Bob v Commissioner of Police

[2024] QDC 213

DISTRICT COURT OF QUEENSLAND

CITATION:

Bob v Commissioner of Police [2024] QDC 213

PARTIES:

BOB, Romeo James

(Appellant)

v
COMMISSIONER OF POLICE

(Respondent)

FILE NO/S:

Appeal No. 1954 of 2024

DIVISION:

Appellate

PROCEEDING:

Section 222 Appeal

ORIGINATING COURT:

Magistrates Court at Richlands

DELIVERED ON:

28 October 2024 (ex tempore)

DELIVERED AT:

Brisbane District Court

HEARING DATE:

28 October 2024

JUDGES:

Chief Judge Devereaux SC

ORDER:

1.   Appeal allowed.

2.   The Magistrates decisions is varied by amending it such that no conviction is recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL – s 222 Justices Act 1886 (Qld) – appeal against sentence – where the appellant was charged with a breach of bail condition – where the appellant had no criminal history – whether discretion was miscarried and a conviction should not have been recorded

LEGISLATION:

Justices Act 1886 (Qld)

Penalties and Sentences Act 1992 (Qld)

COUNSEL:

S Mansell for the appellant.
A Thomas for the respondent.

SOLICITORS:

Legal Aid Queensland for the appellant.

Office of the Director of Public Prosecutions for the respondent.

1. The appellant was convicted in his absence, pursuant to section 142A Justices Act 1886 (Qld), of the charge of breaching a bail condition. This occurred on 12 July 2024. At that time, as evidenced by the bench charge sheet, he was 19 years old, having been born on 2 October 2004. There was no material before the learned Magistrate to suggest a criminal history. There is, before me, in affidavit material, the criminal history, which contains only the record of this offence. The prosecutor below told the Magistrate the appellant was released on 23 May 2024 to appear again on 11 September 2024. The bail conditions included that he report Mondays and Fridays. He failed to report by 6 pm on Monday, 27 May 2024.

2. He did, the prosecutor told the Magistrate, attend and report on 28 May at 5.20 pm. He then stated that there was not any emergency reason for his failure to report the day before. He had just completely forgotten to attend. The learned Magistrate said: Section 142A had been complied with. He is convicted and fined $400, two months to pay, conviction is recorded.

3. Five days later on 17 July 2024, the appellant’s solicitors filed a Notice of Appeal to this court. The appeal is on the basis that the sentence was excessive because of the recording of the conviction. It is clear that his Honour turned his mind to whether a conviction should be recorded because his Honour announced that a conviction would be recorded. The respondent today does not oppose the appeal being allowed on the basis that the exercise of discretion under section 12 Penalties and Sentences Act 1992 (Qld) miscarried. I respectfully think that is a proper concession to make, and the appeal will be allowed.

4. There was really no material before the court, and one must be careful not to criticise a busy court dealing with matters in the absence of the defendant because the defendant had failed to show up, particularly where the judicial officer is experienced and must be taken to be aware of relevant legislation.  But as both parties submit on this appeal, this was, in the scheme of things, not a serious offence, and so far as it matters, it was remedied the next day when the appellant, as it appears, voluntarily reported and explained that he had simply forgotten.  That occurred in May, and there seems to have been no report of further failures, either before the Magistrate or in the material today.  He was 19 years old. 

5. In the circumstances, I accept the submission jointly made, that the discretion miscarried and that no conviction should have been recorded.  The decision of Magistrate will be varied such that no conviction is recorded. 

6. Before leaving the matter, it is important to say one other thing. The case before the learned Magistrate was dealt with under section 142A Justices Act 1886 (Qld). That law provides a mechanism for a defendant dealt with in his or her absence to return to the court within two months to apply for a re-hearing of the complaint.

7. Now, arguably, that course was open to this appellant, but it has not been canvassed in submissions, and in any case, lawyers on his behalf filed the appeal.  It might be that that was indeed the correct approach because the issue was not one that went to whether the defendant was guilty of the charge, so that, in that sense, it was not a challenge to the determination of the matter of the complaint (section 142A (10)).  In any case, the two months has now lapsed.  It would be unjust to deny the appellant the opportunity to challenge the order when, if there was an error, it was at the hands of his, no doubt, well-meaning solicitors.  In the circumstances of this case, I am satisfied that should not prevent the appeal proceeding.  The order will be as I said.