Harrison v Kennedy[1998] QDC 384

CRIMINAL JURISDICTION

JUDGE ROBERTSON

and

IPSWICH

DATE 25/08/98

ORDER

HIS HONOUR: This is an appeal against sentence imposed in the Ipswich Magistrates Court on 21 May 1998 for a breach of section 33 of the Bail Act (1980), as amended.

The defendant was charged as follows:

The charge, as read, is the final version actually dealt with by the learned Magistrate. During the course of the show cause hearing, the form of the charge was amended on three occasions. Upon production of the warrant of apprehension which had been issued under section 28A of the Bail Act, the Magistrate then heard submissions from a solicitor appearing for the appellant and the Police Prosecutor as to the matters set out in section 33(2).

In relation to s33(1), once it is proved beyond a reasonable doubt that (a) a person has failed to surrender into custody in accordance with his undertaking and (b), he is apprehended under a warrant pursuant to section 28 or 28A(1)(a), he commits an offence, unless he satisfies the Court that he had reasonable cause pursuant to s33(2).

The sole ground of appeal set out in notice of appeal is that the sentence imposed was manifestly excessive. The outline of submissions forwarded to the Court in accordance with the practice direction completely misapprehends that the sole ground of appeal is against sentence only.

Much of the outline of submission appears to me to deal with the finding of the Magistrate that the appellant had not satisfied the onus of imposed on him to prove that there was a reasonable cause for his failing to appear in Court on the day alleged or as soon as reasonably practicable thereafter.

The appellant, through his counsel, has sought to convert those submissions into a submission relevant to the sole ground of appeal, e.g. see paragraph 8(c) of the outline of submission, however it seems to me that such a submission goes to the validity of the course adopted by the Magistrate in dealing with the show cause consideration, and does not address the sole ground of appeal.

In compliance with section 33(3A), early in proceedings, the warrant was produced and although the learned Magistrate did not use the express terms of subsection 3A, at page 2, 32-40, he has adequately complied with the statutory requirements and the solicitor appearing for the appellant seems to have clearly understood this. The matters set out in the outline of submissions in paragraph 8(b) are irrelevant to the appeal against sentence, and again challenge the finding of the Magistrate set out at page 6, lines 8-18, that the defendant had failed to satisfy the onus upon him to show cause.

The learned Magistrate had not completed his preliminary findings on the show-cause issue when the appellant interrupted in a contemptible manner, conduct which subsequently led to his conviction and sentence for contempt of Court.

In relation to some of the other grounds set out in the submission, it is not correct that the Magistrate stated that the last time the appellant appeared for sentence for a breach of the Bail Act he was sentenced to six months. It is quite clear from the passage at page 6 referred to above that the Magistrate was then referring to the sentence imposed on 21 December 1994.

It does appear quite clear from the record that the appellant's contempt has led the Magistrate to overlook the need to permit the appellant's solicitor to make submissions on sentence.

Once the finding had been made that the appellant had failed to show cause, it was then necessary to permit the appellant's solicitors to make any further submissons that he wished to make relating to sentence and by failing to give this opportunity, the Magistrate has inadvertently breached the rules of procedural fairness and the sentence imposed must be set aside on that basis alone: Bradshaw v. Beanland, unreported judgment of the Court of Appeal 224 of 1998, judgment delivered on 7 August 1998, and see the cases referred to therein. It is most regrettable that the appellant's solicitor, who was present throughout the proceedings, including the resumed hearing dealing with the contempt, did not bring this matter to the attention of the learned Magistrate.

There is also a ground in the submissions that the Magistrate did not state his reasons for imposing a term of imprisonment contrary to section 10(1)(a) of the Penalties and Sentences Act. At page 6, presumably after the appellant had been removed for misconduct, the Magistrate said:

Later when the appellant was present and after he had apologised and been dealt with for contempt, the Magistrate said at page 2 of his decision:

The reasons are certainly short, but I can detect no error on that basis. The final matter not raised as a ground of appeal and not fully argued concerns the application of the principle in The Queen v. Morrison, unreported judgment of the Court of Appeal number 162 of 1998, judgment delivered 26 June 1998. This judgment was delivered after the sentence imposed by the learned Magistrate. Morrison is an important case, as it brings Queensland law into line with the rest of Australia relating to onus of proof of disputed facts on sentence, and to that extent, overrules the principle in The Queen v. Jobson (1989) 2 QdR 464.

Williams J, (with whom the President and Davies JA agreed) in the leading judgment held that disputed factual issues that would be likely to result in a heavier sentence to the accused should be proved beyond a reasonable doubt. His Honour also felt that where the factual issue proved in favour to the accused, the Judge need only be satisfied to the standard of the balance of probabilities.

It seems to me that the principle in this case has most important implications for the practices and procedures both in this Court and certainly in the Magistrates Court, particularly when dealing with show-cause situations under section 33 of the Bail Act. As I say, the matter has not been fully argued and it was only raised by me during the course of submissions, but a superficial view would suggest that a Magistrate hearing a show cause submission under section 33(2) would be required to make the finding of failure to show cause on the balance of probabilities. If then the factual circumstances as disclosed in the material would be such as to involve the principle in Morrison, any disputed facts would then have to be determined by the Magistrate beyond a reasonable doubt.

It does appear that this could have important implications to the way in which these proceedings are conducted in the Magistrates Court and it may well be necessary for Magistrates to hear evidence on oath or affirmation in this regard. I have asked the learned Crown Prosecutor who appears for the respondent to make available to the Director of Public Prosecutions a copy of this judgment, and I will direct the Registrar of the Court to forward a copy of my reasons to Mr Deer, the Chief Stipendiary Magistrate.

I will allow the appellant to add a ground of appeal to his notice of appeal, namely, “The appellant was denied procedural fairness.” I will allow the appeal on that basis and I will set aside the sentence imposed.

It seems to me that Mr Gordon is in a much better position than I am to determine the appropriate range of penalties for this offence. Magistrates have much greater experience than Judges at my level in sentencing persons for breaches of s33, and no attempt was made to place before me any material dealing with the range for this offence.

In those circumstances, the appropriate course, in my view, is to follow the approach taken by the Court of Appeal in The Queen v. T (1995) 2 QdR 192 and to remit the matter of sentence to Mr Gordon to determine according to law, and I so order.

I have been informed that the appellant is now in custody serving other sentences, and therefore no application for bail is made in relation to this matter. He will be remanded in custody.

I order that he appear at 9 a.m. on 28 August 1998 before Mr Gordon SM, in the Ipswich Magistrates Court for mention.