Goff v Commissioner of Police[2022] QDC 71

DISTRICT COURT OF QUEENSLAND

1. [1]
   HIS HONOUR: This is an application for an extension of time within which to appeal brought by Hayley Anne Goff against the Commissioner of the Police.  The background to the proceeding is that on 24 March 2020, Ms Goff appeared before a Magistrate at Maroochydore and, on that day, entered a plea of guilty to one offence of stealing.  She was sentenced by the Magistrate, and the orders made were for probation for three years with a conviction recorded and also that the Appellant pay compensation in an amount just in excess of $16,000.
2. [2]
   An appeal was not filed until 13 September 2021 and was accompanied by an application for an extension of time within which to appeal, that is, the appeal was not commenced until almost 18 months out of time.  The application for the extension that was filed with the notice of appeal on behalf of the Appellant claimed that she had “diagnosed mental health issues” and did not have legal advice.  In those circumstances, there is no real explanation for the delay, but a Court may still proceed to hear an appeal if there are otherwise merits in the Appellant’s arguments.
3. [3]
   The sole ground of appeal advanced in the notice of appeal is that the sentence was excessive.  In written and oral submissions, the Appellant relied upon more specific grounds identifying what were said to be errors, and no objection was raised to the Court considering those matters by the Respondent.
4. [4]
   Before considering the arguments, it’s convenient to summarise the proceedings at first instance.  The appellant was charged, as I have said, with one count of stealing alleged to have occurred between the 24th of September 2019 and the 15th of October 2019.  The complainant was her mother.  On the 24th of March 2020, she appeared before a Magistrate at Maroochydore.  The Appellant appeared by phone, as was the practice at the time, and no complaint is made about the mode of her appearance.  The charge was read by the Magistrate, who asked the Appellant, “What do you want to do today?”  According to the transcript of the proceedings before the Magistrate, the response of the Appellant was to say:

I wish to plead guilty and organise a way with my mother, which – I am endeavouring to pay her back.

5. [5]
   The Magistrate inquired who the complainant was and was told by the Appellant that that was her mother.  He asked whether she had sought legal advice, and the Appellant said:

No, I haven’t, but I’ve been keeping in touch with my dad, which – he has been there.  He has been letting me know how she’s going, and he knows that I’m going to be endeavouring to pay her back as well, just to maintain, you know, a good relation with my mum, considering her health.

6. [6]
   She was later asked how she pleaded and told the Magistrate, “Guilty”.  The Prosecutor read the facts of the allegation.  Put briefly, the Appellant had transferred a total of $16,030 from her mother’s bank account to her own in 26 transactions from late September to mid-October 2019.  When the police investigated and spoke to the Appellant, she gave full admissions.  Her criminal history was tendered before the Magistrate.  It was largely irrelevant, containing two matters:  contravening a direction and possessing a utensil, both occurring on the same day in April 2019 and resulting in a $400 fine.
7. [7]
   The Magistrate spoke to the Appellant.  She told the Magistrate that she had seen a psychiatrist, that she had multiple diagnoses of mental health conditions, that she was trying to address drug alcohol addiction issues, that she had domestic violence problems with an ex-boyfriend who had recently been incarcerated, and that she was in receipt of Centrelink benefits, and there was an ongoing issue with whether she was going to receive a disability support pension.  The Magistrate then proceeded immediately to sentence, the effect of which was to release the Appellant under the supervision of the Probation Office for three years and also ordering $16,030 as what was termed restitution, but which was really compensation pursuant to section 35 of the Penalties and Sentences Act.  The latter was ordered to be referred to the State Penalties Enforcement Registry.
8. [8]
   The only challenge to the orders that were made by the Magistrate is a challenge to the compensation order.  The probation order is itself no longer extant.  As was explained to me at the commencement of the hearing of this appeal, the appellant has already been dealt with for breaching the probation order.  She accepted she had breached the order, and a different Magistrate re-sentenced her to a different probation order.  So the order that was made by the Magistrate in April of 2020 no longer exists.  There are, as I have noted, some further specific complaints about the proceedings before the Magistrate beyond the general claim that the compensation order was excessive.  It is convenient to deal with those first.
9. [9]
   The first error suggested is that there was a failure to properly take into account the age of the appellant.  The Magistrate was told that the Appellant was 26 years of age.  This information came a little later in the hearing than it often would, but there is no suggestion now advanced that her age was a matter of particular relevance in the circumstances.  The absence of the specific mention of her age in the reasons of the Magistrate is not, to my mind, indicative of error.
10. [10]
    The second matter complained of is what is said to be an absence of procedural fairness because the hearing commenced before the Appellant was on the phone.  Strictly speaking, that is true, but nothing of any substance occurred before the Appellant appeared on the telephone, and there is no merit in this complaint, which I note was not pressed on the Appellant’s behalf at the hearing.
11. [11]
    There was also a suggestion of an absence of procedural farness in the way the hearing was conducted, but again, I note that was not pressed before me, and having regard to the transcript before the Magistrate, while the hearing was certainly short, there is nothing to my mind to indicate the Appellant was denied an opportunity to make what submissions she wanted.
12. [12]
    The fourth matter raised in the outline on behalf of the appellant is what is suggested to be a failure to properly consider her antecedents.  Again, I do not think there is merit in this ground.  The Magistrate was aware of her age, her criminal history, and what she said of her personal circumstances. 
13. [13]
    In a busy Court exercising summary jurisdiction, it is unsurprising that sentencing remarks are not extensive, and the absence of reference to these matters in particular does not, in my mind, bespeak of error.  A further consideration is that there is no material proposed by the Appellant explaining what feature of her background might have been brought to the attention of the Magistrate that could have materially affected the sentence orders that were made.
14. [14]
    The final matter raised as a potential specific error concerns a failure by the Magistrate to have the consent of the Appellant before proposing a probation order.  Such is a requirement of section 96 of the Penalties and Sentences Act, which is expressed in these terms:

The Court may make or amend the probation order only if the offender agrees to the order being made or amended and also agrees to comply with the order as made or amended.

15. [15]
    It may be seen, then, that a statutory precondition to the making of an order is the consent of the Appellant, which was absent in this case.  The significance of that is something to which I will return in a moment.  On the question of whether the compensation order itself was excessive, it is necessary to consider it in the context of all of the orders that were made by the Magistrate.  The Appellant submits that the Magistrate was required to be satisfied that the Appellant could pay compensation before making the order, and by not doing so, that speaks of error. 
16. [16]
    It is to be noted that this is not strictly a requirement of the statute.  Unlike the imposition of fines, there is no specific requirement in the statute to consider the financial circumstances of a defendant when contemplating a compensation order.  Having said that, it would obviously be inappropriate to make an order for compensation where there is no prospect of compliance with that order, especially where the failure to pay may have punitive consequences.  See, for example, McIntyre v Commissioner of Police [2021] QDC 163 at paragraphs 30 and 31.  Here, though, the Appellant indicated a willingness to pay compensation.  It was mentioned by her early in the proceeding and repeated on more than one occasion.  It was not, in those circumstances, in my view, inappropriate to order compensation, notwithstanding the limited financial circumstances of the Appellant.
17. [17]
    I should briefly note, however, some deficiencies in the order expressed by the Magistrate.  When compensation is ordered under section 35, in my view, it is appropriate to clearly identify to whom the compensation is to be paid.  Obviously, in this case, it was to the Appellant’s mother, but that was not clearly set out in the order of the Magistrate, nor is it clearly recorded on the endorsement on the bench charge sheet.  While I am conscious of the time pressures in the Magistrates Court, it would only take a moment to properly articulate an order of this kind, and it should be done.  It is possible that in some circumstances, a failure to state a comprehensible order would represent appellable error. In this regard, I would repeat my observations in Owens v Commissioner of Police [2021] QDC 143 at paragraphs 13 to 16.
18. [18]
    The overarching question, then, is whether the compensation order represents an excessive sentence, having regard to the fact that it was a discretionary order.  The Appellant must show error, and, in the circumstances where the Magistrate was aware of a desire of the Appellant to make compensation, her limited financial circumstances, and the prospect of the order being managed by SPER, it cannot be said that the Magistrate either ignored a relevant consideration or took into account an irrelevant one.  There were no detailed reasons given, as I have noted, but given the information before the Magistrate, it is to be inferred he had regard to these matters.  The issue, then, is whether the order was one that is unreasonable or plainly unjust in the sense that phrase was used in the decision of House v The King [1936] 55 CLR 499.
19. [19]
    While the order for compensation was substantial, it was made in the context of what was, in practical terms, an offer to make compensation by the complainant.  She was self-represented, but this concession by the Appellant is, in my view, still significant.  In those circumstances, I do not consider that the Magistrate was in error in ordering compensation in the amount of $16,030.
20. [20]
    That leaves only the error in the Magistrate not complying with the requirements of the Penalties and Sentences Act in imposing the probation order.  The nature of an appeal to this Court by way of section 222 of the Justices Act is an appeal by way of rehearing.  It is fundamentally, in this case, an appeal against the exercise of a sentencing discretion and, as I have said, is governed by the principles in House v The King.  The identification of error may give rise to intervention, but it is not in every case that a Court must intervene if error is demonstrated.  In this regard, Hayne J in AB v The Queen [1999] 198 CLR 111 at page 160, paragraph 130, said this:

The difference between cases of specific error and manifest excess is not merely a matter of convenient classification.  It reflects a fundamental difference in what the appellate Court does.  In the former case, once an appellate Court identifies an error, the sentence imposed must be set aside, and the appellate Court is then required to exercise the sentencing discretion afresh.  The offender must be resentenced unless, of course, in the separate and independent exercise of its discretion, the appellate Court concludes that no different sentence should be passed.

21. [21]
    What Hayne J said in AB v The Queen was adopted by a majority of the High Court in Kentwell v The Queen [2014] 252 CLR 601 at paragraph 35, where French CJ, along with Hayne, Bell and Keane JJ, referred with approval to the statement of Hayne J in AB and went on to say:

In the case of specific error, the appellate Court’s power to intervene is enlivened, and it becomes its duty to resentence unless, in a separate and independent exercise of its discretion, it concludes that no different sentence should be passed.

22. [22]
    In this case, the error in the imposition of the probation order, an order which I note is no longer extant, could have had no bearing on the making of the compensation order.  Considering all of the material before me, there is no basis for a conclusion that any other sentence ought to have been imposed. In those circumstances, there is no error demonstrated in the imposition of the compensation order and, there being no merit to the appeal, the application for an extension of time within which to appeal must be refused.
23. [23]
    Finally, I would note that the Respondent sought to adduce evidence, which would have gone to what I understand to be the circumstance that the appellant has, in fact, been making payments toward the compensation order to the State Penalties Enforcement Registry.  Because I have concluded for other reasons there is no error in the proceedings below, the affidavit material would not be relevant to any question now before the Court, and on that basis, leave to rely upon that affidavit is refused.
24. [24]
    The order will be that the application for an extension of time will be dismissed.