Ballard v Commissioner of Police [2017] QDC 174

DISTRICT COURT OF QUEENSLAND CITATION: Ballard v Commissioner of Police [2017] QDC 174 PARTIES: BRIT BALLARD (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 2 of 2017 DIVISION: Appellate PROCEEDING: Appeal under s 222 of the Justices Act 1886 ORIGINATING COURT: Magistrates Court at Maroochydore DELIVERED ON: 7 April 2017 DELIVERED AT: District Court at Maroochydore HEARING DATE: 7 April 2017 JUDGE: Long SC DCJ ORDER: The orders made in the Magistrates Court at Maroochydore on 14 December 2016 and in consequence of the guilty plea of the appellant to the offence of contravening a direction or requirement on 22 November 2016, are set aside and the appellant is convicted and not punished for that offence. CATCHWORDS: APPEAL – APPEAL AND NEW TRIAL – s 222 of the Justices Act 1886 – Where the appellant was convicted and fined the sum of $471 for an offence of contravening a direction or requirement of police – Where the appellant contends that the Magistrate did not consider her financial circumstances or medical condition when imposing the sentence – Where the appellant contends that the Magistrate did not consider an alternative to a financial penalty – Whether there has been any error on the part of the Magistrate. LEGISLATION: Justices Act 1886 ss 222 and 223 Penalties and Sentences Act 1992 ss 16(2)(b); 41(1); 48(1) and 51 State Penalties Enforcement Act 1999 s 16(2)(b) CASES: House v R [1936] 55 CLR 499 Carlson v King (1947) 64 WN (NSW) 65 Condon v Munsie [2015] QDC 148 COUNSEL: The appellant appeared on her own behalf N Hamilton for the respondent SOLICITORS: The appellant appeared on her own behalf Office of Director of Public Prosecutions (Qld) for the respondent -- 1 of 8 -- 20170407/MCY/DC/1/Long DCJ __________________________________________________________________________________ 2 JUDGMENT HIS HONOUR: On the 11th of January 2017, the appellant filed a notice of appeal in respect of the order made in the Magistrates Court at Maroochydore, on the 14th of December 2016, in terms of the imposition of a fine in the amount of $471 and 5 imposed in respect of an offence of contravening a direction or requirement of police, on 22 November 2016. In the notice of appeal the grounds are set out as follows: 10 “(1)The Magistrate did not consider the nature of the burden that payment of the fine would have on current economic hardship (I am currently reliant on Centrelink benefits and have significant medical costs). (2) The Magistrate did not consider my current medical condition (lyme disease, chronic fatigue syndrome, severe depression). 15 (3) The Magistrate did not consider any alternative to a financial penalty. (4) The initial offence may be invalid as the warrant issued was not in my name.” In respect of ground 4, that relates to the following contextual circumstances. On 14 20 December 2016, the appellant was also dealt with for the offences in respect of which the offence of contravening the direction or requirement arose. That direction or requirement was to attend to provide identifying particulars in DNA, in consequence of her being charged with the offences that on the 6th of November 2016 and at her residence at Peregian Beach, she unlawfully and respectively 25 produced and had possession of the dangerous drug cannabis sativa and had in her possession two pipes that she had used in connection with the smoking of that dangerous drug. On 14 December 2016, for those three drug offences, the appellant was dealt with under section 19(1)(b) of the Penalties and Sentences Act 1992 and placed on a reconnaissance in the sum of $1200, to be of good behaviour for a period 30 of 12 months. As the record demonstrates, the appellant pleaded guilty or admitted the truth of each complaint and therefore each of the four offences. And accordingly, section 222(2)(c) of the Justices Act 1886, stands as impediment to ground 4, particularly in 35 circumstances where there is no attempt made to challenge the efficacy of those pleas or to have them set aside. Accordingly, that ground, ground 4, was not effectively pressed on the hearing of this appeal. The appeal is brought in respect of the exercise of the Magistrate’s sentencing 40 discretion and as I have noted, specifically in relation to the imposition of the fine in the amount of $471, for the contravene a direction or requirement offence. It may be accepted that the principles upon which this Court acts under section 223 of the Justices Act, is that the appeal is by way of rehearing on the evidence given in the proceedings before the sentencing Magistrate, or in other words, upon the record of 45 the proceedings in that court. Particularly because the appeal is against the exercise of the sentencing discretion of the Magistrate, the appeal is governed by the principles laid down by the High Court in House v R [1936] 55 CLR 499 at 505. -- 2 of 8 -- 20170407/MCY/DC/1/Long DCJ __________________________________________________________________________________ 3 JUDGMENT And therefore, it is necessary for the appellant to demonstrate that some error has been made in the exercise of that sentencing discretion here in imposing that fine. Such error may be demonstrated, as was noted by the High Court, by establishing that the judge, or here Magistrate, has acted upon some wrong principle, or has 5 allowed extraneous or irrelevant matters to guide or affect him, or if the Magistrate has mistaken the facts, or not taken into account some material consideration, or if the result is demonstrated to be so unreasonable or plainly unjust that the court may infer that some such failure to properly exercise the discretion has occurred. 10 The record indicates that the hearing of this matter, as is often the case in respect of the exercise of summary jurisdiction in a busy Magistrates Court, was quite brief. The police prosecutor, after indicating that the appellant came before the Court without criminal history, outlined the essential facts in respect of the drug related offences, in that, upon attending and executing of a search warrant, on 6 November 15 2016, at the appellant’s place of residence at Peregian, police observed two small cannabis plants growing in pots and against an exterior wall. Upon ascertaining that no one was home, entry was gained and the unit searched, whereupon a plastic container and an orange tin were located, each containing loose cannabis, totalling about two grams, and also a wooden smoking pipe and a glass pipe were each 20 located in conjunction with those materials. Further and although no plants were located near it, a growing light was also located connected to a power source in a spare bedroom. The prosecutor then further outlined that the appellant and her partner had returned to 25 the unit before the search was completed and were detained. Both then and when she attended at the Kawana Police Station, on 14 November 2016, the appellant declined to be interviewed but it was noted that, on 14 November 2016, she did make some admissions as to ownership of the items that the police had located. Then and except for the giving of the Magistrate’s decision and his reasons, the remainder of the 30 hearing consisted of the following exchanges: Bench: Okay, thank you. Yes, stand up please, Ms Ballard. Anything you want to say? I have read through your documents. Your financial situation is made clear. 35 SGT Pallister: Sorry, and I should have said, the contravene direction related to identifying particulars. It was served, didn’t appear within the seven day period. Thank you. 40 Bench: Okay, thank you. It may be inferred that in some way the appellant, who has appeared in a self represented capacity before the Magistrate and again in this Court, indicated that she did not wish to make any submissions or add to the documents, which the Magistrate 45 indicated he had read. The Magistrates Court file contains what appears to be several copies of a bundle of documents, which the appellant has identified that she provided to the Court in advance of the hearing. The top copy does appear to be date stamped 13 December 2016, in the registry. But and as has been previously noted in this -- 3 of 8 -- 20170407/MCY/DC/1/Long DCJ __________________________________________________________________________________ 4 JUDGMENT Court, as not an isolated occurrence, the documents provided by the appellant and which the Court below accepted, read and presumably took into account, were not in any way marked, such as to constitute part of the record. Not only does the absence of this simple act, such as marking the documents with an exhibit number, potentially create difficulties for this Court on appeals of this kind, it 5 is inconsistent with the function of that Court as a court of record: see Carlson v King (1947) 64 WN (NSW) 65 at 66. It can be noted that earlier in the transcript of proceedings, it is recorded that after taking the appellant’s pleas and before the prosecutor began to address the Court, 10 there was the following exchange: Bench: Now, this schedule that you’ve prepared, have you given a copy of that to the prosecutor? 15 Defendant: No. Bench: No, he needs to see it, because if you want me to take matters into account in the sentencing – it looks like you’ve made – you’ve sent through two copies. You’re going to give him one. All right, so – thank you. Have a seat 20 please, I’ll just have a look through it while you’re reading the facts Sergeant, and then if there’s any problems I’ll let you know. Consistently with the general principle, that except where it is expressly provided or otherwise necessary to do so, our courts operate openly and in public, the usual 25 occasion for taking or receiving evidence or materials for consideration in the exercise of the jurisdiction of a court, will be at the hearing, which is conducted in public. Of course, relevant rules and directions of a court may allow for the filing of materials in the registry, or provision to the court of specific materials. However, the occasion for identification of what is proposed for consideration is at the hearing. 30 That is because all parties may then be dealt with equally and have opportunity to be heard and if appropriate, make any valid objection to any material tendered by another party. Accordingly and ideally, a court should not otherwise accept or consider materials on 35 a unilateral basis from any party. That is not to say that in some appropriate circumstances and particularly where there is agreement of the parties as to that material, a court may not accept and consider such materials for the purpose of preparing for the efficient and expeditious conduct of hearings in public. But there must necessarily be some clear acknowledgement, in the public hearing, of the 40 materials that are being considered. As has been noted here and apart from not in any way marking the materials that had been provided by the appellant and that were apparently considered, there is nothing suggesting that these materials were not dealt with appropriately by the Magistrate. 45 However, it is clear that they were apparently only disclosed to the prosecutor in the course of the proceedings. Nevertheless, the absence of any contention or issue being raised by the prosecutor in respect of those materials, may have some significance here. -- 4 of 8 -- 20170407/MCY/DC/1/Long DCJ __________________________________________________________________________________ 5 JUDGMENT In his reasons or sentencing remarks, the Magistrate displayed a clear understanding of significant parts of the materials provided by the appellant and particularly in explanation of the bond imposed in respect of the drug offences. And therefore, in some acknowledgment of the context of the appellant’s commission of those 5 offences being related to her use of cannabis for some form of medicinal benefit or purpose. Further and from the remarks of the Magistrate and the earlier observations of the Magistrate during the course of the hearing, it is apparent that he was aware and took into account the financial circumstances of the appellant and her medical condition. In fact, in before announcing that he would give her a bond for the drug 10 offences, the Magistrate told the appellant: As for an appropriate penalty fines normally are imposed for this sort of offending to deter the offender. Your financial circumstances, you say, is quite bad. You are receiving a pension. 15 Accordingly, it is apparent that grounds 1 and 2 are not made out. However, the third ground has more merit. First, it may be noted, that after describing the terms of the bond he was imposing in respect of the drug offences, the Magistrate said: 20 For contravening a direction or requirement – the infringement amount for that offence is $471. They can give you a ticket for that. That is the fine for that offence. It may not seem important to you. There may have been good reasons why you did not get there, but having said that it is important that people comply with those notices because they assist the police with the administration 25 of their responsibilities. More particularly, it may be observed that there is an absence of explicit reasoning in explanation as to why the bond, which was imposed in respect of the drug offences, was not, in all the circumstances and particularly after noting the evidence as to 30 straitened financial circumstances of the appellant in doing so, not also an appropriate response to an offence which was incidental to the discovery of the commission of those drug offences. Moreover and as to the amount of the fine, the reference to the prescribed amount for 35 a penalty infringement notice that may, but appears was not issued in this case for such an offence, is problematic. As I have previously observed in Condon v Munsie [2015] QDC 148 at [18] - [23], whilst section 16(2)(b) of the State Penalties Enforcement Act 1999 may not make reference to the prescribed penalty for a penalty infringement notice and where that may occur in respect of a particular offence, an 40 irrelevant consideration in dealing with an offender for such an offence, that may not be for the purpose of applying any tariff or by way of constraint or fetter on the exercise of sentencing discretion. In particular, there is difficulty to the extent that the reasons given here, may tend to 45 suggest that a fine in the amount of $471 was regarded as a minimal penalty that may have been imposed. That is particularly in the application of section 48(1) of the Penalties and Sentences Act 1992 and the need to take into account, “as far as is -- 5 of 8 -- 20170407/MCY/DC/1/Long DCJ __________________________________________________________________________________ 6 JUDGMENT practicable,” the offender’s financial circumstances and “the nature of the burden that payment of the fine will be on the offender.” It is, after all, clear that particularly in cases of incapacity to pay the prescribed amount for a penalty infringement notice, the option of election to bring the matter to 5 the Court enables the engagement of section 41(1) of the Penalties and Sentences Act and the potentiality of some other sentencing option. However, it is unnecessary to determine whether such is the necessary implication of the Magistrate’s reference to that yardstick. This is because of the last two sentences 10 in the passage last referred to above, from the Magistrates reasons. The first sentence is indicative of reference to the following passage in the appellant’s written materials: “Regarding the charge of contravening a direction 15 I suffer from varying levels of fatigue, brain fog, confusion and other symptoms related to aforementioned health issues. I believe that my symptoms increased in intensity the week following the search of my home, since my medicinal cannabis had been confiscated. I truly regret not being well enough to attend 20 in the required timeframe and arrived at the Maroochydore Police Station as soon as I was able. I live alone and some days it is not safe for me to drive and there is not always someone available to assist me with transportation.” Of course, the appellant had entered a guilty plea to the offence, which necessarily 25 entailed acceptance of the allegation that she had contravened the direction “without reasonable excuse”. However, the appellant’s contentions were such as to alert the Magistrate that the issue was the failure of the appellant to comply with the direction within the stipulated timeframe, rather than not at all. 30 That is also consistent with the extent of the assistance given to the Magistrate by what the police prosecutor said, although it was not made explicit or clear. More importantly, there was no challenge or contest raised as to what the appellant had asserted. And it can be noted, that on the hearing of this appeal and without descending to the formalities of it, the particular assertion of the appellant that she 35 effectively provided the particulars on the next day after the relevant timeframe had been exceeded, was confirmed as being correct. Therefore it can be noted that there is an absence of any reference to the relevant circumstance that this was an instance of being late in compliance of the direction, 40 rather than not complying with the direction at all, in the Magistrate’s reasons. And the last sentence in the abovementioned passage is evidently directed as circumstances of a complete failure to do so. In these circumstances it is apparent that the Magistrate has mistaken the facts and/or 45 failed to have regard to the relevant circumstances of this offending. In addition and although not an error that, on its own, may have been sufficient to warrant a conclusion as to any need to interfere in this matter and as correctly identified by the respondent, there is also a difficulty in the application of section 51 of the Penalties -- 6 of 8 -- 20170407/MCY/DC/1/Long DCJ __________________________________________________________________________________ 7 JUDGMENT and Sentences Act. Although and as the respondent points out, the Magistrates Court file contains a generic stamp or marking which may be taken as evidencing also a handwritten marking indicative of an order that, “The proper officer of the Court give particulars of the amount of the fine to SPER for registration”, no such order was made orally or verbalised or apparently brought to the attention of the appellant, 5 by the Magistrate in the hearing. The notation on the Court record is consistent with the requirements of section 51(b) of the Penalties and Sentences Act 1992, the Magistrate having not otherwise allowed the appellant time to pay the fine. However, it is necessary to note that 10 section 51 further requires that such an order must be made “at the time of imposing the fine order.” Whilst it may be readily accepted that the Magistrate’s notation of the file occurred at or about the time of imposing the fine order, all of the other orders, including the fine order itself, were made verbally. In fact, that is the usual and fundamental practice and there is every reason in accordance with the necessity 15 of understanding on the part of a sentenced offender, for an interpretation of section 51 that requires the making of this further order verbally, as well. The essential point is that the orders are made by public announcement and the written entry in the court file is to evidence the making of those orders. That is the 20 way in which the Court’s orders are brought to the attention of the offender who appears before the Court. It may, of course, be different in those circumstances where the Court is empowered to deal with the matter in the absence of an offender, but even then, the Court’s orders are usually announced publicly and the written confirmation later brought to the attention of the offender. 25 In the circumstances outlined, the appropriate order is that the orders made in the Magistrates Court at Maroochydore on 14 December 2016 and in consequence of the guilty plea of the appellant to the offence of contravening a direction or requirement on 22 November 2016, are set aside and instead it is noted that the appellant is 30 convicted and not punished for that offence. There will be no alteration of the further order that no conviction be recorded for any of these offences. Now, is there anything else arising out of that? Ms Ballard, what that means is that I have allowed your appeal and I have set aside the fine. 35 DEFENDANT: Thank you, your Honour. HIS HONOUR: The matter will remain as an entry in the Court records that you were convicted by guilty plea of that offence, but there is no punishment for that 40 separate offence. You still have the bond for the drug offences. Do you understand? DEFENDANT: Yes, your Honour. HIS HONOUR: Ms Hamilton, anything arising out of that? 45 MS HAMILTON: Nothing arising. HIS HONOUR: All right. -- 7 of 8 -- 20170407/MCY/DC/1/Long DCJ __________________________________________________________________________________ 8 JUDGMENT MS HAMILTON: Thank you, your Honour. That is my only matter, if I may be excused. HIS HONOUR: Yes, you are excused. Thank you. 5 MS HAMILTON: Thank you, your Honour. HIS HONOUR: Thank you, Ms Ballard. You can go. 10 DEFENDANT: Thank you, your Honour. ______________________ -- 8 of 8 --