Braga v Commissioner of Police [2018] QDC 48

DISTRICT COURT OF QUEENSLAND CITATION: Braga v Commissioner of Police [2018] QDC 48 PARTIES: Rodrigo Figuieredo Braga (Appellant) v The Commissioner of Police (Respondent) FILE NO/S: D111/17 DIVISION: CIVIL PROCEEDING: Appeal ORIGINATING COURT: Maroochydore Magistrates Court DELIVERED ON: 29 March 2018 DELIVERED AT: Maroochydore District Court HEARING DATE: 19 January 2018 JUDGE: Robertson DCJ ORDER: Appeal dismissed CATCHWORDS: APPEAL; SENTENCE: where appellant pleaded guilty to indecent assault, whether Magistrate erred by placing too much weight on circumstances of offence and impact on victim, whether Magistrate erred by not taking into account appellant’s “belief” at the time he committed the offence, whether sentence of 6 months imprisonment wholly suspended was manifestly excessive. Legislation Justices Act 1886 s 222(2)(c) Penalties and Sentences Act 1992 s 9 Cases House v The King (1936) 55 CLR 499 R v Lawley [2007] QCA 243 R v Baldwin [2014] QCA 186 Nguyen (unreported decision of his Honour Judge Reid); matter 23/11 dated 6 June 2011; Chen, unreported decision of Judge Robin QC 3 April 2012 -- 1 of 14 -- 2 R v Rodgers [1985] 2 Qd. R. 43 R v Armstrong [1996] 1 Qd. R. 316 COUNSEL: M Noud counsel for the appellant G Cummings counsel for the respondent SOLICITORS: Miller Sockhill Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent [1] On the 20 July 2017 in the Maroochydore Magistrates Court the appellant pleaded guilty to one count namely: “That on the 14 November 2016 at Mooloolaba he unlawfully and indecently assaulted EHL” [2] The appellant was represented by an experienced solicitor who made submissions on his behalf. He was sentenced by her Honour Magistrate Hennessy to a term of six months imprisonment which was wholly suspended for an operational period of eighteen months, and she ordered that he pay compensation in the sum of $1,500.00 which was referred to SPER. He appeals against the sentence on the ground that it is manifestly excessive. It is only the imprisonment component of the sentence that is challenged on appeal. [3] In the appellant’s outline prepared by Mr Noud of counsel who appeared for the appellant on the appeal, four legal and/or factual errors of the kind referred to in House v The King (1936) 55 CLR 499 are pleaded. Although section 222(2)(c) of the Justices Act 1886 provides only one ground of appeal in circumstances in which an appellant pleads guilty, that is that it was excessive, it is accepted that the appeal is governed by the principles referred to in House v The King: “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the Appellant Court considered that if they had been in the position of the primary Judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide of affect him, if he mistakes the facts, if he does not take into account some material -- 2 of 14 -- 3 consideration, then his determination should be reviewed and the Appellant Court may exercise its own discretion in substitution of his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the Appellant Court may infer that in some way there has been a failure properly to exercise indiscretion which the law reposes in the court of first instance.” [4] This principle has been universally applied since. It has to be noted in passing that in 1936 it was not contemplated even in the High Court that there could be female judges. In R v Lawley [2007] QCA 243 at paragraph [18], the Court of Appeal noted: “It is not a sufficient basis for this court to intervene that this court might have a struck a different balance between the competing considerations which had to be weighed in the exercise of the discretion”. [5] The grounds as pleaded in the outline filed on the 3 November 2017 are as follows: (a) The learned Magistrate’s discretion miscarried by her giving too much weight to the impact that the offence had on the complainant; (b) The learned Magistrate unnecessarily fettered her discretion by finding that a conviction could only be recorded if a sentence of a imprisonment was imposed; (c) The learned Magistrate’s discretion miscarried by her failing to give appropriate weight to the appellant’s belief at the time he committed the offence; (d) The sentence insofar as the term of the imprisonment imposed is concerned was in all the circumstances manifestly excessive. The proceedings below [6] The matter proceeded as a lengthy plea on the 20 July 2017 and her Honour delivered an extempore judgment. An agreed schedule of facts was tendered. It is necessary to set out the facts in the schedule in full. At no stage, either before her Honour, or on appeal, did the appellant challenge any of the facts. -- 3 of 14 -- 4 [7] For simplicity the paragraph numbers in the exhibit1 have been removed and the facts are presented in one paragraph: “The complainant in relation to this matter is a 21 year old female EHL. The defendant in this matter is 38 year old Rodrigo Braga. The offence location is O’Malley’s Irish pub situated at 109 Mooloolaba Esplanade, Mooloolaba. On the 14 November 2016 the complainant was at O’Malley’s pub enjoying a social evening out with friends. At approximately 1.00 am the complainant went to the toilet which is situated at the rear of the premises. The toilet has a communal entry area where there are hand wash basins before the area splits off into the individual male and female toilets. Each of the male and female toilet areas have a standard swinging door attached that enters into an area with several toilet cubicles. The complainant states that she entered the communal toilet wash basin area on her way to the toilet. The complainant states that here she saw a male person, the defendant now before the court. The complainant states that she does not know the defendant. She states she had seen him in the bar that evening but had no conversation or any interaction with him whatsoever. The complainant states that as she walked through the communal area the defendant reached out and grabbed her by the elbow. She stated that the defendant then grabbed her round the waist and pulled her body into his. The complainant states that she tried to palm the defendant in the chest as this occurred so that she could get past him, but that he then lifted her up off the ground and carried her into the female toilet area. The complainant states that the defendant used her back to push open the female toilet door. Once inside the female toilet the complainant states that the defendant stated “I want to fuck you.” He then attempted to kiss her on the mouth and on the neck. The complainant states that she moved her head from side to side so that the defendant could not kiss her. The complainant states that the defendant’s lips touched hers but she refused to open her mouth. The complainant states that she braced her hands across the entrance to a 1 Exhibit 1. -- 4 of 14 -- 5 toilet so that the defendant could not force her back into a toilet cubicle. The complainant states that she continued to turn her head away and that it felt to her like the defendant then bit her on the neck. The complainant states that she was totally frozen in fear and was panicking as a result of the defendant’s surprise assault upon her. The defendant’s assault continued for a short period of time before two females entered the female toilet. The two female persons immediately recognised that the complainant was being attacked. The complainant mouthed the words “help me” to the witnesses who screamed out and confronted the defendant. This action by the witnesses caused the defendant to stop his assault on the complainant. The witnesses then alerted security who detained the defendant and called police. Uniformed police subsequently attended and arrested the defendant. The defendant was transported to the Maroochydore Watch house where a subsequent breath test returned a level that meant the defendant could not be interviewed. The defendant was later unarrested and released pending further investigation. On 19 November 2016 detectives from Maroochydore CIB attended at the defendant’s address and spoke to him. The defendant agreed to be formerly interviewed. During the interview the defendant made admissions to being involved in the incident but denied any wrongdoing. The defendant gave a version that was consistent with the complainant’s in part but stated that the complainant was a willing participant. The defendant agreed that he did not know the complainant and had not had any form of interaction with her before coming across her in the toilet. The defendant stated that once he took hold of the complainant’s wrist he could see in her eyes that she wanted to kiss him. The defendant stated that he lifted the complainant up and moved her into the female toilet area where he kissed her and she kissed him back. The defendant stated that this ended when the two witnesses came into the toilet and he was detained. The defendant denied stating to the complainant “I want to fuck you”. When questioned why he felt the complainant wanted to kiss and be physical with him the defendant stated that this is what happens in clubs and -- 5 of 14 -- 6 pubs and that he could see in the complainants’ eyes that she wanted this to occur. At the conclusion of the interview the defendant was issued with a notice to appear. As a result of being sexually assaulted the complainant has suffered stress and anxiety. The complainant works in the hospitality industry and has had to (sic) a number of days off work after the attack due to stress. The complainant is undergoing counselling as a result of the incident.” [8] At the date of sentence the appellant had no relevant criminal history. He had a two page traffic history which included two entries (in 2010 and 2008) for mid-range drink driving. He was 38 years of age. [9] The prosecutor acknowledged the plea of guilty as being a factor in mitigation. He emphasised that the sexual assault was protracted, and that the appellant was a complete stranger to the young complainant and his offending was persistent and continued in the face of her clear unwillingness to engage in any form of sexual activity with him. The prosecutor stressed that the assault took place in the washroom area and toilet area in a nightclub, in a place where the complainant was entitled to feel safe and that the appellant only desisted when two other women entered the area and screamed. He pointed out that at the time when the appellant was interviewed by police some days later, when he was not intoxicated, he partially accepted the complainant’s version of events, but maintained that she was willing i.e. raising a clear defence of consent and/or mistake of facts. The prosecutor, unsurprisingly, characterised the appellant’s response as showing a lack of remorse and insight. He accepted that the plea of guilty and the letter of apology which was later tendered by the appellant’s solicitor, was evidence of remorse at the time of sentence. No victim impact statement was tendered because the complainant said she wanted to put the incident behind her and get on with her life. Her Honour pointed out that effects of the victim were part of the agreed schedule of facts. [10] The prosecutor relied on the Court of Appeal decision in R v Baldwin [2014] QCA 186, and submitted that the circumstances there were less serious than the facts in the present case. [11] The appellant’s solicitor Ms Hanslowe-Hastie then addressed her Honour. At no time did she dispute any of the facts in the agreed schedule. She tendered a number of -- 6 of 14 -- 7 references. These informed her Honour that the appellant was gainfully employed; a member of the local Australian/Brazilian community, and a person of good character. The solicitor also tendered an apology directed to the victim. [12] She characterised her client’s initial response to police as being because “he didn’t initially understand, possibly due to some cultural differences along with a level of intoxication. Mr Braga, initially, totally misinterpreted the situation”. [13] She said: “For example, when the victim placed her hand on his chest to push him away, that it didn’t register in my client’s mind. He thought it was a returned sign of affection, but he accepts that he acted in a way that he would not normally have done and in a way that inappropriate and unacceptable and he certainly doesn’t raise that misunderstanding as a defence, just as, perhaps, an explanation as to the record of the interview and when he was spoken to by police, of what he said. (sic).” [14] The solicitor informed her Honour that at the time her client was recovering from the break-up of a five year relationship and “he went out, trying to keep his mind off what had happened to him emotionally. It was student night at O’Malley’s. Drinks were only $4.00 each, that caused him, on my instructions, to completely overindulge.” [15] She told her Honour that her client had grown up in Brazil in a supportive family and had tertiary qualifications in his homeland. She told her Honour that he was not an Australian citizen but had permanent residence status. [16] She informed her Honour that on the night, the appellant had initially been drinking with a friend. The friend had left to go home and the appellant stayed on alone drinking “hoping he could meet someone that night and help him move on. He saw the complainant, told me she looked like a lovely girl so he approached her and then things took a turn for the worse and the situation unfolded as it did.” [17] She told her Honour that he was in serious financial difficulty, and when he sorts that out, he “plans to enrol in a physiotherapy degree, for which he will need a blue card.” [18] She submitted that a penalty not involving the recording of a conviction was within range. She submitted that he was “living with guilt and remorse” since reading the -- 7 of 14 -- 8 police evidence. She said that her client was concerned about “his visa status and his ability to remain in the country”, but produced no evidence on this issue, and the appellant has not sought to place new evidence before the court in relation to this issue. [19] She referred to R v Baldwin and sought to distinguish it on the basis that the offending involved “a degree of premeditation” and as there had been a trial, there were “no signs of remorse”. She submitted for community based orders and for no conviction to be recorded. Her Honour’s reasons [20] As I have noted, her Honour gave extempore reasons. She took into account the plea, and the circumstance of the offence which she regarded as being in the “mid-range if not a bit higher, as far as seriousness goes for this type of offence”. She also took into account the impact on the victim, as summarised in the agreed schedule of facts. She regarded as aggravating that the offence had been committed against a young woman in a public place where alcohol had been taken, in circumstances in which there had been no interaction at all between the parties prior to the unexpected assault. She regarded the letter of apology and the early plea of guilty as being in his favour, as well as his lack of criminal history. She referred to the visa and blue card issues and took into account the references. She accepted that the offending was out of character:2 “So you do have significant mitigating circumstances, but it seems to me that the seriousness of the facts of the offence and the impact that they have had on the victim are significant matters that I do need to sentence weighing general deterrence possibly a little higher than other matters. That means that I do consider that a term of imprisonment is the only appropriate penalty. I accept that that may have some fairly significant (sic) on your future plans, but as I said, my view is that the particular circumstances of this matter and its facts are so significant that that penalty is required.” [21] After making the compensation order, her Honour said3: 2 T-2 line 37 – 44. 3 T-3 line 5 – 9. -- 8 of 14 -- 9 “The only other penalty that I might have considered would have been a community service order, but it would have had to have been at the maximum. I still would not have been minded to not record a conviction given the seriousness of the matter, and I consider a community service order is not reflective of the facts.” [22] She then referred to R v Baldwin which she analysed as “less serious in its facts”, “mainly because it occurred in a situation ‘where the complainant had gone to see a room to rent and that the defendant had assaulted her. The most serious of these actual actions were brushing against her breast and putting his hand under her skirt and touching her on the vagina. He had no previous history, similar to you. He had some difficulties which meant that it was submitted that he could not do community service.” The submissions of the parties [23] The appellant argues that the sentence imposed was manifestly excessive, and submits that it in formulating the sentence her Honour’s discretion miscarried in that she placed too much weight on the impact that the offence had had on the victim. The appellant concentrates on her characterisation as this impact, along with “the seriousness of the facts” as “significant matters”. The appellant argues that her Honour fettered her discretion unfairly “by finding that a conviction could only be recorded if a sentence of imprisonment was imposed”. This argument refers to what her Honour said in her reasons, and to the following exchange between herself and the prosecutor after she discussed Baldwin with the appellant’s solicitor4: “Bench: Senior do you want to address community service? I don’t think probation’s necessary, because there doesn’t seem to be any ongoing issues that require treatment or – this type of offending would be a thumb print report – reporting, there wouldn’t be any act of supervision, I wouldn’t expect, so that’s not likely to be significant. I’m just going to – I mean, I think community service fits with the mitigation, but I’m just still concerned about the seriousness of the facts. 4 Transcript 1-11 line 16 to 1 – 12 line 14. -- 9 of 14 -- 10 Senior Constable Johnson: Yes your Honour I --- Bench: Did you have a look for any offences with similar facts? Senior Constable Johnson: No. There were – they were hard to find, your Honour. Bench: Yes Senior Constable Johnson: Mainly just the more serious sexual assaults ones where the ones that came up more readily. Bench: Yes Senior Constable Johnson: So not wanting to call this particularly low level and, as I’ve maintained, it’s still serious… Bench: No. It’s definitely mid-range on its facts. Senior constable Johnson: Yes. Given that – and, I think, given what I outlined – that the force used and actual picking up, carrying and – the defendant – I don’t know the size of the victim because I haven’t seen her, however, the defendant himself was not small – and being, you know, that substantial amount of age older, had the strength to do that and still pursue what he was intending on doing whilst holding her and restraining her. So given that, would say, your Honour, that a period of imprisonment – we say would be more in rage. If there was to be a community service order, then a substantial amount – like, significant number of hours, your Honour. Bench: Yes. Look, the difficulty with that is I’d really only be doing that because of the submission about no conviction. But I think this is that serious that a conviction is necessary. Perhaps not specific deterrence, but general deterrence…” [24] Thirdly the appellant argues that her Honour’s discretion miscarried because she failed to give appropriate weight to “the appellant’s belief that he held at the time he committed the offence.” This is a reference to the solicitor’s submission set out -- 10 of 14 -- 11 above, to the effect that the client “initially, totally, misinterpreted the situation”. The argument on appeal is put thus: “21. The police prosecutor did not challenge this allegation of fact about the appellant’s mistaken belief. Indeed, such a submission by defence was not in contest with the facts of the plea. The effect of the submission was to distinguish the appellant’s actions from the more predatory example of the offence. It was deserving of some weight or at least some consideration.” [25] Finally the submission is made that her Honour erred in deciding that Baldwin was a less serious case. [26] It is submitted that the Magistrate should have imposed a fine or a period of community service without the recording of a conviction. In his submission, Mr Noud referred to two unreported decisions of this Court namely Nguyen (unreported decision of his Honour Judge Reid); matter 23/11 dated 6 June 2011; and Chen, unreported decision of Judge Robin QC 3 April 2012. The circumstances of the offending are briefly referred to in paragraph 25 of Mr Noud’s submission and are clearly factually not comparable to the facts in this case. [27] The respondent submits that, when read as a whole, her Honour’s reasons, taken with her Honour’s comments during the course of the submissions, do not support the submission that she placed undue weight on the impact on the complainant; nor does that approach support the contention that her Honour made legal errors in relation to her discretion to record or not record a conviction. The respondent submits that there was no error in “failing to give appropriate weight to the appellant’s belief”, and that the sentence did not fall outside the appropriate range for this offence. Disposition [28] The appellant’s approach to take and criticise in isolation various statements made by her Honour both in her reasons and during the sentencing hearing itself, does not hold up when the reasons and the record are considered as a whole. Her Honour was obliged to take into account “the circumstances of the offence”, “the nature or extent -- 11 of 14 -- 12 of violence used”5, in exercising her discretion. As the offence was one to which the principles that a sentence of imprisonment should only be imposed as a last resort that was displaced6 she was also obliged to take into account the effect on the victim7, as well as the factors in mitigation including his early plea, his lack of criminal history and his apology albeit in a written form to the court. In sentencing an offender for an offence caught by section 9(2A)(a) of the Penalties and Sentences Act 1992, her Honour was obliged to have primary regard to the circumstances of the offence, and the other factors referred to in section 9(3). When read as a whole, her Honour fairly undertook the balancing exercise required in determining a punishment that was just in all the circumstances. The schedule of facts, accepted by the appellant, indicated that his attack on this young woman, who was a complete stranger, was entirely unprovoked, persistent and sustained, showing a determined effort to assault her indecently. The impact on the victim is not undermined by the absence of a victim impact statement in circumstances in which the impact was set out in the agreed schedule of facts. There is nothing in what her Honour said that suggests that she gave impermissible weight to this aspect of the circumstances of the case. [29] It is also clear, when the reasons and her Honour’s questions and comments with the prosecutor and solicitor are read as a whole, that she well knew that by imposing a term of imprisonment, a conviction would automatically follow. It is clear that she carefully considered community service, but that the seriousness of the offence was such that even that disposition would have caused her to record a conviction, and for reasons of general deterrence she thought a term of imprisonment was called for. She reflected factors in mitigation by wholly suspending the six month term. [30] The third point made by the appellant again has no substance, given his acceptance of the schedule of facts. Her Honour could well have held that the appellant’s initial reaction to police showed a lack of remorse and/or insight into the seriousness of the offence. His response to the police was clearly a rationalisation of what was disgraceful conduct. In light of his acceptance of the schedule of facts, any suggestion of misinterpreting the situation. By any action by the victim, was irrational and illogical. She was a complete stranger. On the agreed facts, she did or said nothing to provoke him. The solicitor said that he did not initially understand “possibly due 5 Section 9(3) Penalties and Sentences Act 1992. 6 Section 9(2A)(a). 7 Section 9(2)(c)(i). -- 12 of 14 -- 13 to some cultural differences along with the level of intoxication.” It is simply irrational to suggest that this sort of behaviour would be culturally acceptable in a night club in Brazil. Clearly, it was his level of intoxication, so severe that the police did not interview him that night, that underpinned his serious, but out of character behaviour. The appellant’s “state of mind” in light of the agreed facts, was inherently improbable and her Honour was entitled to regard it as irrelevant to the sentencing discretion.8 [31] The only comparable sentence referred to her Honour was R v Baldwin [2014] QCA 186. Factually, the actual conduct constituted by the offence was marginally less serious than the facts in the case before her Honour. The complainant gave evidence of inappropriate conduct the day before when she went to inspect a room for rent at the applicant’s house, and returned the next day to inspect another room when he again made advances to her which culminated in him moving his hand on her thigh under her dress towards her vagina. He desisted when she told him to stop. Here the sexual assault was quite violent, in the sense that despite her resisting, the appellant actually lifted the victim up and carried her into the female toilet area; and endeavoured to force open a toilet door using her back and saying “I want to fuck you”. He persisted in trying to kiss her despite her determined resistance; and only desisted when other females entered the area and screamed out and confronted him. Mr Baldwin went to trial, and had no previous conviction. In dealing with the appeal against convictions Peter Lyons J noted when discussed the issue raised on the conviction appeal, namely mistake of fact, that the evidence of the previous contact between the applicant and the complainant suggested a degree of “ambiguity” in the complainant’s attitude to the appellant” in relation to his conduct leading up to the offence. In the recitation of the facts set out in the judgment of Fraser JA (from [4] – [11]), it is clear that Peter Lyons J’s characterisation is accurate. Here, there was no ambiguity. The attack was a complete surprise to the complainant who was in an area where she was entitled to feel safe. Mr Baldwin had had a severe head injury which lead to a fall in his general level of cognitive functioning to within the low average to average range. He desisted when the complainant protested. [32] I all the circumstances it cannot be said that a short term of imprisonment wholly suspended was outside the proper exercise of sentencing discretion. There is no basis 8 R v Rodgers [1985] 2 Qd. R. 43; R v Armstrong [1996] 1 Qd. R. 316 at 320. -- 13 of 14 -- 14 to hold upon a rehearing that her Honour’s sentencing discretion miscarried and that the sentence that she imposed was manifestly excessive. [33] The appeal is dismissed. -- 14 of 14 --