Dafydd v The Commissioner of Police
[2013] QDC 12
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- Dafydd v The Commissioner of Police[2013] QDC 12
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Dafydd v The Commissioner of Police[2013] QDC 12
Dafydd v The Commissioner of Police[2013] QDC 12
DISTRICT COURT OF QUEENSLAND
CITATION: | Dafydd v The Commissioner of Police [2013] QDC 12 |
PARTIES: | LLEWELYN MARC DAFYDD (appellant) and THE COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 2226/12 |
DIVISION: | Crime |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court of Queensland at Brisbane |
DELIVERED ON: | 31 January 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 December 2012 |
JUDGE: | R S Jones DCJ |
ORDERS: |
|
CATCHWORDS: | APPEAL – s 222 Justices Act 1886 – appeal against sentence – whether sentences imposed were manifestly excessive – preliminary issues – appeal lodged out of time – application to admit fresh evidence Justices Act 1886 (Qld) ss 222, 223 Gallagher v The Queen (1986) 160 CLR 392 House v R (1936) 55 CLR 499 R v Tate [1998] QCA 304 Pavlovic v Commissioner of Police [2006] QCA 134 |
COUNSEL: | Ms K McMahon for the appellant Ms J Ball for the respondent |
SOLICITORS: | Legal Aid Queensland for the appellant Director of Public Prosecutions for the respondent |
- [1]This proceeding is concerned with an appeal pursuant to s 222 of the Justices Act1886 from a decision of the Magistrates Courtat Brisbaneon 8 August 2011. For the reasons set out below, the orders of the court are:
- The application to extend time to appeal is allowed but only to the extent of dealing with the sentence imposed for the offence of Firearms to be kept unloaded other than when being used to shoot;
- The application to adduce fresh evidence is allowed;
- The appeal against sentence imposed in respect of the firearms to be kept unloaded offence is allowed;
- In respect of that offence the sentence imposed by the Magistrates Court is set aside and in lieu thereof the sentence be that a conviction be recorded but the appellant not be further punished; and
- Otherwise the application to extent time to appeal is refused.
Background
- [2]On 8 August 2011, the appellant was convicted on his own plea of guilt on eight counts of fraud and five weapons offences. In respect of the eight fraud offences he was sentenced to nine months’ imprisonment with an immediate parole release date set for 8 August 2011. In respect of the offence of stealing firearms/ammunition and firearms to be kept unloaded other than when being used to shoot the appellant was sentence to two months’ imprisonment with a parole release date of 8 August 2011. In respect of the offences of unlawful possession of weapons, possessing/acquiring restricted items and secure storage of weapons, the appellant was convicted, a conviction was recorded but no further punishment was ordered. Prior to sentencing the appellant had been remanded in custody for 8 days.
- [3]The eight fraud offences were committed between 11 March 2008 and 23 June 2011. Between those dates the appellant attended various offices of the Department of Transport and Main Roads and applied for driving licences. On each of the applications, the appellant failed to indicate (by way of a “tick” in a designated box on the form) that he already held a driver’s licence and/or held identification in another name. Through this process the appellant acquired eight different licences under six different names.
- [4]The various weapons offences were old and were committed some 14 years ago between 1997 and 1998.
Grounds of appeal
- [5]On 4 June 2012, the appellant filed his notice of appeal. The grounds of appeal were:
“1.My lawyer at my sentence in the Magistrates Court was Kerry Smith Douglas. She did not give me any advice about my appeal rights.
- In February of 2012, I had a discussion with Mick Walsh who is employed by the Government Vetting Agency. He advised me that I might be able to appeal my sentence because the sentence on my criminal history might affect my ability to obtain work.
- There was then some delay occasioned by mental health issues from which I suffer. I suffer from anxiety, depression, post-traumatic stress disorder and claustrophobia. After my sentence in August of last year, I had a mental breakdown and was not in the frame of mind where I was able to investigate or enforce my legal rights.
- On 5 April 2012, I applied for legal aid for my appeal. It took Legal Aid some time to gather the material to investigate my appeal.
- On 4 June 2012 I had a conference with a Legal Aid lawyer who assisted me in drafting my notice of appeal and notice of application for an extension of time.”
- [6]Without objection, at the hearing of the appeal the appellant’s grounds of appeal were amended to include:
- that there was an error on the part of the learned Magistrate in imposing a sentence of two months’ imprisonment in relation to the offence of firearms to be kept unloaded other than when being used to shoot;
- that there was an error on the part of the learned Magistrate in making a finding that the appellant’s possession of the drivers licences was the beginning of some form of identity fraud; and
- that in all the circumstances, and in light of the new evidence, the sentence imposed was manifestly excessive.
- [7]Accompanying the appellant’s appeal were two applications. First, an application for leave to proceed with the appeal, the appeal being filed some nine months out of time. The second application was for the admission of fresh evidence namely a report prepared by a psychiatrist, Dr. Furst.
- [8]It was not contested by the respondent that the court below erred in imposing a two month term of imprisonment in respect of the firearms to be kept unloaded other than when used to shoot offence as the maximum penalty for that offence at the time was a fine.[1]The respondent’s overall position in respect of the appeal was to the effect that the application for extension of time ought be allowed but only in respect of the firearm to be kept unloaded offence and the sentence in respect of that offence be set aside and in lieu thereof a sentence recording a conviction but no further punishment be imposed and that otherwise the applications ought be refused and the appeal be dismissed.
The fresh evidence application
- [9]The fresh evidence sought to be introduced by the appellant is the psychiatrist’s report of Dr. Furst dated 12 September 2012. The appellant contends that the report should be admitted as it was directly relevant to:
- the appellant’s extension of time application;
- the appellant’s submission that the finding of fact in relation to the fraud offences was erroneous; and
- the appellant’s submission that the sentence imposed was manifestly excessive.
- [10]As Dr. Furst’s report addresses matters relevant to the extension of time application and the appellant’s state of mind at the time of the commission of the fraud offences, it is appropriate to deal with the fresh evidence application first.
- [11]Section 223 of the Justices Act1886 provides:
“(1)An appeal under s 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
- (2)However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
- (3)If the court gives leave under subsection (2), the appeal is -
(a)by way of rehearing on the original evidence; and
(b)on the new evidence adduced.”
(emphasis added)
- [12]In Pavlovic v Commissioner of Police[2], the Court of Appeal was concerned with an appeal pursuant to s 222 of the Justices Actand with an application to adduce fresh evidence pursuant to s 223 of that Act. Citing with approval the decision of Gibbs CJ in Gallagher v The Queen[3]the Court of Appeal relevantly said[4]:
“In explaining why leave should not be granted, the learned District Court Judge cited the ‘three main considerations’ described by GibbsCJ in Gallagher v The Queen as being relevant to a determination of ‘whether a miscarriage of justice has occurred because evidence now available was not led at the trial’. It is clear that the reference in s223(2) of the Justices Act to ‘special grounds’ indicates that there must be a good reason identified to justify a departure from the application of the rule in s 223(1) that an appeal under s 222 of the Justices Act is ‘by way of rehearing on the evidence given in the proceedings before the justices’. While Gallagher did not involve a consideration of s 223 of the Justices Act, it is nonetheless a useful guide for the purposes of identifying the kind of ‘special grounds’ which might be said to justify a grant of leave under s 223(2).
The first consideration described by Gibbs CJ is whether ‘the evidence relied on could with reasonable diligence have been produced by the accused at the trial’. This consideration reflects the primary importance of the trial in the administration of justice. A trial cannot be regarded as a dress rehearsal or as the first step in a process which inevitably leads to an appeal and a possible retrial.
…
The first consideration identified by Gibbs CJ falls against the applicant, but this consideration is not ‘a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial.’ It is therefore necessary to address the second and third of the Gallagher considerations.
The second consideration identified in Gallagher is whether ‘the evidence is apparently credible (or at least capable of belief)’.
…
The third consideration identified by Gibbs CJ in Gallagher was whether the evidence, if believed, ‘might reasonably have lead’ a tribunal of fact ‘to return a different verdict.’
…” (footnotes deleted)
- [13]It is not in dispute that Dr. Furst’s report is apparently credible.
- [14]Turning then to the remaining two elements of the test identified in Gallagher, as the Court of Appeal observed in Pavlovicthe first limb embodies the vitally important concept that a trial cannot be regarded as a dress rehearsal or as a first step in a process.
- [15]In this appeal, there is a level of uncertainty as to the reasons why the appellant’s mental health was not addressed in any material way by the court below. In his affidavit sworn 8 August 2012, the appellant relevantly deposed:
“a.I had changed my name legally when I lived in Britain on several occasions. Upon return to Queensland each time starting back in 1997, BDM (Births, Deaths and Marriages) Queensland and Qld Transport would not accept my UK deed polls after I had shown them.
b.I would change my name as a reaction to stress in my life when I would feel unable to cope.
c.Each time I’d change my name I felt it relieved some of my anxiety.
d.I previously testified against Max Sica in a matter and was concerned that he would pursue me. I would change my name because it relieved my anxiety about him coming after me.
e.When I moved to Queensland, Queensland Transport refused to accept my name changes I had made legally in Britain. I had tried to explain my situation to Queensland Transport on many occasions but was refused assistance in putting my record straight.
f.Because of that, I obtained the licences in all the different names fraudulently. The licences were mine only and I only renewed licences and accreditations out of sheer desperation and frustration. And so I could work.
g.I did not however have the licences as a part of any intention to commit identity fraud on other people.
h.I have been previously told by a psychologist Peter Esser that my name changes are part of a dissociative fugue state.”
- [16]In paragraphs 12 and 13 of his affidavit sworn 8 August 2011 the appellant deposed:
“I advised my lawyer Kerry Smith Douglas of the reasons for my offending listed at paragraph 11 above before she did my sentence in the Magistrates Court but she did not explain them properly to the Magistrate.
I am aware there is a portion of the transcript of the Magistrates Court proceedings missing. I do/do not recall what was said in that part of the proceedings.”
- [17]The transcript revealed that the submissions made on sentencing on both sides were very brief. Unfortunately, a portion of the sentencing transcript was not recorded and transcribed for reasons unknown. It is difficult therefore to say by reference to the material whether the appellant’s legal adviser was reasonably appraised of the appellant’s mental health. Reference is made to his physical health and to the fact that the appellant suffered from claustrophobia in Ms. Douglas’ sentencing submissions.[5]However, the submissions appear to go no further than that. The possibility exists that further submissions about the appellant’s mental health were made by Ms.Douglas and were not recorded, but that seems unlikely in circumstances where no reference was made to it in the learned Magistrate’s sentencing remarks. The absence of such an important matter in the sentencing remarks tends to bear out the appellant’s sworn evidence that he explained the circumstances and his reasons for the commissioning of the fraud offences to Ms.Douglas but she failed to properly address them in submissions before the court.
- [18]On balance, I am satisfied that had submissions been made about the appellant’s mental health and its connection with the commissioning of the offences, it would have been expressly addressed by the learned Magistrate in her Honour’s sentencing remarks.
- [19]According to Ms. McMahon, counsel for the appellant, the failure to put these matters before the court was a consequence of the incompetency of the appellant’s legal representation at the time and, the appellant should not have to suffer because of that incompetence. The material before me, limited as it is, tends to support that submission.
- [20]On balance, I have reached the following conclusions in respect of this matter: first, the appellant’s legal representative in the court below was made aware of the appellant’s state of mental health and its connection with the offending: second, she failed to put those matters before the court: third, being made aware of the appellant’s mental health the appellant’s legal representative ought to have sought an adjournment to have the appellant assessed and have a report prepared for the court.
- [21]To put it another way, the fresh evidence sought now to be produced could have, with reasonable diligence, been produced in the court below. It was not produced, but that was not the fault of the appellant but of his legal representative and he should not be prejudiced by that failure.
- [22]The next issue that needs to be considered is whether the report might reasonably have led to a different result. It is well recognised that in appeals against sentence the appellate court ought not simply substitute its own views for that of the court below. In House v R[6]Dixon, Evatt and McTiernanJJ relevantly said:
“It must appear that some error has been made in exercising the discretion. 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, or 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.”
- [23]That the appellant is mentally disturbed to a material extent is beyond doubt. Under the heading “Prognosis” Dr. Furst states:
“Mr. Dafydd has evidence of a major mental illness in the form of probably schizophrenia and is likely to continue to experience psychotic symptoms of a residual type, as is typical of this type of mental illness. He may also have symptoms of PTSD or disassociation. His adjustment to life in the community will require assertive treatment and monitoring as outlined above. He would benefit from longer term case management.”
- [24]It is also reported that the appellant had a history of chronic paranoid and persecutory thoughts and suffered panic attacks and claustrophobia. His claustrophobia is to the extent that the he is only capable of living in enclosed accommodation for relatively short periods of time and otherwise camps out at various locations.
- [25]The learned Magistrate clearly took a dim view of the appellant’s conduct in respect of the fraud charges. Her Honour said:
“What you did was seriously wrong. Getting a licence in a false name has far-reaching implications for the whole of our community and over a short space of time you got eight different names.
That clearly shows the formulation of the basis for you to commit a lot of identity fraud by having those licences in your name at the same time and in quick succession going from different licensing authorities, different officers gathering that material.
That has a high level of criminality that the court has to reflect and I need also to bear in mind that the pistol charges are quite old, they are now 14 years old.”
- [26]There was no evidence to “clearly show” that the licences were obtained for the purposes of committing “a lot of identity fraud”. However, that would be, in usual circumstances, not an unreasonable inference to draw. In this context though Dr. Furst was specifically asked to comment on “the extent to which any dissociative fugue from which Mr Dafydd suffers may be an explanation for the fraud offences that are the subject of the appeal …”. In answering this question the doctor dismissed the possibility of the offending being committed whilst the appellant was suffering a dissociative fugue; however, observed that his underlying schizophrenic illness might have been a causal factor in his offending. At page 7 of his report the doctor stated:
“Mr. Dafydd may have experienced episodes of disassociation; however, he still has an intact memory for his actions and they were purposeful (apparently in order to work as a driving instructor in Queensland), which would make this less likely as an explanation for the fraud offences in question.
Given his apparent history of psychotic illness, especially chronic paranoid and persecutory thoughts, it is more likely than not that his paranoid thinking as part of an underlying schizophrenic illness was a causal factor in his offending behaviour. He related a history of fleeing from perceived threats over many years, changed his name in the UK and Australia, and may well have obtained drivers licences to “match” his assumed identities in overseas jurisdictions.
The possibility of malingering remains, in that he may have obtained the licences in question in a deliberate manner with fraudulent intention and is claiming ‘disassociation’. This will be a matter for the trier of fact to determine on the available evidence.
It is noteworthy that individuals with serious mental illness such as schizophrenia typically have difficulties in planning and organising themselves often due to impaired judgment on the cognitive problems encountered in schizophrenia. His poor judgment as a consequence of schizophrenia may well be a further explanation for the offending behaviour before the court.”
- [27]The central question is whether the court below, had it been in possession of Dr.Furst’s report, ought to have imposed a more lenient sentence. Dr. Furst’s report is relevant to this issue in two respects. First, as providing possible explanations for the commissioning of the offences and second, it is well recognised that persons suffering from a serious psychiatric illness are not an appropriate vehicle for sentences designed to send a message of personal and/or general deterrence.[7]
- [28]It seems tolerably clear to me that the appellant’s mental health was a material contributory factor in his offending in respect of the eight fraud charges. However, it would also appear that notwithstanding the fact that these offences were committed whilst he was in a dysfunctional mental state they were not committed for the sole purpose of avoiding his persecutors whether real or imagined. There was also an underlying intention to commit the frauds for reward, namely gaining employment under a false name or names. Dr. Furst apparently expressly asked the appellant why he committed these offences and was given the following answer[8]: “I only did it to work. There were bureaucratic barriers. Driving was my work.” This explanation is consistent with the appellant’s sworn evidence where, in his affidavit he stated that he obtained the licences for various reasons including that “so I could work”[9].
- [29]However, notwithstanding there being an element of intentional and deliberate dishonesty underlying the appellant’s offending, it seems almost inevitable, with respect, that had the learned Magistrate had the report of Dr. Furst available upon sentence her Honour would have imposed a lesser sentence. The reasons for doing so are concisely stated in R v Tsiaras[10]where it was said by the Victorian Court of Appeal:
“First, [the evidence of mental health] may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.”
- [30]On behalf of the appellant it was submitted that, having regard to his mental health, that he had served eight days in remand and that the nine months on parole had already been served without incident, the sentences imposed below ought be set aside and in lieu thereof a small fine or bond be imposed. It was also submitted that no convictions be recorded. In this context it is also significant that the appellant pleaded guilty to all the offences and had only a minor and largely irrelevant criminal history.
- [31]Having regard to the seriousness of the fraud offences and the mixed underlying motives for those offences, I do not consider that a small fine or bond is appropriate. As to the recording of a conviction, s 12(2) of the Penalties and Sentences Act1992 provides:
“In considering whether or not to record a conviction, a court must have regard to all circumstances of the case including –
- the nature of the offence; and
- the offender’s character and age; and
- the impact that recording a conviction will have on the offender’s –
- (i)economic or social wellbeing; or
- (ii)chances of finding employment.”
- [32]According to Ms. McMahon, the recording of a conviction would be yet a further impediment to the appellant gaining meaningful employment.
- [33]The appellant is now a 50 year old male who, largely because of his claustrophobia, leads an itinerant lifestyle and is currently in receipt of a disability support pension. He also suffers from a disc protrusion, no feeling in his left hand and migraines.[11]These factors together with his overall mental health lead me to conclude that there is no reasonable basis for believing that the appellant was a likely prospect for any meaningful employment.
- [34]Balancing the seriousness of the fraud offenses with the evidence of Dr. Faust, I consider that concurrent sentences of four to six months either wholly suspended or with an immediate parole release date would have been within an appropriate range[12]. However, for the reasons set out below it is not necessary to express a final opinion about sentence.
- [35]At the time of the hearing of this appeal, the appellant had already served eight days in custody and had completed the nine month parole period without incident. During the course of submissions, I asked Ms. McMahon whether the appeal was “somewhat academic”. Ms. McMahon responded by submitting:
“Yes, the appellant pursues it because he would like to correct his criminal history for the purposes of obtaining employment and that, in my submission, is a legitimate reason to pursue the appeal.”
- [36]In this context, in paragraph 8 of his affidavit the appellant deposed:
“Even though I’ve finished my sentence I still wish to appeal because my criminal history is preventing me from obtaining employment with the army or any employment, due to my spinal condition I am unable to do anything other than manage (or) instruct.”
- [37]In my opinion, the appeal is without any substantive merit or purpose. The sentences imposed below have already been served in full and the appeal would fail to achieve the substantive relief sought namely that no conviction be recorded in respect of all offences.
Explanation for delay in filing notice of appeal
- [38]In R v Tait[13]the court identified three matters that would typically steer the court’s determination of an application to appeal out of time:
- the reason for and length of the delay;
- whether it is in the interests of justice to grant the extension, which may involve some assessment of whether the appeal is a viable one;
- prejudice to the respondent, which in criminal appeals is not often a live issue.
- [39]Prejudice to the respondent was not an issue in this appeal.
- [40]The delay in filing the notice of appeal was a lengthy one. According to the appellant it was attributable to:
- (i)An absence of legal advice from the appellant’s original lawyer.
- (ii)The appellant’s mental state.
- (iii)Approximately two months of the delay is attributable to Legal Aid gathering information so as to assist with drafting Mr Dafydd’s appeal.
- [41]As to the first of those matters it does not provide a reasonable explanation for such delay. That the appellant’s original legal representative did not advise the appellant of his rights of appeal may explain some delay, but nothing of the type involved here. Also, the appellant’s own conduct at the conclusion of the learned Magistrate’s sentencing remarks may have led his lawyer to consider that he was in no way dissatisfied with the sentences imposed. At the conclusion of her Honour’s sentencing remarks the appellant said, “thank you for giving me a chance your Honour”.
- [42]As to the second matter raised, Dr. Furst was specifically asked:
“The extent to which any of his mental conditions may have impacted on his ability to file his appeal within time …”.
At p 8 of his report Dr. Furst stated:
“Mr. Dafydd presented as a highly anxious individual who is depressed and paranoid. He has not been functioning well, is somewhat disorganised and is currently homeless. His paranoia makes him fearful of returning to Queensland. In my opinion, his schizophrenia may well have impaired his capacity to lodge his appeal in a timely manner.” (emphasis added)
- [43]The appellant deposed to the facts that after the imposition of the sentences on 8 August 2011, he suffered a “mental breakdown” through to about February 2012 and thereafter suffered “some delay” in prosecuting his appeal because of his “mental health” issues. While there is no direct independent evidence to support the appellant’s assertion that he had some form of “mental breakdown”, from mid‑2011 to December 2011, he was diagnosed with a form of dissociative fugue evidenced by him having a tendency to “run away and escape from situations when stressed”. And, from December 2011 to March 2012, the appellant was diagnosed with “chronic post-traumatic stress disorder, paranoid personality, possible delusional disorder and a history of dissociative disorder, particularly a dissociative fugue state”[14].
- [44]On balance, but with some reservations, I consider that the evidence concerning the appellant’s mental health provided an acceptable explanation for the delay in the prosecution of this appeal.
- [45]Turning then to the final matter to be addressed, for the reasons already given the appeal was not a viable one and no interests of justice would be served by allowing the appeal to proceed.
- [46]The application for leave to appeal out of time should be refused and that should therefore be the end of the matter. However, it was conceded by the respondent that the sentence imposed in respect of the firearms to be kept unloaded offence was not open to the court below, not as a consequence of a failure to exercise a discretion in a judicial manner, but as a matter of substantive law.[15]
- [47]Notwithstanding my substantive conclusions concerning the application to appeal out of time and the overall merits of the appeal, I consider it appropriate to rectify that particular matter.
- [48]Accordingly, the orders of the court are:
- The application to extend time to appeal is allowed but only to the extent of dealing with the sentence imposed for the offence of Firearms to be kept unloaded;
- The application to adduce fresh evidence is allowed;
- The appeal against sentence imposed in respect of the firearms to be kept unloaded offence is allowed;
- In respect of that offence the sentence imposed by the Magistrates Court is set aside and in lieu thereof the sentence be that a conviction be recorded but the appellant not be further punished; and
- Otherwise the application to extent time to appeal is refused.
Footnotes
[1]Section 59(1) Weapons Regulation 1996 and s 5(1)(b) Penalties and Sentences Act 1992.
[2][2006] QCA 134.
[3](1986) 160 CLR 392.
[4]At paras [30] to [42].
[5]Sentencing submissions transcript T1-2 L30-48.
[6](1936) 55 CLR 499 at 505.
[7]R v Tsiaras [1996] 1 VR 398 and R v Goodger [2009] QCA 377.
[8]At p 5 of his report.
[9]At para 11(f) of appellant’s affidavit. See also attachment to appellant’s affidavit dated August 2012.
[10][1996] 1 VR 398 at 400: cited with approval in R v Goodger [2009] QCA 377 at para 18.
[11]Dr. Furst’s report at p 5.
[12]In expressing this opinion, I would observe that on the material before the court below the sentences imposed were not excessive and, but for Dr Furst’s report, would not have been interfered with.
[13][1998] QCA 304.
[14]Dr. Furst’s report at p 4.
[15]Refer to para [9] above.