Filippini v Morrison[2008] QDC 5

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   This is an appeal under s. 222 of the Justices Act 1886 from a decision of a Magistrate given on the 16^th March 2007 at Brisbane. A complaint and summons was made on behalf of the Queensland Nursing Council against the appellant in respect of certain breaches of the Nursing Act 1992 (‘the Act’) while he was employed with the Defence Department at the Gallipoli Barracks at Enoggera.

2. [2]
   On the 16^th March 2007, the appellant freely and voluntarily pleaded guilty to three charges only, the subject of that complaint, namely Counts 3, 4 and 7. Counts 1, 5 and 6 had been disposed of by the Magistrate at an earlier time by judgment given in favour of the Appellant. Count 2 was subsequently withdrawn. Counts 3 and 4 involved the Appellant advertising on the 21 March 2005 and 4^th July 2005 respectively that he was a nurse contrary to s. 143(1)(d) of the Act. Count 7 involved the appellant attempting to procure himself to be registered as a nurse by making a false declaration contrary to s. 143(1)(b) of the Act on the 7^th July 2005. The maximum penalty applicable at the relevant time in respect to each of those counts was $7,500 or 6 months imprisonment.

3. [3]
   The Magistrate ordered the Appellant to pay the following penalties:

• $5,200 (in total) with 12 months to pay, in default 90 days imprisonment in respect of Counts 3 and 4;
• $4,000 with 18 months to pay, in default 80 days imprisonment in respect of Count 7.
• Convictions were recorded on each count.
• The Magistrate also ordered that the appellant pay court costs, summons and witness fees of $242.40 and professional costs of $1000 allowing 12 months to pay.

4. [4]
   The Notice of Appeal filed on 16^th April 2007 sets the grounds of appeal against conviction in respect of Counts 3 and 4 and the grounds of appeal against sentence in respect of Count 7 only. However, leave was granted on the hearing of this appeal to the Appellant in order that he could amend his Notice of Appeal to include an appeal against the sentence also in respect of Counts 3 and 4.

Appeal against CONVICTION in respect of Counts 3 and 4.

Preliminary point

5. [5]
   A preliminary point was raised on the appeal against conviction in respect of Counts 3 and 4 of the complaint and summons. The Appellant on the hearing of this appeal seeks to go behind his plea of guilty to these charges on the basis that the complaint, as it relates to these counts, does not disclose an offence in respect to either count.

6. [6]
   The difficulty for the Appellant with respect to this argument is that s. 222(2)(c) of the Justices Act 1886 provides as follows:

‘If a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate’.

7. [7]
   This section has been considered by the Queensland Court of Appeal in Long v Spivey [2004] QCA 142, Phillips v Spencer [2005] QCA 317 and Dore v Penny [2005] QCA 150. Those cases, in my view, are authority for the proposition that there is no right of appeal under s. 222 of the Justices Act 1886 from a decision of a Magistrate to the District Court against a conviction which has occurred upon a free and voluntary plea of guilty. (See also Guy v McLoughlin and Anor [2006] QDC 017). Accordingly, because the appellant did in fact plead guilty both freely and voluntarily to the charges before the Magistrate, I do not consider that I have the jurisdiction on the hearing of this appeal to determine anything other than the question of whether the fine, penalty, forfeiture or punishment that was imposed in respect of those counts was excessive or inadequate. Counsel for the Appellant relied certain case authorities in support of his contention that this Court does have the necessary jurisdiction to hear this matter: R v GV [2006] QCA 394; O'Donnell v Gardner (1902) 27 VLR 718 and Kimmorley v Atherton (1971) QJPR 67; Meissner v R (1995) 184 CLR 132 at 157 per Dawson J. I am unable to accept that submission. Those cases, in my view, simply confirm that the Appellant may well have some other remedy available to him before another court in respect of the matter which he wishes to raise here.

8. [8]
   As such, the appeal against conviction in respect of Counts 3 and 4 before this Court must fail.

Appeal against SENTENCE in respect of Counts 3, 4 and 7.

New evidence sought to be tendered.

9. [9]
   The Appellant on the hearing of this appeal sought to tender new evidence with leave (affidavit of Jason Flippini filed 1 August 2007).

10. [10]
    In short, that evidence is in the form of a sworn affidavit which sets out the Appellant’s current financial position and the impact which the convictions recorded by the Magistrate on the 16^th March 2007 have had upon him, namely that his employment with the Defence Force was subsequently terminated effective from the 29^th June 2007. The appellant had been a member of the Australian Regular Army since the 10^th June 1997. He was subsequently commissioned to the rank of Lieutenant on the 23^rd May 2005 however he had been working, since about late February 2005, as an Officer and a member of the Australian Regular Army to the 2^nd Health Support Battalion, Gallipoli Barracks, Enoggera under the supervision of the Nurse Unit Manager until he completed his nursing studies and obtained his Bachelor of Nursing degree from the Australian Catholic University. The appellant had commenced in 2002, through the army’s long term schooling programme, a Bachelor of Nursing degree with that University which he was due to complete at the end of 2004. Upon successful completion of that course, he was then to begin placement in a civilian institution however was shortly removed from there after it was discovered that he had failed two subjects in his last semester 2004 studies. It was at that point that he then was placed under supervision at the 2^nd Health Support Battalion in order that he could complete those studies.

11. [11]
    This court may give leave to adduce new evidence if it is satisfied that there are special grounds for giving such leave: s. 223(2) Justices Act 1886.

12. [12]
    A helpful summary of the relevant considerations which are to be considered when determining whether special grounds exist are set out in Pavlovic v The Commissioner of Police [2006] QCA 134. Counsel for the Appellant submitted that the principles enunciated in R v Maniadis [1997] 1 Qd R 593 are also of some relevance in respect of any appeal against sentence before this Court, particularly if it can be shown that a miscarriage of justice may result if the new evidence sought to be tendered is not received. Even having regard to the considerations alone set out in Pavlovic, I have come to the view that the new evidence sought to be tendered by leave by the Appellant should be received by this Court. While I accept that an application to tender further evidence on a sentence appeal should never be lightly granted, I am satisfied that the ‘tests’ referred to in Pavlovic have been satisfied in this case.

13. [13]
    I am satisfied that had the Magistrate been aware that the ‘potential’ risk for loss of employment with the Defence Force was indeed a very real one, rather than simply a ‘possibility only’, then the learned Magistrate would have imposed a different penalty in all the circumstances.

14. [14]
    In arriving at this conclusion, I have taken into account that both the transcript of the proceedings and the Magistrate’s reasons for her decision makes it clear that she was concerned that the recording of a conviction might well impact upon the Appellant’s employment with the Defence Force and as a consequence, upon his capacity to pay any fines imposed by her as a penalty. However, it is also clear (understandably, in light of the submissions that were made to her upon sentence), that she considered that any such impact only fell into the category of being a ‘possibility’ only (the extent of which was unknown), rather than a very real chance that the appellant would lose his employment (and as a consequence, his primary source of income) with the Defence Force if convictions were in fact recorded. Indeed, it is clear that the learned Magistrate considered that the Appellant had, at least at the time of sentence, the capacity (albeit with some hardship), to pay the fines that were ultimately imposed in light of the fact that he was still in employment with the Defence Force.

15. [15]
    As such, I consider the new evidence sought to be tendered should be received on the hearing of this appeal. It follows then that this matter is to be determined by way of rehearing on the original evidence and on the new evidence adduced (s. 222(3)), with the end result being that this court is obliged to exercise its’ own discretion without the need to demonstrate any error on the part of the original decision maker: D’Arcy  v Commissioner of Police [2007] QDC 053.

16. [16]
    The affidavit of the Appellant confirms that as a result of the convictions being recorded by the Magistrate, the Appellant subsequently lost his primary source of income after he was dismissed from his employment. His current income now is $300 per week. He continues to support five children though does receive some limited financial assistance from his wife Nicole. His expenses however have remained the same. Consequently, his financial capacity now to pay any fine which had been previously imposed by the Magistrate has been significantly reduced. The Appellant also says that the recording of a conviction will impact upon his social and economic wellbeing or chances of finding new employment. He wishes to seek employment in the future with the Queensland Ambulance Service. The Appellant had no previous criminal history at the relevant time and has not offended since the last offence was committed namely Count 7, 4^th July 2005. His plea of guilty to the subject charges must also be taken into account.

17. [17]
    The factual matrix with respect to the Appellant’s offending behaviour as it relates to Counts 3, 4 and 7 are set out at p 10 to p 12 of the Transcript of the Proceedings of the lower court. Those facts, while revealing the degree of culpability and the ongoing deception implored by the Appellant, did not result in any actual harm occurring to others, particularly during the time he was rostered on to work at the 2^nd Health Support Battalion as a registered nurse from on or about 23^rd March 2005.  

18. [18]
    Having regard to the maximum penalty applicable to each of the relevant counts to which he has pleaded guilty, the nature of the Appellant’s offending conduct which occurred over a time, the fact that he had in fact completed successfully nearly half of the nursing subjects prior to the deception taking place, taking into account the principles of both general and personal deterrence and balancing those factors against the Appellant’s personal circumstances, namely his current financial circumstances, personal antecedents and his timely plea of guilty, the appropriate penalty in my view in respect of all three counts should be in the order of $4000.

19. [19]
    In arriving at this conclusion, I consider that although the Appellant’s offending behaviour can not be said to be trivial, it did not in fact result in any actual harm occurring to others. It must also be remembered that the Appellant’s pleas of guilty were in respect of Counts 3, 4 and 7 only and that the far more serious offences which were originally charged in the Complaint and Summons (involving offences relating to Division 5 Part 3A of the Act and the repealed s. 142, counts 1, 5 and 6) were not before the Magistrate for the purpose of sentencing.

20. [20]
    I have also taken into account when determining penalty, all of the case authorities placed before the Magistrate (in Schedule form) which were of some assistance in that it demonstrates the type of penalties which have been imposed in cases involving similar offending and in cases involving more serious offending such as practising nursing when not authorised to do so. It must be said however that each case must ultimately be decided upon its own particular facts and any relevant circumstances.

21. [21]
    Having regard to s. 49 Penalties and Sentences Act 1992, I consider it appropriate in this case that a single fine for all three offences ought to be imposed, having regard to the nature of the offending behaviour and the period over which that behaviour has occurred.

22. [22]
    In considering whether a conviction should be recorded or not, I have also considered the matters set out in s. 12 of the Penalties and Sentences Act 1992.

23. [23]
    Counsel for the appellant submits that no conviction should be recorded because of the effect which it shall have on the Appellant’s social and economic well being and his chances of finding future employment. Counsel for the Respondent submits that convictions should be recorded in light of the serious nature of the offending behaviour. While I accept that the offending behaviour of the Appellant cannot be described as trivial, particularly in light of the fact that he prepared to continue with the deception (Count 7) even after he had already been approached twice by his supervisor (Counts 3 and 4), I am still of the view that if convictions are recorded, it will have an effect on his social and economic wellbeing and any chance of finding future employment. The Appellant has already lost his long term employment which he had with the Defence Force as a result of his offending behaviour. He has as a consequence suffered financial loss which has caused him undoubtedly, hardship.

24. [24]
    Thus, I am of the view that convictions ought not to be recorded in all the circumstances of this particular case.

25. [25]
    If it is found that the acceptance of new evidence upon the hearing of this appeal by me is considered to have been wrong, I intend to now, for that purpose, briefly deal with the question of whether this Court is satisfied that the sentence imposed by the Magistrate at 1^st instance was manifestly excessive in any event.

26. [26]
    This appeal, being against the exercise of a sentencing discretion by a Magistrate, means that this matter is governed by the principles enunciated in House v R (1936) 55 CLR 499. It therefore is necessary for the Appellant to demonstrate an error in the exercise of that discretion by the learned Magistrate.

27. [27]
    Counsel for the Appellant submitted that the case of Stevenson v Yasso [2006] QCA 40 is relevant which respect to appeals against sentence under s. 222 Justices Act 1886. As observed however by His Honour Judge McLauchlan in D’Arcy at paragraph 13, that case was not concerned with the exercise of a judicial discretion per se, nor was it an appeal against sentence. Accordingly, I am not persuaded as such that that case is therefore relevant. I have however formed the view, having regard to all of the material which was available to the Magistrate at 1^st instance, that the Magistrate did fall into error when exercising her judicial discretion upon sentence based on the material which she had before her.

28. [28]
    In my respectful view, the learned Magistrate placed too much emphasis on what she considered was the serious nature and circumstances surrounding the Appellant’s offending behaviour and did not, in my respectful view, place sufficient weight on the fact that even though his offending could not be regarded as trivial, he had only pleaded guilty to offences the subject of s. 143 of the Act and not to more serious offences that were available (which had been initially charged). Nor did the learned Magistrate place sufficient weight upon the fact that no actual harm resulted to others as a consequence of the Appellant’s offending behaviour.

29. [29]
    I also respectfully consider that the Magistrate did not place sufficient weight on the Appellant’s personal circumstances, namely that he was a man who had no criminal history who was of good character, the fact that he had completed nearly half of the nursing subjects successfully prior to the deception commencing and his plea of guilty. Nor do I consider that the learned Magistrate placed sufficient weight on the appellant’s true ability to pay the fines that were ultimately imposed, particularly having regard to the very real risk that existed, namely that it was more likely than not that if convictions were recorded, then in all probability, the Appellant would be terminated from his employment with the Defence Force and would in turn lose his primary source of income.

30. [30]
    For those reasons, I consider the appeal against sentence in respect of Counts 3, 4 and 7 should be granted and the appeal allowed only to the extent of varying the amount of fines imposed by substituting the following:

In respect of Counts 3, 4 and 7, a single fine is imposed in respect of all three offences.

The Appellant is fined $4000. I consider this amount adequately reflects the relevant principles of sentencing of general and personal deterrence, denunciation and rehabilitation and in particular, recognises the degree of deception implored by the Appellant at the relevant time.

No conviction is recorded. I allow 18 months to pay.

The costs ordered by the Magistrate at 1^st instance shall remain payable by the Appellant within the time allowed.

Costs

31. [31]
    I invite the parties to make submissions in writing in respect of costs within 28 days unless the parties otherwise reach an agreement as to costs having regard to Schedule 2, Part 1 s. 4 of the Justices Regulations 2004.