Sohl v QPS

Case [2021] QDC 126

DISTRICT COURT OF QUEENSLAND

CITATION:

Sohl v QPS [2021] QDC 126

PARTIES:

ANDREAS SOHL

(appellant)
v

QUEENSLAND POLICE SERVICE

(respondent)
FILE NO:

Appeal No 5 of 2021

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Innisfail

DELIVERED ON:

25 June 2021

DELIVERED AT:

Cairns

HEARING DATE:

10 June 2021

JUDGE:

Morzone QC DCJ

ORDER:

1.   Appeal allowed.

2.   The sentence and orders of the Magistrates Court in Innisfail made on 8 March 2021 are set aside, and substituted with the following sentence:

(a)     The defendant is convicted.

(b)     No conviction is recorded.

CATCHWORDS:

CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 (Qld) – where appellant pleaded guilty to failure to appear – where learned magistrate mistook facts – where defendant did not deliberately disobey the court – where defendant fined $1000 – whether sentence manifestly excessive.

LEGISLATION:

Justices Act 1886 (Qld) s 222, s 223

Penalties and Sentences Act 1992 (Qld) s 9

CASES:

Allesch v Maunz (2000) 203 CLR 172
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
Kentwell v R (2014) 252 CLR 60
Lovell v Lovell (1950) 81 CLR 513
R v Morse (1979) 23 SASR 98

White v Commissioner of Police [2014] QCA 12
COUNSEL:

L. Doyle for the Appellant

G. Meoli for the Respondent
SOLICITORS:

Arnell & Cooper Lawyers for the Appellant

The Office of Director of Public Prosecutions for the Respondent

Introduction

  1. After a failed application for adjournment because he was unable to travel to his trial from Groote Eylandt, the appellant failed to appear at his trial on the 26 February 2021 when a warrant was issued for his arrest.  After surrendering into custody on 8 March 2021 he was sentenced by a fine of $1000 with no conviction recorded. 

  2. The appellant appeals on the basis that the sentence for the failure to appear was manifestly excessive.  The appeal is not opposed.

  3. On 10 June 2021 I allowed the appeal and ordered that the defendant be convicted but that such conviction not be recorded, and he be not further punished.  These are my reasons.

    Background

  4. Whilst it was important that the date be fixed to ensure the viability of the attendance of the complainant, who was not an Australian national, it was nevertheless a matter which could be undone in circumstances where the appellant, through no fault of his own, was placed in the invidious position of being unable to attend unless his job was placed in serious jeopardy.

  5. Over the Christmas period, he received his new roster, but he was also struck with illness, having suffered a stroke.  It is unlikely that his mind was turned to the matters of the Court administration and that date.  It was not until his solicitor reminded him of his trial on the 18th of February 2021 that he realised that his new roster for that year, the new year, would prevent his attendance at Court in circumstances where he had no further sick leave or…

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AGLC
Sohl v QPS [2021] QDC 126
Case
[2021] QDC 126
Decision Date

CaseChat Overview and Summary

The case of Sohl v QPS involved the appellant, Sohl, who had pleaded guilty to failure to appear in court. The learned magistrate had imposed a $1000 fine on Sohl but did not record a conviction. Sohl appealed the fine, arguing it was manifestly excessive given his circumstances. The court of appeal found that the magistrate had misapprehended the facts and circumstances of Sohl’s case, particularly his inability to attend court due to his work commitments and subsequent illness.

The primary legal issue before the court was whether the fine imposed by the magistrate was manifestly excessive. The court needed to determine if the sentence was appropriate in the circumstances, considering the mitigating factors presented by Sohl. These factors included Sohl’s genuine inability to attend court due to his work commitments and health issues. The court had to assess if the magistrate's decision to impose a fine, rather than record a conviction, was justified and if the fine itself was excessive.

The court found that the magistrate had misunderstood the facts of Sohl’s case, particularly his inability to attend court due to his work commitments and subsequent illness. The court concluded that Sohl did not deliberately disobey the court, and his failure to appear was due to circumstances beyond his control. Consequently, the fine was deemed manifestly excessive. The appeal was allowed, and the sentence was set aside, substituting a conviction without a recorded conviction.

Orders

Orders of the court

1. Appeal allowed.

2. The sentence and orders of the Magistrates Court in Innisfail made on 8 March 2021 are set aside, and substituted with the following sentence:

(a) The defendant is convicted.

(b) No conviction is recorded.

Background

Background to the litigation

On 10 June 2021 I allowed the appeal and ordered that the defendant be convicted but that such conviction not be recorded, and he be not further punished. These are my reasons.Background Whilst it was important that the date be fixed to ensure the viability of the attendance of the complainant, who was not an Australian national, it was nevertheless a matter which could be undone in circumstances where the appellant, through no fault of his own, was placed in the invidious position of being unable to attend unless his job was placed in serious jeopardy. Over the Christmas period, he received his new roster, but he was also struck with illness, having suffered a stroke. It is unlikely that his mind was turned to the matters of the Court administration and that date. It was not until his solicitor reminded him of his trial on the 18th of February 2021 that he realised that his new roster for that year, the new year, would prevent his attendance at Court in circumstances where he had no further sick leave or legitimate reason for not attending work. By then the appellant was ensconced on Groote Eylandt, being his place of work. His solicitor sought to make an application as soon as practical on the 19th of March 2021, and the hearing of the adjournment was set for 22 February 2021. During the course of the application, it appears that her Honour took a harsh and dim view of the facts, disagreeing with the appellant’s solicitor as to what was conveyed on 7 December 2020 when the trial date was set. It seems that her Honour misapprehended that his circumstances had significantly changed, or at least she rejected those matters out of hand, which led to the proceeding lurching towards a trial which was unviable. The application for adjournment was refused, and the trial date of 26 February 2021 remained. This course was futile since there was no realistic or practical prospect that the appellant could attend the hearing since he was already ensconced at work at Groote Eylandt. A warrant issued on the trial date as a result of the inevitable consequence of his failure to appear. When the appellant did return from his work, he took immediate steps to surrender himself into custody. First, on 2 March 2021 but was turned away by police who had no warrant. He tried to surrender into custody a second time on 4 March but was again turned away in the absence of a warrant. It was not until 8 March 2021 that he was received into custody after he made a third attempt to surrender into custody. In compliance with the warrant, he was remanded until his appearance in court two hours later to be dealt with for failing to appear. At that time, he took a pragmatic approach to plead guilty to the offending on the basis that there were strong mitigating factors, which were arguably a reasonable excuse, but instead relied upon in mitigation in relation to the penalty. Those matters were apparently rejected by the sentencing magistrate and he was sentenced by a fine of $1000 with no conviction recorded. Appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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