DISTRICT COURT OF QUEENSLAND
CITATION:
To’a v Commissioner of Police [2018] QDC 82
PARTIES:
PAUL ERNIE TO’A
(appellant)v
COMMISSIONER OF POLICE
(respondent)FILE NO/S:
MAG-00094095/17(4); appeal 2914/17
DIVISION:
Criminal
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
10 May 2018
DELIVERED AT:
Brisbane
HEARING DATE:
27 April 2018
JUDGE:
Rosengren DCJ
ORDER:
The appeal is dismissed.
CATCHWORDS:
CRIMINAL LAW – s 222 APPEAL – APPEAL AGAINST SENTENCE – where the appellant pleaded guilty serious assault of a police officer – where the appellant submitted that the learned magistrate erred in recording a conviction – where the appellant submitted that the recording of a conviction was manifestly excessive
Criminal Code 1899 (Qld) s 340(1)(b) Justices Act 1886 (Qld) ss 222(2)(c), 223
Penalties and Sentences Act 1992 (Qld) s 12
R v Castle; Ex parte Attorney-General (Qld) [2014] QCA 276, cited
R v Jackson [2011] QCA 103, cited
Hili v The Queen (2010) 242 CLR 520, cited
R v Andrews [1996] QCA 033, cited
R v Cay, Gersch & Schell; ex parte A-G (Qld) [2005] QCA 467, cited
R v Duncan, unreported, Bowskill QC DCJ, 18 July 2016, cited
R v Nona, unreported, Everson DCJ, 15 October 2010, citedCOUNSEL:
D Gates for the appellant
S Sherrie (sol) for the respondentSOLICITORS:
Hannay Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
On 3 August 2017, in the Magistrates Court at Brisbane, the appellant pleaded guilty to a single charge of serious assault of a police officer.[1]
[1] S 340(1)(b) of the Criminal Code (Qld).
This is an appeal by the appellant, on the bases that there were errors made by the sentencing magistrate in recording a conviction and that to do so was manifestly excessive. He does not challenge the orders in relation to probation or compensation.
For the reasons set out below, the appeal should be dismissed.
Nature of s 222 appeals
The appeal is by way of rehearing of the evidence. The relevant provision is s 222(2)(c) of the Justices Act 1886. This provides that where a defendant pleads guilty, an appeal can only be brought on the sole ground that a fine, penalty or punishment was excessive or inadequate.
There are two broad categories of circumstances where the appellate court can intervene in a case such as this. One such category is where a specific error is identified with the consequence that the sentence must be set aside and the sentencing discretion exercised afresh. The other category is where an error is not discernible but the sentence is “unreasonable or plainly unjust” and lies outside the permissible range.[2] Intervention by the appellate court is not justified just because a sentence is markedly different from sentences imposed for like offending, or that a lesser punishment would have been more appropriate than the sentence imposed.[3]
[2] R v Castle; Ex parte Attorney-General (Qld) [2014] QCA 276 at [20].
[3] R v Jackson [2011] QCA 103 at [25]; Hili v The Queen (2010) 242 CLR 520 at [537].
Circumstances of the offending
At approximately 2.15 am on 8 May 2017, police were patrolling Charlotte Street in Brisbane in an unmarked police vehicle. The police observed the appellant and a female walking on the road in front of slow moving traffic. They then proceeded to walk in front of the police vehicle. The police activated the horn of the vehicle and the female moved off the road. The appellant stopped directly in front of the police vehicle and yelled out “What the fuck are you going to do about it?” The appellant then approached the driver’s door and the officers identified themselves as police and directed the appellant to get off the road. The appellant’s demeanour was highly aggressive and he yelled further profanities at the police. The appellant then positioned himself next to the passenger door of the police vehicle. He was instructed to move away from the vehicle but he refused to. The officer was attempting to open the passenger door and he was obstructing the officer’s attempts in this regard. As the officer was stepping out of the vehicle, the appellant adopted a fighting pose and threw a right haymaker style of punch, striking the officer to the left side of his jaw. He attempted to throw further punches at the officer and was restrained shortly thereafter. The appellant continued to resist arrest before being placed in handcuffs. The officer suffered pain and discomfort but no other injuries.
Maximum penalty and sentence imposed
The maximum penalty for the subject offence is seven years imprisonment. The sentence that was imposed by the learned magistrate was probation for 15 months. The appellant was also ordered to pay $200 compensation and a conviction was recorded.
Sentencing submissions
The appellant was 20 years of age at the date of the offending and 21 years of age at sentence. He had no criminal history. He worked at Sizzler during his final year of school and then obtained employment with ProLiquor in early 2016 as a security officer. He had left that employment by the time of the sentence hearing and was instead working full-time installing windows in high rise buildings.
At the sentence hearing, the solicitor for the appellant tendered three references and a written apology from the appellant to the police officer. He submitted that the appellant was young, it was a one-off offence and there had been an early plea of guilty.
It was apparent from a reference from the appellant’s mother that he was attending anger management counselling and had resumed his faith by going to Church in an effort to stop drinking. Another reference was from the managing director of ProLiquor. He referred to the fact that the appellant understood that his involvement in the subject offending conduct would be likely to lead to the revocation of his security license.
The only authority the learned magistrate was referred to was the Court of Appeal decision of R v Andrews.[4] The appellant in that case was 18 years of age. The judgment is silent about the recording of a conviction.
[4] [1996] QCA 033.
During the course of the submissions made on behalf of the appellant, the learned magistrate indicated that she was considering imposing a sentence involving a term of imprisonment. It was submitted on behalf of the appellant that it would be within the range to impose a fine and not to order a conviction. Her Honour indicated that she did not agree with this.
Sentencing remarks
In sentencing the appellant, her Honour relevantly stated as follows:
“I take into account your plea of guilty. It looks like it's a fairly early plea of guilty and I impose a lesser penalty because of that. I take into account that you're a young man, 21 years of age, with no criminal history and that - sorry, just sit down. Yes, so just stand up. So I was saying I take into account your plea of guilty. I take into account the fact that you're a young man with no criminal history, that you have the support of your family, that it seems you have a good work history, that you were drunk at the time of the offending - which is no excuse, but it might be some explanation for your behaviour which seems to be out of character. That you had - that you've now stopped drinking, that you're attending counselling. I take into account the material in the references.
I have to take into account the serious nature of this offence. Police officers do a very difficult job. They should not expect to be abused and assaulted when they are carrying out their duties, and if they are abused and assaulted they should expect courts to impose salutary and deterrent penalties. General deterrence is a significant sentencing consideration in this matter.
I was - in light of the submissions made by the prosecution, I have been convinced that imprisonment is not the only appropriate penalty and I do take into account the mitigating factors. I'm certainly satisfied that this is not a matter where I should not record a conviction, and given that you're not working as a security officer in any event, no convincing reason has been put before me as to how the recording of a conviction would affect you in any specific way in the future.
In the circumstances your conviction is recorded. …”
Recording a conviction
The appellant contends that:
(i) the learned magistrate erred; and
(ii) the recording of a conviction rendered the sentence manifestly excessive.
It was submitted in oral submissions by counsel for the appellant that the learned magistrate erred in not specifically referring to s 12 of the Penalties and Sentences Act 1992 (‘PSA’) when determining to record a conviction. The fact that the learned magistrate has omitted to specifically refer to the legislative provision, does not have the consequence that her Honour fell into error. The requirement for the court to consider whether a conviction ought to be recorded was addressed in the submissions by the appellant’s lawyer and her Honour specifically indicated that she did not agree with those submissions on this point. Importantly, the matters to be considered in s 12 of the PSA in determining whether to record a conviction were addressed in her Honour’s sentencing remarks. These were all the circumstances including the nature of the offence, the appellant’s character and age and the impact (or lack thereof) that the recording of a conviction would have on the appellant’s economic or social well-being or his chances of finding employment.
It was further submitted that the sentencing magistrate had effectively pre-determined that a sentence of imprisonment ought to be imposed and then worked backwards from there. I am unpersuaded that just because her Honour expressed an initial view that a term of imprisonment would be within the range, that this gave rise to an error. It is not an infrequent occurrence for sentencing judges to express a preliminary view such as this. It is clear that the learned magistrate then proceeded to listen to the submissions made on behalf of both parties and to take into account all relevant considerations before determining the appropriate sentence to be imposed. I can discern no apparent error on this basis.
The sentencing magistrate took into account all of the mitigating factors, which include the appellant’s youth, the absence of a criminal history, his timely guilty plea, his personal circumstances and background, his good work history and otherwise good character, and his efforts towards rehabilitation by attending counselling. She also noted the contribution of the appellant’s voluntary intoxication towards his offending and correctly observed that while it may have provided some explanation for the appellant’s conduct that it could not be taken into account by way of mitigation of sentence. Her Honour also appropriately placed weight upon the need for the sentence to be imposed to provide general deterrence to others from committing like offences.
The abovementioned considerations needed to be balanced against the serious nature of the offending, which carries a maximum penalty of seven years imprisonment. As her Honour observed, it was an assault on a police officer who was simply carrying out his duties in circumstances where the appellant was wandering across the road and there was thereby the potential for him to be harmed. The officers were merely attempting to prevent such an occurrence.
The impact of the conviction on the appellant’s prospects of future employment was specifically adverted to by the sentencing magistrate. She noted that no convincing reason had been proffered as to how the recording of a conviction would affect the appellant in any way in the future.
The appellant had previously worked as a security officer. His employer provided a reference to the effect that the incident would be likely to lead to the revocation of his security license. There was no evidence that the recording of a conviction, rather than the offending conduct itself, would lead to the revocation of the security license. Further, no legislative provisions were put before the learned magistrate in support of this. In any event, the appellant had left the security industry by the time of the sentence hearing and was working full-time installing windows in high rise buildings. There was no evidence that a conviction would jeopardise this avenue of employment.
This is not the type of offence where it would necessarily mean that the recording of a conviction would have the inevitable consequence that the appellant’s prospects of securing and retaining future employment and therefore his rehabilitation prospects would be harmed. It can be distinguished from convictions for offences such as fraud or stealing as a servant, which would be likely to concern any potential employer.[5]
[5] R v Cay, Gersch & Schell; ex parte A-G (Qld) [2005] QCA 467 at [45].
At the hearing of the appeal, the appellant’s counsel referred the Court to two single judge District Court decisions relating to sentences imposed for this type of offence. In both cases, the respective defendants pleaded guilty. These were not put before the sentencing magistrate. While they may stand as a yardstick, they do not set ‘the boundaries within which future judges must, or ought to sentence’.[6]
[6] Hili v The Queen (2010) 242 CLR 520 at [537].
In R v Duncan,[7] police were called to a domestic disturbance during which the defendant threw one punch at a police officer which did not result in any particular injuries. His conduct was far less serious than that of his brother and father. Whilst it is instructive, it seems from the sentencing remarks that the defendant’s conduct was at the lower end of the scale of seriousness for the offence charged.
[7] Unreported, Bowskill QC DCJ, 18 July 2016.
In R v Nona,[8] the defendant was noticed by two plain-clothes police officers to be fighting his cousin in public. When approached by police, he struck one of them on the back of his head behind his right ear. The police officer fell to the ground and the defendant stood over him yelling obscenities. The police officer suffered a fractured wrist. The defendant did not initially realise they were police officers. The defendant was 20 years of age. He was in the Army Reserve. He had a minor criminal history related to drugs. His Honour noted that while a serious assault on a police officer with lasting consequences would normally mandate that a conviction be recorded, one was not recorded. This is because the defendant’s counsel had been unable to indicate whether the recording of a conviction would preclude the defendant from continuing with the Army Reserve.
[8] Unreported, Everson DCJ, 15 October 2010.
It is not possible to discern from these two single judge decisions a clear line of authority that would lead to the conclusion that the learned magistrate erred in the recording of the conviction.
The discretion of the sentencing magistrate ought to be reviewed in the context of the whole sentence. The appellant’s favourable antecedents needed to be weighed against the seriousness of the offence. Given that this was not a case where there was evidence that a conviction would adversely affect the appellant’s economic or social well-being or chances of finding employment, the recording of the conviction was within an appropriate exercise of judicial discretion.
For these reasons, I have been unable to identify any manifestation of the application of erroneous principles. It has also not been demonstrated that the exercise of the learned magistrate’s discretion to record a conviction was inappropriate. Accordingly, the appeal is dismissed.