Neucom v Commissioner of Police
[2022] QDC 203
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- Unreported Judgment
- Neucom v Commissioner of Police[2022] QDC 203
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Neucom v Commissioner of Police[2022] QDC 203
Neucom v Commissioner of Police[2022] QDC 203
DISTRICT COURT OF QUEENSLAND
CITATION: | Neucom v Commissioner of Police [2022] QDC 203 |
PARTIES: | KRIS DAVID NEUCOM (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO: | D7 of 2021 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Hervey Bay Magistrates Court |
DELIVERED ON: | 1 September 2022 |
DELIVERED AT: | Brisbane District Court |
HEARING DATE: | 14 February 2022 |
JUDGE: | Sheridan DCJ |
ORDER: |
|
CATCHWORDS: | MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant was charged with obstructing a police officer – where appellant entered a plea of guilty – whether the applicant was entitled to challenge his conviction – whether sentence manifestly excessive |
LEGISLATION: | Police Powers and Responsibilities Act 2000 (Qld), s 790(1)(b) Justices Act 1886 (Qld), s 222, s 223, s 224 |
CASES: | Allesch v Maunz (2000) 203 CLR 172 Ajax v Bird [2010] QCA 2 Dore & Ors v Penny [2005] QCA 150 Hili v The Queen (2010) 242 CLR 520 House v The King (1936) 55 CLR 499 Long v Spivey [2004] QCA 118 Lowe v The Queen (1984) 154 CLR 606 Meissner v The Queen (1995) 184 CLR 132 Phillips v Spencer & Anor [2005] QCA 317 R v Lemass (1981) 5 A Crim R 230 R v McIntosh [1923] St R Qd 278 R v Morse (1979) 23 SASR 98 Teelow v Commissioner of Police [2009] 2 Qd R 489 Wong v The Queen (2001) 207 CLR 584 WPT v QPS [2021] QDC 250 |
APPEARANCES: | Appellant appeared in person C L Barron for the respondent |
Introduction
- [1]On 30 June 2021, the appellant pleaded guilty to one charge of having on 11 March 2021 obstructed a police officer in the performance of the officer’s duties under s 790(1)(b) of the Police Powers and Responsibilities Act 2000 (Qld).
- [2]The appellant was convicted and fined $450.
- [3]The appellant filed a notice of appeal against his conviction on 25 August 2021. The appellant says he was told to plead guilty and that all he would get would be a good behaviour order, no fine and the matter would not be recorded. He says he was never given an opportunity to plead his case and he was wrongfully charged/convicted whilst the police officer assaulted him.
- [4]The notice of appeal and the supporting submissions seek to appeal both the conviction and sentence imposed.
- [5]The appeal having been filed more than 1 month after the decision, the appellant will require an extension of time in which to bring his appeal. No objection was taken to the late filing of the notice of appeal. In the circumstances, I would propose to grant the extension of time pursuant to s 224 of the Justices Act 1886 (Qld) and will proceed to determine the appeal proper.
Proceedings before the Magistrate
- [6]In the proceedings before the Magistrate, the Magistrate confirmed that Mr Neucom was not legally represented.
- [7]The Magistrate then said to Mr Neucom:
“You’re charged on the 11th of March 2021, at Point Vernon in the State of Queensland, you obstructed a police officer in the performance of the officer’s duties. How do you now plead to that charge?”
- [8]Mr Neucom responded, “Guilty, your Honour.” The Magistrate then asked, “And is that plea of guilty of your own free will?” Mr Neucom responded, “Yes, your Honour.” The Magistrate then told Mr Neucom to be seated and to listen to the prosecutor and that then he will hear anything that he may wish to tell him.
- [9]The prosecutor then set out for the Magistrate the details of the event on the night in question. Police had attended at the home of Mr Neucom to serve documents on Mr Neucom in relation to another matter. After they had served the documents and, as they attempted to leave, Mr Neucom informed police that they were trespassing and attempted to refuse service of the documents. The police turned and walked away from the dwelling, leaving the front yard. Mr Neucom exited his dwelling and informed police that it was a requirement for them to show him photographic identification. The police did not engage with Mr Neucom and continued to walk away. Mr Neucom continued to follow them and informed one of the constables that he was under citizen’s arrest and not permitted to leave. The officer sat in the front seat and attempted to close the door of the vehicle. Mr Neucom took hold of the door and prevented it from closing, again stating to police that they were not permitted to leave. The officers exited the vehicle and warned Mr Neucom that he was obstructing police, and that if he touched the vehicle again he would be arrested. Mr Neucom then opened the rear door of the vehicle and began to enter the vehicle. At that moment Mr Neucom was informed that he was under arrest. He had to be physically restrained at that time.
- [10]The Magistrate was told the matter was set for hearing and a brief had been prepared. Mr Neucom had then contacted prosecutions seeking to resolve the matter.
- [11]The prosecutor submitted that perhaps a good behaviour bond was appropriate.
- [12]The Magistrate immediately responded, “No”, and commented, “More than that.”
- [13]The Magistrate then said to Mr Neucom, “All right. Now, Mr Neucom. First of all, do you agree to what the prosecutor has said?” Mr Neucom responded, “Yes, your Honour.” The Magistrate then asked whether there was anything else he wished to say. Mr Neucom said:
“Just that I’m remorseful for what’s happened. I’d like the opportunity to apologise in person to the officer at some stage for my actions. And I just want to apologise to the court for my behaviour on the last date. And I’ve already apologised to the prosecutor, but I’d like to do it again: I apologise for my actions. And to you, your Honour: I apologise for my actions in the court last time.”
Magistrate’s Decision
- [14]In giving his decision, the Magistrate took into account his plea, commenting that it was not an early plea but a timely one. The Magistrate made reference to Mr Neucom having originally pleaded not guilty and to the Magistrate having previously rejected a plea and that he was now pleading guilty. The Magistrate said he did take into account what Mr Neucom had said on his own behalf. He said that while Mr Neucom has some history it is very dated and that he was not going to have much regard to that.
- [15]The Magistrate considered that a fine was the appropriate penalty. He then said, “You will be convicted and fined $450 and that will [be] referred to the State Penalties Enforcement Registry.” The Magistrate told Mr Neucom that SPER would send him a letter. He told him that he could enter a payment plan so it does not become too burdensome, or alternatively, if he did not wish to pay the fine, he could do community service work if his financial situation is that way.
- [16]Mr Neucom confirmed that if he wished to do service work that he could sort that out with SPER. The Magistrate responded by saying that he can enter a payment plan and that if he cannot afford it, they will let you do community service.
- [17]The Magistrate explained that the “offender fee” will be on top. Mr Neucom then thanked the Magistrate for his time and said, “Once again, I apologise for last time.” The Magistrate responded, “That’s fine.”
Mode of Appeal
- [18]The appeal is brought by Mr Neucom pursuant to s 222 of the Justices Act 1886 (Qld).
- [19]Section 222(2)(c) of the Justices Act 1886 (Qld) provides:
“if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.”
- [20]Pursuant to s 223, an appeal under s 222 is by way of rehearing on the original evidence, with any new evidence adduced only by leave. Pursuant to s 223, “special grounds” are required before fresh, additional or substituted evidence may be admitted on appeal.
- [21]The rehearing requires the court to conduct a real review of the evidence and make up its own mind about the case.
- [22]To succeed, the appellant must establish some legal, factual or discretionary error.[1]
- [23]Given the grounds of appeal, the appellant must show the sentence to be “unreasonable or plainly unjust”.[2]
- [24]A sentence has been described as excessive if it is “beyond the acceptable scope of judicial discretion” or “so far outside the appropriate range as to demonstrate inconsistency and unfairness.”[3]
- [25]The concept of a sentence being manifestly excessive was considered in Hili v The Queen[4] where the Court in referring to the plurality in Wong v The Queen stated:
“[I]ntervention 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.”[5]
The Parties’ Contentions
- [26]In his notice of appeal, Mr Neucom refers to a conversation with police prosecution. He says that he was told to plead guilty and all that he would get would be a good behaviour order, no fine and the matter would not be recorded.
- [27]In his notice of appeal, Mr Neucom says he was not given any opportunity to plead his case at all and he was wrongfully charged/convicted whilst the police officer assaulted him by kneeing him in the genitals, jumping on his left foot and attempting to choke him. The appellant said that the decision made was unfair, derogatory and no natural justice was applied over the matter and decision.
- [28]He refers in his notice of appeal, and in his further written submissions, to a version of events at his home that night where he says that he was assaulted by the police officers and was taken to Hervey Bay hospital. In his written submissions in support, he refers to the police having wrongly entered his property, he having asked for their identification and the police officer refusing to produce it, the police officer having mouthed ‘Fuck off Dickhead’ as the officer got into the police vehicle, the police officer having pushed and hit him in the left shoulder with the door and the other officer having then assaulted him by grabbing his right arm and kicking him in the genitals and placing his left hand around his throat.
- [29]In oral submissions, when taken to the transcript of the proceedings before Magistrate Guttridge, Mr Neucom said, “I was threatened by prosecution that I had to plead or else the police would keep harassing me.”
- [30]Mr Neucom continued saying,
“Now, I’ve been through police harassment where they’ve falsely charged me like this speed camera thing, like this thing. I enlisted a solicitor. The Crown and the two police officers were $60,000 lighter. Ever since then, I’ve been harassed by all the police that have had any contact with me, and that includes the Hervey Bay Police Station. They’re like mongrel dogs, your Honour. They grab a bone and run with it. Right?”
- [31]Mr Neucom detailed his grievances with the police, asserting they had refused to help him when he needed it because of the actions of a neighbour and maintained that he had been assaulted by the officers that night. Mr Neucom ended by reiterating that he had been threatened that if he didn’t plead guilty, he would have the police after him. He said he had no choice and was trying to protect his family.
- [32]Mr Neucom ended his submissions by saying, “This needs to be dismissed or a lot of people get embarrassed.”
- [33]There was no sworn testimony tendered by Mr Neucom to support these assertions. He did not apply to have any additional sworn evidence admitted on the appeal.
- [34]In making submissions on behalf of the respondent, reliance was placed on the fact that Mr Neucom had pleaded guilty and the fact that s 222(2)(c) of the Justices Act 1886 (Qld), in those circumstances, limits any appeal to one on the sole ground of the fine, penalty, forfeiture or punishment being excessive.
- [35]On behalf of the respondent, it was said in relation to the sentence imposed that the maximum penalty was 40 penalty units or six months imprisonment. It was submitted that the fine was at the lower end of the appropriate range of penalties and was not excessive.
Consideration
- [36]This appeal was brought under s 222 of the Justices Act 1886 (Qld). There is no common law right of appeal. A right of appeal must be conferred in clear words by a statutory provision.
- [37]Section 222 gives such a right to a person who feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty. Section 222(2)(c) provides an exception to the general right of appeal where the defendant has pleaded guilty. When a defendant has pleaded guilty or admits the truth of a complaint, then the defendant can only appeal on the ground that a fine, penalty, forfeiture or punishment is excessive or inadequate.
- [38]A court is entitled to act on a plea of guilty
“when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea.”[6]
- [39]A plea of guilty will not ordinarily be set aside unless
“the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence.”[7]
- [40]In those circumstances there would be a miscarriage of justice in acting on the plea.[8]
- [41]
“Other decisions cited by the applicant illustrate the point that s 222(2)(c) may not preclude an appeal to the District Court where the appellant’s plea was equivocal or, upon analysis amounted to a plea of not guilty or where the appellant had entered a plea of guilty to a charge ‘that clearly did not exist at law.’”[13] (Citations omitted)
- [42]By his notice of appeal, Mr Neucom asserted that he was denied natural justice and was the one viciously assaulted by the police. In his subsequent written submissions and in oral submissions, Mr Neucom asserted that he was told to plead guilty and that if he did not the police would keep harassing me.
- [43]A review of the proceedings before Magistrate Guttridge shows that the Magistrate was very careful to ensure that Mr Neucom agreed with the summary of the facts as given to him by the police prosecutor. Mr Neucom confirmed that he agreed.
- [44]The Magistrate was also careful to ensure that Mr Neucom was entering a plea of his own free will.
- [45]The transcript makes clear that caution was being taken as a result of conduct of Mr Neucom at an earlier mention of the matter, for which at the hearing on 30 June 2021 when Mr Neucom entered a plea, Mr Neucom apologised.
- [46]None of this behaviour supports the allegations that Mr Neucom was told to plead guilty and that he did not have an opportunity to plead his case. There is no sworn evidence for Mr Neucom to the relevant effect.
- [47]There is nothing in the proceedings before the learned Magistrate to indicate any equivocation in the appellant’s plea of guilty or that upon analysis it did not amount to a plea of guilty or that it was a plea to a charge that did not exist at law. It follows that Mr Neucom has no right of appeal against his conviction under s 222 of the Justices Act 1886 (Qld).
- [48]Treating the appeal as an appeal against sentence, a fine was a sentencing option open to the Magistrate. Whilst the prosecutor had suggested a good behaviour bond, it was within a proper exercise of the Magistrate’s sentencing discretion to consider a fine to be the preferable option. Further, the imposition of the fine became a subject of discussion between Mr Neucom and the Magistrate, with Mr Neucom making reference to the possibility of doing community service work and accepting that he needed to sort that out with SPER.
- [49]Given the maximum penalty units, I do not consider the amount of the fine to be outside the appropriate range.
- [50]Further, I do not consider that the Magistrate’s discretion miscarried in determining to record a conviction.
- [51]The appeal is dismissed.
- [52]As the respondent has not sought the making of an order for costs, it is appropriate to record that there be no order as to costs.
Footnotes
[1] Allesch v Maunz (2000) 203 CLR 172 at 180-181 [23]; Teelow v Commissioner of Police [2009] 2 Qd R 489 at 495 [4].
[2] House v The King (1936) 55 CLR 499 at 505.
[3] Lowe v The Queen (1984) 154 CLR 606 at 610-611.
[4] (2010) 242 CLR 520.
[5] Hili v The Queen (2010) 242 CLR 520 at 539 [59] quoting Wong v The Queen (2001) 207 CLR 584 at 605 [58].
[6] Meissner v The Queen (1995) 184 CLR 132 at 141.
[7] Meissner v The Queen (1995) 184 CLR 132 at 157.
[8] Long v Spivey [2004] QCA 118.
[9] [2010] QCA 2.
[10] [2004] QCA 118.
[11] [2005] QCA 150.
[12] [2005] QCA 317.
[13] [2010] QCA 2 at 3 [5].