Atkin v Commissioner of Police [2015] QDC 224

DISTRICT COURT OF QUEENSLAND CITATION: Atkin v Commissioner of Police [2015] QDC 224 PARTIES: ANGELA LEE ATKIN (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 147/15 DIVISION: Appellate PROCEEDING: Section 222 appeal ORIGINATING COURT: District Court Brisbane DELIVERED ON: 11 September 2015 DELIVERED AT: Brisbane HEARING DATE: 7 August 2015 JUDGE: Richards DCJ ORDER: Appeal allowed. In relation to the charge of assault occasioning bodily harm the conviction is quashed. In relation to the charges of possession of a dangerous drug (2 charges) and possession of utensils for use in connection with the consumption of a dangerous drug the sentences are set aside. The matter is remitted back to the Magistrates Court for rehearing before a different Magistrate. CATCHWORDS: Proceeding in absence of accused – whether there was a failure to properly exercise judicial discretion – whether sentence was manifestly excessive COUNSEL: J Lodziak of Legal Aid Office for the appellant M L Mitchell of ODPP for the respondent -- 1 of 9 -- 2 [1] The appellant was charged with assault occasioning bodily harm on 12 July 2014. She was further charged with two charges of possession of a dangerous drug and possession of utensils or pipes on 6 August 2014. On that date she entered into a bail undertaking to appear on 11 September 2014 at the Magistrates Court at Blackwater. On that day she did not appear and she was not represented. The Magistrate decided to deal with the offences in a summary fashion in her absence pursuant to s142A of the Justices Act 1886. FACTS [2] The facts were outlined in brief compass. At 8.30 p.m. on 12 June (I note that the date of the charge is 12 July and assume for the purposes of this appeal that the date given when reading the facts was erroneous) the police attended an address at Dunwich. The appellant stated that she and the complainant had been in an altercation but did not elaborate any further and did not wish to provide a statement. The complainant told police that the appellant had suddenly appeared from the bush at the time of the assault, ran towards her and knocked her off a chair. The impact of the action caused her to fall from the chair onto the ground, whereupon the appellant proceeded to punch and kick her. The complainant said she could not be sure how many times that happened, but she tried to get up on numerous occasions but was pushed to the ground by the appellant. During the assault it was said the appellant punched the complainant in the right eye, causing it to bruise and swell. She received three fractured ribs and significant injuries to the shoulder and collarbone. She was arrested on 6 August and whilst in police custody she was cautioned. She indicated that she believed her drink was drugged on the night in question but would not say anything further. [3] In relation to the remaining matters, the police indicated that she was in possession of a small, clip-seal bag of cannabis which was not weighed and a small amount of unweighed amphetamine together with a cone piece and a straw. [4] The appellant was 26 years of age. She had a short criminal history for mostly minor offending. She had two previous entries for possession of drugs for which she received a fine on the first occasion and was sentenced to nine months’ probation two days before she was due to appear in the Blackwater Magistrates Court. The Magistrate was unaware of this sentence as he did not at any stage ask for any antecedents of the appellant or for any details about a criminal history. (It seems from -- 2 of 9 -- 3 the transcript of the hearing that the Magistrate also had some traffic matters in front of him in relation to the appellant at the time as there was a discussion preceding this matter about license disqualification.) As soon as the facts were read out to him, the Magistrate proceeded to sentence the appellant to 6 months imprisonment on each charge. [5] Pursuant to s 142A of the Justices Act 1886, the Magistrate then adjourned the matter for 14 days to give the appellant an opportunity to appear before him to make submissions in relation to the penalty. On that occasion she again was not present, and the Magistrate increased the sentence to 12 months’ imprisonment, suspended after four months for three years on each charge. THE LAW [6] Section 142A of the Justices Act 1886 provides: “(1) Notwithstanding the provisions of this Act or any other Act it shall be lawful to adopt in respect of a complaint of a simple offence or breach of duty made by a public officer or a police officer the procedure prescribed by this section. …… (4) Where— (a) a complaint of a simple offence or breach of duty is made by a public officer or a police officer; and (b) the defendant is required to appear at a time and place fixed for the hearing of the complaint— (i) by a summons issued on the complaint and served at least 14 days before the date on which the defendant is required by the summons to appear; or (ii) under a condition of the defendant's bail or by a notice given to the defendant under the Bail Act 1980; or (iii) by a notice of adjournment given to the defendant a reasonable time before the date previously fixed for the hearing of the complaint; and (c) the defendant does not appear at the time and place fixed for the hearing of the complaint; the court before which the complaint comes for hearing, whether on the return date or an adjourned date, may, if it is satisfied that the facts as alleged in or annexed to or served with the complaint or summons or as stated by the complainant -- 3 of 9 -- 4 according to law constitute such a simple offence or breach of duty and that reasonably sufficient particulars thereof are set out in or annexed to or served with the complaint or summons or are stated by the complainant, deal with and determine the matter of the complaint as fully and effectually to all intents and purposes as if the said facts and particulars had been established by evidence under oath before it and as if the defendant had personally appeared at the time and place fixed for the hearing of the complaint. (5) In dealing with and determining a complaint pursuant to subsection (4) the court may take into account any information considered by it to be relevant brought to its notice by or on behalf of the complainant or defendant in relation to the circumstances of the matter of the complaint and the imposition of a penalty. (6) If in respect of a proceeding under subsection (4) the court considers that— (a) the defendant should be imprisoned otherwise than by way of default; or (b) any licence, registration, certificate, permit or other authority held by the defendant under any Act should be cancelled or suspended; or (c) the defendant should be disqualified from holding or obtaining any licence, registration, certificate, permit or other authority under any Act; it shall not deal further with the complaint in such proceeding unless it has first adjourned or further adjourned the hearing of the complaint to a time and place appointed by it to enable the defendant to appear for the purpose of making submissions on the question of such penalty, disqualification, cancellation or suspension, as the case may be.” [7] At the hearing of this appeal, the Crown submitted that there was no appeal lying under s 222 of the Justices Act 1886. It argued that because the learned magistrate had sentenced the appellant in her absence, the appropriate review procedure was governed by s 142A(12) of the Justices Act 1886 which allows for an application for rehearing to be made within 2 months of the determination of the sentence. [8] It was suggested that there were decisions of this Court which supported a proposition that even if the appellant was unaware of the conviction and sentence within the two month period, there was no right of appeal to this court if an application for rehearing was not made to the original Court within two months. The Crown relied in particular -- 4 of 9 -- 5 on the decision of Guy v McLoughlin & Anor1 where McGill DCJ stated that s 142A(12) limited an appellant’s right of appeal: “Accordingly what I am concerned with is an appeal against an exercise of jurisdiction under section 142A. Such an appeal does not entitle the appellant to raise any matter not raised before the Magistrate, or which ought not to have been apparent to the Magistrate at the time of the hearing. That does not mean that there is no effective right of appeal, but obviously an appeal in these circumstances can only be on a very limited basis. It would be possible, for example, to appeal on the ground that the complaint did not disclose an offence known to law, or that the requirements of the section had not been complied with, or that, on the basis of the material before the magistrate, the penalty was in any event excessive, or perhaps that a penalty had been imposed which was not authorised by law for the particular offence. But none of the matters sought to be argued by the appellant, which were directed to the question of whether he had committed the two offences at all, can be ventilated on appeal in these circumstances. A person who is convicted of an offence under section 142A and who wishes to challenge the merits of that conviction is required to follow the statutory procedure in subsection (12), and apply for a rehearing. If a rehearing is granted, there will be an ordinary summary trial with evidence and findings of fact can be made and a decision reached by the Magistrate, which can then be subject to appeal under section 222. If the application for rehearing is refused, there can be an appeal against that decision under section 222. In my opinion in the absence of an application under subsection (12) for a rehearing, it is not open by an appeal under section 222 against a conviction pursuant to section 142A to raise issues which were not raised before the Magistrate as to whether the appellant was really guilty of the offences charged. That follows from the structure of section 142A, and is in any event consistent with the general rule in relation to appeals that factual issues cannot be raised for the first time on appeal.” [9] That statement is not authority for the fact that there can be no appeal, merely that new matters throwing doubt on a conviction cannot be raised on the appeal. The appellant in this case has appealed on the basis that the Magistrate’s discretion has miscarried. This does not require, in my opinion, a prior application under s 142A(12) to have occurred. If the discretion to proceed under s 142A miscarried then the provisions of the Act have not been complied with and an appeal lies on that basis. 1 [2006] QDC 017 at [10]-[11] -- 5 of 9 -- 6 JUDICIAL DISCRETION [10] The terms of the legislation allow for a Magistrate to exercise a discretion to proceed under s 142A where appropriate circumstances exist. However, it requires the Magistrate to proceed to exercise the discretion in a judicial manner. Where there is a wide discretion to be exercised by a judicial officer “it must be exercised judicially, according to rules of reason of justice, not arbitrarily or capriciously or according to private opinion.”2 [11] Where a penalty is being imposed which deprives a person of their liberty, great caution should be exercised in proceeding in the absence of not only the accused but any representation for that person. This is because great injustices can occur where a person is denied natural justice and the opportunity to make submissions in relation to such a significant penalty. In R v Cunningham3 Keane JA noted: “To impose a penalty without allowing the person affected to have an opportunity to respond is a clear breach of the rule of natural justice that a court is required to follow.” [12] Where that right has been excluded by legislation, as is the case here, the judicial officer needs to be particularly scrupulous in ensuring that fairness as much as possible applies in the circumstances of the case and particularly should take care to ensure, where a defence or circumstances of mitigation may exist, that there is full investigation. THE DEFENCE [13] At the hearing of this appeal, I asked for submissions on whether the fact that a defence was raised within the facts presented to the Magistrate meant that the magistrate should have declined to proceed further on the matter without some consideration of the merits of the defence. After the matter was reserved both parties asked if they could make further submissions on this topic. Further submissions were received from the parties as a result. Submissions received from the Crown have resulted in a concession by them that the conviction should be set aside on the basis that the facts did not in fact constitute a simple offence because a defence to the charge 2 House v R (1936) 55 CLR 499 per Starke J 3 [2205]QCA321at p5 -- 6 of 9 -- 7 was raised on the facts presented to the Magistrate and he did not consider it. The Crown referred to a case of R v GV 4 where the Court stated: “A judge has a duty to ensure that the facts on which the judge sentences are in fact and in law sufficient to prove guilt of the offence to which an offender pleads guilty.” [14] The Magistrate in deciding to proceed under s142A gave no reasons for this decision and no reasons for convicting the appellant on the charge of assault occasioning bodily harm despite a defence being raised by her in her conversation with the police. It is, in my view, on that basis alone, an inevitable inference that the Magistrate erred in exercising his discretion in proceeding under s 142A. However, the errors do not end there. OTHER MATTERS [15] When exercising a power to proceed in the absence of a party care must be taken to comply with the legislation meticulously. Section 142A(4) requires the Magistrate to “deal with and determine the matter of the complaint as fully and effectually to all intents and purposes as if the said facts and particulars had been established by evidence under oath before it and as if the defendant had personally appeared”. This necessarily involves giving reasons for deciding that the Crown had established the charge of assault occasioning bodily harm beyond a reasonable doubt. In this case the Magistrate gave no reasons at all but proceeded as though there had been a plea of guilty to the charge. [16] Subsection (5) of s 142A notes that “In dealing with… a complaint pursuant to subsection (4) the court may take into account any information considered by it to be relevant…. to the circumstances of the matter of the complaint and the imposition of the penalty”. This requires some enquiry into matters that are normally relevant to conviction and sentence such as defences raised and not answered, whether a person has a criminal history and what, if anything, that might be, whether she has been on probation before and how she went on that order. None of this occurred in this case. [17] Subsection (6) of s 142A is a mandatory provision. It requires that the Court, if it considers that a person should be imprisoned other than by way of default, that the matter should be adjourned to a later time to enable the person to make submissions. 4 [2006] QCA 394 at [31] -- 7 of 9 -- 8 This must be done before the sentence is imposed. The Magistrate in this case did not comply with this provision. Instead, he imposed a sentence of six months imprisonment, without hearing any submissions relating to sentence from anyone and then on the return date increased the sentence to 12 months imprisonment again without hearing any further submissions or any additional facts. [18] Finally the decision to proceed summarily and in absentia in this case showed a failure to properly exercise a discretion not only because of the defence raised, but also because of the serious nature of the offence, the fact that this was a first return date, the fact that the facts presented were sparse and that there was no consideration given to the decision he made. The lack of care and time taken in reaching this decision is demonstrated by the fact that the Magistrate did not even realise that the police prosecutor outlined the facts as occurring on 12 June instead of 12 July as stated in the charge. There was no evidence presented as to the extent of the recovery from the injuries, there was no evidence presented as to the state of the defendant at the time, there was no evidence presented as to the weights of the drugs or whether she was a drug dependent person. In this case she was sentenced for offences 2 days prior to this hearing in the Magistrates Court in Rockhampton for a drug offence occurring on the same day as the assault. The Magistrate did not ask about a criminal history and was not told of one but clearly issues of totality should have been considered on sentence as well. [19] The remarks of the High Court in Minister for Immigration and Citizenship v Li 5 (an administrative law case) are apposite here: “As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion ‘if upon the facts [the result] is unreasonable or plainly unjust’.6 The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a Court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.” 7 5 [2013] HCA 18 6 (1936) 55 CLR 499 at 505 7 [[2013] HCA 18 at 76 -- 8 of 9 -- 9 CONCLUSION [20] In House v R (supra) Dixon, Evatt and McTiernan JJ noted that on appeal the appellate court should not easily interfere with a lower court’s exercise of judicial discretion, even if the appellate court disagrees with the position taken by the primary judge, there must be some error made in the exercise of the discretion. However, the Court also noted that: “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 appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”8 [21] This is such a case. The discretion was exercised arbitrarily and without any consideration of the merits of the use of the section or its appropriateness to this particular case. No reasons were given for the actions taken. The procedure was not properly followed and the discretion miscarried. There is clearly an appellable error in this case and the appeal against conviction is allowed. [22] The crown has conceded that the penalties imposed for the drug offences were manifestly excessive. That was an appropriate concession and an error borne out of the haste in which the sentencing process took place. [23] In relation to the charge of assault occasioning bodily harm the conviction is quashed. In relation to the charges of possession of a dangerous drug (2 charges) and possession of utensils for use in connection with the consumption of a dangerous drug the sentences are set aside. The matter is remitted back to the Magistrates Court for rehearing before a different Magistrate. 8 (1936) 55 CLR 499 at 505 -- 9 of 9 --