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Commissioner of Police v Hurling[2023] QDC 157

Commissioner of Police v Hurling[2023] QDC 157

DISTRICT COURT OF QUEENSLAND

CITATION:

Commissioner of Police v Hurling [2023] QDC 157

PARTIES:

COMMISSIONER OF POLICE

(Appellant)

V

TRACY LEA HURLING

(Respondent)

FILE NO:

559 of 2023

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

28 September 2023

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2023

JUDGE:

Byrne KC DCJ

ORDERS:

  1. 1.
    The respondent’s application to adduce further evidence is granted.
  1. 2.
    The appeal is allowed.
  1. 3.
    The sentence imposed in the Brisbane Magistrates Court on 10 February 2023 is vacated.
  1. 4.
    In its stead the following sentences are imposed:
  1. a)
    On charge number 7: Imprisonment for 12 months.
  1. b)
    On charge number 8: Imprisonment for 12 months.
  1. c)
    On charge number 9: Imprisonment for 12 months.
  1. d)
    On charge number 10: Imprisonment for 12 months.
  1. e)
    On charge number 11: Imprisonment for 12 months.
  1. f)
    On charge number 15: Imprisonment for 12 months.
  1. g)
    On charge number 18: Imprisonment for 6 months.
  1. h)
    On charge number 20: Imprisonment for 9 months.
  1. i)
    Those terms of imprisonment are to be served concurrently with each other.
  1. j)
    Those terms of imprisonment are suspended forthwith and an operational period of 12 months is imposed for each charge.
  1. k)
    Convictions are recorded on each of those charges.
  1. l)
    In respect of the remainder of the charges: a single fine for all offences of $5000 is imposed. Convictions are not recorded on those charges.
  1. m)
    As that fine has already been paid, it is unnecessary to make further orders that would ordinarily be made when a fine is imposed.
  1. 5.
    No order as to costs.

CATCHWORDS:

CRIMINAL LAW – PROSECUTION APPEAL AGAINST SENTENCE – where the respondent is charged with computer hacking and misuse under s 408E(2) of the Criminal Code 1899 (Qld) – where information accessed was held on a Queensland Police Service database known as QPRIME – where the respondent was employed in a role that gave high level access to the QPRIME system – where respondent engaged in unauthorised access to information concerning herself and others by accessing and altering or attempting to alter QPRIME records on multiple separate occasions – where the conduct breached the expectation of privacy that members of the community are entitled to expect – where the respondent was given a substantial fine with no conviction recorded – whether the sentence was manifestly inadequate

LEGISLATION:

Criminal Code 1899 (Qld) ss 3, 408E.

Domestic and Family Violence Protection Act 2012 (Qld) s 168(2).

Justices Act 1886 (Qld) ss 222, 223, 232.

Penalties and Sentences Act 1992 (Qld) ss 9(2)(a), 12(2).

Police Service Administration Act 1990 s 2.3.

CASES:

Allesch v Maunz (2000) 203 CLR 172.

Commissioner of Police v Broederlow [2020] QCA 161.

Commissioner of Police v Punchard [2021] QCA 166.

Fox v Percy (2003) 214 CLR 118.

GHN v Commissioner of Police [2022] QDC 86.

Green v The Queen (2011) 244 CLR 462.

HBY v WBI & Anor [2020] QDC 81.

House v The King (1936) 55 CLR 499.

Kentwell v The Queen (2014) 252 CLR 601.

McDonald v Queensland Police Service [2018] 2 Qd R 612.

Norbis v Norbis (1986) 161 CLR 513.

Punchard v Commissioner of Police [2020] QDC 211.

R v Borkovski (2009)195 A Crim R 1.

Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679.

COUNSEL:

Mr. C. Wallis for the appellant.

Mr. M. Rawlings for the respondent.

SOLICITORS:

Office of the Director of Public Prosecutions for the appellant.

Bouchier Khan for the respondent.

  1. Introduction
  1. [1]
    On 17 November 2022 the respondent pleaded guilty to a total of 20 offences of Computer Hacking, charged under s 408E(2) of the Criminal Code. Charges 1 to 13 and 15 to 17 alleged the causing of damage as a circumstance of aggravation and charges 14 and 18 to 20 inclusive alleged the gaining of a benefit as a circumstance of aggravation. On 10 February 2023 the respondent was sentenced in the Magistrates Court at Brisbane to a total fine of $15,000 and no convictions were recorded.
  1. [2]
    The Commissioner of Police appeals that sentence, alleging manifest inadequacy.
  1. Nature of the appeal
  1. [3]
    The appeal has been brought pursuant to s 222 of the Justices Act 1886, and so is by way of a rehearing on the record.
  1. [4]
    Section 223(2) of the Justices Act allows for leave to be given to adduce fresh, additional or substituted evidence if the Court is satisfied there are special grounds for giving leave. The Justices Act does not prescribe the manner in which the discretion under s 223(2) is to be exercised however I adopt the observations of Moynihan QC DCJ in HBY v WBI & Anor.[1] There his Honour, in considering a cognate provision, namely s 168(2) of the Domestic and Family Violence Protection Act 2012, observed that the interpretation of the provision that best achieves the purpose of the Act is that the discretion is engaged when good reason is shown for there to be an exception made to the usual approach.
  1. [5]
    In this appeal, the respondent has applied to adduce evidence in the form of an affidavit of the instructing solicitor that was not before the Magistrate. Its merits will be considered below.
  1. [6]
    It is necessary for me to consider all the evidence, whether adduced at first instance or on appeal, and make up my own mind about the effect of it, particularly where any inferences are to be drawn from primary facts.[2] The onus is upon the appellant to show that there is some relevant error in the decision under appeal.[3] Given the present appeal is an appeal against the exercise of a discretion, the principles from House v The King[4] apply. The appellant submits that there is an error of the last category referred to in that case.
  1. [7]
    A sentence will be manifestly inadequate if it is “unreasonable and plainly unjust”.[5] A conclusion to that effect will not be made simply because the appellate court, if in the position of the primary judge, would have taken a different view.[6] The Court may only intervene if it concludes that the sentence falls outside the permissible range of sentences in light of all of the relevant circumstances including the circumstances pertaining to the offender and to the offence itself.[7]
  1. The application for leave to adduce further evidence
  1. [8]
    The affidavit earlier referred to states that the respondent has not re-commenced her studies in nursing since the sentence because she remains ineligible to hold a blue card and is therefore unable to undertake the placement component of her degree, that she can re-apply for a blue card after 26 July 2023, that the fine imposed at first instance has been paid in full and that although unemployed for a period of time she is now employed as an office manager on a full-time basis. It does not inform of the nature of the business she is employed in, nor if her employer is aware of the current matters.
  1. [9]
    The appellant does not object to the admission of the affidavit into evidence, but argues that the matters are only relevant if going to the exercise of the residual discretion.
  1. [10]
    In so far as the affidavit deals with matters other than those stated from the Bar table without objection, it deals with matters relevant to her current situation. As I have determined that appellate intervention is required, it is appropriate that leave be granted to adduce this evidence to be taken into consideration on re-sentencing and the exercise of the residual discretion.
  1. Factual allegations
  1. [11]
    The respondent was employed as an administrative officer by the Queensland Police Service (“QPS”) since 2003. She rose through the administrative ranks of that organisation and acted in management roles at various times from 2015, including the role of Manager of the Queensland Police Records and Information Management Exchange system (“QPRIME”), at an AO8 level.
  1. [12]
    QPRIME is, in essence, the computer system used by QPS to store and manage confidential information including information about criminal investigations, intelligence reports and personal information of members of the public. The level of access to QPRIME that was afforded to the respondent was a high level that only very few employees were granted, including sworn officers of the QPS.
  1. [13]
    Between 12 November 2013 and 6 August 2020, the respondent caused damage to the contents of the QPRIME system by altering or removing information from it in 13 instances, unsuccessfully intending to alter or remove information from it in three instances and gained a benefit, namely knowledge, by accessing information that was contained in it in four instances. The offences occurred on nine occasions over that almost seven-year period of offending. They were uncovered as a result of a regular audit. A brief overview of the individual charges is necessary.
  1. Charges 1 to 4 inclusive
  1. [14]
    On 31 October 2013 the respondent reported to police that some items had been stolen from an open carport of her home. This generated an “occurrence”, or a matter, in QPRIME. On 12 November 2013 she accessed that QPRIME matter and “unlinked” the items reported as stolen from the matter. As I understand it, this means that QPRIME retained information about a theft and separately retained information about those items, but the two were not linked to each other. In or about December 2013, on two occasions, the respondent altered the information by reducing the stated value of the stolen items and “unlinked” her address from the QPRIME entry related to the theft. (Charges 1 – 3)
  1. [15]
    About three years later, on 4 May 2016 she accessed the QPRIME system and “unlinked” herself from the reported occurrence, and also deleted some other information related to the occurrence. On this occasion she typed in certain words designed to give legitimacy to her access. (Charge 4)
  1. Charges 5 and 6
  1. [16]
    On 10 August 2016 the respondent provided information on behalf of another person about property lost by that person. This generated a matter in QPRIME. Over seven years later, she accessed that QPRIME entry and created a “registered party event”. The way she did this gave the appearance that the party was registered as part of the occurrence. (Charge 5)
  1. [17]
    About two hours later she unlinked herself from the matter. (Charge 6)
  1. Charges 7 to 11 inclusive and 15
  1. [18]
    On 2 April 2014 the respondent was charged with shop stealing and assault. The charges were eventually discontinued, on 26 November 2014. About 12 months later, on 17 November 2015, she accessed the QPRIME occurrence relating to these matters, typing in words to suggest legitimacy for accessing the occurrence. She deleted herself from having been involved in these matters. (Charge 7)
  1. [19]
    About six months later, on 4 May 2016, she again accessed the QPRIME system, again typing in words suggesting a legitimate reason for accessing it. Over an eight- minute period she altered the state of the information in the QPRIME system concerning this matter in a number of ways, including unlinking some details of herself that, apparently, remained after the earlier deletion, deleted her employment details from the occurrence and deleted references to herself from entries concerned with court appearances in the prosecution. She also, unsuccessfully, attempted to the delete the record of charges associated with the occurrence. (Charge 8)
  1. [20]
    About three months later, on 15 August 2016, she again accessed the QPRIME occurrence and, again unsuccessfully, attempted to delete the charges from the occurrence as well as references to her having been arrested, and other identifying information associated with the charges. (Charge 9)
  1. [21]
    About one month later, on 16 September 2016, she again accessed the QPRIME system and altered the information concerning her association with the matter. (Charge 10)
  1. [22]
    About three months later again, on 14 December 2016, she accessed the QPRIME occurrence and, again unsuccessfully, attempted to delete the record of her having been arrested. (Charge 11)
  1. [23]
    About three years later, on 28 May 2019 she again accessed the QPRIME system and attempted to delete identifying information, but was unsuccessful. (Charge 15)
  1. Charge 12
  1. [24]
    On 31 May 2004 the respondent reported the theft of certain property. The report was made for insurance purposes. Some 15 years later, on 28 May 2019, the respondent accessed that entry in QPRIME and “unlinked” herself from the occurrence. (Charge 12)
  1. Charge 13
  1. [25]
    On 23 November 2009 the respondent reported, for insurance purposes, that a number of items were lost while shopping. Almost six years later, on 27 October 2015, she accessed the QPRIME occurrence and unlinked a quantity of cash from the occurrence. (Charge 13)
  1. Charge 14
  1. [26]
    On 7 July 2016 the respondent made a complaint of fraud concerning goods paid for but not received. On 9 March 2017 she accessed that QPRIME occurrence and perused links for the person who was suspected of committing the offence, including his address. (Charge 14)
  1. Charge 16
  1. [27]
    On 13 September 2019 the respondent accessed QPRIME and linked a vehicle registered to her ex-partner to other information in the system. (Charge 16)
  1. Charge 17
  1. [28]
    On 10 October 2019 the respondent accessed an existing entry in QPRIME concerning a public nuisance occurrence. Over a five-minute period, she searched for her own residential address and then linked it to that occurrence. She also added a “search hit flag” to the address so that she would be notified when another QPRIME user accessed information about the address. She later deleted the link she created between her address and the occurrence, but left the address flag in place. She then conducted an address search for a neighbouring house and then linked that house to the public nuisance matter, later deleting that link. And finally, she searched another two neighbouring houses linking them to the public nuisance occurrence, later unlinking each of those addresses from the occurrence. (Charge 17)
  1. Charges 18 to 20
  1. [29]
    On 4 June 2020 the respondent accessed QPRIME and searched for her residential address. She looked at records concerning her then partner, and occurrences that were linked to him. (Charge 18)
  1. [30]
    On 6 August 2020 she accessed QPRIME and searched her own driver’s licence record. About an hour later she accessed it again and typed in information suggesting a legitimate reason for that access. (Charge 19)
  1. [31]
    On 7 August 2020 she accessed QPRIME and did a number of things that form the particulars of Charge 20. Over a three-minute period from 4.37 pm she accessed the driver’s licence records of her son, those of herself and those of the ex-wife of her current partner. Then, over an 18-minute period from 7.08 pm she looked at the driver’s licence records of her current partner, those of his ex-wife and those of a friend. Finally, over a 30-minute period from 7.32 pm she opened the records concerning her own residence and people recorded as being associated with it, looked at the records for her friend’s residence and people and events recorded as being associated with it, looked at the record specifically relating to that friend including any occurrences, charges and association linked to her, looked at the same style of records concerning her daughter, and perused the driver’s licence and traffic history records of her son. (Charge 20)
  1. Submissions at first instance
  1. [32]
    The prosecutor stressed the seriousness of the offending in terms of the importance of the maintenance of the integrity of the QPRIME system, the period of time over which the offending occurred, the actual alteration of information in the system on occasions and the fact that her conduct stopped as a result of an audit of the system rather than of her own volition. She provided the sentencing Magistrate with the decision of Commissioner of Police v Punchard[8] and submitted that an actual period of more than two months imprisonment should be imposed, with an operational period of at least 18 months to address the issue of general deterrence and to deter those in similarly privileged positions. I infer that it was intended that a head sentence of up to 18 months imprisonment was justified. Although not expressly stated, it seems likely that the prosecutor’s submissions as to the length of the appropriate sentence was partly influenced by the sentence imposed at first instance in Punchard.
  1. [33]
    The respondent’s Counsel submitted that the matter before the Magistrate was one of ill-advised mischief rather than explicit misconduct. The respondent’s role allowed access for the purposes of fixing bugs in the system. She was one of a number in that section who had similar access and, it was submitted, her offending was motivated by vanity because of a concern that others would discover personal matters about her if they were searching through the system. The conduct was a minimisation of what she looked like on QPRIME and stands in contrast to some other ulterior purpose.
  1. [34]
    It was emphasised that there was no actual harm caused and it was submitted that it was unclear how the unlinking of material could cause any particular harm. While it was accepted that it was not a victimless crime because of the alteration of the information, the potential of significant harm was not something that rose to the fore. Accordingly, it was submitted, more assistance was to be gained from the observations of the judge hearing the appeal which was ultimately the subject of the appeal to the Court of Appeal in Punchard[9] than from the Court of Appeal judgment because he had found that the conduct did not raise a risk of harm to the community.
  1. [35]
    The respondent had a good work history, including nine-year’s service in the Navy, and since being charged with these offences, and later resigning from the QPS, she has commenced studies as a nurse. She has had to put that study on pause because she could not obtain the blue card to embark upon the practical placement component of her studies while the charges were pending. Upon gaining the post graduate qualifications she intended to work in that industry in the Northern Territory. These matters were relied on to submit that she had already paid a heavy price, and so had already received extra-curial punishment.
  1. [36]
    The submission ultimately was that a fine and a community service was the appropriate disposition and it was submitted that a conviction should not be recorded. In that respect it was noted that AHPRA, the health regulation body, were already aware of the charges and that the various authorities would be notified of the result of the prosecution, to permit decisions to be made as to the continuation of her studies and access to a blue card.
  1. [37]
    It was frankly conceded that the recording of a conviction will not necessarily prevent registration as a nurse, although it was said that if one was recorded AHPRA may consider the conduct to be more serious than it might otherwise do.
  1. Sentencing at first instance
  1. [38]
    Her Honour accepted that the plea of guilty was timely and expressly noted that she had a good work record and no prior criminal history. She noted that the respondent held a position of considerable responsibility which required integrity. She accepted that some of the charges might be able to be explained by vanity, but expressly noted that she could not see how all of them could be so explained.
  1. [39]
    She expressly noted that the offending was serious, as the administration of justice generally and police investigative work and the integrity of police investigations was affected by the integrity of the information that they hold, and it should not be interfered with in any way. It was noted that the offending occurred over several years and it was accepted that general deterrence was an important consideration in the imposition of sentence.
  1. [40]
    Her Honour expressly recognised the respondent’s nursing studies and the effect that sentencing may have upon those matters. Her Honour stated that she would take “judicial notice” of the need for nursing staff in Australia at this time, and that the recording of a conviction would be a “significant hurdle” to becoming a nurse.
  1. [41]
    Her Honour considered the offending was sufficiently serious that a period of imprisonment, “albeit suspended”, is within range. She went on to say:
  1. “But considering your lack of history, your military service, your 20 years of other service, you’re studying to be a nurse, the impact of the recording of a conviction on your wanting to be a nurse does not mean you will not get to become a nurse, but would be a significant hurdle. Either the order would be – because it is very limited what I can do, as a Magistrate, when it comes to sentences – would be either a – you have asked for a community service order or a very substantial fine.”
  1. [42]
    Ultimately the single fine of $15,000 was imposed for all offences,[10] without the recording of convictions on any of the charges.
  1. Submissions in this Court
  1. [43]
    The appellant does not point to any specific error to enliven the power of this Court to interfere in the sentence imposed, notwithstanding some features of the sentencing that are submitted to be irregular, but does contend that the sentence imposed is manifestly inadequate. In other words, reliance is placed on the last category of error referred to in House v The King.[11] Although the sentencing Magistrate expressly recognised the seriousness of the offending, the sentence imposed was manifestly inadequate, even after allowance is made for matters in mitigation. Although neither are directly comparable, the sentence imposed does not accord with those imposed in Commissioner of Police v Punchard or GHN v Commissioner of Police.[12]
  1. [44]
    Although this is a prosecution appeal, and therefore some consideration of double jeopardy applies to any decision to intervene, the appellant does not now seek a sentence that was not sought at first instance. Additionally, because the residual discretion is a relevant consideration in re-sentencing and because the principle that a sentence of imprisonment is a last resort and that a sentence that allows the respondent to remain in the community applies,[13] it is not now contended that a period of actual incarceration should be imposed by this Court.
  1. [45]
    The appellant submitted that it is relevant to remember that the purpose of a Crown appeal against sentence is not only to increase a sentence imposed, but to “achieve consistency in sentencing and the establishment of sentencing principles”.[14] In so far as the residual discretion is raised by the fact that the fine has now been paid, that can be refunded if necessary.
  1. [46]
    The respondent sought to emphasise that differing types of conduct occurred, and it was submitted that none of it was as serious as that referred to in the comparable sentences referred to by the appellant at first instance and in this Court. The respondent was an administrative officer and not a sworn officer of the QPS, as in those cases, and the respondent’s conduct did not place members of the public in the way of harm. Deterrence was a relevant feature, but that was limited to general deterrence and was achieved by the imposition of the considerable fine imposed.
  1. [47]
    The proceedings had been hanging over her since she was suspended on pay a little over six months prior to sentencing and her studies had had been impacted because of the appeal, as was her ability to apply for the necessary blue card.
  1. [48]
    The exercise of the discretion not to record convictions was an appropriate recognition to the steps taken towards rehabilitation and may help facilitate employment in the future in the preferred field of nursing. The sentence imposed provided appropriate recognition of matters of deterrence and rehabilitation.
  1. [49]
    Should the Court consider that there has been error, re-sentencing should take into account the respondent’s changed position since sentencing at first instance.
  1. Consideration
  1. [50]
    Although the offence dates span almost seven years, the offending conduct can be grouped into nine occasions during that time. It was not an almost seven-year period of continuous offending.
  1. [51]
    The factual allegations have been set out in more detail than might otherwise be expected so as to show that there was indeed different conduct, and hence varying degrees of seriousness attaching to the conduct. For example, unlinking a quantity of cash six years earlier reported as lost, but not other items,[15] is curious to say the least. So is “unlinking” herself from an occurrence involving the reporting of a theft of property some 15 years earlier.[16] These charges are clearly at the less serious end of the spectrum of the respondent’s offending.
  1. [52]
    On the other hand, repeated successful and unsuccessful efforts to alter the history of her charging, and details around that, are particularly serious in my view. That is not because it has been shown to have had consequential effects for the functions of the QPS or the administration of justice, but because it has affected, and attempted to affect, the integrity of the information held by the QPS used to carry out its important functions, which impact on the whole of the community on a daily basis.[17]
  1. [53]
    The explanation provided for the offending cannot be accepted as even possibly applying in all instances, as was recognised by the sentencing Magistrate. Further, in the absence of someone else having a legitimate reason to consider the information held in respect of the respondent, the respondent’s explanation assumes that others in the respondent’s workgroup would be prone to wantonly enquiring about others, including the respondent. It was given as an explanation from the Bar table, and so does not carry the weight that might afforded to it were it given on oath or in the course of a spontaneous explanation to investigators. In my view it should be approached with considerable caution. There is nothing akin to the mental health issues that were raised in the more or less comparable matters relied on at first instance and in this Court and so, for at least a significant proportion of the charges, the conduct is unexplained thereby leaving the drawing of an adverse inference open.
  1. [54]
    It can never be foreseen with complete clarity what information may be useful or necessary to a police service in the future execution of its functions. That is why its information records must remain secure and complete. For that reason, even the less serious offending cannot be regarded as trivial or inconsequential, although it may properly be categorised as less serious than other conduct that also offends the legislative provision. Where access to the information and the acquisition of knowledge has occurred but the information has not been disseminated or used, deterrent focussed sentences are still justified because it is the potential to use that knowledge in the future which must be protected against.
  1. [55]
    Not all of the offending conduct involved QPRIME occurrences in which the respondent was involved or named. Although her Counsel sought to minimise that conduct as checking on information and not using it in any way, no acceptable explanation for doing so was offered. There is nothing to suggest, for example, that she had been asked by the persons whose records she was accessing to check something for them. It is open to infer that she was doing nothing more than prying into other people’s personal lives, especially given that one was an ex-partner of hers,[18] one was her current partner[19] and one was the ex-wife of her current partner.[20] This style of conduct is a direct breach of the expectation of privacy that members of the community are entitled to expect of an organisation that necessarily holds private, and potentially embarrassing, information. It deserves punishment that adequately expresses the need for deterrence so as to promote public confidence in the ability of the QPS to properly perform its functions.
  1. [56]
    It is also relevant to note that the respondent held a position of responsibility, which allowed her access to the QPRIME system in the first place. While it is true that she did not breach the level of public trust and respect reposed in both Punchard and GHN as sworn members of the QPS, it was a level of access not granted to many employees or sworn members of the QPS that facilitated the commission of the offences. In that sense, the breach of trust in her case was obviously a significant consideration in sentencing.
  1. [57]
    As noted earlier, there were matters in her favour. The effect that the recording of convictions may have on her intended future career was of course a relevant feature but, as was noted by the Magistrate, the recording of convictions would not necessarily preclude her from pursuing that career. The relevant bodies were already aware of the prosecution and would consider the appropriateness of granting the respective permissions regardless of whether convictions were recorded or not.
  1. [58]
    In determining whether a conviction should be recorded for any or all of the offences, the Magistrate was required to have regard to all circumstances, including the nature of the offence committed.[21] The variable seriousness of the offending conduct here has already been noted. If for no other reason, that variable seriousness would have justified reaching different conclusions as between some of the offences. Although not said to amount to a specific error for the purposes of the appeal, the issue appears to have been approached by her Honour as an all or nothing proposition.
  1. [59]
    The non-recording of a conviction lawfully authorises the respondent to deny that she has been convicted, subject to some specific exceptions. It can be accepted that the recording of convictions, especially for an offence which inherently involves a breach of trust, can affect future employment prospects. On the other hand, as has been long recognised,[22] others, including employers, have a right to know the character and background of the respondent for the purposes of any future dealings with her. This does not seem to have been taken into account by her Honour.
  1. [60]
    Her Honour had before her the Court of Appeal decision in Punchard and, curiously, the decision which resulted in that successful appeal. The Court of Appeal did not consider the appropriateness of the penalty imposed at first instance. It concluded that the error identified by the Judge of this Court on the first appeal did not in fact exist. Consequently, the decision of this Court was overturned, meaning that the penalty imposed at first instance was re-instated. It therefore speaks only of a sentence from the Magistrates Court and is not strictly binding on either the sentencing Magistrate in this matter, or this Court on appeal. As a matter of general principle, it does not set some upper limit for the appropriate exercise of the sentencing discretion for this offence and, given the mental health issues present in that matter which went to explain the conduct as opposed to the largely unexplained conduct here, it was of limited direct assistance.
  1. [61]
    In my view, the decision resulting in the appeal to the Court of Appeal in Punchard was of no assistance whatsoever as a comparable. To suggest that it assisted with an appropriate level of sentence, had there not been any danger to any member of the public caused by the commission of the offence, overlooks the fact that the sentence that was then imposed was based on a finding that was found to be erroneous. Accordingly, the substituted sentence by this Court was, in the end result, hypothetical and was of no assistance to the sentencing Magistrate, nor this Court.
  1. [62]
    In any event, the sentencing Magistrate made no reference to either case. She did however accept that a period of “imprisonment, albeit suspended is within range”. If her Honour made that observation after allowance for the matters in the respondent’s favour, that may be so, but it is a matter I need not determine given the appellant’s position that she does not now seek that a period of actual incarceration be imposed.
  1. [63]
    However, it must not be thought that the appellant’s submission at first instance that a period of actual incarceration should be imposed was unattainable. The maximum penalty for the offence when the present circumstances of aggravation are charged is five years imprisonment, although the matter would have to be committed to this Court for sentencing if a term in excess of three year’s imprisonment was warranted. Depending on the actual conduct involved, it is usually an inherently serious offence for reasons earlier articulated. It would be an improper fetter on the sentencing discretion to consider that a period of actual incarceration could not properly be imposed, even where the offender has no prior convictions and even though s 9(2)(a) of the Penalties and Sentences Act 1992 applies.
  1. [64]
    The amount of the fine imposed at first instance was considerable, and in some way reflected the seriousness of the offending. Nonetheless, I accept that the sentence imposed does not properly reflect the seriousness of some of the offending, that it fails to recognise issues of general deterrence and community denunciation and that it fails to provide safeguards recognising the rights of others who will deal with the respondent in future to be aware of, at least some, matters relating to her integrity. The sentence imposed was manifestly inadequate in respect of some of the offences. Given the approach adopted by her Honour of imposing a single fine for all offences, as she was entitled to do, it becomes necessary to resentence for all offences, unless the “residual discretion” should be exercised in the respondent’s favour.
  1. [65]
    I accept that it is not appropriate occasion to exercise the residual discretion.[23] Given the position taken by the appellant in this matter, there is no chance that resentencing will result in the respondent being taken into custody after having been granted liberty at first instance. It will not change the fact that AHPRA and those responsible for the administration of the blue card system will assess her suitability on the facts of the matter, although I accept they may perceive some of the offending to be more serious than they otherwise would, but it will not change the underlying facts. Otherwise, it has not been shown how, or if, resentencing will affect her current employment or other aspects of her life. This is not a prosecution appeal where the appellant now seeks a sentence not sought at first instance and I consider it is a case where it is necessary to interfere not only to correct an erroneous sentence but to also achieve consistency in sentencing and illuminate the correct sentencing principles.[24] Accordingly I decline to exercise the residual discretion in favour of the respondent.
  1. [66]
    It therefore falls to me to exercise the sentencing discretion afresh. I consider the most objectively serious examples of the offending were counts 7 – 11 inclusive, 15, 18 and 20. They reveal a defect in integrity of such a nature that, in my view, others are entitled in the modern world of computerised record keeping, including that of personal records, to be aware of. They also evidence some determination and persistence on her part to achieve whatever was her motivation for that offending. By limiting the recording of convictions to those more serious offences the respondent will be afforded the, admittedly more limited, protection of lawfully denying conviction of those offences which, while serious in their own right, appear to have been committed for reasons bordering on fecklessness. AHPRA and those responsible for issuing blue cards will inevitably be aware of the whole range of offences anyway.
  1. [67]
    The issue however, as part of the instinctive synthesis of exercising the sentencing discretion, is to determine what is the appropriate sentence where the recording of a conviction is appropriate.
  1. [68]
    GHN is a very different case factually, and so of very limited assistance in terms of comparability. The single computer hacking offence occurred in the context of other offences concerning a contravention of a domestic violence order. In any event, the suspended sentences imposed in that matter need to be seen against the fact that he served 15 days on remand; a period that would have been more harshly served than others given he was a police officer.
  1. [69]
    In my view, the objectively more serious offences referred to above require the imposition of a period of imprisonment to give appropriate recognition to not only the objective seriousness of those offences, but also issues of general deterrence, community denunciation and protection of the community. That they will be wholly suspended reflects the appellant’s position on appeal, and matters related to the residual discretion on a prosecution appeal, and should not be seen as limiting the appropriateness of an actual period of incarceration at first instance, which is a matter I have not had to decide.
  1. [70]
    At first instance the respondent sought the imposition of a fine or community service. No contrary submission was made on this appeal in the event of interference, and the whole of the fine has been paid. In the outcome, a fine less than that imposed for the whole of the offending is appropriate for those charges which do not now attract periods of suspended imprisonment. In real terms, that will necessitate that some of that already paid be refunded.
  1. Costs
  1. [71]
    The offences, when charged with the circumstances of aggravation charged here are crimes,[25] and hence are indictable offences.[26] Accordingly, costs cannot be ordered.[27]
  1. Orders
  1. [72]
    My orders are as follows:
  1. 1.
    The respondent’s application to adduce further evidence is granted.
  1. 2.
    The appeal is allowed.
  1. 3.
    The sentence imposed in the Brisbane Magistrates Court on 10 February 2023 is vacated.
  1. 4.
    In its stead the following sentences are imposed:
  1. a)
    On charge number 7: Imprisonment for 12 months.
  1. b)
    On charge number 8: Imprisonment for 12 months.
  1. c)
    On charge number 9: Imprisonment for 12 months.
  1. d)
    On charge number 10: Imprisonment for 12 months.
  1. e)
    On charge number 11: Imprisonment for 12 months.
  1. f)
    On charge number 15: Imprisonment for 12 months.
  1. g)
    On charge number 18: Imprisonment for 6 months.
  1. h)
    On charge number 20: Imprisonment for 9 months.
  1. i)
    Those terms of imprisonment are to be served concurrently with each other.
  1. j)
    Those terms of imprisonment are suspended forthwith and an operational period of 12 months is imposed for each charge.
  1. k)
    Convictions are recorded on each of those charges.
  1. l)
    In respect of the remainder of the charges: a single fine for all offences of $5000 is imposed. Convictions are not recorded on those charges.
  1. m)
    As that fine has already been paid, it is unnecessary to make further orders that would ordinarily be made when a fine is imposed.
  1. 5.
    No order as to costs.

Footnotes

[1][2020] QDC 81, [18].

[2]Fox v Percy (2003) 214 CLR 118 at [22]-[25]; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at [43], [57]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47].

[3]Allesch v Maunz (2000) 203 CLR 172 at [23]; McDonald v Queensland Police Service, ibid.

[4](1936) 55 CLR 499, 504-505.

[5]House v The King (1936) 55 CLR 499, 505-506.

[6]House v The King, ibid; Norbis v Norbis (1986) 161 CLR 513, 518-519.

[7]Kentwell v The Queen (2014) 252 CLR 601, [35].

[8][2021] QCA 166.

[9]Punchard v Commissioner of Police [2020] QDC 211.

[10]Section 49 of the Penalties and Sentences Act 1992 (Qld).

[11](1936) 55 CLR 499, 505-506.

[12][2022] QDC 86.

[13]Section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld).

[14]Green v The Queen (2011) 244 CLR 462, [37] citing R v Borkovski (2009)195 A Crim R 1, [70].

[15]Charge 13.

[16]Charge 12.

[17]Section 2.3 of the Police Service Administration Act 1990 (Qld).

[18]Charge 16.

[19]Charge 18.

[20]Part of charge 20.

[21]Section 12(2) of the Penalties and Sentences Act 1992 (Qld).

[22]For example, R v Briese; ex parte Attorney-General [1998] 1 Qd R 487; R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467.

[23]Green v The Queen, supra at [43]; Commissioner of Police v Broederlow [2020] QCA 161, [35]-[39].

[24]Green v The Queen, supra at [37].

[25]Section 408E(2) of the Criminal Code 1899 (Qld).

[26]Section 3 of the Criminal Code 1899 (Qld).

[27]Section 232(4) of the Justices Act 1886 (Qld).

Close

Editorial Notes

  • Published Case Name:

    Commissioner of Police v Hurling

  • Shortened Case Name:

    Commissioner of Police v Hurling

  • MNC:

    [2023] QDC 157

  • Court:

    QDC

  • Judge(s):

    Byrne KC DCJ

  • Date:

    28 Sep 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Allesch v Maunz (2000) 203 CLR 172
2 citations
Jump To
Cite 1 - (2000) 203 CLR 172
Cite 2 - (2000) 203 CLR 172
Commissioner of Police v Broederlow(2020) 5 QR 296; [2020] QCA 161
2 citations
Jump To
Cite 1 - [2020] QCA 161
Cite 2 - [2020] QCA 161
Commissioner of Police v Punchard [2021] QCA 166
2 citations
Jump To
Cite 1 - [2021] QCA 166
Cite 2 - [2021] QCA 166
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
GHN v Commissioner of Police [2022] QDC 86
2 citations
Jump To
Cite 1 - [2022] QDC 86
Cite 2 - [2022] QDC 86
Green v The Queen (2011) 244 CLR 462
2 citations
Jump To
Cite 1 - (2011) 244 CLR 462
Cite 2 - (2011) 244 CLR 462
HBY v LAP [2020] QDC 81
2 citations
Jump To
Cite 1 - [2020] QDC 81
Cite 2 - [2020] QDC 81
House v The King (1936) 55 CLR 499
4 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Cite 3 - (1936) 55 CLR 499
Cite 4 - (1936) 55 CLR 499
Kentwell v The Queen (2014) 252 CLR 601
2 citations
Jump To
Cite 1 - (2014) 252 CLR 601
Cite 2 - (2014) 252 CLR 601
McDonald v Queensland Police Service[2018] 2 Qd R 612; [2017] QCA 255
2 citations
Jump To
Cite 1 - [2018] 2 Qd R 612
Cite 2 - [2018] 2 Qd R 612
Norbis v Norbis (1986) 161 C.L.R., 513
2 citations
Jump To
Cite 1 - (1986) 161 C.L.R., 513
Cite 2 - (1986) 161 C.L.R., 513
Punchard v Commissioner of Police [2020] QDC 211
2 citations
Jump To
Cite 1 - [2020] QDC 211
Cite 2 - [2020] QDC 211
R v Borkowski (2009) 195 A Crim R 1
2 citations
Jump To
Cite 1 - (2009) 195 A Crim R 1
Cite 2 - (2009) 195 A Crim R 1
R v Briese; Ex parte Attorney-General[1998] 1 Qd R 487; [1997] QCA 10
1 citation
Jump To
Cite 1 - [1998] 1 Qd R 487
R v Cay, Gersch & Schell; ex parte Attorney-General [2005] QCA 467
1 citation
Jump To
Cite 1 - [2005] QCA 467
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679
2 citations
Jump To
Cite 1 - (2016) 90 ALJR 679
Cite 2 - (2016) 90 ALJR 679

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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