Alfarajy v Queensland Police Service [2016] QDC 266

1 [2016] QDC 266 DISTRICT COURT OF QUEENSLAND APPELLATE JURISDICTION JUDGE DORNEY QC Appeal No 168 of 2016 ODAY KAMIL NAIM ALFARAJY Appellant v. QUEENSLAND POLICE SERVICE Respondent SOUTHPORT 12.20 PM, MONDAY, 24 OCTOBER 2016 JUDGMENT -- 1 of 8 -- 2 JUDGMENT HIS HONOUR: This is an appeal under s 222 of the Justices Act 1886. The appellant was convicted on the 10th of June 2016 with respect to an offence committed on the 16th of March 2016. The offence of which he was convicted was using a carriage service to menace, harass or cause offence. That is an offence created by section 474.17(1) of the Commonwealth Criminal Code. The appellant 5 was convicted after entering a plea of guilty to that offence and was fined a sum of $1500. The ground for the appeal, as relevantly argued, is that the sentence was manifestly excessive in all of the circumstances. And it was included, as part of that argument, 10 that it could alternatively be argued that identified errors had occurred in her Honour’s reasoning at the first instance. The second ground is not persisted with. It simply alleged an error in not allowing the defendant to call evidence to support the submissions in mitigation. 15 The appellant was born on the 14th of June 1983. He is now 33 years old and was 32 at the time of the offence and sentence. The circumstances of the offending were set out in considerable detail in the outline of submissions filed on behalf of the appellant. There is no issue raised by the respondent that those facts and circumstances, set out at paragraphs [7] to [14], are accurately stated. I do not intend 20 to go through them in detail but I will refer to some other particular matters. The contact which was initiated by the appellant was by phone. It was to his partner. The words which were used, besides those making demands with respect to assets and money, are set out in paragraph [9] of the appellant’s outline. They include 25 words such as: I’m going to destroy you. Eff your mum. Eff you and your bitch sister. I will eff you of everything. I will destroy everything. You know what you need to do tomorrow. 30 And then later on: I will go to your work and talk to your boss and destroy you. I will go to Anna and tell her bad things about you. You will never meet your son alive again. 35 It’s also not disputed that the appellant then tried to call his partner a further 15 times. She did not answer. It was also led at the sentencing proceeding that, on the following day, the 40 appellant’s partner went to the police to report the incident. During that time the appellant again contacted her by texting her first and saying: “I am on the Gold Coast. Ha-ha.” and later calling and saying words to the effect: “Where are you, you’re not at your work, you need to come to your house and I will meet you there.” The facts also include that the partner’s boss attended the police station complaining 45 that the appellant had created a disturbance at the partner’s workplace. -- 2 of 8 -- 3 JUDGMENT The circumstances which are set out in paragraph [16] in the submissions on the appellant’s behalf at first instance I won’t repeat - but it’s clear that the learned Magistrate took them into account. They are significant matters and they are mitigating features. The learned Magistrate, as paragraph [17] asserts, accepted the appellant’s state of mind, namely, that he genuinely believed what had been put 5 forward in the instructions which I’ve just referred to and stated to the Court (namely, that his partner had been unfaithful to him and that he suffered pressure as a result of the business which he was negotiating at the time). Before I turn to an analysis of the reasons given by the learned Magistrate for the 10 sentence, I turn to some matters of principle. The major case of assistance in this particular matter is the Queensland Court of Appeal decision of The Queen v Hooper; ex parte the Commonwealth DPP [2008] QCA 308. The major decision in that case was given by Acting Justice of Appeal Mackenzie. Importantly, at paragraph [35], he notes that: 15 Where a case is borderline, there is scope for minds to genuinely differ as to the appropriate outcome. Adding: 20 But provided the criteria for considering the exercising of the discretion are made out, an appellant has a difficult task in persuading an appellate court to overrule a particular exercise of it. 25 That, of course, is a comment noted in the circumstances of the decision being a discretionary one, which comes within the principles of House v The King (1936) 55 CLR 499, particularly at pages 504 to 505. As set out at paragraph [26] of Acting Justice of Appeal Mackenzie’s decision, the principle is stated as follows: 30 Where a judicial discretion is exercised, it can only be set aside if the judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect the decision, mistakes the facts or does not take into account some material consideration. 35 He added: Also, in cases where it does not appear how the primary judge has reached the result embodied in the order, but upon the facts, it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been failure to 40 properly exercise the discretion which the law reposes in the court of first instance and review the exercise of the discretion on the ground that a substantial wrong has occurred. -- 3 of 8 -- 4 JUDGMENT That is often referred to as manifest excessiveness or, a contrary term, a manifest inadequacy. Acting Justice of Appeal Mackenzie added, at the end of that particular paragraph, the important following matter: The question is not whether others would have taken the same course as the 5 sentencing judge; provided, in [all] the circumstances, it was open to the sentencing judge to exercise the discretion at all, there is no ground for disturbing the order made. He added of course, with particular relevance to the issues here: 10 That is, of course, subject to the rider that the existence of circumstances in one or more of the categories in s 19B(1)(b) must reasonably support the exercise of the discretion – 15 The particular provision which is relied upon in these circumstances by the appellant is s 19B(1) of the Crimes Act 1914 (which of course is a Commonwealth Act). As the Acting Justice of Appeal analysed, by reference to Commissioner of Taxation v Baffsky (2001) 192 ALR 92, what that particular provision requires is the 20 application of the exercise of discretion in two stages. The first stage is the identification of one or more of the factors identified in s 19B(1)(b) being operative; and the second stage is the determination, on having regard to the factors which are so identified, it is - to use the words of the provision – “inexpedient” to inflict any punishment or any punishment other than nominal punishment. 25 Having reviewed the background matters, I then turn to the consideration by the learned Magistrate. It is really not being contested by the appellant that the learned Magistrate, at least in one way or another, referred to the various facts that were necessary for her to consider and that she generally referred to the principles which 30 also determined the outcome of the exercise of her discretion. While it might be noted that she did not use the word “inexpedient” (as she might be required to under best practice), the terminology that she did employ can be interpreted in a way that meets that particular obligation. 35 It’s then necessary to turn to the three particular issues that comprise stage 1. I’ll return to the first of those in a moment. The second of those is the extent, if any, to which the offence is of a trivial nature. Her Honour referred to that as, in the circumstances, something that she did not regard this offence as – being such a trivial offence. Of course, the wording is the extent to which the offence is of a trivial 40 nature; but I do not think that is any misstatement, because I do not think (as Justice of Appeal Mackenzie held concerning where sentencing remarks are delivered ex tempore) in terms of preciseness (or in precision of language) that it can have less significance than it might otherwise have. 45 The argument, then, is whether it was open to her Honour to make the decision about the extent to which the offence was not of a trivial nature. Her Honour referred to the fact that the statements when made were not simply that the appellant was in a “rant”. She referred, in particular, to the threats not only to his partner but references to his partner’s mother and sister, the demand of money and the reference to the son 50 in China. She also referred, of course, to the incidents on the next day – the 17th – -- 4 of 8 -- 5 JUDGMENT that I have already referred to. It’s clear that in determining this particular issue, that reference can be had to such issues. In Sable v The Queen; The Queen v Sable, (2014) 242 Aust Crim Reports at 49, the New South Wales Court of Criminal Appeal, in considering the issue of the application of s 19B, referred, again, to additional facts as having the possibility of impacting directly on the triviality which 5 is referred to in this particular provision and, as they note, to a lesser extent where the offence was committed under “extenuating” circumstances. It therefore was quite appropriate in consideration of the matter of triviality that her Honour referred to the other matters that I have already canvassed as happening on the next day – including both the text message and the conversation he had, as well as, after 10 threatening to turn up in her workplace he actually did, so much so that her employer attended at the police station. While it may well be correctly described as a “borderline” case in many ways - and perhaps even a borderline case on the issue of triviality - I find, in the circumstances, 15 that it was open to her Honour, taking into account the matters she did (and particularly bearing in mind that this was the partner of the appellant), that the offence was not of a trivial nature. I then turn to the next of the three matters, which is the third, and that is the extent, if 20 any, to which the offence was committed under “extenuating circumstances”. I start with the conclusion that her Honour reached: that is, that, in fact, it was not committed under extenuating circumstances. It was submitted to me that I should interpret “extenuating” simply as explaining what occurred. To my mind, “extenuating” has, in fact, a wider meaning than that. 25 Obviously, it does take into account the reasons or explanation why something occurred; and, of course, the explanation (or reasons) in this case is the suspicion that the appellant had of his wife as well as the anger he felt as a result of that and the frustration that he felt as a result of difficulties in the business decisions he was 30 making. But it is my view that it was open to the Magistrate to be satisfied that the offence was not committed under extenuating circumstances. Such circumstances have to be such as to give an objective understanding to what occurred which lessens what would otherwise be seen to be the face value of what 35 was said. In this particular case, where the threats were so significant and where the matters that were followed up the next day were consistent with those particular threats, I find that, in fact, it was open to her Honour to find the non-existence of relevant extenuating circumstances. 40 -- 5 of 8 -- 6 JUDGMENT The third issue, then, is the first of the mentioned issues in the relevant provision, namely, character, antecedents, age, health or mental condition of the person. Again, of course, with respect to both character and antecedents, the additional matters which did not constitute the offence on the 16th could be brought into account as well. The consideration of this first issue was set out in the second last major 5 paragraph of her Honour’s reasons for the decision. The learned Counsel for the appellant accepted that those particular circumstances as set out there really dealt with, in an appropriate way, the matters of character, antecedents, age, health or mental condition. 10 It is therefore necessary to go to the second aspect of this consideration, and that is whether, having regard to the factors so identified, it is “inexpedient” to inflict any punishment. The word “inexpedient” was considered by Acting Justice of Appeal Mackenzie in Hooper in paragraph [23]. He suggested that it bore meanings such as: 15 …”not advantageous, useful or suitable in the circumstances”, or “not tending to promote a purpose” or “not tending to the end desired”. It seems to me, when looking at the actual words used at the end of the second last paragraph and the words used in the last paragraph by the learned Magistrate, that 20 she addressed her mind to the particular issue at least of not tending to promote a purpose or not tending to the end desired. In the circumstances where she had found that each of those particular matters had been proved, there really is very little argument that, in those circumstances, she would come to the conclusion that it was not inexpedient - expressed in the double negative - to inflict any punishment or any 25 punishment other than a nominal punishment. I’ll deal briefly, though, with the argument raised by learned Counsel for the appellant: that is, that if one were to set to one side the findings of non-triviality and the lack of extenuating circumstances, then it might be sufficient to find, simply on 30 the first of those particular issues, sufficient to lead to a finding of inexpediency. I’m loath to enter into this area, because it seems to me that I must look at this case not on the basis of what I would have done in the circumstances but on the basis of whether it was open to the learned Magistrate to reach the decision she did. 35 If it was simply down to the decision that it was not open to the learned Magistrate to regard this offence as non-trivial and it was not open to the learned Magistrate to decide that the offence was not committed under extenuating circumstances, then I may well agree with the proposition which was raised by Mr Wilson, namely, that simply the character, antecedents, age, health and mental condition would not 40 negative the inexpedient nature of such punishment. But that, of course, is not the decision that I have reached. I’ll just refer briefly to a number of the other decisions which were brought to my attention, simply in the circumstances to indicate that I have in general terms, at 45 least, considered the matter. In the decision of Federal Commissioner of Taxation v Baffsky (which I have already referred to) there is reference at paragraph [35] to the effect of the conviction on the offender as being a material consideration when -- 6 of 8 -- 7 JUDGMENT exercising the s 19B discretion. It was held that it arose both with respect to personal deterrence under the issues that I must take into account and the learned Magistrate must have as well and under s 16A and the issue of adequacy of punishment (again under s 16A). It was also noted that it arises generally on the application of the test of inexpediency. 5 The case of Matta v The Australian Competition Consumer Commission [2000] FCA 729 was also raised. Acting Justice of Appeal Mackenzie distinguished it on the basis that it was concerned with issues of the effect, in essence, of misstatements to the public. When one looks at the decision, particularly that of Justice Kiefel (as she 10 then was), it is appropriate to note that, to her view at least (at [13]): It can be accepted as a proper consideration that the public, the authorities, and potential employers should know of what is – 15 as she described – after all, the truth of the matter. And she went on to also note at paragraph [13]: 20 That is not to say that it stands as the reason that a conviction may be recorded, but rather that the submission that a conviction be withheld from the information of the public and others should be rejected (in those circumstances). 25 And the last matter again which ties in with the matter I’ve just mentioned is the decision of The Queen v Abdi [1994] QCA 402, particularly in the reasons given at page 6 of the judgment given by the then Chief Justice and again at page 8 of the judgment given by Justice of Appeal McPherson to the effect that the recording of 30 convictions does have “some general public utility”. The last matter that I wish to address is that which was raised by the learned Counsel for the respondent in his submissions concerning the matter of general deterrence. As I indicated during argument, I think it can be implied from the comments that the 35 learned sentencing Magistrate made that an issue of general deterrence was taken into account by her. Of course, general deterrence in cases such as this (particularly where threats and harassment constitute such matters, as well as menacing as an ingredient of the offence) means that it is one that does generate a consideration of general deterrence. I can detect nothing in her Honour’s approach, even through 40 implication, that shows that she gave that particular sentencing principle any greater weight than it would otherwise have deserved in the case. Finally, I turn to the matter of general excessiveness, what I call “manifest excessiveness”. It was an alternative argument presented by learned Counsel for the 45 appellant that, even if I were to find that the other circumstances which are referred to by her Honour were appropriately met, and dealt with in an appropriate way, -- 7 of 8 -- 8 JUDGMENT I should still look at this issue of whether, in all of the circumstances, the penalty imposed was manifestly excessive. In doing so, it is not inappropriate to take into account, as the learned Counsel for the respondent has noted, that the maximum penalty for the offence is 3 years and a 5 jurisdictional limit of 12 months’ imprisonment imposed when determined in a Magistrates Court. Clearly, that maximum penalty is for the category of the worst cases and, of course, the penalty imposed in this case is for a category which is nothing of that kind. It, in fact, does not involve any imprisonment of any kind. 10 It’s also important in considering the issue of manifestly excessive to turn to the actual nature and the circumstances of the offence. I’ve gone through them many times. I think they are relevant also to this particular determination. I think what is particularly relevant is looking at the context of the statements in terms of his then partner (and perhaps now former partner of the appellant). 15 It seems to me that, looking at all of the particular issues in question, the kind of statements which were made which constituted the offence in this case do not lead to the conclusion that, without being able to otherwise determine that any specific error had occurred in the reasoning of the learned sentencing Magistrate, in any case it was 20 unreasonable or plainly unjust or, to use the terminology that I have been using, manifestly excessive. I would not find in the circumstances on all of the matters considered and, in particular, considering that the learned Magistrate referred to all relevant matters, that it was manifestly excessive. Accordingly, I intend to dismiss the appeal. Are there any other orders which are asked for? 25 MR WHITMORE: No, your Honour. MR WILSON: No. 30 HIS HONOUR: Okay. Thank you both very much. They were very useful submissions. Adjourn the Court. ______________________ 35 -- 8 of 8 --