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- Unreported Judgment
Hunter v Queensland Police Service QDC 273
DISTRICT COURT OF QUEENSLAND
Hunter v Queensland Police Service  QDC 273
QUEENSLAND POLICE SERVICE
122 of 2021
Magistrates Court at Cairns
17 November 2021
5 November 2021
CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – Section 222 Justices Act 1886 – where the appellant pleaded guilty to two charges of stealing, two charges of shop steal, one charge of common assault, one charge of entering or remaining in a casino and one charge of failing to appear – where the appellant was sentenced to a total period of imprisonment of 18 months with a parole eligibility date fixed at 17 August 2021 – where evidence was not adduced at sentence as to the appellant’s longstanding mental health issues – whether the uncertainties with parole gave rise to the sentence being manifestly excessive – whether leave should be given to adduce evidence as to the appellant’s mental health – whether evidence as to medical records might reasonably have led the learned Magistrate to return a different verdict.
Casino Control Act 1982
Justices Act 1886 (Qld)
Burnett v Commission of Police  QDC 251
Dinsdale v the Queen  HCA 54;  202 CLR 321
Gallagher v R (1986) 160 CLR 392
Holden v Queensland Police Service  QDC 217
House v The King (1936) 55 CLR 499
Johnson v Commissioner of Police  QDC 268
Lowe v The Queen (1984) 154 CLR 606
NHR v Commissioner of Police  QDC 67
Pavlovic v Commission of Police  QCA 134
R v Crouch and Carlisle  QCA 81
R v Ikin  QCA 224
R v Lomass (1981) 5 A Crim R 230
R v Macintosh  St R Qd 278
R v Morse (1979) 23 SASR 98
R v Verdins (2007) 16 VR 269
R v Yarwood (2011) 220 A Crim R 497
Rongo v Commissioner of Police  QDC 258
Ross v Commissioner of Police  QDC 99
T. Grau for the Appellant
S. McManus for the Respondent
Legal Aid Queensland for the Appellant
The Office of the Director of Public Prosecutions for the Respondent
- On the 5th of November 2021 this appeal proceeded before me and at the conclusion of submissions, I indicated what the orders were to be and that reasons would follow. These are those reasons.
- On the 17th August 2021, Mali-Noi Hunter, whom I shall refer to as ‘the appellant’, appeared before the Magistrates Court in Cairns and pleaded guilty to seven charges contained within various bench charge sheets. She was sentenced in relation to the matters to which she entered a plea of guilty. Those charges were as follows:
- Charge 1 of 1 on Magistrates Court File Number 13517215 – Stealing
- Charge 1 of 1 on Magistrates Court File Number 223124208 – Common Assault
- Charge 1 of 1 on Magistrates Court File Number 223133207 – Stealing
- Charge 1 of 3 on Magistrates Court File Number 109125211 – Shop Steal
- Charge 2 of 3 on Magistrates Court File Number 109125211 – Shop Steal
- Charge 3 of 3 on Magistrates Court File Number 109125211 – Fail to Appear
- Charge 1 of 1 on Magistrates Court File Number 133721215 – Entering or remaining in a Casino.
- The first three charges listed above occurred whilst the appellant was on parole which is an aggravating factor.
- In respect of charge 1 on Magistrates Court File Number 223124208 and charge 1 on Magistrates Court File Number 223133207, a penalty of 17 months imprisonment was imposed in relation to each. In respect of charge 1 on Magistrates Court File Number 13517215 and charges 1 and 2 on Magistrates Court File Number 109125211, a penalty of 12 months imprisonment was imposed, to be served concurrent with the head sentence
- In respect of the charge of failing to appear in accordance with an undertaking, a period of one month’s imprisonment was imposed, which was to be served cumulative upon the other terms. Thereafter, the learned Magistrate fixed a parole eligibility date in relation to all matters of the 17th of August 2021.
- On the 18th of August 2021, a notice of appeal to a District Court Judge was filed on behalf of the appellant. That notice of appeal indicated that the ground upon which the appellant based the appeal was that the total sentence of eighteen months imprisonment with a parole eligibly date fixed at 17 August 2021, was manifestly excessive. The appellant also sought leave to adduce new evidence relating to her mental health status at the time of the offending.
- The appellant’s counsel in his outline noted the basis upon which the sentence imposed was manifestly excessive:
- (a)The learned Magistrate erred by structuring the sentence with a Parole Eligibility Date without due consideration to the known delays of the Parole Board of Queensland in considering and finalising applications for parole;
- (b)The Court did not have placed before it available, credible and believable evidence of the appellant’s mental heath status that may reasonably have led the learned Magistrate to impose a difference sentence.
- At the time of the sentencing, the learned Magistrate was provided with a nine-page sentencing schedule. I shall come to the matters detailed in the sentencing schedule momentarily, however, it should also be noted that tendered to the Magistrate was a copy of the appellant’s eight page criminal history, some photographs of injuries sustained by the complainant as a result of the common assault and a pre-sentence custody certificate.
- The statement as to the offending was detailed in the sentencing schedule. The sentencing schedule included information in respect of the seven offences. The first related to stealing. The schedule noted in relation to that offending, the following:
“At about 10.40am on the 24th day of November 2020, the defendant had entered Coles Cairns Central. The defendant has walked around the fruit and vegetable area of Coles before proceeding to the cosmetic aisle. The defendant has proceeded to remove cosmetic items from the shelves. The defendant has placed her Coles shopping basket containing fruit onto the floor and has taken her backpack off her shoulders. The defendant then started placing the cosmetics into her backpack and has then removed the fruit from the basket and placed these into her backpack. The defendant then put the backpack on her shoulders and has grabbed a few more items from the cosmetic aisle, also placing these into her backpack.
The defendant then left Coles Cairns Central through the self-serve checkout making no attempt to make payment…”
- After witness, Kevin Screen, approached the appellant, she accompanied him back to the Coles administration area where her bag was checked, and the stolen items totalling $397.95 were subsequently located and recovered.
- On the 22nd of January 2021, police attended the appellant’s unit in relation to another incident involving the appellant. She accepted the police officer’s offer for an interview and was transported to Cairns Police Station where she took part in an interview and admitted that she ‘had a rush to steal’.
- The next two offences dealt with by the learned Magistrate were a charge of common assault and a charge of stealing which were both related to each other and occurred on 3 December 2020. The victim of the common assault was the shop assistant working at Tea Lily Boutique at the time of the stealing. The sentencing schedule set out the circumstances related to that offending as follows:
“On the third day of December 2020 at approximately 1:00pm, [the] defendant entered the victim business and began selecting various types of jewellery from the display. The shop attendant then observed a necklace that the defendant was looking at was no longer on the shelves. When the shop attendant called out to the defendant, the defendant left the store in a rush. The defendant made no attempt to pay for the products before exiting the shop”.
- The shop attendant then attempted to chase the defendant and caught up with her on the corner of Spence Street and Sheridan Street in Cairns.
“The defendant approached a group of patrons and began talking with them attempting to sell some jewellery. A shop attendant from a store around the corner approached the defendant and demanded the female return the stolen property she had taken from the store. The defendant said she did not have anything from the store. One male patron grabbed the defendant and restrained her whilst the victim in this matter called police. During that time, the defendant reached into her bag and pulled out a handful of jewellery from the bag and handed it to the worker.
The victim provided the female a seat and told her she was not allowed to leave until police arrived. The defendant became agitated and aggressive, she stood up and said she was leaving. The victim grabbed the female by the wrist and told her she wasn’t allowed to leave. The female became aggressive towards the victim and attempted to bite the victim multiple times. During the struggle the female was scratching and clawing at the victim.”
- The complainant had sustained ‘minor scratches that broke her skin’ as a result of the incident. Police reviewed CCTV footage which revealed the appellant was in fact trying to bite the complainant.
- The three charges on Magistrates Court File Number 109125211 involve two shop steals on 21 April 2021 and 12 May 2021 respectively, and a failure to appear in the Magistrates Court at Cairns on 9 April 2021 in relation to previous charges. The circumstances surrounding the shop steals were described as follows
“Charge 1 – Shop Steal
At approximately 12:30 pm on the 21st of April 2021, the defendant has entered Silly Sollys…and then concealed craft supplies including 5 packets of polymer clay and a packet of multi-coloured [sequins] in her handbag. The defendant has then gone to walk towards the exit of the store without attempting to pay for the items and was then confronted by two staff members blocking the exit.
The defendant then argued back and strongly shoved one staff member to quickly exit the store. One staff member quickly followed the defendant as she ran. While the defendant was running, she has dropped her wallet containing her ID as well as the stolen property outside the store.
Charge 2 – Shop Steal
At approximately 10:30 am on the 12th of May 2021, the defendant has entered Coles Cairns Central…and then concealed multiple items adding to a retail value of $195.13 into her backpack.
The defendant has then walked out of the store with the stolen goods in her backpack. The defendant made no attempt to pay for the stolen goods.
Cairns Central Security have then interviewed the defendant outside of the store where she emptied all the stolen goods out of her backpack and gave them to security.”
- The last offence dealt with by the learned Magistrate was the offence of ‘entering or remaining in casino contrary to order of direction’ which took place on 27 February 2021. Again, the sentencing schedule described those circumstances as follows:
“On the 2nd day of January 2020, the defendant, Mali-Noi hunter, was issued an exclusion direction under Section 92 of the Casino Control Act 1982 for the premises of the Reef Hotel Casino…The defendant was explained the exclusion direction at the time including that the direction existed for an indefinite time unless repealed by an authorised person under the Casino Control Act. The exclusion direction was issued in regard to anti-social behaviour and deemed that the defendant must not enter, attend or remain on the Reef Hotel Casino premises unless lawful or emergent reason existed.
At about 1:34am on the 27th day of February 2021…the defendant was detected on CCTV entering and being within the Casino premises contrary to her exclusion direction.
Shortly after being detected, Casino security staff subsequently approached the defendant and conversed with her regarding the matter. The defendant provided identification to the staff which subsequently identified her...”
- Following the provision of the sentencing schedule, various submissions were then made by the Prosecutor, Ms Costrane. Ms Costrane, after addressing those matters detailed in the sentencing schedule, made reference to the appellant’s criminal history noting:
“…she has an eight page criminal history. It is littered with dishonesty offending. Her first stealing offence was in 2017 for which she was fined. Over the page in 2018 there was a serious assault public officer by two, common assault and then a list of fraud offences and receiving tainted property for which she was sentenced to imprisonment and probation. She was then also sentenced in relation to stealing, fraud, unlawful possession of suspected stolen property, tainted property and attempted fraud, unauthorised dealing in shop goods in 2019 and she was again sentence to prison.
And then over the page on page 7 she was sentenced to a common assault for which she received 12 months imprisonment.”
- A significant amount of weight was placed on the fact that the appellant had a ‘history for violent offending’ and ‘dishonesty related offending’. Ms Costrane even went as far as to say that ‘given her history, the shop steal is almost as severe as the common assault in regards to criminality’.
- After dealing with those particular matters, Ms Costrane then went on to address the Magistrate in regards to the lack of personal deterrence against the appellant noting that after the stealing at Coles on 24 November 2020, the first stealing offence before the Court, she returned to the very same Coles store on 12 May 2021 and stole further property. On both occasions the appellant was interviewed after leaving the store when Coles workers were ‘forced to track her down and run after her to receive the property back’.
- Reference was then made to a number of cases including Johnson v Commissioner of Police  QDC 268, and Ms Costrane went on to provide commentary in relation to the circumstances of that offending, as well as to the terms of the decision.
- A significant amount was made by Ms Costrane, of the fact that Johnson also had ‘significant criminal history with numerous like offending of dishonesty’. It was submitted that the appellant in this case had stolen a significant amount of property on each occasion.
- Ms Costrane then attempted to distinguish the case of NHR v Commissioner of Police  QDC 67 which was tendered by solicitors for the Defendant. This case involved a single charge of assault occasioning bodily harm. The defendant in that case was only 20 years of age with no previous convictions. The appellant in this case is 43 with a criminal history. Ms Costrane also placed a heavy emphasis on the defendant in NHR being an apprentice and surf lifesaver requiring a blue card. When considering whether to record a conviction in NHR, Her Honour Judge Loury QC held in significant regard, volunteer work and the effects it has on ‘increasing a person’s self confidence and instilling a sense of pride and purpose’. Ms Costrane submitted that this was considered by Her Honour in NHR to be a ‘serious mitigating circumstance’ and that ‘it demonstrated a civic-minded individual of quality which was looked favourably upon by employers’. Ms Costrane submitted:
“In my submission, it’s an entirely different case to that before your Honour. This defendant comes before the court with a lengthy eight-page criminal history for like offending, previous convictions and period of imprisonment for the same offending and to impose essentially a $2,000 fine for common assault is out of range in this case.
In my submission, given she was on parole, if your Honour’s not with me in relation to a parole eligibility date with the delays, my submissions would be that it is open to the court to release her on a suspended imprisonment term.
I would be asking for the suspension not to be forthwith, for it to be in the future but I understand the view of some Magistrates is that a suspended term of imprisonment is open given the delays with parole.”
- Thereafter, the solicitor for the appellant, Mr Jenkins, commenced his submissions conceding at the outset that the purpose of providing the case of NHR to the Court was because of its discussion on a number of cases involving assault occasioning bodily harm. He ultimately conceded that a period of imprisonment would be appropriate in the circumstances with suspension after 53 days.
- Thereafter, Mr Jenkins provided information with regard to the appellant’s antecedents including drug use, mental health issues and employment history. There is emphasis particularly on the appellant’s employment history and her capacity to gain employment again in the future and that she is ‘not without hope in that regard’.
- He ultimately submitted that a suspended sentence could be imposed with a longer period attached to the head sentence stating:
“A longer period of that sentence hanging over Ms Hunter’s head could act as, I would say, a motivating factor to remain on track and to re-engage in employment that she’s had previously and she is to reoffend then there’s no question where she will be going”.
- In handing down her decision, the learned Magistrate spoke of the various considerations in relation to any sentence that might be imposed, including considerations as to punishment, in an appropriate way, so as to reflect the circumstances of offending, as well as to assist with rehabilitation and deterrence. Her Honour noted that in her view, the priority should be specific deterrence. She sentenced the appellant to a total 18 months imprisonment with a parole eligibility date fixed at 17 August 2021.
- After handing down the penalties, the learned Magistrate made the following remarks regarding parole delays:
“I will make a parole eligibility date as at today’s date, today being the 17th of August 2021. That is to enable you to get your parole application in as soon as possible given the delays.
Ordinarily, I would have made it after a third but I think in the circumstances given the delays in them assessing parole applications, I should do that sooner rather than later. So you can apply for parole from today. It does not seem likely that you will be granted it straight away though.”
- It is important in my view, that heavier weight should have been placed on the significant delays currently being experience by the Parole Board.
- In relation to an application such as this, it is necessary to consider the basis on which an appeal is made. This appeal is an appeal against sentence. The right to appeal is a creature of statute, with the nature of the appeal right dependent on the construction of the statute concerned. It should particularly be noted that, as is the case here, where a person pleads guilty or admits the truth of a complaint, a person may only appeal under section 222(2)(c) of the Justices Act on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate. The appeal is then dealt with by way of rehearing on the original evidence given in proceeding before the magistrate, and in the circumstances, the court has the power to confirm, set aside or vary the order of the magistrate.
- It is the sole ground of appeal relied upon here, and it is suggested by the appellant, that the sentence was manifestly excessive. In order for a sentence to be “excessive” it must be “beyond the acceptable”. It must be, as has often been said, “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”. In that regard, I am mindful of the decisions in R v Morse (1979) 23 SASR 98, R v Lomass (1981) 5 A Crim R 230, R v Macintosh  St R Qd 278, and Lowe v The Queen (1984) 154 CLR 606.
- In commenting upon appeals relating to sentences, whether they be manifestly excessive or inadequate, I referred to the decision of her Honour Judge Muir in Ross v Commissioner of Police  QDC 99. There, Her Honour, when commenting upon the exercise of an appellant judge, noted at paragraph 8:
… it is not a sufficient basis for this court to intervene, that this court considers it might have taken a different course between the competing considerations which have to be weighed in the exercise of the discretion. It must appear that some error has been made in exercising the discretion of the kind identified in House v The King (1936) 55 CLR 499. If the Magistrate acted upon a wrong principle, if he allowed extraneous or irrelevant matters to guide or affect him, if he made a mistake about the facts, if he did not take into account some material consideration, then the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
- There, Her Honour has eloquently expressed the very real need for there to be, not a simple substitution of one view for another, but a proper exercise of the appeal power and a recognition that a difference of opinion or view is not, of itself, simply a basis upon which an appeal should be upheld.
- Her Honour made particular reference in her reasons to the decision of Keane JA (as he then was) in the R v Ikin  QCA 224, where his Honour noted as follows:
The judgment appealed from is a discretionary one. An appeal can succeed only if an error of the kind described in House v The King (1936) 55 CLR 499 at 504 - 505 has occurred.
- In this regard, there may be cases where the sentence is so “unreasonable or plainly unjust” in the circumstances as to give rise to an inference that the discretion has miscarried. It is this idea which informs the familiar ground of appeal that a sentence is manifestly excessive. But that having been said, as was emphasised by Kirby J in Dinsdale v the Queen  HCA 54;  202 CLR 321 at 341, this court should allow an appeal against sentence only where the error is clearly apparent.
- Perhaps most succinct of all, His Honour Judge Devereaux SC of this Court, noted in Rongo v Commissioner of Police  QDC 258 the following:
It seems to me, then, that the focus in this and many appeals brought to this court on attempting to demonstrate an error in the exercise of the sentencing discretion is not misguided but slightly misplaced. The real question is whether the sentence was excessive, so that, although the appellant may argue that the magistrate made a certain error, the success of the appeal does not depend on persuading the appeal court on that point.
- His Honour then goes on to note that:
Identifying a particular error might assist because it might explain why the sentence was excessive.
- The grounds of appeal have been detailed by me already in relation to this matter. In written submissions, the appellant through her legal representative contends that the sentence of eighteen months imprisonment together with a fixed parole eligibility date was manifestly excessive.
- In addressing the issue related to parole eligibility, the appellant submitted the following:
 The first ground of appeal relates to the contention that current notorious delays in assessing parole eligibility applications, coupled with the declared 53 days of pre-sentence custody, render the sentence with a parole eligibility date of 17 August 2021 manifestly excessive.
 At the sentencing hearing, the prosecution accepted that it was ‘open to the court to release her on a suspended imprisonment term’ noting ‘the delays with parole’.
 The prosecution ultimately submitted ‘a parole eligibility date given her history and that should her application take to the new year to decide, she would not have served too much time.
 The appellant’s solicitor briefly addressed the learned Magistrate on the parole delays and submitted for a suspended sentence but did not adduce any evidence with respect to delays being experience by the Parole Board of Queensland in assessing applications.
 The learned Magistrate was not assisted by any information about that.
 The sentencing remarks of the learned Magistrate noted that submissions had been made in relation to consideration for parole, stating:
‘As I understand it, the earliest date that they will be able to consider your parole is in or about February next year. That is not, in my view, going to provide any excessive period of time.’
 The learned Magistrate fixed the parole eligibility date as the date of sentence on 17 August 2021.
 The total period of imprisonment is 547 days and it is submitted that given the current delays if that date remains, the appellant would be unlikely to have her parole application considered prior to the first quarter of 2022.
 Latest advice from the Parole Board of Queensland indicates that as at 21 September 2021 the Board has 2199 outstanding new applications for a parole order and 2182 outstanding suspension matters.
 In Burnett v Commission of Police  QDC 251, it was noted that as at 21 June 2021 “if a prisoner were to make an application for parole on 21 June 2021, it would likely not be listed until late February 2022”.
 It is submitted that the delays in considering applications for parole was known at the time of sentence of the appellant and while brief submissions were made in relation to it, had the learned Magistrate been provided with credible and specific evidence about the delays experience by the Parole Board of Queensland in assessing applications the learned [Magistrate] might reasonably have led the learned Magistrate to order a different result.
 Specifically, by setting a parole eligibility date rather than a suspended sentence, any Parole Board of Queensland assessment undertaken after 26 December 2021 would see the appellant serve more than 184 days imprisonment, including the 53 days of presentence custody, thus in excess of the one third of the total head sentence imposed.
 On information that was available at the time of sentence it was highly unlikely or possible that the appellant’s parole application will be considered prior to 26 December 2021.
 It is submitted this would result in a crushing sentence for the appellant.
- The position of the respondent in relation to this matter was simply to say, that the sentence imposed was not manifestly excessive and that the appellant failed to demonstrate ‘that fixing a parole eligibility date on 17 August 2021 was the result of any legal, factual or discretionary error by the learned Magistrate’.
- The arguments on behalf of both the appellant and the respondent are understandable and clearly reflect the positions that each takes with respect to the outcome of the appeal. The respondent’s argument that the learned Magistrate was aware, at least anecdotally of the current delays with parole board determinations and so structured a sentence, as far as possible, that appropriately mitigated for that delay is to some extent correct, but the devil in the specifics essentially related to the unknown, and at least so far experienced, increases in the waiting times until determination.
- The learned Magistrate certainly acknowledged this in her comment regarding a consideration of parole ‘in or about February’ and that it was not in her view any excessive period of time. But the unknown length of delay does give rise to uncertainty and therefore to the real concern regarding a sentence which could be considered manifestly excessive or even crushing. This is even more the case when consideration turns to issues with respect to the appellant’s mental health.
- In particular, I note the submission on behalf of the respondent in paragraphs 15 to 17 of the outline. They were in these terms:
 Secondly, knowing that circumstance, the sentence was structured in a manner, so far as possible, to ensure the appellant received an appropriate mitigation of her sentence for both the plea of guilty, and parole delay:
“Ordinarily, I would have made it after a-third but I think in the circumstances given the delays in them assessing the parole application, I should do that sooner rather than later. So you can apply for – for parole from today. It – it does not seem likely that you will be granted it straight away though.”
 As at the date of sentence (i.e. considering the delays that existed as at the time of sentence), the defendant’s application for parole would be considered after she served up to 8 months of the 18 month sentence (after approximately 44%).
 Fixing the date an offender is eligible for parole at more than one-third of the period of imprisonment does not render the sentence manifestly excessive, nor does it demonstrate the Magistrate made any error in doing so.
- These comments demonstrate the uncertainty and the obvious concerns that arise. A mathematical formulation of ‘approximately 44% of the sentence imposed presumes some certainly with regard to the determinations of the parole board and that presently does not exist. The indication in Burnett v Commission of Police of delays existing in June of 2021 extrapolate out such that the appellant here may not have her parole application heard until April 2022 or later.
- That of course gives rise to an injustice and more specifically a worry that the structure of the sentence is such that it could easily be considered crushing. The comments of the Court of Appeal in R v Crouch and Carlisle  QCA 81 are of course a correct statement of the law but it relates to there being some degree of certainty regarding any release date rather than just an eligibility date.
- As such, in a situation of this character, the uncertainty that arises means that there is a discretionary error by the learned Magistrate and this gives rise to reconsider the sentence imposed so as to not be considered manifestly excessive.
Mental health Status of the Appellant
- In light of the determination above, the question relating to the possible adducing of further evidence falls away, though I consider it appropriate to consider and rule upon the application for leave to adduce new evidence.
- Leave was sought to adduce new evidence about the appellant’s mental health status at the time of her offending and the sentence. Evidence relating to the appellant’s mental health was not adduced or addressed by the appellant’s solicitors. The new evidence sought to be relied upon in relation to the mental health status of the appellant is as follows:
- (a)The appellant was on an Involuntary Treatment Order from 30 June 2008 to 10 August 2012 and placed on a Treatment Authority on 22 October 2014 which remains current and has not been revoked.
- (b)The appellant’s progress notes and assessment by Cairns Mental Health Services and Townsville Prison Mental Health Services dated 4 December 2020, 22 December 2020, 25 June 2021, 30 June 2021, 17 July 2021, 6 August 2021 and 28 August 2021.
- The appellant accepted that this evidence could ‘with reasonable diligence have been produced by the appellant at the sentence but was not’. It was noted that the solicitor on appeal was not the same solicitor who appeared on sentence. Emphasis was placed on the fact that the reports pre-dated the sentence date and could have been obtained prior.
- An application to adduce new evidence is made pursuant to the provisions of s 223(2) of the Justices Act 1886 (Qld). S 223 is in these terms:
223 Appeal generally a rehearing on the evidence
- (1)An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
- (2)However, 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.
- (3)If the court gives leave under subsection (2), the appeal is—
- by way of rehearing on the original evidence; and
- on the new evidence adduced.
- The appellant acknowledged that such an appeal as arises pursuant to s 222 is generally conducted by way of a rehearing or the evidence given in the proceedings before the justices. However, s 223(2) provides for the granting of leave if the court is satisfied that there are special grounds for giving leave. Special grounds are not defined and as such can arise in many and varied ways.
- As was submitted by the appellant, Judge Fantin of this court, provided a useful guide to identifying ‘special grounds’ in Holden v Queensland Police Service  QDC 217 noting the comments of the High Court in Gallagher v R (1986) 160 CLR 392 which was affirmed by the Queensland Court of Appeal in Pavlovic v Commission of Police  QCA 134.
- The first of the factors to consider is whether the evidence could with reasonable diligence have been produced and that is accepted. However, that initial failure to provide is not an insurmountable hurdle and the strength and significance of the evidence must still be considered.
- Secondly, the court must consider the credibility of the evidence and the evidence sought to be relied on here is credible. Additionally, however there needs also to be consideration of whether that evidence, if accepted or believed might reasonably have led a tribunal of fact to return a different verdict. Such a situation arises in this case and as was noted in R v Verdins (2007) 16 VR 269 and affirmed in R v Yarwood (2011) 220 A Crim R 497:
“Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
- The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
- The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
- Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
- Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
- The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
- Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”
- Such evidence, if available to the learned Magistrate at the time of sentencing would no doubt have been relevant in her overall assessment and would have played a more significant part in the sentencing process and sentencing structure.
- I find the new evidence of the appellant to be significant. In my view, it was evidence which was able to be disclosed at the time of the original sentence and confirmed and expanded upon the submissions made by Mr Jenkins at the sentence where he mentioned that during that period the appellant was struggling with drug use ‘in combination with what she describes as mental health issues.’
- The position of the respondent in relation to the application to adduce new evidence was that medical documents and psychiatric reports ‘are common material placed before court to inform sentencing discretions’. The respondent’s position was that the new evidence could have been produced in the Magistrates Court and even if it were, a more lenient sentence should not have been imposed by the learned Magistrate.
- As such, I am of the view that in all the circumstances, the imposition of a parole eligibility date without due consideration to the known delays of the Parole Board and not having placed before it, credible evidence related to the mental health status of the appellant at the time, resulted in an ultimate penalty that was outside the range that would have been appropriate in respect of this matter.
- As such leave is granted to adduce fresh evidence and the appeal is allowed. The orders of the Court are as detailed at the commencement of these reasons.
- Published Case Name:
Hunter v Queensland Police Service
- Shortened Case Name:
Hunter v Queensland Police Service
 QDC 273
17 Nov 2021