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- Unreported Judgment
Murray v Commissioner of Police QDC 13
DISTRICT COURT OF QUEENSLAND
Murray v Commissioner of Police  QDC 13
MURRAY, Dean Thomas
THE COMMISSIONER OF POLICE
DC No 1210 of 2018
Appeal against sentence
Magistrates Court at Richlands
18 February 2019
24 January 2019
Loury QC DCJ
1. Allow the appeal.
2. Set aside the sentences imposed.
3. Remit the matter to the Magistrates Count at Richlands for rehearing.
CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – ROLE OF PARTIES – PROSECUTION – where the appellant pleaded guilty to numerous offences and was sentenced to imprisonment – where the appellant contends that he was not given a copy of the schedule of facts – where there was nothing contained in the transcript that the schedule of facts was provided to the appellant upon its tender –where the appellant was denied the opportunity to speak to lawyer prior to sentence – whether it is fundamental that the appellant be entitled to the material upon which the prosecution intends to rely – whether the appellant was denied procedural fairness
Criminal Code Act 1899 (Qld), s 590AB
Justices Act 1886 (Qld), s 222, s 224(1)(a)
Antigone Law, for the appellant
Director of Public Prosecutions (Queensland) for the Respondent
- The appellant pleaded guilty in the Magistrates Court to the below offences and was sentenced as follows:
Unlawful use of a motor vehicle x 3
Two years imprisonment
Dangerous operation of a motor vehicle
12 months imprisonment
Failing to stop
Six months imprisonment
Stealing x 3
Six months imprisonment
Receiving tainted property
Six months imprisonment
Being in charge of a motor vehicle whilst under the influence of drugs/alcohol
Three months imprisonment
Unlicensed driving x 2
Four months imprisonment
Convicted and fined $2000 for both offences of speeding and possessing knife
Possess knife without reasonable excuse
A parole release date was fixed at 28 September 2018, which required the appellant serve a period eight months before being released on parole. Periods of disqualification of the appellant’s license were imposed of three years and two years for the dangerous operation of a motor vehicle and failing to stop charges respectively.
- The appellant applies for an extension of time within which to file his notice of appeal, pursuant to section 224(1)(a) of the Justices Acts 1886 (Qld). That extension application is not opposed by the respondent. Given the short delay and the attitude of the respondent, it is appropriate to grant the extension of time. The appellant appeals his sentences, pursuant to section 222 of the Justices Act 1886 (Qld). As he pleaded guilty to all of the offences, he can only appeal on the ground that the punishment was excessive.
- The appellant’s grounds of appeal are:
- (a)That the learned magistrate erred by acting on allegations of fact that were not admitted or were contested:
- (i)In circumstances where it was not open to the Magistrate to be satisfied to the requisite standard that the allegations were true without receiving sworn evidence; and/or
- (ii)Without making findings as to the factual basis for the sentence; and/or
- (iii)Without giving reasons for the findings made as to the factual basis for the sentence.
- (b)That the learned sentencing Magistrate erred by failing to have regard to the principle that a sentence of imprisonment should only be imposed as a last resort.
- (c)That in all the circumstances, the sentence proceedings resulted in a miscarriage of justice because the Applicant was denied procedural fairness.
- (d)The sentence imposed is manifestly excessive.
- An appeal under section 222 is by way of rehearing on the original evidence given in the court below, plus any new evidence adduced on appeal if leave to do so is granted. The appellant has filed an affidavit. No objection to leave being granted to adduce new evidence was taken by the respondent. Accordingly, it is appropriate to grant leave to the appellant to adduce new evidence.
- The appellant has sworn that he did not receive legal advice prior to being sentenced and that he was denied any opportunity to speak with a duty lawyer before being sentenced. He has sworn that he entered pleas of guilty to the 14 charges because he believed that was the best chance that he had of being released from custody. (He had been refused bail the day prior to his sentence.)
- The appellant has sworn that he was not given a copy of the schedule of facts and had never seen it prior to its tender to the learned Magistrate. The appellant has sworn that he did not know what the facts were that were being alleged against him. The appellant has sworn that he was given a copy of the statement made by the complainant in the offence of dangerous operation of a motor vehicle. He otherwise did not know what the prosecution had alleged against him.
- The appellant swears that the reason he did not say anything about the offences to the learned Magistrate was that he didn’t really know what to say. He swears that he only starting objecting to the facts when he became aware of the basis upon which he was being sentenced.
The sentencing proceeding
- For the purposes of a consideration of the grounds of appeal in this case, it is sufficient to say that the circumstances of the offending involved the appellant driving erratically before colliding with a motorcycle; failing to stop when police attempted to intercept him by use of their emergency lights and siren; stealing a set of car keys from a table in a shopping centre before locating and stealing the car, which the keys operated; driving with methylamphetamine in his system; stealing a car from a business where the appellant had been employed; stealing petrol which the appellant had pumped into a vehicle; unlicensed driving; driving at a speed of 147 kilometres per hour in a 100 kilometre per hour zone whilst his license was suspended; stealing a further car; stealing a keycard; possessing a large knife with a 15 centimetre blade in a public place; and receiving stolen identification cards.
- There is nothing contained in the transcript of the proceedings that indicates that the schedule of facts was provided to the appellant upon its tender. The appellant was not asked by the learned Magistrate, if he had seen or accepted the contents of the schedule of facts. However, he was offered the opportunity to make submissions about himself and the penalty that ought to be imposed upon him. The appellant said that he didn’t know what to say other than that he was remorseful for his actions and that he wanted to change. On a number of occasions the learned Magistrate attempted to engage the appellant in making submissions. He chose not to do so seemingly believing that it would make no difference to the outcome.
- Upon the learned Magistrate commencing to pass sentence, the appellant started interjecting. His outbursts demonstrate some knowledge of the factual basis of, at least some of the charges. The appellant then commenced insulting the learned Magistrate and deliberately interrupting the proceedings. The Magistrate showed remarkable restraint during the course of the appellant’s continued use of profanities directed at him.
- At least in respect of the offence of dangerous operation of a motor vehicle, the schedule of facts suggested two bases upon which the appellant might have been sentenced, that of the complainant, that the appellant deliberately drove into the rear of his motorcycle or that of the appellant in his interview with police, that he fell asleep at the wheel of the car and when suddenly awoken, he over-corrected and accidentally ran into the back of the motor cycle. It is unclear upon what basis that the appellant was sentenced in relation to this offence. That is likely due to the appellant’s constant, insulting outbursts during the course of the learned Magistrate’s remarks.
- The respondent has not sought leave to rely upon any new evidence as to the compliance by the police prosecutor with his disclosure obligations, which required him to provide all evidence he proposed to rely upon in the proceeding, to the appellant (See section 590AB Criminal Code Act 1899 (Qld)).
- Further, the respondent did not seek to cross-examine the appellant upon any of the matters that he swore to in his affidavit. In those circumstances, I must accept that the sentence proceeded without the appellant knowing the facts upon which he was to be sentenced.
- It is fundamental that the appellant was entitled to be provided with the material upon which the prosecution intended to rely. He was entitled to be informed upon what basis the sentence would proceed. In the absence of any evidence to the contrary of that contained in the appellant’s affidavit, in the circumstances of this case, I must conclude that the appellant was denied procedural fairness.
- It is unnecessary to address the further grounds of appeal addressing errors in the exercise of the discretion as the matter will need to be reheard.
- The orders are as follows:
- Allow the appeal;
- Set aside the sentences imposed.
- Remit the matter to the Magistrates Court at Richlands for rehearing.
 Justices Act 1886 (Qld) s 222(2)(c)
- Published Case Name:
Murray v Commissioner of Police
- Shortened Case Name:
Murray v Commissioner of Police
 QDC 13
18 Feb 2019