Nitz v The Commissioner of Police
[2021] QDC 237
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- Nitz v The Commissioner of Police[2021] QDC 237
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Nitz v The Commissioner of Police[2021] QDC 237
Nitz v The Commissioner of Police[2021] QDC 237
DISTRICT COURT OF QUEENSLAND
CITATION: | Nitz v The Commissioner of Police [2021] QDC 237 |
PARTIES: | HAYDEN JOHN NITZ (appellant) v THE COMMISSIONER OF POLICE (respondent) |
FILE NO: | D35/2021 |
DIVISION: | Criminal |
PROCEEDING: | Appeal s 222 Justices Act 1886 (Qld) |
ORIGINATING COURT: | Magistrates Court, Rockhampton |
DELIVERED ON: | 24 September 2021 |
DELIVERED AT: | District Court, Rockhampton |
HEARING DATE: | 23 September 2021 |
JUDGE: | Clarke DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – appeal – leave to adduce fresh or new evidence |
LEGISLATION: | Justices Act 1886 (Qld) ss 222, 223, 224 |
CASES: | McDonald v Queensland Police Service [2018] 2 Qd R 612 Allesch v Maunz (2000) 203 CLR 172 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 R v Maniadis [1997] No 1 Qd R 593 Gallagher v R (1986) 160 CLR 392 Pavlovic v Commissioner of Police [2007] 1 Qd R 344 |
APPEARANCES: | The appellant appeared on his own behalf Mr J Phillips, Office of the Director of Public Prosecutions for the respondent |
- [1]The self-represented appellant filed a notice of appeal out of time, purporting to challenge sentences imposed following guilty pleas in the Rockhampton Magistrates Court on 18 May 2021. The grounds of appeal are stated as:
“Medical grounds. Acceptance to rehabilitation centre. See attached letter.”
- [2]At a directions hearing on 30 August 2021 the respondent conceded the discretion should be enlivened to extend the time for filing the notice of appeal.[1] Leave was granted in those circumstances.
- [3]On that date, it was also identified that the appellant may be seeking leave to adduce fresh evidence pursuant to s 222(3)(2) Justices Act 1886 (Qld), being other material which had been sent to the court by his mother. The appellant’s letter attached to the notice of appeal referred to further information he had received about his “inadequate treatment” whilst incarcerated and acceptance into a rehabilitation centre. The letter confirmed he was “not challenging the sentencing or conviction. I am solely requesting release to the rehab centre.”
- [4]I deferred the issue about granting leave to adduce fresh (new) evidence until the hearing of the appeal, on an understanding that the appellant was hopeful of securing legal representation following the decision to give leave to extend time.
- [5]Section 223(2) Justices Act 1886 (Qld) contemplates a discretion to give leave to adduce new evidence if the court is satisfied there are special grounds for giving leave. Authority for what may constitute “special grounds” is derived from Clarke v Japan Machines (Australia) Pty Ltd[2] as follows:
“That for the purposes of O. 70, r. 10 of The Rules of the Supreme Court to constitute special grounds for the reception of further evidence upon an appeal, three conditions must be fulfilled: (i) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (ii) the evidence must be such that, if given, it would probably have an influence on the result of the case although it need not be decisive; (iii) the evidence must be such as is presumably to be believed, though it need not be incontrovertible.”[3]
- [6]The appellant states he had limited opportunity to gather evidence confirming his diagnosis of chronic viral hepatitis C (treatment commenced on 1 February 2021) following an original differential diagnosis of atomoxetine drug induced liver injury at the Liver Clinic, Royal Brisbane and Women’s Hospital. The new evidence comprises a Notice of Decision of the Office of the Health Ombudsman confirming a complaint of inadequate treatment at Capricornia Correctional Centre, a letter of Ms Stewart, psychologist, and a note from Lives Lived Well confirming there has not been a placement or indeed an assessment with the Townsville Recovery Service. There are also letters from the appellant’s mother. On the day of the appeal hearing, the appellant also disclosed other medical evidence. Ultimately, the respondent sensibly conceded that leave to adduce new evidence should be given.
- [7]In the circumstances, I have had regard to the appellant’s continued incarceration, and the communication issues caused by that, which may have hampered his ability to gather all relevant material for his sentence proceedings. It is clear the appellant was receiving treatment for his hepatitis C at the time of sentence, and that may have been relevant to the sentencing Magistrate’s determination. I am prepared to grant leave pursuant to s 223(2) Justices Act 1886 (Qld). I have considered the new evidence.
- [8]An appeal brought pursuant to s 222 Justices Act (1886) Qld is by way of rehearing.[4] Having pleaded guilty, the defendant’s sole available ground of appeal is that the penalty was excessive.[5] In order to succeed, the appellant must establish some legal, factual or discretionary error in the decision under appeal.[6]
- [9]The basic requirement of being able to establish some legal, factual or discretionary error in the sentence was explained to the appellant, in the absence of legal representation and to afford him natural justice, at the directions hearing and again on the hearing of the appeal. The main thrust of the appellant’s argument centres upon the delay he will encounter in the Parole Board’s consideration of his re-release to parole, his medical and mental health problems and willingness to undertake rehabilitation.
- [10]The defendant pleaded guilty to 13 charges. On 23 July 2020 police intercepted him and found him in possession of methylamphetamine in a clip seal bag, uncapped hypodermic syringe and needle and a glass pipe.
- [11]Police attempted to intercept him as he drove away from a North Rockhampton residence on the night of 4 September 2020, after the police had set up a cordon around the house. He evaded police who had activated lights and sirens by speeding away. The pursuit was terminated.
- [12]He evaded police on two occasions the following day, Saturday 5 September 2020 in the same car, which was registered to him. At about 7.30 am the appellant evaded police at the major intersection on the Fitzroy River Bridge in Rockhampton by speeding away after police had activated emergency lights and sirens. The interception was immediately abandoned. Later that day at about 3.30 pm he again evaded police, who had again activated emergency lights and sirens and attempted to intercept him on Canning Street Rockhampton (Canning Street runs between the Rockhampton Base Hospital and a major Rockhampton shopping centre). The appellant sped away and overtook a vehicle to evade police. The intercept was discontinued.
- [13]On 7 September 2020 a fight had occurred between two men in a central Rockhampton street near a McDonald’s fast food outlet. As the men left the area the defendant got out of a different car (registered to his father) armed with a long arm rifle and fired a shot in the direction of one of the men who was getting into a car. The projectile missed the man and the car. The appellant was seen to get back in the car and leave the scene.
- [14]Two days later, on 9 September 2020 the appellant was apprehended in his father’s car at a service station. The loaded operable firearm was in the car, with multiple spare bullets. The appellant also had methylamphetamine in a clip seal bag in his wallet, together with another pipe and uncapped needle. He told police he intended to commit suicide.
- [15]The other charge related to his contravention of a direction to provide identifying particulars when apprehended on 23 July 2020.
- [16]On sentence, the appellant’s lawyer stressed the appellant’s poor state of mental and physical health, and a strong desire to secure a place in a drug rehabilitation program “as soon as possible”. The learned Magistrate considered a number of letters and reports and the appellant’s letter of apology.[7] The letters and reports related primarily to the appellant’s mental disorder/illness, which was compromised in the opinion of a Consultant Psychiatrist Dr Rofe, by his continued drug use.
- [17]The following sentences were imposed:
Charge | Date | Penalty |
| Between 22.7.2020 and 31.7.2020 | Convicted – not further punished |
| 23.7.2020 | Six months imprisonment |
| 23.7.2020 | Convicted and not further punished |
| 23.7.2020 | One month imprisonment |
| 4.9.2020 | 50 days imprisonment Disqualified from holding or obtaining a driver licence for 2 years |
| 5.9.2020 | 50 days imprisonment Disqualified from holding or obtaining a driver licence for 2 years |
| 5.9.2020 | 70 days imprisonment Disqualified from holding or obtaining a driver licence for 2 years |
| 7.9.2020 | Nine months imprisonment |
| 9.09.20 | Six months imprisonment |
| 9.9.2020 | Convicted and not further punished |
| 9.9.2020 | Six months imprisonment |
| 9.9.2020 | Three months imprisonment |
| 9.9.2020 | Convicted and not further punished. |
- [18]All sentences were ordered to be served concurrently. The overall sentence was one of imprisonment for a period of nine months. A new parole eligibility date was set at 18 July 2021, which was two months after the date of sentence. No declaration was made as to presentence custody.
- [19]The criminal history[8] and traffic history[9] demonstrated the appellant, aged 32, had a considerable adverse prior offending record. He was subject to parole (and parole suspension) at the time of the offences under review. A Presentence Custody Certificate[10] confirmed that at the date of sentence, the appellant was serving a sentence of nine years and 11 days, backdated to commence on 2 May 2014. The appellant had been released to Board Ordered Parole on 22 April 2020 which was suspended on 3 September 2020. The appellant was returned to custody on 9 September 2020. The revised fulltime sentence expiry date was 26 May 2023. The appellant had been held on remand from 10 September 2020 to 17 May 2021, a total of 250 days (or about nine months), although he had been serving the prior sentence following suspension.
- [20]The Presentence Custody Certificate confirmed pursuant to s 209 and 211 Corrective Services Act 2006 (Qld) the parole order was automatically cancelled upon being sentenced to a term of imprisonment.
- [21]The appellant possesses a considerable criminal history, having been convicted of numerous drug, weapons and violence offences since 2005. On the hearing of the appeal, the appellant confirmed he had been imprisoned on seven previous occasions and had been returned to custody three times for reoffending or not complying with parole. The criminal history confirmed a sentence of six years imprisonment imposed on 13 May 2015 in the Rockhampton Supreme Court for drug trafficking and related offending. Whilst subject to parole eligibility after two years and three months, he was convicted of one offence of contravening a Police Protection Notice (PPN) and 17 subsequent offences of contravening a Domestic Violence Order. Suspended sentences were imposed for all of the subsequent offending and the original order of suspended imprisonment imposed for contravening the PPN was also extended, in the exercise of discretion.
- [22]The appellant was subsequently dealt with for two offences of choking, suffocation or strangulation in a domestic setting in the Rockhampton District Court on 21 November 2019. He was also dealt with for the orders of suspended imprisonment. On that occasion, an order was made for two years imprisonment to commence at the expiration of the sentence imposed in the Rockhampton Supreme Court, with a parole eligibility date of 20 February 2020 (the orders for suspended imprisonment were imposed concurrently).
- [23]The prosecution agitated for a sentence in the order of 12-18 months imprisonment for the most serious charge of dangerous conduct with a weapon. The maximum penalty for that offence is four years imprisonment or 200 penalty units,[11] although the jurisdictional limit of three years imprisonment applies in summary proceedings.[12]
- [24]The appellant’s lawyer did not cavil with that submission. No comparable decisions were relied upon by either party. The prosecution submitted for an order of parole eligibility. The defence submitted for a suspended sentence with a lengthy operational period. The learned sentencing Magistrate immediately identified a difficulty in imposing a suspended sentence for the evasion offences, having regard to the mandatory minimum penalties of 50 penalty units or 50 days imprisonment served wholly in a corrective services facility.[13]
- [25]The sentencing Magistrate took into account the efforts the appellant was making in attending to treatment for his mental health and was aware of his desire to attend rehabilitation. His Honour was dealing with the appellant for a raft of serious offending. The offending was perpetrated while the appellant was subject to a lengthy period of supervision of parole release, which had already been suspended. Determining a sentence of imprisonment was the appropriate sentence (and there could be no argument about that), the only possible orders allowing for a mechanism of release would have been setting a new parole eligibility date (which occurred here) or an order of partially or wholly suspended imprisonment. However, on a suspended sentence, the parole order was still automatically cancelled. Accordingly, the appellant could not enjoy parole release unless reconsidered and granted by the Parole Board.
- [26]No error has been demonstrated in the sentencing proceedings. His Honour took into account the plea of guilty. He also took into account the appellant’s partial admissions and cooperation in telling police the firearm was in the car. He confirmed the appellant was attending drug counselling and seeing the psychologist. He considered that remorse was evident from the letter of apology. He considered the nine months the appellant had been returned to custody, declining to make a declaration.
- [27]The Magistrate gave reasons why he did not consider it appropriate to suspend the sentence. In addition to the issue about the minimum 50 day imprisonment order on the evasions offences (deciding the imposition of the fine was not appropriate having regard to the gravity of the offending and the appellant’s inability to pay), he concluded from the appellant’s continued offending during operational periods of orders of suspended imprisonment, and the deterrent aspect of sentence, that supervision was required. He reduced the sentence and imposed an earlier parole eligibility date.
- [28]Considering the new evidence, I am cognisant of the difficulties the appellant is encountering in having the Parole Board consider his safe release into the community, in receiving and accessing appropriate health care and I have considered his willingness to engage in treatment for his drug abuse problem. The appellant confirmed on the hearing of the appeal his parole eligibility date has now passed and the Parole Board may not hear his application (lodged 16 June 2021) for some time. Notwithstanding the new evidence, I am satisfied it was appropriate to order a new parole eligibility date. Supervision is clearly warranted.
- [29]I am satisfied the sentencing Magistrate took into account the period of about nine months the appellant had been returned to custody and about which a declaration was not made. In my view, the penalty imposed was moderate. There is no basis to interfere with the order made.
- [30]I order the appeal be dismissed. There will be no order as to costs.
Footnotes
[1]Section 224(1)(a) Justices Act 1886 (Qld).
[2][1984] 1 Qd R 404 at 408, per Thomas J, by reference to the English Authority of Langdale v Danby [1982] 3 All ER 129 at 137-138.
[3]See also R v Maniadis [1997] No. 1 Qd R 593; Gallagher v R (1986) 160 CLR 392; Pavlovic v Commissioner of Police [2007] 1 Qd R 344.
[4]Section 223(1) Justices Act 1886 (Qld)
[5]Section 222(2)(c) Justices Act 1886 (Qld)
[6] McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 612; Allesch v Maunz (2000) 203 CLR 172.
[7]Exhibits 4-10.
[8]Exhibit 1 on the sentence proceedings.
[9]Exhibit 2.
[10]Exhibit 3.
[11]Section 58(2) Weapons Act 1990 (Qld).
[12]Section 552H(1)(b) Criminal Code 1899.
[13]Section 754(2) Police Powers and Responsibilities Act 2000 (Qld).