Reichert v Commissioner of Police
[2012] QDC 375
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- Reichert v Commissioner of Police[2012] QDC 375
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Reichert v Commissioner of Police[2012] QDC 375
Reichert v Commissioner of Police[2012] QDC 375
[2012] QDC 375
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE FARR SC
No 31 of 2012
ALFRED WILHEM LORENZ REICHERT Appellant
and
COMMISSIONER OF POLICE Respondent
BUNDABERG
DATE 03/09/2012
JUDGMENT
HIS HONOUR: This is an appeal against conviction and sentence pursuant to section 222 of the Justices Act. The appellant was convicted in the Magistrates Court at Bundaberg on the 19th of April 2012 of one count of dangerous operation of a motor vehicle. He was sentenced to 18 months' imprisonment with a parole release date set on the 18th of October 2012, which is a period of eight months into the sentence, and was ordered to pay $12,800 compensation.
The facts upon which the appellant was convicted and which are relevantly disputed by the appellant in his submissions before this Court are these. At about 8.30 in the morning on the 23rd of May 2011, a Dion Williams and a Scott Donovan attended the appellant's property to treat a noxious weed pursuant to a notice under the Land Protection (Pest and Stock Route Management) Act 2002.
They were escorted by Constable David Shooks from the Gin Gin Police Station. The workers parked their utility, which had a trailer attached, on the right-hand side of the driveway of that property as one is driving in towards the house. They had two quad bikes on the back of a trailer that was connected to the utility. They removed those quad bikes from the trailer and then used them to access relevant parts of the property for the treatment that they were to administer.
Upon arrival with Constable Shooks, Constable Shooks approached and spoke to the appellant, providing him with the notice and advising as to the reason for their presence. As I understand the evidence, Constable Shooks left that property somewhere between 10.30 and 11. at which time the poisoning of the weeds was still occurring.
At about 11 o'clock, Mr Williams returned to the utility on his quad bike to refuel the container with poison, and he pulled up at the rear of the utility and started to fill the tank. He noted at that time that the appellant was driving towards him from the direction of the house. The appellant stopped near the utility and exited his vehicle and spoke with Mr Williams, who said that he was unable to hear the appellant over the noise of the pump. The appellant then returned to the vehicle, got in and started to reverse.
At that same time, Mr Donovan was riding towards the utility to refill his poison tank, and had to veer around the reversing Nissan Patrol. The necessity of that manoeuvre plays no part in the charge, and no critism of the accused was made in so far as his reversing manoeuvre was concerned. Mr Donovan pulled up on the left-hand side of the utility and reversed his quad bike up to the vehicle and commenced to fill the tank.
It was at about this stage that the appellant drove his vehicle, a Nissan four-wheel drive, forward. And we're now at the section of the evidence that is disputed by the appellant, that it was alleged and found by the Magistrate that the appellant drove his four-wheel drive into Mr Donovan's quad bike on three separate occasions, causing the bike to become jammed under the tray of the utility. The appellant then reversed his vehicle and aligned it with Mr Williams's quad bike and revved the engine and then rammed that bike, causing it also to become jammed under the utility. It's alleged that significant damage was caused by these actions, to each of those bikes.
Mr Williams gave evidence that he had to jump out of the way. He was standing in a position between the back of the utility and the trailer at the time of the initial ramming, and that he had to jump out of the way, in fact getting caught on part of the A-frame of that trailer, and was of the view that had he not jumped out of the way he would have been struck.
Both Mr Williams and Mr Donovan gave evidence that they heard the appellant telling them that if they would not leave the property, he would push them out. And shortly thereafter, the appellant returned to his house, and the other two men extracted their damaged bikes from under the tray of the utility and removed their vehicles to outside the property and called police.
The appellant has appealed on the grounds that the verdict was unreasonable and cannot be supported having regard to the evidence. He has also submitted that there was a failure on the part of his lawyer to make appropriate submissions on his behalf, in other words he's arguing an incompetence of lawyer argument. He has submitted here today that the Court should have accepted the evidence which he gave in preference to that of Mr Donovan and Mr Williams, and he has said that the finding of guilt was not based on evidence.
He's also appealed against the sentence which was imposed. And as I understand the argument that's been submitted, he is essentially saying that the sentence was manifestly excessive, or alternatively that the learned Magistrate failed to give due regard to mitigating features personal to the appellant.
The learned Magistrate heard the evidence in this matter on the 12th of March 2012 and reserved his decision. He handed that decision down on, according to the transcript, the 19th of April 2012 - Mr Reichert says it was the 18th, but nothing turns upon that fact - but approximately five weeks after the trial was conducted.
In the course of his findings, the learned Magistrate accepted the evidence of Mr Donovan and Mr Williams, and accepted that the appellant deliberately rammed his vehicle into those two quad bikes. In so far as Mr Reichert was concerned, he said that Mr Reichert "Was not a convincing witness. He failed to convince this Court that he possessed traits of honesty and reliability. He appeared, in the main, evasive in his record of interview and in giving testimony before the Court."
Various arguments were presented in the trial to the effect that Mr Reichert, the appellant, had a number of defences open to him. Mr Reichert himself gave evidence and said that he did not have any recollection of striking either of the quad bikes in his vehicle, and that he was doing no more than attempting to turn his vehicle around to go back to the house, or alternatively, to manoeuvre it so that he could get out of the gate. It's a little unclear as to which of those two, but I don't know that very much turns on the issue.
One of the potential defences that were raised before the Magistrate in the Court below was said to be extraordinary emergency combined with mistake of fact. In his evidence, the appellant said that at one stage he saw one of the men reach into his pocket, and that he became concerned that he was about to - that is, that that man was about to produce a gun. And that it was after that that he drove his vehicle and may have struck the bikes. Extraordinary emergency was rejected by the learned Magistrate and, in my opinion, rightly so. There was no basis for that defence, in my view, to even be a defence in this case, let alone result in a reasonable doubt having application.
There was on the evidence, of course, no gun. In fact, furthermore, there was absolutely no reason as to why anybody that was present that day would have taken the view that this man putting his hand in his pocket might result in him pulling out a gun. It was known to the appellant that these men were there to conduct weed control measures. They attended with a police officer. He was presented with the official documentation, irrespective of whether he disputed its legitimacy or not, and they had been conducting the weed control measures for some time already that morning.
There was, quite obviously, no extraordinary emergency, and no basis for even mistakenly thinking so, as a consequence of a mistake of fact. Of course, for mistake of fact to have application there has to be both an honest and reasonable mistaken belief in the existence of any state of things. Given the facts in this matter, there was no basis upon which the defence of extraordinary emergency could arise due to a mistake of fact, as it would not in the circumstance constitute an honest belief, given the evidence, and it was most certainly not a reasonable belief.
Defences of defence of a dwelling, prevention of a repetition of insult or self-defence were also raised. Self-defence I can deal with quickly, because self-defence is not a defence to dangerous operation of a motor vehicle. In so far as defence of a dwelling is concerned, the appellant has raised the issue, both in the Court below and in this Court in submissions today, that the entry onto the property was unlawful, for reasons which are a little difficult, I must say, to understand.
That argument was advanced in some detail in the Court below, and the Magistrate found that there was no difficulty, and that both persons were lawfully on the property. I can find no error in the Magistrate's reasoning in that regard. Irrespective of that, even if they were unlawfully on the property, that would not necessarily allow the defence of defence of a dwelling to have application in the circumstances of this case.
Given the findings of fact made by the Magistrate, he has accepted beyond reasonable doubt that the appellant deliberately drove his vehicle at the quad bikes that were being used by these two men, irrespective of and negligent to the positioning or the harm that may potentially be occasioned to either of them. There was no assertion in the evidence, there was no evidence whatsoever, that the dwelling on the property was in any way under threat, and I could find no evidence of insult from either Mr Donovan or Mr Williams to the appellant. The learned Magistrate determined that these defences were not properly raised on the evidence and, in my view, was correct in rejecting them.
The defence of defence of premises against trespassers was also raised. But then as I've already indicated, in my view the conclusions that they were lawfully on the property immediately puts paid to that defence.
I note that in his written submissions, the appellant has also alleged that some video recording that was taken via mobile phone use by, I think, Mr Williams in the course of this incident and tendered to the Court was unlawfully obtained. No legal basis for that submission has been placed before the Court and, in my view, there was nothing unlawful about Mr Williams filming what he filmed on this particular occasion.
In my view, the evidence well and truly supported the conclusions of the Magistrate, and the prosecution case presented was in my view, a strong one. I agree with the Magistrate's conclusion that the appellant came across as a difficult and evasive witness and reading the transcripts, I'm of the view that both Mr Donovan and Mr Williams impressed as witnesses of truth and accuracy.
I note also that photographs were tendered showing the areas of damage to each of the quad bikes. In my view the Crown case was quite rightly accepted, and there was no lawful defence present in this matter, and certainly none that might cause a reasonable doubt, remembering and bearing in mind, of course, that the onus always rests upon the prosecution.
In so far as the submission that Mr Reichert's lawyer was incompetent, he has submitted that he can find nowhere in the transcript where his lawyer made submissions to the effect that the Magistrate should acquit. In that regard, he has referred me to the transcript of proceedings dated the 19th of April 2012. As I pointed out to Mr Reichert, however, on that day all that occurred was the Magistrate handed down the decision which he had reserved, all submissions having been made on the previous occasion that they had appeared before him, that being the 12th of March 2012. Submissions at that time, that is on the 12th of March 2012, were made by Mr Reichert's legal representative who went into some detail in his submissions as to why the Magistrate should have a reasonable doubt as to his client's guilt.
It is correct to say that there were no submissions made on the 19th of April. That's because none were expected, and nor should any have been made at that late stage. The only other matter to occur on that day was the actual sentencing of Mr Reichert. So there is no basis and no merit to that submission and the appeal is rejected is so far as that submission is concerned.
In so far as the appeal against sentence is concerned, the Magistrate was referred to a number of authorities by way of comparison. He was taken through a number of cases by both the Prosecutor and the defence counsel and submissions were made as to what might be considered an appropriate sentence in all the circumstances. Prosecution submitted that a sentence of 18 months' imprisonment with release after one-third would be appropriate in the circumstances. Counsel for the appellant submitted that no actual imprisonment would be an appropriate order in all the circumstances of the matter.
I note that one of the cases to which the Magistrate was referred was The Queen v. Pearce [2010] QCA 338. That was a matter where the accused was convicted of one count of dangerous operation of a motor vehicle after a trial. He was sentenced to 18 months' imprisonment with a parole release date after nine months. In that matter the offence arose in the context of unexplained animosity between the applicant and a man named Hartig, with whom he had previously worked. I don't intend to go through all the facts of that case. They're particularised clearly in paragraphs 3 and 4 of the decision. But the effect of it was that the offender chased after this fellow Hartig, who was riding a motor scooter, the offender was in a vehicle. They'd had a history of animosity. He drove up to 50 to 60 kilometres per hour. Ultimately, Hartig drove up onto a footpath and dropped the bike and ran. The appellant followed and throughout the chase was making threats to kill him. The appellant also mounted the kerb, rammed the motor scooter, and then reversed the car backwards and forwards into the scooter three or four times causing $789 worth of damage. He was 50 years of age. He had a criminal history in New South Wales containing some minor drug offences and some offences of dishonesty in 2000. He also had five traffic offences, and a drink driving conviction in the past.
As I indicated to counsel in the course of submissions that, to my mind, is a more serious case that this, given that the intention of the offender in Pearce was clearly to cause harm to another individual. In fact, it was accompanied by threats to kill. In this case it seems to me that the behaviour of the appellant was directed more at the property, that is, the quad bikes, with no consideration to the safety of others, that is, negligent to the safety of others. The Magistrate was referred to other cases which I've also read. I don't need to go through the details of them here, but they did not provide a great deal of assistance. They vary in facts somewhat substantially.
I note that the appellant had no prior criminal convictions, and only one prior traffic conviction for speeding a long time ago. He describes himself as an honest man, and I note that he has a very ill wife and he'd been looking after her for some two years prior to his conviction on these offences. He has again raised today the difficulties that he has had over that two years in caring for his wife. He has described her as suffering from a terminal illness.
Now, whilst I accept that Pearce is a more serious case, there are features present in this matter that were absent in Pearce, which somewhat counterbalance that consideration. In this matter, $12,800 worth of damage was caused by the appellant's behaviour. He ran into the quad bikes at a time when someone else was between the trailer and the utility, and that person had to jump out of the way for fear of being struck. There is not a lot to distinguish Pearce and this matter, notwithstanding that I do take the view that Pearce is somewhat more serious than this. The difference and seriousness though, seems to have been well recognised by the Magistrate by the imposition of a sentence in this matter that required the appellant to serve only six months' imprisonment, as opposed to the nine months imposed in Pearce. That is a significant difference in penalty and one which, in my view, reflects the differences between the two cases.
It may well be that a term of actual imprisonment of something less than six months, might have been within the discretion of the Magistrate, but that's not to say that the six months which was imposed was manifestly excessive. In all of the circumstances, notwithstanding the appellant's lack of prior convictions and his good history and his responsibilities to his wife, I cannot conclude that there has been an error on the part of the Magistrate in the Court below that is discernable nor in my view does the sentence imposed upon consideration of all matters appear to be manifestly excessive. In fact, it seems to sit comfortably with the cases that have been provided to the Court as best one can compare one case to another. For those reasons, in my view, the appeal against sentence should also fail. So the appeal against conviction is refused, and the appeal against sentence is refused.
Are there any other orders that are required?
MS DENNIS: No, thank you, your Honour.
HIS HONOUR: Now Mr Reichert, did you understand what occurred just then?
APPELLANT: No.
HIS HONOUR: I have concluded that the Magistrate who heard your matter in the Magistrates Court did not make any errors of law and that he made no mistakes or failed to take something relevant into account, or took something irrelevant into account and that his decision was appropriate in the circumstances. I found that the evidence supported his conclusions, and supported his conviction of you and that the sentence imposed was an appropriate sentence in the circumstances. So you‑‑‑‑‑
APPELLANT: Was home detention not considered?
HIS HONOUR: I beg your pardon?
APPELLANT: Why was the home detention not considered because of my ill wife.
HIS HONOUR: Well, I don't give legal advice Mr Reichert, but I can tell you there is no such thing as home detention in Queensland.
APPELLANT: Not in the law?
HIS HONOUR: So your appeal has been refused, and I'm afraid you're going to have to continue that sentence until mid-October.