Chakka v Queensland Police Service

This appeal turned on whether s 222(2)(c) Justices Act 1886 provides a right of appeal with respect to only manifest excess/inadequacy of a Magistrates Court sentence, or whether the right of appeal extends to specific errors of discretion. That question arose in circumstances where the applicant received a sentence that included a recorded conviction for unlawful stalking in the Magistrates Court, and he sought to appeal the recording of the conviction in the District Court. In the Court of Appeal, the applicant argued that the District Court judge should have found that the sentencing Magistrate had made specific errors, although those errors were not argued before the District Court. Justice Brown, with whom the other members of the Court agreed, considered that the correct construction of s 222(2)(c) is one which permits appellate intervention where an error in the exercise of discretion in the House v The King sense is established which has resulted in an excessive or inadequate sentence. The correct construction of s 222(2)(c) therefore permits an appeal for specific error that has caused a sentence to be excessive or inadequate. On the basis that the District Court judge below considered all of the relevant circumstances in determining whether the Magistrate had erred in imposing a conviction, no error below was demonstrated and leave to appeal was refused.

Mullins P, Bond JA and Brown J

8 November 2024

Background and issues

The applicant applied for leave to appeal from a decision of a judge of the District Court following the applicant’s appeal to that Court from a sentence imposed in the Magistrates Court for unlawful stalking. The applicant complained that the Magistrate had erred by recording a conviction as part of the sentence. [13]–[15].

The applicant argued that a number of specific errors were made, although none of these were raised in the District Court proceedings. Rather, the proceedings in the District Court primarily concerned whether the recording of the conviction rendered the overall penalty imposed by the Magistrate manifestly excessive. [18], [30].

The appeal to the District Court was made under s 222(1) Justices Act 1886, which provides for an appeal to a District Court judge “[i]f a person feels aggrieved” by an order made by a Magistrate “in a summary way on a complaint for an offence or breach of duty”. Relevantly, s 222(2)(c) provides an exception to that right of appeal “if a defendant pleads guilty or admits the truth of a complaint” and in those circumstances “a person may only appeal under [s 222] on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.”

The applicant contended in the present appeal that the District Court judge should have found specific errors by the Magistrate (albeit not argued before that judge) and that the sentencing discretion should have been re-exercised, although it was not contended that the sentence was manifestly excessive. [45]. The present appeal therefore required determination of whether an appeal under s 222(2)(c) is limited to manifest excess or inadequacy, or whether the section extends to specific errors of discretion. [35].

Whether s 222(2)(c) extends to specific errors

Because a right of appeal must be conferred by a statutory position and the extent of the right is dictated by the terms of the statute, the absence of any authoritative decisions on s 222(2)(c) meant that the Court was required to employ the principles of statutory construction to determine the provision’s scope. [67]–[68]. Justice Brown, with whom the other members of the Court agreed, rejected the applicant’s argument that s 222(2)(c) was intended to replicate the same appeal rights as in s 668E Criminal Code 1899 because of the different language used in both provisions. Rather, Brown J considered that the correct construction of s 222(2)(c), having regard to the language used and the context of the provision, is that the phrase “sole ground that a … punishment was excessive or inadequate” permits appellate intervention where an error in the exercise of discretion of the kind recognised in House v The King (1936) 55 CLR 499 is established, and the error has resulted in a sentence which is excessive or inadequate. [87].

Her Honour also considered that the general language in s 222(2)(c) of “excessive or inadequate” as the “sole ground of appeal” suggests that Parliament did not intend to confine any appeal to the final kind of error discussed in House v The King (1936) 55 CLR 499. Had that been the legislative intention, her Honour considered that it would have been expected that the words “manifestly excessive” or “manifestly inadequate” would have been used and the fact that such language was not used suggests that this was not the legislative intention. [84].

In her Honour’s view:

“Such a construction does not require the appellate judge to undergo an artificial exercise of determining the degree to which the sentence could be said to be excessive, but rather for the judge to be satisfied absent the error, the appellate judge would in all the circumstances have sentenced the defendant to a lesser sentence. Once the appellate judge is satisfied that without the error identified a lesser sentence should have been imposed in all of the circumstances that were before the lower court, the sentence should be set aside and the sentencing discretion re-exercised. That would similarly apply where the sentence is said to be inadequate.” [89].

Accordingly, on that construction, while specific error alone is insufficient to establish a ground of appeal under s 222(2)(c), it will be sufficient if it is shown that the error has caused a sentence to be excessive or inadequate. [91].

The District Court judge considered whether any error of discretion had occurred and whether it was open to record a conviction in all of the circumstances and that judge took into account matters which the applicant contended that the Magistrate failed to consider. Justice Brown considered that the judge did not err in concluding that the conviction was not manifestly excessive and therefore there was no error in refusing the applicant’s appeal to the District Court, particularly in circumstances where the errors sought to be relied on by the applicant were not raised in the District Court proceedings. [94], [97]–[98], [107], [114].

Disposition

Justice Brown was not satisfied that leave was necessary to rectify a substantial injustice in circumstances where specific errors were not raised below and the District Court judge considered all circumstances in reaching the view that the Magistrate did not err in recording a conviction, nor was her Honour satisfied that an appeal was viable in those circumstances. [115]. Mullins P and Bond JA also agreed, and accordingly leave to appeal was refused. [1], [11]–[12], [117].

A Lukacs