O'Neill v Commissioner of Police
[2016] QDC 60
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- O'Neill v Commissioner of Police[2016] QDC 60
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O'Neill v Commissioner of Police[2016] QDC 60
O'Neill v Commissioner of Police[2016] QDC 60
DISTRICT COURT OF QUEENSLAND
CITATION: | O'Neill v Commissioner of Police [2016] QDC 60 |
PARTIES: | PAUL ARTHUR O'NEILL (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 113/2015 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Mackay |
DELIVERED ON: | 24 March 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 February 2016; 25 February 2016 |
JUDGE: | Farr SC DCJ |
ORDER: |
“The primary magistrate erred in fact in taking into account allegations of fact which went beyond the allegations averred to in the charge to which the appellant entered his plea of guilty.”
|
CATCHWORDS: | CRIMINAL LAW – APPEAL – Justices Act 1886 – section 222 – appeal against sentence – where the appellant pleaded guilty in the Magistrates Court to one count dangerous operation of a motor vehicle whilst adversely affected – where the appellant was sentenced to four months’ imprisonment, 18 months’ probation and disqualified from holding or obtaining a driver licence for four years – where the appellant sought leave to amend the grounds of appeal – where the magistrate at first instance made a legal and/or factual error – whether power to amend under s 48 Justices Act 1886 was enlivened – whether matter should be remitted to the Magistrates Court for rehearing and determination. Justices Act 1889, s 48, s 222, s 223 Penalties and Sentences Act 1992, s 9, s 159A Commissioner of Police Service v Magistrate Spencer & Ors [2013] QSC 202 Commissioner of Police v Al Shakarji (2013) QCA 319 Hayes v Wilson, ex parte Hayes (1984) 2 Qd R 114 House v The King (1936) 55 CLR 499 Kennett v Holt (1974) VR 644 Mbuzi v Torcetti [2007] QDC 374 Mitchell v Myers (1955) 57 WALR 49 Paulger v Hall [2002] QCA 353 Teelow v Commissioner of Police [2009] QCA 84 White v Commissioner of Police [2014] QCA 121 |
COUNSEL: | A W Collins for the appellant E J Shaw for the respondent |
SOLICITORS: | K J Seaniger and Associates for the appellant Director of Public Prosecutions for the respondent |
- [1]The appellant pleaded guilty in the Magistrates Court at Mackay on 16 September 2015 to a charge of dangerous operation of a motor vehicle whilst adversely affected and was sentenced on 18 September 2015 to four months’ imprisonment to be followed by 18 months’ probation. He was also disqualified from holding or obtaining a driver licence for four years.
- [2]He now appeals against that sentence pursuant to s 222(2)(b) and (c) Justices Act 1886 (‘Justices Act’).
- [3]The appellant had served the four month period of imprisonment prior to this appeal being heard.
Grounds of appeal
- [4]The appellant has sought leave to amend the grounds of appeal to the following:
- 1.The sentence imposed was manifestly excessive;
- 2.The disqualification period imposed was manifestly excessive;
- 3.The learned magistrate failed to give adequate reasons as to the length of the disqualification period imposed; and
- 4.The learned magistrate failed to appropriately balance the considerations of s 9 of the Penalties and Sentences Act 1992 in arriving at his decision.
- [5]Such leave was granted at the hearing of the appeal on 22 February 2016.
Further grounds of appeal
- [6]The amended grounds of appeal listed above were first identified in the appellant’s Amended Outline of Submissions dated 19 February 2016. The matter first came before me for hearing on 22 February 2016. On 25 February 2016 I reconvened the court to seek further submissions from the parties on a separate issue, which, to that point in time, had not been the subject of any submissions.
- [7]The issue of concern was that the facts upon which the appellant had been sentenced did not coincide with the charge to which he had pleaded guilty. The charge read:
“That on 3rd day of July 2015 at Paget in the state of Queensland, Paul Arthur O'Neill dangerously operated a motor vehicle, namely a motor car at a place, namely Farrellys Road at Paget And at that time, Paul Arthur O'Neill was adversely affected by an intoxicating substance.”[1]
- [8]The record reveals however, that the appellant was sentenced in relation to a continuing course of driving over many streets and over a reasonably prolonged period of time, and was thus at odds with the particulars of the charge that restricted the offending conduct to Farrellys Road at Paget.
- [9]Both parties have subsequently filed further Outlines of Submission regarding this issue.
- [10]The appellant now seeks leave to add two further grounds of appeal:
- 1.The primary magistrate erred in fact in taking into account allegations of fact which went beyond the allegations averred to in the charge to which the appellant entered his plea of guilty.
- 2.That the primary magistrate erred in ordering a period of 18 months’ probation be commenced at the conclusion of the period of imprisonment.
- [11]The respondent does not object to leave being granted allowing these further grounds of appeal.
Circumstances of offending conduct placed before the Magistrates Court
- [12]Stated briefly, the facts placed before the court below and upon which the appellant was sentenced were:
- On 3 July 2015 at 3.37 pm police received a triple-zero call from Robin Fanti in relation to a white Hilux utility with Queensland registration 307 TOZ which had collided with her neighbour’s mailbox on Huntely Road at Sarina, and was driving erratically on Huntely Road;[2]
- Ms Fanti advised police that the vehicle was heading north towards Mackay, and described the driver as male and wearing an orange shirt;[3]
- Police received a second triple-zero call at 3.42 pm from Sean Fallon, who stated that he observed a white utility with uncovered green waste in the rear driving erratically all over the road, again heading north towards Mackay on the Bruce Highway north of Sarina. Fallon described the driver as being male and wearing a high visibility shirt;[4]
- Police received a third triple-zero call at 3.52 pm from a Wayne Anderson. He advised that a white utility with Queensland registration 307 TOZ had hit his vehicle and damaged the front bulbar and then kept driving on Farrellys Road at Paget.[5] A witness, Gary McMahon, recorded the incident on video;[6]
- Police received a fourth triple-zero call at 3.54pm from Joel McFadden, who advised police that a white utility with registration 307 TOZ had collided with both his vehicle and another, and also collided with another vehicle, and was driving all over the road. McFadden followed the vehicle to Trogolby Street in East Mackay, where the vehicle stopped;[7]
- At approximately 4:00pm Police attended at that address and observed a white Hilux, registration number 307 TOZ with uncovered green waste in the rear of the vehicle. They observed a male person with an orange high visibility shirt lying on the driveway of number 16 Trogolby Street;[8]
- A resident, Matthew Mason, told Police that the male person lying down had driven the utility to this address.[9] That male person was the appellant and police observed that he had glassy eyes, dishevelled clothing and he was slurring the end of his words;[10]
- The appellant provided a specimen of breath which returned a positive result. He was arrested and taken to Mackay for further testing. He was unsteady on his feet and needed assistance standing. At 5.12 pm he returned a reading of 0.175BAC. He declined to participate in an interview with Police.
The appeal
- [13]Section 223 of the Justices Act provides that an appeal is by way of rehearing either on the original evidence, or if leave is granted to adduce new evidence, on both the original and the new evidence.
- [14]This is an appeal against the exercise of the magistrate’s discretion and therefore an error in the House v The King[11] sense needs to be demonstrated.
- [15]It is well-established that to succeed on such an appeal the appellant must establish some legal, factual or discretionary error.[12]
Antecedents
- [16]Given the conclusion that I reach in this matter, it is unnecessary for me to detail the appellant’s antecedents.
Factual error
- [17]There can be no doubt that there was a legal and/or factual error made by the magistrate when he sentenced the appellant on a factual basis that went far beyond the particulars of the complaint. The respondent quite properly concedes the point.[13]
- [18]It follows that if the sentence ordered in the Magistrates Court is set aside, as it must be, the next issue for resolution would be whether:
- (a)this court can amend the charge to reflect the facts presented, by adding the words “and elsewhere” to the charge, and then proceed to resentence; or
- (b)this court should remit the matter to the Magistrates Court for rehearing and determination with an order for particulars to be provided, to allow the amendment of the charge before resentence by a magistrate; or
- (c)this court proceed to resentence on the narrow particulars as stated in the charge.
- [19]The appellant has submitted that the court should proceed to resentence on the narrow particulars as stated in the charge and, given that he has already served four months’ imprisonment, he should be sentenced to a term of imprisonment of four months with a declaration that that period of time has already been served under the sentence.[14] He also submits that this court should order that he be disqualified from holding or obtaining a driver licence for the minimum statutory period of six months.
- [20]The respondent has submitted that s 48 of the Justices Act provides statutory authority for this court to order the amendment of the complaint as appears necessary or desirable in the interests of justice, by adding the words, “and elsewhere” after the words “Farrellys Road, Paget” in the complaint. The respondent submits that such an amendment should be made and that this court should then resentence the appellant to the same sentence as was imposed in the first instance.
Consideration of this issue
- [21]Any potential amendment pursuant to s 48 of the Justices Act is predominately guided by the words “as appears necessary or desirable in the interests of justice”. The term “interests of justice” involves a consideration of the justice of the potential amendment to both the defendant and to the prosecution. Such a process may well involve a balancing of completing considerations.
- [22]With that in mind, it is noteworthy that both the appellant’s counsel and the prosecutor in the court below approached this matter on the apparent understanding, albeit mistaken, that the charge before the court reflected the complete course of driving and their submissions were tailored accordingly. That however, does not change the fact that the appellant only entered a plea of guilty to a charge that alleged the dangerous operation of a motor vehicle on just one street. Obviously, the appropriate sentence for such a restricted set of facts would have been substantially less severe than a sentence which reflected the full driving conduct. Hence, this is a matter that requires resolution.
- [23]It is of significance that the anomaly between the particulars on the complaint and the facts presented to the court, was first raised by this court and not by the appellant. And, as I have said, defence counsel in the court below approached the matter as if the full course of driving conduct formed part of the complaint. The reasonable inference arising from those facts is that the appellant entered the plea of guilty believing that the complaint referred to the full driving conduct. It does not appear to me that the appellant had believed or felt, prior to this court raising the issue that a miscarriage of justice had occurred because he had been sentenced on a set of facts to which he had not intended to plead guilty.
- [24]Despite the fact that the appellant has already served the period of four months imprisonment, it is my view that the appropriate course to adopt in this matter is to set aside the sentence below and order that the proceeding be sent back to the Magistrates Court for rehearing and determination with an order for particulars to be provided.
- [25]The interests of justice require that the appellant be sentenced in relation to the full offending conduct. As I have indicated, I infer that the appellant had expected to be sentenced on that basis in the first instance. Nevertheless, the interests of justice also require that the appellant be given the opportunity to contest any part of the full allegations that he might disagree with. No unfairness or prejudice arises as a consequence of he having already served four months’ imprisonment, as that time can be declared if any future sentence involves an order for imprisonment.[15] Similarly, any period of time that the appellant has already undertaken pursuant to the probation order can be taken into account in any future order of a similar nature. Furthermore, given the passage of time that has already elapsed between the date of the offending conduct and now, the passage of some further time until the matter is dealt with in the Magistrates Court would not be oppressive to the appellant.
- [26]I reject the appellant’s submission that this court should resentence him on the limited facts that coincide with the wording of the current complaint, as that would not comply with the interests of justice which require that an offender be dealt with for the full offending conduct.
- [27]Furthermore, given that the correct charge has not been before the Magistrates Court, the most appropriate course is for this court to remit the matter to that court to allow an amendment to be made pursuant to s 48, if such an amendment is deemed appropriate and to give the appellant the opportunity to agree with or contest any relevant fact that is properly incorporated in the charge. It is preferable that the appellant be sentenced (or tried if he does not accept the facts) at the first instance in the Magistrates Court with the correct charge before that court.
- [28]Of course, it would be a matter for that court to determine if an amendment pursuant to s 48 should occur, but given that the original sentence would at that stage have been set aside, there would appear to be no lawful impediment to such an amendment being made.[16] If the magistrate decides that such an amendment should not occur, then the appellant can be sentenced on the restricted facts that are consistent with the charge before the court.
- [29]That is not to say that I am of the view that this court does not have power on a s 222 Justices Act appeal, to order an amendment pursuant to s 48. Section 225(1) of the Justices Act states that on the hearing of an appeal, the judge may confirm, set aside, or vary the appealed order or make any other order the judge considers just. Subsection (3) states that the judge may exercise any power that could have been exercised by whoever made the order appealed against. In Commissioner of Police Service v Magistrate Spencer & Ors,[17] Henry J said at [95]:
“Section 225(1) permits more than the confirmation, setting aside or varying of the appealed order. It is also permits the making of ‘any other order in the matter’ the judge considers just. (emphasis added). Those words and their context mean a District Court Judge has the power to make such orders as are just in the case which is under appeal and is not restricted to interfering solely with the specific order under appeal.”
- [30]It follows, that on a s 222 Justices Act appeal, a District Court judge may, after setting aside the sentence, order an amendment to the complaint pursuant to s 48 in the exercise of discretion. The test to be applied in a case of an amendment pursuant to s 48 is whether the offence sought to be changed by the amendment is one cognate to the offence in respect of which the amendment was sought.[18] In Hayes v Wilson ex parte Hayes,[19] Campbell CJ accepted the definition of the term “cognate offence” as stated by Pape J in Kennett v Holt[20] where his Honour said:
“The offence charged by the amendment was a cognate offence to that originally charged in that it was akin in origin and quality and allied in nature to the offence originally charged.”[21]
- [31]Ultimately whether an amendment pursuant to s 48 is appropriate in this matter will be an issue for a magistrate to determine and for that reason I refrain from any further comment on the subject.
Other grounds of appeal
- [32]Given my conclusion that this is a matter which should be remitted to the Magistrates Court for rehearing, it is unnecessary and would be inappropriate for me to consider the other grounds of appeal.
- [33]Accordingly, I order as follows:
- 1.Leave is granted to the appellant to add a ground of appeal to the following effect:
“The primary magistrate erred in fact in taking into account allegations of fact which went beyond the allegations averred to in the charge to which the appellant entered his plea of guilty.”
- 2.Appeal upheld.
- 3.The sentence order made in the Magistrates Court at Mackay on 18 September 2015 is set aside.
- 4.The matter is remitted to the Magistrates Court at Mackay for rehearing and reconsideration by a magistrate other than the magistrate who dealt with the matter on 18 September 2015.
- 5.The respondent provide particulars of the offence to the appellant within 21 days of the date of this order.
Footnotes
[1] Transcript of proceedings, Magistrates Court of 16 September 2015 at pp 1-4 lines 4-8.
[2] Transcript of proceedings in Magistrates Court pp 1-2 lines 12-17.
[3] Transcript of proceedings in Magistrates Court pp 1-2 lines 26-27.
[4] Transcript of proceedings in Magistrates Court pp 1-2 lines 28-33.
[5] Transcript of proceedings in Magistrates Court pp 1-2 lines 34-36.
[6] Transcript of proceedings in Magistrates Court pp 1-2 line 36.
[7] Transcript of proceedings in Magistrates Court pp 1-2 lines 38-41.
[8] Transcript of proceedings in Magistrates Court pp 1-2 lines 37-42.
[9] Transcript of proceedings in Magistrates Court pp 1-2 lines 46-47.
[10] Transcript of proceedings in Magistrates Court pp 1-2 line 47 to pp 1-3 line 3.
[11] (1936) 55 CLR 499 at 504-505; Teelow v Commissioner of Police [2009] QCA 84 at [4] and [18].
[12]Commissioner of Police v Al Shakarji (2013) QCA 319 at [65] per Margaret Wilson J; Teelow v Commissioner of Police [2009] QCA 84 at [3]-[4]; White v Commissioner of Police [2014] QCA 121 at [8].
[13] Paragraph 11 of the respondent’s addendum outline of submissions dated 8 March 2016.
[14]Penalties and Sentences Act 1992, s 159A(3)(c).
[15] Section 159A(3)(c) Penalties and Sentences Act 1992.
[16]Paulger v Hall [2002] QCA 353 at [8] and [31]; Mitchell v Myers (1955) 57 WALR 49 at 53.
[17] [2013] QSC 202.
[18]Hayes v Wilson, ex parte Hayes (1984) 2 Qd R 114; Mbuzi v Torcetti [2007] QDC 374, [21].
[19] Supra.
[20] (1974) VR 644.
[21] At p 123, line 10.