RMC v QPS[2020] QDC 291

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 6 April 2020, the appellant was convicted of two counts of indecent acts after pleading guilty in the Magistrates Court held in Mareeba and was sentenced to 4 months and 2 months imprisonment ordered to be served cumulatively.  34 days were declared as pre-sentence custody.

2. [2]
   The appellant now appeals his sentence on the grounds that it is manifestly excessive.
3. [3]
   The appellant contends that a probation order without a conviction recorded was appropriate.  The respondent seeks to uphold the sentence and conviction as within a permissible range.

Mode of Appeal

4. [4]
   The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).  Pursuant to section 223 of the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. 
5. [5]
   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,”^[1] and thereby resulting in a manifestly excessive sentence.
6. [6]
   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.^[2] 
7. [7]
   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.  In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.^[3]

Was the sentence manifestly excessive?

8. [8]
   This court ought not interfere with a sentence unless it is manifestly excessive, that is, “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”.^[4]
9. [9]
   Even if the appellate court finds that the sentence was at the extreme end of a permissible range, or has a different opinion about the way in which the discretion should be exercised, these are not sufficient justifications for review; it must be shown that the discretion miscarried resulting in a manifestly excessive sentence.^[5]  In that context, it may be vitiated by an error of principle, where there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.^[6]  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.
10. [10]
    The appellant argues that the sentence was manifestly excessive because:

1. 1.
   The sentencing magistrate erred by not giving sufficient weight to the principle that a sentence of imprisonment is the last resort and a sentence that enables the appellant to remain in the community is preferable;
2. 2.
   The sentencing magistrate was led into error by the non-particularisation of the appellant’s unsuitability about a community-based order;
3. 3.
   There was a failure to give specific regard to the appellant’s youth and insufficient weight was given to his lack of criminal history; ^[7]
4. 4.
   Insufficient weight was placed on the appellant’s personal circumstances; ^[8]
5. 5.
   The magistrate erred in law by not adverting to the effects of the appellant’s visa status under the Migration Act. ^[9]

11. [11]
    It is trite to say that the appropriate sentence will depend on the particular circumstances of the offending and the degree of culpability of the offender. 
12. [12]
    The first offence occurred on the Australia Day holiday on 26 January 2020 at the public swimming pool at 9 am. The appellant exposed his genitals to swimmers in the pool area near the club sheds.  He then walked to the male toilet near the front entrance of the complex and completely removed his clothing.  He was in a location where customers and staff could see him naked and fondling his genitals. After a staff member confronted him he put his clothes on and left the pool.  The appellant was later identified arrested and placed in the watchhouse.  He appeared in the Magistrates Court on 2 March 2020 and was released on bail.
13. [13]
    The second offence occurred at 11:45 am on 2 March 2020 after he was released on bail earlier that day.  The appellant was in a clothing store for about one hour before sitting down in the shoe aisle. He there masturbated his exposed erect penis while holding a female bra and leggings.  He was seen by a female customer who told him “don’t be a grub, put it away”. He complied, the store clothes were removed from him and he left the store. 
14. [14]
    The appellant was a 23-year-old Fijian citizen without any criminal history.  He had lived in Australia since November 2019 being about two months before the offending.  He held a protection visa.  He was employed at a locally and financially supported his family in Fiji.
15. [15]
    During the hearing, the police prosecutor submitted that the first offence “was at a public swimming pool, which, of course, has children and adults which attended there.”  He also remarked that the second offence was “at a clothing store, again, which is accessible by the public.  Persons affected by the offences were employees of the places that the defendant committed the acts”.  The prosecutor urged for imprisonment and dissuaded the learned magistrate form a community based order saying: “… I note that he is of interest to Border Force, and he is in jeopardy of having his visa cancelled; therefore, community based orders would be unsuitable.  A short term of imprisonment – he had have time served – would be in range for the offences that are before the court today”.
16. [16]
    At the sentencing hearing the appellant’s representative told the court that the appellant can’t comprehend his actions, and that he doesn’t understand what led to or why he committed the offences.  She conveyed his wish to apologise to the people involved, and that he was very embarrassed, truly remorseful for his actions and won’t conduct himself in that manner again.  The court was told that the appellant had a protection visa due to being tortured in Fiji.  There was no other  psychological evidence proffered to identify any matters underlying the offending. 
17. [17]
    In the course of submissions and his sentencing remarks, the sentencing Magistrate remarked that:

1. 1.
   A period of imprisonment should only be imposed as a last resort;
2. 2.
   That he was of interest to the ‘Border Force’ and was not a suitable candidate for a community-based order;
3. 3.
   The first offence was “somewhat aggravated in that that incident took place at the pool. It was not a momentary act of exposing … that is a very deliberate act of exposing yourself - of indecency - to the patrons and staff at the pool, and one might expect that those patrons would presumably they generally younger – of the younger generation, young people and teenagers.”
4. 4.
   The conduct is aggravated by the second offence occurring after his first court appearance / mention for the first offence;
5. 5.
   The offending conduct is not an isolated offence but two deliberate acts;
6. 6.
   The first offence should be regarded as deliberate serious indecency.

18. [18]
    Manifest excess is often revealed by a consideration of all of the matters that are relevant to fixing the sentence, particularly the nature of the offending and the sentences imposed in the most closely comparable cases.
19. [19]
    The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act 1992 (Qld) is to punish an offender to an extent or in a way that is just in all of the circumstances, facilitates avenues of rehabilitation, deters the offender and others from committing a similar offence, makes it clear that the community denounces the conduct in the offending and to protects the community.  The relevant factors to which the court must have regard are in the subsequent subsections of section 9 of the Penalties and Sentences Act 1992 (Qld).  For this offending, it is relevant that imprisonment should only be imposed as a last resort and a sentence that allows the appellant to stay in the community is preferable.
20. [20]
    The critical issue in the appeal is whether imprisonment should have been imposed as a last resort such that a sentence allowing the appellant to stay in the community was not preferable.  Each of the appellant’s complainants of manifest excess revolves around this consideration. 
21. [21]
    Section 9(2) of the Penalties and Sentences Act 1992 (Qld) required the court have regard to various sentencing considerations including in s 9(2)(a) that:

“(a)  principles that –

1. (i)
   a sentence of imprisonment should only be imposed as a last resort; and

2. (ii)
   a sentence that allows the offender to stay in the community                             is preferable;…”

22. [22]
    The nature and seriousness of the offending is borne out by the agreed facts.  The appellant’s bizarre offending when taken in its unusual context is serious for each of the offences by a first time offender.  The gravity of the offending can also be gleaned from the relative minimum and maximum penalties, with due regard to the factors of general and, as appropriate, personal deterrence.  It is very concerning that the appellant’s offending was purposeful, determined and persistent by initially exposing himself in the general pool area then continued in another area while naked.  Clearly enough he would have appreciated that other people were exposed to his offending behaviour both pool areas.  His later offending occurred in more oddly deviant circumstances in a retail shop on the day of his release and in breach of his bail.  On both occasions he stopped the offending behaviour when someone intervened and he reacted with apparent compliance. 
23. [23]
    The offending by the appellant here was not particularised nor contended as involving a direct exposure to, or as being witness by, any children.  Whilst the prosecutor teased the facts by alluding to children being the usual attendees at a public pool especially on a public holiday, he stopped short of seeking an inference that any child was directly exposed to, or was a witness to, the offending to attract the effects on any child under 16 years in terms of s 9(2)(c) of the Act.  Mere supposition that children might generally go to a public swimming pool does lend itself to the only reasonable rational inference of exposure to children at the pool, and such an inference would be in the nature of impermissible speculation or assumption.  Clearly enough, the offending was not of sexual nature committed in relation to a child under 16 years, which mandates actual imprisonment unless there are exceptional circumstances pursuant to ss 9(4), (5) and (6) of the Act.
24. [24]
    The parties relied upon the decisions of R v McCandles [2006] QCA 199 and R v Da Vinci [2000] QCA 356 as providing principal and comparative guidance.
25. [25]
    In McCandles the appellant deliberately placed himself in front of a school where school children as young as 13 witnessed him masturbating whilst naked from the waist down.  The court substituted a sentence two months imprisonment followed by 18 months’ probation in lieu of a sentence of first instance of six months imprisonment with 18 months’ probation.  Holmes JA (as she then was) did not consider that actual imprisonment was the only reasonable alternative in the case but given that the behaviour occurred before school children, that imprisonment was within the range of a sound exercise of a sentencing discretion. Mackenzie J, said: ^[10]

“I am not prepared to exclude the possibility that there may be cases where the circumstances of this category of offence are such that a non-custodial sentence is the proper outcome. 

However, a case where a school, by necessary implication, has been targeted at a time when students in numbers may be expected to be exposed to the indecent act would, in my view, require very special circumstances to attract a fully non-custodial sentence.”

26. [26]
    The appellant in McCandles was older, with a criminal history and was found guilty after trial.  The gravamen of the offending was the deliberate conduct targeted at school children at that place, which was not a feature of this case.    McCandles case can be factually distinguished as being more serious conduct warranting that condign punishment, but the principles are pertinent to this case.
27. [27]
    In Da Vinci the appellant was sentenced after pleading guilty to three charges of indecent acts and a further summary offence.  The sentence of one-month imprisonment and probation for three years was not disturbed on appeal.  All offending involved going into the women’s toilets and placing a mirror under the cubical door or peering under the door. He was on an order of probation for similar conduct at the time of the offending.  No error was demonstrated in the sentencing judge’s reasoning that a short term of custody might provide an incentive for his deviant behaviour and the probation order was appropriate given the critical need for supervision.  In his dissenting judgment, Pincus. JA considered that imprisonment was not appropriate and considered it manifestly excessive.
28. [28]
    Again it seems to me that the gravamen of the offending in Da Vinci was the deliberate targeted conduct.  While not public, the deviant behaviour was targeted at women in the toilet cubicles.   The case has more serious and distinguishing features of purposeful deviance, but remains a reasonable guide for the unusual circumstances of this case.  Here the appellant’s offending occurs more publicly at the pool, and more oddly in the shop. 
29. [29]
    These all undoubtedly raise pertinent considerations in the nature and type of sentence in those comparative cases, however, the question is whether relevant matters are sufficiently enlivened such that no other community-based sentence is appropriate in the circumstances of this particular case.
30. [30]
    Relevantly here, the appellant is a youthful 23-year-old Fijian national with no past offences of a sexual nature, or at all.  He was living and working in Australia while subject of a protection visa due to torture in Fiji.   Beyond those unusual and vague submissions the court was not assisted with any submissions about the appellant’s background, character, education, physical and mental health and intellectual capacity.  The absence of these left a vacuum in the proper exercise of the sentencing discretion, including considerations of personal and general deterrence, and the appellant’s suitability and prospects of rehabilitation that he has no insight into the cause of the offending.  It is not clear whether he was aware of the nature and extent of the use of the pool or significance of the public holiday.  The appellant’s personal circumstances provided some indicia of social vulnerability and instability having regard to his recent arrival on a protection visa and history of torture. 
31. [31]
    Against this background, it is hard to glean how these matters in the circumstances of the case negatived all other community-based sentences such that imprisonment, the sentence of last resort, was the only appropriate order for the appellant’s offending before the court.  I am not satisfied that no community-based sentence is appropriate in the circumstances of this particular case.  I do not accept that the prosecutor’s speculation about interest by Border Force or jeopardy of visa cancellation somehow rendered the appellant an unsuitable candidate for a community-based order or otherwise militated for a sentence if imprisonment.  On the contrary, it seems to me that a sentence of 12 months’ probation is appropriate to satisfy the purposes of sentence including personal and general deterrence, and the need for rehabilitative support and supervision in the community for this appellant being a new arrival, youthful, first time offender.
32. [32]
    In my respectful view, the learned sentencing magistrate was not appraised of all the facts and matters relevant to the proper exercise of the sentencing discretion and was led into mistaking the facts and not taking into account some material considerations in the proper exercise of the sentencing discretion.  This resulted in a miscarriage of justice by a manifestly excessive sentence of imprisonment instead of a sentence that enabled the appellant to remain in the community, which is preferable.
33. [33]
    Therefore, I respectfully conclude that the sentence of imprisonment as the sentence of last resort is disproportionate to the gravity of the offence in this instance, was a manifestly excessive sentence and was outside the permissible range in the circumstances of the case. 

Resentence

34. [34]
    Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion. 
35. [35]
    I must take into account that the appellant has severed out his sentence, which has now expired on 3 August 2020.  By the time of his sentence, the appellant had already served over a month in presentence custody.  After his sentence he continued to serve the balance of the two months of actual custody before his release on parole on 3 May 2020. 
36. [36]
    The appellant contends and the respondent properly concedes that in all of the circumstances, it would be unjust to impose any further punishment.  The appellant has already paid a heavy price for his offending, he has performed well on parole over 4 months and he has not re-offended.  I think the appropriate course is to set aside the orders made by the Magistrates Court, and not further punish. 
37. [37]
    However, the recording of convictions is contested.
38. [38]
    Pursuant to s 12 of the Penalties and Sentences Act 1992 (Qld) the court has discretion to record or not record a conviction.  Sub-section 12(2) provides that:

“(2) In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—

1. (a)
   the nature of the offence; and

2. (b)
   the offender’s character and age; and

3. (c)
   the impact that recording a conviction will have on the offender’s—

1. (i)
   economic or social wellbeing; or

2. (ii)
   chances of finding employment.”

39. [39]
    As to whether to record a conviction, I have had regard to all circumstances of the case and the nature of the offence as discussed above and the appellant’s otherwise demonstrable good character, unblemished record, unresolved psychological matters, character and age.  I accept the appellant’s contention that convictions for the offending will unduly impact on his social wellbeing as a protected visa holder due to torture, and as well his economic wellbeing in a small community should he be displaced from his current and limited employment while subject of visa requirements.

Order

40. [40]
    For these reasons, I will make the following orders:

1. Appeal allowed.
2. The sentence and orders of the Magistrates Court made in Mareeba on 6 April 2020 are set aside, and I substitute the following orders:
   1. (a)
      The appellant is not further punished.
   2. (b)
      No convictions will be recorded for each offence.

Judge DP Morzone