Chidgey v Commissioner of Police [2016] QDC 224

DISTRICT COURT OF QUEENSLAND CITATION: Chidgey v Commissioner of Police [2016] QDC 224 PARTIES: David Stanley CHIDGEY (appellant) v Commissioner of Police (respondent) FILE NO/S: 1512/2016 DIVISION: Appellant PROCEEDING: Appeal ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 2 September 2015 (ex-tempore) DELIVERED AT: Brisbane HEARING DATE: 2 September 2016 JUDGE: Dearden DCJ ORDER: (1) Appeal against conviction in respect of the breach of bail, refused; (2) Appeal against sentence, in respect of breach of bail only, granted; (3) Set aside the order that the appellant is fined $1500 and substitute instead an order that the appellant is fined $250; (4) Otherwise affirm all other orders made on sentence by the learned acting magistrate. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – where the appellant failed to report in accordance with bail conditions – where appellant was informed he had failed to report – where the appellant obtained a medical certificate – whether the magistrate fell into error – whether the conviction was unsafe or unsatisfactory CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY -- 1 of 7 -- 2 LEGISLATION: CASES: EXCESSIVE OR INADEQUATE –- where the appellant was fined for breaching his bail conditions – where the appellant was fined $1500 - where there was no criminal history for breach of bail – whether the sentence was manifestly excessive Bail Act 1980 (Qld) s 6, 29 Justices Act 1886 (Qld) s 222, 223 R v Morse (1979) 23 SASR 98 Stevenson v Yasso [2006] 2 Qd R Tierney v The Commissioner of Police [2011] QCA 327 COUNSEL: SOLICITORS: The appellant was self-represented. Mr J Bishop (sol.) for the respondent. The appellant was self-represented. Office of the Director of Public Prosecutions for the respondent. Introduction [1] The appellant, David Stanley Chidgey, appeals against the decision of the learned acting magistrate at Cleveland where he was found guilty of one charge of breach of bail, fined $1500 and ordered to pay $400 witness expenses. A conviction was recorded. The appellant also appeals in respect of the quantum of the fine for breach of bail ($1500) and the fines in respect of the substantive charges of unregistered vehicle and using a number plate issued for another vehicle (one penalty of $750 for both offences) and driving an uninsured vehicle (fine $471). Grounds of Appeal [2] The grounds of appeal in respect of the conviction for breach of bail are as follow: – Sentence and penalty are unsafe and unsatisfactory and against the weight of the evidence. [3] In respect of all penalties imposed: – The penalty (sic) is manifestly excessive. [4] The appellant asserts further on his grounds of appeal; -- 2 of 7 -- 3 The medical certificate issued on the 4th of June 2015 was satisfactory as was the medical certificate issued for April 2015. The judge (sic) should have dismissed the breach of bail. The plea of guilty in the traffic matters was done for a lesser penalty. This was excessive under the circumstances. The Law [5] This appeal proceeds under Justices Act s.222. An appeal proceeds by way of a rehearing. Such a rehearing, pursuant to Justices Act s.223, requires this court, “to make its own determination of the issues on the evidence, giving due difference and attaching a good deal of weight to the magistrates’ views.”1 [6] Bail Act s.29(1) provides: – A defendant must not break any condition of the undertaking on which the defendant was granted bail requiring the defendant’s appearance before a court. [7] In Bail Act s.6, the term “undertaking” is defined to mean: – a promise in writing with respect to bail signed by a defendant or by a defendant and the defendant’s surety or sureties that the defendant will appear at a hearing or an adjourned hearing or upon the defendant’s trial or an appeal and surrender into custody and comply with such other conditions as are imposed for the defendant’s release on bail. [8] The term “break” as used in section 29(1) of the Bail Act is, however, not defined. I’ve been unable to locate any appellate authority on the point. In the circumstances, I’ve resorted to the dictionary definition. Relevantly, the Shorter Oxford Dictionary (fifth edition, 2002) defines “break” to mean: – Fail to keep (a law, promise, treaty, etc.), act contrary to. [9] I should say that that definition clearly accords with a plain reading of the wording of section 29(1), namely that the defendant has “failed to keep” a specified condition of the undertaking. [10] The relevant bench charge sheet alleges: – That on the 28th day of May 2015 at Cleveland in the Magistrates Court, district of Cleveland in the State of Queensland, one David Stanley Chidgey, being a defendant within the meaning of the Bail Act 1980, broke a condition of an undertaking into which he entered on the 4th of February 2015 at the Cleveland Magistrates Court, namely to report to the officer in charge of Cleveland Police Station between the 1 Stevenson v Yasso [2006] 2 Qd R 150, 162 per McMurdo P. -- 3 of 7 -- 4 hours of 8:00 am and 4:00 pm on each Thursday of each week on which David Stanley Chidgey was granted bail requiring his appearance before a court, namely the Cleveland Magistrates Court. [11] The undertaking as to bail (exhibit 2), signed by the defendant on 4 February 2015, provided (relevantly) at paragraph 6: – Report in person to the officer in charge of police at the Cleveland Police Station between the hours of 8:00 am and 4:00 pm on each Thursday exclusive of each week. First to report on 12/02/2015. [12] The Bail Reporting Register (exhibit 3) shows that the appellant reported each Thursday from 12/2/15 until 23/7/15, with the exception of 23/4/15, where the entry reads, “FTR QP1500568719 medical certificate provided”, and 28/5/15, where the entry reads: “FTR QP1500740100”. [13] Eight witnesses were called for the prosecution. I briefly summarise their evidence as follows: – (1) Senior Constable Brett Rorie gave evidence that he served the relevant bail undertaking (exhibit 2) on the appellant on 4 February 2015, and that he, and the appellant, both signed the undertaking. (2) Cheryl Hatzidellis, station client service officer, Cleveland Police Station, gave evidence that her duties included working on the front counter of the Cleveland Police Station, and that she commenced the bail reporting page for the appellant, drawing up a register (exhibit 3). (3) Senior Constable Tina Kanofski gave evidence that at 11:30 am on 3 June 2015, while rostered as station officer, at Cleveland Police Station, she spoke to the appellant at the front counter. Senior Constable Kanofski told the appellant he was wanted for questioning in relation to a breach of bail where he failed to sign on the 28th of May 2015. The appellant claimed to her that he had signed in on that date, and when shown the register, with no signature on that date, said he must have signed it somewhere else. After being advised he would be charged, the appellant said he would be obtaining a medical certificate. (4) Ms Sharon Boyce, administration officer with the Queensland Police Service, gave evidence that she worked on a 7 am to 3 pm shift at the front counter, Cleveland Police Station, on the relevant day (28 May 2015) and did not cite the appellant that day. (5) Ms Hayley Godbee, station client service officer, Queensland Police Service, gave that she worked at reception from 2 pm to 10 pm on 28 May 2015, and that at 7:45 pm, having gone through the bail book, entered a bail breach report for the appellant (I infer he having not signed on that date). -- 4 of 7 -- 5 (6) Sergeant Peter Moloney gave evidence that he was rostered as the Cleveland Police Station shift supervisor from 2 pm to 10 pm on 28 May 2015 and had no dealings with the appellant on that day. (7) Sergeant Mark Thomas gave evidence that he was the station officer, Cleveland Police Station, on a 6 am to 2 pm roster on 28 May 2015. He also stated that he had no dealings that day with the appellant. (8) Dr Kim Purdie, medical practitioner, Victoria Point Medical and Dental Clinic, gave evidence that on 4 June 2015, he issued a medical certificate for the appellant in the follows: – For an absence of a day in the previous week, the 28th of the 5th, 2015. (T1- 4). [14] The certificate (exhibit 1) relevantly stated: Mr David Chidgey states he was unable to attend work from 28/5/2015 to 28/5/2015 inclusive due to a medical condition. [15] Dr Purdie gave evidence that he: Hadn’t made a note in what way he [the appellant] was actually unwell in that time. (T1-4). [16] On questioning by the learned acting magistrate, Dr Purdie stated that the appellant: Was not seen at our practice on the 28th of the 5th. (T1-6). [17] The appellant gave evidence in his own defence. He said that he believed he signed in on the 28th of May, as he had every other week (T1-29). [18] In cross-examination, the appellant accepted that he had not attended a doctor on the 28th of May 2015, and had not contacted the police station on the 28th of May 2015 to say he couldn’t report (T1-32). Conclusions [19] The learned acting magistrate correctly noted that the onus of proof lay on the prosecution to prove each and every element of the offence beyond reasonable doubt. [20] The learned acting magistrate correctly identified the relevant provision of the Bail Act, namely s.29(1). He also (correctly in my view) identified that it was an “absolute condition” (T1-33). [21] The learned acting magistrate concluded that the witnesses called had not seen the appellant on 28 May 2015, at the Cleveland Police Station, and further found (as in my view he was entitled to) that the appellant had not “signed the book” (i.e. the bail register). -- 5 of 7 -- 6 [22] The learned acting magistrate concluded that the appellant, once notified by police, claimed that he had signed on the register (on 28 May 2015), but once shown the register without his signature on it, had then proceeded to obtain a medical certificate, which meant: No more than it says, that you’ve [the appellant] told a doctor on that (4 June 2015) that you were unable to go to work because of a medical condition. (T1-35). [23] The learned acting magistrate was satisfied, beyond reasonable doubt, that the evidence proved every element of the charge (i.e. that the appellant had failed to comply with the relevant condition of reporting on 28 May 2015). The appellant was found guilty of the charge. [24] With due respect, on the evidence before the learned acting magistrate, he could not in my view have reached any other conclusion. The appellant, clearly, did not report on 28 May 2015. He, therefore, broke (i.e. “failed to keep”), a condition of his bail. The appellant was clearly guilty as charged. [25] I conclude, without hesitation, that the learned acting magistrate did not fall into any “legal, factual or discretionary error.”2 [26] It follows that the appellant’s appeal against conviction has failed. Appeal Against Sentence [27] The appellant was fined $1500, and ordered to pay $400 costs of court. He was fined a total of $1271 in respect of the other three offences (broken up as I’ve identified earlier in these reasons). That penalty, with respect, appears unremarkable given the nature of the offences, and I’m not persuaded that it is in any way “manifestly excessive”. [28] The breach of bail fine, however, in the context of the appellant’s criminal history, which at the time of the offending contained only one public nuisance and one trespass offence, dealt with initially by a $300/nine-month recognisance, subsequently forfeited, with a resentence to 12-months’ probation (also together with a wilful damage charge) at the Cleveland Magistrates Court on 17 November 2015; with a criminal history demonstrating no previous breaches of bail; and in the context of compliance with regular reporting conditions from 12 February 2015 to (at least as far the register shows) 23 July 2015, with only one other (medically excused) fail to report on 23 April 2015, does not in my view justify a fine of $1500. [29] I consider that the fine of $1500 is in my view “manifestly excessive”, and was “beyond the acceptable scope of judicial discretion”3 There should of course be no added penalty for an offender proceeding to trial, although there is of course no discount for remorse, and I note also that the costs are not a penalty in this context 2 Tierney v The Commissioner of Police [2011] QCA 327, para. 26 per Margaret Wilson AJA. 3 R v Morse (1979) 23 SASR 98. -- 6 of 7 -- 7 but reflect the practical aspects of running the trial. In my view, an appropriate penalty, given the appellant’s minor criminal history, the lack of any previous convictions for breach of bail, and given his otherwise full compliance with reporting conditions, save for one medically-excused fail to report, would be a fine of $250. Orders [30] I make the following orders: – (1) Appeal against conviction in respect of the breach of bail, refused; (2) Appeal against sentence, in respect of breach of bail only, granted; (3) Set aside the order that the appellant is fined $1500 and substitute instead an order that the appellant is fined $250; (4) Otherwise affirm all other orders made on sentence by the learned acting magistrate. -- 7 of 7 --