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  • Unreported Judgment

Moss v Queensland Police Service

 

[2019] QDC 222

DISTRICT COURT OF QUEENSLAND

CITATION:

Moss v Queensland Police Service [2019] QDC 222

PARTIES:

JAMEY CARL PETER MOSS

(appellant)

v

QUEENSLAND POLICE SERVICE 

(respondent)

FILE NO/S:

APPEAL NO: 47/19

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Mareeba

DELIVERED ON:

8 November 2019

DELIVERED AT:

Cairns

HEARING DATE:

8 August 2019

JUDGE:

Morzone QC DCJ

ORDER:

  1. Appeal against conviction be dismissed;
  2. Appeal against sentence is allowed;
  3. The sentence and orders of the Magistrates Court made in Mareeba on 21 February 2019 are set aside;
  4. A pre-sentence report be prepared pursuant to s 344 of the Corrective Services Act 2006 (Qld) in respect of the appellant, including an assessment of his mental health in the form of a psychiatric and/or a psychological assessment for the purposes of sentencing him for the offence; and assessment of any impact on the appellant and his capacity to serve actual custody in a correctional centre.
  5. I will hear further from the parties to fix the date for the re-sentencing hearing.

CATCHWORDS:

CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 – conviction – offence of serious assault public officer performing function causing bodily harm – mode of hearing of appeal – error of law – witness credit – whether conviction unreasonable and unsupported – whether comparative seriousness of the offending misconstrued – absence of evidence of the appellant’s mental state at the time of the offending and at sentence – sentence manifestly excessive.

Legislation

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

Penalties and Sentences Act 1992 (Qld), s 9(3)(a)(j).

Cases

Allesch v Maunz (2000) 203 CLR 172

Chidiac v R (1991) 171 CLR 432

Devries v Australian National Railways Commission (1993) 177 CLR 472

Dwyer v Calco Timbers (2008) 234 CLR 124

Dyers v The Queen (2002) 210 CLR 285

Forrest v Commissioner of Police[2017] QCA 132.

Fox v Percy (2003) 214 CLR 118

Gallo v Dawson(1990) 93 ALR 479

Hainaut v Department of Transport and Main Roads [2017] QDC 207

Hainaut v Queensland Police Service [2017] QDC 208

House v The King (1936) 55 CLR 499

Kentwell v R (2014) 252 CLR 60

Kioa v West (1985) 159 CLR 550, 582

McDonald v Queensland Police Service[2017] QCA 255

Neil v Nott (1994) 121 ALR 148

R v Yarwood [2011] QCA 367

R v Verdins (2007) 16 VR 269

SZTQL v Minister for Immigration and Border Protection and Another (No 2) (2015) 150 ALD 456, [3] per Allsop CJ

Warren v Coombes (1979) 142 CLR 531

White v Commissioner of Police [2014] QCA 121

Whitehorn v R (1983) 152 CLR 657

SOLICITORS:

Appellant self-represented

The Office of Director of Public Prosecutions for the respondent

  1. [1]
    The appellant who feels aggrieved by, and now appeals against his conviction and sentence for the offence of serious assault on a public officer performing function causing bodily harm.
  1. [2]
    Both parties provided outlines of argument (including those of appellant’s former counsel), and made further submissions on the hearing of the appeal, which I have considered.

Background

  1. [3]
    The appellant was charged with serious assault on a public officer performing function causing bodily harm.
  1. [4]
    He was self-represented at the hearing.
  1. [5]
    The summary trial proceeded over two separate days Magistrates Court held in MareebaThe prosecution presented its case on 11 January 2019, and the defendant presented his evidence when the case resumed on 21 February 2019.  The learned magistrate delivered the decision ex tempore at the conclusion of the hearing on 21 February 2019.
  1. [6]
    The appellant was convicted and sentenced to 9 months’ imprisonment with a parole release date of 20 May 2019 being one third of the term. He has served about 50 days of his sentence before being granted bail pending this appeal since 12 April 2019.
  1. [7]
    The appellant now appeals his conviction and sentence.

Mode of Appeal

  1. [8]
    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. [9]
    Pursuant to s 223 of the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. Section 223 provides:

“(1)   An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.

  1. However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
  2. If the court gives leave under subsection (2), the appeal is—
  1. by way of rehearing on the original evidence; and
  2. on the new evidence adduced.”
  1. [10]
    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,”[1] and thereby resulting in a manifestly excessive sentence.
  1. [11]
    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.[2] 
  1. [12]
    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.[3]

Grounds of Appeal

  1. [13]
    The appellant appeals against the conviction and sentence in reliance on the grounds of appeal in the notice of appeal, which can be categorised as follows:
  1. The complainant was not a credible witness;
  1. There insufficient evidence of an assaulted or bodily harm and the conviction was unsupported and unreasonable.
  1. The learned magistrate erred in the sentencing discretion in relation to the nature and extent of the bodily harm going to the seriousness of the offending, and the appellant’s mental, and thereby imposed a manifestly excessive sentence.

Appeal against conviction

  1. [14]
    The grounds of appeal as to conviction 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.

Offence

  1. [15]
    Section 340(2AA),(a) & (a)(ii) of the Criminal Code provides that:

“ (2AA) A person who—

  1. unlawfully assaults, or resists or wilfully obstructs, a public officer while the officer is performing a function of the officer’s office; or Example— A person unlawfully assaults an authorised officer under the Child Protection Act 1999 while the officer is investigating an allegation of harm to a child under that Act.
  2. assaults a public officer because the officer has performed a function of the officer’s office;

commits a crime.

Maximum penalty—

  1. if the offender assaults a public officer in any of the following circumstances—
  1. the offender bites or spits on the public officer or throws at, or in any way applies to, the public officer a bodily fluid or faeces;
  2. the offender causes bodily harm to the public officer;
  3. the offender is, or pretends to be, armed with a dangerous or offensive weapon or instrument—14 years imprisonment; or
  1. otherwise—7 years imprisonment.”
  1. [16]
    A public officer includes a member, officer or employee of a service established for a public purpose under an Act, for example the Queensland Ambulance Service established under the Ambulance Service Act 1991(Qld).  “Bodily Harm” is defined in the Code to mean any bodily injury which interferes with health or comfort.

Unreasonable and Unsupported

  1. [17]
    A 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.[4]  This necessitates my independent examination of the evidence, including credit of witnesses subject to what I said above,[5] to make my own assessment of both the sufficiency and quality of the evidence.[6] 
  1. [18]
    The appellant did not dispute the date of the offence, that he was the relevant defendant, or that the complainant was a public officer performing a function of his office.[7]  The appellant disputed that he assaulted the complainant, and that he sustained any bodily harm.
  1. [19]
    The complainant paramedic ambulance officer, Adrian Church, testified that on the night of 24 August 2017, he responded to a call to treat the appellant for abdominal pain at the former Kuranda Resort. He attended on the appellant about at 11:00 pm, and proceeded to treat the appellant inside the ambulance.  He explained that the appellant’s demeanor changed and he began to get aggressive and threatening.  The officer described that the appellant pulled his jumper hood low over his face, put his hands in his jumper pockets, did not make eye-contact, his tone of voice became increasingly loud and agitated, e.g. saying “hurry up cunt”, and wanted drugs.  The officer explained that after he attached a pulse monitor to the defendant’s thumb, he got out of the car, and radioed for police assistance. He described that the appellant confronted the officer and was verbally abusive; saying things like “pig” and a “cunt”.  The officer testified that the appellant was very close, leaning over him, screaming in his ear, with his spittle hitting his face, still with his hood partially covering his face and his hands in the jumper pockets.  He said that the appellant was asking for drugs and wanted to “end the complainant.”[8]  In the meantime, the officer apparently activated a portable duress system (but unbeknownst to him the alarm was not effectively communicated).  He then testified that a tussle ensured with the appellant, which took them a short distance away from the car, then the appellant then pushed the officer in the car.  He recalled that his spine, between his shoulder blades, and struck the pillar adjacent to the car door, and then the appellant seemed to settle after saying “that hurt”.[9]  The officer explained that when the appellant took a phone from his backpack to call another ambulance, the officer flicked the appellant’s backpack, which allowed him to get into the ambulance, shut the door and drive away.  The officer explained that on the next day he got medical attention and took anti-inflammatory and pain relief medication.  He also asserted that the bruising went down within a week or so but his spine was painful for a couple of months.
  1. [20]
    The appellant cross-examined the officer but there was no real challenge to any of the substantive matters the complainant gave evidence of. Of particular note was the appellant’s apparent misconception at trial (and also on appeal) of the officer’s description of the “pillar”. He perceived that the officer was referring to the pillar of a building (as distinct from the car) and therefore making the assault impossibly happing in two places. He was skeptical of the magistrates’ intervention to clarify the witness’s answer. The appellant argued on appeal, in effect, that the learned magistrate “kicks in and starts answering questions for the defendant.”[10]  The following exchange occurred during the appellant’s cross examination of the officer about this part of his statement:

BENCH:  Paragraph 36? – thirty six.

What does it say? –

As I come around the rear of the vehicle, I saw Moss, now standing in the driver’s side of the ambulance with his back against the pillar and his arms splayed across the door to prevent me form getting in.

DEFENDANT: Okay.  That’s what I said.  That was the question I asked.  Where you parked the vehicle ---? --- Yep

And you said you’d parked it down near the units to this man and actually in the statement you wrote the next day, you said you’d parked it directly in front of the pillar.

BENCH:  I think the pillar ---

DEFENDANT:  So I’m just asking ---

BENCH:  Mr Moss, I think the pillar he’s referring to is the pillar of the motor vehicle.

WITNESS:  Car pillar.

BENCH:  It’s the door.  The car door he’s talking about not the building.  The pillar of the car is not the pillar of the building.  It seems like you’ve misunderstood the evidence there.

  1. [21]
    The appellant also argued that the learned magistrate tended to exaggerate in that he “accuses me of going over things 1000 times”, “again claims the complainant answered the question 1000 times in the court room” and “accuses me of lying in court 5 times and then concedes 3 times that he was in the wrong 5 times”.  He pointed to other instances where he felt the learned magistrate was disrespectful; that “whatever I have to say doesn't matter”, and “he also reckons· I was flogging a point and raving accused me for (sic) not asking specific question as well as other unfair and what could be considered discriminatory comments in court and not of correct court protocol.”
  1. [22]
    After considering the transcript of the hearing, it seems to me that the magistrate was remarkably patient, fair and proper in the circumstances.  I cannot find any basis or reasonable justification for the appellant’s assertions of the magistrates being partial and prejudicial.  He was merely trying to keep the appellant focused without argumentative repetition, and at one point to help him understand the plain meaning and effect of the witness’s use of the description “pillar” as being referable to a car, rather than some phantom issue conjured up by the appellant’s misunderstanding of a pillar of a building.
  1. [23]
    The prosecution also called Dr Hancock who testified that he examined the complainant the paramedic officer at around 12:34pm on the 25 August 2017. Dr Hancock found the officer showed “generalised decreased range of motion within his neck which was painful and he had trapezial tightness on both sides.”  He opined that the injuries suffered by the complainant were likely to interfere with the health or comfort of a person.  During cross-examination, the Dr Hancock confirmed that he did not observe any bruising to the complainant’s back.
  1. [24]
    The prosecution case also included evidence from the attending police officer, and certified evidence of the triple zero calls.
  1. [25]
    In stark contrast to the evidence of the prosecution witnesses, the effect of the appellant’s evidence was that he was neither aggressive nor physical toward the officer.
  1. [26]
    In his evidence, the defendant recalled that in the evening of 24 August 2017, he was suffering abdominal pains and he called an ambulance. He was in absolute agony. He met the ambulance in a nearby car park. He explained his abdominal pains to the officer who invited him to hop into the ambulance. He recalled that the officer measured the appellant’s blood pressure and heart rate, physically his belly, and for the appellant’s name, address, date of birth, if he was allergic to anything and if he was taking any prescribed medicine before measuring the appellant’s blood pressure and heart rate again. The appellant said that he asked for pain relief and the officer told him not to get angry. He described the officer mumbling and slurring when he told the appellant that he was going to call for police assistance. He explained that about 40 seconds after being told by the officer that he was going to call police, the appellant got out of the ambulance and saw the officer was on his mobile phone to police. He remembered call him a “pack dog” and a “bad narc” for calling the police on someone who is in an emergency, and queried why he called the police some 20 times. The appellant denied ever getting aggressive at any stage and he denied touching the complainant at any time. The appellant said that he called for a second ambulance, but was told that he would need to wait for police. He conceded that he rang the operator back and abused him. He asserted that shortly after the second call, the officer drove away and the appellant returned to his unit to wait for police.
  1. [27]
    The prosecutor cross-examined the appellant and put the prosecution case to him. The appellant maintained his version. The prosecutor was permitted to tender the appellant’s criminal history to combat the appellant’s assertion that he was of good character.
  1. [28]
    The prosecution carried the onus to prove beyond reasonable doubt that:
  1. The appellant unlawfully assaulted the complainant.
  1. At the time of the assault, the complainant was a public officer performing a function of his office.
  1. The unlawful assault caused bodily harm to the complainant.
  1. [29]
    The Magistrate’s findings depended on the credibility of the witness.  The learned magistrate remarked:

…During the course of the trial I have had the opportunity of listening to and observing the demeanour of each witness whilst they gave their evidence. This has, as usual, greatly assisted me in assessing the credibility or otherwise of those witnesses which is of course of paramount importance.

At the commencement Mr Moss made certain concessions they were essentially that he accepted everything, except the place and the alleged incident. Mr Church, a paramedic of some 29 years, gave evidence that he has received a call offer service at about 10.30pm. There was a male patient with abdominal pain at the former Kuranda Resort. He said that he arrived at the resort about 11:00pm. He then went on to tell me in some detail about how he was threatened abused spat upon and grabbed. Essentially, he explained the incident and how Mr Moss has assaulted him. As a consequence he said that he suffered bruising to the back from when he has been pushed back into the door hinge and he suffered pain for – a residual pain for a couple of months.

Sergeant Matts gave evidence. He had attended the Kuranda report at about 11:25 upon receiving a request for assistance by the ambulance service. He had CD body cam footage which was put into evidence as exhibit 1. He investigated the matter and he arrested Mr Moss. There was also evidence from Sergeant Matts, I think of the triple O calls, three of them, where Mr Moss became increasingly aggressive and abusive towards the operator. This has not been touched upon, I do not believe, by Mr Moss either in his evidence in chief or in cross examination but in cross examination there was other evidence I think is relevant to my consideration determining Mr Moss’ state of mind the question I think was:

Why, Mr Moss, you arrived at the Kuranda report – I was cooperative.

Yes? I called out to you the whole time. I was in agony. I was of good behaviour.

And sergeant Matts said that in the hospital you became agitated because of the delay, and you made threats to officer brands. You threatened to wipe the smile off her face. An incident which occurred at hospital and that answer from sergeant Matts has not been contradicted in any evidence whatsoever, as far as I am aware. Dr Hancock gave evidence that Mr Church complained of headaches and neck pain, and he confirmed that the injuries that he observed would amount to a bodily harm as that the term is defined in the criminal code. Mr Moss gave evidence today, in summary his evidence is that: He did not get aggressive, he did not lay a finger on the man at any state, and he did not get aggressive at all and:

‘The police is conspiring with the ambulance drive in this matter.’

Which he has reconfirmed on several occasions in his summing up that there is a conspiracy between the police and the ambulance, and possible the court in respect of this matter. The prosecution must prove that Mr Moss assaulted Mr Church. The prosecutor has told us about the definition:

‘Any person who strikes, touches, or moves or otherwise applies force of any kind, the person or other either directly or indirectly without that persons consent it said to assault that person.’

Prosecution must prove the Assault was unlawful and that is not authorised justified or excused by law and that the complainant suffered bodily harm. The complainant on his evidence obviously did not consent to being assaulted and it could not be inferred from the evidence that he was. I accept the evidence. Before I go onto that I should touch upon the cross- examination of Mr Moss by the prosecutor.

Whilst it has no been put into evidence that is the criminal history or Mr Moss the prosecutor cross-examined Mr Moss on his criminal history and Mr Moss did not deny those aspects of it. It did not appear to be a particularly long criminal history. There were two entries that were referred to: one where Mr Moss had been sentenced to four years imprisonment and a more recent matter where he has been convicted of a regulatory offence and unauthorised stealing of shop goods. As I understood it.

The reasons I allowed the prosecutor to call to give – to cross examine Mr Moss on that was because of the evidence of Mr Moss saying that he was of good character and everybody else was of bad character. The prosecution therefore cross examined him on his previous convictions. The prosecutor submits that having regard to that evidence I should not aspect him as a person of good character, while of course, Mr Moss says that I should disregard that and I should find that he is a person of the best character. It is necessary therefore to consider the totality of the evidence as to Mr Moss character and determine whether or not I accept that he is a person of good character.

The production of the history or the cross – examination of his history has not really added to my determination or assisted me in any great particular way. I accept the evidence of Mr Church I accept he is by definition a public officer and I accept that he was performing a function of his office. Mr Moss as I say has a blanket denial of any incident any wrong doing as all. Nevertheless he does accept in evidence that he did become abusive to Mr Church that he lost if composure. It is and also it is not contradicted that he was aggressive towards officer brands at the hospital. So whilst Mr Moss would have us believe or have me believe that he did absolutely nothing wrong and that he was a person in distress simply seeking help the evidence clearly contradicts that in those ways that I have discussed.

  1. [30]
    The learned magistrate preferred the evidence of the complainant over that of the appellant, after observing assessing the witnesses’ credit. The magistrate did not accept the appellant’s version that maintained the assault never occurred and the officer had no reason to become concerned at any stage. The learned magistrate also accepted Dr Hancock’s expert opinion that the relevant injuries constituted bodily harm as defined in the Criminal Code.[11]  In accepting the officer’s version, the learned magistrate clearly assessed the complainant as a witness of credibility and reliability.  Having done so, it was open for the learned magistrate to find each of the elements of the offence established by the officer’s evidence, coupled with that of the treating doctor. 

Challenge to fact finding based on witnesses’ credit

  1. [31]
    In Devries v Australian National Railways Commission, Brennan, Gaudron and McHugh JJ said:[12]

“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. [32]
    Similarly, in Fox v Percy,[13] Gleeson CJ, Gummow J and Kirby J referred with approval to earlier cases,[14] 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. [33]
    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. [34]
    It seems to me that the officer’s testimony had a ring of truth as he perceived matters unfolding form his unique perspective. Despite the appellant’s best efforts at the trial, the officer’s version of events remained mainly unchanged through cross-examination. The officer’s was largely consistent with the medical evidence, which in turn was also consistent and coherent. Whilst the evidence contains minor discrepancies, these are consistent with frailties of human recollection, and none was fatal to the witnesses’ credit.
  1. [35]
    He asserts that “the whole case is a pack of lies” and “bizarre” and took me to various instances to make his point both in his written and oral submissions, including improper motive of the officer to claim compensation, conspiracy, absence of bruising conceded by the doctor, where the officer says he hit his back, and his departure from the scene.  I do not accept that the matters laboriously identified by the appellant on appeal show those witnesses to be inconsistent, lying, and exaggeration, and totally unreliable.  In contrast, the appellant’s version, on the other hand, seemed highly implausible as he maintained the assault never occurred and the complainant had no reason to become concerned at any stage.
  1. [36]
    I am unable to conclude that the magistrate 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 otherwise glaringly improbable.
  1. [37]
    For these reasons, on my own review of the evidence, it seems to me that the verdict was reasonable and supported by the evidence, and according to law.  I therefore dismiss the appeal against conviction.

Appeal against Sentence

  1. [38]
    The appellant also appeals against the sentence.
  1. [39]
    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 justiceA 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.[15]
  1. [40]
    The High Court held in House v. The King[16] 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. [41]
    The High Court in Kentwell v R[17] 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. [42]
    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.

Manifestly Excessive Sentence

  1. [43]
    The appellant argues that the sentence was manifestly excessive because the learned magistrate erred in the proper exercise the sentencing discretion by:
  1. Misconstruing the comparative nature and seriousness of the offending, and
  1. Failing to properly consider the appellant’s mental, and thereby imposed a manifestly excessive sentence. 
  1. [44]
    At sentence, the police prosecutor contended for a sentence of 6 to 9 months with actual time to serve and relied on the comparative decision of Graham v Commissioner of Police [2015] QDC 103.  In Graham, the defendant swung her right arm and struck an ambulance officer on the right side of his face, causing his glasses to come off and fall on the floor.  He suffered bruising and swelling to his face and required two days off work.
  1. [45]
    It is not clear to me what the learned magistrate meant by saying the case was easily distinguishable because it was dealt with ex parte without the need for a trial. However, it seems to me that the appellant’s offending conduct and consequential injuries were comparable and seemingly more serious than Graham case.  His conduct was towards the lower end of seriousness for this type of offending, and resulted in a relatively minor injury. 
  1. [46]
    Of greater significance the appellant’s argument that the learned magistrate erred by proceeding to sentence without a report addressing the applicant's mental health. The respondent properly concedes this point. I agree.
  1. [47]
    Section 9(3) of the Penalties and Sentences Act 1992 (Qld) mandates consideration be given to any medical, psychiatric, or other relevant report in relation to the offender;[18] and an assessment of the risk of physical harm to any members of the community if a custodial sentence were not imposed.[19]  Further, consideration may be warranted of any relationship of the appellant’s mental condition and the offending.[20] 
  1. [48]
    The appellant referred to his mental health conditions, saying that he had “an anti-social disorder” and “an acute anger management disorder” and that he was medicated with “Valium and stuff”.  He asked the court to consider ordering a pre-sentence report to "help the court in deciding...sentence...I’ve been treated under section 32 by the Mental Health Act on a number of occasions.”
  1. [49]
    These matters were, in respectful opinion, relevant to sentence, and preparation of a pre-sentence report pursuant to s 344 of the Corrective Services Act 2006 (Qld) was warranted.
  1. [50]
    For these reasons, in my respectful view, the trial magistrate erred in exercising the sentencing discretion by failing to take into account some material considerations regarding the appellant’s state of mental health at the time of the offending, and at the time of sentence. In the result, the sentence is vitiated by the error.
  1. [51]
    I therefore allow the appeal against sentence.

Resentence

  1. [52]
    Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion.
  1. [53]
    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 s 9 of the Penalties and Sentences Act 1992 (Qld).
  1. [54]
    It is trite to say that the appropriate sentence will depend on the particular circumstances of the offending and the degree of culpability of the offender. The nature of the penalty, in the form of a fine, 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. The gravity of this offending can also be gleaned by the relative minimum and maximum penalties, with due regard to the factors of general and, as appropriate, personal deterrence. For this offending, imprisonment is not treated as the last resort and a sentence in preference to appellant staying in the community.
  1. [55]
    However, like the court below, this court there remains an absence evidence of his state of mental health relevant to sentencing. Before dealing with the sentence, it will be necessary to provide the appellant an opportunity to adduce evidence of his state of mental health, and hear further submissions on any other relevant sentencing consideration.

Order

  1. [56]
    For these reasons, I make the following orders:
  1. Appeal against conviction be dismissed;
  1. Appeal against sentence allowed;
  1. The sentence and orders of the Magistrates Court made in Mareeba on 21 February 2019 are set aside;
  1. A pre-sentence report be prepared pursuant to s 344 of the Corrective Services Act 2006 (Qld) in respect of the appellant, including an assessment of his mental health in the form of a psychiatric and/or a psychological assessment for the purposes of sentencing him for the offence; and assessment of any impact on the appellant’s and his capacity to serve actual custody in a correctional centre.
  1. [57]
    I will hear further from the parties to fix the date for the re-sentencing hearing.

Footnotes

[1]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.

[2] 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].

[3] 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].

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

[5] 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.

[6]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.

[7]  TS of Hearing, 11 January 2019; 1-6 line 3 to 35 and 1-7 line 4 to 20.

[8]  TS of Hearing 11 January 2019; 1-13 line 3 to 5.

[9]  TS of Hearing 11 January 2019; 1-14 line 40 to 45.

[10]  Appeal T1-30/38-38, 45-48.

[11]  Decision 21 February 2019 T3/20-21.

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

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

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

[15] 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.

[16] House v. The King (1936) 55 CLR 499, 504 and 505.

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

[18] Penalties and Sentences Act 1992 (Qld), s 9(3)(j).

[19]Penalties and Sentences Act 1992 (Qld), s 9(3)(a).

[20] R v Yarwood [2011] QCA 367 affirming R v Verdins (2007) 16 VR 269 at [32] & also Muldrock v The Queen [2011] HCA 39, 50 – 58.

Close

Editorial Notes

  • Published Case Name:

    Moss v Queensland Police Service

  • Shortened Case Name:

    Moss v Queensland Police Service

  • MNC:

    [2019] QDC 222

  • Court:

    QDC

  • Judge(s):

    Morzone QC DCJ

  • Date:

    08 Nov 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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