Gregory v Queensland Police Service

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DISTRICT COURT OF QUEENSLAND

CITATION:

Gregory v Queensland Police Service [2021] QDC 342

PARTIES:

GREGORY, Sarah Jennifer

(Appellant)

v

QUEENSLAND POLICE SERVICE

(Respondent)

FILE NO:

6 of 2022

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Mornington Island Magistrates Court

DELIVERED ON:

17 September 2021 (delivered ex tempore)

DELIVERED AT:

Mount Isa

HEARING DATE:

17 September 2021

JUDGE:

Dearden DCJ

ORDER:

1.   Appeal granted.

2.   Set aside the following re-sentences imposed on 10 August 2021 at the Mornington Island Magistrates Court:

(a)   Assault occasioning bodily harm whilst armed in company (8/12/2016) – six months imprisonment.

(b)  Failure to appear in accordance with an undertaking (9/1/2018) – one month imprisonment (cumulative).

(c)   Failure to appear in accordance with an undertaking (18/1/2017) – one month imprisonment (cumulative).

(d)  Failure to appear in accordance with an undertaking (13/4/2017) – one month imprisonment (cumulative).

(e)   Contravention of release conditions (9/12/2016) – one month imprisonment (concurrent).

(f)    Going armed so as to cause fear (23/12/2019) – three months imprisonment (concurrent).

3.   Substitute an order that the appellant be convicted and not further punished in respect of each of those periods of imprisonment set aside in paragraph (2).

4.   Fix parole release date at 17 September 2021.

5.   The appellant is released subject to the conditions of Corrective Services Act2006 (Qld) s 200 and the Penalties and Sentences Act1992 (Qld) s 160G.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – MAGISTRATE ACTED ON WRONG PRINCIPLE – where the magistrate imposed a sentence of actual custody – where prosecution made no submission on penalty – where defence made submissions for a cumulative sentence of up to six months with immediate parole release – whether the magistrate erred in failing to provide the opportunity to make submissions on whether a sentence of actual imprisonment was appropriate

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – whether the sentence imposed was manifestly excessive

LEGISLATION:

Corrective Services Act 2006 (Qld) s 200

Justices Act 1886 (Qld) ss 222, 223

Penalties and Sentences Act 1992 (Qld) s 160G

CASES:

ARS v QPS [2018] QDC 103

Dinsdale v R [2000] 115 A Crim R 558

Forrest v the Commissioner of Police [2017] QCA 132

McDonald v Queensland Police Service [2017] QCA 255

Mill v R [1998] 166 CLR 59

Postiglione v R [1997] 189 CLR 295
COUNSEL:

A Palombo (sol) for the appellant

M Mahlouzarides for the respondent

SOLICITORS:

Aboriginal and Torres Strait Islander Legal Service for the appellant
Office of the Director of Public Prosecutions for the

respondent

Introduction

  1. The appellant appeals in respect of the sentences imposed by the learned magistrate at Mornington Island on 10 August 2021, the details of which will be set out below in this judgment.

    Grounds of Appeal

  2. The appellant’s grounds of appeals are:

    (1)The magistrate erred in failing to afford the…

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Details
Case
[2021] QDC 342
Decision Date

CaseChat Overview and Summary

In the matter of Gregory v Queensland Police Service, the appellant contested the sentence imposed by the magistrate in the Mornington Island Magistrates Court. The primary issue before the court was whether the learned magistrate erred in imposing a sentence involving actual custody without affording the opportunity for the prosecution or the defence to be heard on the matter. Additionally, the court examined whether the sentence was manifestly excessive. The appellant argued that the magistrate breached the principles of natural justice by not allowing the parties to address the court on the question of imposing actual custody. The respondent conceded this point, acknowledging that the magistrate should have indicated that actual custody was being considered to allow the parties a reasonable opportunity to be heard.

The court, upon reviewing the evidence and the magistrate's sentencing remarks, found that the learned magistrate did not provide the requisite opportunity for the parties to address the court on the issue of imprisonment, thereby breaching natural justice. The court concluded that the imposition of a sentence of imprisonment, without proper submissions from either party, was inappropriate. The respondent conceded this point, and the court agreed with the respondent's submission that the learned magistrate should have called for submissions on the question of imposing actual custody. Furthermore, the court found that the sentence imposed was manifestly excessive, given the defence's submissions for a cumulative sentence of up to six months with immediate parole release.

The court granted the appeal, setting aside the re-sentences imposed by the magistrate. The court substituted an order that the appellant be convicted and not further punished in respect of the periods of imprisonment set aside. The court fixed the parole release date at 17 September 2021 and ordered the appellant's release subject to the conditions of the Corrective Services Act 2006 (Qld) and the Penalties and Sentences Act 1992 (Qld).

Orders

Orders of the court

1. Appeal granted.

2. Set aside the following re-sentences imposed on 10 August 2021 at the Mornington Island Magistrates Court:

(a) Assault occasioning bodily harm whilst armed in company (8/12/2016) – six months imprisonment.

(b) Failure to appear in accordance with an undertaking (9/1/2018) – one month imprisonment (cumulative).

(c) Failure to appear in accordance with an undertaking (18/1/2017) – one month imprisonment (cumulative).

(d) Failure to appear in accordance with an undertaking (13/4/2017) – one month imprisonment (cumulative).

(e) Contravention of release conditions (9/12/2016) – one month imprisonment (concurrent).

(f) Going armed so as to cause fear (23/12/2019) – three months imprisonment (concurrent).

3. Substitute an order that the appellant be convicted and not further punished in respect of each of those periods of imprisonment set aside in paragraph (2).

4. Fix parole release date at 17 September 2021.

5. The appellant is released subject to the conditions of Corrective Services Act 2006 (Qld) s 200 and the Penalties and Sentences Act 1992 (Qld) s 160G.

Background

Background to the litigation

In Forrest v the Commissioner of Police [2017] QCA 132, at p 5, Sofronoff P stated:…an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence, and make up its own mind about the case.Factual Background The sentence proceeding on 10 August 2021 was complex and required the learned magistrate to resentence the appellant on a number of charges, to sentence on a number of new charges, and also, to invoke a series of suspended sentences, which had been breached by the fresh offending. The appellant’s helpful outline summarises the outcome of those proceedings as follows:[1][1] Exhibit 1 – outline of submissions on behalf of the appellant, [2]. The effective outcome of the sentence was a total sentence of 12 months imprisonment, with a parole release date of 25 October 2021, being effectively two and a half months in custody.[2][2] Exhibit 4, decision, p 4.Ground 1 – Failure to Afford Natural Justice The appellant submits that the learned magistrate imposed a sentence involving actual custody, without giving either the prosecution or defence the opportunity to be heard. Relevantly, the prosecution made no submission on penalty, and the defence submission was for an effective, cumulated sentence of up to six months, with an immediate parole release date.[3][3] Exhibit 3, sentence submissions, 1-3, 1-5. The learned magistrate commenced his sentencing remarks as follows:Stand up, Sarah Gregory. Well, you wore us out. We gave you all the chances we could, that’s the court, and you – you thumbed your nose at us and the court and – and here we are. So today, you’ve got to be sentenced to a term of imprisonment, and you’ll do some time, and then you’ll be released on parole. In ARS v QPS [2018] QDC 103, Fantin DCJ helpfully articulated the obligations of natural justice where a court is considering a sentence more severe than contended for, in these terms: –[36] As a general proposition it is appropriate for a court, if considering imposing a sentence more severe than the range suggested by the prosecutor, to give notice of that, so that the defendant’s representative may address matters on that basis [R v Cunningham [2005] QCA 321; R v Wilson [2016] QCA 301 [6]]. This applies particularly where there is some unusual feature in the sentence the court has in mind. [R v Kitson [2008] QCA 86 [21]]. [37] ... The magistrate erred in failing to afford the appellant’s solicitor the opportunity to address him in relation to whether a sentence of imprisonment was appropriate. To impose a sentence of imprisonment in the circumstances of this particular offence and the appellant’s antecedents, where no party had addressed the court on that possibility and where the court had not indicated it was considering it, was a breach of the rule of natural justice. The respondent concedes the breach of the principles of natural justice,[4] and acknowledges that “the learned magistrate ought to have indicated that he was considering actual custody, so that the parties had a reasonable opportunity to be heard.”[5] I respectfully adopt the terms of the respondent’s submission. Clearly, in the circumstances of this matter, the learned magistrate should have called for submissions on the question of imposing actual custody, given that was within his contemplation. [4] Exhibit 2 – outline of submissions on behalf of the respondent [10].[5] Exhibit 2 – outline of submissions on behalf of the respondent [11].Ground 2 – Manifestly Excessive

Evidence

Evidence Before The Court

Justices Act 1886 (Qld) s 223 provides:Appeal generally a rehearing on the evidence:(1)An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.(2)However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.(3)If the court gives leave under subsection (2), the appeal is – (a) by way of rehearing on the original evidence; and(b) on the new evidence adduced. In McDonald v Queensland Police Service [2017] QCA 255 at [47], Bowskill J stated:It is well established that, on an appeal under Justices Act 1886 (Qld) s.222, by way of a rehearing, the District Court is required to conduct a real review of the trial, and the magistrate’s reasons, and make its own determination of the relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error. [citations deleted] In Forrest v the Commissioner of Police [2017] QCA 132, at p 5, Sofronoff P stated:…an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence, and make up its own mind about the case.Factual Background The sentence proceeding on 10 August 2021 was complex and required the learned magistrate to resentence the appellant on a number of charges, to sentence on a number of new charges, and also, to invoke a series of suspended sentences, which had been breached by the fresh offending. The appellant’s helpful outline summarises the outcome of those proceedings as follows:[1][1] Exhibit 1 – outline of submissions on behalf of the appellant, [2]. The effective outcome of the sentence was a total sentence of 12 months imprisonment, with a parole release date of 25 October 2021, being effectively two and a half months in custody.[2][2] Exhibit 4, decision, p 4.Ground 1 – Failure to Afford Natural Justice The appellant submits that the learned magistrate imposed a sentence involving actual custody, without giving either the prosecution or defence the opportunity to be heard. Relevantly, the prosecution made no submission on penalty, and the defence submission was for an effective, cumulated sentence of up to six months, with an immediate parole release date.[3][3] Exhibit 3, sentence submissions, 1-3, 1-5. The learned magistrate commenced his sentencing remarks as follows:Stand up, Sarah Gregory. Well, you wore us out. We gave you all the chances we could, that’s the court, and you – you thumbed your nose at us and the court and – and here we are. So today, you’ve got to be sentenced to a term of imprisonment, and you’ll do some time, and then you’ll be released on parole. In ARS v QPS [2018] QDC 103, Fantin DCJ helpfully articulated the obligations of natural justice where a court is considering a sentence more severe than contended for, in these terms: –[36] As a general proposition it is appropriate for a court, if considering imposing a sentence more severe than the range suggested by the prosecutor, to give notice of that, so that the defendant’s representative may address matters on that basis [R v Cunningham [2005] QCA 321; R v Wilson [2016] QCA 301 [6]]. This applies particularly where there is some unusual feature in the sentence the court has in mind. [R v Kitson [2008] QCA 86 [21]]. [37] ... The magistrate erred in failing to afford the appellant’s solicitor the opportunity to address him in relation to whether a sentence of imprisonment was appropriate. To impose a sentence of imprisonment in the circumstances of this particular offence and the appellant’s antecedents, where no party had addressed the court on that possibility and where the court had not indicated it was considering it, was a breach of the rule of natural justice.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.