Commissioner of Police v Warcon [2011] QDC 28

DISTRICT COURT OF QUEENSLAND CITATION: Commissioner of Police v Warcon [2011] QDC 28 PARTIES: COMMISSIONER OF POLICE (Appellant) v DUANE EVERETT WARCON (Respondent) FILE NO/S: 86 of 2010 PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court DELIVERED ON: 18 March 2011 DELIVERED AT: Rockhampton HEARING DATE: 7 March 2011 JUDGE: Devereaux SC ORDER: 1. Appeal allowed. 2. Order of magistrate varied such that the respondent is sentenced to 18 months imprisonment. 3. I do not vary the order for immediate release on parole. CATCHWORDS: CRIMINAL PROCEDURE - APPEALS - APPEALS AGAINST CONVICTION AND SENTENCE - PROCEDURE FOR APPEAL - APPEALS FROM MAGISTRATES' COURTS - QUEENSLAND - APPEALS TO THE DISTRICT COURT - where prosecution appeals sentence imposed on respondent for assault occasioning bodily harm while armed - where plea of guilty entered on respondent's behalf by legal representative - whether Magistrates Court had jurisdiction to hear and determine - whether proceeding fundamentally irregular - whether sentence manifestly inadequate. Criminal Code ss 339, 552B, 552D, 552I, 552J Justices Act 1886 ss 145, 221, 222, 225 Penalties and Sentences Act 1992 s. 9 Ellis (1973) 57 Cr App R 571 Fullard v Vera & Byway [2007] QSC 050 -- 1 of 9 -- 2 R v Bennett [2007] QCA 324 R v Jones [2008] QCA 181 R v Lacey; ex parte A-G (Qld) [2009] QCA 274 R v Monro [2002] QCA 483 R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 10 R v Williams [1977] 1 All ER 874 COUNSEL: Mr D Morters for the appellant Ms M Willey for the respondent SOLICITORS: Department of Public Prosecutions for the appellant ATSILS for the respondent [1] On 3 September 2010, the respondent pleaded guilty in the Magistrates Court at Rockhampton to one count of assault occasioning bodily harm while armed. He was sentenced to imprisonment for 10 months but placed immediately on parole. This appeal by a police officer is on the ground that the sentence is manifestly inadequate. [2] That ground of appeal results from the application of s. 222(2)(c) of the Justices Act 1886 which relevantly provides that if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal on the ground that the penalty was excessive or inadequate. [3] Also, where, as here, the appeal is against an order of justices dealing summarily with an indictable offence, a complainant aggrieved by the decision may appeal under this section only against sentence or an order for costs (subs. 222(2)(b)). [4] Without seeking to amend the grounds of appeal, the appellant has submitted there was such an irregularity in the proceedings that they were a nullity. This, it is argued, arises because the respondent was not asked in accordance with Code s. 552I whether he was guilty or not guilty and did not enter the plea personally. The transcript shows his legal representative greeted the magistrate, who replied "Yes Mr. …" and then the legal representative asked the magistrate to take this matter, being one charge of assault occasioning bodily harm whilst armed and said "I am instructed to enter a plea of guilty." The prosecutor immediately launched into a statement of the facts. [5] This process, which the appellant says is a nullity, occurs, I am told, regularly every day in Magistrates Courts throughout Queensland. The magistrate's jurisdiction [6] Before dealing with that issue, there is another preliminary point. This was the summary conviction of the respondent for a serious indictable offence. The Bench Charge Sheet accurately includes reference to both subsections (1) and (3) of s. 339 -- 2 of 9 -- 3 of the Code. The maximum penalty this aggravated offence carries is 10 years’ imprisonment. [7] On 3 September 2010, s. 552B(1) provided that unless the defendant tells the magistrate that she or he wishes to be tried on indictment a charge of certain offences must be dealt with summarily. The offences include: "(ha) an offence against section 339(1); (i) an offence involving an assault, other than an offence against section 339(1), if— (i) the assault is— (A) without a circumstance of aggravation; and (B) is not of a sexual nature; and (C) is not an assault mentioned in section 552A; and (ii) the maximum penalty for the offence is not more than 7 years;1 " [8] Arguably, the respondent did not, through his representative, plead guilty to an offence described in either s. 552B(1) (ha) or (i) but to an aggravated offence. If so, the Magistrates Court did not have jurisdiction to deal with the case. If that were the case, I would be of the view that the conviction and sentence must be set aside and the matter returned to the Magistrates Court to be dealt with under Part 5 of the Justices Act.2 [9] The plainest way for the legislature to say that any aggravated assault occasioning bodily harm could be dealt with summarily would have been to include “an offence against s. 339”, not “s. 339(1)”, in s. 552B(1)(ha). This it did not do. [10] However, I consider myself bound by the decision in Fullard v Vera & Byway [2007] QSC 050, where Cullinane J. declared that the respondent magistrate had 1 Code reprint 7L. The provision is still relevantly current. Section 552B(1) includes, (b) an offence against section 339(1); (c) an offence involving an assault, other than an offence against section 339(1), if— (i) the assault is— (A) without a circumstance of aggravation; and (B) is not of a sexual nature; and (ii) the maximum term of imprisonment for which the defendant is liable is more than 3 years but not more than 7 years; and (iii) a charge of the offence is not a charge to which section 552A applies; 2 By Code s. 552J (3), the grounds on which the Attorney-General may appeal against sentence include that the Magistrates Court erred by deciding the sentence summarily. Section 552J provides that on an appeal against sentence relying on a ground that the Magistrates Court erred by proceeding summarily, the court deciding the appeal may, if it decides to vary the sentence, impose the sentence the court considers appropriate up to the maximum sentence that could have been imposed if the matter had been dealt with on indictment. -- 3 of 9 -- 4 jurisdiction to hear and determine the charge of assault occasioning bodily harm with the circumstance of aggravation that the defendant was in company. Procedural irregularity [11] I return now to the appellant's preliminary point. Although no amended ground of appeal was formulated, I understand the argument to be that the respondent never personally pleaded guilty or admitted the truth of the complaint. So, the appellant is not confined to the ground of appeal prescribed in Justices Act s. 221(2)(c) and may appeal against the conviction under s. 222(1). [12] The appellant referred to R v Williams [1977] 1 All ER 874 and Ellis (1973) 57 Cr App R 571. [13] The irregularity in Ellis occurred when counsel intervened during arraignment to explain the defendant “wishes to plead to the theft” of an amount less than that charged. The recorder said, “Guilty to burglary, but he admits having stolen only £380.” Counsel confirmed that was the position. Edmund Davies L.J. referred to the rule that, “before a criminal trial by judge and jury can be properly launched there must generally be an arraignment of the accused of the offence charged and he must personally answer to it, and that this cannot be done through counsel or any other person on his behalf.”3 [14] Later, Edmund Davies L.J. said that defence counsel’s intervention “had the effect of preventing the defendant from pleading, and counsel’s attempt to do it on his behalf had no validity. In those circumstances it follows that the conviction cannot stand, because there has been no trial on the one count preferred.”4 [15] In Williams, although the appellant was not arraigned before his trial was adjourned the court record was endorsed "adjourned to a date to be fixed 'Plea NG'”. When the case came back on, different counsel were involved and the trial was conducted in all respects on the basis of the endorsed plea, although it had not actually been made by the defendant. He appealed his conviction. [16] Referring to Ellis, Shaw L.J. said a plea of guilty was “a plea which is self- incriminatory and self-incrimination cannot be vicariously accomplished.”5 A departure from the rule in a criminal trial that a plea of guilty must come from him who acknowledges guilt would render the whole procedure void and ineffectual.6 [17] Williams and Ellis both concerned proceedings conducted on indictment. The present case was a summary proceeding. In Ellis, the court proclaimed the fundamental importance of the defendant's claim to direct participation in making the plea of guilty. In Williams, the court did not conclude the same fundamental importance attached to the personal making of the defendant’s plea of not guilty 3 57 Cr App R at 574 4 57 Cr App R at 576 5 [1977] 1 All ER 876-7 6 [1977] 1 All ER 877 -- 4 of 9 -- 5 where the trial was obviously conducted in his presence on the premise that he had so pleaded. [18] Neither case dealt with the summary disposition of an indictable offence. Neither dealt with the effect on the essential validity of summary proceedings of a legal representative, in the presence of and without comment or objection by the defendant, stating that he holds instructions to enter a plea of guilty. [19] Section 552I governs the procedure to be followed for a charge of an offence to which s. 552B applies. Subsection 552I(2) provides, where the defendant is not legally represented, that the Court is required — "(a) to state the substance of the charge to the defendant; and (b) to explain to the defendant that he or she is entitled to be tried by a jury and is not obliged to make any defence; and (c) to ask the defendant whether he or she wants the charge to be dealt with summarily." 18. Section 552I continues: "(3) Whether or not the defendant is legally represented, unless the defendant informs the Magistrates Court that he or she wants to be tried by a jury, the Magistrates Court must ask whether the defendant is guilty or not guilty of the offence. (4) If the defendant says ‘guilty’ the Magistrates Court must convict. (5) If the defendant says ‘not guilty’ the Magistrates Court must hear the defence. (6) After the defendant enters a plea, the Magistrates Court must then deal with the charge summarily. (7) ……." [20] What occurred in the present case did not conform to the procedure required by s. 552I. As the respondent did not tell the magistrate he wanted to be tried by a jury, it was for the magistrate to ask him whether he pleaded guilty or not guilty. That did not happen. The defendant, himself, did not say “guilty”. If the proceedings were thereby irregular I am unable to conclude they were a nullity. [21] It may be that more attention needs to be paid to the procedure prescribed for the summary disposition of indictable offences.7 The fundamental question seems to me to be whether the magistrate has power under, say, s. 552B, to deal with a 7 Likewise, Part 5 of the Justices Act contains provisions for the determination of simple offences in the absence of the defendant and where the defendant appears by his or her lawyer. Where the defendant appears in person, s. 145(1) provides that the substance of the complaint shall be stated to the defendant and the defendant shall be asked how he or she pleads. If the defendant pleads guilty, the Magistrates Court is to convict or otherwise deal with the defendant (subs. 145(2)). -- 5 of 9 -- 6 particular case. Then it is for the magistrate to consider whether jurisdiction should be declined, under s. 552D. If the case is to be dealt with summarily, the procedure in s. 552I must be followed. If there is error at any of these steps, the terms of Code s. 552J seem to be wide enough to provide a remedy. Relevantly, "(2) The grounds on which the person may appeal include that the Magistrates Court erred by deciding the conviction or sentence summarily. (3) The grounds on which the Attorney-General may appeal against sentence include that the Magistrates Court erred by deciding the sentence summarily." [22] In this case, the respondent’s legal representative, in the presence of the respondent, said "I am instructed to enter a plea of guilty to that charge." Thereafter the proceedings were conducted on that plea. Neither the prosecution nor the respondent objected. The respondent still makes no objection. The respondent was convicted and sentenced and the matter has passed into judgment. [23] The learned magistrate addressed the respondent directly: “Mr Warcon, I take into account your plea of guilty …” [24] The learned magistrate, after telling the respondent the sentence would be 10 months imprisonment with immediate parole, continued: "BENCH: So accordingly, what I'm going to do is I'm going to sentence you to a term of imprisonment. I - you'll be sentenced to a term of imprisonment of 10 months. Now, taking into account your engagement with Helem Yumba 8 and your age, I will order that fixed parole date be as at today, the 3rd of September 2010; right. Now, that means that you will be on parole for a period of 10 months from today, right. Now if you breach parole, you know what can happen - you can come back before this Court and be ordered to - you know, you can serve - end up serving a term of imprisonment, ultimately, do you understand that? DEFENDANT: Yes. BENCH: Now, one of the requirements will be that you must report today to the Probation and Parole Office at Rockhampton. If you don't, you will be in immediate breach of parole; do you understand that? DEFENDANT: Yes." 8 See below at [31] -- 6 of 9 -- 7 There could have been no doubt about how the respondent intended to plead. 9 [25] There is no submission that justice has miscarried. In my view the conviction is valid unless and until the plea is set aside according to well-recognised principles governing an application to withdraw a plea of guilty or an appeal against conviction after a plea of guilty. The ground of appeal - inadequacy [26] Before the learned magistrate, the prosecutor gave only a very brief description of the facts, which followed, as I have said, immediately after the legal representative told the magistrate he was instructed to enter a plea of guilty. "MS BARTON: 8:30 p.m., Thursday the 6th of May 2010, the defendant and two associates were at the Allenstown hotel consuming liquor and playing pool. The victim had been out running with his two dogs and he was walking home past the hotel at the time. The defendant and the two associates have exited the hotel at the same time the victim was walking past. One of the associates has kicked the victim's dog for no apparent reason. The victim has turned and confronted the associate who kicked the dog and a brief verbal exchange was made before the victim turned and was about to go on his way. The other associate has … … then come forward and pushed the victim in the back of the head as he was walking away. He - the victim - has then turned to face both the associates. At this time, the defendant was standing in the background. He's come up behind the victim and slammed a half full glass into the right side of the victim's face, causing the glass to break in the victim's face. The defendant has then fled and got into a nearby vehicle and was driven away. The victim sustained several deep lacerations to the right side of his head, including a 10 centimetre gash extending from behind his ear down along the jaw line. He also suffered puncture wounds to his cheek. The victim has had to run home and call an ambulance. He then had surgery to close the wounds and spent two nights in hospital." [27] The respondent was aged 19 at the time of the offence. He has several sets of convictions in the Childrens Court for property offences. He was placed on a conditional release order in 2006 and probation orders in February 2007 and January 2009. He was before the Rockhampton Magistrates Court in April, August and November 2009 on public nuisance or Liquor Act offences. He was fined in February 2010 for “assault or obstruct a police officer”. [28] No victim impact statement was tendered. Only during defence submissions did the prosecutor tender a medical statement. The prosecutor invited the magistrate to sentence within a range that included immediate release, saying: 9 Compare Ellis at 575 -- 7 of 9 -- 8 "…and I'd be submitting that it's a matter where a term of imprisonment is appropriate. Whether you intended to suspend that or give him immediate parole release, I'll leave that up to you." [29] The respondent’s legal representative explained how the respondent came to commit the offence: "MR DE FRAINE: In relation to the offences here itself, your Honour, he was drinking at the hotel with two friends. They weren't overly intoxicated, your Honour. Mr Warcon had gone outside and he was speaking with his sister, your Honour. His two friends, not associates, were inside. He hadn't seen what had happened with one of his friends kicking the dog. His sister, who he was talking to on the front pavement, has seen the altercation commence and has seen a bigger person pushing Mr Warcon's friends. Mr Warcon's seen that incident, has reacted, ran inside. He's thrown one punch, your Honour, without thinking, he didn't realise that he had a glass in his hand, your Honour." [30] The prosecutor took no issue with this presentation of the circumstances of the offence. [31] The magistrate heard that the respondent had attended the Helem Yumba – CQ Healing Centre. The respondent tendered a letter from the centre confirming that he had attended 8 appointments and had a continuing commitment. The respondent had shown “a great commitment” to the sessions and “shows a willingness to change his behaviour and improve his social status”.10 [32] I have already referred to the learned magistrate’s sentencing remarks. [33] The respondent was entitled to full credit for his plea of guilty. It was not just an early plea, it was a summary plea, i.e. except for this appeal, this Court was not engaged. [34] It was open to the magistrate to sentence on the basis put forward by the respondent's solicitor - he punched once, albeit with a glass in his hand. The distinction is to be drawn between such a case and one which can clearly be described as using a glass as a weapon. The latter type of case "must ordinarily attract a sentence of actual imprisonment."11 In R v Jones [2008] QCA 181 the applicant walked towards the complainant and "immediately and without apparent rhyme or reason, hit the complainant in the face with the glass".12 The applicant was very drunk. The complainant required 22 stitches to his face. The 23 year old applicant had no previous convictions. The court reduced his sentence from 3 years with parole release after 15 months to 18 months with parole release after 6 months. [35] The respondent referred to Monro [2002] QCA 483 and Bennett [2007] QCA 324. Neither case supports the sentence under challenge. Only in Monro was a sentence without actual custody imposed and that case involved less serious injury than that 10 Reference tendered. 11 R v Jones [2008] QCA 181 Mackenzie AJA at p8 12 [2008] QCA 181 at p3 -- 8 of 9 -- 9 suffered by the present complainant and an offender with more favourable personal circumstances. [36] In all the circumstances of this case - the nature of the offence, the matters personal to the respondent, the place the offence occupies in the scale of seriousness of offences of this kind, the range of sentences usually imposed for similar offending – I am satisfied the sentence of 10 months with immediate parole was inadequate. [37] I have referred to the manner in which the case was presented to the magistrate. That does not relieve an appeal court from correcting error but may be considered, along with the fact that the respondent was not then sent to prison and has therefore been put in jeopardy a second time, in the exercise of the wide discretion under Justices Act s. 225. 13 [38] Under Justices Act s. 225, I vary the magistrate's order such that the respondent is sentenced to 18 months imprisonment. Because of the respondent's youth; his limited criminal history; the steps towards rehabilitation he took before sentence, the information recently received that he is in employment, and the early plea of guilty in the lower court, he might expect parole release after one third of that term, or even earlier. The respondent has been on parole for more than 6 months. In the circumstances I am not persuaded that the sentencing principles, particularly as set out in s. 9(3) of the Penalties and Sentences Act 1992, compel his actual incarceration after this successful prosecution appeal against sentence. I do not vary the magistrate's order for immediate release on parole. 13 R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 10; R v Lacey; ex parte A-G (Qld) [2009] QCA 274 -- 9 of 9 --