OJT v Queensland Police Service
[2021] QDC 146
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- OJT v Queensland Police Service[2021] QDC 146
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OJT v Queensland Police Service[2021] QDC 146
OJT v Queensland Police Service[2021] QDC 146
DISTRICT COURT OF QUEENSLAND
CITATION: | OJT v Queensland Police Service [2021] QDC 146 |
PARTIES: | OJT (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 1262 of 2021 |
DIVISION: | Appellant |
PROCEEDING: | Appeal against sentence |
ORIGINATING COURT: | Magistrates Court, Maroochydore |
DELIVERED ON: | 11 June 2021, ex tempore |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 June 2021 |
JUDGE: | Rackemann DCJ |
ORDER: | The appeal is dismissed. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – appeal pursuant to s 222 of the Justices Act 1886 (Qld) – where material not before the sentencing Magistrate due to failure of appellant’s solicitor – whether discretion to grant leave to adduce fresh evidence should be exercised – whether matter should be adjourned to allow appellant to investigate contents of other documents that are said to exist – where the further documents were provided to the Court at various stages prior to the date of sentencing, but where not tendered at the sentencing hearing – where the matters in the further documents were put before the Magistrate in the course of submissions, or were contrary to the basis upon which the sentencing was being put – where it is unlikely, if the matter is adjourned, that the appellant will be granted leave to adduce the further documents as fresh evidence, given they are unlikely to make any material difference to the sentence – whether the sentence was manifestly excessive |
COUNSEL: | The appellant appeared on his own behalf M Whelan for the respondent |
SOLICITORS: | The appellant appeared on his own behalf Office of the Director of Public Prosecutions for the respondent |
- [1]On 31st of March 2021, the appellant pleaded guilty to one count of contravening a domestic violence order. He also, on the same day, pleaded guilty to having breached a probation order that had been made in the Magistrates Court on the 30th of June 2020. That probation order had been imposed with respect to a number of offences, including two counts of contravening a domestic violence order.
- [2]It is the further offending to which the appellant pleaded guilty on the 31st of March of this year, which constituted the breach of the probation. The offending also occurred during the operational period of a suspended sentence that had also been imposed in the Magistrates Court on the 30th of June 2020 in relation to a number of other offences.
- [3]The appellant was sentenced in relation to the contravention of the domestic violence order to 20 months imprisonment with 96 days of pre-sentence custody being declared. The appellant was also resentenced on the original offences for which probation had earlier been given. He was resentenced to seven days imprisonment. Insofar as the suspended sentence period of imprisonment is concerned, he was ordered to serve the whole of the suspended period of imprisonment, which was six months less the 14 days of the pre-sentence custody declared in relation to that offence. All terms were ordered to be served concurrently, and the parole release date was set at 9 July 2021, which was, in effect, at the one-third mark of the head sentence.
- [4]The appellant’s first concern is that he might have fared better had some further material been before the sentencing Magistrate, and he blames the solicitor who represented him at the original sentence for that.
- [5]By reason of section 223 of the Justices Act 1886 (Qld), an appeal to this Court proceeds by way of rehearing on the evidence given in the proceeding below, subject to this Court giving leave to adduce fresh evidence. The appellant sought to rely on one piece of fresh evidence, and effectively sought a further adjournment of this appeal to allow him to attempt to find copies of other material which he says might have assisted him. That is notwithstanding the fact that his parole release date is fast approaching.
- [6]I was referred by the respondent to the decision of the Court of Appeal in Pavlovic v The Commissioner of Police [2006] QCA 134 in relation to the proper approach to the grant of leave to adduce further evidence. The evidence to which the appellant referred is all evidence which could have been produced below, but which the appellant contends was not produced because of some failure on the part of his solicitor. The first document sought to be relied upon evidences that the appellant, whilst he was in custody, has completed a short drug intervention course. It appears from the transcript that the primary Magistrate was, it seems, erroneously informed that the appellant had not formally engaged in any rehabilitation services, but nevertheless, was informed that he had become clean and was not abusing illicit substances during his time in custody. It is difficult to see how evidence of him also having undertaken a short course would have materially affected the sentence imposed. I therefore exercise my discretion not to grant leave.
- [7]Insofar as the other documents are concerned, it is more a case of considering whether the matter should be further adjourned to enable the appellant to investigate the contents of other documents he says exist. These are said to be affidavits or statements from his mother, from the victim, and by a psychologist. He says that each of those documents were handed up to the Court at various stages prior to the date of the sentencing, but were obviously not tendered at the sentencing hearing, and so were not referred to in the sentencing submissions or sentencing remarks. When asked to identify what use those documents might have been, it became evident that they go to matters either which had been put before the Magistrate in the course of submissions, or were contrary to the basis upon which the sentence was being put.
- [8]In particular, the appellant said he wished to review the affidavit of his mother with a view to seeking to put it before the Court for the purposes of the appeal, because it would deal with his responsibility for his children and explain the circumstances which led to him returning to drug addiction in the lead up to the offence of contravening the domestic violence order. It is apparent from the transcript, however, that the appellant’s solicitor informed the learned Magistrate of the appellant’s drug addiction, its longstanding nature, the fact that he is able to function during periods when he is clean, but that his addiction was a factor during the relationship with the complainant, and that they had both been using drugs at the time of the event, although he has, during his subsequent incarceration, taken the opportunity to detox from his daily use of illicit substances. It would appear therefore that the learned Magistrate was given the benefit of the factual matters concerning the appellant’s drug abuse and its effect at the time of the offence in question.
- [9]Further, insofar as the appellant’s custody of his daughters is concerned, a reference to the transcript shows that the appellant’s solicitor informed the learned Magistrate of the fact of the appellant’s children and their ages, and that prior to the appellant being remanded in custody, he was the primary carer of the children. Further, that whilst the children lived in a house occupied by their maternal grandparents, whilst the appellant lived with the complainant in a shed on the same property, it was the appellant who assisted the children with their day to day care, including ensuring that they attended school.
- [10]It therefore appears that the matters of interest to the appellant in relation to the affidavit of his mother were, in any event, put before the learned Magistrate and it is therefore difficult to see the purpose of granting an adjournment in order to obtain material in respect to which the appellant is unlikely to be given leave to adduce as fresh evidence, given that it is unlikely to make any material difference to the sentence. As to the second, the sentence proceeded on the basis of an agreed statement of facts. Reference to the transcript reveals that when, at one stage, it appeared to the Magistrate that there may be some uncertainty about the level of acceptance of one aspect of the facts, His Honour took steps to ensure that the defendant’s position was put clearly by the solicitor. Although the appellant this morning maintains that he disagrees with some of the facts, he does not ultimately cavil with the proposition that the solicitor acted in accordance with his instructions on the day to proceed to sentence on the basis of the statement of facts. For those reasons, it would seem to be pointless to adjourn the case in order for the defendant to obtain and scrutinise the affidavit of the victim in hope of finding matters to put before the Court in circumstances where leave is unlikely to be granted, in any event.
- [11]Somewhat belatedly, the appellant then referred to his belief that there was another document in existence, that is a statement from a psychologist. He was unable to identify what of relevance he wanted to establish by obtaining and potentially seeking leave to put such document before the Court on appeal, beyond simply giving the Court further evidence of his character or state. He does not suggest that there is any particular finding that has been made by any psychologist which is of any particular relevance or would have any particular gravity. There is no basis to speculate, or to conclude, that there is anything of relevance, let alone anything that would justify the grant of leave to adduce new evidence on appeal.
- [12]It would appear that to the extent that these other documents exist that were at some point, prior to the sentencing hearing, handed up by the appellant’s solicitor on other occasions, the solicitor decided to proceed on the day by informing the sentencing Magistrate of the matters of relevance to the sentencing discretion rather than by the tendering of documents. I should add, insofar as the acceptance of the statement of facts is concerned, that was a matter which was put forward as a matter in favour of the appellant as demonstrating his cooperation with the administration of justice.
- [13]For the reasons given, I am not inclined to adjourn the hearing on this appeal in order for the appellant to seek to make further inquiries about documents which he says were handed up to magistrates at different and earlier times of the proceedings below.
- [14]I should add that the appellant also has a statement of his own which he says he gave to his solicitor on the day but which the solicitor did not tender. He read out that statement today because he is appearing by video link and was unable to hand me a copy. The statement attests to his remorse, his drug addiction and intent for rehabilitation, but also contains a statement that he disputes some of the facts. It is understandable therefore that the solicitor did not tender the statement given that his instructions ultimately were to proceed on the basis of the agreed statement. The other matters contained in the statement, particularly in relation to the drug addiction and the appellant’s intent for rehabilitation, were things which were covered in the sentencing submissions made on his behalf before the learned Magistrate. There is no real basis to admit the document as fresh evidence on the appeal; it would not make any material difference to the outcome of the appeal.
- [15]Returning to the consideration of the sentence, the learned sentencing Magistrate set out the relevant facts and the matters to be taken into account. The learned Magistrate was referred to some comparable decisions, which were dealt with in the sentencing remarks. Those comparables related to violence in the context of a domestic relationship, but involved charges of assault occasioning bodily harm which carries a different maximum sentence. That is a matter to which His Honour’s attention was drawn and which His Honour acknowledged in the sentencing remarks.
- [16]His Honour’s ultimate sentence was, in my view, one which was within the available sentencing discretion given the circumstances of the case, including the seriousness of the breach of the domestic violence order, as described in the agreed facts, given the history of the appellant which featured prior convictions – including domestic violence, and given also that the offence was committed during a period when he was subject to both probation and an unexpired operational period of a suspended sentence.
- [17]The matters in the appellant’s favour were appropriately reflected in the setting of the parole release date. No issue could be taken with the way His Honour dealt with activating the suspended sentence or on resentencing for the offences which were previously the subject of probation. The fact that His Honour made the sentencing, in those regards, concurrent with the head sentence of 20 months on the breach of the domestic violence order reinforces the conclusion that His Honour’s sentence was not manifestly excessive. I can see no basis for disturbing His Honour’s sentence.
- [18]I appreciate that the appellant is genuine in his remorse, in his concern that his incarceration is having on his family and in his resolve to rehabilitate on a sustained basis. That perhaps shows that the sentence imposed upon him has had a deterrent effect and is motivating, and hopefully will continue to motivate, his rehabilitation. It does not however provide an appropriate basis for interfering with the sentence that was given by the learned Magistrate. The appeal is dismissed. Anything further?
- [19]MR WHELAN: No, your Honour, thank you.
- [20]HIS HONOUR: Adjourn the Court.