 DELIVERED AT: Cairns HEARING DATE: 24 November 2017 JUDGE: Fantin DCJ ORDER: Appeal allowed. Sentence imposed by the Magistrate set aside and appellant resentenced. CATCHWORDS: CRIMINAL LAW – APPEAL – appeal against sentence pursuant to s 222 Justices Act 1886 (Qld) – where the appellant was convicted of failing to appear in accordance with bail undertaking pursuant to s 33(1) Bail Act 1980 (Qld) – whether sentence was excessive Legislation Bail Act 1980 (Qld) s 33 Domestic and Family Violence Protection Act 2012 (Qld) s 177 Justices Act 1886 (Qld) ss 222, 223 Penalties and Sentences Act 1992 (Qld) ss 9, 12, 144 Cases Allesch v Maunz (2000) 203 CLR 172 House v The King (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 601 R v Cunningham [2005] QCA 321 R v Ford [2008] SASC 46 R v H (1993) 66 A Crim R 505 R v Kitson [2008] QCA 86 R v Wilson [2016] QCA 301 Teelow v Commissioner of Police [2009] QCA 84 -- 1 of 9 -- 2 Tierney v Commissioner of Police [2011] QCA 327 SOLICITORS: Aboriginal and Torres Strait Islander Legal Service for the appellant (A Watkins) Director of Public Prosecutions (Queensland) for the respondent (J Francis) [1] On 3 June 2017 the appellant was convicted in the Magistrates Court at Cairns of failing to appear in accordance with his bail undertaking on 29 May 2017, contrary to s 33(1) of the Bail Act 1980 (Qld). [2] He was sentenced to seven days’ imprisonment suspended forthwith after serving two days (declared as time served) for an operational period of six months. [3] The appellant appeals on the basis that the sentence was manifestly excessive. It submits that the Magistrate erred by taking into account an extraneous or irrelevant matter and failed to take into account a material consideration. Circumstances of the offending [4] The failure to appear occurred on 29 May 2017. The history of the matter is relevant because the appellant had previously appeared (either in person or through his legal representatives) on different dates in the Magistrates Court at Innisfail and at Cairns for separate matters. On some dates, his appearance was required. On others, it was excused. [5] On 11 December 2016 the appellant was charged with contravention of a domestic violence order pursuant to s 177(2)(b) of the Domestic and Family Violence Protection Act 2012 (Qld) (the first charge). He was granted bail and remanded to appear in the Magistrates Court at Innisfail on 9 January 2017. He appeared in accordance with his undertaking and through his legal representatives, the Aboriginal and Torres Strait Islander Legal Service (ATSILS). The charge was adjourned to Cairns Magistrates Court to be finalised by a plea of guilty subject to successful case conferencing. After it was transferred, there were further adjournments at which the appellant complied with his bail undertaking and court appearances. [6] On 30 March 2017 the appellant appeared in the Magistrates Court at Cairns in response to two new charges: breach of a bail condition and contravention of a domestic violence order (the second charges). The second charges related to him contacting the aggrieved by text message and telephone call on 26 January 2017. He was granted bail. The second charges were remanded to 3 April 2017 to join with the first charge. [7] On 3 April 2017 the appellant appeared in the Magistrates Court at Cairns and instructed ATSILS to enter a plea of not guilty to the second charges. All charges were remanded back to Innisfail Magistrates Court for mention on 10 April 2017 with the appellant’s appearance excused. On that date ATSILS appeared on his behalf and the matter was remanded to 18 April 2017 with the appellant’s appearance required. The appellant failed to appear on that date and a warrant was issued for his arrest. [8] On 2 May 2017 the appellant was arrested and brought before the Cairns Magistrates Court. However he showed cause for failing to appear on 18 April 2017 on the -- 2 of 9 -- 3 grounds that he had not received notification that his appearance was required. He was not convicted of the offence of failing to appear. He was granted bail. The charges were listed for review on 15 May 2017 in the Innisfail Magistrates Court with his appearance excused. [9] On 15 May 2017 ATSILS appeared in the Innisfail Magistrates Court and the matters were adjourned to 29 May 2017 for mention with the appellant’s appearance required in Innisfail on that date. [10] On 29 May 2017, the appellant realised that he could not make it to Innisfail to attend court. He telephoned the Innisfail courthouse on the morning of his appearance to advise them he would be unable to appear. On the same day, he went to the Magistrates Court at Cairns and lodged an application to transfer his matters from Innisfail to Cairns. That application was refused. The Magistrate at Innisfail issued a warrant for his arrest. [11] On 2 June 2017 the appellant was arrested at home and taken to the watch house where he was held in custody. He was brought before the Magistrates Court at Cairns on Saturday 3 June 2017. He was charged with failing to appear pursuant to s 33(1) of the Bail Act 1980 (Qld). [12] On 3 June 2017 the appellant did not seek to show cause for failing to appear. Accordingly he was convicted and the Magistrate proceeded to sentence. The only offence before the court was the failure to appear. [13] The appellant was a 36 year old single man with no dependent children. At the time of the offending and sentence he was working full time at a service station in Cairns where he had been employed for four and a half years. He earned around $750 per week. He had moved from Innisfail to Cairns to remove himself from the domestic violence situation with the aggrieved. Cairns is about one hour’s drive from Innisfail. The appellant did not have a car. [14] The appellant had never before been convicted of an offence against the Bail Act and he had no convictions for offences of violence or domestic violence. He had a dated criminal history for minor offending which consisted of: 1. Convictions in 1999 for possessing property that may reasonably be suspected of being tainted for which he was fined $300 with no conviction recorded, and for unauthorised damage to property for which he was ordered to pay $200 restitution and a conviction was recorded; 2. A conviction in 2001 for possessing property suspected of being tainted for which he was convicted and fined $200; 3. A conviction in 2005 for wilful damage for which he was convicted and fined $120; and 4. A conviction in 2007 for trespass for which he was fined $200 with no conviction recorded. Thereafter there was no offending for 10 years until convictions in 2017 for public nuisance, assault or obstruct police officer (licenced premises) and contravene direction or requirement, in December 2016. On those charges he was fined $450 and no convictions were recorded. -- 3 of 9 -- 4 Nature of the appeal [15] The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld). Pursuant to s 223 of the Act the appeal is by way of rehearing on the original evidence and any new evidence adduced by leave. Neither party seeks leave to adduce new evidence. [16] For an appeal by way of rehearing “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error … At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.”1 [17] As this appeal is against sentence only, where the appellant (in effect) pleaded guilty, the sole ground of appeal is that “the punishment was excessive or inadequate”.2 [18] This court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. The well-known dictum of the High Court in House v The King3 applies. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review. It must be shown that the discretion miscarried. [19] In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.4 [20] In order to succeed, the appellant must show some legal, factual or discretionary error.5 Offence [21] Section 33 of the Bail Act 1980 (Qld) relevantly provides: “(1) A defendant who— (a) fails to surrender into custody in accordance with the defendant’s undertaking; and (b) is apprehended under a warrant issued pursuant to section 28 or 28A(1)(a), (b), (c) or (e); commits an offence against this Act. 1 Allesch v Maunz (2000) 203 CLR 172, [22]-[23] followed in Teelow v Commissioner of Police [2009] QCA 84, [4] per Muir J (Fraser JA & Mullins J agreed). 2 Section 222(2)(c) Justices Act 1886. 3 (1936) 55 CLR 499, 504-505. 4 Kentwell v R (2014) 252 CLR 601, [35]. 5 Tierney v Commissioner of Police [2011] QCA 327, [26]. -- 4 of 9 -- 5 (2) It is a defence to an offence defined in subsection (1) if the defendant satisfies the court that the defendant had reasonable cause— (a) for failing to surrender into custody in accordance with the defendant’s undertaking; and (b) for failing to appear before the court specified in the defendant’s undertaking and surrender into custody as soon after the time for the time being appointed for the defendant to do so as is reasonably practicable. (3) Proceedings for an offence against this section— (a) shall be instituted and taken, without the laying of a complaint; (b) shall be taken in accordance with the following procedures— (i) production to the court before which a defendant apprehended under a warrant issued under section 28 or 28A(1)(a), (b), (c) or (e) is brought of that warrant shall be evidence and, in the absence of evidence to the contrary, conclusive evidence of the undertaking and of the failure to surrender into custody and that the issue of the warrant was duly authorised by the decision or order of the court that issued the warrant; (ii) judicial notice shall be taken of the signature of the person who issued the warrant referred to in subparagraph (i) and that that person was duly authorised to issue the warrant. (3A) Upon production to the court of the warrant the court shall then and there call on the defendant to prove why the defendant should not be convicted of an offence against this section.” [22] The appellant did not seek to satisfy the court that he had reasonable cause pursuant to s 33(2) or that he should not be convicted pursuant to s 33(3A). [23] Therefore the Magistrate was satisfied that the appellant should be convicted of the offence of fail to appear pursuant to s 33(1) of that Act. He sentenced the appellant to seven days’ imprisonment, suspended forthwith after serving two days (which were declared as time served) for an operational period of six months. Submissions [24] The appellant relies upon the following matters to submit that the sentence was excessive: 1. the Magistrate erred by taking into account the charge of failing to appear on 18 April 2017 for which the appellant successfully showed cause on 2 May 2017 and in doing so, allowed an extraneous or irrelevant matter to influence his determination; 2. the Magistrate failed to take into account material considerations pursuant to s 9 of the Penalties and Sentences Act 1992 (Qld) namely the nature and -- 5 of 9 -- 6 seriousness of the offence,6 the time the appellant had spent in custody before being sentenced,7 the appellant’s character and age8 and the fact of imprisonment being a sentence of last resort;9 and 3. The Magistrate failed to have regard to the principle that a sentence of imprisonment is a sentence of last resort and a sentence that allowed the offender to stay in the community was preferable.10 [25] The respondent conceded that the Magistrate had made a legal error or errors in the exercise of his sentencing discretion. It submitted that the appeal should be allowed and this court must exercise its own discretion in sentencing the appellant in substitution for the orders made by the Magistrate. [26] Although I am not bound by the respondent’s concession, I agree with it. The sentencing remarks [27] The proceeding was dealt with by the Magistrate on a Saturday morning, 3 June 2017, no doubt a busy court dealing with a large number of defendants. [28] According to the transcript, the proceeding started at 9.21am and the Magistrate delivered his sentencing remarks at 9.35am. Much of the submissions concerned the procedural history of the matter. The appellant’s solicitor and the police prosecutor confirmed that the only matter before the Magistrate was the failure to appear. [29] The appellant’s solicitor indicated that the appellant would be entering pleas of guilty to the second charges and that the first charge had been subject to case conferencing which had been unsuccessful. The appellant’s solicitor made the following submissions. The matters would be returned to the Innisfail Magistrates Court to be dealt with together. The appellant had moved to Cairns to remove himself from the situation with the aggrieved. The appellant was a 36 year old single man with no dependent children. He was a working man employed at Coles Express Service Station in Cairns earning $750 per week and had worked there for four and a half years. The appellant had no history of failing to appear and no history for domestic violence whatsoever. The reason the appellant did not appear on 29 May 2017 in the Innisfail Magistrates Court was because he could not attend court on that day, he in fact telephoned the Innisfail Court House on the morning of his appearance to advise them he would be unable to appear and he requested that his matters be transferred but that application was denied. The appellant went to the Magistrates Court at Cairns later that day. Nonetheless, a warrant was issued by the Innisfail Magistrate. The appellant had already spent two days in custody. [30] The appellant’s solicitor further submitted that “given the lack of history, defence submits this could be dealt with by conviction and not further punishment, or alternatively a fine might be within range. Certainly having a conviction for failing to appear, even with no penalty, would certainly endanger his chances of getting bail in the future.” 6 Section 9(2)(c). 7 Section 9(2)(j). 8 Section 9(2)(f). 9 Section 9(2)(a). 10 Section 9(2)(a). -- 6 of 9 -- 7 [31] According to the transcript, the police prosecutor did not make any submissions on penalty. [32] At no point during submissions did the Magistrate indicate that he was considering imposing a sentence of imprisonment (actual or suspended). [33] In delivering his sentencing remarks the Magistrate said: “Okay. Mr ARS, we are here on a Saturday morning because people do not comply with bail, all right. They have got to pay Mr Watkins [the ATSILS solicitor] Senior Constable Remy – Mr Watkins is shaking his head. He is probably not going to get paid. I know I am not going to get paid, but I had to get out of bed early, all right, because people do not comply with their bail. The [indistinct] here in the Watch House – costs a lot of money. It is not good enough for you to just sign a piece of paper. You have got to make proper arrangements for your bail. Now, I heard you have failed to appear previously, and you have made an explanation for that. But you should have learnt by that lesson that you have got to do something more than just sit on your backside until the police come around and pick you up, okay. I’m going to sentence you to seven days’ imprisonment. I’m going to say the two days you have served in custody will be time served, and the balance of the sentence is suspended for a period of six months. There is five days hanging over your [indistinct] if you do not comply with your bail in the future, you have got five days – looking at five days in the slammer before we do anything else, all right.”11 Consideration [34] In referring to whether or not the appellant’s legal representative, His Honour and the police prosecutor would each be paid for appearing on a Saturday morning, the learned Magistrate referred to an irrelevant consideration. Although the learned Magistrate was very experienced and no doubt very busy, the remarks on their face suggested that he may, in the exercise of his sentencing discretion, have impermissibly taken into account an irrelevant consideration. That was an error of law. [35] In referring to the appellant’s previous failure to appear, the learned Magistrate took into account an irrelevant consideration because the appellant was not convicted of failing to appear on that occasion. The appellant had successfully shown cause why he should not be convicted of that offence because he had not been notified of the requirement to appear on 18 April 2017. Therefore to rely upon that matter in sentencing him was to take into account an irrelevant consideration which was also an error of law. [36] As a general proposition it is appropriate for a court, if considering imposing a sentence more severe than the range suggested by the prosecutor, to give notice of that, so that the defendant’s representative may address matters on that basis.12 This 11 TS decision p 2 lines 7-23. 12 R v Cunningham [2005] QCA 321; R v Wilson [2016] QCA 301 at [6] -- 7 of 9 -- 8 applies particularly where there is some unusual feature in the sentence the court has in mind.13 [37] Here there was no indication that the Magistrate was considering imposing a sentence of imprisonment. Had he indicated that, it is likely the appellant’s solicitor would have made full submissions with respect to imprisonment, including by referring to s 9(2)(a) of the Penalties and Sentences Act 1997. The Magistrate erred in failing to afford the appellant’s solicitor the opportunity to address him in relation to whether a sentence of imprisonment was appropriate. To impose a sentence of imprisonment in the circumstances of this particular offence and the appellant’s antecedents, where no party had addressed the court on that possibility and where the court had not indicated it was considering it, was a breach of the rule of natural justice. [38] Having identified those specific errors, the sentence must be set aside and this court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise I conclude that no different sentence should be passed. [39] Was that sentence manifestly excessive? This question is relevant because even if an error is detected in the original sentence, as is the case here, the court will not allow the appeal if it would not itself, in the independent exercise of its discretion, impose any lesser sentence. [40] Essentially since errors have been identified, this court does not assess to what extent the errors affected the outcome in determining what the correct sentence should be but rather in the exercise of its independent discretion, this court must determine what is the appropriate sentence for the offender and the offence. [1] As the High Court explained in Kentwell14, when a sentencing judge acts on a wrong principle or does not take into account a material or relevant matter, the discretion has miscarried and a court of criminal appeal must exercise its independent discretion. However if, in the exercise of its independent discretion, the court would not impose any different sentence then the application for leave to appeal would be refused, notwithstanding the error. [2] Exercising my own independent discretion, I consider that the sentence imposed was excessive. [41] The principle pursuant to s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) that a sentence of imprisonment is a sentence of last resort and that a sentence that allows the offender to stay in the community is preferable, was applicable in this case. [42] Under s 144(1) of the Penalties and Sentences Act the court may order that the term of imprisonment be suspended. However, such an order may only be made if the court is satisfied that a term of imprisonment would be appropriate in the circumstances15 and suspending the term is appropriate.16 A suspended sentence is not a mere formality and may be regarded as significant punishment.17 The court should only turn to consider suspending a sentence of imprisonment after first 13 R v Kitson [2008] QCA 86 at [21]. 14 (2014) 252 CLR 601, [35]. 15 Section 144(4). 16 Section 144(2). 17 R v H (1993) 66 A Crim R 505, 510. -- 8 of 9 -- 9 determining that imprisonment is the appropriate penalty having decided that imprisonment is the appropriate penalty and having decided the head sentence and non-parole period to impose, a sentencing judge may then suspend that sentence if he or she considers that good reason exists to do so.18 [43] In my view, a sentence of imprisonment (wholly suspended or otherwise) was not appropriate in the circumstances of this offence for the following reasons: 1. The maximum penalty for the offence is 40 penalty units or 2 years imprisonment. 2. The appellant’s explanation for why he failed to appear and the steps he took to notify the court at both Innisfail and Cairns, while not sufficient to constitute a defence pursuant to s 33(2) of the Bail Act 1980 (Qld), were nonetheless highly relevant and militated against the imposition of a severe penalty; 3. The circumstances of the offending, included the context in which it occurred, fell within the least serious category for this offence; 4. The appellant had no previous convictions for this offence or for like offending, or for offences of violence; 5. Save for convictions on 28 April 2017 for three summary offences of an unrelated nature for which he was fined $450 with no conviction recorded, the appellant’s criminal history was minor and dated; 6. The appellant had never previously been sentenced to a period of imprisonment or even a community based order; 7. The appellant had already served 2 days in pre-sentence custody; 8. The appellant had a stable employment history, was gainfully employed earning $750 per week and therefore had some capacity to pay a fine; 9. On 7 August 2017 after reviewing the brief of evidence, the appellant instructed ATSILS to plead guilty to all charges. The matters were adjourned to the Murri Court at Cairns. Since then, the appellant has been engaging well in the Murri Court program to date. [44] In my view, taking into account all the relevant circumstances including the factors in s 9 of the Penalties and Sentences Act 1992, the appropriate penalty would have been to convict and not further punish, or to impose a small fine with no conviction recorded pursuant to s 12 of the Penalties and Sentences Act 1992 (Qld). Conclusion [45] I allow the appeal, set aside the orders made by the Magistrates court and order that the appellant be convicted and not further punished. 18 R v Ford [2008] SASC 46, [51]. -- 9 of 9 --