Hunter v Queensland Police Service - [2021] QDC 273

DISTRICT COURT OF QUEENSLAND

CITATION:

Hunter v Queensland Police Service [2021] QDC 273

PARTIES:

MALI-NOI HUNTER

(Appellant)

v

QUEENSLAND POLICE SERVICE

(Respondent)

FILE NO:
122 of 2021

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Cairns

DELIVERED ON:

17 November 2021

DELIVERED AT:

Cairns

HEARING DATE:

5 November 2021

JUDGE:

Coker DCJ

ORDER:

1.   Leave granted to adduce fresh evidence;

2.   Appeal against sentence allowed;

3.   The sentences imposed on 17 August 2021 are discharged and in substitution thereof the following:

a.   In respect of charge 1 of 1 on Bench Charge Sheet Numbered 13517215, order that the appellant serve a period of 18 months probation.

b.   In respect of Charge 1 of 1 on Bench Charge Sheet Numbered 223124208, order that the appellant serve a period of 18 months probation.

c.   In respect of Charge 1 of 1 on Bench Charge Sheet Numbered 223133207, order the appellant serve a period of 18 months probation.

d.   In respect of charge 1 of 3 on Bench Charge Sheet numbered 109125211, order that the appellant serve a period of 14 months imprisonment.

e.   In respect of charge 2 of 3 on Bench Charge sheet numbered 109125211, order that the appellant be imprisoned for a period of 12 months, to be served concurrent with the 14 month period of imprisonment.

f.    In respect of Charge 3 of 3 on Bench Charge Sheet numbered 109125211, order that the appellant serve a period of 1 month imprisonment to be served cumulative upon the period of 14 months imprisonment.

g.   In respect of Charge 1 on Bench Charge Sheet numbered 133721215, order that the appellant be convicted but not further punished.

h.   Order that the term of imprisonment be suspended from 24 November 2021; and the defendant must not commit another offence punishable by imprisonment within a period of 2 years if the defendant is to avoid being dealt with for the suspended terms of imprisonment.

i.    Declare 53 day of pre-sentence custody from 25 June 2021 to 17 August 2021 and declare 84 days from 17 August 2021 to 9 November 2021.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – Section 222 Justices Act 1886 – where the appellant pleaded guilty to two charges of stealing, two charges of shop steal, one charge of common assault, one charge of entering or remaining in a casino and one charge of failing to appear – where the appellant was sentenced to a total period of imprisonment of 18 months with a parole eligibility date fixed at 17 August 2021 – where evidence was not adduced at sentence as to the appellant’s longstanding mental health issues – whether the uncertainties with parole gave rise to the sentence being manifestly excessive – whether leave should be given to adduce evidence as to the appellant’s mental health – whether evidence as to medical records might reasonably have led the learned Magistrate to return a different verdict.

LEGISLATION:

Casino Control Act 1982

Justices Act 1886 (Qld)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QDC 273
Decision Date: 17 November 2021

CaseChat Overview and Summary

Hunter appealed against his sentence following his conviction on several charges, including stealing, shop stealing, assault, unlawful entry to a casino, and failing to appear. The Queensland Police Service was the respondent. The appellant argued that his sentence was manifestly excessive and that the magistrate should have been made aware of his longstanding mental health issues. The appeal raised the question of whether the magistrate would have returned a different verdict had they been aware of the appellant's mental health issues. The court considered whether the evidence of mental health issues could reasonably have led the magistrate to return a different verdict. The court found that the evidence was credible and that it could reasonably have led to a different verdict. The court noted that mental health issues can affect sentencing in several ways, including reducing moral culpability, affecting the type and conditions of the sentence, and mitigating punishment where there is a risk of significant adverse effects on the offender's mental health. The court granted leave to adduce fresh evidence and allowed the appeal against sentence.

The court concluded that the appellant's sentence was manifestly excessive and that the magistrate should have been made aware of his mental health issues. The court found that the evidence of mental health issues could reasonably have led to a different verdict. The court noted that the appellant's mental health issues could have reduced his moral culpability, affected the type and conditions of the sentence, and mitigated punishment where there was a risk of significant adverse effects on his mental health. The court granted leave to adduce fresh evidence and allowed the appeal against sentence. The court ordered that the appellant serve a period of 18 months probation for three charges, 14 months imprisonment for one charge, 12 months imprisonment for another charge to be served concurrently, 1 month imprisonment for another charge to be served cumulatively, and be convicted but not further punished for another charge. The court also ordered that the term of imprisonment be suspended and that the appellant must not commit another offence punishable by imprisonment within a period of 2 years if he is to avoid being dealt with for the suspended terms of imprisonment. The court declared 53 days of pre-sentence custody and 84 days of sentence.

Orders

Orders of the court

1. Leave granted to adduce fresh evidence;

2. Appeal against sentence allowed;

3. The sentences imposed on 17 August 2021 are discharged and in substitution thereof the following:

a. In respect of charge 1 of 1 on Bench Charge Sheet Numbered 13517215, order that the appellant serve a period of 18 months probation.

b. In respect of Charge 1 of 1 on Bench Charge Sheet Numbered 223124208, order that the appellant serve a period of 18 months probation.

c. In respect of Charge 1 of 1 on Bench Charge Sheet Numbered 223133207, order the appellant serve a period of 18 months probation.

d. In respect of charge 1 of 3 on Bench Charge Sheet numbered 109125211, order that the appellant serve a period of 14 months imprisonment.

e. In respect of charge 2 of 3 on Bench Charge sheet numbered 109125211, order that the appellant be imprisoned for a period of 12 months, to be served concurrent with the 14 month period of imprisonment.

f. In respect of Charge 3 of 3 on Bench Charge Sheet numbered 109125211, order that the appellant serve a period of 1 month imprisonment to be served cumulative upon the period of 14 months imprisonment.

g. In respect of Charge 1 on Bench Charge Sheet numbered 133721215, order that the appellant be convicted but not further punished.

h. Order that the term of imprisonment be suspended from 24 November 2021; and the defendant must not commit another offence punishable by imprisonment within a period of 2 years if the defendant is to avoid being dealt with for the suspended terms of imprisonment.

i. Declare 53 day of pre-sentence custody from 25 June 2021 to 17 August 2021 and declare 84 days from 17 August 2021 to 9 November 2021.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

An application to adduce new evidence is made pursuant to the provisions of s 223(2) of the Justices Act 1886 (Qld). S 223 is in these terms: 223 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. The appellant acknowledged that such an appeal as arises pursuant to s 222 is generally conducted by way of a rehearing or the evidence given in the proceedings before the justices. However, s 223(2) provides for the granting of leave if the court is satisfied that there are special grounds for giving leave. Special grounds are not defined and as such can arise in many and varied ways. As was submitted by the appellant, Judge Fantin of this court, provided a useful guide to identifying ‘special grounds’ in Holden v Queensland Police Service [2018] QDC 217 noting the comments of the High Court in Gallagher v R (1986) 160 CLR 392 which was affirmed by the Queensland Court of Appeal in Pavlovic v Commission of Police [2006] QCA 134. The first of the factors to consider is whether the evidence could with reasonable diligence have been produced and that is accepted. However, that initial failure to provide is not an insurmountable hurdle and the strength and significance of the evidence must still be considered. Secondly, the court must consider the credibility of the evidence and the evidence sought to be relied on here is credible. Additionally, however there needs also to be consideration of whether that evidence, if accepted or believed might reasonably have led a tribunal of fact to return a different verdict. Such a situation arises in this case and as was noted in R v Verdins (2007) 16 VR 269 and affirmed in R v Yarwood (2011) 220 A Crim R 497:“Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hunter v Queensland Police Service [2021] QDC 273
PARTIES:	MALI-NOI HUNTER (Appellant) v QUEENSLAND POLICE SERVICE (Respondent)
FILE NO:	122 of 2021
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Cairns
DELIVERED ON:	17 November 2021
DELIVERED AT:	Cairns
HEARING DATE:	5 November 2021
JUDGE:	Coker DCJ
ORDER:	1. Leave granted to adduce fresh evidence; 2. Appeal against sentence allowed; 3. The sentences imposed on 17 August 2021 are discharged and in substitution thereof the following: a. In respect of charge 1 of 1 on Bench Charge Sheet Numbered 13517215, order that the appellant serve a period of 18 months probation. b. In respect of Charge 1 of 1 on Bench Charge Sheet Numbered 223124208, order that the appellant serve a period of 18 months probation. c. In respect of Charge 1 of 1 on Bench Charge Sheet Numbered 223133207, order the appellant serve a period of 18 months probation. d. In respect of charge 1 of 3 on Bench Charge Sheet numbered 109125211, order that the appellant serve a period of 14 months imprisonment. e. In respect of charge 2 of 3 on Bench Charge sheet numbered 109125211, order that the appellant be imprisoned for a period of 12 months, to be served concurrent with the 14 month period of imprisonment. f. In respect of Charge 3 of 3 on Bench Charge Sheet numbered 109125211, order that the appellant serve a period of 1 month imprisonment to be served cumulative upon the period of 14 months imprisonment. g. In respect of Charge 1 on Bench Charge Sheet numbered 133721215, order that the appellant be convicted but not further punished. h. Order that the term of imprisonment be suspended from 24 November 2021; and the defendant must not commit another offence punishable by imprisonment within a period of 2 years if the defendant is to avoid being dealt with for the suspended terms of imprisonment. i. Declare 53 day of pre-sentence custody from 25 June 2021 to 17 August 2021 and declare 84 days from 17 August 2021 to 9 November 2021.
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – Section 222 Justices Act 1886 – where the appellant pleaded guilty to two charges of stealing, two charges of shop steal, one charge of common assault, one charge of entering or remaining in a casino and one charge of failing to appear – where the appellant was sentenced to a total period of imprisonment of 18 months with a parole eligibility date fixed at 17 August 2021 – where evidence was not adduced at sentence as to the appellant’s longstanding mental health issues – whether the uncertainties with parole gave rise to the sentence being manifestly excessive – whether leave should be given to adduce evidence as to the appellant’s mental health – whether evidence as to medical records might reasonably have led the learned Magistrate to return a different verdict.
LEGISLATION:	Casino Control Act 1982 Justices Act 1886 (Qld)