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  • Unreported Judgment

Hunt v Queensland Police Service

 

[2019] QDC 204

DISTRICT COURT OF QUEENSLAND

CITATION:

Hunt v Queensland Police Service [2019] QDC 204

PARTIES:

MARK PAUL HUNT

(appellant)

v

QUEENSLAND POLICE SERVICE 

(respondent)

FILE NO/S:

APPEAL NO: 62/19

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Maroochydore

DELIVERED ON:

11 October 2019

DELIVERED AT:

Cairns

HEARING DATE:

14 June 2019

JUDGE:

Morzone QC DCJ

ORDER:

  1. Appeal against conviction is dismissed;
  2. Appeal against sentence is allowed;
  3. The sentence and orders made by the Magistrates Court on 11 March 2019 are varied by suspending the sentence of 6 months imprisonment after the time served by the appellant of 2 months and 6 days, and the operational period of this order is 12 months.

CATCHWORDS:

CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 – conviction – [offence] – mode of hearing of appeal – error of law – witness credit – whether conviction unreasonable and unsupported – whether sentence manifestly excessive.

Legislation

Justices Act 1886 (Qld) s 222, s 223(1) & 227

Penalties and Sentences Act 1992 (Qld), s9(2)(f) & (g)

Cases

Allesch v Maunz (2000) 203 CLR 172.
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170.

Chidiac v R (1991) 171 CLR 432.

Dwyer v Calco Timbers (2008) 234 CLR 124.

Forrest v Commissioner of Police [2017] QCA 132.

Fox v Percy (2003) 214 CLR 118.

Gallo v Dawson (1990) 93 ALR 479.

Hayes v Wilson, ex parte Hayes [1984] 2 QdR 114.

House v The King (1936) 55 CLR 499.

Kioa v West (1985) 159 CLR 550, 582.

McDonald v Queensland Police Service [2017] QCA 255.

Mbuzi v Torcetti [2007] QDC 374.

Michel v The Queen [2010] 1 WLR 879.

Morris v R (1987) 163 CLR 454.

Norbis v Norbis (1986) 161 CLR 513.

Neil v Nott (1994) 121 ALR 148.

R v Dillon; Ex parte Attorney-General (Qld) [2015] QCA 155.

R v Esposito (1998) 45 NSWLR 442.

R v Gibb [2018] QCA 120.

R v Senior [2001] QCA 346 at [36] and R v Mawson [1967] VR 205.

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.

SZTQL v Minister for Immigration and Border Protection and Another (No 2) (2015) 150 ALD 456.

Teelow v Commissioner of Police [2009] QCA 84.

Warren v Coombes (1979) 142 CLR 531.

White v Commissioner of Police [2014] QCA 121.

Whitehorn v R (1983) 152 CLR 657.

Veen v The Queen (No. 2) (1988) 164 CLR 465.

COUNSEL:

M Longhurst for the Appellant

A Dunkerton for the Respondent

SOLICITORS:

Osbourne Butler for the Appellant

The Office of Director of Public Prosecutions for the respondent

  1. [1]
    On 11 March 2019 the appellant was convicted after a summary trial in the Magistrates Court held in Maroochydore, of possessing tainted property and fraud. He was then sentenced to an effective 6 months imprisonment to be suspended after serving 3 months for an operational period of 18 months.
  1. [2]
    The appellant now appeals his convictions and sentence.
  1. [3]
    Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered.

Background

  1. [4]
    The appellant was facing a summary hearing set for 11 March 2019 in the Maroochydore Magistrates Court for two charges, namely, bringing stolen goods into Queensland and fraud.
  1. [5]
    The appellant appeared unrepresented via video link from custody for the trial on 11 March 2019. At the commencement of the hearing, the prosecution was allowed to the substitute of ‘bringing stolen goods into Queensland’ to ‘possessing tainted property.’[1]  The appellant was arraigned, and the trial proceeded, in respect of the new charge and the one of fraud.
  1. [6]
    The prosecution witnesses, Ms Mitchell and Mr Dunnart, testified to the effect that their jewellery was stolen whilst the appellant was staying with them interstate in Melbourne. Photographs depicting Ms Mitchell wearing the jewellery in the presence of the appellant corroborated their evidence. The prosecution also adduced evidence tending to show that the appellant pawned the items in Maroochydore in Queensland two days after on 9 July 2016. They testified that had no further contact with the appellant after the items were stolen.
  1. [7]
    The appellant actively participated in the hearing by cross-examining the prosecution witnesses, and electing to give evidence in his own case. He was subjected to cross examination by the prosecutor, and interruption and verbalised scepticism by magistrate.
  1. [8]
    The appellant was convicted and sentenced on both charges to a head sentence of 6 months imprisonment, suspended after serving 3 months, for an operational period of 18 months.

Grounds of Appeal

  1. [9]
    The appellant contends that he was denied a fair hearing resulting in a miscarriage of justice, and the sentence was manifestly excessive. He relies on the following grounds:
  1. The charge of possessing tainted property was not lawfully before the Court;
  1. The learned Magistrate deprived the appellant of his right of disclosure;
  1. The learned Magistrate upheld a baseless objection in violation of the appellant’s right to cross-examine at large;
  1. The learned magistrate deprived the appellant of an opportunity to fairly put forward his case; and
  1. The sentence is manifestly excessive, particularly the component that required him to serve further time in actual custody
  1. [10]
    The respondent properly concedes the appeal against conviction and sentence. It contends that upon a rehearing, this court ought convict the appellant of both offences, and re-sentence the appellant to 6 months imprisonment to be suspended forthwith for an operational period of 18 months, or alternatively, remit the matter to the Magistrates Court for rehearing.

Mode of Appeal

  1. [11]
    The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).  Section 222(1) relevantly provides:

“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court Judge.”

  1. [12]
    Pursuant to section 223 of the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. For an appeal by way of rehearing "the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error,”[2] and thereby resulting in a manifestly excessive sentence.  The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.[3] 
  1. [13]
    Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.[4]

Appeal against conviction

  1. [14]
    The appellant relies upon a combination of errors or defects in the trial as giving rise to a miscarriage of justice, even if any ground considered in isolation would not have that result.

Ground 1: Wrongful substitution of the charge

  1. [15]
    The appellant contends that he was not given a reasonable opportunity to object to the substituted charge of possessing tainted property, and therefore it was not lawfully before the court.
  1. [16]
    The prosecution was allowed to the substitute of ‘bringing stolen goods into Queensland’ to ‘possessing tainted property shortly after the hearing commenced’.
  1. [17]
    The amendment was neither cognate nor fully encapsulated in the previously charged offence.[5]  In those circumstances the power to permit amendment, or inclusion of further charge, in a complaint is found in s 42(1) of the Justices Act 1886 (Qld) as follows:

“(1A)  …where a defendant is present at a proceeding and does not object, a further charge or an amended charge may be made against the defendant and be proceeded with although no complaint in writing has been made in respect thereof.”

  1. [18]
    The appellant did not overtly object to the new charge, nor did the learned magistrate alert him of his right to object or to consider his position over an adjournment. This is not surprising since the appellant knew that the prosecution foreshadowed the substitution at the mention on 7 February 2019.  He was subsequently posted a copy of the proposed bench charge sheet.
  1. [19]
    At the time of the amendment at the trial, the learned magistrates remarked:

“And I have a look at your history and so forth. You know, this is not something, if you like, that’s going to cause you an enormous problem, really, on your history as far as the outcome here today.  We talked about certain things last time and I don’t know if you’ve had a chance to have a think about it.  Are you still intending to put the prosecution to task on a trial, or - - -“

  1. [20]
    The appellant willingly proceeded without objection.
  1. [21]
    It seems to me that reasonableness of the opportunity afforded by the learned magistrate to proceed or not, ought be considered in light of the appellant having been pre-warned of the proposed amendment about “a month ago”,[6] and having later received the bench charged sheet.  When considered in context, I am not satisfied that the learned magistrate failed to provide the appellant a reasonable opportunity to object to the substituted charge of possessing tainted property.  The charge was properly subject of the hearing.
  1. [22]
    Therefore, this ground of appeal will fail.

Ground 2: Prosecution failure to disclose relevant material

  1. [23]
    The appellant asserts that the learned magistrate deprived the appellant of his right of disclosure, in particular, a witness statement given by Ms Mitchell to Victorian Police.
  1. [24]
    The scope of the prosecutions disclosure obligation must be considered in light of the overarching duty stated in s 590AB(1), that is, to ensure the proceeding is conducted fairly with the single aim of determining and establishing truth. 
  1. [25]
    Section 590AB Criminal Code provides for prosecution’s overarching obligations to ensure fairness in the pursuit of truth as follows:
  1. “(1)
    This chapter division acknowledges that it is a fundamental obligation of the prosecution to ensure criminal proceedings are conducted fairly with the single aim of determining and establishing truth.
  1. (2)
    Without limiting the scope of the obligation, in relation to disclosure in a relevant proceeding, the obligation includes an ongoing obligation for the prosecution to give an accused person full and early disclosure of –
  1. (a)
    all evidence the prosecution proposes to rely on in the proceedings; and
  1. (b)
    all things in the possession of the prosecution, other than things the disclosure of which would be unlawful or contrary to public interest, that would tend to help the case for the accused person.”
  1. [26]
    The obligation extends well beyond the scope of the evidence intended to be adduced by the prosecution, and is not confined by the notion of relevance. Instead, it extends to all things possessed by the prosecution that would tend to help a defendant’s case, except where disclosure would be unlawful or contrary to public interest.
  1. [27]
    Section 590AH prescribes for mandatory disclosure in accordance with the overarching prosecutorial obligations. Relevantly here, s 590AH(2)(e) mandates disclosure of “a copy of any statement of the witness in the possession of the prosecution” of each proposed witness for the prosecution.
  1. [28]
    Section 590AJ prescribes for disclosure upon request as follows, including by 590AJ(2)(e) “a copy of any statement of any person relevant to the proceeding and in the possession of the prosecution but on which the prosecution does not intend to rely at the proceeding”.
  1. [29]
    Having regard to the legislative parameters of the prosecution’s duty of disclosure, set out above, its scope is not at large. It is confined by the definition in s 590AE to things in the “possession of the prosecution”, that is:
  1. Things actually in the possession of the arresting officer; or
  1. Things actually in the possession of the person appearing for the prosecution; or
  1. Things actually in the possession of the director, and the arresting officer or a person appearing for the prosecution:
  1. (a)
    is aware of the existence of the thing; and
  1. (b)
    is, or would be, able to locate the thing without unreasonable effort.
  1. [30]
    The statement made by Ms Mitchell to Victoria Police was not part of the prosecution’s disclosure to the appellant and it was not relied upon at the trial. Its existence was revealed during the appellant’s across examination of Ms Mitchell and it content apparently included identification of items alleged to have been stolen. When the appellant sort its production, it is not clear what the learned magistrate meant when he remarked that “The trial’s in Queensland, Mr Hunt”.[7]  
  1. [31]
    Critically, the statement was not in the possession or power of the prosecution in terms of s 590AE. Therefore, pursuant to s590AB of the Criminal Code 1899, the prosecution did not have a duty to disclose it to the appellant. 
  1. [32]
    This ground will fail.

Grounds 3 & 4: Failing to provide an opportunity to be heard

  1. [33]
    The appellant contends that the learned magistrate upheld a baseless objection in violation of the appellant’s right to cross-examine at large, and also deprived the appellant of an opportunity to fairly put forward his case.
  1. [34]
    The common law recognises a fundamental duty to accord a person procedural fairness or natural justice when a decision is made that affects a person’s rights, interests or legitimate expectations.[8]  A reasonable opportunity to be heard “requires that a decision-maker provide a claimant with an opportunity to be heard and an opportunity for the claimant to advance the entirety of his factual material and submissions before a conclusion is reached.”[9]
  1. [35]
    In Kioa v West,[10] Mason J said:

“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.”

  1. [36]
    It is often difficult for judicial officers to ensure the integrity of proceedings, which involve a litigant appearing in person. The High Court in Neil v Nott[11] said:

“A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obstructed by their own advocacy”.

  1. [37]
    This is all the more challenging when ignorance of procedural matters is overlayed with emotional reaction.  In these circumstances, the lack of legal knowledge is undoubtedly a misfortune for any lay litigant appearing in person, but it should not be seen as a privilege.[12] 

Stifling cross examination

  1. [38]
    When the appellant attempted to cross-examine Mr Dunnart seemingly about prior inconsistent statements,[13] the prosecutor objected on the grounds that it was ‘an unrelated matter,’ which was upheld by the learned magistrate because he was “opening up something that’s not- that’s not being alleged by the prosecutor…”[14]
  1. [39]
    I interpret the objection as one of relevance, but even so, it seems that both the prosecutor and the learned magistrate misconceived the appellant’s rightful wide scope in cross examination.
  1. [40]
    A cross examiner is not confined to asking a witness about the facts in issue, or directly relevant thereto, but all questions which might be thought otherwise irrelevant, may be asked to impeach the witness’s credit. He was entitled to raised and prove a prior inconsistent statement made by the witness relative to the subject matter pursuant to s 18 of the Evidence Act 1977 Qld), and he was also entitled to raise a collateral matter relevant only to the witnesses credit but would be credit subject of the finality rule.  Otherwise, I do not glean that the questioning offends either ss 20 or 21 of the Evidence Act 1977 (Qld), which seek to restrain cross-examination as to credit on remote matters or by way of questions that are scandalous or offensive. 
  1. [41]
    In my view the objection was pre-mature and misconceived, and the ruling was inapt. However, I do not accept that the ruling thwarted the appellant because he nonetheless effectively pursued that line of cross-examination.[15]  In that way he was allowed the opportunity to cross-examine in the case.

Intervention in appellant’s evidence

  1. [42]
    The appellant effectively argues that the conduct of the magistrate during the appellant’s evidence so as to deprived him an opportunity to fairly put forward his case, resulting in a miscarriage of justice.
  1. [43]
    The respondent concedes that the magistrate improperly cross-examined of the appellant, commented upon his evidence, and prematurely expressed his disbelief in his defence.
  1. [44]
    In Michel v The Queen[16], Lord Brown said of a trial judge’s role:

“Of course he can clear up ambiguities.  Of course he can clarify the answers being given.  But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow.  He must not cross-examine witnesses, especially not during evidence-in chief.  He must not appear hostile to witnesses, least of all the defendant.  He must not belittle or denigrate the defence case.  He must not be sarcastic or snide.  He must not comment on the evidence while it is being given.  And above all he must not make obvious to all his own profound disbelief in the defence being advanced.”

  1. [45]
    In R v Gibb,[17] Holmes CJ said:

“It is permissible for a trial judge to ask questions designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself.

And a judge may ask questions of a witness not only to clarify his or her evidence, but also to test that evidence where the judge perceives that it may be untruthful or even inconsistent with other evidence.

Miscarriages of justice may arise when questioning appears to be directed towards advancing the case for the prosecution or it is such as to give the jury the impression that the judge is aligned with the prosecution or is convinced of the accused’s guilt.”

  1. [46]
    The magistrate effectively elicited the evidence in chief of the appellant, but also included indicia of cross examination, for example in the following exchange:

“How come that’s the first time we’ve heard that today?---because I was giving a - - -

Remember what I said to you at the beginning of the proceedings?---Your Honour, I - - -

Just - - -?---I asked the two witnesses was Dan at the property.  They said yes.

Okay. You never mentioned anything to either the police or - - -?---I have never been interviewed by the police, your Honour.

No, here, today?---I was giving my evidence - - -“.[18]

  1. [47]
    Whilst the learned magistrate robust at that stage of the proceeding, in my respectful opinion his honour did not unduly stifle the appellant’s evidence. It seems that, although not ideal, the learned magistrate was expressing concerned of recent invention, or perhaps adherence to the rule in Browne v Dunn (1829) 57 ER 909.  As to the latter, it is a rule of fairness that any matter upon which it is proposed to contradict the evidence-in-chief given by the witness must normally be put to him or her so that he or she may have an opportunity of explaining the contradiction. 
  1. [48]
    However, in my respectful opinion the learned magistrate did breach appropriate boundaries following the prosecutor’s cross-examination of the appellant. The learned magistrate not only argued the prosecution case; his Honour also vocalised his findings while the appellant was still in evidence, for example:[19]

“The photographs, the exhibits and the evidence of both Dunnart and Mitchell establish beyond reasonable doubt that, and there’s no contention about this, that that’s their property, either hers or his that he bought. …

It’s not contested by you that you and Mitchell and Dunnart had a fairly close business and social relationship through the first six months of 2016.  You stayed at their place, you stayed together in Sydney, you put them up for a while.  You had a fairly close relationship with them.  Now, two things:  (1) you disconnect with them after this very close relationship, but what – you didn’t leave on bad terms? ...

You never said anything about that today.  You never talked to them for two, three years.  That’s one thing I want you to talk to me about. …

I’ll make a finding right here and now.  That property, that property is Mitchell and Dunnart’s.That property in the photos was stolen from their residence in Melbourne.  That property that is theirs, that was stolen in Victoria, turns up at a pawn store in your possession. ….

Well, you’re either lying in two – in one of alternate ways because in exhibit 3, the buy contract, even if you say, even if you say, and you do say, I don’t believe you, that the binoculars and the camera were yours, you declared that all of it was yours? …

…tsunamied by their evidence here today, that’s their property.”

  1. [49]
    In my respectful view, these remarks do tend to show that the learned magistrate became impatient, exasperated and lost impartiality. His Honour descended into argumentative cross examination directed towards the appellant and advanced the case for the prosecution, and thereby gave a clear impression of pre-judgment, apparently convinced of the appellant’s guilt before he closed his case. However, his Honour’s remarks occurred towards the end of the appellant’s testimony; well after the appellant had exhausted his version of events, and after the prosecutor’s cross examination. Therefore, his Honour’s conduct could not be said to have unduly impact on the appellant’s opportunity to give his evidence, or curtail him pressing his case, albeit to an apparently closed minded court. In those circumstances, I do not think that the magistrate’s approach had compromised this court’s capacity to conduct a real review of the evidence before it and make up its own mind about the case, rather than remit the matter for rehearing.
  1. [50]
    The learned magistrate’s fact finding was wholly dependent on the witnesses’ credit, and drawing appropriate inferences. In Devries v Australian National Railways Commission, Brennan, Gaudron and McHugh JJ said:[20]

“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact.  If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”

  1. [51]
    Similarly, in Fox v Percy,[21] Gleeson CJ, Gummow J and Kirby J referred with approval to earlier cases,[22] as to the correct approach of an appellate court where findings of fact based on credibility are challenged, this way:

“[28] … the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.” (references omitted)

  1. [52]
    This is not an exhaustive formula. The court went onto recognised that an appellate court might interfere even though the facts fall short of being “incontrovertible”, where, for example, the decision is “glaringly improbable” or contrary to “compelling inferences”. Gleeson CJ, Gummow J and Kirby J said:

“[29] … In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case.   In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.  In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. 

[30]  It is true, … that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court.  However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.”  (references omitted)

  1. [53]
    The trial magistrate’s findings of fact based on inference ought be taken as correct unless and until the contrary is demonstrated. In Warren v Coombes,[23] the majority of the High Court reiterated the rule that:

“In general on an appeal by way of rehearing from a judge sitting without a jury an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

Possessing Tainted Property

  1. [54]
    For the offence of possessing tainted property under s 252 of the Criminal Proceeds Confiscation Act 2002 (Qld) the prosecution carried the burden of proving beyond reasonable doubt that:
  1. The appellant possessed the jewellery;
  1. The jewellery was tainted property; relevantly here, it was obtained by way of stealing;
  1. At the time the jewellery may be reasonably suspected of being tainted property.
  1. [55]
    The verdict may be disturbed, if the appellant shows that the trial magistrate acting reasonably ought to have had a sufficient doubt to entitle the appellant to an acquittal.[24]  This necessitates my independent examination of the evidence, including credit of witnesses subject to what I said above,[25] to make my own assessment of both the sufficiency and quality of the evidence.[26] 
  1. [56]
    On my review of the evidence, it was established that Ms Mitchell and Mr Dunnart testified as to their ownership and lawful possession of the jewellery before it was stolen. The tendered photographs depicted the jewellery worn by Ms Mitchell whilst the appellant was with her. Ms Mitchell and Mr Dunnart testified that the jewellery was taken without their consent whilst the appellant was staying with them, and they had no further contact with the appellant afterwards. The appellant was in physical custody and in control of the jewellery when he pawned the items in Maroochydore just two days after they were stolen.
  1. [57]
    As to the third element, it is sufficient for the prosecution to prove that the circumstances surrounding the appellant’s receipt of the jewellery were such that he had reason to believe that the property was stolen. This is not a case invoking mere suspicion, negligence, or carelessness or even recklessness of the defendant not realising that the property was stolen. On my reckoning of the evidence, the appellant’s version implicating a former work colleague seems to me to be implausible in the face of the strong direct and inferential evidence.  He failed in his defence that he had no reasonable grounds for suspecting that the jewellery was tainted property.
  1. [58]
    Therefore, the appellant conviction of possess tainted property was reasonable and supported on the evidence.

Fraud

  1. [59]
    For the offence of fraud pursuant to under s 408C(1)(c) of the Criminal Code prosecution carried the burden of proving beyond reasonable doubt that:
  1. The appellant obtained money from Cash Converters by pawning the jewellery belonging to Ms Mitchell and Mr Dunnart.
  1. The action of the appellant must have been done dishonestly.
  1. [60]
    When the appellant pawned the items in Maroochydore, the inescapable inference is that he acted dishonestly by the standards of ordinary honest people.  The prosecution did not have to prove that appellant must have realised that what he was doing was dishonest by those standards.  The prosecution well negatived a possible defence of honest claim of right under s 22(2) of the Criminal Code.[27]
  1. [61]
    There the conviction of fraud was also reasonable and supported on the evidence.

Conviction

  1. [62]
    While I’m not persuaded that the appellant was stifled in giving complete evidence, he was not afforded an opportunity to argue his case before an open-minded tribunal. However, I am not persuaded that the learned magistrate misused his advantage or acted on evidence inconsistent with facts; nor were his findings glaringly improbable or contrary to compelling inferences in the case.
  1. [63]
    For these reasons, it seems to me that the verdict is reasonable and supported, notwithstanding the learned magistrates erroneous intervention and pre-judgment, and I therefore dismiss the appeal against conviction.

Appeal against Sentence

  1. [64]
    The appellant also appeals against the sentence on the ground that it is manifestly excessive. He was then sentenced to an effective 6 months imprisonment to be suspended after serving 3 months for an operational period of 18 months.
  1. [65]
    This court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.  A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.[28]
  1. [66]
    The High Court held in House v. The King[29] that:

"It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so.  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."

  1. [67]
    The High Court in Kentwell v R[30] held:

“In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.  By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.”

  1. [68]
    The decisions distinguished cases of specific error and manifest excess. Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed. By contrast, an error may not be discernible; but the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.

Criminal History

  1. [69]
    The appellant points to the following features of the sentence to argue that the sentence was manifestly excessive:
  1. The manner in which the trail was conducted resulted in the Magistrate not being appraised of all material facts of the case relevant to sentencing.
  1. The magistrate failed to take into account pre-sentence custody served by the appellant, even if such custody was not strictly declarable.[31]
  1. The magistrate failed to make any reasonable enquiries into the appellant’s assentation that related matters had previously been dealt with in the Southport Magistrates Court jurisdiction.
  1. [70]
    In addition, the respondent acknowledges that the learned magistrate erred by placing to too much weight on the appellant’s prior convictions. The respondent properly concedes that errors in the exercise of the sentencing discretion have resulted in a sentence that was disproportionate to the gravity of the offending and therefore manifestly excessive.
  1. [71]
    The prosecutor’s submissions were focused on the appellant’s criminal history about which the learned magistrate remarked the appellant “… deals in dishonesty and fraud”.  This theme continued during his honour’s exchange with the appellant.  Thereafter, the learned magistrate’s sentencing short remarks were almost entirely focused on the appellant’s “comprehensive criminal histories of fraudulent (sic) and offences of dishonesty”.
  1. [72]
    It is trite law that the appellant’s criminal history is a relevant matter for the proper exercise of the sentencing discretion. In particular, since the offence was one involving violence within the meaning of s 9(2A) of the Penalties and Sentences Act 1992 (Qld), the learned magistrate was required to have regard to the matters set out in s 9(3).  In particular, subparagraph (g) of that subsection required the court to have regard to “the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed”.  Further, s 9(10) provides:

“In determining the appropriate sentence for an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to –

  1. (a)
    the nature of the previous conviction and its relevance to the current offence;
  1. (b)
    the time that has elapsed since the conviction.
  1. [73]
    Subsection (11) provides:

“Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence.”

  1. [74]
    Clearly enough, the provisions reflect the common law as it stood and proclaimed in Veen v The Queen (No. 2)[32] as follows:

“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences; Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.  Applied by Cooper J (with whom Kneipp and Shepherdson JJ agreed) in R v Aston [No 2] [1991] 1 Qd R 375.

  1. [75]
    The appellant has an extensive criminal history with prior like convictions both in Queensland and South Australia, relevantly here:
  1. In South Australia the appellant was convicted of two counts of fraud to the sum of $138,000 committed in October 2001; a conviction for false pretences to the value of $38,000 committed in October 2001; a conviction for dishonestly deceiving a hotelier to the sum of $2500 committed in October of 2008; and a conviction for break and enter in November 2008. A warrant of apprehension for further dishonesty offending was ordered in 2013 and remains outstanding.
  1. On 27 February 2014 he was dealt with in the Cairns Magistrates Court for stealing $18,000 in cash from his business partner.  He had served 214 days of presentence custody.  He was sentenced to 12 months imprisonment, suspended after 6 months for an operational period of 18 months for a charge of stealing.
  1. Over a four month period commencing in late 2012, the appellant defrauded seven people to the sum of $302,772.  On 21 August 2015 he was sentenced to 5 years imprisonment suspended after 614 days for an operational period of 5 years, and 3 years probation for three counts of Fraud.
  1. The appellant’s reoffending less than 12 months into that suspended sentence and probation order.  In May 2018 the appellant he was convicted by the District Court at Cairns for breaching his probation by failing to report. The breaches were proven and he was admonished and discharged with a conviction recorded.
  1. [76]
    It seems to me that his Honour’s references to the criminal history of the appellant and his characterisation of them, having regard to the nature of the offending before him and the particularity of past offence circumstances, his Honour allowed the criminal history to overwhelm his sentencing discretion. Further, the learned magistrate failed to make any enquiry of the appellant as to the presence of any mitigating factors or personal circumstances.[33]  It is not clear whether his honour bore in mind that imprisonment was a last resort for the offending, and any recognition of presentence custody.
  1. [77]
    In that way, in my respectful view, I think the learned magistrate erroneously allowed the matters to guide or affect him and he failed to take into account some material considerations, which resulted in a manifestly excessive sentence outside the permissible range in the circumstances of the case.

Resentence

  1. [78]
    Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion.
  1. [79]
    The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act 1992 (Qld) is to punish an offender to an extent or in a way that is just in all of the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, make it clear that the community denounces the conduct in the offending and to protect the community.  The relevant factors to which the court must have regard are in the subsequent subsections of section 9 of the Penalties and Sentences Act 1992 (Qld).
  1. [80]
    In all of the circumstances, the appellant (joined by the respondent) contends that the sentence of 6 months imprisonment should remain, but be suspended forthwith
  1. [81]
    The appellant was 42 years of age at the time of the offending and 44 at sentence. Like the court below, I’ve received little by way of the appellant’s antecedents. Since he reoffended so close to his last sentence, some matters can be gleaned from the sentencing remarks of Martin SC DCJ in this court on 21 August 2015, and later on 15 May 2018 and again on 30 April 2019 when he was dealt with for the breaching those orders.
  1. [82]
    The gravity of the offending can be gleaned by the circumstances of the case. The maximum penalties for the possessing tainted property and fraud are 2 years and 5 years imprisonment respectively. The offending was relatively minor, related and part of a continuing course of conduct. I have due regard to the factors of general and, as appropriate here, personal deterrence having regard to the appellant’s past like offending. The nature of the penalty, in the form of a fine as originally mooted by the trial prosecutor provides little by way of rehabilitation, particularly in circumstances where its payment is likely to be unattainable and, therefore, there would be little motivation to do so. For this type of offending, imprisonment should only be imposed as a last resort and a sentence that allows the appellant to stay in the community is preferable. I think that a sentence of imprisonment of 6 months is appropriate in the circumstances, and I take into account that the appellant has already served 2 months and 6 days since sentence before being admitted to bail pending this appeal.
  1. [83]
    In all of the circumstances, I will vary the sentence imposed on the appellant in the Magistrates Court by suspending the sentence of 6 months imprisonment after the time served by the appellant of 2 months and 6 days, for an operational period of 12 months to reflect an appropriate period of time served.

Order

  1. [84]
    I allow the appeal in part and make the following orders:
  1. The appeal against conviction is dismissed;
  1. The appeal against sentence is allowed;
  1. The sentence and orders made by the Magistrates Court on 11 March 2019 are varied by suspending the sentence of 6 months imprisonment after the time served by the appellant of 2 months and 6 days, and the operational period of this order is 12 months.

Footnotes

[1] T.2.

[2] Allesch v Maunz (2000) 203 CLR 172, [22] – [23] followed in Teelow v Commissioner of Police [2009] QCA 84, [4]; White v Commissioner of Police [2014] QCA 121, [8], McDonald v Queensland Police Service [2017] QCA 255, [47]; contrast Forrest v Commissioner of Police [2017] QCA 132, 5.

[3] Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255, [47].

[4] White v Commissioner of Police [2014] QCA 12, [5]-[8]; Forrest v Commissioner of Police [2017] QCA 132, 5 & 6; McDonald v Queensland Police Service [2017] QCA 255, [47].

[5] Justices Act 1886 (Qld), s 48; Hayes v Wilson, ex parte Hayes [1984] 2 QdR 114; Mbuzi v Torcetti [2007] QDC 374.

[6]  T16/51.

[7]  T4/39.

[8] Kioa v West (1985) 159 CLR 550, 582.

[9] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, [35] per Flick J cited in SZTQL v Minister for Immigration and Border Protection and Another (No 2) (2015) 150 ALD 456, [3] per Allsop CJ.

[10] Kioa v West (1985) 159 CLR 550, 582.

[11] Neil v Nott (1994) 121 ALR 148 at [150] per Brennan, Deane, Toohey, Gaudron and McHugh JJ.

[12] Gallo v Dawson (1990) 93 ALR 479, [481] per McHugh J.

[13]  T.27.

[14]  T.27/1.

[15]  T.27/5.

[16] Michel v The Queen [2010] 1 WLR 879.

[17] R v Gibb [2018] QCA 120 per Holmes CJ (with whom Gotterson and McMurdo JJA agreed) citing R v Esposito (1998) 45 NSWLR 442 at 472, R v Senior [2001] QCA 346 at [36] and R v Mawson [1967] VR 205 at 207.

[18]  T.46.

[19]  T.53.

[20] Devries v Australian National Railways Commission  (1993) 177 CLR 472; 479.

[21] Fox v Percy (2003) 214 CLR 118, [26]-[30].

[22]  For example, Devries v Australian National Railways Commission (1993) 177 CLR 472, 479.

[23] Warren v Coombes (1979) 142 CLR 531, 551 affirmed in Fox v Percy (2003) 214 CLR 118, 127 [25] per Gleeson CJ, Gummow J and Kirby J.

[24] Whitehorn v R (1983) 152 CLR 657, 687.

[25] Chidiac v R (1991) 171 CLR 432, 443-4 per Mason CJ, 452-3 per Dawson J, 459 per Gaudron J; Knight v R (1992) 175 CLR 495, 503 per Mason CJ, Dawson and Toohey JJ.

[26] Morris v R (1987) 163 CLR 454, 463-4, 466 per Mason CJ, 473 per Deane, Toohey and Gaudron JJ, 477-9 per Dawson J.

[27] R v Dillon; Ex parte Attorney-General (Qld) [2015] QCA 155.

[28] House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519.

[29]  (1936) 55 CLR 499, 504 and 505

[30] Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111, [130] per Hayne J (minority).

[31] R v Fabre [2008] QCA 386 at [14].

[32] Veen v The Queen (No. 2) (1988) 164 CLR 465 at [14].

[33] Penalties and Sentences Act 1992 (Qld), s9(2)(f) & (g).

Close

Editorial Notes

  • Published Case Name:

    Mark Paul Hunt v Queensland Police Service

  • Shortened Case Name:

    Hunt v Queensland Police Service

  • MNC:

    [2019] QDC 204

  • Court:

    QDC

  • Judge(s):

    Morzone DCJ

  • Date:

    11 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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