DISTRICT COURT OF QUEENSLAND
CITATION:
Petkov v Commissioner of Police [2020] QDC 304
PARTIES:
PETKO PETKOV
(appellant)
v
COMMISSIONER OF POLICE
(respondent)
FILE NO:
D112/2020
DIVISION:
Appellate
PROCEEDING:
Appeal pursuant to s 222 of the Justices Act 1886 (Qld)
ORIGINATING COURT:
District Court at Maroochydore
DELIVERED ON: Orders handed down 25 November 2020
Reasons published 30 November 2020
DELIVERED AT:
Maroochydore
HEARING DATE:
25 November 2020
JUDGE: Long SC, DCJ
ORDER:
1. That the orders made on 15/6/20, that for the offence of possession of a knife in a public place on 3/11/19, that the appellant be imprisoned for 226 days and the declaration that 226 days of pre-sentence custody be taken as imprisonment already served under the sentence, be set aside.
2. That the banning order made on 15/6/20 be set aside.
3. Instead, it is ordered that for the offence of possession of a knife in a public place on 3/11/19, the appellant is convicted and not punished. The conviction is recorded and it is directed that it be noted that the court has taken into account 226 days pre-sentence custody from 3/11/19 – 14/6/20.
4. Otherwise and to the extent that the appellant’s notice of appeal may be taken to encompass an appeal against conviction, the appeal is dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL – Where the appellant served 226 days of pre-sentence custody – Where the Magistrate found the appellant not guilty of two of the charged offences and guilty of one charged offence – Whether the sentence imposed was manifestly excessive in the circumstances
LEGISLATION:
Justices Act 1886, ss 222, 225
Penalties and Sentences Act 1992, ss 43B, 43J, 159A
Weapons Act 1990, s 51
SOLICITORS: Appellate self-represented
K.Adams for the Director of Public Prosecutions
The appellant filed a notice of appeal on 30 June 2020, directed at orders made in the Magistrates Court at Maroochydore on 15 June 2020, in consequence of him being found guilty of the offence (pursuant to s 51(1) of the Weapons Act 1990):
“That on the third day of November 2019 at Mooloolaba in the Magistrates Courts District of Maroochydore in the State of Queensland one Petko Petkov without reasonable excuse physically possessed a knife in a street namely Parkyn Parade, Mooloolaba.”
That notice of appeal notes the following:
“Sentence: 226 days – pre-sentence custody
Order:not to attend within 200m of the Wharf-Shop 28, 123 Parkyn Pde Mooloolaba.”
The single ground of appeal is that:
“The sentence imposed was manifestly excessive in the circumstances”.
The verdict and judgment record records that, on 15 June 2020 and in respect of the offence of possession of a knife in a public place, the appellant was ordered to be imprisoned for a period of 226 days and that pursuant to s 159A of the Penalties and Sentences Act 1992 it was declared that 226 days of pre-sentence custody from 3 November 2019 to 14 June 2020 be imprisonment already served under that sentence. As well, there was a “Banning Order” made pursuant to s 43J of the Penalties and Sentences Act 1992, in terms that the appellant was “prohibited from going within 200 metres of Shop 28, The Wharf, 123 Parkyn Parade, Mooloolaba”, with the notation that the order was to remain in force “until 15/6/2021 unless amended or revoked”.
At the allocated time for the hearing of his appeal, on 25 November 2020,[1] the appellant appeared as a litigant in person. Some difficulties were immediately encountered and whilst it is apparent that English is not his first language and that he speaks with a discernible accent, the appellant demonstrated a reasonable command of the English language notwithstanding that he purported on many occasions to suggest that he did not understand what the court was attempting to explain to him at the hearing of this appeal. He sought that the hearing of the appeal be adjourned, in the first instance because he had mistakenly thought that he was presenting for a rehearing at which all of the witnesses would be recalled. He also sought such an adjournment on the basis of his need to further investigate matters and to collect further evidence to place before the Court. He stridently maintained that this would be directed at demonstration of his position that he was wrongly convicted.
[1]Which listing had been notified by notice of the Deputy Registrar dated 30/9/20.
The appellant’s position was not assisted by the absence of any detailed outline of submissions. Rather, there are two documents which have been filed respectively on 16 and 31 July 2020. While each of these documents indicate that issue is taken in respect of the making of the Banning Order and also particularly with the imposition of a term of imprisonment equating to the pre-sentence custody which was declared as the time served, each goes beyond that and may be taken as making complaints in respect of his conviction. However, it is to be noted that consistently with contentions made by the appellant to the Court on the hearing of this appeal, particularly in the context of his obsessive return to the fact that he had spent such a period in pre-sentence custody, without bail, are generally described as being directed at contentions of the police manufacturing a case against him by telling witnesses what to say and assertions as to his inability to properly prepare his defence due to his pre-hearing incarceration. For instance, and in the document filed on 16 July 2020 he says these things:
“On the hearing date on 15 June 2020 I was not prepared at all. I asked a number of times to be bailed so that I could investigate the matter from outside but bail was denied. I would like to subpoena some people but I did not have that opportunity.
Witnesses contradicted each other, saying different things on the same question. Firmly I do believe that accusation is prepared by the police, it was manufactured because I didn’t do anything like that, not even close. Now I’d like to expose the criminal records of the police.
I was charged with three offences, two were rejected and I was only convicted with possessing a knife. Even if I had a knife in my hand I didn’t deserve seven and half months in jail. The Judge gave me that penalty just for the reason that I’d already served that time, to help the police so I wouldn’t ask for compensation for extra time served”.
As was pointed out to the appellant at the hearing of the appeal, the last contention in that passage lacks any apparent legal validity and this appeal is not concerned with any decision by which the appellant was denied bail before the hearing on 15 June 2020.
Although the appellant sought the adjournment of the hearing of the appeal, for similar reasons to those that have been noted from his filed documentation, it was apparent there was no valid reason to do so and to the extent that the appellant was concerned to direct his attentions towards the offence of which he was convicted, to do so would be an exercise in futility. Accordingly and particularly for the reasons to follow, the following orders were made on 25 November 2020:
“1. That the orders made on 15/6/20, that for the offence of possession of a knife in a public place on 3/11/19, that the appellant be imprisoned for 226 days and the declaration that 226 days of pre-sentence custody be taken as imprisonment already served under the sentence, be set aside.
2. That the banning order made on 15/6/20 be set aside.
3. Instead, it is ordered that for the offence of possession of a knife in a public place on 3/11/19, the appellant is convicted and not punished. The conviction is recorded and it is directed that it be noted that the court has taken into account 226 days pre-sentence custody from 3/11/19 – 14/6/20.
4. Otherwise and to the extent that the appellant’s notice of appeal may be taken to encompass an appeal against conviction, the appeal is dismissed.”
A review of the record of the hearing before the Magistrate indicates that there was no error made by the Magistrate in convicting the appellant of this offence. This is particularly because of the acceptance by the Magistrate of the evidence of the eyewitnesses at the location of the offence, as corroborated by some security video images and as to the allegation of the appellant holding a knife, without reasonable excuse, near to the location of the Mooloolaba Wharf on Parkyn Parade at Mooloolaba. In particular, it may be observed that in the context of the evidence given before him and his earlier detailed review of that evidence, there can be no suggestion that any of the following conclusions of the Magistrate were not open to him as findings to be made on that evidence, or which on review by this Court indicate any error requiring correction:
“So what to make of those different accounts. Well, firstly, with count 3 under the Weapons Act, the elements of the offence are that he physically possessed a knife in a public place. There can be no doubt about that. Even he agrees with that. He had the knife physically in his hand when the police came along and told him to drop it. The only other element is that he, without reasonable excuse, possessed it. And certainly, the law does countenance that if you have got a knife for normal utility purposes, a pocketknife to cut string or peel apples, that is quite lawful.
In the present case, in my view, the facts speak for themselves. The defendant was walking down the road with quite a large knife. As I have said, from the photograph which has a ruler next to it, 235 millimetres long is my view of the ruler next to it. He had nothing else in his hands. There was no suggestion to the police that he was intending to use it for any purpose of that kind at that time. He just said that he had it “Because I finded it”. Today, he said some other strange account that I did not quite follow that somebody had given him the knife and then he went back to give it back to them, but he could not give it back to them so he found it, I think was what he said, which is just nonsense. It does not make any sense at all.
At the end of the day, I am not at all satisfied – well, I am satisfied beyond a reasonable doubt that Mr Petkov’s evidence that he had it to peel an apple is untruthful. There was no apple. If you had a knife to peel an apple, you would get the apple out as well as the knife. You would not be walking down the road with the knife in your hand. Quite apart from the fact that, circumstantially, of course, we have got him carrying a thing that looks very much like that same knife moments before when he exits the shop after he has been dealing with [Ms C]. That is easy. He is obviously guilty of having the knife in a public place without lawful excuse.
Now, as to the other matters, what do I make of the different accounts? Mr Petkov says, “Well, she says I had a knife and I threatened her. I said she had a knife and she threatened me. How do you know who’s telling the truth?” Well, firstly, [Ms C] has two independent witnesses who do not know her from a bar of soap who say that they saw Mr Petkov with a knife in the shop, and that they spoke to [Ms C] who seemed very upset after he had come out of the shop. And, circumstantially, he is coming out of the shop with what appears to be a knife in his hand, even though he says it was either in his pocket or his backpack. He made no suggestion to the police about [Ms C] having a knife. Mr Petkov has shown today, by his questioning of witnesses, by his evidence-in-chief, by his general behaviour, that he is a difficult person to reason with. And the more I got to know him today, the more I was not surprised about what was described as his bizarre behaviour in the shop: chopping and changing, talking about strange things, losing his train of thought.
The alternative is, of course, that [Ms C] is lying about what happened, the two strangers who came past outside the shop are lying about seeing a knife, and that [Ms C], in fact, is a violent person herself who threatened a man with a knife who came into her shop and asked how much it cost to slip a boat. What absolutely nonsense. What rubbish. I had no hesitation in accepting what [Ms C] said as truthful. She was logical. She was detailed in her evidence. Obviously, it had been thought about very carefully. And if she was a liar, she could easily have made things much worse than they were. For instance, she never suggested that he threatened her with the knife. She never suggested he held it up to her or tried to stab her with it.
If she was an out and out liar as he suggests, surely she is going to make it a bit higher than this bizarre stuff about, “I’d like you to come on the boat and get tried up to the mast”, and, “I’m going to chop your finger off”, when he was not happy about her religion, and, “I want $1000”. Surely she could come up with a better set of lies than that if she was such a cunning liar to make up this absolutely bizarre series of events, which includes the discussion about religion, which Mr Petkov seems to accept he did have, and that was bizarre enough in itself to start asking a stranger about their religion and talking about it ad infinitum.
Of course, with the two independent witnesses seeing the knife, that satisfies me straightaway beyond reasonable doubt the defendant is lying when he says he did not have the knife out in the shop. Three people have said they saw it. The two who back up [Ms C] do not even know her. And Mr Wells phoned the police to say that he had seen the man with a knife. How did he see the knife if the knife was not out, if it was in the pocket or the backpack? Was it just a good guess that Mr Petkov had a knife and, low and behold, when the police arrived, there he was with a knife? It beggars belief. Of course he had a knife. Of course it was visible. Of course they saw it. That is why they went and spoke to [Ms C]. That is why they called the police. Mr Petkov’s denial is just staring a bold case down and saying it did not happen when it obviously did. I accept the evidence of [Ms C] as wholly truthful.
DEFENDANT: And Mr Petkov?
BENCH: I find Mr Petkov to be a wholly untruthful witness who has just made things up and lied in the face of an overwhelming case...”[2]
Earlier, the Magistrate made the following findings in respect of the CCTV footage in evidence:
“And I move on with the fact that a police officer then gave evidence, and part of his evidence was CCTV footage that he obtained showing the defendant leaving the shop. In that footage, the defendant clearly has a shiny object in his right hand. I could not say with any definitiveness that it was a knife, but I could say with confidence that it looked very much like the knife – which I will come to – that has been – or the photographs which have been produced in evidence, and it looked extremely like the knife in later video footage when the police approached the defendant and he dropped the knife on the ground.”[3]
[2]T6.13-44.
[3]T4.39-46.
It is to be noted that the Magistrate then proceeded to appropriately explain why he nevertheless acquitted the appellant in respect of the other charges of entering premises with intent to commit an indictable offence and demanding property with menaces with intent to steal, not because of any absence of acceptance of the evidence of the prosecution witnesses as to the conduct of the appellant and particularly as to his having also been observed holding a knife in the context of his interactions with a complainant at the premises identified as Shop 28 at the Wharf complex, but rather because of an inability to find all of the elements of each of those offences established by that evidence.
There is nothing to suggest that there is any relevant witnesses not called at trial and in all of the circumstances, there appeared no reasonable prospect that the appellant could, upon adjournment of the hearing of the appeal, assemble anything which may have been admissible as new evidence pursuant to s 225 of the Justices Act 1886, nor be in any position to better advance his contentions as to his conviction. Accordingly, it would have served no useful purpose to further delay in dealing with this appeal.
In respect of the sentencing orders, including the Banning Order, the appellant has the benefit of what may be accepted as properly made concessions of the respondent, in respect of all of those orders and to which his notice of appeal is expressly directed.
In respect of the sentencing orders, it is pointed out by the respondent that the appellant was only convicted of an offence which carries a maximum penalty of 40 penalty units or one year imprisonment and that a sentence of effectively seven and a half months imprisonment, in the present circumstances, is properly to be regarded as manifestly excessive. Such a sentence is not warranted simply because the appellant had already spent 226 days on remand. It is noted that no further penalty was sought by the prosecutor below.[4] Further, it is only necessary pursuant to s 159A of the Penalties and Sentences Act 1992, to make a declaration of the kind made by the Magistrate in respect of the pre-sentence custody, if “an offender is sentenced to a term of imprisonment for an offence”. Otherwise, it is permissible for account to be taken of the fact of the service of pre-sentence custody, in order to impose some other appropriate order.
[4]D10.30-35.
As to the Banning Order and as noted, it is purportedly made pursuant to s 43J of the Penalties and Sentences Act 1992. However and as conceded by the respondent, there was no established lawful basis for the making of such an order and it has to be regarded as incompetent. First, it may be noted that it is not directed at “stated licence premises” or a “stated class of licenced premises” or “attending or remaining at a stated event, to be held in a public place, at which liquor will be sold for consumption”, so as to bring it within the definition of Banning Order in s 43I. Neither was it made, pursuant to s 43J(1) upon the appellant’s conviction of any offence that involved the use or attempted use of unlawful violence to a person or property, or any relevant offence against the Drugs Misuse Act 1986 (pursuant to s 43J(1)(a)). And nor, in the circumstances, could either of the additional requirements in s 43J(1)(b) and (c) be satisfied.
It is also correctly pointed out that the provisions of Part 3A of the Penalties and Sentences Act 1992, in respect of “non-contact orders”, are also not amenable to achieve the effect that was sought by the Banning Order, in the circumstances, because of the pre-condition expressed in s 43B(1), as to conviction of a personal offence, defined as “an indictable offence committed against the person of someone”.