DISTRICT COURT OF QUEENSLAND
CITATION:
Harvey v The Commissioner of Police [2018] QDC 131
PARTIES:
STEVE JAMES HARVEY
(appellant)
v
COMMISSIONER OF THE QUEENSLAND POLICE SERVICE
(respondent)
FILE NO/S:
3673/17
DIVISION:
Appellate Jurisdiction
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
10 July 2018
DELIVERED AT:
Brisbane
HEARING DATE:
6 July 2018
JUDGE:
Smith DCJA
ORDER:
1. The appeal is allowed.
2. The orders made below are set aside.
3. On each charge a conviction is not recorded.
4. On both charges the appellant is fined the sum of $2,000.
5. The Registrar of the District Court at Brisbane is to give particulars of the fine to the State Penalties and Enforcement Registry for registration under section 34 of the State Penalties Enforcement Act 1999 (Q).
6. No order as to costs.
CATCHWORDS:
CRIMINAL LAW- JUDGMENT AND PUNISHMENT-Appeal against sentence- whether errors below- whether sentence manifestly excessive
Justices Act 1886 (Q) ss 222, 223
Penalties and Sentences Act 1992 (Q) s 9, 48, 50
State Penalties Enforcement Act 1999 (Q) s 34
Working with Children (Risk Management and Employment Screening) Act 2000 Act (Q) ss 5, 6, 174, 348
AB v R (1999) 198 CLR 111
Kentwell v R (2014) 252 CLR 601
Sgroi v R (1989) 40 A Crim R 197
Teelow v Commissioner of Police [2009] 2 Qd R 489
COUNSEL:
Solicitors for the appellant
Solicitors for the respondent
SOLICITORS:
Bosscher Lawyers for the appellant
QPS Legal Unit for the respondent
Introduction
The appellant appeals with respect to the sentence imposed on him in the Magistrates Court at Brisbane on 30 August 2017. He was fined $7,500 with no convictions recorded. He challenges the quantum of the fine.
Principles of the appeal
The appeal is pursuant to s 222 of the Justices Act 1886 (Q) (“JA”).
Section 222(2)(c) of the JA provides that where the defendant pleads guilty then the person may only appeal on the sole ground that the fine, penalty, forfeiture or punishment was excessive or inadequate.
Section 223(1) of the JA provides that the appeal is to be way of rehearing on the evidence given in the proceedings before the justices.
In Teelow v Commissioner of Police[1] Muir JA held at [4]:
“It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order is the result of some legal, factual or discretionary error…”
[1][2009] 2 Qd R 489.
Charges
The appellant was charged with the following::
Charge 1- Apply, start or continue in regulated employment when positive notice suspended contrary to section 174 of the Working with Children (Risk Management Screening) Act 2000
That on 7 October 2016 at Caboolture in the state of Queensland [the defendant] being a suspended person under section 174 of the Working with Children (Risk Management and Screening) Act 2000 (Q) and having been given a written notice by the Chief Executive suspending his positive notice, continued to carry on a regulated business before the suspension ended.
Charge 2-Failing to give notice of a relevant change to chief executive contrary to section 348(2) of the Working with Children (Risk Management Screening) Act 2000
That between 1 August 2016 and 30 December 2016 at Brisbane City in the central division of the Brisbane Magistrates Court District in the state of Queensland [the defendant] being the holder of a negative notice the cancellation of which [the defendant] had applied for and being a person who did make a relevant change namely changed contact details previously given to the Chief Executive, failed to give notice in the approved form to the Chief Executive about the relevant change within fourteen days after the relevant change.
Proceedings below
The appellant’s criminal history was tendered as Exhibit 1 in the proceedings in the Magistrates Court. This disclosed that he had irrelevant previous convictions and had last been convicted in 2010.
The maximum penalty with respect to charge 1 was five years imprisonment or 500 penalty units. In respect of charge 2 the maximum was 10 penalty units.
The appellant was the proprietor of ‘Aussie Jumping Castles’ which was regulated employment under the relevant legislation. He received a blue card on 23 October 2015.
On 19 May 2016 he was charged with sexual offences involving children and his blue card was suspended with a negative notice which was issued on 20 May 2016. The appellant was taken into custody for the substantive matters on 19 May 2016 and remanded in custody until August 2016.
Upon his release from custody he moved to Thornlands and did not report his change of address.
On 6 October 2016 a complainant was travelling by bus and saw the appellant operating an inflatable soccer activity on the school grounds of Grace Lutheran College and he was interacting with children whilst operating the attraction. She became aware the appellant did not hold a current blue card and the matter was reported. Statements were obtained from other witnesses.
The prosecution submitted that in light of the plea of guilty, a global fine in the sum of $2,000 was an appropriate penalty.
The Magistrate, however, thought that was “too light”.[2]
[2]Transcript day 1 page 6.32.
The defence solicitor submitted that the appellant was in custody until August so he was not out of custody for very long when these matters occurred. There had been no further offences since late 2016. The notice was sent to an address that the defendant no longer resided at, so it was not the case that he “ran the gauntlet”. He was not aware that the blue card had in fact been cancelled.[3] Despite this, the law deemed delivery effective.
[3]Transcript day 1 page 8.13.
It was submitted the offence was one of strict liability, so it became irrelevant that the appellant operated the business without knowledge of the suspension notice. It was submitted the substantive offences were not related to his activity at ‘Aussie Jumping Castles’. It was submitted that the penalty should be at the bottom end of the range.
It was submitted the appellant was 43 years of age with no relevant history and he effectively raised his two children on his own. He had owned and operated a number of successful businesses throughout his life. The defence agreed with the prosecution as to penalty.
The Magistrate in reaching his decision took into account the plea of guilty which he noted as not early but timely and he took into account the provisions of the Penalties and Sentences Act 1992 (Q). The Magistrate disagreed with the police prosecutions and the defence submissions as to the penalty and imposed a total fine of $7,500 (in default 100 days’ imprisonment) with no conviction recorded. He was given 28 days to pay.
Submissions to this court
The appellant in his submissions, submits that the Magistrate failed to take into account the early plea of guilty, the prospects of rehabilitation and the “inadvertent” nature of the offence. It is further submitted the penalty was excessive. The appellant submits that a penalty of $2,000 is appropriate.
The respondent on the other hand submits that the Magistrate did take into account the plea of guilty and accepts there is no reference to rehabilitation but submits there was no error on that regard. However, the respondent accepts that the Magistrate appears not to have taken into account the “inadvertent” nature of the offending. It is further agreed that the Magistrate did not refer to the totality principle. The respondent accepts that a penalty of $2,000 is appropriate.
It was also an agreed fact that the appellant is now serving an 8 year sentence for child sexual offences.
Discussion
It is my view the Magistrate did not err in failing to take into account the plea of guilty or the issue of rehabilitation. The Magistrate specifically referred to the plea of guilty and also the provisions of the Penalties and Sentences Act 1992 (Q) (‘PSA’).
However, the Magistrate did not refer to the fact that the appellant had not received the notice of suspension. It was an offence of strict liability and the fact the appellant was unaware of the suspension notice was a relevant factor which ought to have been considered.
In those circumstances having found error which is not immaterial I propose to resentence the appellant.[4] Regardless it is also my opinion the sentence was excessive in light of the nature of the offending.
[4]AB v R (1999) 198 CLR 111 at [130]; Kentwell v R (2014) 252 CLR 601 at [35].
In sentencing the appellant I have regard to the facts of the offences (including the fact the appellant was unaware of the notice), the relevant provisions of the PSA [5], his plea of guilty, the principle of totality[6] and to his personal circumstances.[7]
[5]In particular section 9 and section 48 of the PSA.
[6]This applies to fines- see Sgroi v R (1989) 40 A Crim R 197.
[7]Noting he is now serving a lengthy period in jail for the substantive offences.
I have regard to the object and principles of the Working with Children (Risk Management and Employment Screening) Act 2000(Q) namely:
“Section 5 Object of Act
The object of this Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme requiring—
(a) the development and implementation of risk management strategies; and
(b) the screening of persons employed in particular employment or carrying on particular businesses.Section 6 Principles for administering this Act
This Act is to be administered under the following principles—
(a) the welfare and best interests of a child are paramount;
(b) every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.”
I also have regard to the maximum penalties[8] involved in this case.
[8]5 years imprisonment or a fine of 500 penalty units for charge 1- Section 240 (4) of the Working with Children (Risk Management and Employment Screening) Act 2000(Q). 10 penalty units- section 348(2) of the Working with Children (Risk Management and Employment Screening) Act 2000(Q).
There are no comparable cases to assist me in reaching a decision. I do observe that for more serious breaches of section 174 of that Act (i.e. with knowledge of the notice and wilfully disregarding it, with similar previous convictions and/or with previous convictions for sexual offending against children) more severe penalties could be imposed. Protection of children is a very relevant sentencing consideration.
It is my opinion that a global fine in the sum of $2,000 should be imposed[9] and the matter should be referred to State Penalties Enforcement Registry (‘SPER’)[10].
[9]Pursuant to section 49 of the PSA, if required to “break it up” it would be $1500 on charge 1 and $500 on charge 2.
[10]Section 50(b) of the PSA.
It was also agreed there be no order as to costs in light of the respondent’s position in this matter.
In those circumstances I make the following orders:
1. The appeal is allowed.
2. The orders made below are set aside.
3. A conviction is not recorded on each charge.
4. On both charges the appellant is fined the sum of $2,000.
5. The Registrar of the District Court at Brisbane is to give particulars of the fine to SPER for registration under section 34 of the State Penalties Enforcement Act 1999 (Q).
6. No order as to costs.