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R v Haddou QDC 152
DISTRICT COURT OF QUEENSLAND
R v Haddou  QDC 152
ALLERICK GABRIEL NICHOLAS HADDOU
DELIVERED EX TEMPORE ON:
5 June 2019
5 June 2019
Morzone QC DCJ
CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - mode of hearing of appeal – uncertainty of factual basis for plea and sentence - whether sentence manifestly excessive or inadequate – whether plea capable of supporting re-sentence in absence of certainty of facts.
Justices Act 1886 (Qld), s 222, 223
AB v R (1999) 198 CLR 111.
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Allesch v Maunz (2000) 203 CLR 172
Douglass v The Queen (2012) 290 ALR 699
Dwyer v Calco Timbers (2008) 234 CLR 124
Forrest v Commissioner of Police  QCA 132
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
Kentwell v R (2014) 252 CLR 60
Maxwell v R (1996) 184 CLR 501
McDonald v Queensland Police Service  QCA 255
Meissner v R (1994-95) 184 CLR 132
Norbis v Norbis (1986) 161 CLR 513
Teelow v Commissioner of Police  QCA 84
Warren v Coombes (1979) 142 CLR 531
White v Commissioner of Police  QCA 121
P. Feeney (applicant)
E. Coker (respondent)
Department of Police Prosecutions
Carman and Associates
- Acting upon a plea of guilty as apprehended by the magistrate, the appellant was sentenced on the 5th of April 2017 in respect of one count of assault occasioning bodily harm, to a fine of $750, part of which was identified as a moiety of $500 payable to the complainant with no conviction being recorded.
- On 14 February 2019 I granted leave for the defendant to appeal against the sentence, notwithstanding some significant delay between that sentence and when proceedings commenced in this Court by way of a notice of appeal on 24 August 2018.
- I have been assisted in the proceedings by outlines of arguments, supplemented by further oral submissions on two separate occasions.
- On the first occasion, the matter was adjourned after determining and granting leave to appeal with a view to permitting the appellant to consider his position and deal with any amended grounds of appeal. It is on that basis that I determine the matter.
- The defendant’s proceeding was first before the Magistrates Court in Cairns on 21 March 2017. On that date, it appears that the defendant was not present and the matter was adjourned to the following day, 22 March 2017. During the course of that initial hearing, the defendant’s solicitor sought the excusal of his client from such an appearance. Amongst other things, on the basis that there were negotiations “to try and settle the matter,” which seems to be on the basis that circumstance of aggravation would be removed from the basal charge. Therefore, an adjournment was sought until the following morning and granted.
- When the matter returned to the Court the following morning, words (which are apparently attributed to the police prosecutor) indicated some readiness subject to the defendant’s solicitor advocate indicating some sort of housekeeping. The proceedings were unremarkably commenced with the bench charge sheet being referred to, containing the relevant amendment, apparently resulting from successful negotiations as earlier intimidated the day before. At that stage, the solicitor indicated to the Court “I am instructed my client intends to plead guilty.”
- The learned Magistrate then proceeded to arraign the defendant in this way:
“Mr Haddou, the charge is that on the 14th day of January 2017 at Cairns City, you unlawfully assaulted one Matthew Michael Jones and thereby did him bodily harm. How do you plead, sir, guilty or not guilty?”
- To that, the defendant responded, ‘Guilty’ and was invited to take a seat with words apparently accepting the plea by the Magistrate being, “Yes, just take a seat. Thank you. Yes, thanks, Sergeant.” The prosecutor then proceeded in the traditional way. The court’s apparent acceptance of the plea is further affirmed at various stages later in the hearing, particularly in the sentencing remarks. But there is much to be said about the intervening period.
- On the adjourned date of 22 March 2017, the prosecutor read out or explained the factual basis of the plea as follows:
“Your Honour, the victim in this matter is one Matthew Michael Jones. The defendant before the Court, Allerick Haddou, and the incident location is the corner of Spence and Lake Street, approximately 1 am on the 14th of January. Victim and witness walking along towards the Casbah nightclub. Victim sat down at doorway. The defendant just walked passed, noticed him sitting down and approached him.
Brief conversation ensued and the defendant sat next to the victim, placed his arm around his shoulders. Victim requested the defendant stop by saying, “Mate, fuck off”. The victim has used this phrase a number of times. Witnesses attempted to get the defendant to leave and again, brief exchanges occurred. The defendant has punched the victim a number of times, causing a cut to the inside left side of the victim’s mouth and bruising to the left side of his neck and swelling to the left side of his face underneath his eyes.”
- After some short clarification sought by the magistrate, the prosecutor continued:
“Cut to mouth, bruising on the left side of the face and neck area, your Honour. Defendant has grabbed the victim, thrown the victim into a wall before moving from the location after the altercation. The incident was captured by CCTV, your Honour. My understanding is the defendant has no criminal history to tender.”
- Shortly after, the prosecutor clarified and did tender a criminal history, which the prosecutor described - “is very limited.” He did not assist the Court any further at that stage. The defendant’s solicitor was called upon and shortly afterwards identified some contest to the facts upon which the sentence was to proceed. It is also notable that he identified the defendant as aged 47 years, when in fact, he was 10 years younger, 37 years of age.
- After some background, the defendant’s solicitor explained:
“In relation to the charge, Your Honour, my client says that prior to the altercation, the victim was extremely agitated and behaving aggressively towards him. The victim made repeated threats towards my client, saying that he would kill him. My client says he was trying to calm the victim down, and that he was ultimately attacked by the victim, not once, but twice, and that he acted out of fear for his safety.”
- The Court clarified that, “That is a bit of a problem”, and referred to the nature and extent of the prosecutor’s factorial basis for the sentence, and invited the solicitor to the effect that:
“If your client does not agree with those facts, then it might have to take a different course.”
- The solicitor distinguished between the limited CCTV footage, which was confined to the subject conduct relied upon by the prosecutor, and accepted there was no CCTV footage of the first altercation. Further clarification was sought by the learned magistrate, trying to get a hold on the course that had been verbalised, and during the course of the exchange, the solicitor identified that the precursor incident involved a verbal exchange between the two, which led to the initial altercation, and continued:
“…during the initial altercation, we are saying that my client says that the victim attacked my client and came at my client. There was an altercation, then, which ensued, which was then resulting in my client striking blows to the victim. After that, the Cairns CCTV footage shows footage of a second altercation, whereby the victim again advances and tries to make an attack on my client, which is then defended, and my client then…”
- At which point the solicitor was understandably interrupted with the magistrate saying:
“Well, that is totally different to what the Prosecution alleges, isn’t it?”
- The solicitor then further explained that the defendant did not deny that there were two altercations, and that the defence allegation was that the event was not instigated by his client. When queried about the value of the plea, the solicitor later remarked:
“Ultimately, your Honour, my client takes full responsibility. He is pleading guilty, as I said, to assaulting the victim. It boils down to your Honour that in any admission to any penalty that you would be likely to impose in relation to the assault, on the basis that my client currently retains a number of licences, one being a security licence…no conviction recorded, your Honour.”
- Those circumstances seemed to be intolerable to the Court, and time did not permit the matter to be completed that day. The matter was adjourned with the indication that some further exploration of CCTV footage, and the width of the matter should be explored in the meantime. The matter was adjourned to 5 April 2017.
- On this third occasion, the solicitor for the defendant remarked at the outset:
“Your Honour, on the last mention, some facts that were contrary to the QP9 were provided to your Honour. I have since conferred with my friend. He has sent a matter back to the investigating officer. Nothing further has come from that, so we are just left with the CCTV footage, your Honour. If it assists, I have taken instructions again from my client this morning, and it seems his position has changed. He has now accepted a position with a construction company over in Western Australia. That job starts in the coming days, and I was…”
- Her Honour was less concerned about the expediency of how the defendant was, (through his solicitor) approaching the matter, but rather more concerned (as she properly ought to have been) as to the quality of the plea and whether it was based upon some agreement on the facts.
- Her Honour affirmed again at that stage that she had “already taken the plea from your client.” Her Honour then invited the prosecutor to provide the facts in the midst of confirming that the plea was not vacated. On the belief of all of those present, the parties affirmed that it was not.
- The prosecutor then proceeded to set out the facts in a consistent way to that which he had done at the earlier proceeding, with no apparent change indicating some diversion consistent with that which was contended by the Defence solicitor. He said:
“Incident occurred at approximately 1 am on the 14th of January. The defendant is stated to have punched the victim multiple times to the face and head, causing a cut to the inside left side of the victim’s mouth, bruising to the left side neck, and a scrumming to the left side of the face, underneath the eye[confirming query from the learned Magistrate that there was a cut to the mouth and swelling]…bruising to the left side of the neck, swelling to the left side of the face, underneath the left eye. Defendant has grabbed the victim, thrown the victim into a wall, before moving from the location of the altercation. Police have attended. They have observed the injuries to the mouth, face, and neck, observed the victim to be spitting blood into the gutter from the out – from the cut inside. QAS (apparently a reference to Queensland Ambulance Service) have attended and assessed the injuries, and was transported to the CBH (apparently a reference to the Cairns Base Hospital, as it was formerly known). They believe there may have been a situation where the victim was unconscious, and he was taken there for observation. Police were informed of the location of the defendant and then spoke with him. He was cautioned and then transported to the watch-house. Due to his level of intoxication at the time, an electronic interview was unable to take place. The defendant was then given bail to attend Court, your Honour. It would appear the defendant has no history to tender, your Honour. Hang on…I tendered one last time.”
- There was then clarification as to the extent of the criminal history.
- The Defence was called upon, and the solicitor for the defendant said:
“Thank you, your Honour. I will just keep my submissions brief. If it pleases your Honour, I just have documents to hand up. Two character references, one from an Irene Farrell, and another one from a Dominic Wzenski, W-z-e-n-s-k-i. And, your Honour, if it also pleases, I have got another two documents, one just being the night club licence. And the second, I was unable to locate or obtain a copy of my client’s current crowd control or security licence, but I can tender a show cause notice from the Office of Fair Trading, indicating that he is basically obliged to show cause.”
- The submissions were later elaborated and after the Court had an opportunity to read those documents, the solicitor said:
“Thank you, your Honour. You can see from the references, your Honour, the offending behaviour is extremely out of character. In my opinion, my client is very unlikely to reoffend. He is not normally a violent person, see from his criminal history, it would tend to appear that this is the case. In considering sentence, your Honour, I would just ask your Honour to consider my client’s plea of guilty, his cooperation with the police, the relatively minor injuries that were caused, and, your Honour, in relation to having a conviction recorded, I would note your Honour’s mention on the last occasion. I do not think that I will take those submissions any further.”
- The latter remarks apparently were a reference to a comment about a contention acknowledged by her Honour that the defendant was seeking that convictions not be recorded. Her Honour then, alert to the previous factual disparity queried further to ascertain the basis which the solicitor was proceeding, saying in this exchange, between her and the solicitor:
“Bench: All right. Well, the facts are – have obviously been – certain things have been excluded from the facts that I heard on the last occasion.
Solicitor: Yes, your Honour.
Bench: So your client says, does he, that there was some provocation occurring before the incident?
Solicitor: There was, your Honour, on the last occasion. However, yes, we’ve agreed on the facts this morning.
Solicitor: I am in your Honour’s hands as to how you would like to deal with that.”
- Her Honour then sought submissions as to an appropriate sentence, and such discussion involved the provision of a fine. It is unfortunate that her Honour seemed to have been provided with little or no assistance from either the prosecutor or defence as to what would be an appropriate range for penalty, nor was it clear how it is her Honour proceeded to sentence in circumstances of offending, which occurred apparently in public whilst intoxicated with those aggravating features not bing relied upon at the ultimate sentence, but, nevertheless, constituted by an assault occasioning bodily harm to the extent that it was described. Her Honour then imposed the following sentence reasons:
“All right. Yes, sir, just stand up, sir. I take into account your plea of guilty to the charge before the Court. It was a timely plea of guilty. I impose a lesser penalty because of that plea of guilty. I take into account the references that have been tendered on your behalf. I note that you were intoxicated at the time of this offence such that you could not be interviewed by the police. Whilst that is not excuse for your behaviour, it may be some explanation for your behaviour, which appears to be – which your referee says is out of character for you, and I accept that it is, given your very limited and irrelevant criminal history. I take into account the injuries that did occur. Obviously, it is a serious matter to assault somebody in the way that you did. I note that you did spend some time in custody in the watch house. I take into account the effect that a criminal conviction would have on your future prospects, particularly given that your company is a licensee of a nightclub licence, and that you have a security licence as well. In the circumstances, you are convicted and fined the sum of $750. The fine is referred to this EEI, and $500 to the complainant. No convictions recorded. Anything further? No convictions recorded and I will delete the balance.”
- The Court record was duly endorsed to that effect identifying the $500 as a moity, and the earlier endorsement of 22 March 2017 reflects that which I have set out above, where her Honour identified a plea of guilty but notes: “…but defence alleges significantly different facts to that of Prosecution facts…”
Mode of Appeal
- The appellant appeals pursuant to section 222 of the Justice Act 1886 (Qld). Section 222(1) provides for such an appeal where a party feels aggrieved by a decision of a magistrate to appeal, within one month after the date of the order. And pursuant to s.223, the appeal is by way of hearing on the original evidence and the new evidence adduced by leave.
- For appeal by way of re-hearing the powers of the appellate court are excisable only where the appellant can demonstrate that, having regard to all of the evidence now before the Appellant Court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error and thereby manifests in an excessive or inadequate sentence.
- The rehearing requires this Court to conduct a real review of the evidence before it (rather than a complete fresh hearing) and make up its own mind about the case. Its function is to consider each of the grounds of appeal, having regard to the evidence, and determine for itself the facts of the case and the legal consequences that follow from such findings.
Grounds of appeal
- The grounds of appeal set out in the amended notice of appeal, filed by leave, can be categorised as follows:
- The hearing before the Magistrate on 22 March 2017 and 5 April 2017 miscarried in regard to the taking of the plea, the receiving of submissions, fact finding and ought to have concluded with the entry of a plea of not guilty or an absolute discharge.
- In respect of the plea, the appellant was not called upon in the form of the allocatus or in any form sufficient in the circumstances.
- The submissions made lent clarity to the extent that they should not have been accepted.
- There was no finding as to the facts said to constitute the offence.
Appeal against sentence
- This court ought not to interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.
- The relevant principles have been considered by the High Court and subsequently lower Courts, which bind this Court.
- The decisions, distinguished cases of specific error and manifest excess, once an Appellant Court identifies a specific error, the sentence must be set aside and the Appellant Court must exercise the sentencing discretion, unless, in that separate and independent exercise, it concludes that no difference should be passed. That is ultimately defined that the sentence was not manifestly excessive. 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 Appellant Court intervene. And, in the exercise of its discretion, consider what sentence ought to be imposed.
Acceptance of the Plea & Allocutus
- In relation to the form of the allocutus, as I indicated during the course of these reasons, as well as during argument, it seems to me that the plea was accepted by her Honour, if not expressly, then by very strong inference and the language indicating an acceptance of it. It seems to me that, although, you have taken in a less stringent form, the Court did comply with ss 146 and 148 of the Justices Act 1886 in taking the plea in the form that it was, and also conducting the summary proceedings in the same way as that which would be conducted before the Supreme Court.
Factual Basis of Plea
- The other grounds of appeal do carry significant weight, in that the genesis of the sentence is subject of considerable uncertainty. That is manifest by confused submissions made during the course of the proceedings, or at least confusing submissions made by the defendant’s representative both on the earlier occasion and on the adjourned hearing when sentence was passed. That confusion was further entrenched by the truncated form of the reasons for sentence.
- Of course, the content and detail of sentencing reasons will vary according to the nature of the jurisdiction. Here, a sentence in the course of exercising the sentencing discretion, in the absence of an expressed statutory provision, a sentencing Court is obliged to give sufficient reasons to identify the principles of law applied in the main factual findings, upon which the Court relied. This serves to properly inform the parties to understand the basis of the decision, including whether to exercise any rights to appeal, and, correspondingly, reasons facilitate the role of an appellate court that has charged its statutory duty on an appeal from the decision.
- Here, whilst it is arguable that the defendant, through his solicitor, had abandoned the notion of provocation leading to the offending, so much is not clear from the reasons given by the magistrate. Indeed, on the facts apparently agreed upon, consistent with that expressed by the prosecutor, it is difficult to see how such a light sentence was passed, but for the magistrate having regard to extraneous matters, which were otherwise the subject of utterances by the solicitor at the earlier hearing. Or perhaps it conveyed that the court did place such weight upon those earlier circumstances, as invited by the solicitor - “I’m in your Honour’s hands as to how you would like to deal with that” - being a reference to the uncertain state of the defendant’s position about some provocation occurring before the offending incident.
- It seems to me that the factual basis of the sentencing and the exercise of the sentencing discretion by the learned magistrate cannot be divined with any degree of certainty. Indeed, the notice of appeal indicates that such was the position, and with which I have some significant sympathy, that the matter ought to have concluded with the entry of the plea of not guilty or an absolute discharge.
- It seems to me that having regard to the facts contended by the prosecutor, the learned magistrate’s decision is intolerably incongruous. At least, it seems to me that the result is a sentence that was manifestly inadequate, as distinct from manifestly excessive.
- Whilst it does not appear how the learned magistrate reached the result embodied in the orders, that result, in my respectful opinion, was unreasonable or plainly unjust. If it were to be subject of any particular consideration, it does seem that the reasons and the sentence imposed were attended by some unexplained principle, or an erroneous or irrelevant matter having guided the discretion, or the magistrate mistaking the facts.
- Having considered those matters, it seems to me that the appeal ought be allowed, and the sentence set aside. It would ordinarily fall to this Court to re-exercise the sentencing discretion.
Disposition of Proceedings
- For the same reasons which led the learned magistrate into a confused state, resulting in a sentence which was incongruous with the factual basis contended by the prosecutor here, it seems to me that there is no certain factual basis upon which this Court could re-exercise the sentencing discretion.
- Indeed, the sequence of taking the defendant’s plea, followed by demonstrable incongruity between the parties’ perception of the factual basis of the plea, coupled with the subsequent lack of clarity on the adjourned hearing, in my view, renders the plea of little value. It seems to me that, having regard to its timing and what followed, it could not be said that the plea was based upon any proper or logical understanding of the factual basis that could embody the offending without there, at least, being contest as to the precursor events and, when examined, that contest may well have resulted in a defence to the charge. It is not clear how that was tested during the adjourned proceedings.
- What is clear is that when the matter was returned to the Court on the 5 April 2017, the focus of the defendant’s solicitor was less upon the substance forming the basis of the plea but more so on the expediency of ensuring his client’s transition into study to take up a job whilst not jeopardising his relevant licences.
- In Meissner v R, Brennan, Toohey and McHugh JJ held:
“A Court will act on a plea of guilty when it is entered in open Court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a Court does act on such a plea, even if the person entering it is not in truth guilty of the offence.”
- In Maxwell v R, the court discussed circumstances which could vitiate a plea, including if the accused person lacked full understanding of the plea, equivocality, ignorance, fear, duress, mistake, or even the desire to gain a technical advantage.
- It seems to me that the defendant did lack full understanding of the plea,. Insofar as it might be said that he relied upon his solicitor and was advised in respect of his plea, the transcript makes it plan that the solicitor lacked an understanding of the factual basis of the plea. The defendant ought to have been further arraigned or otherwise the factual basis explored in such a way as to ensure there was no lack of understanding or equivocality. The plea here seems to have been continued despite the clear uncertainty and lack of confidence of the defendant’s solicitor, as a mere means of facilitating the timely travel and job prospects of the defendant without proper regard for its basis.
- In all of the circumstances, it seems to me that the proceedings ought to start from the beginning, that is, with the plea vacated, the defendant re-arraigned, and dealt with according to law.
- Therefore, I make the following orders;
- I allow the appeal.
- I set aside the sentence and orders of the Magistrates Court made on 5April 2017.
- The defendant have leave to withdraw the plea of guilty in respect of the charge.
- The proceeding is remitted to the Magistrates Court Cairns’ Registry for arraignment and rehearing before a different Magistrate according to law.
Judge Morzone QC
 Allesch v Maunz (2000) 203 CLR 172,  –  followed in Teelow v Commissioner of Police  QCA 84, ; White v Commissioner of Police  QCA 121, , McDonald v Queensland Police Service  QCA 255, ; contrast Forrest v Commissioner of Police  QCA 132, 5.
 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  QCA 132, 5 and McDonald v Queensland Police Service  QCA 255, .
 White v Commissioner of Police  QCA 12, -; Forrest v Commissioner of Police  QCA 132, 5 & 6; McDonald v Queensland Police Service  QCA 255, .
 House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519
 House v The King (1936) 55 CLR 499, 504-505; Kentwell v R (2014) 252 CLR 60, , adopting AB v R (1999) 198 CLR 111,  per Hayne J (minority
 Justices Act 1886 (Qld), ss 222 & 223. Cf. Douglass v The Queen (2012) 290 ALR 699 at 702, 
 Meissner v R (1994-95) 184 CLR 132 at 141
 Maxwell v R (1996) 184 CLR 501
- Published Case Name:
R v Haddou
- Shortened Case Name:
R v Haddou
 QDC 152
05 Jun 2019