Rolles v Commissioner of Police

[2021] QCA 246

[2021] QCA 246

COURT OF APPEAL

SOFRONOFF P
MULLINS JA
DAUBNEY J

CA No 18 of 2021
DC No 2292 of 2019

ROLLES, Greg William  Applicant

v

COMMISSIONER OF POLICE  Respondent

BRISBANE

MONDAY, 15 NOVEMBER 2021

JUDGMENT

SOFRONOFF P:  This is an application for leave to appeal a sentence imposed in the District Court.  At a political protest, the applicant erected a tripod over a railway and sat on it.  Police arrived, and an officer directed the applicant to remove himself from the railway line.  The applicant did not do so.  He was then arrested; however, he did not then climb down from his perch, but ultimately did so about three hours later, when he was taken to the watch-house.

The applicant was charged with three offences, namely, trespass on a railway contrary to s 257 of the Transport Infrastructure Act, interfere with a railway contrary to s 255(1) of the Transport Infrastructure Act and contravening a direction of requirement of police contrary to s 791(2) of the Police Powers and Responsibilities Act.

He was sentenced by the Magistrate to fines of $1,000, $5,000 and $1,000, respectively, for each of those offences.  In relation to the offence of interfering with the railway, he was also ordered to pay $2,233.40 by way of restitution.  That amount was calculated by reference to the wages of certain railway workers who turned up and by reference to the cost of hire of the cherry picker that had been hired in order to aid in the removal of the applicant from the place where he was sitting.  In the result, that cherry picker did not have to be removed, because the applicant removed himself.

The applicant appealed, then, to the District Court, pursuant to s 222 of the Justices Act, and on that appeal, the Prosecution conceded that the fines were excessive.  The matter came before Judge Rinaudo, who also heard an appeal against the applicant’s convictions.  His Honour dismissed the appeals against convictions and then went on to consider the appeal against sentence.

In that respect, having regard to the Prosecution’s concession, it only remained for his Honour to determine the correct penalty.  His Honour concluded that a penalty of $3,000 was appropriate.  That conclusion was reached because, as his Honour observed, in paragraph 18 of his reasons, it was agreed between the parties that a fine of that order was appropriate.

There remained the question of compensation. His Honour’s accepted the applicant’s submissions that the compensation in respect of the wages of the railway employees were not properly the subject of compensation; however, his Honour accepted the Prosecution’s submission in relation to the construction of s 35 of the Penalties and Sentences Act 1992 and ordered that the applicant be convicted and fined $2,361.60 and that the applicant also be ordered to pay the owner of the railway the sum of $638.40 by way of compensation in respect of the cherry picker.  Those two sums added up to the $3,000 that had been agreed as appropriate by the Prosecution and Defence.

The applicant now seeks leave to appeal to this Court to challenge the order by way of compensation; however, as the outline of the applicant settled by Ms Hillard and Mr Joshua Morris of Counsel makes plain what is sought is not a removal of the order for compensation but a variation of the orders so that the applicant, rather than being fined an amount and ordered to pay compensation in an amount adding up to $3,000, be fined the sum of $3,000.  It becomes immediately apparent, when that is appreciated, that this application borders on being an abuse of the process of the Court.  What is being sought to be achieved in this appeal is obscure, but it is plain, as Ms Hillard conceded, that the applicant can point to no substantial injustice, and indeed, he can point to no injustice, having regard to his concession at the trial of the matter in the Magistrates Court that he was fairly liable to pay compensation in respect of the cherry picker and having regard to the fact that, even now, he concedes that a sum of $3,000 is an appropriate sum by way of penalty.  In those circumstances, there is no merit whatsoever in this application, and it should be dismissed.

MULLINS JA:  I agree.

DAUBNEY J:  I agree.

SOFRONOFF P:  The application is dismissed.