D'Arcy v Commissioner of Police
[2007] QDC 53
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- D'Arcy v Commissioner of Police[2007] QDC 53
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D'Arcy v Commissioner of Police[2007] QDC 53
D'Arcy v Commissioner of Police[2007] QDC 53
DISTRICT COURT OF QUEENSLAND
CITATION: | D’Arcy v Commissioner of Police [2007] QDC 053 |
PARTIES: | KRISTOFER D’ARCY and COMMISSIONER OF POLICE |
FILE NO/S: | BD1590 of 2006 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 29 March 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 January 2007 |
JUDGE: | McLauchlan QC DCJ |
ORDER: | Appeal Dismissed |
CATCHWORDS: | S. 222 Justices Act 1886 (Qld); Appeal against sentence; Whether necessary to show error on part of sentencing court; Whether sentence imposed by magistrate manifestly excessive. Aldrich v Bolton & Anor [2001] 2 Qd R 235, Considered Cranssen v The King [1936] 55 CLR 509, Considered Builders Licensing Board v Sperway Constructions Pty Ltd and Anor [1976] 135 CLR 616, Distinguished Fox v Percy (2003) 214 CLR 118, Considered Stevenson v Yasso [2006] QCA 40, Distinguished Budget Nursery Pty Ltd v Commissioner of Taxation (1989) 42A Crim R 81, Distinguished Coal and Allied Operations Pty Ltd v AIRC (2000) 74 ALJR 1348, Followed House v The King (1936) 55 CLR 499, Followed Donlan v Appleton, ex parte Appleton [1989] 2 Qd R 274, Followed |
COUNSEL: | Mr Hanna for the Appellant Mr Hungerford-Symes for the Respondent |
SOLICITORS: | Director of Public Prosecutions for the Respondent |
REASONS FOR JUDGMENT
- [1]This is an appeal against sentence under s. 222 of the Justices Act 1886. S. 222(2)(c) provides that if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under that section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.
- [2]Section 223 provides, in effect, that the appeal under s. 222 is by way of rehearing on the original evidence given before the justices, unless leave is given to adduce fresh, additional or substituted evidence. In this case, no such leave was sought, and the appeal is thus a rehearing on the original evidence.
- [3]It was submitted that on a s. 222 appeal against sentence it is unnecessary for the appellant to establish error in the judgment appealed from, and that the court is entitled and bound to exercise the discretion afresh. This result is said to flow from the nature of the appeal, in particular the provisions of the legislation establishing the right of appeal.
- [4]In support of this submission I was referred to a number of authorities. In Aldrich v Bolton & Anor [2001] 2 Qd R 235, the Court of Appeal distinguished the position of an appeal under the Misconduct Tribunals Act 1997 (Qld), from that of a sentence appeal against the exercise of a judicial discretion, where the principles of House and Cranssen apply, and where “the essential issue is often compendiously reduced to whether the sentence is manifestly excessive”. (Cranssen v The King [1936] 55 CLR 509). It was held in that case that what was contemplated by the legislation, in the context of which a right of appeal was provided, was a rehearing de novo.
- [5]Other authorities, such as Builders Licensing Board v Sperway Constructions Pty Ltd and Anor [1976] 135 CLR 616 likewise deal with appeals from a body which is not a court exercising a judicial discretion. Budget Nursery Pty Ltd v Commissioner of Taxation (1989) 42A Crim R 81, was a case concerning an appeal to the District Court of New South Wales pursuant to the Justices Act 1902 (NSW). The ratio of the decision is that such an appeal is a hearing completely de novo, so that in determining an appeal against penalty, the District Court Judge must in every case proceed to consider for himself in the exercise of his own discretion what penalty should be imposed. An appeal under the Queensland Act is a rehearing generally upon the original material, and not a hearing “completely de novo”. The case is accordingly distinguishable.
- [6]Sperway was a case in which the appeal to a District Court from the Builders Licensing Board was to be “dealt with by way of rehearing”. The High Court, by majority held that in the context of the applicable legislation the appeal was in the nature of a hearing de novo, while Jacobs J considered that the District Court was entitled to decide for itself how a “rehearing” should be conducted, and in the circumstances it had been open to the judge to embark upon a hearing de novo.
- [7]It was submitted that Fox v Percy (2003) 214 CLR 118 held that “an appeal by rehearing involves a re-exercise of the discretion, in which the appellate court is obliged to give the judgment which in its opinion ought to have been given at first instance”. I do not understand that to be the effect of the decision. Indeed, at para 22 of the majority judgment, their Honours stated –
“The ‘rehearing’ does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits”
- [8]Moreover, the decision makes it clear that the disputed finding of fact in the District Court of New South Wales could only be set aside in the Supreme Court if the appellate court could properly be satisfied that the trial court had fallen into error in making the finding.
- [9]The law is summarised by the majority in Coal and Allied Operations Pty Ltd v AIRC (2000) 74 ALJR 1348. Paragraphs 12 to 14 of the judgment read as follows:-
“12. It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this Court under s 73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.
13. If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.
14. Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.”
(my italics)
- [10]If fresh evidence is admitted in an appeal by way of rehearing, then that appeal will become a hearing de novo, with the result that the appellate tribunal will be obliged to find the facts and exercise any discretion independently of the original tribunal: Budget Nursery Pty Ltd v Commissioner of Taxation (supra); Aldrich v Boulton and Anor (supra).
- [11]In Coal it was further said, at para 21, in relation to discretionary decisions-
“21. Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
‘If the judge acts upon a wrong principle, if he allows extraneous 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.’”
- [12]In the present case, the appeal being against the exercise of the sentencing discretion reposed in the magistrate, the matter is governed by the principle enunciated in House v The King (1936) 55 CLR 499, and it is necessary for the appellant to demonstrate error in the exercise of that discretion. This is the position where the re-hearing is not a hearing “de novo” “afresh” or “anew”. A rehearing which falls into the category indicated by those descriptions will require the discretion to be re-exercised without any demonstration of error on the part of the original decision-maker.
- [13]Stevenson v Yasso [2006] QCA 40 was put forward on behalf of the appellant as accurately summarising the law in relation to appeals against sentences under s. 222 of the Justices Act, in a passage in the judgment of the President. However that case was not concerned with the exercise of a judicial discretion, nor was it an appeal against sentence.
- [14]Quite apart from the fact that the present appeal is not concerned with an appeal from or to an administrative body, none of the matters referred to in Coal, or in Re Coldham; ex parte Brideson [No 2] (1990) 170 CLR 267, or in Aldrich v Boulton (supra) (which might support the view that the legislation had in mind a hearing de novo, in which all issues had to be determined de novo, including penalty), apply to the relevant provisions of the Justices Act, unless the circumstances are that the appeal proceeds upon fresh evidence, in substitution for, or in addition to, the evidence before the magistrate. Subsection (3) of section 223 provides, in such a circumstance, that if the court gives leave to adduce new evidence the appeal remains by way of rehearing on the original evidence, but is an appeal on the new evidence adduced. It follows that if the new evidence goes to any factual matter that bears upon the exercise of the sentencing discretion, then the discretion will have to be exercised afresh. In my opinion, the provisions of s. 222 (2)(c) say nothing one way or the other, on the question whether the appeal proceeds as a rehearing on the original evidence or as a rehearing de novo.
- [15]It is sufficiently clear, from the authorities to which I have referred, that a successful appeal under s. 222 of the Justices Act, whether it is against conviction or sentence, requires that error be shown on the part of the Magistrates’ Court from which the appeal is brought in the usual case, although if new evidence is adduced in the appeal it may become a full rehearing, or a rehearing de novo.
- [16]The appellant was convicted on 25 May 2006, in the Brisbane Magistrates Court, of driving without a licence disqualified by court order. The offence was committed on 13 December 2005. The appellant pleaded guilty to the charge. The conviction constituted a breach of 2 Intensive Correction Orders imposed by the Petrie Magistrates Court on 27 June 2005 for two earlier offences of disqualified driving committed on 19 March 2005 and 20 April 2005 respectively. There were 2 other Intensive Correction orders also imposed on 27 June 2005, in respect of further offences of disqualified driving committed on 20 January 2005 and 27 January 2005 respectively. The periods of the orders last-mentioned were 1 month and 3 months respectively, so that the offence committed on 13 December 2005 did not constitute a breach of those orders.
- [17]On 25 May 2006 the appellant was sentenced to 6 months imprisonment suspended after 2 months for an operational period of 3 years for the offence committed on 13 December 2005. The appellant was also re-sentenced for the offences committed on 19 March 2005 and 20 April 2005 and the same sentence was imposed with respect to both those matters, the sentences to be served concurrently. The appellant was also disqualified from holding a driving licence for a period of 4 years.
- [18]In sentencing the appellant, the learned magistrate took into account community concerns about driving offences, but in my opinion what he said was not inappropriate or impermissible: see Donlan v Appleton, ex parte Appleton [1989] 2 Qd R 274.
- [19]As the respondent submits, the magistrate took into account the youth of the offender (he was born on 23 July 1985), but balanced that consideration against the need to impose a deterrent penalty in the circumstances of the case. In the course of his reasons he observed –
“I cannot help but look back to your previous driving history, which has been put before me, and I see that on the 27th July 2004 you drove unlicensed. A month later, on the 12th of August ’04 you drove un licensed. Seven days later, on 19th August, you drove unlicensed. On 20th January ’05 you drove disqualified. Seven days later, on the 19th March ’05 you drove disqualified. On the 20th of April 2005, a month later, you drove disqualified.”
- [20]Clearly the magistrate gave particular prominence in his reasons to the fact that the appellant had driven whilst disqualified on 7 occasions within the space of 9 months, and had repeated the offence in December 2005 in contravention of 2 intensive correction orders which had been imposed in respect of the 2 last-mentioned of the earlier offences. In my opinion, he was fully justified in doing so. In view of that history a sentence of actual imprisonment was appropriate, paying due regard to the principle that a sentence of imprisonment should only be imposed as a last resort. The appellant, in my opinion, has demonstrated by his conduct a high degree of contempt for the law.
- [21]It is urged on behalf of the appellant that the magistrate fell into error in re-sentencing the offender with respect to the offences which were the subject of the 2 intensive correction orders which were breached by the offence committed on 13 December 2005. This is because the periods of those orders had been substantially completed when the later offence was committed. However, in my opinion the magistrate committed no error in that respect, having regard to the fact that the offences were the same as the later offence, and to the appalling history of the appellant with respect to offending of that kind. Particularly is this so, since the magistrate made the sentences concurrent with the sentence for the breaching offence. A community based order or a suspended sentence of imprisonment in this case would risk making a mockery of the law.
- [22]I can detect no other error in the exercise of the magistrate’s sentencing discretion. The appeal is accordingly dismissed.