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Gemmell v Commissioner of Police[2015] QDC 318

Gemmell v Commissioner of Police[2015] QDC 318

DISTRICT COURT OF QUEENSLAND

CITATION:

Gemmell v Commissioner of Police [2015] QDC 318  

PARTIES:

CHRISTIAN MICHAEL GEMMELL

(Appellant)

and

COMMISSIONER OF POLICE

(Respondent)

FILE NO/S:

2457/15

DIVISION:

Appellate

PROCEEDING:

Appeal under s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

30 October 2015, ex tempore

DELIVERED AT:

District Court at Brisbane 

HEARING DATE:

30 October 2015

JUDGE:

Devereaux SC DCJ

ORDER:

  1. The appeal is allowed.
  2. The orders of the learned magistrate are set aside and are substituted for the following order:
  1. a)
    In respect of each charge, under section 19 of the Penalties and Sentences Act, the appellant is to be released upon his entering into a recognisance without surety in the sum of $200 on condition that he be of good behaviour and appear for conviction and sentence if called upon at any time during the period of six months from today.

CATCHWORDS:

APPEAL: where the appellant pleaded guilty to two charges of evading a fare under section 143AC of the Transport Operations (Passenger Transport) Act 1994 – where the learned magistrate imposed a sentence for the first charge of one month imprisonment and for the second, three months’ imprisonment with parole release after two weeks - where material was before the learned magistrate which was not properly admitted under section 148 of the Youth Justice Act 1992 – where the most serious disposition the appellant had incurred in the past was a fine – where the learned magistrate did not consider a community-based order - whether the sentence imposed was manifestly excessive

Legislation:

Justices Act 1886 (Qld) s. 222(2)(c)

Penalties and Sentences Act 1992 (Qld) ss. 15, 19

Transport Operations (Passenger Transport) Act 1994 (Qld) s. 143AC

Youth Justice Act 1992 (Qld) s. 148

COUNSEL:

J. P. Todman for the appellant

S. Francis for the respondent

SOLICITORS:

Whitehead and Associates for the appellant

Office of the Director of Public Prosecutions on behalf of the Queensland Police Service for the respondent

HIS HONOUR: Christian Michael Gemmell appeared before the Wynnum Magistrates Court on 15 June 2015 and pleaded guilty to two charges of evading a fare under section 143AC of the Transport Operations (Passenger Transport) Act 1994.  The learned Magistrate imposed a sentence for the first charge of one month imprisonment and for the second, three months’ imprisonment with parole release after two weeks. 

He was born on 26 August 1987.  It is said he was 17 at the time of those offences.  He must now be 18. The charges themselves don’t need much elaboration. The first charge related to being on a train on the 13th of May without paying for a ticket.  The appellant had already been issued with an infringement notice that day and said he understood therefore he was able to travel free for the rest of the day.  The learned Magistrate could not be blamed for commenting, “That’s in fantasyland, isn’t it?”  On the 22nd of May, the appellant was again travelling without a ticket. 

The charge draws a potential penalty of 40 penalty units or six months’ imprisonment. 

The appellant has some criminal history and some traffic history.  The criminal history in its entirety was before the learned Magistrate.  It was nearly all juvenile history and there were no recorded convictions. Also before the Magistrate was an Offender’s Report from the Integrated Revenue Protection System of Queensland Rail and it lists various offences that the appellant committed, mostly again while a juvenile.  All of that material was before the Magistrate too. Ultimately, it might be that some of the material was properly before the Magistrate but it was just handed up.  I notice that section 148 of the Youth Justice Act provides that subject to sub-section (3), in a proceeding against an adult for an offence, there must not be admitted against the adult evidence that the adult was found guilty as a child of an offence if a conviction was not recorded.  Sub-section (3) provides:

This section does not prevent a Court that is sentencing an adult from (a) admitting evidence that the adult was found guilty as a child of an offence, even if a conviction was not recorded or (b) receiving information about any other sentence to which the adult is subject if that is necessary to mitigate the effect of the Court’s sentence.

That seems to me to require some exercise of judgment by the Court before material that is otherwise inadmissible could be taken into account. And that did not occur here.  With respect to the criminal history, it might be that some of it was relevant and would probably have been admitted because there are offences of dishonesty on the record.  But these were the subjects of indefinite referrals to a youth justice conference. One set of dishonesty offences was dealt with by there being no conviction recorded and the appellant being placed on a good behaviour bond. And that was back in 2013.  Another good behaviour bond was imposed for unauthorised dealing with shop goods in 2014. Arguably, these things should have been admitted anyway.  But it should not be presumed that such material can just be handed up by a prosecutor. 

Those remarks apply even more strongly to the railway material which showed fare evasions as a juvenile. Mr Todman, who appeared as duty lawyer for the appellant and appears again on this appeal, points out that the fines are not enforceable against a child. The material does not even suggest there was a Court appearance or an admission of guilt, yet all of it was put before the Magistrate. Again, if it was properly sourced material it might be quite relevant and a Magistrates Court might decide to admit it. But although section 15 of the Penalties and Sentences Act is widely drawn with respect to what information a Court may take into account on the sentencing, there is specific provision, as I have already referred to, in the Youth Justice Act to the effect that the starting point is that unless there is a recorded conviction against the child, the history is not received. 

The most serious disposition the appellant had incurred in the past was a fine. Ms Francis, who appears for the Prosecution today, concedes that the penalties imposed were excessive.[1]The appellant has already served two weeks in actual custody.  It was open to the Magistrate to be satisfied that the appellant needed to be deterred and that fines had not deterred him in the past. The Magistrate did tell the appellant’s legal representative that he was considering imposing a custodial sentence and invited further submissions. It was then submitted that a suspended jail sentence would probably be too high, considering that a substantial fine could be imposed. The Magistrate did not consider, it seems, a community-based order. 

I am satisfied the sentence imposed was excessive and I set aside the Magistrate’s orders. But for the fact that the appellant has already been substantially punished by a short term of actual imprisonment, I would, in place of the Magistrate’s orders, make an order for supervision on probation.  It is only because the appellant has already been in actual custody that I have decided the proper outcome on appeal in respect of each charge is that under section 19 of the Penalties and Sentences Act, the appellant should be released upon his entering into a recognisance without surety in the sum of $200 on condition that he be of good behaviour and appear for conviction and sentence if called upon at any time during the period of six months from today. And that will be the order. So the orders are the orders of the learned Magistrate are set aside and instead those orders are made. That requires, really, your client to enter into a bond before he leaves.

Footnotes

[1] Justices Act 1886 s. 222(2)(c)

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Editorial Notes

  • Published Case Name:

    Gemmell v Commissioner of Police

  • Shortened Case Name:

    Gemmell v Commissioner of Police

  • MNC:

    [2015] QDC 318

  • Court:

    QDC

  • Judge(s):

    Devereaux DCJ

  • Date:

    30 Oct 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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