R v Tommekand

[1994] QCA 555

IN THE COURT OF APPEAL [1994] QCA 555

SUPREME COURT OF QUEENSLAND

C.A. No. 233 of 1994

Brisbane

[R v. Tommekand]

THE QUEEN

v.

JOHN HUGH TOMMEKAND

Appellant

Macrossan C.J.

McPherson J.A.

Mackenzie J.

Judgment delivered 21/12/1994

The Chief Justice and Mr Justice McPherson delivering joint reasons. Mr Justice Mackenzie delivering separate dissenting reasons.

ORDER THAT THE CONVICTION ENTERED AND THE SENTENCE IMPOSED BELOW
BE SET ASIDE

CATCHWORDS:JUSTICES - jurisdiction - accused charged with stealing boat - no circumstance of aggravation charged - boat worth about $60,000 - whether s443(1)(a) of Code confers jurisdiction on magistrate - whether magistrate can commit for sentence if no jurisdiction - s104 and s113 Justices Act discussed.

CRIMINAL LAW - pleas - accused pleaded guilty to charge - accused legally represented - whether plea can be set aside - whether Kimorley v. Atherton principle applicable - whether s.147A of Justices Act available.

Counsel:  Mr A. Kimmins for the Appellant

Mr W. Clark for the Respondent

Solicitors:  Bell Rapp & Partners for the Appellant

Director of Prosecutions for the Respondent

Hearing Date(s):29 August 1994

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 233 of 1994

Brisbane

Before Macrossan CJ
McPherson JA

Mackenzie J

[R v. Tommekand]

THE QUEEN

v.

JOHN HUGH TOMMEKAND

Appellant

JOINT REASONS FOR JUDGMENT

THE CHIEF JUSTICE and MR JUSTICE McPHERSON

Judgment delivered 21/12/1994

The appellant pleaded guilty to a charge that on 21 January

1994 at the Gold Coast he stole a boat and trailer the property

of a person, Serre, named in the charge. The appellant had been charged jointly with his son, Scott Tommekand who was seventeen years old at the date of the offence.

Following his plea the appellant was, on 2 June 1994, convicted and sentenced to a term of imprisonment for twelve months. It was ordered that the sentence should be suspended after the defendant had served a period of imprisonment of three months, the suspension being conditional upon the appellant's not committing another offence punishable by imprisonment for a period of two years. The appellant was legally represented on

the occasion when the plea was entered and the sentence was

imposed.

Some days later, on 7 June 1994, an application was brought on behalf of the appellant under s.147A of the Justices Act 1886 for an order to re-open the proceedings and set aside the

conviction. The application was supported by affidavits from the appellant and the solicitor who had appeared for him on the

day he had been sentenced. The allegation made was that the

earlier order was based on or contained an error of fact. Section 147A(2) confers jurisdiction to re-open proceedings in such cases. The application was heard by the same magistrate but it was denied, the magistrate deciding that the conviction

had not been based on and did not contain any error of fact.

The notice of appeal to this Court tended to roll together

both of the earlier events. The original grounds specified

alleged that the magistrate erred in failing to re-open the proceedings pursuant to the Justices Act and in failing to set

aside the plea of guilty which had been entered. It was contended that the plea was invalid as "the facts of the case" did not establish in law the offence of stealing. The reference

here was to certain alleged "true" facts rather than the facts

upon which the magistrate had been permitted to proceed. There

was added an application for leave to appeal against sentence.

When argument on the appeal before this Court commenced,

leave was granted to add further grounds, this time more

exclusively focused upon the original conviction and order. In the new grounds it was contended that to allow the conviction to

stand would constitute a miscarriage of justice because of the existence of an error or mistake. It was also contended that by virtue of s.443(a) and (i) of the Criminal Code the

magistrate had no jurisdiction to hear the matter or had erred in the sentence which he imposed since the maximum value of the

property which he was entitled to have regard to was $2,500 or

alternately $5,000. Material placed by the prosecutor before

the court had suggested that the boat was worth some $60,000.

The fresh grounds of appeal directing attention to s.443 of

the Code may be put to one side for separate consideration.

The other grounds of appeal against conviction which the appellant seeks to raise immediately confront the well known proposition that in all ordinary circumstances a plea of guilty

is taken to involve an admission of all of the elements of the

offence to which the plea is entered. Accordingly the appellant faces difficulties in his belated attempt to suggest that he did

not at relevant times have the intent necessary to constitute
the offence of stealing.

The material now before this Court establishes that at the original hearing the police prosecutor read out the facts inscribed upon the usual QP9 form used by the prosecuting

authorities on these occasions.

It appears that the boat which was allegedly stolen was a

twenty eight foot craft, that it was on a trailer and was

accommodated at the Runaway Bay Marina. Its value was stated as being approximately $60,000. It was alleged that at about

12.20am on the morning of 21 January 1994 a security guard at the marina saw the boat and trailer being towed out of the

marina attached to a silver coloured Holden Commodore station wagon. The guard managed to obtain the registration number of the vehicle although its lights were turned out as it was driven

away. The guard also saw two male occupants in the vehicle and

obtained their descriptions.

Acting on the information supplied by the guard, the police

located the appellant with his son at a unit in an apartment

block in Taylor Street, Biggera Waters. The motor vehicle of

the description in question was in the building's basement

carpark. The appellant denied involvement in the theft and made no admissions when interviewed by police. The appellant's son agreed to be interviewed and made a number of admissions. He showed the police where the boat and trailer had been left.

These items were recovered from a grove of pine trees off the

side of the road opposite the Coombabah State Pre-School. The son's admissions also fully implicated the appellant. At the hearing on 2 June 1994, none of the facts alleged by the police

were denied by the appellant who simply entered his plea of
guilty.

In an affidavit filed when he sought a re-opening of the matter, the appellant deposed to the fact that at no time did he have an intention to permanently deprive the owner of the

possession of the boat or trailer. He claimed that his

intention was merely to use them temporarily. He also relied

upon the statement provided by his son to the police and used at the original hearing. However, these statements, when examined, were not as favourable to the appellant as he was disposed to assert.

The son's statement described the episode in this fashion. He said he and his father were sitting on their balcony having a couple of drinks and they "were just thinking how nice it would be to have a boat and just decided to go for a drive". They drove around, saw the marina, and had a look there. They

observed three boats and took one. He said it was "just a spur of the moment thing". The boat was already on the trailer and so they just connected it up to their vehicle. As they were leaving the marina they saw a man but kept on driving. When

asked what he intended to do with the boat, the son told the police that he was "not real sure what (they) were going to do

with it". They ended up dropping the boat off at a location which he later pointed out to the police. He said that he and his father decided it was "just a stupid thing to do". When they got to the place where the boat was dropped off, they had a

little trouble unhooking it from the Commodore but eventually

reversed back sufficiently to manage it and then returned to the premises where they were staying and subsequently they were

located by the police.

Admissions made by the son to the police would not, unless adopted by the appellant, have been admissible against him. On the other hand, such facts as were put by the police prosecutor

to the magistrate and allowed to pass without challenge, were

matters upon which the magistrate was entitled to rely. In the original proceedings the appellant raised no point about any absence of intention to permanently deprive the owner of his boat and trailer and pleaded guilty to the offence as charged.

His solicitor's affidavit disclosed that prior to the hearing

she and the appellant had conferred and she had received his instructions that he wanted the charges heard and determined on

that day, 2 June 1994. He had twice already travelled to the

Gold Coast from Bligh Park in New South Wales in connection with

the proceedings and it was approximately a nine hour drive.

The appellant further informed his solicitor that in his opinion

he felt he was either morally or legally guilty and accordingly

that he wished to have the matter finalised on that day. The

solicitor said she had at some stage been informed by the appellant that at the time of the offence he did not have an intention to permanently deprive the owner of his property. As

against this on the day in question the appellant clearly
instructed her to enter a plea of guilty.

There is no reason in these circumstances, why the appellant's plea should be regarded as qualified in its effect. It was deliberately entered after advice and with an awareness,

obviously enough, that it would result in a conviction with whatever consequences that entailed. Not only was the magistrate obliged to act on the plea but the circumstances in which the offence was committed, objectively considered, would tend to add support to the proposition that at the time of

taking, the appellant had the necessary intention. The boat

was deposited, whether abandoned or hidden, only after the appellant and his son were observed leaving the marina with the boat in tow. No attempt was made to return the boat and the appellant gave no information to the police about its whereabouts when he was interviewed.

Certain authorities have considered s.147A and the use to which the section can properly be put. Two Queensland cases which can be referred to are R v. Williams ex parte Biggs [1989] 1 Qd.R. 594 and Boyd v. Sandercock ex parte Sandercock [1990] 2

Qd.R. 26. Limitations upon the use of the section appear from

those authorities. From the latter case, especially at page 29,

it is clear that the section does not authorise a re-opening to

enable a conviction or penalty to be reconsidered on the basis of additional evidence going to the merits which was not presented during the original hearing. The former case makes it

clear that for the purposes of the section, a principal
consideration is what facts were asserted or accepted below.

If s.147A was not to be regarded as available, an alternative submission made was that this Court nevertheless had jurisdiction to entertain the appeal because the material before

it demonstrated that there had, in fact, been an error or

mistake below. Reference was made to Kimmorley v. Atherton ex parte Atherton [1971] Qd.R. 117 which was claimed to establish a

proposition which supported the appellant. When examined, the

case does not do so. The circumstances there, as they were accepted by the majority of the Court, were that the inevitable conclusion on the facts presented to the magistrate had to be that the offence could not have taken place. The present case

is very different. There was ample evidence to support the

magistrate's acting on the plea and no basis was indicated to him which would have discouraged him from adopting that course.

The appeal, so far as it relates to the matter so far

discussed, cannot succeed.

A point raised by the amended grounds has more substance.

It involves a question of construction of the Code and a

consideration of the circumstances to determine the extent of the magistrate's jurisdiction to deal summarily with the matter before him. It will be necessary in the end to have regard to

s.443, but some further preliminary observations may assist with
the elucidation of the problem.

The offence charged in the present case was one of stealing

and there was alleged no circumstance of aggravation such as
would increase the maximum penalty which could be imposed.

The result of s.398 of the Code is that in cases of stealing if no other punishment is provided the offender is liable to imprisonment for three years. A schedule to that

section makes special provision for punishment in a number of cases and (ix) is one which must receive attention here. If the value of the thing stolen exceeds $5,000, the offender is declared to be liable to imprisonment for seven years.

It would follow that if an offence simply of stealing is charged and a circumstance of aggravation arising by virtue of the fact that the thing stolen exceeds $5,000 in value is not included in the charge, the maximum term which can be imposed is

three years. In imposing a penalty in such cases, being one

which must first exceed that maximum, the Court is not entitled to take into account a circumstance of aggravation which is not

charged and which the plea of guilty thus does not admit: see De
Simoni (1981) 147 C.L.R. 303 and R v. Boney [1986] 1 Qd.R. 190.

If the thing stolen is a boat and the magistrate dealing with the matter is informed that its value is $60,000 he would not be able to take that value into consideration in imposing sentence when that circumstance of aggravation is not charged.

No doubt, it will often not be possible to resolve

questions of value in any exact fashion and prosecuting

authorities may find it necessary to make a decision whether to allege a circumstance of aggravation based on value or whether to charge more simply, as stealing. In the present case no

aggravation on account of value of the stolen object was charged and therefore the magistrate in imposing sentence was not entitled to take into account a value exceeding $5,000. However, although the value was not charged after the plea to

the charge was taken the prosecutor informed the court that the

boat's value was approximately $60,000. The magistrate in

imposing sentence expressly declared that he took into account

"the value of the property" and "the serious nature of the offence". The penalty which he imposed, namely, a term of imprisonment for twelve months partially suspended, did not

exceed the term which can be imposed for simple cases of stealing but the inference is strong that the magistrate took into account a circumstance of aggravation which was not

charged, namely a value well in excess of the limit of $5,000

mentioned in s.398(ix).

If what has been mentioned so far were the only deficiency

in the proceedings which could be pointed to, it would be

necessary to conclude that the sentencing discretion had miscarried being affected by an irrelevant consideration and this Court would then be called upon to sentence afresh.

However, beyond this consideration, the appellant's contention

is that the magistrate lacked jurisdiction to deal summarily with the matter so that the conviction itself which was entered below should be set aside. It is this contention which requires

attention to be given to the terms of s.443 since that is the section of the Code which determines which indictable stealing offences can be dealt with summarily.

General cases of stealing are mentioned in s.443(1)(a) in

these terms:

"(1)When a person is charged before two justices with any of the indictable offences following, that is to say -

(a)stealing anything of such a kind and under such circumstances that the greatest punishment to which an offender convicted of the offence is liable does not exceed imprisonment for three years."

Paragraph (n) makes special provision when a plea of guilty

is entered allowing in this case some extension of summary

jurisdiction to deal with the matter. The subsection does this

in terms which are best considered in conjunction with para.(k). After the specific cases mentioned in paragraphs (a) to (j) are referred to, the subsection continues:
"Then, if -
(k)the value of the property does not exceed $2,500; or ...

(n)the accused person admits that the person is guilty of the offence, and it appears to the justices that the nature of the offence is such, whatever may be the value of the property in question, that the offender may be adequately punished upon summary conviction;

the justices may deal with the charge summarily."

It is clear that in extending the jurisdiction to deal summarily with pleas of guilty in stealing cases the avenue which subs. (1) opens is still only available in cases falling within one or other of the categories (a) to (j) of subs.1, this being made clear by the words which immediately precede (k):

"Then, if".

Of all of the categories mentioned in (1)(a) to (j) that referred to in (a) is the one relevant here. The additional matter essential for the exercise of summary jurisdiction under (n) is that the magistrate must be persuaded that the offender

can, in the circumstances, be adequately punished on summary conviction. It may be noted that a parallel provision for abstention from summary hearing is to be found in s.444(4). However, we are presently considering not whether the magistrate

had a discretion to abstain, but whether he had jurisdiction to proceed at all in summary fashion. In the end, this question

depends upon the meaning which is to be attributed to

s.443(1)(a) in the context in which it appears.

Paragraph (a) is not drafted in a way which seeks to attribute relevance to the form in which the charge is laid rather than to the particulars of the offence which has been committed. The intended meaning of para.(a) seems to involve a reference to the offence in question, that is as if the words "in question" appeared after the words "convicted of the offence" rather than a meaning obtained by a more elaborate addition to the text as it stands such as by reading in these words, "in the form in which it is charged" again after the phrase, "convicted of the offence". To adopt the latter approach would be to turn the meaning of the subsection in another direction.

If the correct construction of the subsection is in accordance with the former of the two suggestions just made, then it seems that the magistrate may have had no jurisdiction to deal summarily with the matter notwithstanding the plea of

guilty. That would be because the subsection directs attention

to the maximum term of imprisonment prescribed for stealing a

thing "of such a kind and under such circumstances" as was

actually involved in the offence. Do the quoted words embrace the concept of value as well as other relevant features? It is

hard to see how value could be excluded. On the face of things

it is a most relevant feature of the crime when the category of

the thing stolen and the other circumstances of its theft are

regarded. Further, a reading of s.443 as a whole does not create the impression that the legislature has decided to entrust to magistrates a jurisdiction to sentence in cases of stealing items of unlimited value provided only that pleas of guilty are entered. The structure of the section mostly seems

to display an intention to hedge around the jurisdiction of a magistrate to deal summarily with cases of stealing rather than to leave all such cases to summary treatment subject only to the magistrate's overriding discretion to abstain when in his view the penalties available on summary conviction are inadequate.

Whatever construction of the section is adopted, it has to

be conceded that inconsistencies exist within it. Thus, it is

hard to reconcile the enactment together of para.(1)(c), (ca)

and (d) where neither value nor maximum penalty is specified with, on the other hand, para.(a) where the maximum penalty is referred to. Notwithstanding these difficulties and reading the section as a whole it should be concluded that the reference to "kind" and "circumstances" (a) includes a reference to the character of the item involved as well as the circumstances of its stealing. These particulars may result in an increase in

the maximum penalty which can be imposed.

In the present case, it emerged and was alleged by the

prosecutor in court that the thing stolen was worth

approximately $60,000. In such a case there was a liability to a penalty of seven years imprisonment, i.e. one exceeding three years. Therefore the magistrate could not deal with the matter

further in summary proceedings. The magistrate was put on

notice concerning value by the prosecutor's assertion and thus
was obliged to abstain from proceeding summarily.

An alternative course which it seems could have been availed of by the magistrate when the additional information relating to value was revealed was for him to set aside the plea and proceed de novo with a view to committal, whether for trial or sentence as it might be, after a plea taken following the reception of evidence under the procedures referred to in ss 104 and 113 of the Justices Act 1886: see Kelly v. Simpson ex parte Simpson [1956] St.R.Qd. 552 at 563-4. However, this was not

done and the plea originally entered was acted on and a

conviction was erroneously entered summarily in circumstances
where summary jurisdiction was lacking.

It can be expected that in similar cases the magistrate will be put on notice concerning the value of the thing stolen because it will be a relevant circumstance for the prosecution

to mention and for the magistrate to take into account in

deciding upon the appropriate penalty.

An order should be made here similar to that made in the case of R v. Hall [1980] Qd.R. 304 when, for a different reason, it appeared that the basis for the exercise of summary

jurisdiction had not been established. The conviction entered

and the sentence imposed below should both be set aside.

As in Hall's case the way will now be open for proceedings

to be brought anew whether with a view to committal on a charge

of stealing property of the value of $60,000 or on some other charge which to the prosecuting authorities may seem appropriate. This is a matter which the Court must leave to decision by others.