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- Unreported Judgment
Syrmis v Commissioner of Police QDC 225
DISTRICT COURT OF QUEENSLAND
Syrmis v Commissioner of Police  QDC 225
DAVID JOHN SYRMIS
COMMISSIONER OF POLICE
67 of 2017
Appeal under s 222 of the Justices Act 1886
Magistrates Court at Caloundra
25 August 2017 (Order)
7 September 2017 (Reasons)
25 August 2017
Long SC DCJ
Confirm the orders made by the sentencing Magistrate on 24 May 2017.
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – s 222 of the Justices Act 1886 – Where the appellant entered a plea of guilty in the Magistrates Court to the offence of having in his possession a thing, namely a plastic bottle, grinder and scissors that he had used in connection with the smoking of a dangerous drug – Where the appellant was fined and a conviction was recorded – Where the appellant appeals against the recording of a conviction on the basis that it was manifestly excessive – Whether the recording of a conviction was manifestly excessive – Whether the proceedings in the Magistrates Court were appropriate or procedurally fair.
Evidence Act 1977 s 132C
Justices Act 1886 ss 222; 223 and 225
Penalties and Sentences Act 1992 ss 12(2)(c); s 12A(2)(b); 17(2) and 19
R v Clayton  2 Qd R 439
R v Cunningham  QCA 321
R v Field  QCA 188
House v R (1936) 55 CLR 499
Hurst v Henry  QCA 383
R v Kitson  QCA 86
R v McDougall & Collas  QCA 365
R v Rogers  2 Qd R 43
The appellant appeared on his own behalf
J Dias for the respondent
The appellant appeared on his own behalf
Commissioner of Police for the respondent
- These are the reasons for the order made on 24 May 2017, to confirm the orders made by the sentencing Magistrate in this matter.
- On 24 May 2017, the appellant entered a guilty plea to the offence that:
“On 4 May 2017 at Reesville in the Magistrates Court district of Maroochydore in the state of Queensland he had in his possession a thing, namely a plastic bottle, grinder and scissors that he had used in connection with the smoking of a dangerous drug.”
He was fined and a conviction was recorded.
- On 6 June 2017 he filed a notice of appeal in this Court, with the sole stated ground being:
“The penalty was manifestly excessive in that a conviction was recorded. The fine amount is not disputed.”
- As is the case here and in the absence of any successful application to adduce “new evidence”, the appeal is conducted by way of rehearing on the record of the proceedings below. In such an appeal, this Court is required to conduct a review of the sentencing hearing and ultimately correct any error of the sentencing Magistrate, determined on the basis of that review and this Court’s own conclusions. Necessarily, regard must be had to the issues raised by the grounds of appeal and where, as here, the appeal is in respect of an exercise of discretion, the principles discussed in House v R are applicable.
- In the proceedings before the sentencing Magistrate, the police prosecutor stated the following:
“Facts in relation to the matter. It was 4 May 2017. It was 7.05am. Police have executed a search warrant at a Reesville address. The defendant who appears was present for that search, was the occupier of the dwelling. Police have outlined the provisions of the search. The defendant stated there was no cannabis at the address.
Police have then conducted a search of the defendant’s dwelling and yard, located a blue plastic drink container, a screw-top lid lying in the front garden next to the front door of the house. Inside, police have located an electric grinder, a small, blue metal pipe. The electric grinder smelt strongly of cannabis. Beside this container were also two clip seal bags which had signs of being used to store cannabis. No– but no cannabis was located.
The defendant admitted the water container and items located inside were his. He stated that he had discarded the container into his front yard when he moved into the house and had forgotten about the items inside it. He stated the electric grinder had been used to grind herbs. The defendant stated that the metal pipe had not been used. The defendant– police established that cannabis was the herb the defendant was referring to and that he usually smoked it in a joint.
On the rear veranda of the defendant’s dwelling, police have located a plastic soft drink bottle hidden inside a bucket hanging from a rafter. It smelt of burnt cannabis and appeared to be part of what is referred to as a “bucket bong”. There’s no cone use [sic]. Defendant stated he’d used it to smoke herbs. There were also scissors located. Defendant was unco-operative with police throughout the search, subsequently charged with the matter before the court, your Honour.”
- The prosecutor then tendered the defendant’s criminal history, which disclosed that on 17 November 1994, the appellant was convicted and fined $100, in the Caloundra Magistrates Court, for an offence of unlawfully taking shop goods away (on 2 November 1994). Then on 24 September 2015, he was placed on a reconnaissance in the sum of $1,200 to be of good behaviour for a period of 12 months, in the Caloundra Magistrates Court, in relation to offences of possession of dangerous drugs and possession of utensils or pipes that had been used (on 3 September 2015), with no conviction recorded. Subsequently and on 23 June 2016, the appellant’s reconnaissance was forfeited. He was given three months to pay, in default 12 days imprisonment and placed on a reconnaissance in the sum of $400 to be of good behaviour for a period of four months and referred to drug diversion, in the Maroochydore Magistrates Court, for an offence of possessing dangerous drugs (on 3 June 2016), with no conviction being recorded.
- At the sentencing hearing, the appellant was represented by a barrister, acting as duty lawyer. His submissions to the Court were as follows:
“He’s 41 years old, lives in a bus on his mum and dad’s property. He’s a self-employed landscaper, lawn-mowing man. He has two adolescent boys aged 18 and 16, and his current partner, who– they live separately, has three small children, two, seven and eight.
Ultimately, he hadn’t done a clean-up since the last time the police came. There was no cannabis found. I’d ask the matter proceed by way of a fine; however, he regularly travels to New Zealand. He has friends on the South Island. And I ask that no conviction be recorded on this occasion.”
- In respect of the final submission as to no conviction being recorded, the Magistrate indicated:
“I’ll hear submissions on that, this being a third offence. It’s his third offence of drug-related matters. I’ll hear submissions on whether a conviction should be recorded or not.”
- The prosecutor’s submission was:
“…it would be my position that it would be– a conviction should be recorded in this instance, your Honour. The defendant’s been before the court with some regularity September 2015, June 2016 and again appears before the court today. Would have been instructed on those previous occasions the risk of reoffending, has been given the benefit on the last occasion of the non-recording of a conviction, and that’s only some– you know, that’s within the 12-month period here, your Honour. So I certainly would think that a conviction should be recorded in this instance.”
- The further submissions of the duty lawyer were:
“Again, he hadn’t done a clean-up. There was no cannabis literally found. Other than the social aspect of it, I have nothing further in relation to impacts upon employment. It’s merely a discretion, but I’d ask your Honour to exercise it in his favour this time.”
- The sentencing remarks and orders of the Magistrate were as follows:
“I take into consideration your early plea of guilty. Your criminal history is marked Exhibit number 1. Notice to appear, possession of dangerous drugs in 2015 in August and then in June of 2016 another possession of dangerous drugs.
On the first occasion you were given a good behaviour bond for 12 months, $1200. Second occasion on the– that recog– original recog was forfeited and then you were given a further recog $400 to be of good behaviour for four months with drug diversion. I find it very difficult to believe that these instruments were part of the original offences given the time lapse between June in 2016 and May of 2017. You’ve been given two chances before and you appear back before the court on a third charge. I also take into consideration that you are not a young man in terms of where the benefits are given; you’re 41 years old. You should know better. In the circumstances, a conviction is recorded. You’re convicted and fined $300 in defaults. [sic]”
- The respondent, amongst other things, notes the sentencing Magistrate’s “rejection of the [appellant’s] explanation for the offence”. Although it is not expressed in clearly definitive terms, that would appear to be the effect of the observations by the stipendiary magistrate:
“I find it very hard to believe these instruments were part of the original offences given the time lapse between June in 2016 and May of 2017. You’ve been given two chances before and you appear back before the court on a third charge.”
- Those observations are problematic, because the appellant seeks to identify his explanation for his possession of the relevant items, as being an important circumstance in respect of his contention that the exercise of discretion as to whether or not to record a conviction for that offence, has miscarried. Although extending beyond being in the nature of a submission as to the original evidence, in his written outline, he states:
“You can imagine my complete horror and embarrassment throughout the whole ordeal. They found some old scissors, I don’t even know where they came from and a 240V coffee grinder in a drink esky that was half full of water, which made it inoperable. A top half of a coke bottle without a cone piece and a brand new pipe again without a cone piece. All of this was residual from past offences. It was very stupid of me not to have discarded them previously. But I forgot they were there and paid no attention to them– as I don’t smoke anymore.”
- In the first instance and whilst it has been recognised that a sentencing court is not required to act on or accept a defendant’s version or explanation, if that is inherently improbable, the older authorities do not expressly consider how such a sentencing court may deal with such an issue, when it arises. In Hurst v Henry, and after reference is made to some earlier authorities and where error had been found when sentencing magistrates had acted upon material prosecution contentions that were disputed by the defendant but remained unresolved, Pincus JA observed:
“Then in Jones v Chalmers, ex parte Chalmers (1965) Qd R 508, the magistrate, in a driving case, acted upon a disputed statement as to the circumstances of the offence put before the court on behalf of the prosecution. West v Sprinkhuizen was applied and the magistrate’s decision upset.
These three cases must now be read in the light of the principle approved in Clayton, namely that the defence version does not have to be accepted if it appears to the court to be inherently improbable, keeping in mind that in the sentencing process the court is not necessarily bound to apply the rules of evidence, so long as fairness is preserved.”
- In the same case and in the joint judgment of Davies JA and Cullinane J and after it was noted that it was “not entirely clear which account the learned Stipendiary Magistrate accepted for the purposes of imposing sentence,” it was stated:
“On a plea of guilty where, as here, there is a substantial difference between the circumstances concerning the commission of the offence as 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 most favourable to a defendant ought to be accepted.”
- The reference by Pincus JA to the need for preservation of fairness in the sentencing process, is consistent with an analogous recognition of the application of the requirement of procedural fairness and error that occurs when a sentence of a particular and other than usually anticipated kind, is imposed, without providing the parties with notice and an opportunity to be heard in respect of that issue.
- As was more recently noted and discussed in R v Field, s 132C of the Evidence Act 1977 is applicable and after discussion of a number of authorities relevant to the issue as to whether a judicial officer is bound or not bound to accept submissions made on sentence from the bar table, it was discussed:
“ A sentencing judge is not obliged to accept assertions made from the Bar table even if the prosecution leads no evidence to the contrary and even if the prosecution is silent about the matter. However, the judge's inclination to reject such a matter of asserted fact must be made known to the offender and a reasonable opportunity must be offered to make good what has only been asserted. Even when evidence has been tendered to prove the contentious fact, a judge is not obliged by the statute to accept such proof. However, in all cases, whether involving mere assertions of fact or involving evidence called to prove such an assertion, the usual principles that govern a judge's acceptance or rejection of disputed facts apply including that the judge's decision must be justified by reasons.”
- Accordingly, the Magistrate’s lack of preparedness to accept the defendant’s explanation, as assertion from the bar table, should have been identified, so that the parties had the opportunity to adduce any relevant evidence, should that explanation have been persisted in by the defendant. However, the more fundamental problem appears to have been the absence of recognition of the divergence and the potential significance of it, by the prosecutor and the duty lawyer and accordingly, the absence of assistance given to the Magistrate on the point. The contrary position appears by implication rather than express statement in the prosecutor’s submissions to the Magistrate. But it need scarcely be observed that judicial officers should be assisted by the parties in identification of any significant divergences in the facts contended as the basis for sentencing defendants. This also means that even in the case of a busy duty lawyer, practitioners need to be astute to an understanding that where submissions are made which are likely to be in dispute or regarded as being improbable, that their instructions in that regard are clear and submissions made with an understanding that they may need to be supported by evidence, if necessary.
- In that regard, two things may be identified:
- (a)First that the position contended by the defendant to the sentencing Magistrate failed to fully comprehend that the offence being dealt with was the defendant being found in possession of the impugned items on 4 May 2017, whether or not they had earlier been in the defendant’s possession and that in this respect, the offending was additional to and separate to the earlier offending and a third instance of offending prohibited by the Drugs Misuse Act 1986; and
- (b)Secondly, the explanation which was then put forward for the defendant is now put at odds and on the face of it, is significantly undermined by what is put forward in the appellant’s outline and which may be expected to be confirmed in any evidence he would provide to a Court. That is because and contrary to the tenor of the submission made for him to the Magistrate and in order to contextualise his further assertions, as they have been referred to above, he explains that the relevant belongings were moved by him to the house where they were located, being that of a woman he had met some six months ago.
- In that outline he otherwise asserts:
“The reason I am lodging this appeal:–
- A conviction will affect future job prospects.
- I am unable to travel overseas with my sons.
- Is a detriment to my past good name and reputation.
- I believe a conviction if manifestly excessive.
After seeing a solicitor, I was informed a ‘court drug diversion’ was available to me but was not offered, I feel the duty lawyer did not give me enough information on the day I was convicted and also feel the court should have offered some counselling or alternative therapy other than a conviction.
I am trying to get my life back to some normality after my divorce, I have a loving partner, I see my sons regularly. I work hard and no longer have the negative influences in the community, I am a good father and have defiantly [sic] seen the ramifications of drug use and alcohol to overcome the most difficult time in my life.”
- Leaving aside, for the moment, the problem as to the basis upon which the appellant was apparently sentenced, it may be noted that the contention as to the availability of “court drug diversion” is also problematic for the appellant. This is because his appeal expressly seeks only relief in respect of the recorded conviction and whilst the order as to the fine remains, there is an apparent inconsistency with the availability of an order pursuant to s 17(2) and s 19 of the Penalties and Sentences Act 1992 (the “PSA”). And in any event, such a contention appears to lack foundational support, having regard to the appellant’s stated position as to no longer using cannabis.
- Further, it may be noted that:
- (a)The appellant is now aged 41 years and in self-employment and there has been nothing specific put forward so as to engage s 12(2)(c) of the PSA. That includes the contention as to prospective travel to New Zealand. As was pointed out to the appellant upon the hearing of the appeal, it is generally understood that no visa is required for travel to New Zealand by an Australian citizen (as the appellant confirmed he was) and the appellant has not proffered any evidence or pointed to any legislative restriction, as to any impact on his future ability to travel there, if this conviction remains recorded;
- (b)Whilst the appellant’s character is a relevant circumstance pursuant to s 12A(2)(b) of the PSA, his antecedents now include those convictions for which no recording was ordered; and
- (c)Irrespective as to any error as to the basis upon which the Magistrate proceeded, it may have been within an appropriate exercise of judicial discretion to record a conviction for this further offence and therefore not a manifestly excessive exercise of discretion by the sentencing Magistrate.
- Accordingly, the determination of this appeal devolved to consideration of the issue as to the basis upon which the appellant was sentenced and as to whether those proceedings were appropriate or procedurally fair in relation to such determination. However, any such determination would appear to lead only to a conclusion that the appellant should be given the opportunity to support his contention as to the absence of any contemporary use of the things the subject of the charge and, of course, the respondent also given the opportunity to lead evidence which might lead to a contrary inference or conclusion. That could conceivably include evidence as to what had occurred when the prior offending of the appellant was discovered by police action.
- The possibilities are for such an opportunity to be provided by an order pursuant to s 225 of the Justices Act 1886 remitting the matter to a magistrate, or upon the further consideration of the appeal in this Court. But upon explanation of those possibilities to the appellant and the indication from this Court (particularly in light of the developments that have been noted as emerging from the appellant’s written submissions on this appeal) that this Court shared the expressed view of the Magistrate as to his contentions being inherently improbable and such as to require support by evidence if they were to be acted upon, the appellant indicated that he did not wish to pursue such a course, at a further hearing and by adducing such evidence.
- Accordingly and in those circumstances, the appropriate order was to confirm the orders made by the sentencing Magistrate.
Justices Act 1886, s 223.
s 223 Justices Act 1886 and see: Powell v Chief Executive Officer of Australian Customs Service  QCA 313, at - and Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, at 686-7; and cf: Fox v Percy (2003) 214 CLR 118, at , Teelow v Commissioner of Police  QCA 84, at -, Tierney v Commissioner of Police  QCA 327, at , Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police  QCA 181, at , Commissioner of Police v Al Shakaji  QCA 319, White v Commissioner of Police  QCA 121 and Forrest v Commissioner of Police  QCA 132.
Justices Act 1886, s 222(8)(a) and see: Forrest v Commissioner of Police  QCA 132.
(1936) 55 CLR 499 at 505.
Teelow v Commissioner of Police  QCA 84 at  and cf: Forrest v Commissioner of Police  QCA 132.
This is where the transcription ends but it can be noted that the endorsement on the bench charge sheet indicates that the recovery of the fine was immediately referred to SPER.
See respondent’s outline of submissions filed 1/8/17, at 5.9.
See applicant’s outline of argument, at p 2, 4th paragraph.
R v Rogers  2 Qd R 43, R v Clayton  2 Qd R 439 and Hurst v Henry  QCA 383, per Pincus JA.
Ibid at p 7. However, it may be noted that no authority is cited for the stated proposition.
See R v Cunningham  QCA 321 at , R v McDougall & Collas  QCA 365 at  and R v Kitson  QCA 86 at -.
 QCA 188 at -.
And that position was confirmed to be the respondent’s position on the hearing of the appeal.
See para , above.
See appellant’s outline of argument filed 4/7/17, at p 2, 2nd paragraph.
See applicant’s outline of argument, at p 2.
- Published Case Name:
Syrmis v Commissioner of Police
- Shortened Case Name:
Syrmis v Commissioner of Police
 QDC 225
07 Sep 2017