Saunders v Commissioner of Police
[2022] QDC 157
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- Saunders v Commissioner of Police[2022] QDC 157
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Saunders v Commissioner of Police[2022] QDC 157
Saunders v Commissioner of Police[2022] QDC 157
DISTRICT COURT OF QUEENSLAND
CITATION: | Saunders v Commissioner of Police [2022] QDC 157 |
PARTIES: | TODD DAVID SAUNDERS (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | BD 1931/2021 |
DIVISION: PROCEEDING: | Criminal Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 9 June 2022 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 June 2022 |
JUDGE: | Allen QC DCJ |
ORDERS: |
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CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – appeal against sentence pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant was convicted of failing to appear in accordance with bail undertaking pursuant to s 33(1) Bail Act 1980 (Qld) – whether the learned Magistrate failed to afford the appellant procedural fairness – whether the learned Magistrate failed to have regard to the principle that a sentence of imprisonment should be imposed as a last resort – where the learned Magistrate failed to state how pleas of guilty were taken into account – whether the sentences are excessive |
LEGISLATION: | Bail Act 1980 (Qld), s 30 Justices Act 1886 (Qld), s 222 Penalties and Sentences Act 1992 (Qld), ss 9, 13 |
CASES: | ARS v Queensland Police Service [2018] QDC 103 House v The King [1936] 55 CLR 499 Miller v Commissioner of Police [2022] QDC 77 R v Cunningham [2005] QCA 321 R v JAB [2020] 4 QR 588 R v Kitson [2008] QCA 86 Rongo v Commissioner of Police [2017] QDC 258 Sullivan v Queensland Police Service [2020] QDC 220 |
APPEARANCES: | E B Kurz, Legal Aid Queensland, for the appellant K P Lemass, Office of the Director of Public Prosecutions (Qld), for the respondent |
- [1]On 26 July 2021, in the Magistrates Court at Brisbane, the appellant pleaded guilty to two offences of failing to appear in accordance with an undertaking contrary to section 33(1) of the Bail Act 1980 (Qld). One charge related to the defendant’s failure to appear on 19 July 2021 at the Magistrates Court at Coolangatta, and the other charge related to the appellant’s failure to appear on 20 July 2021 at the Magistrates Court at Southport.
- [2]The appellant was apprehended by police on 25 July 2021 and watchhouse bail was refused. He appeared before the Magistrates Court at Brisbane on 26 July 2021. He was represented by the duty lawyer who conceded the aggravating factor of the appellant’s previous convictions for failing to appear. The duty lawyer made submissions as to the appellant’s chaotic circumstances, including lack of stable accommodation, and other stressors which contributed to his failures to appear. The duty lawyer noted that he had spent the previous night in custody in the watchhouse. The duty lawyer submitted that the Court should order a short period of probation to address considerations of personal deterrence and rehabilitation.
- [3]The presiding Magistrate’s response was to query what was to happen with the other substantive charges before the Court and to then consider the appellant’s application for bail in relation to those matters. The prosecutor had not made any submissions as to penalty for the offences of failure to appear. The learned Magistrate’s sentencing remarks were succinct:
All right. Thank you. Stand up, thank you, sir. I have considered the elegant submissions of Ms Mann in relation to your two most recent failing to appears, which are the 19th of July and the 20th of July. Your criminal history reveals that you failed to appear on the 16th of November 2020 and also the 24th of May 2021 and also on the 7th of June 2021 as well. So this constitutes number 4 and number 5 of your failing to appears before this Court. Okay. You have a very casual disregard to your obligations to the Court. So in respect of the matter on the 19th of July, you are convicted and sentenced to 14 days imprisonment. And in relation to the second failing to appear on the 20th of July, you are sentenced to one months imprisonment.
- [4]The learned Magistrate ordered that the terms of imprisonment of 14 days and one month’s imprisonment be served cumulatively. The learned Magistrate stated a parole release date of 3 August 2021.
- [5]The learned Magistrate was correct to note that the appellant had been previously convicted of failures to appear in accordance with bail undertakings. On 29 April 2021 in the Magistrates Court at Southport, the appellant was sentenced for a failure to appear in accordance with an undertaking on 16 November 2020. He was fined $300 and no conviction was recorded. On 9 June 2021 in the Magistrates Court at Southport, the appellant was sentenced for a failure to appear in accordance with an undertaking on 24 May 2021 and another failure to appear in accordance with an undertaking on 7 June 2021. He was fined $500 and no conviction was recorded. His criminal history was otherwise a minor one with a previous conviction for wilful damage in 2020 and for unauthorised dealing with shop goods on 28 June 2021 and public drunkenness on 23 July 2021.
- [6]The appellant filed a notice of appeal against sentence on 27 July 2021 and was released on bail pending appeal on that same date. He was therefore in custody with respect to his failures to appear from 25 to 27 July 2021.
- [7]The appellant submits that the learned Magistrate denied the appellant procedural fairness in imposing a term of imprisonment, which had not been sought by the Prosecution or contemplated in the submissions of either party and without giving the parties an opportunity to make submissions with respect to ordering that a term of actual imprisonment be imposed.
- [8]It is certainly the case that the learned Magistrate gave no prior indication that she was considering imposing a term of actual imprisonment.
- [9]The parties have referred to decisions of the Court of Appeal, including R v Cunningham [2005] QCA 321 and R v Kitson [2008] QCA 86, as to the principles relating to denial of procedural fairness in sentencing proceedings. A useful discussion of those principles and authorities, including R v JAB [2020] 4 QR 588, is to be found in a recent paper, “Sentencing (Adults) – a Practical Update” presented by the Chief Justice to the Queensland Magistrates State Conference on 26 May 2022 at pages 2 to 5.
- [10]It is certainly arguable that the sentencing discretion miscarried because of the denial of procedural fairness. The absence of adequate reasons for sentence lays a basis for further arguments that the sentencing discretion miscarried by reason of the learned Magistrate failing to have regard to the principle, pursuant to section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) (“PSA”), that a sentence of imprisonment should only be imposed as a last resort, and by a failure, contrary to section 13(3) the PSA, to state how the appellant’s pleas of guilty was taken into account in determining the sentence imposed.
- [11]Section 222(2)(c) of the Justices Act 1886 (Qld) provides that a defendant who has pleaded guilty to a complaint may only appeal on the sole ground that the penalty was excessive. That, indeed, is the sole stated ground in the notice of appeal. In those circumstances, the focus of the court should not be upon considering contended errors in the exercise of the sentencing discretion, but whether or not the sentence imposed is excessive.[1]
- [12]An appeal against sentence is an appeal against an exercise of discretion such that error of the kind identified in House v The King [1936] 55 CLR 499 must be established. The error contended in this appeal is of the second kind stated by the High Court in House v The King – that the sentence imposed is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure to properly exercise the discretion at first instance.
- [13]Consideration of previous decisions of this Court of Sullivan v Queensland Police Service [2020] QDC 220, ARS v Queensland Police Service [2018] QDC 103 and Miller v Commissioner of Police [2022] QDC 77, helpfully referred to by counsel for the respondent in detailed written submissions, supports the conclusion that the sentences imposed by the learned Magistrate are excessive. The respondent concedes as much. The sentences imposed must be set aside and this Court should exercise the sentencing discretion afresh.
- [14]Taking into account the matters contended by the duty lawyer on the appellant’s behalf, his early pleas of guilty and his criminal history, with particular regard to the previous convictions for failure to appear in the Magistrates Court at Southport on 29 April 2021 and 9 June 2021, an appropriate penalty would have been a fine in the region of $750 for the offences. Taking into account the fact that the appellant spent a further day in custody following sentence before being released on bail pending appeal, such sentence should be moderated to reflect that fact. In those circumstances, the sentences of 14 days imprisonment and one month imprisonment for the two offences of failure to appear are set aside and substituted with the following: in respect of both offences, a single fine of $500 is imposed, with such a fine to be referred to SPER.
Footnotes
[1] Rongo v Commissioner of Police [2017] QDC 258.