Bowser v Bourke [1992] QCA 60 [1993] 1 Qd R 43

IN THE COURT OF APPEAL [1992] QCA 060 SUPREME COURT OF QUEENSLAND C.A. 19 of 1992 P.J. BOWSER v. CHRISTIAN ANTHONY BOURKE Appellant JUDGMENT - THE COURT Delivered the 13th day of April, 1992. On 23rd December, 1991 in the Beenleigh Magistrates Court the appellant pleaded guilty to a series of offences and he seeks leave to appeal against the sentences then imposed upon him. All of the offences occurred between 14th and 22nd December, 1991. The following is a short statement of the offences and sentences relevant to this appeal (he did in fact plead guilty to two other offences on the same day but no appeal is brought against the sentences imposed, and those matters can be ignored for present purposes): (i)Nine counts of unlawful use of a motor vehicle - 12 months imprisonment on each; (ii)One count of breaking and entering a place with intent to commit an indictable offence therein - 12 months imprisonment; (iii)One count of breaking, entering and stealing (four buoyancy vests) - 12 months imprisonment; -- 1 of 11 -- 2 (iv)One count of bringing stolen goods, namely a motor vehicle, into Queensland - 12 months imprisonment and restitution of $400. All sentences were to be served concurrently. The restitution ordered related to the cost of returning the motor vehicle to South Australia. In the early morning of 22nd December, 1991 a number of police went to a storage shed at Yatala and there located six motor vehicles. The appellant, who was detained at the shed, was questioned with respect to offences relating to those, and other, motor vehicles throughout that day, and he was arrested later on the 22nd on each of the relevant charges. He appeared in the Beenleigh Magistrates Court on the following morning and pleaded guilty to each charge. He also elected to be dealt with summarily in relation to the indictable offences. The Police Prosecutor then read to the court the facts of each charge as outlined in the QP9 document in his brief. Copies of those documents are in an affidavit before this court. With respect to some of the vehicles, the police alleged that the appellant admitted assisting in "stealing" them, and with respect to others it was the police allegation that the appellant admitted being in possession of the vehicles (by being at the shed) on 22nd December though he had not actively "stolen" the vehicles. According to the police with respect to each of the vehicles found in the shed the appellant made an admission that "he was attempting to sell the vehicle for another person whom he declined to name". -- 2 of 11 -- 3 The Police Prosecutor informed the court that the appellant was 19 years of age, single, unemployed and had no fixed place of abode in Queensland. He also stated that the appellant had no previous convictions. The duty solicitor then addressed the court on the appellant's behalf. He stated that the appellant and his 16 year old cousin had met a person in Adelaide, known only to them as Jimmy, who had convinced them they could make "easy money" by travelling to Queensland with him and being involved in criminal activity. The solicitor submitted that the appellant had "naively agreed to become involved in this operation and had been largely conned by the person named Jimmy". He stressed that the appellant had pleaded guilty at the first available opportunity (less than 24 hours after arrest) and had fully co- operated with the police. He pointed out that most property had been fully recovered and was able to be returned to the rightful owner thereof. He then gave details of the appellant's personal background. He was a 19 year old man who normally resided with his parents in Adelaide, where he was an apprentice carpenter with approximately 18 months left before completion of his apprenticeship. Because of lack of work he had been temporarily stood down but was still formally an employee of the company. Emphasising the appellant's age, previous good character, lack of convictions, the fact of his apprenticeship and employment, and the fact that he was involved in the commission of the offences under the influence of an older person, the proposition advanced was that the appellant was a suitable -- 3 of 11 -- 4 candidate for probation. The solicitor intimated that the appellant was prepared to consent to such an order and that arrangements could be made for the probation to be supervised in South Australia. It was made clear that the appellant intended to return to his parents as soon as possible. At that point the magistrate intimated that he wanted to receive a report from a Community Corrections Officer in relation to the suitability of the appellant for probation. This court was told that, in accordance with the general practice at a number of busy Magistrates Courts in and around Brisbane, there was such an officer present on that day who could conduct an immediate interview and make a short report. Indeed, as will become evident, there is a standard form document headed "Queensland Corrective Services Commission" with the sub-heading "Court Assessment Sheet" used in connection with the making of such a report. The appellant was interviewed without the duty solicitor being present and the document, as completed by the officer, was handed to the magistrate without being shown to the duty solicitor. On the basis of the report handed to him, the magistrate noted on the Bench Charge Sheet: "Report from Community Correctional Officer requested and received. Probation not recommended." The magistrate did not offer to make the report available for perusal by the duty solicitor, but it must also be said that the affidavit of the duty solicitor does not go so far as to say that he formally asked to see the document and it was refused. The report was based on the standard form. The format in a number of respects, invites the officer to circle words which, -- 4 of 11 -- 5 in his opinion, apply to the interviewee; for example, with respect to "Attitude to the Offence" the officer can select one or more of: "Indifferent, self-concern, socially remorseful", or otherwise make such additional comment as is seen fit. Further, with respect to "Personality Factors" the choice is prima facie one or more of: "Unrealistic, poor self-image, little social consciousness, immaturity, emotional/psychological problems, aggressive, habitual, impulsive, greedy, etc.". The interviewing officer, on the basis of his short interview with this appellant, circled the following: "Self-concern, unrealistic, immaturity, impulsive, greedy". Under the heading "Offender's Level of Motivation" the interviewer selected "low" rather than medium or high and then made the comment: "States he just wants to return to South Australia as quickly as possible". That statement by the appellant is a very understandable one, and it is a little difficult to see why it was noted apparently in support of a conclusion that he had a low level of motivation. The critical conclusions in the report are to be found under the heading "Prognosis based upon Assessment Factors" and then "Recommendation". Under the first, the appellant was classified as a "high" (rather than low or medium) risk and the following statement was appended: "In view of his attitude to offences and his plans to return to South Australia after court - risk of not reporting if offered community supervision." Then under the heading "Recommendation", it was stated "High risk on community supervision". -- 5 of 11 -- 6 It seems clear, and this was accepted by counsel for the Crown, that the rejection of probation by the magistrate was primarily, if not solely, based on the contents of that report. It is now necessary to turn to some relevant provisions of the Corrective Services Act 1988. Section 263 provides that when required to do so by a court, the Commission shall cause to be prepared and submitted to that court such report on the specified person as the court requires. The section contains some specific directions with respect to that report, and it is clear that the report envisaged would be produced after a formal request made in accordance with Form 40 in the Schedule to the Regulations and would be prepared within the time provided for by Regulation 40. The document here would not be a "report" of the type envisaged by that section. Of more significance for present purposes is s. 265; the relevant provisions thereof are as follows: "(1)A written report or oral statement made by a community correctional officer to any court with a view to assisting the court in determining the most suitable method of dealing with a convicted person shall be received by the court as prima facie evidence of the matters contained in that report or statement notwithstanding that the officer is not called as a witness. (2)Where a written report is made as mentioned in subsection (1) the court shall show a copy of the report to the defence and the prosecution unless the court makes an order to the effect that a copy of the report or any part of the report be not shown to the convicted person in which case a copy of the report or part shall be shown only to the convicted person's legal representatives and to the prosecution. (4)Where a court receives a report or statement referred to in subsection (1) it shall give the defence and the prosecution such an opportunity as it thinks reasonable to controvert the whole or any part of that report or statement. -- 6 of 11 -- 7 (5)No objection shall be taken or allowed to evidence received pursuant to subsection (1) on the ground that it is hearsay. (6)A reference in subsection (1) to a written report or oral statement made by a community correctional officer to any court includes, but is not limited to, a report or information submitted to a court pursuant to a requirement made under section 263(1)." Clearly, particularly given sub-s. (6), s. 265 applies to reports outside the type envisaged by s. 263, and would include a document of the type handed to the magistrate in this case. There is no doubt that the magistrate did not comply with the procedural requirements of sub-s. (2) and (4); the appellant was not given any proper opportunity of controverting the contents of the report which in the end was decisive against his request for probation. The section requires, in accordance with the well recognised principles of natural justice given the adversarial nature of the proceedings, that the court make the information known to the person in jeopardy and that such person be given an opportunity of controverting assertions made therein, before it is acted upon. Even without the express terms of the section the principles of natural justice would require that to be done. The procedural requirements are mandatory and the sentencing procedure will miscarry if they are not adhered to. A report prepared using the standard form utilised in this case is not of great assistance to the court because it is not an objective overall assessment of the subject. It is appreciated that, particularly on busy sentencing days in the Magistrates Court, there is little time for making an indepth -- 7 of 11 -- 8 assessment of the person, and it could be said that in those circumstances a report based on the standard form at least gives the magistrate some assistance. But the assessment would be more objective if it also invited the interviewer to nominate good points about the person concerned. More importantly, there are the problems created by the fact that the report is by the statute made "prima facie evidence of the matters contained" therein. When that expression is used in a statute it has the consequence that, if further evidence is not adduced by the other side, in the usual case, the prima facie evidence becomes conclusive (See Cross on Evidence, Aust. Ed. Vol. 1, para. 1605, p. 1247). It is difficult to know just what that means in this context. Surely it does not mean that if the officer reports that the subject is "not a suitable candidate for probation" the sentencing court cannot in the exercise of its sentencing discretion impose probation unless evidence from the defence is led which is sufficient to displace the prima facie sufficiency of what is in the report. The sentencing discretion ought not be fettered by the contents of such a report. Statements in the report of factual matters of an objective kind will have a different effect from an opinion in it offered upon an appropriate way for the sentencing discretion to be exercised. The former will gain a certain effect as prima facie evidence and in some cases may be the only evidence apart, perhaps, from facts asserted and not contradicted during the sentencing hearing, but the latter will remain an opinion, and no more, shown to be held by the author of the report. The court should always receive the report -- 8 of 11 -- 9 (following the usual procedural requirements), and should give such weight to its contents as it considers appropriate. The court may regard any recommendation as a guide or indication as to what may be a suitable sentence to impose. While the court will often be assisted by the contents of the report in arriving at the appropriate sentence, it should not surrender its duty to make up its own mind as to the appropriate sentence called for in the light of all the material before it (cf. Lahey v. Sanderson (1959) Tas.S.R. 17 at 23 and the cases therein referred to). Given the foregoing remarks, some legislative review of s. 265 is probably warranted. It is not necessary to resolve all the problems created by s. 265 in order to arrive at a resolution of the issues raised by this application for leave to appeal against sentence. Because the procedural requirements laid down by s. 265 were not adhered to, the sentencing procedure miscarried and the sentence must be set aside. Even though we were asked, in this eventuality, to remit the matter for further hearing by the sentencing magistrate and certiorari returnable instanter was sought, we see no reason in this case to refrain from dealing with the matter ourselves. It is then for this court to substitute the penalty which, in all the circumstances, it considers proper. The very circumstances of the offences bespeak the fact that the appellant and his 16 year old cousin were not acting alone. Neither had previous convictions or experience in criminal activity. They arrived in Queensland from South -- 9 of 11 -- 10 Australia on or about 14th December and were located by the police in the shed at Yatala on 22nd December with some six stolen motor vehicles. That clearly indicates that they were but a part of a larger criminal organisation, and were working under the direction of more experienced criminals. Particularly given the appellant's age and previous good character this is a case which called for either a non-custodial sentence, or a short custodial sentence coupled with probation. Clearly the appellant is a young person who could benefit from the supervision afforded by probation, particularly as he would be returning to Adelaide where his parents reside and where he has employment. There is nothing to establish any significant risk of his not responding to supervision. The Crown emphasised the fact that the unlawful possession of the motor vehicles was for a commercial purpose. That is true in a sense, but the submission loses much of its force once it is realised that the appellant was not the person who stood to make the real commercial gain from the enterprise. The appellant has served more than three months in custody since he was originally sentenced. In those circumstances it is appropriate to mould an order which would produce his immediate release to be followed by two years' probation on the usual terms. Leave to appeal should be granted, the appeal allowed, the sentence of the magistrate set aside, and in lieu thereof the appellant should be sentenced to a term of imprisonment to date from 23rd December, 1991 until today's date and in addition there should be a probation order, containing standard terms -- 10 of 11 -- 11 requiring him to be under the supervision of a Community Correctional Officer for a period of two years. -- 11 of 11 --