Sohl v QPS[2021] QDC 126

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   After a failed application for adjournment because he was unable to travel to his trial from Groote Eylandt, the appellant failed to appear at his trial on the 26 February 2021 when a warrant was issued for his arrest.  After surrendering into custody on 8 March 2021 he was sentenced by a fine of $1000 with no conviction recorded. 
2. [2]
   The appellant appeals on the basis that the sentence for the failure to appear was manifestly excessive.  The appeal is not opposed.
3. [3]
   On 10 June 2021 I allowed the appeal and ordered that the defendant be convicted but that such conviction not be recorded, and he be not further punished.  These are my reasons.

Background

4. [4]
   Whilst it was important that the date be fixed to ensure the viability of the attendance of the complainant, who was not an Australian national, it was nevertheless a matter which could be undone in circumstances where the appellant, through no fault of his own, was placed in the invidious position of being unable to attend unless his job was placed in serious jeopardy.
5. [5]
   Over the Christmas period, he received his new roster, but he was also struck with illness, having suffered a stroke.  It is unlikely that his mind was turned to the matters of the Court administration and that date.  It was not until his solicitor reminded him of his trial on the 18th of February 2021 that he realised that his new roster for that year, the new year, would prevent his attendance at Court in circumstances where he had no further sick leave or legitimate reason for not attending work.  By then the appellant was ensconced on Groote Eylandt, being his place of work. 
6. [6]
   His solicitor sought to make an application as soon as practical on the 19th of March 2021, and the hearing of the adjournment was set for 22 February 2021.  During the course of the application, it appears that her Honour took a harsh and dim view of the facts, disagreeing with the appellant’s solicitor as to what was conveyed on 7 December 2020 when the trial date was set.  It seems that her Honour misapprehended that his circumstances had significantly changed, or at least she rejected those matters out of hand, which led to the proceeding lurching towards a trial which was unviable. 
7. [7]
   The application for adjournment was refused, and the trial date of 26 February 2021 remained.  This course was futile since there was no realistic or practical prospect that the appellant could attend the hearing since he was already ensconced at work at Groote Eylandt. 
8. [8]
   A warrant issued on the trial date as a result of the inevitable consequence of his failure to appear. 
9. [9]
   When the appellant did return from his work, he took immediate steps to surrender himself into custody.  First, on 2 March 2021 but was turned away by police who had no warrant.  He tried to surrender into custody a second time on 4 March but was again turned away in the absence of a warrant.  It was not until 8 March 2021 that he was received into custody after he made a third attempt to surrender into custody.  In compliance with the warrant, he was remanded until his appearance in court two hours later to be dealt with for failing to appear.  At that time, he took a pragmatic approach to plead guilty to the offending on the basis that there were strong mitigating factors, which were arguably a reasonable excuse, but instead relied upon in mitigation in relation to the penalty. 
10. [10]
    Those matters were apparently rejected by the sentencing magistrate and he was sentenced by a fine of $1000 with no conviction recorded. 

Appeal

11. [11]
    The mode of appeal to this Court is by way of a review.  The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).  Pursuant to s 223 of the Act the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave.  The District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.  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.^[1]  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.^[2]
12. [12]
    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,”^[3] and thereby resulting in a manifestly excessive sentence.

Manifestly Excessive/Inadequate Sentence

13. [13]
    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] 
14. [14]
    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, they 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]
15. [15]
    The High Court held in House v. The King^[7] and Kentwell v R^[8] 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.

Manifestly Excessive

16. [16]
    The appellant was sentenced after he pleaded guilty to the offence of failing to appear at his trial on 26 February 2021.
17. [17]
    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, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, make it clear that the community denounces the conduct in the offending and to protect 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).
18. [18]
    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.  The nature of the penalty, in the form of a fine, provides little by way of rehabilitation, particularly in circumstances where its payment is likely to be unattainable and, therefore, there would be little motivation to do so.  The gravity of this offending can also be gleaned by the relative minimum and maximum penalties, with due regard to the factors of general and, as appropriate, personal deterrence.  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.
19. [19]
    When that trial date was set on the 7 December 2020, the appellant, being a fly in fly out worker to Groote Eylandt, faithfully relied upon his yearly roster to ensure his availability.  That position was properly conveyed to the Court by his solicitor at the time and the date was set for 26 February 2021 for that trial. 
20. [20]
    In my respectful view, the learned magistrate, in exercising the sentencing discretion, mistook the facts.  It was not a matter where the appellant deliberately disobeyed the Court, but rather, he was caught in a predicament beyond his control and otherwise distorted by his own incapacity.  He took every opportunity to bring the matter to the Court as soon as it was brought to his attention by a solicitor as to the appropriate course of action.  It was heard by the Court only after he had made those instructions clear, but that clarity was unable to be conveyed to the Court having regard to the nature and extent of the exchange and between his representative and the learned magistrate.  After the further attempts for him to surrender himself, he was arrested and remanded for about two hours before the matter was heard by way of a sentence.  Again, the matter proceeded in such a manner that the Court did not permit itself to be fully informed as to the clear circumstances surrounding his failure to appear.  These circumstances might have been considered a reasonable excuse in defence of the charge, but after taking a pragmatic approach and pleading guilty, the appellant contended for such matters in mitigation.  Again, it is not clear whether they were apprehended by the Court because of the extent of interruption of submissions in the course of the exchange. 
21. [21]
    It seems to me that the appellant’s time in custody after his voluntary surrender was a sufficient penalty, otherwise a sentence in the order of $300 would have been appropriate.  In my respectful opinion, the fine of $1000 well exceeds a just and appropriate sentence, falls outside of the permissible range and is manifestly excessive and unjust. 

Resentence

22. [22]
    Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion. 
23. [23]
    The appellant was 39 years at the time of the offence and was aged 40 years at sentence.  He is married with three children and is the primary provider for his family, having commitments of a home mortgage and car loan repayments.  He suffered stroke illness recently, but was able to resume work as a dozer driver on Groote Island, where he has worked for many years and works on a fly in fly out basis.
24. [24]
    The circumstances since his sentence are also remarkable.
25. [25]
    After imposing sentence for the offending of failing to appear, the Court then revisited the need to set a new trial date and then invited an application for bail.  Those submissions were meritoriously based and relied upon the unusual juxtaposition of the change of roster, illness, absence for work, logistics of returning, attempts to surrender into custody not once but twice before finally being accepted on the third occasion, his otherwise good reasons for attending work, financial responsibility in his household, and remorse by his early plea.  The interactions between the appellant’s solicitor and the bench were less than ideal with one interrupting the other.  It was apparent from the outset that her Honour had predetermined the matter and did not seek the prosecution’s determination.  The application for bail was never opposed by the prosecutor. 
26. [26]
    In the end, the learned magistrate refused the bail application having been unpersuaded that the appellant did not pose an unacceptable risk of failing to appear at the trial.  The appellant languished in custody for over 2 days until before the matter was brought before the Supreme Court, where bail was granted. 
27. [27]
    The appellant attended his trial in May 2021 for the substantive charges, at which time, he was acquitted. 
28. [28]
    It seems to me that it is appropriate in all the circumstances that the appropriate sentence is that the appellant be convicted, and not further punished.  The question is whether a conviction should be recorded.
29. [29]
    It is critical that defendants remain obedient to bail and honour commitments to court dates.  The appellant’s circumstances are explained above, and I take account of his character and age.  In my view, I accept that his economic or social wellbeing; or chances of maintaining and finding employment would be unduly impacted by a conviction.  This is an appropriate case that a conviction should not be recorded. 

Order

30. [30]
    For these reasons, I made the following orders:

1. Appeal allowed.

2. The sentence and orders of the Magistrates Court in Innisfail made on 8 March 2021 are set aside, and substituted with the following sentence:
   1. (a)
      The defendant is convicted.
   2. (b)
      No conviction is recorded.

Judge DP Morzone QC