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  • Unreported Judgment

MB v Queensland Police Service

 

[2020] QDC 325

DISTRICT COURT OF QUEENSLAND

CITATION:

MB v Queensland Police Service [2020] QDC 325

PARTIES:

MB

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO:

160/2020

DIVISION:

Appeal

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Cairns

DELIVERED ON:

18 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

19 November and 15 December 2020

JUDGE:

Smith DCJA

ORDER:

  1. The appeal is dismissed.
  2. The orders made in the Magistrates Court in this matter are confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – Sentence manifestly excessive  − fresh evidence and events occurring after sentence − whether fresh evidence should be admitted when evidence could have been obtained – whether the fresh evidence makes any difference to the outcome − whether error established – whether sentence is manifestly excessive

LEGISLATION:

Justices Act 1886 (Qld) ss 222, 223, 225

Penalties and Sentences Act 1991 (Qld) ss 9, 12

CASES:

Day v Commissioner of Police [2018] QDC 3, cited

Director of Public Prosecutions v TAL [2019] QCA 279; (2019) 3 QR 1; 280 A Crim R 160, applied

Forrest v Commissioner of Police [2017] QCA 132, applied

Gallagher v R (1986) 160 CLR 392; [1986] HCA 26, cited

Hili v R (2010) 242 CLR 520; [2010] HCA 45, cited

House v The King (1936) 55 CLR 499; [1936] HCA 40, applied

MH v Queensland Police Service [2015] QDC 124, cited

Parsons v Raby [2007] QCA 98, cited

Pavlovic v Commissioner of Police [2007] 1 Qd R 344; [2006] QCA 134, applied

PFM v Queensland Police Service [2017] QDC 210, cited

Queensland Police Service v JSB [2018] QDC 120, cited

R v Maniadis [1997] 1 Qd R 593, cited

R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited

Taylor v Queensland Police Service [2015] QDC 75, cited

Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84, applied

COUNSEL:

Mr J Sheridan for the appellant

Ms C Georgouras for the respondent

SOLICITORS:

O’Reilly Stevens Lawyers for the appellant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    This is an appeal by the appellant pursuant to s 222 of the Justice Act 1886 (Qld) (the JA).
  2. [2]
    Section 222(2)(c) of the JA provides that where a defendant pleads guilty, appeals will be allowed on the sole ground that the fine, penalty, forfeiture or punishment imposed by the originating court was excessive or inadequate.
  3. [3]
    Section 223(1) of the JA provides that the appeal is to be by way of rehearing on the evidence given in the proceeding before the justices although there is a power to receive fresh evidence if there are special reasons to do so.
  4. [4]
    In Forrest v Commissioner of Police,[1] it was said that an appeal by way of rehearing requires the appellate court to decide the case for itself.  It must conduct a real review of the evidence and make up its own mind about the case giving due weight to the magistrate’s view.[2]
  5. [5]
    Section 225(1) of the JA provides that:

“On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.”

  1. [6]
    In Teelow v Commissioner of Police,[3] Muir JA noted that usually the powers of an appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence before the appellate court, the subject of the appeal is the result of some legal, factual or discretionary error.
  2. [7]
    Where it is alleged there is manifest excess, the court must consider whether the sentence fell outside the range of proper sentencing discretion. Appellate intervention on this ground is not warranted unless having regard to all of the relevant sentencing factors including whether the impugned sentence differs from sentences imposed in other cases the court concludes there is a misapplication of principle. In other words, the sentence must be unreasonable or plainly unjust or the court must infer there is some way the court below failed to properly exercise its discretion.[4]

Charges

  1. [8]
    The appellant pleaded guilty and was sentenced in the Magistrates Court at Cairns on 8 September 2020 on the following charges:

Number

OFFENCE

DATE

1

Contravention of a police protection notice

27 April 2020

2

Wilful damage (domestic violence offence)

27 April 2020

3

Breach of bail condition

15 May 2020

4

Contravention of a domestic violence order

17 May 2020

5

Wilful damage (domestic violence offence)

17 May 2020

6

Breach of bail condition

1 June 2020

7

Breach of bail condition

26 June 2020

8

Contravention of a domestic violence order

26 June 2020

9

Breach of bail condition

10 July 2020

10

Contravention of a domestic violence order

10 July 2020

11

Breach of bail condition

21 August 2020

12

Contravention of a domestic violence order

27 August 2020

13

Breach of bail condition

27 August 2020

14

Breach of bail condition

29 August 2020

  1. [9]
    The appellant was sentenced to two years’ probation and ordered to pay compensation in the sum of $611.70. Convictions were recorded on all counts. The appellant had served 21 days in pre-sentence custody between 17 July 2020 and 27 July 2020 and thereafter between 29 August 2020 and 7 September 2020. The Magistrate took this custody into account but did not declare it.

Prosecution submissions in the Magistrates Court

  1. [10]
    The prosecutor in the Magistrates Court tendered as Exhibit 1 a sentencing schedule.
  2. [11]
    As to charge 1, contravention of a police protection notice, the complainant SH was the defendant’s ex-partner. The appellant was named as respondent in the police protection notice in favour of SH. On 28 April 2020, police attended the complainant’s address at Kewarra Beach and found her white Range Rover covered in red spray paint across the bonnet and driver’s side with “return the dog” written in the paint. The front passenger side tyre was punctured. The dog related to a dog given to the complainant by the appellant as a gift in 2007. Threatening text messages were sent by the appellant to the complainant prior to the offence occurring. CCTV footage depicted the appellant’s vehicle driving in the area shortly before the red paint was used to damage the complainant’s vehicle. Charge 2 was wilful damage of the vehicle and was a domestic violence offence.
  3. [12]
    Charge 3, which occurred on 15 May 2020, was a breach of bail conditions. On 1 May 2020, the appellant signed an undertaking as to bail not to communicate with the complainant. On 15 May 2020, he sent a text message to the complainant. He was arrested for this and when interviewed he said he had been drinking Bourbon and wrote himself off the night before and didn’t recall sending the text message.
  4. [13]
    Charge 4 was a charge of contravening a domestic violence order. The complainant JJ was the son of SH. He was a named person in the order. On 17 May 2020, the appellant was riding his motorcycle southbound on Captain Cook Highway near Smithfield when he saw JJ travelling in the opposite direction. The appellant proceeded to conduct a U-turn to catch up with the complainant to speak to him about the whereabouts of the dog. The appellant banged on the complainant’s window multiple times yelling “where’s the fucking dog”.
  5. [14]
    The appellant was arrested for the matter on 18 May 2020 and was interviewed. During the interview he made admissions to the offence. He said he followed the complainant JJ because he believed the dog was with them.
  6. [15]
    Charge 5 was wilful damage and was a domestic violence offence. This related to the events the subject of Charge 4 and relates to the appellant damaging the mirror of JJ’s vehicle.
  7. [16]
    Charge 6 related to events which occurred on 1 June 2020 and relates to a breach of bail condition. On 20 May 2020, the appellant entered into an undertaking as to bail. One of the conditions was to have no contact with the ex-partner, the complainant SH. On 1 June 2020, the appellant asked a person to contact SH to pass a message onto her. On 17 July 2020, the appellant made admissions to this.
  8. [17]
    Charge 7 relates to events on 26 July 2020 which was a breach of bail condition. On 26 June 2020, the appellant sent a text message to SH which breached his bail conditions. On 17 July 2020, the appellant was arrested and said he did not recall sending the text message but would have been intoxicated at the time.
  9. [18]
    Charge 8 relates to an offence on 26 June 2020 which was a contravention of a domestic violence order. This relates to the facts the subject of Charge 7.
  10. [19]
    Charge 9 relates to an event on 10 July 2020 which was a breach of bail condition. On 10 July 2020, the appellant sent a text message to SH. This breached his bail condition. When interviewed, he said he didn’t remember sending this message to her.
  11. [20]
    Charge 10 relates to the facts of Charge 9 which was a contravention of a domestic violence order.
  12. [21]
    Charge 11 occurred on 21 August 2020 which was a breach of bail condition. On 21 August 2020, the appellant was in breach of a bail condition, drove past SH’s house before making a turn and driving away. When interviewed he said it was not him and that he was intoxicated.
  13. [22]
    Charge 12 occurred on 27 August 2020 which was a contravention of domestic violence order. The appellant updated his profile status making threatening comments about the complainant, SH. The post named SH and contained threats and disclosed her sexual preferences to several friends. This had a significant emotional impact on the complainant SH. The appellant was interviewed on 29 August 2020 and said he didn’t remember posting the comment but went on to say it was true.
  14. [23]
    Charge 13 was a breach of bail condition and relates to the facts of Charge 12.
  15. [24]
    Charge 14 occurred on 29 August 2020. On 27 July 2020, the appellant breached a bail condition by consuming alcohol.
  16. [25]
    Exhibit 2 was the appellant’s criminal history. This disclosed he was 40 years old. He had two previous convictions, the first on 10 June 1992 for two breaches of the Bail Act and community service was imposed. The second conviction on 6 October 1993 was for breaching the Bail Act and he was convicted and fined.
  17. [26]
    A victim impact statement was tendered as Exhibit 4. The offending caused distress and inconvenience to the complainant SH. She had to move regularly as a result of the conduct of the appellant and suffered defamation to her character. She alleged that total out of pocket expenses was $16,748.84.
  18. [27]
    The complainant, JJ, also provided a victim impact statement (Exhibit 5). The offences impacted him as well as damage to his vehicle which was $611.70. Exhibit 7 was a photo of Mr JJ’s vehicle with the damaged mirror. Exhibit 8 was a photograph of SH’s vehicle with the spray paint on it.
  19. [28]
    The prosecutor submitted that there were 14 offences and the conduct continued over about three months. The prosecutor submitted it was harassing behaviour towards the complainant SH and the complainant JJ. The prosecutor heavily relied on the victim impact statements. The complainant spent money on airfares to relocate interstate.
  20. [29]
    The prosecutor relied on a comparable decision of Day v Commissioner of Police.[5] It was submitted by the prosecutor that a period of imprisonment was within the range and the court could impose a prison probation order which would provide deterrence and supervision.

Defence submissions in the Magistrates Court

  1. [30]
    The defendant was represented by counsel and solicitors. Detailed written submissions were relied on.
  2. [31]
    The defence indicated that the appellant would pay compensation concerning the smashed side mirror. The defence material was tendered and marked as Exhibit 9. A reference from Rodney Donald who worked with the appellant in Papua New Guinea spoke well of him. There was a reference from John O’Brien who had also worked with the appellant in Papua New Guinea and spoke well of him. A further reference from John Menegon who worked with the appellant in Papua New Guinea spoke well of him as well.
  3. [32]
    Exhibit 10 was a psychological report of Mr Nelson. This report disclosed that the appellant was born in PNG and came to Australia as a young child finishing school at the Southport State High School. There was physical and psychological harm from his father. The appellant had been married and separated in 2007. He met the complainant SH in 2015 and their relationship developed. One of the causes of the breakdown of his relationship was his working in PNG on a four week rotational roster. Also, he had undergone treatment for stomach cancer. The dog was purchased in early 2017 and there was dispute over the dog. In 2018, the appellant was working in PNG and was only 70 kilometres away from the epicentre of a 7.5 Richter earthquake that killed several people and displaced thousands. He was distressed of this event. The psychologist noted that the motivation for the offending behaviour was the desire to be reunited with the dog and the effect of alcohol. The psychologist considered that he needed time to improve the appellant’s mental health and he should engage in therapy concerning the use of alcohol, attend a formal course addressing relationships and domestic violence.
  4. [33]
    Defence counsel submitted that specific and general deterrence were not crucial in light of the psychological report. The appellant was 49 years old, successful when engaged well in society. He had negligible criminal history. Because of the offending, he had now been in jail twice. Three weeks in custody had been specific deterrence for him.
  5. [34]
    On October 2019, he engaged in a mental health care plan before the offending but there was increasing difficulty because of the severe emotional distress from the natural disaster in PNG. He had shown some insight. He was working from home and was due to return to PNG in December.
  6. [35]
    Defence counsel submitted it would be appropriate to deal with the matter by not declaring the time in custody and to impose either a bond or probation under the Penalties and Sentences Act. It was submitted the appellant had taken proactive steps concerning his mental health.
  7. [36]
    With respect to the recording of a conviction, it was submitted that the conduct represented a low point of the appellant’s life. It was also submitted that there would be some impact on his employment in that his client had to obtain a business visa each time to go to PNG. There would be some effect if a conviction was recorded.
  8. [37]
    The defence also submitted the appellant had a degenerative back condition caused from a motorcycle accident and required treatment for this. There were also tumours in the stomach as referred to on the psychological report. After obtaining instructions, the appellant consented to a five year domestic violence order.

Magistrate’s decision

  1. [38]
    The Magistrate noted the plea of guilty. She took into account the nature and seriousness of the offences noting the breaches of orders. Her Honour referred to the facts of the offences. She correctly noted that intoxication did not excuse the offences. She noted the virtual absence of previous convictions. Her Honour took into account the victim impact statements. The offer of compensation was specifically mentioned. The psychological report was specifically taken into account. Her Honour took into account the purposes of sentence including deterrence.
  2. [39]
    Ultimately her Honour noted that while a suspended sentence (in whole or part) was within the range, a probation order was a just order in all of the circumstances. This would assist in rehabilitation.
  3. [40]
    As to the recording of the conviction, her Honour said:

“The further issue then is the recording of a conviction. It may have been the case that if there was just one or two offences that I would have been inclined to not record a conviction and I accept there may be an impact on your assessment of suitability for visas as a result of recordings of convictions… but given the prolonged nature of the behaviour over four months and the more serious examples of what happened on the 27th of April and the 17th of May and the continuation after your release from custody I am going to record convictions in the absence of specific information that would preclude employment in light of as I said the overall accumulated seriousness of the behaviour.”[6]

Submissions as to new evidence

  1. [41]
    The appellant seeks to rely on fresh evidence in this case. Section 223(2) of the JA allows the court to give leave to adduce fresh additional or substituted evidence if special grounds are found to justify such leave.
  2. [42]
    Michael Jones Finch, a solicitor, has prepared an affidavit dated 3 November 2020. In the affidavit it notes that since 8 September 2020 the defence has been able to obtain further material to adduce at the hearing of the appeal. It is alleged the explanation for not having this material was because of difficulties in sourcing this material from his place of employment in PNG. The material includes a work permit guideline published by the Department of Labour and Industrial Relations, his employment contract with Oil Search including a code of conduct; the Oil Search policy mobility procedure rotational expatriate PNG and the Oil Search policy responding to domestic violence.
  3. [43]
    The appellant submits that the court should admit the evidence arguing that there would be a miscarriage of justice if it was not admitted. The further evidence, it is submitted, discloses that the recording of a conviction will have a significant effect on his employment in PNG.
  4. [44]
    It is submitted, that because of the urgency and the sentence being resolved, the material was not obtained for the sentence below.
  5. [45]
    There is a further affidavit sought to be relied on. The affidavit of Craig Burnie, a colleague of the appellant states that “companies who employ international fly in fly out workers want such workers to have a clear police record.” He also alleges that “Developing countries have become a lot more strict in issuing working visas.” He also says he has no personal experience of what happens when one attempts to enter PNG after ticking “yes” to the criminal convictions question. He refers to the requirement to obtain a Maritime Security Identification Card and the effect of domestic violence convictions.    
  6. [46]
    The Crown, on the other hand, submits that there is no dispute as to the credibility of this material. The point in issue is whether the evidence could have been produced and whether it would have led to a different outcome if it had been produced. It is submitted the appellant has failed to show why the material was not obtained. It was readily accessible but in any event it is submitted that the appellant has not shown that a different outcome would have resulted if the material had been obtained.

Discussion

  1. [47]
    In determining whether fresh evidence should be admitted, a number of questions must be asked:
    1. (a)
      Whether the evidence relied on could, with reasonable diligence, have been produced by the appellant at trial;
    2. (b)
      Whether the evidence is apparently credible; and
    3. (c)
      Whether the evidence, if believed, might reasonably have led the tribunal of fact to a different verdict.[7]
  2. [48]
    In Director of Public Prosecutions v TAL,[8] it was said:

“To permit a retrial because more evidence has emerged when it could reasonably have been obtained for the first trial would offend the principle of finality which requires each party to put forward their best case once and for all. Second, there is the requirement that the new evidence could have led (with a defined level of probability) to a different result. This requirement ensures that due deference is given to a jury’s verdict as a true verdict even in hindsight. The satisfaction of these two requirements demonstrates that there has been a miscarriage of justice.”

  1. [49]
    The Gallagher principles were applied to s 222 appeals by the Court of Appeal in Pavlovic v Commissioner of Police[9]. At [31] it was noted that a trial cannot be regarded as a “dress rehearsal” for an appeal.
  2. [50]
    It is my respectful view that the appellant has failed to establish sufficient reasons why the material was not produced in the first instance. The sentence could have been adjourned to obtain the material. The PNG legislation was readily obtainable on the internet.  The appellant was represented by counsel who put in detailed written submissions and had prepared the case well. There was no reason why the legislation from PNG could not been obtained for the sentence before the Magistrate. I am not satisfied that the first limb has been established by the appellant.
  3. [51]
    In any event, I am also not satisfied that a different verdict would have resulted if the material had been obtained. The fact is, submissions were made by the appellant that the recording of a conviction may have had a definite effect on his ability to work in PNG. This submission was made in oral submissions and also in the written submissions.
  4. [52]
    The material I have been provided does not advance the case much further than was argued below.
  5. [53]
    The company policies do not require the appellant to disclose the convictions. Also, there is no automatic termination of employment.
  6. [54]
    As to the affidavit of Mr Burnie, much of this contains unsupported hearsay evidence, inadmissible opinion evidence and conjecture. I do not consider the affidavit advances the case much at all. I do accept that there needs to be a disclosure of a conviction on the incoming passenger card but there is no evidence from PNG authorities as to the effect of this.   
  7. [55]
    Also, I do not consider the Magistrate fettered her discretion here. The Magistrate considered not only the number of convictions but their nature. She specially referred to the nature of the offences and noted that if there had been just one or two offences, she would have been minded not to record a conviction but given the prolonged nature of behaviour over four months and the more serious examples of what happened on 27 April and 17 May and the continuation after the release from custody, the overall accumulated seriousness of the behaviour led to the recording of convictions.
  8. [56]
    Having independently reheard this matter, I agree with the Magistrate here.
  9. [57]
    When one considers s 12 of the Penalties and Sentences Act, the seriousness of the offences in combination outweighed any economic effect or wellbeing effect of the recording of convictions.
  10. [58]
    I do not consider there was manifest excess here. When one has regard to the comparable decisions relied on including Day v Commissioner of Police,[10] Taylor v Queensland Police Service,[11] MH v Queensland Police Service,[12] PFM v Queensland Police Service,[13] and Queensland Police Service v JSB,[14] the sentences imposed here was well within the range.
  11. [59]
    The fact is, despite being given many chances, the appellant continued to “thumb his nose” at the bail conditions and the domestic violence order. The domestic violence allegations were an aggravating feature under s 9(10A) of the Penalties and Sentences Act 1991 (Qld). There were other factors under s 9(2) of the Penalties and Sentences Act which aggravated the matter - the emotional harm done to the victims and the damage, loss and injury caused.
  12. [60]
    As her Honour noted voluntary intoxication was no excuse.[15]
  13. [61]
    The pleas of guilty were sufficiently taken into account by the imposition of a probation order. Indeed it was moderate order bearing in mind that in my view a prison term (albeit suspended after time served) was within the range.

Conclusion 

  1. [62]
    In all of the circumstances, I am not satisfied that the decision was the result of legal factual or discretionary error, nor was the sentence manifestly excessive.
  2. [63]
    I therefore make the following orders:
  1. The appeal is dismissed.
  2. The orders made in the Magistrates Court in this matter are confirmed.

 

Footnotes

[1][2017] QCA 132.

[2]Parsons v Raby [2007] QCA 98 at [23].

[3][2009] 2 Qd R 489; [2009] QCA 84 at [4].

[4]R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28] and Hili v R (2010) 242 CLR 520; [2010] HCA 45 at [59].

[5][2018] QDC 3.

[6]Reasons page 5.10-20.

[7]R v Maniadis [1997] 1 Qd R 593 at page 596; Gallagher v R (1986) 160 CLR 392; [1986] HCA 26 at page 399.

[8][2019] QCA 279; (2019) 3 QR 1; 280 A Crim R 160 at [24].

[9][2007] 1 Qd R 344; [2006] QCA 134.

[10][2018] QDC 3.

[11][2015] QDC 75.

[12][2015] QDC 124.

[13][2017] QDC 210.

[14][2018] QDC 120.

[15]Section 9(9A) of the Penalties and Sentences Act 1991 (Qld).

Close

Editorial Notes

  • Published Case Name:

    MB v Queensland Police Service

  • Shortened Case Name:

    MB v Queensland Police Service

  • MNC:

    [2020] QDC 325

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    18 Dec 2020

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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