Ongart v Commissioner of Police

[2009] QDC 289

DISTRICT COURT OF QUEENSLAND

CITATION:	Ongart v Commissioner of Police [2009] QDC 289
PARTIES:	Tony Siwath Ongart  (Appellant) v Commissioner of Police  (Respondent)
FILE NO:	465 of 2008
PROCEEDING:	Appeal against Sentence
DELIVERED ON:	2 September 2009
DELIVERED AT:	Southport
HEARING DATE:	2 September 2009
JUDGE:	C.F. Wall Q.C.
ORDER:	Appeal Allowed. Set aside sentence of 13 August 2008. In lieu thereof no conviction recorded, Recognisance under Section 31 Penalties and Sentence Act of $300 to be of good behaviour and keep the peace for 6 months. Respondent to pay costs of Appellant.
CATCHWORDS:	SUMMARY OFFENCES ACT – JUSTICES ACT – PENALTIES AND SENTENCES ACT - where no allowance had to appellant’s plea of guilty, age, financial circumstances or to the circumstances of the offence – where Magistrate’s reasons and the process followed by him were inadequate – where Magistrate’s sentencing discretion miscarried.
LEGISLATION:	Summary Offences Act 2005 Sections 6, 7 Justices Act 1886 Section 145(1) Penalties and Sentences Act 1992 Sections 31, 48
SOLICITORS:	Appellant: Self Represented Respondent: Office of the Director of Public Prosecutions
COUNSEL:	Respondent: Mr M Mitchell

HIS HONOUR:  This is an appeal against the sentence imposed on the appellant in the Magistrates Court at Southport by Mr B Kilmartin, magistrate, on the 13th of August 2008.

The appellant was convicted of committing a public nuisance contrary to section 6 of the Summary Offences Act 2005.

The bench charge sheet was in the following terms:  that on the 19th day of July 2008 at Varsity Lakes in the Magistrates Court district of Gold Coast in the state of Queensland one Tony Siwath Ongart committed a public nuisance offence.

The transcript of the proceedings is extremely brief and I will set it out in its entirety:

"UNIDENTIFIED SPEAKER:  Your Honour, the next matter is Ongart

BENCH:  Yes, Mr Ongart.

DEFENDANT:  I'm guilty, your Honour.

BENCH:  What's the public nuisance?

SNR CONST FOORT:  Urinating against a fence, your Honour, up at Mattocks Road.

BENCH:  I see.

SNR CONST FOORT:  Patrolling police observed him, your Honour.

BENCH:  Well, have you cleared up your mess?

DEFENDANT:  Yes.

BENCH:  What do you mean, you cleaned it up?

DEFENDANT:  Well, no.

BENCH:  Well, who did you think was going to clean it up for you?

DEFENDANT:  No-one.

BENCH:  No-one.  Well, is that fair?

DEFENDANT:  No.

BENCH:  No.  It's a disgraceful way for a man to behave.
You're fined $750, refer to SPER.  You can go."

The process displayed here is clearly a matter of some concern.  One can only hope that it is not reflective of a particular systematic approach to the disposition of such
matters.

The charge was not read to the appellant. Section 145 (1) of the Justices Act is in the following terms:

"145 (1) When a defendant is present at the hearing the
substance of the complaint shall be stated to the defendant and the defendant shall be asked how he or she pleads."

Sentencing here occurred in a vacuum as to the circumstances of the offence and the antecedents of the offender.

No allowance appears to have been made for the appellant's plea of guilty or his age or the circumstances of the offence. In fact, the circumstances of the offence were not known to the magistrate and were not sought by him.

The bench charge sheet has attached to it a copy of the notice to appear which was issued to the appellant.  It is in the following terms:

"That at 12.20 a.m. on Saturday 19th day of July 2008 on Mattocks Road, ...you did commit a public nuisance offence."

The bench charge sheet indicates that a conviction was recorded.

The grounds of appeal, as set out in the appellant's notice of appeal, are in the following terms:

"I appeal against the severity of this sentence.  I'm a student with no income to pay such a hefty fine.  I was caught short at 12.20 a.m. on Mattocks Road, kilometres from a public toilet, so I discreetly urinated against a fence.  I'm sorry about this offence, but what was I supposed to do?"

The reasons given by the magistrate, if that is what they can be called, are completely inadequate and reflect an abysmal failure to properly exercise the sentencing discretion.

The appellant was born on the 23rd of February 1991.  The  offence occurred on the 19th of July 2008.  He was dealt with in Court on the 13th of August 2008.  He left school in May 2008, part way through year 12.

Mr Ray Wilkie, who says he is like a stepfather to the appellant, has prepared and filed an outline of argument on behalf of the appellant.  That outline of argument is in the following terms:

My name is Ray Wilkie and I have known Tony all his life.  He is 17 years old and at the time of the offence was a student at Miami High School.

On the night in question he was walking home along Mattocks Road Varsity Lakes at 12.20 a.m. when he had a call of nature. When he realised he was not going to make it home in time and there were no public toilets around he decided that he would be able to relieve himself discreetly as it was late and there was no-one around.  Just at that moment a patrol car came along and five officers spent the next hour writing out this offence for public nuisance.

Tony is a very self conscious, shy boy who has never been in any sort of trouble with the police.  Tony stays home with his mother.  He is currently looking for work and is not receiving an unemployment benefit.

To make things harder for him to understand, his friend Ash Parker went before the Magistrate at Southport Court on 28/08/08 for the same offence of public nuisance and he received a suspended sentence with no fine.

This is our Outline of Argument.  I hope that this case can be reviewed in light of the circumstances of the offence and that Tony has no income to repay the fine."

The respondent, correctly, does not oppose the appeal.

The respondent has also tendered the Magistrates Court file relating to Ashley Parker. Ashley Parker was charged with committing a public nuisance offence contrary to section 6 of the Summary Offences Act. The offence he was charged with was
in the following terms:

"That on the 27th day of July 2008 at Miami in the Magistrates Court district of Gold Coast in the state of Queensland one Ashley Beau Parker committed a public nuisance offence."

That offence, I'm told, was also one of urinating in a public place.  Parker, like the appellant, as best I understand, had no prior convictions, no criminal history. He was placed on a 6 month $300 good behaviour bond and no conviction was recorded.

The appellant was charged under section 6 of the Summary Offences Act with committing a public nuisance. Why this was so is difficult to understand when section 7 of the Summary Offences Act contains an offence specifically designed to cover this type of conduct.

Section 7 provides, "A person must not urinate in a public place."

The penalty for an offence against section 7 is two penalty units. At the time the appellant was dealt with a penalty unit was $75.

The police appear to have overextended themselves in charging an offence against section 6 when the more appropriate offence would have been one against section 7. At any rate any fine imposed for committing a public nuisance by urinating in a public place should not normally exceed the maximum penalty for a section 7 offence.

So far as is relevant, the respondent's written submissions are in the following terms:

"4.There was no criminal history alleged at the sentence hearing by the prosecution.

15.The maximum penalty for the offence of public nuisance is 10 penalty units or 6 months' imprisonment.

17.The fine imposed by the learned Magistrate was the highest amount the learned Magistrate could have imposed pursuant to section 6(1) of the Summary Offences Act 2005.

18.It is conceded by the respondent that the learned Magistrate failed to declare that the guilty plea had been taken into account when imposing the sentence.

19.The learned Magistrate made no reference in his decision as to whether a conviction was to be recorded in respect of this offence and the court file indicates that the appellant has been convicted and fined $750.00.

20.The learned Magistrate failed to declare that he had considered whether or not to record a conviction in this matter.

21.It is conceded by the respondent that the learned Magistrate failed to take into account the financial circumstances of the appellant or the nature of the burden that payment of the fine would place on the offender.

22.Section 48(2) of the Penalties and Sentences Act 1992 allows a court to impose a fine even though it has been unable to find out about the matters referred to in paragraph 21 of this outline, however it is conceded by the respondent that the court did not make any enquires or attempt to find out the financial circumstances of the appellant (who was self represented) in this matter.

23.It is respectfully submitted that given the mitigating factors in this case, including the appellant’s age, and lack of previous criminal history that a term of imprisonment would be manifestly excessive.

24.The Crime and Misconduct Commission conducted a review of the public nuisance offence.  The review looked at the penalties applied by the Magistrates Court for the 12 month period prior to and immediately following an increase in the maximum penalties for this offence.  Some of the findings included:

a.That 92% or 13502 offenders charged with the offence of public nuisance had a fine order imposed;

b.That 1.4 % or 209 offenders received sentences of imprisonment for the offence.  (The figures include wholly and partially suspended sentences of imprisonment).

25.The review also highlighted that the most commonly imposed fine in the two year period reviewed was $100.00 and that just over half of all persons convicted of the offence had a conviction recorded.

26.That the appeal be allowed and the orders of the learned Magistrate dated 13 August 2008 be set aside;

27.That the appellant be fined the sum of $100, with no conviction recorded;

28.Alternatively, that the orders of the learned Magistrate be set aside and the matter remitted back to the Magistrates Court for fresh hearing.

Section 48 of the Penalties & Sentences Act is in the following terms:

"48 (1) If a Court decides to fine an offender, then,
in determining the amount of the fine and the way in which it is to be paid, the Court must, as far as practicable, take into account -
(a) the financial circumstances of the offender; and
(b) the nature of the burden that payment of the fine will be on the offender.

(2) The Court may fine the offender even though it has been unable to find out about the matters mentioned in subsection (1) (a) and (b).

(3) In considering the financial circumstances of the
offender, the Court must take into account any other order that it or another Court has made, or that it proposes to make -
(a) providing for the confiscation of the proceeds of crime; or
(b) requiring the offender to make restitution or pay
compensation.

(4) If the Court considers that -
(a) it would be appropriate both to impose a fine and to make a restitution or compensation order; and
(b) the offender has not enough means to pay both;
the Court must, in making its order, give more importance to restitution or compensation, though it may also impose a fine.

(5) In fixing the amount of a fine, the Court may have regard to, among other matters -
(a) any loss or destruction of, or damage caused to, a
person's property because of the offence; and
(b) the value of a benefit received by the person because of the offence."

In fining the appellant the magistrate here did not inquire as to his financial circumstances and did not inquire as to the nature of the burden that payment of a fine would impose on the appellant.  The sentencing discretion also clearly miscarried in these respects.  In fact, the magistrate did not consider at all the financial circumstances of the appellant.

The appellant clearly has no or a very limited capacity to pay a fine.  He has no criminal history.  He pleaded guilty. There were extenuating circumstances.

There was no proper case advanced here for the recording of a conviction.  One should not have been recorded.  The magistrate's sentencing discretion also miscarried in this respect.

It seems to me that the preferable course would be to allow the appeal, set aside the decision of the magistrate, and substitute for that decision a sentence consistent with the sentence imposed on Ashley Parker.

I set aside the sentence imposed in the Magistrates Court at Southport and in lieu thereof I do not record a conviction and the appellant will be placed on a good behaviour bond under section 31 of the Penalties & Sentences Act in the following terms:  I order that he be released upon entering into a recognisance in the amount of $300 on condition that he keep the peace and be of good behaviour for 6 months.

Mr Wilkie, have you had to pay any filing fees or like?

MR WILKIE:  No.

HIS HONOUR:  You haven't had to outlay any money in respect of the appeal?

MR WILKIE:  No.  They said until this appeal was heard that nothing was to be paid.

HIS HONOUR:  Yes.  But you haven't had to pay anything to have the appeal heard?

MR WILKIE:  Oh, no.

HIS HONOUR:  You didn't have to pay a filing fee for the notice of appeal or anything like that?

MR WILKIE:  Oh, I can't remember, sir, it's that long ago now.

HIS HONOUR:  Well, it doesn't seem to be that he did. Now, what I've done is I've allowed the appeal, I've set aside the sentence imposed by the magistrate.

MR WILKIE:  Yes.

HIS HONOUR:  Tony will be placed on a good behaviour bond-----

MR WILKIE:  Yes.

HIS HONOUR: -----for 6 months.  He will have to be of good behaviour for 6 months.

MR WILKIE:  Yes.

HIS HONOUR:  He will have to enter into this recognisance before he leaves the  precincts of the Court.  He will have to go to the Court office and enter into this document.  He won't have to pay any money.  He will have to pay $300 if he is not
of good behaviour in the next 6 months-----

MR WILKIE:  Yes.

HIS HONOUR: -----in other words, if he breaks the good behaviour bond.

MR WILKIE:  Yes, yes.

HIS HONOUR:  And I order that the respondent pay any fees outlaid by the appellant in relation to the prosecution of the appeal, and I can only apologise, Mr Wilkie, for the way in which the magistrate handled the matter, it was completely unacceptable.

MR WILKIE:  Thank you.  So could I ask you a question?

HIS HONOUR:  Yes.

MR WILKIE:  There's not a suspended sentence, there's nothing that will go against his name?

HIS HONOUR:  No, no, no conviction recorded.

MR WILKIE:  Thank you.

HIS HONOUR:  Just a good behaviour bond for 6 months.

MR WILKIE:  Very good.  Thank you.

HIS HONOUR:  But he will have to enter into the good behaviour bond before he leaves the Court.

MR WILKIE:  Very good.

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