Carl v Commissioner of Police
[2025] QDC 145
•23 July 2025 (ex tempore)
DISTRICT COURT OF QUEENSLAND
CITATION:
Carl v Commissioner of Police [2025] QDC 145
PARTIES:
JODIE LEE CARL
(appellant)
v
COMMISSIONER OF POLICE
(respondent)
FILE NO/S:
1502/25
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Redcliffe Magistrates Court
DELIVERED ON:
23 July 2025 (ex tempore)
DELIVERED AT:
Brisbane
HEARING DATE:
23 July 2025
JUDGES:
Farr SC DCJ
ORDER:
1. Appeal allowed;
2. The sentence imposed by the Magistrate on 14 May 2025 of nine months imprisonment with parole release date of 13 August 2025 is set aside;
3. The appellant is resentenced to 47 days imprisonment;
4. The appellant has spent 47 days in pre-sentence custody from 14 May 2025 to 29 June 2025, which is declared to be time served under the sentence imposed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was initially represented by a duty lawyer, who withdrew during the hearing, leaving the appellant self-represented – where the appellant was not given opportunity to engage legal representation or make submissions on resentencing – whether a denial of procedural fairness – where the sentence imposed actual custody – whether the sentence imposed was excessive
LEGISLATION:
Justices Act 1886 (Qld)
CASES:
House v the King (1936) 55 CLR 499
Chakka v Queensland Police Service [2024] QCA 213
HT v the Queen (2019) 269 CLR 403
R v Kitson [2008] QCA 86
R v JAB [2020] QCA 124
COUNSEL:
L Dawson for the appellant
Z Arnold for the respondent
SOLICITORS:
AW Bale & Son for the appellant
Office of the Director of Public Prosecutions for the respondent
The appellant was convicted and sentenced in the Magistrates Court at Redcliffe on 14 May 2025 in relation to nine breaches of a probation order imposed on 14 July 2023 and a breach of a probation order imposed on 22 August 2023. The August offence was one of assault occasioning bodily harm. In respect of that matter, the appellant was resentenced for the original offence to nine months imprisonment with a release after serving three months.
The appellant now seeks leave to amend the notice of appeal to advance the following grounds:
(a)The learned Magistrate erred in denying the appellant procedural fairness by failing to afford her an opportunity to make submissions on her behalf or in respect of the imposition of a term of actual custody; and
(b)the sentence was manifestly excessive in all the circumstances.
There is no opposition to leave being granted to allow such amendment and, in that circumstance, leave is granted. I note also that the respondent concedes that the appeal in respect of the sentence imposed in respect of that charge ought be allowed and the only dispute between the parties is to what might be considered to be the appropriate sentence on a resentencing hearing.
In the court below, the appellant appeared represented initially by a duty lawyer and submissions were made seeking to adjourn the matter to enable her retained solicitors to appear. That was not allowed, the Magistrate noting the lengthy history of the matter involving a number of adjournments. As the matter proceeded, the duty lawyer sought leave to withdraw due to some matters which were raised at the bar table and leave was granted. Thereafter, the appellant was self-represented. At that stage, the Magistrate asked the appellant if she wanted an opportunity to have a solicitor here, noting that if she did, he was intending to remand her in custody and adjourn the matter to allow her to do so, and the appellant indicated that she did not wish to do so and that she can deal with it now.
Material was provided to the court in relation to the breach of probation and the Magistrate adjourned the matter for 20-odd minutes to read the material. Upon resumption, the appellant accepted that she had breached the orders in question and the Magistrate then indicated that he did not intend to follow the recommendation which was contained within a court report to extend the probation order. The order in question was one for a period of two years. The Magistrate also indicated that he intended to resentence on the charge of assault occasioning bodily harm to a period of actual imprisonment.
The learned Magistrate said the following, “I’m intending to resentence you, particularly on the assault, and to sentence you to a period of actual imprisonment. I will adjourn the matter until tomorrow so you can avail yourself of a duty lawyer. I suggest that’s the course you take. Do you wish to do that or do you want to proceed now?” The appellant replied, “I wish to do that, your Honour.” The Magistrate said, “sorry?” The appellant said, “I wish to do that.” The Magistrate said, “Rightio. Have a seat.” The appellant said, “I’m sorry, your Honour, but-”. The Magistrate said, “I’m sorry, I can’t hear a word you’re saying. You haven’t been invited to speak. Just remain silent, please.” The appellant said, “Of course. I’ve worked so hard. They’re going to get an 18-year-old order on my children.” The Magistrate said, “Do you wish to be heard any further, Ms Frost?” Senior Constable Frost responded, “No, your Honour.” The Magistrate said, “Stand up, please. Is there anything you wish to say?” And the appellant replied, “Anything I wish to say? I really don’t even understand what’s going on.”
The appellant was then resentenced on the charge of assault occasioning bodily harm to nine months imprisonment, with a parole release date of 13 August 2025. She was convicted and not further punished in respect of the remainder of the matters.
This is an appeal brought pursuant to section 222 of the Justices Act 1886 (Cth). To succeed, the appellant must demonstrate some legal, factual, or discretionary error. The appeal is from the exercise of the sentencing discretion and therefore the appellant must establish error in the way described in House v the King (1936) 55 CLR 499, where the error resulted in a sentence which is excessive. Recently, in Chakka v Queensland Police Service [2024] QCA 213, a discussion occurred as to what must be demonstrated as an error that led to a sentence being relevantly excessive and how that interacts with section 222. In the leading judgment, Justice Brown remarked that the construction of section 222(2)(c) does not require the appellate judge to determine the degree to which the sentence can be excessive, but rather for the judge to be satisfied that absent any error, the appellate judge would in all circumstances have sentenced the defendant to a lesser sentence. Once the appellate judge is satisfied that a lesser sentence should have been imposed absent any error, the sentence should be set aside, and the appellate judge should re-exercise the sentencing discretion.
Relevant to the first amended ground of appeal, the observations of Chief Justice Kiefel, as well as Justices Bell and Keane in HT v the Queen (2019) 269 CLR 403 said:
“It is a fundamental principle of our system of justice that all courts, whether superior or inferior, are obliged to record procedural fairness to parties to a proceeding. This obligation requires not only that courts be open and judges impartial but that the person against whom a claim or charge is given be given a reasonable opportunity of being heard, which is to say appearing and presenting his or her case. In an adversarial system, it is assumed as a general rule that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. A party can only be in a position to put his or her case if the party is able to test and respond to the evidence on which an order is sought to be made.”
[10]The requirement of procedural fairness in the exercise of the sentencing discretion was also considered in R v Kitson [2008] QCA 86, where Justice Fraser reaffirmed the principle that a person must be given a reasonable opportunity both to present their case and to respond to the case advanced by the opposing party. And, I note that in the decision of the Court of Appeal in R v JAB [2020] QCA 124, the court noted how a sentencing judge might give practical effect to the principles of natural justice on sentence, relevantly in relation to this matter, noting that, “it follows that if a judge is thinking about making an order that, despite appearances, might be made, then the judge is obliged to give the parties a fair opportunity to be heard upon that issue.”[1]
[1] At [33].
[11]It is submitted in relation to this matter that from the outset of the proceedings the learned Magistrate limited or curtailed any opportunity for the appellant to make submissions on her behalf, either directly or through her duty lawyer. It is also submitted that when the Magistrate indicated that he was considering actual custody, he misconstrued the answer of the appellant to his offer to adjourn, and the appellant was then sentenced to imprisonment with no opportunity to make submissions on penalty. I agree with that submission. The record does show that the appellant was indicating that she wished to adjourn to enable representation to be organised, but the Magistrate has misunderstood the answer that she gave. The Magistrate, at the very least, ought to have clarified that issue and the confusion seems to have resulted from the double-barrelled question that he asked her at the time. The effect of that was that the appellant was not given the opportunity to make submissions and, in fact, placed on the record that she did not understand what was happening. In the circumstances that she found herself in, believing that she had asked for the matter to be adjourned to enable legal representation to be present, that confusion on her part is understandable.
[12]As I have indicated earlier, the respondent concedes that the way in which the sentence was conducted amounted to a denial of procedural fairness for the appellant and that she was not afforded the opportunity offered to her to engage legal representation nor to make proper submissions on her behalf. The respondent also concedes that the sentence of nine months imprisonment with three months actual custody was excessive in all the circumstances. The respondent initially submitted that a sentence that did not require actual imprisonment would have fallen within the sound sentencing discretion but, given the fact that the appellant has now served 47 days in custody, has submitted that a sentence of 47 days with a declaration of time served would be appropriate.
[13]Insofar as the initial offence of assault occasioning bodily harm is concerned, it involved an act committed near the complainant’s home at a time when the complainant was assisting the appellant. The assault involved a number of actions. The appellant initially pushed the complainant and the complainant pushed back. The appellant then delivered two punches and she subsequently placed the complainant in a headlock on the ground. The assault ceased when the complainant managed to break free and then restrained the appellant until a bystander intervened. So there was some degree of protraction to this incident. It involved a number of applications of force by the appellant. She was 38 years of age at the time, so she was of a mature age. I note that she had no relevant criminal history for offences of violence. The complainant sustained a swollen black eye, and the appellant gave some false statements to police when she spoke to police officers.
[14]The appellant’s performance on probation is an issue before me today. The respondent has described it as poor. The appellant’s legal representation has submitted that the evidence showed that it was poor but improving, without going through the particular details of it. But, the simple fact of the matter is that her noncompliance with probation commenced within one week of starting the order when she failed to report and she subsequently failed to report on 20 occasions. It was also said she failed to properly engage in any treatment and intervention programs to address her rehabilitation needs, and that she had demonstrated a poor attitude towards supervision. Initially she was considered unsuitable for further community-based orders.
[15]Three reports were before the court. In the third report it was identified that she had expressed a willingness to re-engage but she failed to report as directed. She then attended the office on two occasions, but these were not scheduled appointments and she could not be seen at those times, and she subsequently failed to report twice more. It has been submitted on behalf of the respondent that this is not demonstrative of a genuine effort to re-engage and comply with the order, in particular in circumstances where she knew breach proceedings had been commenced against her. I tend to agree with that assessment. The legal representatives for the appellant submit that a further period of probation, given her belated efforts at compliance, would be appropriate in all the circumstances of this matter.
[16]An important feature, as I have already identified, is the fact that the appellant has spent 47 days in custody before being granted bail pending appeal. The nature of the offending conduct, whilst serious, is not one that ordinarily ought to have resulted in a sentence that required immediate actual imprisonment and there may have been a number of options open to the court at that initial stage. But the fact that she has now served 47 days in pre-appeal hearing custody is a relevant consideration on sentence and it seems to me that an appropriate outcome for this entire matter is to sentence the appellant to that 47-day period and declare the time as having already been served and that is the order that I intend to make.
[17]The orders of the court are:
1. The appeal is allowed;
2. The sentence imposed by the Magistrate on 14 May 2025 of nine months imprisonment with parole release date of 13 August 2025 is set aside; and
3. The appellant is re-sentenced to 47 days imprisonment; and
4. The appellant has spent 47 days in pre-sentence custody from 14 May 2025 to 29 June 2025, which is declared to be time served under the sentence imposed.
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