R v Shambayati

[1999] QCA 102

IN THE COURT OF APPEAL	[1999] QCA 102
SUPREME COURT OF QUEENSLAND

C.A. No. 418 of 1998

Brisbane

[R v Shambayati]

THE QUEEN

v

SASAN SHAMBAYATI

(Applicant) Appellant

Pincus JA Davies JA Thomas JA

Judgment delivered 1 April 1999

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED AND
APPEAL AGAINST SENTENCE ALLOWED. ORDER AS TO SENTENCE MADE
BELOW SET ASIDE AND IN LIEU SUBSTITUTE AN ORDER THAT THE
APPELLANT BE RELEASED, WITHOUT PASSING SENTENCE ON HIM, UPON HIS
GIVING SECURITY BY RECOGNIZANCE IN THE SUM OF $2,000 TO BE OF GOOD

BEHAVIOUR FOR A PERIOD OF 12 MONTHS.

CATCHWORDS:	CRIMINAL LAW - Sentence - appellant convicted of federal offence and released upon his giving a recognizance conditioned on the performance of community service pursuant to s 20 Crimes Act 1914 (Cth) - whether community service may be imposed as a condition under s 20(1)(a)(iv).
CRIMINAL LAW - Procedure - fair trial.
Adams v Carr (1987) 26 A Crim R 372
Crimes Act 1914 (Cth) ss 20, 20AB Penalties and Sentences Act 1992 s 106
Counsel:	Appellant/applicant appeared on his own behalf Mr P J Callaghan for the respondent
Solicitors:	Appellant/applicant appeared on his own behalf Director of Public Prosecutions (Commonwealth) for the respondent
Hearing Date:	25 March 1999
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 1 April 1999

1. The appellant was convicted in the District Court on 21 October 1998 of an offence of intentionally and knowingly threatening an officer of the Australian Taxation Office, who was then carrying out his duty as such, on 12 November 1997. He was ordered to be released upon his giving security by way of a recognizance in the sum of $2,000 to be of good behaviour for a period of two years and to perform a total of 50 hours community service. He appeals against his conviction and seeks leave to appeal against that order.

2. The evidence on which the jury found the appellant guilty was that of the officer concerned and two other officers of the Australian Taxation Office. According to the first of these the appellant attended the Upper Mount Gravatt branch of the Office on 12 November 1997 for the purpose of an interview with him related to matters the subject of a court appearance the following day. The appellant attempted to provide him with some statutory declarations but the officer declined to accept them and indicated that the matter would proceed in court the following day. At that point, according to him the appellant became aggressive and said to him: "I'll wait for you outside". He also threatened him in the following terms: "I'll bury you"; "I've put bigger people than you under"; and "If you fuck me, I'll fuck you".

3. A second officer also heard the appellant say, in a raised voice "I'll bury you" but did not hear the other phrases of which the first officer gave evidence. A third officer heard the appellant say "If you fuck with me I'll fuck with you" and "If you terminate this interview I'll terminate you".

4. The appellant gave evidence denying the making of any threats, saying that, at the end of the interview he said no more than "If you don't want to see me here I can talk to you outside". There was also evidence, which the appellant disputed, that when he left the building he got into his car, drove for a short distance, doubled back in his car, alighted from his vehicle and ran into an underground carpark; and then later re-entered his vehicle and drove away.

5. In his notice of appeal the appellant stated four grounds of appeal against his conviction.

   They were that:

   (a)        the jury had difficulty in reaching a decision, and only biased directions from the trial judge made the jury come to a verdict;

   (b)        the Crown prosecutor's address was inaccurate;

   (c)        the appellant was only allowed to give evidence once;

   (d)        the learned trial judge talked more than the defence and the prosecution counsel, and favoured the prosecution.

6. In his oral submissions the appellant did not refer to all of these grounds of appeal and referred to others only in passing. His main arguments appeared to relate to two matters not relied on in his grounds of appeal. They were a letter to him from his taxation adviser and a contention that there were inconsistencies in the evidence of the prosecution witnesses which should have resulted in his acquittal. However it is convenient to deal first with the matters raised in the grounds of appeal.

7. It is true that the jury took some time to reach their verdict. They retired at 9.20 am and did not reach their verdict until 4.08 pm. It is also true that during the course of that they were given some redirections at 12.14 pm, that at 3.28 pm they indicated they were having difficulty in reaching a verdict and that the judge then gave a direction in accordance with the principles in Black v R (1993) 179 CLR 44. But the facts give no substance to the first ground of appeal.

8. As to the second ground no inaccuracies have been identified in the Crown prosecutor's address. It was not recorded but there is nothing in the summing up to indicate that anything improper was said during the course of it and no redirections were sought by the appellant's counsel.

9. The third ground is difficult to understand. There was no departure from relevant

   principle.

10. As to the final ground there is nothing in the summing up of the learned trial judge which indicates any imbalance as between the prosecution and the defence.

11. The letter from the appellant's taxation adviser to him, which the Court permitted him to hand up during the course of his submissions, was to the effect that the adviser had received a call from an unspecified officer of the Australian Taxation Office who had informed him that he should not prepare tax returns for the appellant and that, for unspecified reasons, the appellant was not an appropriate person to act for. Assuming the correctness of everything which was said in that letter and consequently that the officer who made the phone call acted quite improperly, it has no relevance to the question whether on 12 November 1997 the appellant committed the offence of which he was convicted.

12. As to the other matter raised by the appellant in his oral submissions, he pointed to a number of inconsistencies between prosecution witnesses and to other matters which he submitted should have caused the jury to have doubt as to the veracity of their evidence. However we do not think the inconsistencies to which he pointed were other than the normal inconsistencies which one finds between honest witnesses recollecting the same events. Nor do we think that the other matters to which he pointed would have been such as to cause doubt as to the veracity of the prosecution witnesses. In any event these were matters for the jury and it certainly could not be said that they were such that a reasonable jury could not have been satisfied of the appellant's guilt to the required standard.

13. The appeal against conviction should therefore be dismissed.

14. The complaint against sentence appears to be that the appellant did not wish to perform community service but was prepared to pay a fine. He invited the learned sentencing judge to impose a fine upon him. It is plain that he did not consent to the condition of the recognizance that he perform a total of 50 hours community service.

15. A community service order cannot be made under the Penalties and Sentences Act 1992 without consent of the offender: s 106. However the offence here was a federal offence and the sentence was imposed under the Crimes Act 1914 (Cth). Pursuant to s 20AB(1) of that Act, where a court is empowered under a State law to make a community service order such order may be made in respect of a person convicted of a federal offence. Where that is done the provisions of the State law with respect to that order shall, so far as they are capable of application and are not inconsistent with laws of the Commonwealth, apply in respect of that order by virtue of subs (3). Consequently the learned sentencing judge could have made a community service order but only with the consent of the appellant.

16. However that is not what her Honour purported to do. She purported to release the appellant upon his giving a recognizance conditioned on the performance by him of community service. Pursuant to s 20 of the Crimes Act, where a person is convicted of a federal offence the court may, if it thinks fit, release the person without passing sentence on him upon him giving security by recognizance or otherwise to the satisfaction of the court that he will comply with certain conditions. Those conditions may include that he will, during a period not exceeding two years that is specified in the order, comply with such conditions as the court thinks fit to specify in the order which conditions may include a period of probation: s 20(1)(a)(iv). The performance of community service is not specifically mentioned in that section but the terms of it are wide enough to include community service. However community service has no meaning or regime for its performance except relevantly under the Penalties and Sentences Act, and s 20, unlike s 20AB, does not incorporate the relevant provisions of that Act. We would conclude therefore that the only way in which community service may be imposed for a federal offence is by an order made pursuant to s 20AB which, as we have mentioned, can only be made with consent of the offender.

17. The correctness of the conclusion which we have reached was conceded by counsel for the respondent in the present case. However it appears at first sight to be inconsistent with a decision of the Full Court of South Australia in Adams v Carr (1987) 26 A Crim R 372 which permitted community service to be imposed as a condition of release on a federal offence. The relevant legislation in South Australia provided that community service could be imposed only upon discharge upon condition that the offender enter into a recognizance conditioned upon the performance of community service: Offenders Probation Act 1913 (SA) ss 4(1)(f), (2d), 5(1)(e). The relevant point in the case was whether the order for discharge under the South Australian Act was an order, in particular a community service order, under s 20AB(1). It was held that it was. It is unnecessary to consider the reasoning which led to that result. The correctness or otherwise of that decision does not affect the construction here based as it is on the premise that, because a community service order is contemplated by the legislature as one which may be made under s 20AB(1), thereby applying State law under subs (3), the legislature did not contemplate that community service could be imposed as a condition of release under s 20 which does not apply the relevant State provisions.

18. Accordingly we would conclude that her Honour had no power to make the order which she made releasing the appellant on condition that he perform community service and we would therefore set that order aside.

19. The appellant informed us that he had already performed half of the community service which the learned sentencing judge had imposed as a condition of his release. The other condition was, it will be recalled, that he be of good behaviour for a period of two years. In view of the community service already served by the appellant we would substitute for the orders made below an order that he be released, without passing sentence on him, upon his giving security by recognizance in the sum of $2,000 to be of good behaviour for a period of 12 months.