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Moss v Queensland Police Service[2019] QDC 80

Moss v Queensland Police Service[2019] QDC 80

DISTRICT COURT OF QUEENSLAND

CITATION:

Moss v Queensland Police Service [2019] QDC 80

PARTIES:

JAMEY MOSS

(applicant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

47/2019

DIVISION:

Criminal

PROCEEDING:

Application for bail pending appeal.

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

12 April 2019 (ex tempore)

DELIVERED AT:

Cairns

HEARING DATE:

12 April 2019

JUDGE:

Fantin DCJ

ORDER:

Application is granted.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – application for bail pending appeal – whether preconditions are satisfied.

Legislation

Bail Act 1980, s 8(1)(a)(i)

Cases

Andrews v Queensland Police Service [2018] QDC 89

Graham v Commissioner of Police [2015] QDC 103

Queensland Police Service v Terare (2014) 245 A Crim R 211

COUNSEL:

K Walker (solicitor) for the Applicant

J Francis for the Respondent

SOLICITORS:

Legal Aid Queensland for the Applicant

Cairns Office of the Director of Public Prosecutions for the Respondent

HER HONOUR:   This is an application by the defendant pursuant to section 8(1)(a)(i) of the Bail Act 1980 for bail pending appeal. 

The applicant defendant was convicted on 21 February 2019 after a summary trial in the Magistrates Court for the offence of serious assault of a public officer performing a function causing bodily harm.  The trial proceeded over two days, 11 January 2019 and 21 February 2019, in the Magistrates Court.  The defendant was self-represented at the trial. The Magistrate delivered an ex tempore decision on 21 February 2019 and immediately proceeded to sentence the defendant.  He sentenced the applicant defendant to nine months imprisonment with a parole release date of 20 May 2019 after serving three months of actual custody.

The applicant executed a notice of appeal on 8 March 2019 while in custody at Lotus Glen Correctional Centre.  For reasons which are not clear, the notice of appeal was not received by the general manager’s officer at Lotus Glen Correctional Centre, apparently, until 19 March 2019.  It bears a stamp of that date.  The notice of appeal was ultimately filed in the District Court on 19 March 2019, and was filed within time. 

Because the appellant is self-represented, he has not identified in the notice of appeal whether the appeal is against sentence only or conviction.  The grounds of the appeal articulated in the notice of appeal are simply:

That the sentence in all the circumstances was excessive. 

The matter has been mentioned before me on a number of occasions, during which the applicant has appeared self-represented by video link from the correctional centre.  He has made it clear in those mentions that he intends to appeal against the conviction as well as the sentence. 

At this stage Legal Aid has been granted for the purposes of the appeal against sentence only.  It has not been granted for the appeal against conviction, although counsel’s advice on prospects will be sought by Legal Aid, and that decision may change following receipt of that advice.  So it cannot be ruled out entirely. 

On an application for appeal bail, ordinarily, the defendant must satisfy the court of two conditions.  First,  that there are strong grounds for concluding that the appeal will be allowed.  In other cases, that condition has been expressed as there being reasonable prospects of success on appeal.  Second,  that the custodial part of the sentence is likely to have been substantially or entirely served before the appeal is heard and determined.  The applicant relies upon both of those conditions here, and submits that the court would find both satisfied. 

The Crown opposes the application for appeal bail. 

The circumstances of the offending are these. The applicant was living at a location in Kuranda.  He called an ambulance at about 11 pm on 24 August 2017 because he was experiencing acute abdominal pain.  An ambulance officer arrived. 

The complainant is the ambulance officer.  His evidence before the Magistrate was that the applicant became aggressive and asked him for drugs.  The ambulance officer used his radio to call police for assistance.  The applicant heard the call and abused the ambulance officer for doing that. 

The assault is said to have occurred when the ambulance officer felt threatened and pushed the applicant away from him slightly.  The applicant then basically hugged the ambulance officer, and approached him.  They tussled and the applicant pushed the ambulance officer in his chest, forcing him backwards.  The ambulance officer then hit his spine on the door hinge of the vehicle. 

There was evidence at the trial that the complainant went to see a doctor the following day, complaining of headaches and neck pain and tightness in his neck muscles.  The doctor gave evidence that he did not see any bruising to the complainant’s back or neck.  The complainant gave evidence at the trial that he had bruising.  That is the highest the evidence of bodily harm gets in this case. 

The Magistrate sentenced the applicant on the basis of the complainant’s version of events, including accepting that there was bruising constituting bodily harm. 

It can immediately be seen from that description of the circumstances of the offending that this is not a case in which the serious assault on a public officer involved deliberate spitting at or biting of a police officer or an ambulance officer, calculated to degrade that officer, in the course of their duties.  Of course, most of the cases involving this particular offence in this court and appellate courts relate to that kind of offending. 

In this case, the objective gravity of the offending was, in my view, relatively low.  It involved, and was confined to, a push to the chest.  The bodily harm was limited to soreness in the neck and, accepting the complainant’s evidence, possible bruising.  The complainant did not receive any other medical treatment.  The doctor suggested rest and taking ibuprofen, which is not a prescription medication. 

On sentence, the police prosecutor submitted for a sentence of six to nine months imprisonment with actual time in custody to be served.  He relied upon a single decision, a decision of this court in Graham v Commissioner of Police [2015] QDC 103.  The prosecutor did not assist the Magistrate with any decisions of the Court of Appeal on this particular offence or any other decisions of the District Court.  The Magistrate indicated in submissions that he was considering a significantly higher sentence of imprisonment than was submitted by the prosecutor. 

The applicant, appearing on his own behalf, made no submissions about the appropriate sentence range.  However, he expressly stated to the Magistrate that he had been diagnosed with anti-social disorder and an acute anger management disorder, and that he was medicated with Valium and other medications.  In addition, the defendant referred to having previously been dealt with under section 32 of the Mental Health Act in New South Wales on a number of occasions. Further, the defendant submitted to the Magistrate that he was entitled to, or hoped to be entitled to a pre-sentence report and asked that one be ordered.  He said that that report might assist him in mitigation on sentence. 

The defendant’s criminal histories were tendered before the Magistrate.  The defendant was a 47 year old man.  He had a very limited criminal history in Queensland comprising three entries in the Magistrates Court in 2015 and 2016 for two offences of public nuisance and two of stealing.  On all of those charges he received low fines with convictions recorded.  He did, however, have a more serious criminal history in New South Wales which dated from 1991 until 2011.  It included a number of previous convictions for offences of violence, for which he received short sentences of imprisonment.  There was one very serious offence in 2003 for which he was convicted of grievous bodily harm and sentenced to four years imprisonment with a non-parole period of two years.  That offence pre-dated the subject offence by over 14 years.  The last offence of violence for which he had been convicted was in New South Wales.  It was a common assault committed in 2010, for which he was sentenced to three months imprisonment. 

Therefore, it can be seen that although he did have a concerning criminal history, at least in New South Wales, it was relatively dated.  More importantly, he had not been convicted of any offences of violence in at least seven years before this incident. 

Before the Magistrate, the defendant also submitted that he had been much better since those offences in New South Wales and had been doing well.  He emphasised that on the night in question, he was suffering from severe abdominal pain, simply wanted to be taken to hospital and had requested pain relief be administered to him by the ambulance officer. 

In the applicant’s submissions to the Magistrate, in which he requested that a pre-sentence report be ordered, he specifically referred to having been dealt with under the Mental Health Act in New South Wales.  His criminal history in New South Wales bears that out.  There are a number of entries in 2002 and 2003 which refer to him being dealt with under the Mental Health Act as well as reference to psychiatric assessments. 

In addition to those matters, I make this observation.  The defendant has appeared before me on at least two occasions self-represented for the purposes of mentions for his appeal.  His presentation is entirely consistent with what he told the Magistrate about his diagnoses of mental health issues.  It is patent in the way in which he has presented to the Court, in my respectful view. 

Despite the defendant’s request for a pre-sentence report, the Magistrate declined to make such an order.  He also did not give the defendant any opportunity to seek an adjournment of the sentence to obtain or apply for a grant of Legal Aid on sentence, which could potentially have included an application for a grant of aid for a psychological or psychiatric report. 

Such a report, in my view, was warranted on the information before the Magistrate. It may have been relevant in a number of ways: to understanding the circumstances of the offending and the defendant’s response to the ambulance officer on the evening in question; to the defendant’s moral culpability for the offending; but also to assist the Court to consider whether any period of time to be served by the defendant in actual custody would be more onerous by virtue of his mental health conditions. 

The applicant’s solicitor submits, and the Crown concedes, that it was an error of law for the Magistrate to fail to properly consider the applicant’s mental health issues. 

It is further submitted by the applicant that it was an error of law by the Magistrate to fail to order a pre-sentence report or to proceed to sentence the applicant without any report addressing the applicant’s mental health conditions.  I accept those submissions for the reasons I have already outlined. 

In addition, the Magistrate’s sentence was affected by a further error.  The defendant had, by the time of sentence, served a period of six days in pre-sentence custody between 7 November 2017 and 12 November 2017.  No pre-sentence custody certificate is recorded as tendered by the prosecutor on sentence.  However, the Magistrate’s file which has been provided to this Court contains a pre-sentence custody certificate for that period. Six days of pre-sentence custody have been served in relation to this offence of serious assault, as well as in relation to a summary charge of contravene a direction or requirement.  Even if that six days is not declarable under the Penalties and Sentences Act, it ought to have been taken into account in considering both the head sentence and the actual period of custody, if any, required to be served on the sentence.  It was an error of law to fail to take that into account. 

Given that on the material before me it appears that the Magistrate erred in law in at least two different respects, the result of that is that the sentencing discretion must be exercised afresh.  A different sentence would only be imposed on appeal if, in the fresh exercise of the sentencing discretion, the Court would not impose any different sentence to that which was imposed by the Magistrate. 

I turn then to consider whether there are strong grounds for concluding that the appeal, at least against sentence, would be allowed on the basis that it is manifestly excessive.  In my view, the applicant has demonstrated that there are grounds. 

The learned Magistrate was not, unfortunately, assisted by any authorities from the Court of Appeal, of which there are a number dealing with this particular offence. They include the decision in the Queensland Police Service v Terare (2014) 245 A Crim R 211 in which a sentence of three months imprisonment, wholly suspended for 12 months, was imposed in a case of urinating.  In that case the Court of Appeal observed that actual imprisonment is not inevitable in each case involving this offence.  That has been confirmed in other Court of Appeal decisions. 

In addition, there are a number of District Court sentencing remarks involving ambulance officers, in which no period of actual custody has been imposed. The applicant relies on the decision in this Court on appeal in Andrews v Queensland Police Service [2018] QDC 89.  In that case her Honour Judge Muir allowed an appeal against a sentence of a Magistrate of two months imprisonment, suspended after 14 days with an operational period of 12 months. 

That involved two counts of serious assault of a public officer and one count of assault or obstruct police.  It involved the appellant shoving paramedics with his shoulders to gain entry to an area at a hospital and then police and hospital staff assisting to restrain him.  While lying on a stretcher, he forcefully pushed a police officer in the chest.  That formed the assault or obstruct police charge.  In the circumstances Judge Muir allowed the appeal, set aside the orders, took into account the fact that the appellant had served three days and seven hours in custody and convicted and not further punished him.

The offending in this particular case can clearly be distinguished from those cases involving serious assault offences where there was deliberate spitting or biting calculated to degrade officers.  In my view, the cases also demonstrate that a sentence of imprisonment for nine months involving three months to be served in actual custody does appear manifestly excessive or at least that there are strong grounds for concluding that the appeal against sentence ought be allowed. 

Therefore I find that the first precondition of the test for appeal bail is satisfied.

Turning to the second precondition, the appellant has a parole release date of 20 May 2019.  It is clear that the custodial part of his sentence is likely to have been entirely served before his appeal can be heard and determined.  The only circumstance in which the appeal could be heard before then is if it is given a special listing, which it does not presently have.  In the ordinary course of directions, the matter would not be heard until after he had been released from custody.  That would mean that his appeal against sentence would lack utility because he would have already served the three months of actual custody. 

It is more difficult to say at this stage whether there is any substance in the applicant’s proposed appeal against conviction and whether he has reasonable prospects of success on an appeal against conviction.  However, given my findings with respect to his appeal against sentence, it is not necessary to determine that issue at this stage nor make any findings about it, and I decline to do so. 

For completeness, however, I record that on previous occasions when the defendant applicant has appeared self-represented, he has made it clear that he does appeal against conviction and that he has a number of grounds he seeks to raise with respect to that appeal. 

Taking into account all of those matters, I am satisfied that the applicant should be granted bail pending his appeal and I intend to grant bail.  I will hear from the parties about the conditions of bail before I make the final orders.

HER HONOUR:   Yes.  The order of the Court has been amended to read that in relation to charge 1, serious assault of a public officer performing a function, causing bodily harm or under the Criminal Code (Qld) section 340(2AA)(a), (a)(ii), the applicant be admitted to bail on his own undertaking with certain conditions.  I have already read out those conditions.   I make orders in terms of the draft order, as amended, signed by me and placed with the papers. 

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Editorial Notes

  • Published Case Name:

    Moss v Queensland Police Service

  • Shortened Case Name:

    Moss v Queensland Police Service

  • MNC:

    [2019] QDC 80

  • Court:

    QDC

  • Judge(s):

    Fantin DCJ

  • Date:

    12 Apr 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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