Cowen v Queensland Police Service

[2022] QDC 223

DISTRICT COURT OF QUEENSLAND

CITATION:

Cowen v Queensland Police Service [2022] QDC 223

PARTIES:

Anthony Michael COWEN

(Applicant)

v
Queensland Police Service

(Respondent)

FILE NO:

139 of 22

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to section 222 Justices Act 1866 (Qld)

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

13 October 2022 (delivered ex tempore)

DELIVERED AT:

Southport

HEARING DATE:

13 October 2022

JUDGE:

Holliday KC DCJ

ORDER:

The application for an extension of time is dismissed.

CATCHWORDS:

APPEAL – JUSTICES ACT 1886 s 222 – failure to comply with reporting obligations – wholly suspended sentence – term of imprisonment – whether wholly suspended sentence is a term of imprisonment- exceptions to reporting obligations

LEGISLATION:

Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), ss 5, 13R, 50, 54

Justices Act 1886 (Qld), ss 222 and 223

Penalties and Sentences Act 1992 (Qld), ss 4, 144, 147, 152, 160A, 160B,

CASES:

Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55

COUNSEL:

Applicant was self-represented
K Thomas (Sol) for the Respondent

SOLICITORS:

Applicant was self-represented
Office of the Director of Public Prosecutions for the Respondent

Background

1. On 17 February 2022, the applicant was convicted of failing to comply with reporting obligations pursuant to section 50(1) of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) (‘the Act’) and was released upon entering into a recognisance in the amount of $200, conditioned to be of good behaviour for a period of six months. No conviction was recorded.

2. The applicant filed a Notice of Application for Extension of Time in the Southport District Court Registry on 20 May 2022. The Notice of Appeal was filed on the same date.

3. As the applicant’s Notice of Appeal was lodged out of time, he applies for leave for an extension of time within which to appeal. The applicant is self-represented. Whilst he has not, in his filed material, expressly articulated a ground of appeal (or any reasons for the delay), it is clear that the applicant’s contention is that he could not, as a matter of law, be found guilty of the offence as he is not a reportable offender as defined in the Act.

   The applicant’s sentence in the District Court

4. On 7 August 2018, the applicant pleaded guilty to an offence pursuant to section 210 of the Criminal Code Act 1899 (Qld) of indecent treatment of a child under 16 years. The learned sentencing Judge found that there “are exceptional circumstances that warrant no actual custody being served by you”. [1] The applicant was sentenced to ten months imprisonment wholly suspended for an operational period of 18 months. The learned sentencing judge said in her sentencing remarks: “I sentence you to a period of imprisonment of 10 months, I order that the whole term of imprisonment be suspended forthwith and you must not commit another offence punishable by imprisonment within a period of 10 months if you are to avoid being dealt with for the suspended term of imprisonment.” ^[2]

   [1] Sentencing Remarks of Muir DCJ, page 4 lines 1-5.

   [2] Sentencing Remarks of Muir DCJ, page 4 lines 24-28.

   The applicant’s position on appeal

5. The applicant submits that the sentence he received did not include a “term of imprisonment”. It was a term of suspended imprisonment. As such, section 5(2)(b)(i) of the Act operates and the applicant is not a reportable offender. He submits that in the Penalties and Sentences Act 1992 (Qld), orders of imprisonment and orders of suspended imprisonment have their own differing sections. The applicant also relies on the glossary of terms in a report of the Queensland Sentencing Advisory Council, ‘Sentencing of Child Sexual Offences in Queensland Final Report (January 2012)’ (‘the Report’). He submits that imprisonment is defined for the purpose of that Report as excluding partially and wholly suspended sentences.

6. The applicant acknowledges in written submissions that he was notified that he was subject to the Act, stating that he “received a phone call 2 weeks after the fact [the sentence] by a CPOR officer telling me how I was now subject to the CPOR legislation and that I would have to report for the next 5 years…”. The applicant further acknowledges in his written submissions that his counsel informed him that he is a reportable offender, but states that this is incorrect because he was not sentenced to a “term of imprisonment” as defined in the Act.

7. The applicant concludes his written submissions with the words: “the sentence that I received did not include a term of imprisonment as it was a term of suspended imprisonment. They both have separate sections and separate provisions for each of these orders… I am not a reportable offender.”

   The respondent’s position on appeal

8. The respondent submits that the applicant’s application for leave for extension of time should be dismissed as there is no merit in the appeal. Section 5 of the Act details that a reportable offender is a person who is “sentenced for a reportable offence”. Pursuant to Schedule 1 of the Act, a “reportable offence” includes an offence under section 210 of the Criminal Code.

9. Section 5(2)(b) of the Act includes that a person is not a reportable offender if the sentence did not include a “term of imprisonment”. Pursuant to section 4 of the Penalties and Sentences Act, a “term of imprisonment” is defined as “the duration of imprisonment imposed for a single offence and includes the imprisonment an offender is serving or liable to serve… for failing to comply with a single order of the court and for an offender on whom a finite sentence has been imposed, any extension”.

10. The respondent submits that a suspended term of imprisonment is a “term of imprisonment” which carries with it, pursuant to section 152 of the Penalties and Sentences Act, a requirement that a conviction be recorded.

    The hearing below relevant to the ground of appeal

11. This issue was not raised before the learned Magistrate. Instead, when the applicant gave evidence, he stated that when he was sentenced there was no mention that he would be subject to any “arm of this Act”, and the Court had a “responsibility of actually making me aware of this actual obligation”.[3]

    [3] Transcript of Summary Hearing, 1-26 line 25 to 1-28 line 40.

12. The applicant said that he accepted that he knew about his obligations, but he did not agree with them.[4]

    [4] Transcript of Summary Hearing, 1-32 line 37.

    The applicant was sentenced to a term of imprisonment

13. A person will not be a reportable offender for the purposes of the Act if they were sentenced for a single prescribed offence, and that sentence did not include a term of imprisonment.[5] “Imprisonment” is defined in the Act as including detention under the Youth Justice Act 1992 (Qld).[6] A “term of imprisonment” is not defined in the Act. “Term of imprisonment” is defined in the Penalties and Sentences Act as the duration of imprisonment imposed for a single offence.[7] As per section 144 of the Penalties and Sentences Act, where a Court sentences an offender to imprisonment for five years or less, there is a discretion to order that the term of imprisonment be suspended.[8] Such an order may suspend the whole or a part of the term of imprisonment.[9]

    [5]Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 5(2)(b)(i).

    [6] Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), Schedule 5 Dictionary.

    [7]Penalties and Sentences Act 1992 (Qld), s 4.

    [8]Penalties and Sentences Act 1992 (Qld), s 144(1).

    [9]Penalties and Sentences Act 1992 (Qld), s 144(3).

14. The wording of the Penalties and Sentences Act makes plain that a wholly suspended sentence is a “term of imprisonment” that has been suspended. It is a matter of discretion for the sentencing Judge when an offender is sentenced to imprisonment for five years of less whether that term of imprisonment is suspended.  In this case, the applicant was sentenced to a term of imprisonment, namely 10 months. The learned sentencing Judge exercised her discretion to wholly suspend the term of imprisonment.

15. In addition to what is detailed above, in further support of this position (whilst not intending to be exhaustive) it is noted that:

    (a)section 160A(6)(c) of the Penalties and Sentences Act expressly states that sections 160B to 160D of that Act do not apply if a Court sentences an offender to a “term of imprisonment” and makes an order that the “whole or part of the term of imprisonment be suspended”;

    (b)an offender who breaches a suspended term of imprisonment is liable to serve the whole of the suspended imprisonment in custody unless the Court is of the position that it would be unjust to do so;[10]

    (c)one option for dealing with an offender for the suspended imprisonment pursuant to section 147(1)(ii)(A) of the Penalties and Sentences Act is ordering that the offender’s “term of imprisonment” be further suspended;

    (d)a suspended term of imprisonment is an order of imprisonment which requires the recording of a conviction;[11]

    (e)“supervision order” is defined in the Act as including an order that a “term of imprisonment” be suspended under the Penalties and Sentences Act.[12]

    [10]Penalties and Sentences Act 1992 (Qld), s 147(2).

    [11]Penalties and Sentences Act 1992 (Qld), s 152.

    [12] Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), Schedule 5 Dictionary.

16. In his submissions, the applicant seeks to rely upon a glossary of terms contained in the Report in support of his position.

17. As was noted by the plurality in Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 at [39]:

    “This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text. So must the task of statutory construction end.” (footnotes omitted)

18. In any event, the definitions in the Report do not support the applicant’s position. In an attachment to his outline of submissions, the applicant highlights the following definitions (amongst others):

    Term of imprisonment             The duration of imprisonment imposed for a single offence. See Penalties and Sentences Act 1994 (Qld) s 4.

    Wholly suspended sentence     The complete suspension of a term of imprisonment. The court can impose a wholly suspended sentence if an offender is sentenced to imprisonment for 5 years or less. See Penalties and Sentences Act 1994 (Qld) pt 8.

19. It is similarly made plain in the glossary of terms in the Report, as it is in the Penalties and Sentences Act, that a wholly suspended sentence is a “term of imprisonment” that is suspended.

20. The applicant was sentenced to a “term of imprisonment” and there is no merit in his appeal.

    There is no obligation on the Court to inform the defendant of his reporting obligations

21. In his outline of submissions for this appeal and in the hearing below, the applicant submits that the sentencing Judge was required by the Act to inform him of his reporting obligations, and it was an error to have not done so such that he is not subject to the Act.[13]  I propose to address this issue given the applicant is self-represented.

    [13] Transcript of Summary Hearing, 1-26 line 25 to 1-28 line 40.

22. The Act provides that a reportable offender must comply with their reporting obligations unless they have a reasonable excuse.[14] Section 50(4) states:

    “It is a defence to proceedings for an offence of failing to comply with a reporting obligation if it is established by or on behalf of the person charged with the offence that, at the time the offence is alleged to have occurred, the person had not received notice, and was otherwise unaware, of the obligation.”

    [14]Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 50(1).

23. A reportable offender is to be given written notice of their reporting obligations and the consequences which may follow should they fail to comply with the same.[15] Section 54(2)(a) of the Act requires a reportable offender to be given such a notice as soon as practicable after being sentenced for a reportable offence. This notice must be given by the entity specified in, or determined under, a regulation.[16] However, section 54(6) expressly provides that any such regulation must not specify a Court, or an officer of the Court, to be an entity unless the Court has made an offender reporting order. Muir DCJ did not make an offender reporting order at the applicant’s sentence on 7 August 2018.

    [15]Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 54(1).

    [16]Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 54(3).

24. The applicant submits that section 13R(2) of the Act imposes an obligation on a sentencing Judge to inform an offender of their reporting obligations under the Act. This is not correct. Section 13R falls under Part 3A of the Act and deals with applications to a Court for a prohibition order. The Court did not make or vary a prohibition order in this case.

25. The Court was not required to inform the applicant of his reporting obligations. As has already been detailed, the applicant accepted in both the hearing below and his outline of submissions for this appeal that he had received notice that he was subject to reporting obligations at the time of the breaching offence.[17]

    [17] Applicant’s Written Submissions, page 1 to 2; Transcript of Summary Hearing, 1-12 line 36 to 44.

    Disposition

26. There is no merit in the appeal. The application for an extension of time is dismissed.