Terry v Commissioner of Police
[2024] QDC 186
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- Terry v Commissioner of Police[2024] QDC 186
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Terry v Commissioner of Police[2024] QDC 186
Terry v Commissioner of Police[2024] QDC 186
DISTRICT COURT OF QUEENSLAND
CITATION: | Terry v Commissioner of Police [2024] QDC 186 |
PARTIES: | JUSTIN ANTHONY BYRNE TERRY (applicant/appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO: | 53 of 2024 |
DIVISION: | Appellate |
PROCEEDING: | Appeal against sentence |
ORIGINATING COURT: | Magistrates Court at Mareeba |
DELIVERED ON: | 16 October 2024 ex tempore |
DELIVERED AT: | Cairns |
HEARING DATE: | 16 October 2024 |
JUDGE: | Fantin DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – where appellant was convicted on plea of guilty of obstructing a police officer while acting in the execution of his duty under s 340(1)(b) Criminal Code – where appellant was sentenced to a recognisance of $1,000 and ordered to pay compensation of $500 – where a conviction was recorded – whether the sentence was manifestly excessive by virtue of the recording of a conviction – where no submissions were made or invited with respect to the recording of a conviction – where the Magistrate did not give reasons for recording a conviction – whether the failure to invite submissions with respect to the recording of a conviction was a breach of the rule of natural justice – whether the failure to provide reasons for recording a conviction was an error of law Legislation Criminal Code s 340(1)(b) Justices Act 1886 (Qld) ss 222, 223 Penalties and Sentences Act 1992 (Qld) ss 12, 29, 32, 34, 35 Cases R v Cunningham [2005] QCA 321 R v Dodd [2010] QCA 31 R v RBN [2024] QCA 185 R v Wilson [2016] QCA 301 R v ZB [2021] QCA 9 |
COUNSEL | A Dunkerton for the appellant D Jenkins (legal officer) for the respondent |
SOLICITORS | Legal Aid Queensland for the appellant Office of the Director of Public Prosecutions for the respondent |
FANTIN DCJ (ex tempore):
- [1]On 9 May 2024, the appellant pleaded guilty in the Magistrates Court at Mareeba to a single offence of obstructing a police officer while acting in the execution of his duty, contrary to section 340(1)(b) of the Criminal Code.
- [2]The learned Magistrate convicted the appellant and ordered: (1) pursuant to section 32 of the Penalties and Sentences Act 1992 (Qld) (‘Penalties and Sentences Act’), the appellant be released upon entering into a recognisance in the amount of $1,000, on the condition that he keep the peace and be of good behaviour for a period of 12 months; (2) pursuant to section 35 of the Penalties and Sentences Act, the appellant pay compensation of $500; and (3) a conviction was recorded.
- [3]The appellant appeals against his sentence pursuant to section 222 of the Justices Act 1886 (Qld) (‘Justices Act’), on the ground that the Magistrate erred in recording a conviction and that the recording of the conviction rendered the sentence manifestly excessive.
- [4]The offence was committed on 9 February 2024. The appellant was aged 54 years at the time of the offence. He was sentenced on the basis of the following facts. He was the driver of a truck which was stationary on a road in Mareeba. A police officer spoke to him. The officer formed the belief that the defendant was subject to fatigue management Regulations. The officer asked the appellant to confirm his name and address and the appellant refused.
- [5]The officer informed the appellant he was going to enter his truck to locate the appellant’s licence. As the officer grabbed the truck’s door handle, the appellant grabbed his arm and attempted to remove it from the vehicle. The officer directed him to remove his hand from the officer’s arm and that he was obstructing police. The appellant refused and became irate, and attempted to enter the truck through an open window. There was a struggle. The officer was forced to stop the appellant entering the vehicle. Eventually, capsicum spray was deployed on the appellant. He complied and was handcuffed. He told police he did not want to provide his address as the normal occupiers of the address would become upset about police attendance at it.
- [6]On his plea of guilty to that offence, the police prosecutor offered no evidence with respect to three other summary charges and the appellant was discharged with respect to those offences. It was an early plea.
- [7]The appellant’s antecedents and relevant circumstances were summarised as follows. He was born in Townsville and educated to year 12. He had lived in Cairns for 15 years before moving to Mareeba. He worked in labouring and other trade-related employment including boiler making, shipbuilding and truck driving. He held various truck licences and tickets to operate machinery. At the time of the offence, he was self-employed as a truck driver driving freight in the region. He had experienced a downturn in work and was struggling with the cost of living crisis. He was single with no partner or children.
- [8]He had a criminal history, albeit it was extremely dated, in terms of the only relevant entry, and limited. He had been convicted in the Brisbane Magistrates Court on 3 January 2000 for two offences of obstructing a police officer. One penalty was imposed, which was a fine of $200, and no convictions were recorded. There was an earlier entry for possessing a pipe used in connection with smoking a dangerous drug. That was extremely dated, from 1996. Again, no conviction was recorded and he was sentenced to a fine of $150. He had a further entry in 2016 for possessing a knife in a public place. He was fined $200 and no conviction was recorded.
- [9]Therefore, although there were three separate entries in his criminal history, he had never had a conviction recorded.
- [10]He was represented by a solicitor in the Magistrates Court. At that hearing, it was indicated that the matter had been subject to case conferencing and that the appellant had offered to pay compensation of $500 to the officer as an apology for his poor behaviour and a sign of his remorse.
- [11]The police prosecutor submitted that if the Magistrate made the order for compensation which had been offered, that must be taken into account. He indicated that the Magistrate could sentence the appellant to a bond on the basis of his lack of criminal history, or a fine with community service as an alternative. The appellant’s solicitor also submitted that a bond was the appropriate penalty, as suggested by the prosecutor.
- [12]Neither the police prosecutor nor the appellant’s solicitor made any submissions about the recording of a conviction. It may be that they simply assumed it would not be necessary to do so because of the objectively low level of gravity of the offending and the appellant’s lack of relevant criminal history, together with his mature age, favourable antecedents and offer of compensation.
- [13]The Magistrate proceeded immediately to sentence. He failed to indicate that he was considering recording a conviction. He failed to invite any submissions from any party with respect to the recording of a conviction. He failed to give any reasons as to why he ordered that a conviction be recorded.
- [14]He expressed his sentencing remarks in the usual economical way of a Magistrate sitting in a busy jurisdiction. Nonetheless, there was a complete absence of any reference to section 12 of the Penalties and Sentences Act. There was a complete absence of any explanation of the consideration of the matters the court must have regard to in deciding whether or not to record a conviction pursuant to section 12(2).
- [15]Section 32 of the Penalties and Sentences Act permits a recognisance order (referred to as a bond in the proceeding) to be made. Section 29 of the Act makes it clear that a court may act under this division (division 3) whether or not it records a conviction. Similarly, when ordering payment of compensation pursuant to section 35, section 34 of the Act provides that a court may act under that division (division 4) whether or not it records a conviction. There was no reference to either of these sections, either in the sentencing hearing or the Magistrate’s reasons.
- [16]While the absence of reasons for a sentence does not in and of itself render the sentence invalid as a general proposition, it is appropriate for a court, if considering imposing a sentence more severe than the range suggested by the prosecutor, to give notice of that so that the defendant’s representatives may address matters on that basis: see R v Cunningham [2005] QCA 321 and R v Wilson [2016] QCA 301 at paragraph 6.
- [17]Given the absence of any submissions made, nor invited, at the hearing about whether a conviction should be recorded and the absence of any articulation in the Magistrate’s reasons for recording a conviction, I conclude that the Magistrate did not turn his mind to the exercise of the discretion under section 12 in any informed way.
- [18]The court should now re-exercise the discretion given by section 12, having regard to all the circumstances of the case, including those set out in section 12(2)(a) to (c): see R v Dodd [2010] QCA 31 at paragraph 13.
- [19]I accept the parties’ joint submissions that the Magistrate’s failure to afford the appellant’s solicitor the opportunity to make any submissions with respect to the recording of a conviction was a breach of the rule of natural justice, and his failure to provide reasons as to why a conviction was recorded was an error of law. On that basis, this court is required to re-exercise the discretion. In doing so, I have also had regard to R v RBN [2024] QCA 185, at paragraphs 18 to 23, and R v ZB [2021] QCA 9, at paragraphs 35 to 36.
- [20]The matters in section 12 required meaningful consideration, and that was not done in this case. That is particularly so in circumstances where the nature and seriousness of the offence was objectively low and the Magistrate regarded it as appropriate to impose only a recognisance order, coupled with the compensation offered by the appellant.
- [21]On appeal, the appellant sought to adduce new evidence. Leave is required pursuant to section 223(2) of the Justices Act. The court must be satisfied there are special grounds for giving leave to adduce “fresh, additional or substituted evidence” for the hearing of the appeal. The evidence sought to be adduced was an affidavit from the appellant about the consequences on him of a conviction being recorded. In such an application, it is relevant to consider first whether the evidence could, with reasonable diligence, have been produced by the appellant at sentence; second, whether the evidence is apparently credible; and third, whether the evidence might reasonably have led a tribunal of fact to return a different verdict.
- [22]On the first issue, the affidavit contains evidence that could, with reasonable diligence, have been produced by the appellant at sentence. The appellant submitted that the reason for the omission was that there was no opportunity for his solicitor to address the issue because the Magistrate did not indicate he intended to record a conviction nor invited submissions upon it. That may be so. On the second issue, the evidence in the affidavit of the appellant is apparently credible. On the third issue, which in the end is determinative of this application, it is, in my view, evidence that might reasonably have led the Magistrate to impose a different sentence, specifically to not record a conviction.
- [23]I allow the application to adduce this evidence in respect of the fresh exercise of the sentencing discretion by this court.
- [24]The evidence establishes that the appellant is currently working as a truck driver. In his current role, he is not subject to a security or criminal history check. He has a number of trade qualifications and experience in various industries. His employer is a transport logistics company that manages various jobs throughout Australia. He is currently employed operating cane trucks, transporting cane from farms to the sugar mill at Mareeba. He is currently employed on a casual basis, working for the crushing season, approximately six to seven months of the year. However, his future employment plans are to apply for permanent employment with the same employer. If he is successful in that application, he will be subject to a security and criminal history check in order to hold a maritime security identification card. That card will allow him to drive trucks or vessels through port facilities.
- [25]He has previously held such a card for port-related work, but does not currently have a valid card. In order to apply again for such a card, he is going to be subject to an application process, which will include a criminal history check. That check, he is aware, considers convictions for offences involving assaulting or resisting a law enforcement officer. As a result of the conviction recorded against him, he may be required to make representations about his criminal history and his ability to hold a maritime security identification card.
- [26]In addition to this impact that the recording of the conviction will have on the appellant’s future employment, there is an additional adverse consequence of it. The appellant intends to travel to China in February 2025 to source a manufacturer for a vessel prototype which he has developed. He believes that he will have to disclose any recorded conviction for that purpose and it would impact upon his ability to travel to China.
- [27]Turning to section 12, although the offence has a maximum penalty of seven years’ imprisonment, this example was objectively at the low end of the range for this offence. It was an offence of obstruct police. He was not charged with, nor pleaded guilty to, assaulting police. The appellant was a mature man otherwise of good character. The offending was out of character. The recording of the conviction will, I find, have an adverse impact on his chances of finding permanent employment in the way he intends. This is more than a mere chance of employment. The appellant already has employment with the same employer and has a real prospect of converting that to permanent full-time employment, pending that security clearance. I also accept that the recording of a conviction would have an adverse impact on his economic well-being, in the sense of his plan to travel overseas for the purpose of business.
- [28]Balancing all of those considerations, I am comfortably satisfied that it is appropriate that no conviction be recorded. The purposes of sentence are adequately served by the recognisance order made and the compensation order. They are sufficient to serve general deterrence and denunciation, which are the most significant considerations in this sentence. Those orders together were also sufficient to serve the purposes of personal deterrence and protection of the community.
- [29]The orders are as follows. I allow the appeal. I grant leave to adduce the affidavit of the appellant in relation to the fresh exercise of the sentencing discretion by this court. I set aside that part of the sentence which recorded a conviction but otherwise confirm the sentence.