Jones v Queensland Police Service
[2018] QDC 182
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- Unreported Judgment
- Jones v Queensland Police Service[2018] QDC 182
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Jones v Queensland Police Service[2018] QDC 182
Jones v Queensland Police Service[2018] QDC 182
DISTRICT COURT OF QUEENSLAND
CITATION: | Jones v Queensland Police Service [2018] QDC 182 |
PARTIES: | RODNEY JAMES JONES (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | APPEAL NO: 2792/18 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Innisfail |
DELIVERED ON: | 6 September 2018 |
DELIVERED AT: | Cairns |
HEARING DATE: | 5 September 2018 |
JUDGE: | Morzone QC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 - conviction – possessing relevant substances or things – possess property suspected of having being used in commission of a drug offence – mode of hearing of appeal – whether there was a failure to afford natural justice – where parties not disabused of common approach to sentencing structure and nor given opportunity to be heard in respect of comparative authority before sentence decision and – whether sentence excessive. Legislation Justices Act 1886 (Qld) ss 222, 223, 227 Corrective Services Act 2006 (Qld) ss 205, 209 Penalties and Sentences Act 1992 (Qld) ss 9, 160B Cases AB v R (1999) 198 CLR 111 Allesch v Maunz (2000) 203 CLR 172 Dwyer v Calco Timbers (2008) 234 CLR 124 Forrest v Commissioner of Police [2017] QCA 132 Fox v Percy (2003) 214 CLR 118 International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319 Kentwell v The Queen (2014) 252 CLR 60 Kioa v West (1985) 159 CLR 550 McDonald v Queensland Police Service[2017] QCA 255 R v Cruice (Unreported, District Court Qld, 13 September 2017, Ryrie DCJ) R v Dicks (Unreported, District Court Qld, 19 February 2016, Long DCJ SC) R v Hollidge (Unreported, District Court Qld, 2 October 2015 Dorney DCJ QC) R v Moore (Unreported, Supreme Court Qld, Atkinson J) Teelow v Commissioner of Police [2009] QCA 84 Warren v Coombes (1979) 142 CLR 531 White v Commissioner of Police [2014] QCA 121 |
COUNSEL: | J Trevino for the appellant C Georgouras for the respondent |
SOLICITORS: | Legal Aid Queensland for the appellant The Office of Director of Public Prosecutions for the respondent |
- [1]On 19 June 2018 the appellant was convicted after pleading guilty, and was sentenced in the in the Magistrates Court held in Innisfail to an effective 9 months imprisonment with a parole eligibility date of 19 September 2018 for possessing relevant substance or things, and possess property suspected of having been used in connection of an offence.
- [2]The appellant applied for bail on 31 August 2018. Both parties provided outlines of argument. Having regard to the proper concession of an error and the merits of the appeal, the parties were invited to expedite the appeal hearing to today.
- [3]Both parties made further submissions on the hearing of the appeal, which I have considered.
Background
- [4]After a search of the applicant’s residence on 1 February 2018, police found a collection of items that may have been used in the production of methylamphetamine. A subsequent search of a storage shed rented in the applicant’s name uncovered further items, mostly glassware and other related items, which had the potential to be used in the production of methylamphetamine. The applicant committed the offences in breach of probation and parole.
- [5]In a recorded police interview, the appellant admitted possession of the items but asserted that they were owned by another unnamed person.
- [6]At sentence the prosecutor submitted for a sentence of 12 to 18 months but conceded that a wholly suspended sentence would be appropriate. The applicant’s solicitor submitted a wholly suspended sentence in the range of 12 to 15 months imprisonment.
- [7]The learned magistrate did not disabuse either party of that course or otherwise expose before the sentence the comparative cases later relied upon Her Honour to impose an actual term of imprisonment with a parole eligibility date.
Grounds of Appeal
- [8]The appellant appeals against the sentence in reliance on the amended grounds of appeal in the notice of appeal as follows:
- The sentence is excessive;
- The learned magistrate erred in failing to provide procedural fairness to the appellant.
Mode of Appeal
- [9]The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld). Pursuant to s 223 of that Act the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave.[1]
- [10]For an appeal by way of rehearing, “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.”[2] Accordingly, this court ought consider each ground of appeal and conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.[3]
- [11]
"It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if 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. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
- [12]
“In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.”
- [13]The decisions distinguished cases of specific error and manifest excess. Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed. By contrast, an error may not be discernible; but the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
Failure to afford natural justice
- [14]The appellant also contends that the learned magistrate failed to accord the appellant natural justice, by failing to afford the opportunity to present his case, by not exposing during argument the prospect of imposing an actual term of imprisonment with a parole eligibility date in reliance upon her own research of comparative cases.
- [15]In this appeal the learned magistrate apparently relied on a number of decisions, which were the product of her own research. This was first revealed during the sentencing decision when Her Honour said:[6]
“Now I have taken into account the sentences which I have been provided by the Prosecutor. I have also taken into account all matters that have taken into account all matters that have been raised by your lawyer and also by the Prosecutor today. I have taken the opportunity of the break to consider also a number of other sentences in relation to offences, particularly under section 9A, and I have had the opportunity to read those sentence. I will not go through all of those sentences, but it seems to me in light of those sentences that I have considered – that in part include the matter of Donovan Roy Hullidge, James Patrick Tulton, Nathan John Lett, Megan Lee Solomon – that a sentence of imprisonment in relation to this offence – and, of course, it is aggravated by the fact that you were on parole and you were on probation in relation to drug offence – is appropriate and no more severe in all the circumstances than that you should be sentenced to a term of imprisonment. So I am satisfied that that is appropriate.”
- [16]It is fundamental to our legal process, where apart from what I have said above, that a party is given the opportunity to be heard in the normal and ordinary sense of natural justice.
- [17]
“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.”
- [18]
“... One of the primary principles on which the judicial process in this country operates is the principle that before any judicial decision is made which has substantive consequence there generally should be a "hearing". A hearing takes place before a judge at a time and place of which the moving party has given notice to the defending party. At itboth parties have an opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders they ask for. This aspect of the rules of natural justice pervades Australian procedural law. It has several justifications, and their force is so great that exceptions to the hearing rule in judicial proceedings are very narrow.
One justification is that the forensic system employed in the courts of this country in civil proceedings for remedies having substantive consequences is adversarial. Ex hypothesi, it is not possible for a court to operate an adversarial system without the court having the evidence and arguments which each adversary wants to have considered. If the hearing rule were different, the system would be internally contradictory.
Another justification is that to act only on the version advanced by one adversary is to risk reaching unsound conclusions, and thus to risk both injustice and inefficiency. Experience teaches that commonly one story is good only until another is told. Where a judge hears one side but not the other before deciding, even if the side heard acts in the utmost good faith and makes full disclosure of all that that side sees as relevant, there may be considerations which that side had not entertained and facts which that side did not know which, if brought to the attention of the judge, would cause a difference in the outcome.
“The person most likely to have thought of cogent considerations, and to know the relevant facts, is the person whose interests are in jeopardy, that is the party opposing the decision. Therefore we shall avoid bad decisions best if we ensure that each potential decision, before it is finally decided, is exposed to what is likely to be the strongest possible criticism of it.”
Thus, hearing both sides before deciding tends to quell controversies and discontents. As Megarry J said in John v Rees:
“It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious’, they may say, ‘why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”
Of the last sentence Lord Hoffmann has observed: “Most lawyers will have heard or read of or even experienced such cases but most will also know how rare they are. Usually, if evidence appears to an experienced tribunal to be irrefutable, it is not refuted.” Perhaps both Megarry J and Lord Hoffmann are guilty of a little exaggeration. But even if Lord Hoffmann’s reasoning is completely correct, it does not destroy Megarry J’s point.”
- [19]In the result learned magistrate rejected the parties’ submissions to wholly suspend any sentence and instead the appellant was sentenced to actual imprisonment with an imposition of a parole eligibility date. For the charge of possessing relevant substance or things, the appellant was sentenced to 9 months imprisonment. For the charge of possess property suspected of having been used in connection of an offence, the appellant was sentenced to 3 months imprisonment. Her Honour set a parole eligibility date of 19 September 2018 being after 3 months of actual imprisonment.
- [20]The learned magistrate did not disclose her intent to rely upon, or the content of, the additional comparative cases, nor was there any opportunity afforded to either party to make further submissions as to the effect of the imposition of actual imprisonment. This opportunity ought to have been provided during argument or at lead before pronouncement of the decision.
- [21]Had that opportunity been provided, then the learned magistrate may have been disabused of any reliance upon other cases, and the structure of the sentence imposed, about which I elaborate later.
- [22]It seems to me that the appellant has shown the denial of natural justice deprived him of the possibility of a successful outcome avoiding actual custody. So much seems obvious by virtue of each party contending a wholly suspended sentence. The prosecution have not persuaded me that a properly conducted sentence could not possibly have produced a different result.
- [23]For these reasons, in my respectful view, the trial magistrate erred by failing to afford natural justice by providing an opportunity to be heard, has resulted in a serious miscarriage of justice.
- [24]Having come to that conclusion, which by itself warrants this court to re-sentence, it is unnecessary to deal with the ground of that the sentence was manifestly excessive.
Resentence
- [25]The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act 1992 (Qld) (“Penalties Act”) are to punish the offender to an extent or in a way that is just in all the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, make it clear that the community denounces the conduct in this offence, and protect the community.
- [26]Relevantly, the court is required to take account of the sentencing guidelines in ss 9(2), 10 and 11 of the Penalties Act. The appropriate sentence will depend on the particular circumstances of the offending and the degree of culpability and blameworthiness of the offender, and aggravating features including relevant past offending. The gravity of the offending is also gleaned by the maximum penalties, with due regard to the factors of mitigation balanced with general and, as appropriate, personal deterrence.
- [27]The applicable maximum penalty for the charges are - 15 years imprisonment for charge 1 - possessing relevant substance or things; and 2 years imprisonment for charge 2 - possess property suspected of having been used in connection of an offence. The penalties appropriately reflect the nature and seriousness, prevalence and need for personal and general deterrence.
- [28]The appellant’s offending was revealed by a search of his residence and a storage shed on 1 February 2018. Inside the appellant’s residential unit police found a 5 kilogram bucket of caustic soda, bottles of methylated spirits, glass tubes, thermometer, two camping stoves and a water pump with hoses attached. At the storage shed police found a collection of items that may have been used in the production of methylamphetamine comprising 13 laboratory glass items including four reaction vessels and two condensers, PH testers, a black hard case with foam inserts for glass wear storage.
- [29]The nature of the offences are self-evident, including that the relevant paraphernalia was located at two separate locations. But the offending ought be considered in the undisputed admissions of the appellant, which in my view reduced his culpability in the offending.
- [30]Whilst the residence and storage shed was in his name, the appellant disavowed owning the items. He explained to police that when he came home to see a friend cooking ‘ice’ in his kitchen, and ‘lost it’ and demanded he leave. He stated that the friend disassembled the lab and had thrown the glassware away. He later told police that these used items were ‘hidden’ behind his unit block. As to the glassware found in the storage shed, the appellant explained that a friend asked him to store them for him. The appellant believed the glassware was destined to be used, but had not yet been used, for the production of ‘ice’.
- [31]I take into account the timing of his plea of guilty, and co-operation with investigators which is acknowledged in the schedule of facts, as well as saving time, cost and inconvenience of a trial. The prosecution below or on appeal did not contest the veractiry of the defendant’s explanation to police as to the circumstances of his possession leading to the offending.
- [32]The appellant’s past offending spans four states: Queensland, New South Wales, Victoria and South Australia.
- [33]In New South Wales between 1991 and 2011 he was convicted of stealing, assault occasioning bodily harm, kidnapping, malicious grievous bodily harm, driving under the influence, aiding and abetting in offence, dishonestly obtaining property, falsification of a document to obtain property, making a false document to obtain a financial advantage. In Victoria between 2011 and 2012 he was convicted of recklessly causing injury, theft, trespass, driving under the influence, burglary, obtaining property by deception, obtaining financial advantage by deception and also an attempt to do so, as well as criminal damage. In South Australia he was convicted in 2014 of assault occasioning bodily harm. He also breached bail, family intervention orders and a suspended sentence.
- [34]In Queensland he breached bail in 2014. More recently the appellant was sentenced in the District Court on 14 September 2017 for multiple indictable offences namely: dealing with identification information, fraud, attempted fraud, unlawful stalking with violence (domestic violence offence), common assault, using a carriage service to menace, harass or cause offence, and wilful damage. For those he was sentenced to an effective head sentence of 3 years imprisonment with parole after serving 496 days in pre-sentence custody. He was also sentenced to 15 summary charges comprising: possession of dangerous drugs, possess utensils or pipes etc. that had been used, possess property suspected of having been used in connection with the commission of a drug offence, stealing, dailure to appear in accordance with an undertaking, and fraud – dishonest application of property of another. For those summary charges, including the drug offences, the defendant was sentenced to 3 years probation.
- [35]The appellant was educated until year 11. He has worked in various capacities as a barman, a rental car company manager, a technician in information and technology. He suffers from attention deficit hyperactivity disorder for which he has been treated for over 11 years. The appellant is a type 1 diabetic and is insulin dependent. He was desirous of re-settling interstate with his partner shortly after the sentence, which was spoiled by the imposition of actual imprisonment.
- [36]I have been referred to the following comparative cases: R v Dicks (Unreported, District Court Qld, 19 February 2016, Long DCJ SC); R v Cruice (Unreported, District Court Qld, 13 September 2017, Ryrie DCJ); R v Hollidge (Unreported, District Court Qld, 2 October 2015 Dorney DCJ QC); and R v Moore (Unreported, Supreme Court Qld, Atkinson J).
- [37]These cases support a sentence in the middle to low end of the range of 12 months to 18 months of imprisonment. So much is uncontroversial in this appeal. The critical issue in the appeal and weighing heavily on the proper exercise of the sentencing discretion is the effect of the appellant’s re-offending while on parole and probation ordered on 14 September 2017.
- [38]Since the appellant reoffended on parole, s 160B of the Penalties Act mandates that the court must fix the date the offender is eligible for parole if the appellant’s court ordered parole order is cancelled under the Corrective Services Act 2006 (Qld) (‘the Act’), s 205 or 209 during the offender’s period of imprisonment which is due to expire on 6 May 2019.
- [39]Relevantly here, s 209 of the Act prescribes the automatic cancellation of the order unless the term of imprisonment is, inter alia, wholly suspended as follows:
“(1) A prisoner’s parole order is automatically cancelled if the prisoner is sentenced to another period of imprisonment for an offence committed, in Queensland or elsewhere, during the period of the order.
- (2)…
- (3)However, subsection (1) does not apply if—
- (a)…
- (b)the period of imprisonment mentioned in the subsection —
- (i)…
- (ii)is wholly suspended under the Penalties and Sentences Act 1992, part 8; or
- (iii)…”.
- [40]The only comparative case, which tackles the effect of these provisions, is R v Dicks. Long DCJ SC considered the impact of the complicating parole provisions on the offender who reoffended on parole, and said:[10]
“Moreover, it is necessary, in my view, to understand that taking a different course in dealing with you would because of legislative complication that have already been referred to, lead to the imposition of a sentence that would be inappropriate to your circumstances.”
- [41]Those remarks are apt here. Whilst it is an aggravating feature that the appellant reoffended while on parole and in breach of his probation, it warrants deeper consideration. It is significant that the parole order was imposed for very different type of offence. In this case, the appellant’s three previous drug offences, together with 12 other summary charges were subject of a probation order for 3 years. Neither party seek to agitate the disturbance of this order as a consequence of the breach by reoffending. Indeed, it was accepted by the parties below that no action will taken by the prosecution or corrective services for those breaches. Perhaps this is explicable because of the diversity of the offending and limited relevance of the drug offending.
- [42]Looking at the appellant’s criminal behaviour and all the circumstances relating to the current offending, including the consequences of s 209 of the Act, it seems to me actual imprisonment would be too crushing and disproportionate. In considering the appropriate re-sentence, I also take into account that the appellant has served 78 days being about two and a half months in custody since the sentence from 19 June 2018 to 5 September 2018, and upon his release he will have continuing supervision during periods of his parole and probation.
- [43]It is appropriate to moderate the applicable range having regard to the time served in prison pending this appeal. In my view, a just an appropriate head sentence is six months wholly suspended. This ought attach to the more serious charge 1, with a lesser concurrent term of 3 months for charge 2.
Order
- [44]For these reasons, I will order:
- Appeal allowed.
- The sentence and orders of the Magistrates Court in Innisfail are set aside, and in lieu substitute the following orders:
- (a)For charge 1 - possessing relevant substance or things, the appellant is sentenced to 6 months imprisonment;
- (b)For charge 2 - possess property suspected of having been used in connection of an offence, the appellant is sentenced to 3 months imprisonment;
- (c)The terms of imprisonment will be served concurrently; and
- (d)The terms of imprisonment be wholly suspended forthwith, and the operational period under this order is 12 months.
Judge Dean P. Morzone QC DCJ
Footnotes
[1] Justices Act 1886 (Qld) s 223.
[2] Allesch v Maunz (2000) 203 CLR 172, at [22] – [23] followed in Teelow v Commissioner of Police [2009] QCA 84, at [4]; White v Commissioner of Police [2014] QCA 121, at [8], McDonald v Queensland Police Service [2017] QCA 255, at [47]; contrast Forrest v Commissioner of Police [2017] QCA 132, at p 5.
[3] Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, at p 5; and McDonald v Queensland Police Service [2017] QCA 255, at [47].
[4] House v The King (1936) 55 CLR 499, at pp 504 and 505
[5] Kentwell v The Queen (2014) 252 CLR 60, at [35], adopting AB v R (1999) 198 CLR 111, at [130] per Hayne J (minority).
[6] D1-3/19-31.
[7] Kioa v West (1985) 159 CLR 550, at p 582.
[8] International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319.
[9] International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319, [141]-[143].
[10] R v Dicks (Unreported, District Court Qld, 19 February 2016, Long DCJ SC), at p 2.