Middis v Commonwealth Director of Public Prosecutions
[2024] QDC 125
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- Unreported Judgment
- Middis v Commonwealth Director of Public Prosecutions[2024] QDC 125
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Middis v Commonwealth Director of Public Prosecutions[2024] QDC 125
Middis v Commonwealth Director of Public Prosecutions[2024] QDC 125
DISTRICT COURT OF QUEENSLAND
CITATION: | Middis v Commonwealth Director of Public Prosecutions [2024] QDC 125 |
PARTIES: | THOMAS GREGORY MIDDIS (Appellant) v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (Respondent) |
FILE NO/S: | D2/23 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | Magistrates Court at Hervey Bay |
DELIVERED ON: | 9 August 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 September 2023 |
JUDGE: | LONG SC, DCJ |
ORDER: | The sentencing order of the Magistrate, on 7 February 2023, is confirmed. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE OF MAGISTRATE – where the appellant was sentenced to sixty hours of unpaid community service with the consequence that a conviction was recorded – whether the mandatory recording of a conviction rendered the sentence manifestly excessive – whether the sentencing discretion was vitiated by the Magistrate’s reliance on the prosecutor’s submission as to penalty – whether the Magistrate failed to take into account delay – whether the Magistrate allowed the principle of general deterrence to overwhelm the exercise of sentencing discretion – whether the Magistrate misapplied the test set out in section 19B of the Crimes Act 1914 (Cth) |
LEGISLATION: | Crimes Act 1914 (Cth) ss 16A, 17A, 19B, 20AB Criminal Code Act 1995 (Cth) s 135.1 Justices Act 1886 (Qld) ss 222, 223 Motor Dealers and Chattel Auctioneers Act 2014 (Qld) s 21, Schedule 3 |
CASES: | Aikman v Bourne (1992) 63 A Crim R 467 Barbaro v The Queen (2014) 253 CLR 58 Cobiac v Liddy (1969) 119 CLR 257 Commissioner of Taxation v Baffsky [2001] NSWCCA 332 Elzein v R [2021] NSWCCA 246 Matthews v The Queen [2014] VSCA 291 R v Hyatt [2011] QCA 55 R v L; ex parte Attorney-General [1996] 2 Qd R 63 R v Newton [2010] QCA 101 R v Phillips & Woolgrove [2008] QCA 284 Teelow v Commissioner of Police [2009] 2 Qd R 489 Weininger v R (2003) 212 CLR 629 |
COUNSEL: | B McKenzie on behalf of the Appellant L Ygoa-McKeown on behalf of the Respondent |
SOLICITORS: | KLM Solicitors on behalf of the Appellant Commonwealth Director of Public Prosecutions on behalf of the Respondent |
Introduction
- [1]Pursuant to s 222(2)(c) of the Justices Act 1886 (Qld), the appellant appeals against the sentence imposed upon him on 7 February 2023. The effect of that sentence was that the appellant was ordered to perform sixty hours of unpaid community service to be completed within twelve months of the order. It is not in contention that the result of such an order, made pursuant to s 20AB of the Crimes Act 1914 (Cth), entailed the consequence that convictions were recorded against the appellant.
- [2]It is convenient to first note the following circumstances:
- on 7 February 2023, the appellant was convicted on his own guilty pleas of three offences of dishonestly causing a risk of loss to Services Australia pursuant to s 135.1(5) of the Criminal Code Act 1995 (Cth). Those offences related to the false assertions made by the appellant, in the context of reporting as to his liability for child support, as to his income in three periods, with the total identified risk of loss being $19,962.76;
- on 6 December 2011, a child support case number was registered in respect of the appellant, his estranged wife and then one-year-old child:
- (i)on 10 April 2018, the appellant spoke by telephone with an officer of Services Australia, falsely stating that his expected taxable income for the 2017/18 year was nil, as he was supported by his father who paid his living expenses whilst he was studying. Accordingly, his child support liability was reduced from $8,531 to $1,390 per annum, for the period 10 April to 30 June 2018. In fact, the appellant was in that period in receipt of income from fulltime employment with the Department of Justice and Attorney General and Fraser Coast Motors Pty Ltd. The calculated loss put at risk was $1,421.41 and the maximum penalty for the offence was five years imprisonment and/or a $63,000 fine;
- (ii)on 3 July 2018, the appellant again spoke by telephone with an officer of Services Australia, again falsely confirming a nil 2018/19 income estimate, on the same basis. In fact, the appellant was in receipt of income from fulltime employment from Fraser Coast Motors Pty Ltd. His child support liability was accordingly reduced from $8,531 to $1,390, for the period from 3 July 2018 to 30 June 2019. The calculated loss put at risk was $9,312.68 and the maximum penalty for the offence was five years imprisonment and/or a $63,000 fine; and
- (iii)on 2 September 2019, the appellant again falsely stated, by telephone to a Services Australia officer, that his circumstances had not changed and that he had a nil income estimate for the 2019/20 year. Accordingly, his child support liability was reduced from $4,953 to $1,443 per annum, from 2 September 2019 to 30 June 2020. In fact, the appellant was in fulltime employment with Fraser Coast Motors Pty Ltd and Wide Bay Motors Pty Ltd and in receipt of income. The maximum penalty was 10 years imprisonment and/or a fine of $126,000.
- (i)
Because each offence was dealt with summarily, the jurisdictional penalty limits in respect of charges 1 and 2 was 12 months imprisonment and/or a $12,600 fine and in respect of charge 3, two years imprisonment and/or a $25,200 fine;
- between 26 June 2017 and 1 April 2018, the appellant received a fortnightly wage from the Department of Justice and Attorney-General, totalling $46,639.63. Between 3 April 2018 and 29 May 2020, the appellant’s income from fulltime employment with Fraser Coast Motors Pty Ltd totalled $188,506.10. From 1 June 2020 to 1 July 2020, the appellant’s income from fulltime employment with Wide Bay Motors Pty Ltd totalled $7,694.30;
- the appellant was aged between 28 and 31 years when the offending occurred and he had no other criminal history. He chose to participate in an interview on 10 March 2022 and it was acknowledged that he made full admissions as to his provision of false information to Services Australia in order to reduce his child support liabilities:
- (i)consistently with the oral and written advices to him in the context of the information that he provided to Services Australia, the appellant admitted that he was aware that his child support liabilities were calculated on the basis of how much he earned;
- (ii)he acknowledged that he knew at the time that what he was doing was wrong but expected a financial penalty and did not realise it was a criminal offence;
- (iii)he wanted to cause financial hardship to his ex-wife as she was making it difficult for him to gain access to his daughter; and
- (iv)he expressed remorse for his past action indicating that he had since got his life back on track with stable employment and a new family;
- (i)
- on 2 March 2023, the appellant filed a Notice of Appeal which raised a single ground of appeal, being that the sentence imposed was “manifestly excessive because it involved the mandatory recording of a conviction”. At the hearing of this appeal on 5 September 2023, the appellant was granted leave to instead rely on the following grounds of appeal:
- “(a)Ground 1: The mandatory recording of a conviction rendered the sentence manifestly excessive;
- (b)Ground 2: The sentencing discretion was vitiated by the learned Magistrate’s reliance on the prosecutor’s submission as to penalty;
- (c)Ground 3: The learned Magistrate failed to take into account delay;
- (d)Ground 4: The learned Magistrate allowed the principle of general deterrence to overwhelm the exercise of the sentencing discretion; and
- (e)Ground 5: The learned Magistrate misapplied the test set out in section 19B of the Crimes Act 1914 (Cth).”
- the appellant also sought leave to adduce further evidence relating to the prevalence of offending against s 135.1(5) of the Criminal Code Act 1995 (Cth); and
- although, by the time this appeal was heard, the appellant had completed his sixty hours of unpaid community service, he sought that the appeal be allowed and that he be re-sentenced to a recognisance under s 19B(1)(d) of the Crimes Act 1914 (Cth), being the only sentencing order provided under that Act which does not entail the recording of conviction.
- [3]Relevantly to the consideration of the grounds of appeal and as noted for the respondent, the reasons of the Magistrate given for the sentence that she imposed, demonstrated that in exercising her sentencing discretion, she had considered:
- the application of ss 16A, 17A and 19B of the Crimes Act,[1] and particularly the requirement for her to impose a sentence or make an order that is of a severity appropriate in all of the circumstances to adequately punish the offender;[2]
- the nature and circumstances of the three offences including that the appellant made dishonest declarations to Services Australia on three separate occasions,[3] and that the declarations were in the nature of deliberate lies of the appellant for a specific purpose of seeking to punish and/or force his ex-partner to comply with his request to see his daughter, thereby using his financial obligations to make child support payments to Services Australia as a weapon by which he tried to force the mother’s compliance;[4]
- that the appellant had pleaded guilty at an early point and had cooperated with law enforcement agencies;[5]
- that the appellant had demonstrated contrition by making reparation, with particular notation that he had obtained a loan in order to do so;[6]
- the appellant’s personal circumstances, including his age, employment history (including more recently with advancement on multiple occasions to employment in a position of significant responsibility),[7] that the appellant was otherwise of good character and well regarded with a general reputation for honesty,[8] and that the appellant had demonstrated good prospects of rehabilitation;[9]
- that the appellant had a partner of 10 years, a one-and-a-half-year-old child and an earlier child;[10]
- that personal deterrence was not a significant factor as the appellant was a mature man, with no criminal history and the offending having occurred some three to five years earlier,[11] and that despite the seriousness of the offending over an extended time period, the appellant was unlikely to reoffend or engage in dishonest behaviour in the future because the time period since the offending had resulted in the appellant maturing;[12]
- in respect of the contention of a risk that the appellant might lose his motor sales licence because of a conviction, there was insufficient evidence to find that the loss of licence would be a probable consequence of a conviction;[13]and
- that general deterrence was a significant consideration because similarly to the nature of social security fraud, the assessment process relies on the honesty of the applicant.[14]
The appeal
- [4]As I have previously observed, in respect of an appeal of the nature brought in this instance:[15]
- “[2]Such appeal is brought pursuant to s 222 of the Justices Act 1886 and pursuant to s 223 and, as is the case here, in the absence of the admission of any “new evidence”, is in the nature of a rehearing upon the record and more particularly the evidence adduced in the original sentencing proceedings. Notwithstanding the terms of s 222(2)(c), the reliance upon the expanded grounds of appeal is consistent with my earlier decision in Pullen v O'Brien [2014] QDC 92 and is indeed common practice in this Court.
- [3]In such an appeal, this Court is required to conduct a review of the sentencing hearing and ultimately correct any legal, factual or discretionary error of the sentencing Magistrate, determined on the basis of that review and this Court’s own conclusions.[16] Necessarily, regard must be had to the issues raised by the grounds of appeal.[17]
- [4]Moreover and in proper recognition that the appeal is brought in respect of the exercise of discretion by the sentencing Magistrate and consistently with established authority,[18] specific reference is made to the applicability of the well-known principles in respect of the ultimate identification of error in respect of a discretionary determination and in warranting intervention on appeal, as explained in House v R, [19] in the following terms:
‘The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.’
- [5]It may be noted that a sense of distinction between a ground alleging specific error and one alleging manifest excessiveness, as an allusion to the concept of a result being “unreasonable or plainly unjust”, was recognised in the plurality judgment in Hili v The Queen.[20] It was then observed:
- ‘[59]As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[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”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
- [60]The Court of Criminal Appeal also said that “manifest error is fundamentally intuitive”. That is not right. No doubt, as the Court went on to say, manifest error “arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it”. But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.
- [61]The applicants’ submissions criticising the sufficiency of the reasons given by the Court of Criminal Appeal pointed out that the Court of Criminal Appeal identified no specific error in the sentencing judge’s findings of fact or reasons. That is right, but because the only ground advanced by the Director was the ground of manifest inadequacy, it had to be assumed that the Director alleged no specific error. That the Court of Criminal Appeal identified no specific error is, therefore, unsurprising. The absence of identification of such an error does not bespeak error on the part of the Court of Criminal Appeal. The reasons given by the Court of Criminal Appeal for concluding that the sentences passed were manifestly inadequate sufficiently revealed the bases for that conclusion.’[21] (citations omitted)
And as Hayne J had earlier observed in AB v The Queen,[22] an appellate approach which seeks to contend for manifest excessiveness of sentence on the basis of identification of some specific error:
‘… wrongly melds two distinct contentions: that the judge made a specific error in sentencing and that although no specific error can be identified, the sentence was manifestly excessive’.
His Honour subsequently elaborated:[23]
‘As I have already said, the argument melds two radically different circumstances for appellate review of sentencing: specific error and manifest excess. Saying that a sentence is manifestly excessive is not the same as saying that a sentencing judge made a specific error in arriving at the sentence that is under consideration. To equate manifest excess and specific error is to invite appellate error and to obscure the true nature of appellate review of sentences. Unless the legislature has prescribed a fixed penalty, a judge sentencing an offender makes a discretionary judgment. Necessarily, then, judges may differ about the proper sentence to be imposed on the offender; there will be a range of possible sentences that could be imposed without error.
…..
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 below 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. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.’
And that distinction is also reflected in the following re-emphasis of established principle, in R v Pham:[24]
‘Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.’”
- [5]As has been noted, each of the grounds of appeal is directed at the Magistrate’s determination to sentence the appellant to perform community service pursuant to s 20AB of the Crimes Act 1914 (Cth), rather than proceeding pursuant to s 19B(1). It is convenient to set out the later provisions:[25]
“19B Discharge of offenders without proceeding to conviction
- (1)Where:
- (a)a person is charged before a court with a federal offence or federal offences; and
- (b)the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
- (i)the character, antecedents, age, health or mental condition of the person;
- (ii)the extent (if any) to which the offence is of a trivial nature; or
- (iii)the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:
- (c)dismiss the charge or charges in respect of which the court is so satisfied; or
- (d)discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
- (i)that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;
- (ii)that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
- (A)on or before a date specified in the order; or
- (B)in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs--by specified instalments as provided in the order; and
- (iii)that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.
- (ii)the manner in which he or she is dealt with had been a sentence or sentences passed upon that conviction.”
Ground 1
- [6]In dealing with the contention in Ground 1 that the sentence was rendered manifestly excessive because of the mandatory recording of a conviction, it suffices to note only the following. Having regard to the pertinent circumstances in this exercise of sentencing discretion, it could not be and was not contended that the sentence imposed was not an option reasonably open to the Magistrate, as an appropriate response to those circumstances. So much is clear from the written submission for the appellant, which stands in contrast to the principles extracted above, as to the distinction rather than confusion of contentions of specific errors in the exercise of sentencing discretion:
“The reasons underpinning the four grounds of appeal referred to above demonstrate that the learned magistrate misapplied several principles in sentencing the appellant. Those errors support a conclusion that the mandatory recording of a conviction rendered the sentence manifestly excessive.”[26]
- [7]Accordingly, there is no basis for any contention that the sentence imposed, as it recorded a conviction, was unreasonable or plainly unjust and ground 1 has not been established.
Ground 2
- [8]In respect of Ground 2 the contention is that the Magistrate fell into error because she allowed the prosecutor’s submission to influence her, thereby vitiating the exercise of sentencing discretion, because the Magistrate:
- specifically stated that she was persuaded by the prosecutor’s submission that a period of community service was appropriate;[27] and
- did not expressly state or make clear that she did not take the prosecutor’s submission into account or that she had reached such conclusion independently of that submission.
- [9]The prosecutor’s submission to which this ground is directed was in terms that:
“…a community service order imposed by way of section 20AB of the Crimes Act would appropriately reflect the criminality alleged across the charges.”[28]
- [10]
“It is neither the role nor the duty of the prosecution to proffer some statement of the specific result which counsel then appearing for the prosecution (or the Director of Public Prosecutions or the Office of Public Prosecutions) considers should be reached or a statement of the bounds within which that result should fall.”[30]
- [11]Reference is also made to Matthews v The Queen,[31] where it was observed, in reference to the application of the statements made in Barbaro, that:
“…a quantified range submission will not vitiate the sentencing discretion unless it can be demonstrated that the sentencing judge was influenced by the submission in arriving at his or her sentence”.[32]
- [12]The appellant’s submission is that the Magistrate fell into error in the exercise of the sentencing discretion because she allowed the prosecutor’s submission to influence her. That contention is submitted to be demonstrated by two circumstances:
- [13]As the respondent’s submissions point out, although the result in Matthews was unanimous, the difference between the majority and minority judgements is only to be found in respect of the majority conclusion that a submission as to penalty range was not of itself an irrelevant consideration, despite the decision in Babaro. As is otherwise apparent from the passage upon which the appellant relies, the view of the whole of the court was that the mere receipt of such a submission does not of itself lead to a conclusion that the exercise of sentencing discretion had miscarried.[35] The respondent also refers to the following view expressed in the majority reasons:
“… it appears that apart from proscribing the submission of a quantified sentencing range, Babaro has not changed any of the pre-existing practice. Nothing said in Babaro detracts from the Crown’s obligation to make clear what type of sentencing disposition, whether imprisonment or otherwise, it contends is necessary or appropriate. It remains that the Crown is required to make its submissions as to sentence fairly and in an even-handed manner. It has a duty to assess the sentencing judge to avoid a palpable error. That includes making an adequate presentation of the facts, identifying any aggravating features and admitting any mitigating features, fair testing of the offender’s case, correcting any error of fact which emerges in the course of the plea and drawing attention to the offender’s antecedents including any sentence of imprisonment currently being served. The Crown’s duty also extends to making appropriate submissions on relevant questions of law, including statutorily prescribed maximum penalties, principles of sentencing reasonably thought to be applicable and comparable and other relevant cases. If it is submitted for an offender that he or she should receive a non-custodial disposition or a suspended term of imprisonment, the Crown should make clear whether it contends, and if so why, a disposition of the kind proposed would not be a proper exercise of sentencing discretion.”[36]
- [14]Relevantly, it is then submitted for the respondent that the prosecutor, properly made submissions regarding what type of sentencing disposition was contended to be necessary or appropriate having regard to the relevant factors and authorities, including that:
- there were penalties other than imprisonment which would be appropriate in the circumstances of this case, consistently with the application of s 17A of the Crimes Act;[37]
- a community service order imposed pursuant to s 20AB of the Crimes Act, would appropriately reflect the criminality alleged across the charges, without any further attempt to quantify an appropriate number of hours of community service;[38] and
- a discharge without conviction pursuant to s 19B of the Crimes Act would not be, in the circumstances, an appropriate penalty.[39]
- [15]It is also noted for the respondent that the Magistrate made specific enquiry about other sentencing options including:
- in respect of a fine with the prosecutor submitting that such an option would not appropriately reflect the criminality of the matter;[40] and
- that the defendant’s proposition combining a good behaviour bond with probation was permissible;[41] and that the Magistrate could impose probation as a condition of a good behaviour bond without conviction or as a probation order with a recorded conviction.[42]
- [16]The respondent appropriately points to the indicia of the careful consideration of this matter, by the Magistrate, including standing down to consider the sentence to be imposed and, in summary, submits that this ground should fail because the prosecutor made appropriate submissions as to the sentencing disposition, not in contradiction of the principles stated in Barbaro; and in any event the Magistrate was not thereby influenced such that the sentencing discretion was vitiated.
- [17]It is unnecessary to dwell on the first contention, in circumstances where not only was there no objection raised in respect of the prosecutor’s submission but the appellant’s legal representative before the magistrate expressly adopted such an outcome as an appropriate alternative to his main contention that the Magistrate would apply s 19B of the Crimes Act.[43] This is because the second contention adopts the import of the passage from Matthews which is relied upon for the appellant, in focussing on what the Magistrate did in determining the appropriate sentence. Such an approach has been twice adopted, by the Queensland Court of Appeal, in reference to that passage in Matthews.[44] In the later instance, reference was also made to the view expressed in what has been referred to as the minority judgement in Matthews, which included the following:
“Mere receipt of a submission as to range does not of itself lead to the conclusion that the exercise of the sentencing discretion had miscarried. It is only if it can be discerned that the judge has acted on the submission in a manner that has influenced the sentencing result that sentencing error is demonstrated.”[45]
- [18]Although and has been noted, the appellant’s contention is that the Magistrate has specifically stated that she was persuaded by the prosecution’s submission that a period of community service was appropriate,[46] neither of the passages referred to bear out that contention. The Magistrate’s express statement in her sentencing remarks was:
“I am persuaded that I ought to offer you the opportunity to engage in community service.”
This came after the Magistrate had given reasons why she was not persuaded to sentence the appellant pursuant to s 19B of the Crimes Act and as to the application of the principle or purpose of general deterrence in sentencing the appellant (each topic being the subject of separate grounds of appeal). Not only is this statement expressed more broadly than merely in acceptance of the prosecution submission, it must in any event, be viewed in the context of what has been noted as to the acceptance of the appellant’s legal representative before the Magistrate, of the appropriateness of a community service order, if the contention as to the application of s 19B was not accepted.
- [19]No relevant error in the exercise of the Magistrate’s exercise of sentencing discretion has been demonstrated under this ground.
Ground 3
- [20]In Ground 3 it is contended that the Magistrate failed to take in to account delay. Reference is made to the principles noted in R v L; ex parte Attorney-General,[47] in the context of noting that:
- the appellant was sentenced for offending which occurred on 10 April and 3 July 2018 and 2 September 2019;
- during a telephone call on 2 September 2019, he told Services Australia that he wanted to clear the child support liability he owed;
- no investigation commenced until 28 June 2021;
- there was a delay of almost twelve months before the appellant was sentenced, after the interview conducted on 10 March 2022, which he was invited to participate in on 1 March 2022 and in which he made full admissions to his offending; and
- apart from reliance on the mitigating effect of the appellant’s attention to his rehabilitation prior to sentence, in this Court, reliance is placed upon the appellant’s own letter, tendered as exhibit 2, in which he wrote:
“… this process has been a particularly difficult one for me. I’ve been spending my nights wide awake replaying things in my mind and even have myself in disbelief that I would make a decision so poor …”
- [21]In the first instance and as pointed out for the respondent, no specific reference was made to the application of the principles to be drawn from R v L; ex parte Attorney-General, in the submissions made to the Magistrate. Further, for the respondent, it is pointed out that in the telephone call on 2 September 2019, the appellant’s comment that: “I pay $225 a month or something but I wanted to up that to clear the debt”, was not made in the context of any indication that the appellant was under investigation or to be prosecuted. It must necessarily also be viewed in the context that it was in this telephone call that he otherwise committed the third offence, by falsely stating his income for the purpose of the assessment of his child support payments.
- [22]More particularly and as also contended for the respondent, there is no identified delay that resulted in relevant unfairness to the appellant. In R v Phillips & Woolgrove,[48] reference made to the principles established in R v L; ex parte Attorney-General, as follows:
“In R v L; ex parte Attorney-General … this Court held that the lapse of time between the commission of the offence and the imposition of sentence should ordinarily not be a mitigating factor in the sentence unless that delay had resulted in some unfairness to the offender. The principle was expressed in terms which required the offender to discharge a burden of proof that the unfairness complained of existed and was caused by a "failure to prosecute his case more quickly". The Court gave two examples in which there might be such unfairness which should be held to mitigate the sentence that otherwise would have been imposed. The first example was where delay between the date of apprehension of the offender (or the first indication to the offender by the authorities of a likely prosecution) and the day of the sentence resulted in the offender having had his liberty curtailed or his reputation called in question or, at least, being left in a state of uncertainty caused by a failure to prosecute his case more quickly. The second example given by the court was where the time between commission of the offence and the sentence was sufficient to enable the court to see that the offender had become rehabilitated or that the rehabilitation process had made good progress.”[49]
Then and after noting the effect of some other authorities, including in acknowledgement that the delay must not be attributable to the offender, and in rejection of the prosecution contention that the effect was the necessity to identify delay due to prosecution fault, it was determined:
“I do not accept that view of the authorities. In R v L; ex parte Attorney-General of Queensland, this Court left open the possibility of mitigation attributable to a lengthy delay between commission of an offence and sentence involving general notions of fairness. Of course there must be an excessive delay before the principle applies. But in my opinion, where an offender bears no responsibility for excessive delay in sentencing which was productive of unfairness to the offender, that delay may be taken into account whether or not it was attributable to any fault on the prosecution side.”[50]
Accordingly, and in the circumstances of this matter, it is entirely unsurprising that no particular attention was paid to these particular principles in the proceeding below.
- [23]Otherwise, it is clear that the Magistrate properly considered what had occurred since the time of the offending conduct, in sentencing the appellant and in acceptance of the mitigating effect of the evidence of his rehabilitation and that he was unlikely to reoffend.[51]
- [24]It has not been established that there has been any significant error by the Magistrate in not having regard to the principles of R v L; ex parte Attorney-General of Queensland or in otherwise dealing with the consequences of any delay in the prosecution of the appellant.
Ground 4 and application for leave to adduce new evidence
- [25]It will also be convenient to deal with the application for leave to adduce new evidence here, as it particularly relates to the consideration of Ground 4.
- [26]In respect of this ground the initial focus is upon a contention of error in the Magistrate’s acceptance of the prosecution submission that the offending here “could be likened to social security fraud”.[52] An initial difficulty is that this is not the expressed focus of the ground, which is expressed to be in terms of the Magistrate allowing “the principle of general deterrence to overwhelm the exercise of sentencing discretion”. In any event, it is discernible that there is a sense of misconception of both the prosecution submissions and more importantly the approach adopted by the Magistrate.
- [27]Relevantly the prosecution submission was first made in the following terms:
“… given the nature of the conduct being the provision of false information or the failure to provide information as required to a government agency for the proper calculation or (sic) liabilities or entitlements, some analogy can be drawn with a social security type of offending, insofar as sentencing principles to be applied. On that basis, it is submitted that offending of this kind should be viewed seriously, because it is easy to commit and the system relies largely on the extent of honesty of its participants to function effectively. As such, sentences that promote both personal and general deterrence are called for. Balanced, of course, against the circumstances of each individual case.”[53]
Later and in reference to the Magistrate’s attention being drawn to the decision in Aikman v Bourne,[54] a single judge decision upon an appeal to the Supreme Court of Tasmania, against the decision of a Magistrate to sentence in respect of offending pursuant to s 1347(b) and (d) of the Social Security Act 1991 (Cth), by dismissing those charges pursuant to s 19B(1) of the Crimes Act, the prosecutor drew attention to the ultimate conclusion in that decision as to the lack of reflection of the seriousness of the type of case.[55] The prosecutor may be noted to then agree with the Magistrate’s enquiry that:
“So that’s the effect of this … is that one really has to look at the principle of general deterrence in assessing the punishment that’s just in all of the circumstances”.[56]
- [28]It may be noted that in Aikman v Bourne,[57] specific reference is made, in dealing with the notion that “offences involving social services fraud are serious”, and that such offences:
“Called for a deterrent penalty and the expediency of adopting a course involving the dismissal of the complaint having regard to the factors mentioned in s 19B still had to be judged in the light of their seriousness”.
- [29]Secondly, there is attention drawn to the following observations of the Magistrate,[58] which are to be noted as occurring after her expression of dissatisfaction as to the potential application of s 19B:
“In reaching this conclusion, I’ve had regard to the authority of R v Newton [2010] QCA 101. It’s not the same charge as the charges that are before the Court today. But it was a relevant statements (sic) of principle by the higher courts with regards to the importance of ensuring that these types of offences that rely in part upon the honesty of the people who are subject to the assessment processes are treated with significant (sic) and weight by a Court and condone (sic) punishment is imposed. His Honour Justice Chesterman commented, and again, it wasn’t similar – it wasn’t the same charges that are before the Court. But in relation to the social security system, which is akin to this, there is a necessity to consider that:
‘Those who intentionally abuse the system to gain substantial benefits by their dishonesty must expect, now, in this case, to be sent to prison as a deterrent to them and others who feel similarly tempted. It may be that one aspect of the need for general deterrence is now less important than it was formerly in the case of those, who like the applicant, offend by fraudulently concealing income earned in their own names. The program of data matching between Centrelink and the Australian Tax Office is now more likely to detect those unlawfully claiming social security benefits while in paid employment. However, the data matching program will not inexplicably catch all offenders. Centrelink’s resources, ‘do not allow for all matched cases to be reviewed’.
There is also the point that honest discrepancies and description between the taxpayer, who is also a recipient, will have the result that no match will be detected. Accepting, that there is now a greater likelihood of detention than before, and to that extent the need for deterrence is diminished, it still remains a significant factor in the sentencing discretion. The certainty of being detected in the commission of the offence is not in itself a deterrent if the penalty imposed does not outweigh the benefit gained from the offence. The gain must not be worth the candle. The penalty must persuade those tempted to defraud the Commonwealth that any benefit will be offset by a greater affliction.”
And that is a relevant consideration in sentencing you today. That is, the message must be sent to other like-minded people who are bound by child support assessments, that the penalty that is imposed by the Court has sufficient weight so that the gain is not worth the candle.
I have had regard to those statements of principle in sentencing you. I am persuaded that I ought today to offer you an opportunity to engage in community service.”[59]
- [30]As is clear from what has been extracted from the Magistrate’s reasons above,[60] she did not act upon any analogy of likening of the circumstances of the appellant’s offending to offending in the nature of “social security fraud”, as such. Rather she accepted and acted upon a much more limited proposition of recognising that some substantial weight should be given to the achievement of general deterrence in sentencing the appellant, because of the primary reliance of the child support assessment system upon the honesty of those involved in it to report their circumstances, so as to enable a proper and lawful assessment of any liability for such payment.
- [31]In the context of the appropriate concession made for the appellant as to the relevance of general deterrence to this sentencing exercise, it is also clear that this was an appropriate line of reasoning, as drawn from observations made in dealing with social security fraud type cases, in exemplification of why the consideration of general deterrence was not only relevant to this type of offending but also deserving of some significant weight. Further and realistically here and as is plainly clear from the Magistrate’s reasons, the particular relevance of this consideration is to be found in the Magistrate’s determination as to the inapplicability of s 19B of the Crimes Act (which determination is separately the subject of Ground 5).
- [32]Accordingly, there is no need to dwell upon the more specific contentions for the appellant in respect of distinguishing features of social security fraud type offending or more generally as to reliance upon comparison with sentences in respect of different offences,[61] except to note the further misconception that the Magistrate formed and acted upon a view as to the prevalence of the type of offending with which she was dealing. Not only is there the absence of any specific reference of the Magistrate to prevalence of the type of offending, neither is this a connotation to be found in the appellant’s reference to the passage where the extracted reasons in reference to the Newton decision is to be found.[62] Neither is such a reference to be found in the submissions of the prosecutor to the Magistrate. To take the example of a passage to which the appellant refers, the prosecution submission was:[63]
“… given the nature of the conduct being the provision of false information or the failure to provide information as required to a government agency for the proper calculation or (sic) liabilities or entitlements, some analogy can be drawn with a social security type of offending, insofar as sentencing principles to be applied. On that basis, it is submitting that offending of this kind should be viewed seriously, because it is easy to commit and the system relies largely on the extent of honesty of its participants to function effectively. As such, sentences that promote both personal and general deterrence are called for. Balance, of course against the circumstances of each individual.”[64]
- [33]Those observations are sufficient to deal with the application made for leave to adduce new or additional evidence pursuant to s 223(2) of the Justices Act. That is in the sense that there are no special grounds established for giving such leave, in circumstances where it is sought so as “to adduce further evidence relating to the prevalence of offending against section 135.1(5) of the Criminal Code Act 1995 (Cth)”.[65]
- [34]Accordingly, there is also no need to consider the respondent’s argument as to the inutility, to the appellant’s contention, of the statistical information relied upon as extracted from material published by the Commonwealth Director of Public Prosecutions.
- [35]Whilst it may have been preferable for the Magistrate to have brought to the attention of the parties her intention to rely upon the passage she referred to in the Newton decision, there has been no error of the kind identified in R v Kitson.[66] As reference to the passage relied upon by the appellant demonstrates, the concern is with a judicial officer not bringing to the attention of the parties an “aspect of the sentence” which is “unusual” and “was not sought or contemplated in the submissions of either party”.
- [36]As is clear from the discussion above, the Magistrate’s approach, including her reliance upon the particular passage from Newton, was appropriately consistent with the submission made by the prosecutor below. It is not to be discerned that there was any error, in terms of denial of procedural fairness or otherwise, in her reference to the particular passage.[67] This passage is taken from a judgement which is a “minority decision” only in respect of the outcome of that appeal. There is no discernible differentiation in respect of the statement of principle in recognising the importance of general deterrence, in what is referred to in the “majority judgement”.[68] For the reasons already set out, there is no discernible failure of the Magistrate to act, as further observed in the “majority judgement” in appropriately balancing the need for deterrence “against the circumstances of the offender”.[69]
- [37]Further, it is not, in this context, established that the Magistrate has erred in allowing the principle of general deterrence to overwhelm the exercise of her sentencing discretion or more particularly (subject to the consideration of ground 5) erred in taking into account general deterrence as a particular consideration in her decision as to whether to act pursuant to s 19B of the Crimes Act. Rather and as contended for the respondent,[70] a fair reading of the sentencing remarks, as a whole, indicates some careful attention to and balancing of the considerations relevantly arising, in order to make an order that she considered to be of a “severity appropriate in all of the circumstances of the offence”, as was required by s 16A of the Crimes Act.
Ground 5
- [38]The generality of the fifth stated ground of appeal, is supplemented by the approach of the appellant in contention of error by the Magistrate in respect of what is further contended to be the two limbs of the test required pursuant to s 19B(1) of the Crimes Act. In Commissioner of Taxation v Baffsky,[71] there is reference to there being two stages to the application of the test in s 19B(1)(b), but nevertheless it is ultimately a conclusion as to whether it is appropriate to engage the provided powers, having regard to the relevant matters to which regard may be had, which is the critical determination. In the Baffsky decision,[72] it is noted that the scope of the relevant considerations is determined by reference to s 16A of the Crimes Act, including, importantly, the express reference to s 19B(1) in s 16A(3):
“(3) Without limiting the generality of subsections (1) and (2), in determining whether a sentence or order under subsection 19B(1), 20(1) or 20AB(1) is the appropriate sentence or order to be passed or made in respect of a federal offence, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order."
- [39]It is convenient to set out the reasons of the Magistrate in respect of her conclusion as to not applying s 19B(1) (as they were stated immediately before the passage set out above, in reference to the Newton decision):
“…your solicitor has asked me to give consideration to dealing with you under section 19B, that is, to deal with you without proceeding to conviction and either order your discharge, dismiss the charges or make an order that you be released on good behaviour with or without a further condition that you undertake probation. That is a mechanism by which the Court could exercise its discretion not to record a conviction against you.
To make an order under those provisions, I must be satisfied that section 1 is enlivened. I must be satisfied that in relation to the charges that, having regard to the character, antecedents, age, health and mental condition of you, the extent to which an offence is trivial and the extent to which the offence was committed under extenuating circumstances, it is inexpedient to inflict any punishment or inflict any punishment other than nominal punishment or that it is expedient to release the offender on probation.
Whilst I accept that under section 19B(1)(b)(i), your character and antecedence (sic) weigh heavily in your favour, I’m not persuaded that the other balancing considerations under the Act enliven my discretion to act to your benefit and not record a conviction. I’m not persuaded only nominal or trivial punishment should be imposed for these offences when one has regard to the seriousness of your conduct. There can be no doubt that such offending is serious, that the Court must have regard to the nature of this offence. It was three charges, the maximum penalties for which have been read into the record, which arose from your dishonesty in meeting your obligations to Services Australia to provide a full and frank recitation of your income.
There were no extenuating circumstances that place your position outside of or make it novel, as compared to any other person who had a liability to make child support at the time. It is fundamental to child support that it generally arises as a result of the breakdown of a relationship. There are often quite inappropriately parental disputes and there is nothing about your circumstances that mean that there is a special consideration that should apply to your dishonesty in this circumstance. So I’m not persuaded then that, having regard to the limits of the test, [indistinct] inexpedient to include any punishment on you. Nor am I satisfied that it’s inexpedient to inflict any punishment other than normal punishment. Nor am I satisfied that it’s inexpedient to release you on probation.”[73]
- [40]In the first instance and despite the Magistrate’s use of the conjunction “and” rather than “or”, in her recitation of the statutory prescription,[74] it is not apparent, as is contended for the appellant, that she wrongly acted upon any presumption that all three of the matters to which regard might be had pursuant to subparagraphs (i) to (iii) of s 19B(1), were required to be satisfied or that the exercise of her sentencing discretion was so erroneously fettered or affected.
- [41]Neither are either of the further submissions for the appellant to be accepted, in that it is contended that:
- because the Magistrate accepted that the appellant’s character and antecedents weighed heavily in his favour this “provided sufficient ground to then consider whether it would be expedient to extend the leniency of not recording a conviction”,[75] and
- the Magistrate erred in finding that the offending was not committed under extenuating circumstances.
- [42]In short, the later consideration is not necessarily determined by the contention that the appellant was not motivated by greed or that a causative feature of the offending “was the appellant’s desperation to resume contact with his young daughter with whom he had been estranged”.[76] Neither is there any assistance to be obtained from reference to the confirmation in another case that the particular circumstances there, warranted a conclusion to the effect that the stress of that offender’s situation had impacted upon thought processes such as lead that offender to act in an uncharacteristic way.[77] In any event and as was noted in that decision:
“It is apparent that opinions may differ as to the strength of the extenuating circumstances identified in a particular case, including this case.”
- [43]Here and as has already been discussed it was not in issue that it was appropriate for the Magistrate to give weight to considerations of general deterrence and it is apparent that ultimately and appropriately the Magistrate identified and acted upon the more objectively identified circumstances of the appellant’s offending, on three separate occasions, in determining the test as to the application of s 19B(1). In doing so, it is discernible that she made clear her determination that in addition to what could be identified as the appellant’s favourable personal circumstances and antecedents, there were no other circumstances of a kind described in sub-paragraphs (ii) or (iii) which warranted the conclusion demanded by s 19B(1), as to the engagement of any the powers provided.
- [44]In any event, the following submissions for the appellant move to what are contended to be “fundamental errors” of the Magistrate in relation “to her misapplication of the second limb of the test”.[78] However, none of these contentions are made out.
- [45]First there is the following submission:
“the learned Magistrate confused the factors to be taken into account under the second limb of the test. The remarks reveal that she relied on the matters set out in section 19B(1)(b)(ii) and 19B(1)(b)(iii) of the Crimes Act 1914 (Cth) to justify her conclusion that the second limb of the test had not been satisfied. That was an error because the second limb required consideration of, inter alia, the matters set out in section 16A of the Crimes Act 1914 (Cth).[79]
Whilst this is the passage to which reference has been made in respect of understanding that the Magistrate did not find the applicable test to be engaged, including in respect of having regard to any consideration arising under s 19B(1)(b)(ii) or (iii), it is tolerably clear that her reference to not being “persuaded that the other balancing considerations under the Act enliven my discretion to act for your benefit”, indicate the Magistrate’s apt attention to the requirements of the sub-section, as to being persuaded of the relevant inexpediency or expediency, so as to appropriately engage any of the available powers. As was observed in Commissioner of Taxation v Baffsky (in particular reference to the decision in Cobiac v Liddy[80]):[81]
“The joint judgment in Cobiac v Liddy establishes that the list of relevant considerations for determining the issue of “expediency” is broader than the list of matters specifically listed as factors to which the court must have regard.
The breadth of the discretion is confirmed in the judgment of Windeyer J where his Honour said, at 276:
… the magistrate must be of opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition. One of these by itself, or several taken together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the State statute permits. The Act speaks of the court exercising the power it confers ‘having regard to’ the matters it states. I read that as meaning more than merely noticing that one or more of them exists. Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence.”
- [46]It is next contended, in this context, that the prosecution was not correct in submitting that:
“… the enlivening of the second limb of the test would require ‘a substantial case to be made out, that the offender would be significantly disadvantaged beyond the average person’s situation by the fact of recording a conviction’ ...”[82]
And further that the Magistrate then “confused the ‘probable effect’ test set out in section 16A(2)(p) of the Crimes Act 1914 (Cth) with the standard of proof required to find that a recorded conviction would adversely affect the appellant”, leading to “insufficient weight being placed on the impact of a recorded conviction”.[83]
- [47]In part, these submissions are directed at the following passage in the Magistrate’s reasons:[84]
“I have been asked to give consideration to the risk that you may lose your employment or your motor vehicle licence as a consequence of any conviction being recorded against you. I am not persuaded that the evidence currently before me is sufficient to enable me to make a finding that it is probable that you would lose your motor sales licence or the licence by which you are enabled to continue in your employment as a sales manager. There may be some risk of it, but the test is set out under the Crimes Act is that I must consider the probable effect, and I do not have before me any evidence in relation to the probable consequence of any conviction being recorded against you, although I accept it is a life risk, and it is a consideration for the Court.”
- [48]These submissions are not assisted by the reference which is also made to Weininger v R[85] as the issue here was not as to how a relevant consideration may have been established in the sentencing but rather as to what was actually established in what was placed before the Magistrate. In short, there may be observed to be an obvious distinction, in terms of attribution of weight, in the consideration of issues arising pursuant to s 19B(1), to be drawn in respect of a risk as to the impact flowing from a recorded conviction as opposed to the probability of such an impact.
- [49]Quite apart from what has already been noted as to the difficulty in terms of addressing the House v The King principles in terms of the submission that the approach of the Magistrate “led to insufficient weight being placed on the impact of a recorded conviction”, the effective point being made by the Magistrate was the absence of establishment of anything other than a risk of some such impact. Moreover, it may be noted that the Magistrate raised, in the hearing, her concerns as to the generality of or lack for lack of support for propositions being put to her.[86] It may be noted that the submission made to the Magistrate was first in the following terms:
“Well, the difficulty, your Honour, is that there’s nothing I could gather from Fair Trade – Office of Fair Trading, who govern, obviously, motor traders. But the licence is no different to real estate or, to a degree, a legal licence. You are required to be of good character and you’re required to advise of any conviction in the preceding 12 months as you – every – annually renew your licence. Because it is a good character test, it is anticipated, and that’s obviously he will have appeal rights –
…
– through that process, but, at first instance, the advice from Fair Trading will be that he will have his licence at least suspended with a show cause notice, and in the circumstances, if that ultimately is the outcome of the Office of Fair Trading, he will lose the ability to work in that industry. Now, in my submission, that is a matter that limb 2 does encapsulate, because it’s not the fact of recording a conviction for – there for the community’s purpose to – and somehow recognise or punish or forewarn an employer. You are, at the present, have an employer who’s received full and frank disclosure from my client and clearly doesn’t believe any differently of his character. But, ultimately, here, the irony of the potential recording of a conviction will be, not only does it financially punish his current family, but it will, by default, punish the child and his ex-partner because of that loss to employment.”[87]
And even after the Magistrate expressed her concerns as to the basis of it, the submission remained only in terms of risk and speculation, as follows:
“…he’s manage to not just – he can survive in a – in a new industry that he’s moved into but he’s excelled and been promoted and all of that is a substantial risk, with a conviction being recorded and – and arguably, as indicated, whether it’s accepted or not – if that employment is lost, it will have a detrimental impact on his child who is the subject of the child support because inevitably, whether he is then forced onto Centrelink or a lesser paying job, that will have a direct impact on the very people that his offending, at first instance, has led him here.”[88]
It may be observed that the contextual references in these submissions to potential impact upon members of the appellant’s family, may go some way towards explanation of what has been perceived to be some conflation by the Magistrate of the test in s 16A(2)(p) of the Crimes Act.[89] However, that does not materially detract from the essential observations as to the effective point being made by the Magistrate as to the situation as presented to her in terms of identified risk and the competing considerations which she properly took into account.
- [50]The submission for the appellant was sought to be further advanced in this Court, by reference to s 21(1)(b) and Schedule 3 of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) as follows:
“The effect of this error was significant because the legislation governing motor salesperson registration certificates provides that a person with a recorded conviction for offending of this kind is not suitable to hold a licence.”[90]
- [51]That submission is problematic in some respects, which tends to exemplify the problem which lay at the root of what the Magistrate was seeking to explain:
- (a)the particular focus is upon s 21, as it relevantly provides:
- (a)
- “21 Suitability of applicants and licensees—individuals
- (1)An individual is not a suitable person to hold a licence if the individual—
….
- (b)has been convicted, in Queensland or elsewhere, within the preceding 5 years of a serious offence; or
….
- (2)An individual who is not a suitable person can not hold a licence.”
However, and noting the reference to “motor salesperson registration” in the submission, it is to be noted that in Schedule 3, “licence” is defined as meaning “a motor dealer licence or a chattel auctioneer licence”. That schedule also provides separate definitions for the terms “motor dealer licence” and “motor salesperson”, with the later term being relevantly defined as generally meaning “a person who holds a registration certificate as a motor salesperson”;
- (b)there are, however, provisions in Part 5 of the Motor Dealers and Chattel Auctioneers Act, which apply to the registration of motor salespersons, in the first instance as to making application for such registration and also pursuant to s 169(2), in respect of any application for renewal of such registration. The essential point to be noted is that no such registration or renewal of registration is permitted unless the chief executive is satisfied the applicant is a suitable person to obtain the registration and there is, relevantly, the following provision which informs any such determination:
- “157Suitability of applicants
- (1)A person is not a suitable person to hold a registration certificate if the person is—
- (a)a person who has been convicted, in Queensland or elsewhere, within the preceding 5 years of a serious offence; ….
- (2)An individual who is not a suitable person can not obtain registration as a motor salesperson.”;[91] and
- (c)it is to be noted that there is also a definition in Schedule 3 of the meaning of “conviction”, in the following terms:
“conviction includes a plea of guilty or a finding of guilt by a court, but does not include a plea of guilty or a finding of guilt by a court if no conviction is recorded by the court.”
And also a definition of “serious offence”, which apart from reference to various type of offences including “an offence involving fraud or dishonesty”, has a limiting factor in reference to “any of the following offences punishable by 3 or more years imprisonment”.
- [52]The assumption which may not be warranted here, is that such limitation in the definition of “serious offence” is to be determined by reference to the maximum penalty attaching to an offence under s 135.1(5) of the Commonwealth Criminal Code, rather than to the limitation of penalty having regard to the summary disposition of the matter before the Magistrate.
- [53]In any event and in understanding that the submission pressed for the appellant is in terms of the impact of a recorded conviction upon the appellant, the position otherwise remains, as it was before the Magistrate, in terms of identification of risk of not being able to renew or continue to hold any relevant licence held by the appellant,[92] without any meaningful explanation as to how the future employment of the appellant depended upon his holding any such licence or as to any other alternatives that may be open to him. In the context of the recognition of that risk by the Magistrate and, as was open to her, her findings in respect of countervailing considerations, in the full circumstances relating to the appellant’s offending and in determining a penalty of appropriate severity to that offending, it is not to be concluded that any error has been identified in her ultimate conclusion as the inapplicability of s 19B(1) or that it has otherwise been identified, in this Court, upon a review of that exercise of sentencing discretion, that there is any basis for interfering it.
- [54]Finally, it is further contended that the Magistrate erred in providing “no reasons as to why it was not expedient to release the Appellant on probation under s 19B(1)(d)(iii)”. Apart from reference to Teelow v Commissioner of Police[93] and R v Hyatt,[94] reliance is placed upon Elzein v R,[95] to contend that “it was incumbent on the learned Magistrate to provide reasons as to why she was not of the opinion that it was expedient to release him on probation”.
- [55]Whilst it may be accepted that a failure to comply with the judicial duty to provide reasons for a determination, may constitute an appealable error in respect of an exercise of sentencing discretion, as noted in Elzein:
“The extent of the duty will depend upon the circumstances of the individual case. In that regard, Mahoney JA said in Soulemezis:
‘... In my opinion, it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them.’”[96]
- [56]The proposition advanced for the appellant is too narrow, even if it is considered in an isolated respect, in reference to the ultimate baldness of the Magistrate’s assertion; “Nor am I satisfied that it’s inexpedient (sic) to release you on probation.[97] The question was not about the expediency of releasing the appellant on probation, in itself.[98] Rather and as the Magistrate correctly recognized the appellant’s contention as to the engagement of s 19B(1) was as “… a mechanism by which the Court could exercise its discretion not to record a conviction …”.[99] Further and as the Magistrate accepted in respect of the appellant’s personal circumstances and prospects of rehabilitation, neither was there any indication of any particular need or desirability of ongoing supervision of him in the community. As already noted, the Magistrate otherwise adequately explained her conclusion in her reasoning which preceded this statement of conclusion.
- [57]In these circumstances in which the contention as to the application of s 19B(1) arose for the Magistrate’s determination, there is no discernible error in respect of the adequacy of her reasons in conclusion as to the overall issue of proceeding pursuant to s 19B(1), as opposed to an accepted alternative of an order to perform community service under s 20AB.
Conclusion
- [58]Therefore, in these circumstances where none of the grounds of appeal nor any of the associated points have been vindicated, in terms of establishing any appealable error in respect of the Magistrate’s exercise of sentencing discretion or any other basis upon which there should be interference with the Magistrate’s exercise of sentencing discretion, this appeal should be dismissed, with an order that the sentencing order of the Magistrate, on 7 February 2023, is confirmed.
Footnotes
[1] TD1-2.37.
[2] TD1-2.38 – 1-3.24.
[3] TD1-2.1-5.
[4] TD1-2.12-18.
[5] TD1-3.7-10.
[6] TD1-2.47-1-3.5.
[7] TD1-3.25-33.
[8] TD1-2.31-35.
[9] TD1-3.35-37.
[10] TD1-3.37-44.
[11] TD1-3.10-15.
[12] TD1-3.15-19.
[13] TD1-3.44-1-4.6.
[14] TD1-3.22-24 and 1-5.1-33.
[15] McIntyre v Commissioner of Police [2021] QDC 163, [2]-[5].
[16] s 223 Justices Act 1886 and see: Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313, [33]-[34] and Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 686-7, Fox v Percy (2003) 214 CLR 118, [25], Teelow v Commissioner of Police [2009] 2 Qd R 489, [2]-[4], Tierney v Commissioner of Police [2011] QCA 327, [26], Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181, [10], Commissioner of Police v Al Shakarji [2013] QCA 319, White v Commissioner of Police [2014] QCA 121 and McDonald v Queensland Police Service [2018] 2 Qd R 612, [47].
[17] Justices Act 1886 (Qld), s 222(8)(a) and see: Forrest v Commissioner of Police [2017] QCA 132.
[18] Teelow v Commissioner of Police [2009] 2 Qd R 489, [18]-[20].
[19] (1936) 55 CLR 499, 504 – 505.
[20] (2010) 242 CLR 520, [58].
[21] Hili v The Queen (2010) 242 CLR 520, [59]-[61].
[22] (1999) 198 CLR 111, [109].
[23] Ibid, [128]-[130].
[24] (2015) 256 CLR 550, [28].
[25] Crimes Act 1914 (Cth).
[26] Appellant’s Written Submissions, filed 21/04/23, at [44].
[27] TD1-5.35-36.
[28] T1-4.30-34.
[29] (2014) 253 CLR 58, [39].
[30] Ibid, [39].
[31] [2014] VSCA 291.
[32] Ibid, [7].
[33] Reference is made to T 1-8.15-39 and TD 1-5.35-36.
[34] Cf: Matthews v The Queen (2014) 246 A Crim R 193, [19].
[35] Ibid, [154].
[36] Ibid, [27].
[37] T1-4.24-26.
[38] T1-6.30-32.
[39] T1-6.10-15.
[40] T1-16.36-37.
[41] T1-16.37-38.
[42] T1-17.1-19.
[43] T1-12.38-42.
[44] R v Engeln [2014] QCA 313, [49] and R v Verrall [2015] QCA 72, [70].
[45] Matthews v The Queen (2014) 246 A Crim R 193, [154].
[46] See paragraph [8] above and the Appellant’s written submissions, filed 21/04/23, at [27(a)].
[47] [1996] 2 Qd R 63, 66.
[48] [2008] QCA 284, [56].
[49] Ibid, [52].
[50] Ibid, [56].
[51] T1-3.9-19 and 35-37.
[52] Appellant’s written submissions, filed 21/4/23, at [28(a)].
[53] T1-3.38-46.
[54] (1992) 63 A Crim R 467.
[55] T1-7.38.
[56] T1-7.38-1-8.5.
[57] (1992) 63 A Crim R 467, 471.
[58] Appellant’s written submissions, filed 21/4/23, at [28(b)].
[59] TD1-4.46-1-5.36.
[60] See [29], above.
[61] Appellant’s written submissions, filed 21/4/23, at [29].
[62] See paragraph [29], above.
[63] Appellant’s written submissions, filed 21/4/23, at [16] and footnote 18.
[64] T1-3.38-46.
[65] Appellant’s written submissions, filed 21/4/23, at [11].
[66] As further contended in the Appellant’s written submissions, filed 21/4/23, at [32], in reference to [2008] QCA 86, [21].
[67] Appellant’s written submissions, filed 21/4/23, at [31]-[32].
[68] R v Newton [2010] QCA 101, [29].
[69] Ibid, [33].
[70] Cf: paragraph [3] above.
[71] [2001] NSWCCA 332, [10].
[72] Ibid, [14].
[73] TD1-4.9-44.
[74] T1-4.19.
[75] Appellant’s written submissions, filed 21/4/23, at [37].
[76] Appellant’s written submissions, filed 21/4/23, at [39], in reference to the submission made at T1‑11.4‑14.
[77] Heard at [40] in reference to Semrad v Habiburahman [2013] NTCA 6, [35].
[78] Appellant’s written submissions, filed 21/4/23, at [41].
[79] Ibid at [41(a)] in reference to T1-4.24-44.
[80] (1969) 119 CLR 257, albeit that this was in reference to similar State legislation.
[81] [2001] NSWCCA 332, [21]-[22].
[82] Appellant’s Written Submissions, filed 21/04/23, at [41(b)], referring to T1-6.8-10.
[83] Appellant’s Written Submissions, filed 21/04/23, at [41(c)].
[84] TD 1-3.44 – 1-4.6.
[85] (2003) 212 CLR 629.
[86] T1-13.36.
[87] T1-13.12-33.
[88] T1-14.34-41.
[89] Appellant’s Written Submissions, filed 21/04/23, at [41(c)].
[90] Appellant’s Written Submissions, filed 21/04/23, at [41(c)].
[91] Also by s 181(1), it is provided that a motor salesperson’s registration certificate is cancelled if the salesperson “is convicted of a serious offence”.
[92] Even if that risk may now be considered as more clearly identified, by reference to relevant legislative provisions, as might have been expected to have been done for the Magistrate.
[93] [2009] 2 Qd R 489, [13].
[94] [2011] QCA 55, [11].
[95] [2021] NSWCCA 246, [230]-[233].
[96] [2021] NSWCCA 246, [231], citations omitted.
[97] TD 1-4.43-44, assuming the correctness of this transcription, there is, at worst an obvious slip, in circumstances where the Magistrate had earlier this aspect of the test correctly: TD 1-4.21.
[98] As may conceivably had been contended to be permitted under s 20AB(1AA)(a)(ii) of the Crimes Act, noting that in s 4 of the Penalties and Sentences Act 1992 (Qld), the term “community based order” is defined to include a “probation order”.
[99] TD 1-4.12-14.