Shepherd v The Queensland Police Service
[2011] QDC 303
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- Unreported Judgment
- Shepherd v The Queensland Police Service[2011] QDC 303
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Shepherd v The Queensland Police Service[2011] QDC 303
Shepherd v The Queensland Police Service[2011] QDC 303
DISTRICT COURT OF QUEENSLAND
CITATION: | Shepherd v The Queensland Police Service [2011] QDC 303 |
PARTIES: | Johnathon Paul Shepherd (Appellant) -v- Queensland Police Service (Respondent) |
FILE NO/S: | D543/11 |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Townsville |
DELIVERED ON: | 9 December 2011 |
DELIVERED AT: | Townsville |
HEARING DATE: | 2 December 2011 |
JUDGE: | Baulch SC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – PROCEDURE – MATTERS CONNECTED WITH CONDUCT OF DEFENCE – CONSENT BY ACCUSED TO IRREGULARITY IN PROCEEDINGS Where a factual dispute arose on sentence – where the Appellant was unrepresented – procedure to be adopted – whether an adjournment should have been offered to the Appellant to obtain legal representation |
COUNSEL: | G Lynham for the Appellant B Bray for the Respondent |
SOLICITORS: | Purcell Taylor for the Appellant Office of the Director of Public Prosecutions for the Respondent |
- [1]Jonathon Shepherd was sentenced to imprisonment in the Magistrates Court at Townsville on 26 August 2011.
- [2]Mr Shepherd was self-represented. He appeared on a charge of Assault Occasioning Bodily Harm and a further charge of Going Armed so as to Cause Fear, both offences alleged to have occurred during a domestic disturbance involving his neighbours.
- [3]It emerged during the hearing that Mr Shepherd disputed the prosecution allegation in material ways. He asserted that the victim was the aggressor initially and while acknowledging that his response was one which was disproportionate to the victim's actions, said that he had never set out to be involved in any dispute.
- [4]There then followed an exchange in which the magistrate:
- sought further information from the prosecution;
- declined the prosecutor's offer to inspect further statements the prosecutor had in his possession;
- noted Mr Shepherd's assertion that he also had some statements;
- proceeded to announce a factual basis upon which he would proceed;
- obtained the consent of Mr Shepherd to his proceeding in that way.
- [5]I am conscious that there is a heavy workload facing magistrates everyday and that technical failings in procedure or formality should not be used to overturn what are otherwise arguably appropriate decisions.
- [6]The situation here, however, cannot be allowed to stand.
- [7]When faced with a dispute as to factual matters which will have a significant bearing as to what it is appropriate to do in respect of sentence, there is no alternative but that the Court embark upon a fact finding exercise in a formal rather than an informal way.
- [8]This is particularly necessary where an unrepresented person appears. It can be expected that such a person would not be familiar with the way in which fact finding exercises are usually conducted in the Courts in this country and would not know that he was giving up a right which might be of some significance when he is asked to agree to the adoption of a certain factual situation.
- [9]In this case, it is particularly clear from the transcript that Mr Shepherd was disputing rather more about the facts than was represented by the concession which the magistrate ultimately invited him to accept.
- [10]The procedure adopted was entirely inappropriate and the sentencing discretion thereby clearly miscarried.
- [11]On a plea of guilty where there are significant differences between the circumstances concerning a commission of the offence is placed before the Court by the prosecution on the one hand and the defence on the other and no attempt is made to resolve the matter by evidence, it is accepted that in the absence of special circumstances, that view of the facts which is most favourable to the defendant ought be accepted.[1]
- [12]In my experience where such disputes exist, it is common that an agreed statement of facts will be prepared after negotiation between the representatives and the prosecutor and the representatives of the defendant. Often agreement is reached between the prosecution and the defence as to a tendering of material that might otherwise be inadmissible on such a proceeding. However it is approached, the rules of evidence and the rules of proper Court procedure are not disregarded because the matter is a sentence. As Justice Kirby said in The Queen v Olbrich[2]:
"In the event that asserted facts are disputed, those facts must be proved or disregarded. It is the duty of the judge to ensure (if there be any doubt) that the accused is aware of all the material provided to the Court upon which the Judge will rely in determining the sentence. Where a fact in that material is contested, it may not be acted upon for sentencing purposes unless it is established. The proof of such a fact must occur in the context of the proceeding concerned, namely an uncompleted criminal trial. It is fundamental that in any such proceeding, without clear statutory authority, the accused person cannot be obliged to prove a fact. The criminal trial process does not cease to be accusatorial after the conviction is recorded and during the proceedings relevant to the determination of sentence."
- [13]It is of fundamental importance that this procedure be followed in every criminal proceeding.
- [14]The importance of following that procedure is highlighted where additional features exist as they did here.
- [15]First, Mr Shepherd was representing himself and so could not have been expected to be familiar with the usual procedures of the Court.
- [16]Second, the learned magistrate had indicated very early in the proceedings (at the conclusion of the prosecutor's summary of the facts) that he was considering a sentence of actual imprisonment.
- [17]Mr Shepherd complains that he should have been warned of that and offered the opportunity to seek legal advice.
- [18]There is a great deal of authority that supports that argument.[3]
- [19]Mr Shepherd further complains that the learned magistrate "fettered" the sentencing discretion by announcing, even before hearing anything from Mr Shepherd that certain unidentified Court of Appeal decisions supported a period of actual imprisonment for offending of the nature of the conduct that brought Mr Shepherd before the Court.
- [20]There are many decisions of the Court of Appeal in this State dealing with offences of Assault Occasioning Bodily Harm and Going Armed in Public and while it is true to say that they demonstrate a range of penalties as wide as is the range of imaginable circumstances which might lead to charges of that sort being preferred, it cannot be said that they support the imposition of a sentence of imprisonment in all such cases or even in the majority of such cases.[4]
What should have happened?
- [21]As soon as the learned magistrate came to the tentative conclusion that a period of actual imprisonment might be the outcome of the proceeding he should have, in accordance with the authorities cited above, offered to adjourn the proceeding to enable the unrepresented Mr Shepherd to obtain advice from a duty lawyer and/or from a lawyer of his own choosing. It would have been apparent to the learned magistrate that Mr Shepherd had been represented on his previous appearances before the Court and so his appearance unrepresented was, inconsistent with the previous appearances that he had made before the Court. It could not be assumed that he would not have taken up the opportunity to seek advice. In my view, by not being made that offer, he lost a real opportunity to obtain a better outcome from the proceedings and it should not have been lost in that way.
- [22]Further, once it became apparent that there was a dispute about the facts, the learned magistrate had an obligation to resolve the factual dispute in accordance with the well established principles that govern sentencing in criminal proceedings. In so doing, he would have been guided by section 132C of the Evidence Act 1977.
- [23]When dealing with an unrepresented person it was, in my view, incumbent upon the learned magistrate to explain to Mr Shepherd:
- how such determinations are usually made;
- who bears the onus of proof in such enquiries;
- that he had a right to call witnesses on such an enquiry if he wished to do so.
- [24]In the course of so doing, it would have been appropriate to reinforce to Mr Shepherd the value which a lawyer might be to him in conducting such a proceeding.
- [25]Mr Shepherd, as he was led away to serve three months' imprisonment said, "I will lose everything" on more than one occasion. No doubt he felt hard done by. I think that he was hard done by.
- [26]The failure to give a self-represented person the opportunity to seek legal advice where imprisonment is under contemplation and the failure to conduct a fact finding exercise in respect of disputed facts on the formal basis which is usual in such proceedings cannot be described as matters of form or technicality. Mr Shepherd was deprived of a fair hearing and the sentences imposed upon him on that day must be set aside.
What Should I Do?
- [27]The disputed facts remain unresolved.
- [28]In my opinion, it is not a matter in which I should be asked to proceed on the basis of the transcript. Rather, the facts ought to be determined in a proper hearing if they cannot be agreed between the prosecution and Mr Shepherd.
- [29]In my view, the appropriate orders are that the appeal be allowed and that each of the sentences imposed upon Mr Shepherd in the Magistrates Court at Townsville on 26 August 2011 be set aside and that the matter be remitted to the Magistrates Court (constituted by a different magistrate) for determination according to law.
- [30]I will hear the parties as to costs.