Taylor v Queensland Police Service
[2022] QDC 130
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- Unreported Judgment
- Taylor v Queensland Police Service[2022] QDC 130
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Taylor v Queensland Police Service[2022] QDC 130
Taylor v Queensland Police Service[2022] QDC 130
DISTRICT COURT OF QUEENSLAND
CITATION: | Taylor & Anor v Queensland Police Service [2022] QDC 130 |
PARTIES: | DYLAN GEOFF TAYLOR & SEAN RON TAYLOR (Appellants) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO: | 33/2021 & 34/2021 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Richlands |
DELIVERED ON: | 1 February 2022 (ex tempore) |
DELIVERED AT: | Southport |
HEARING DATE: | 1 February 2022 |
JUDGE: | Jackson QC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – Where the appellants were sentenced to serve 150 hours of community service with conviction recorded. – Where the appellants submit that the recording of a conviction rendered the sentences manifestly excessive. Whether exceptional circumstances necessary if a conviction is not to be recorded – Whether the recording of a conviction was manifestly excessive in the circumstances. Justices Act 1886 Penalties and Sentences Act 1992 Property Occupations Act 2014 Cole v Australia Securities & Investment Commission [2017] QDC 270 Gallagher v The Queen (1986) 160 CLR 392 Pavlovic v The Commissioner of Police [2006] QCA 134 R v Briese; Ex Parte Attorney-General [1998] 1 Qd R 487 R v Brown; Ex-parte Attorney General [1994] 2 Qd R 182 R v DBU [2021] QCA 51 R v JO [2008] QCA 260 R v Kay Gersch & Schell; Ex parte Attorney General (Qld) [2005] QCA 467 R v WAJ [2010] QCA 87 Wong v The Queen (2001) 207 CLR 584 |
COUNSEL: | L Reece for the appellants E Brackin for the respondent |
SOLICITORS: | Potts Lawyers for the appellants Office of the Director of Public Prosecutions |
- [1]The appellants were each convicted on their own pleas of one count of demanding property with menaces with intent to steal occurring on 17 May 2019. They were both sentenced to 150 hours community service with convictions recorded. They were also ordered to pay compensation.
Grounds of appeal
- [2]The sole ground of appeal is that the sentences imposed were, in all the circumstances, manifestly excessive by reason of the recording of convictions.
Nature of the appeal
- [3]This is an appeal pursuant to s 222 of the Justices Act 1886. Such an appeal is an appeal by way of re-hearing on the evidence given at trial.[1] Where, as here, a defendant has pleaded guilty, sub-section 222(2)(c) provides that the sole ground of appeal which remains is that “a fine, penalty, forfeiture or punishment was excessive”.
- [4]As I have mentioned, the appeals concern only the recording of convictions. In Briese[2] Thomas and White JJ said that the recording (or not) of a conviction affects the defendant and is thus part of the sentence.
- [5]The discretion as to whether or not to record a conviction is not constrained by the matters set out in sub-paragraph (2) of section 12 and nor is any one matter required to be given more weight than any other.[3]
- [6]In Wong v The Queen (2001) 207 CLR 584 at [58] Gaudron, Gummow and Hayne JJ said, in respect of the error which must necessarily be established, that:
“…Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. It follows that for a court to state what should be the range within which some or all future exercises of discretion should fall, must carry with it a set of implicit or explicit assumptions about what is, or should be regarded as the kind of case which will justify a sentence within the specified range. It is those assumptions that may reflect or embody relevant principle, not the result.”[4]
- [7]As I have said, the usual setting is that an appeal such as this is by way of re-hearing on the original evidence, however, the court may give leave to adduce new evidence if satisfied there are “special grounds” for giving leave. In Pavlovic v The Commissioner of Police [2006] QCA 134 at [30] the three criteria considered by Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 395 as being relevant to the discretion to allow new evidence to be adduced were said to be a useful guide in respect of identifying “special grounds” within the meaning of the relevant provision. The three factors are that:
- usually a conviction would not be set aside unless the evidence could not, with reasonable vigilance have been produced at trial (although if it is strong enough it may justify interference in any event);
- whether the evidence is apparently credible; and
- whether it might reasonably have altered the outcome.
The appellants’ submissions
- [8]The appellants provided an outline of argument dated 2 July 2021.
- [9]The submissions of the appellants may be summarised as follows:
- (a)the show cause letters should be admitted as new evidence pursuant to s 222(3) of the Justices Act because they were not available at sentence, they supported the submissions made at sentence and were likely to have affected the sentences if given appropriate consideration;
- (b)the learned magistrate made comments relevant to his Honour’s views as to premeditation that were based on inferences beyond the factual basis of the pleas;[5]
- (c)the learned magistrate erred in purporting to distinguish statements of principle of general application made in R v Kay Gersch & Schell; Ex-parte Attorney-General (Qld) [2005] QCA 467 and his Honour was wrong to conclude that those statements of general principle were not apposite to the present case. These matters are important general principles in relation to the consideration of whether or not to record a conviction;[6]
- (d)the learned magistrate omitted to refer to additional aspects of the reasons of Thomas and White JJ on the one hand and Dowsett J on the other hand in Briese;[7]
- (e)his Honour erred in finding that it was relevant to the disposition of the case that “no exceptional circumstances have been demonstrated”. That is submitted to be a mis-statement of the effect of the reasons for judgment of Dowsett J in Briese and an irrelevant consideration. In particular, the appellants submit that this offence is not properly labelled as within the category of serious offences contemplated by the court in Briese. It is said that so much is clear from the relative penalties involved, the fact that it is an offence which may be dealt with summarily and the actual objective seriousness of this example of that offending;
- (f)the sentencing remarks do not include any mention of the impact of recording a conviction on either of the appellants although that is one of the matters explicitly required to be taken into account under sub-section 12(2) of the Penalties and Sentences Act. In the appellants’ submission that shows a failure to engage with the provisions such that a conclusion is compelled that the discretion miscarried. As to this, the reasons for judgment of Fraser JA (with whom the other members of the Court of Appeal agreed) in R v WAJ [2010] QCA 87 at [15] are relied upon;
- (g)as to the potential for re-exercising the discretion, the appellants submit:
- they had made significant progress towards rehabilitation especially when regard is had to the fact that they have done so notwithstanding the widespread difficulties as a result of the COVID-19 pandemic, such that there is a clear indication of rehabilitation;
- the previous entries on their criminal histories were not for offences of dishonesty and were for the most part quite dated; and
- the offending itself was some 18 months prior to sentence.
- (a)
The respondent’s submissions
- [10]The respondent’s submissions may be summarised in the following way:
- (a)the respondent submits that the learned magistrate had regard to all the relevant criteria required by sub-section 12(2) of the Penalties and Sentences Act. It should be observed immediately that the consideration which was given to the impact upon the appellants of recording a conviction, if any, is unclear. On the face of the sentencing remarks, it appears that no consideration was given to this matter despite it being one of the matters explicitly identified in sub-section 12(2) and it being expressly raised as a concern on their part;
- (b)the situation in the present case is said to be clearly distinguishable from that in R v WAJ [2010] QCA 87 where there was no express reference at all to the provision. In my view that submission overlooks the significance of the passage quoted from WAJ and the failure in the present case to refer at all to the impact despite that being a matter explicitly referred to in the sub-section and it being a matter raised on the appellants’ behalf;
- (c)the fact that the learned magistrate did not expressly refer to the economic or social well-being of the appellants or their chances of finding employment during the course of the sentencing remarks does not “automatically” lead to a conclusion that the discretion miscarried. It is accepted that, of course, one must consider whether the failure to refer to those matters despite their statutory significance and the fact that submissions were made on them nonetheless would lead to a conclusion, other than automatically, that the discretion had miscarried;
- (d)there was no obligation upon the learned magistrate to accept the assertions as to the appellants’ wholesale business in electronics leading to the offending. The difficulty with that is that the submissions for the appellants to that effect were unchallenged. At the very least, in my view, those submissions should not have been rejected in circumstances where they were unchallenged without at least alerting the appellants’ representative to that possibility and inviting submissions on it;
- (e)it is submitted that the allegedly pre-meditated nature of the offending is what led the learned magistrate to comment that there were no exceptional circumstances demonstrated. In my view, that overlooks the fact that his Honour referred to this matter immediately after having referred to the passage from the reasons for judgment of Dowsett J which dealt with offences that could be regarded as inherently sufficiently serious that exceptional circumstances would have to be demonstrated before a conviction would not be recorded. In particular, it fails to have regard to the passage which immediately follows in the reasons for judgement of Dowsett J. Statements to similar effect are made by Holmes JA, as her Honour then was, in R v JO [2008] QCA 260 at [14] when speaking of a case involving the rape of a young girl by 10 teenage boys. There is also some discussion of the topic in the recent decision of R v DBU [2021] QCA 51 at [5] and [6], although I am conscious of the fact that matter involved a different starting point and some differences in principle as to the recording of a conviction;
- (f)there can be no doubt that the learned magistrate considered the prospects of the appellants. On my reading of the exchanges during submissions and the sentencing remarks, there does not seem to me to be any safe basis to contend that the learned magistrate had any regard to the impact upon the appellants;
- (g)while the recording of convictions may have made their obtaining of real estate licenses and the like more onerous, there was no assertion on sentence that they would not be able to continue in the real estate industry. That is true although it appears relatively clear that their participation in that industry was in its infancy at the time and there was no basis at all to think that it would not be adversely affected;
- (h)by reference to the sentencing remarks of a Judge of this court, Judge McGinness, in Austin Liu in the District Court at Southport on 2 October 2020, it is said that the sentence imposed was within range. The difficulty with that reference is that simply because a conviction was recorded on sentence for the same offending says nothing of what should occur in another matter where it said that recording a conviction will have an impact and where there is no comparison able to be made as to the relative defendants’ circumstances;
- (i)in respect of the application to adduce further evidence, it is said that the letters do no more than invite the appellants to make submissions as to the circumstances of the convictions. It is plain from the letters that these convictions would be relevant to deciding the matters. This can also be seen from consideration of sections 120 and 121 and the schedule 2 definitions of “conviction” and “serious offence” in the Property Occupations Act 2014. It can be seen from a consideration of that that it is at the very least highly likely that the recording of these convictions will have a very serious impact upon the appellants’ ability to participate in their chosen field.
- (a)
Consideration
- [11]It seems to me that on focussing on whether or not the appellants had shown exceptional circumstances as being necessary, in the learned magistrate’s view, to warrant not recording a conviction given the type of offence, his Honour fell into error. In my view, there is no such principle. While there may be offences which are “inherently so serious that a conviction must be recorded” the reference to that principle in Briese and DBU is clearly to offending that is dramatically more serious than that involved in the present case.
- [12]In those circumstances, I find that his Honour fell into error and it is necessary that the appellants be sentenced afresh.
Disposition
- [13]The maximum penalty for this offending is three years. No actual violence was involved in the matter and the offending conduct was of short duration. On one view, it followed the complainant having changed his mind in terms of something which was a consensual if unusual arrangement. And it is not lost on me in that respect that the identity of the projector appeared to have changed over time. I do not mean at all to suggest by that that the purchaser was not at liberty to change his mind or that there was anything about the appellant’s conduct which was remotely appropriate. But I do not feel nearly as confident as his Honour that these matters were premediated, rather than a somewhat bizarre outcome. But as I said I do not mean to say that to suggest that the conduct involved is not serious, just that I do not regard it as being as serious as his Honour may have.
- [14]The submissions made are that convictions should not be recorded, but otherwise the sentences should remain as they are. It is also submitted that each had good family support and the appellants are progressing in their new-found employment as real estate agents. I am told in fact today that they have provisional registration. Sean Taylor was, and is, in addition, a single father to a young son. In addition, the evidence which was sought to be adduced by leave may now be considered in any case on sentencing the appellants afresh. It indicates at the least that it is no matter of speculation anymore as to whether or not there is a potential for impact upon the appellants progression in their chosen field. In addition, as I have said reference to the Act itself appears to make clear that there is likely to be very significant effect on that progression. About two and a half years has now passed since the offending conduct occurred. The appellants have stuck with their work in the real estate field and in my view it would be inappropriate to make orders which may interfere with that, both in consideration of the impact upon them of doing so but also because their rehabilitation should continue to be furthered rather than hindered in the interests of the community more broadly.
- [15]In the circumstances then, the orders then will be:
- The appeals are allowed.
- The orders of the Magistrates Court at Richlands made on 4 January 2021 are varied by deletion of the order that a conviction be recorded and in lieu thereof it is ordered in respect of each appellant that no conviction is recorded.
Footnotes
[1] Section 223(1) of the Justices Act.
[2] R v Briese; Ex parte Attorney-General [1998] 1 Qd R 487 at 490.
[3] See R v Brown: Ex-parte Attorney-General [1994] 2 Qd R 182 at 185 per Macrossan CJ and 193 per Lee J.
[4] See also Cole v Australia Securities & Investments Commission [2017] QDC 270 at [5] per Devereaux SC DCJ (as his Honour then was).
[5] See [22] and [23] of the appellants’ written submissions.
[6] See [26] and [27] of the appellants’ written submissions.
[7] See [28] – [31] of the appellants’ written submissions and the quoted passages from Briese.