Williams v Commissioner of Police

[2015] QDC 168

DISTRICT COURT OF QUEENSLAND

CITATION:

Williams v Commissioner of Police [2015] QDC 168

PARTIES:

LUKE JOHN WILLIAMS
(appellant)

v

COMMISSIONER OF POLICE
(respondent)

FILE NO/S:

Bundaberg 7/15

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

2 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

19 June 2015

JUDGE:

Smith DCJA

ORDER:

1.   The orders made by the Magistrates Court at Bundaberg on 5 January 2015 are confirmed.

2.   The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – whether manifestly excessive

Justices Act 1886 (Q) ss 222, 223, 225

Daniels v O’Brien [2012] QDC 181

Di Vita v QPS [2008] QDC 230

R v Hill [1995] QCA 450

Parsons v Raby [2007] QCA 98

Stevenson v Yasso [2006] 2 Qd R 150

Teelow v Commissioner of Police [2009] 2 Qd R 489

COUNSEL:

The appellant was not represented

Mr C. Wallis for the respondent

SOLICITORS:

The appellant was not represented

Director of Public Prosecutions (Qld) for the respondent

Introduction

1. This is an appeal by the appellant pursuant to s 222 of the Justices Act 1886 (Q) (“JA”).

1. Section 222(2)(c) of the JA provides that where the defendant pleads guilty then the person may only appeal on the sole ground that the fine, penalty, forfeiture or punishment was excessive or inadequate. 

1. Section 223(1) of the JA provides that the appeal is to be by way of rehearing on the evidence given in the proceeding before the justices. In conducting this appeal it is appropriate to conduct a real review of the material and reasons below paying due regard to the views of the learned magistrate.[1]

   [1]See Stevenson v Yasso [2006] 2 Qd R 150 at [36]; Parsons v Raby [2007] QCA 98 at [24].

1. In Teelow v Commissioner of Police [2009] 2 Qd R 489 Muir JA held at [4]:

“It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is a result of some legal, factual or discretionary error …”

1. Section 225(1) of the JA provides that

“On the hearing of an appeal, the Judge may confirm, set aside or vary the appealed order or make any other order in the matter the Judge considers just.”

Charge and penalty

1. On 5 January 2015 the appellant pleaded guilty in the Magistrates Court at Bundaberg to the following charge:

“That on the thirteenth day of November 2014 at Bundaberg in the State of Queensland, one LUKE JOHN WILLIAMS unlawfully assaulted one KELLY SIDDLE.”

1. The learned magistrate, without recording a conviction, ordered the appellant undergo 150 hours’ unpaid community service.

1. In the notice of appeal the appellant submits that the sentence was manifestly excessive and that a good behaviour bond ought to have been imposed instead.

Prosecution submissions below

1. The prosecutor informed the magistrate that at 12.15 p.m. on Thursday 13 November 2014 the appellant attended The Coffee Club at a shopping centre.  He started eating some yoghurt and blueberries which he had not purchased from The Coffee Club.  The store manager approached him and asked him to refrain from eating food from another store.  The manager then went back to the counter to serve other customers.  The appellant then emptied the tub of yoghurt and blueberries onto a table and chairs and left the store.  He then approached the front counter and yelled at the manager, “You should go and clean up the mess, not one of your staff.”  The manager said, “If you want, you can go and clean up your own mess.”  The appellant then leaned over the counter and spat in the complainant’s face, hitting her across the nose and both of her eyes.  He then decamped.  The incident was captured on CCTV footage.  The appellant was located on 18 November 2014 and declined to be formally interviewed.  It was alleged the appellant had two previous convictions: one for obstructing police in 2007, and one for disorderly conduct in 2011, although ultimately these were not relied upon as they were disputed by the Appellant.

1. The prosecution relied on R v Hill [1995] QCA 450, where the offender in that case had pleaded not guilty but had been convicted and sentenced to three months’ imprisonment wholly suspended. The prosecution submitted that a term of imprisonment could be imposed.

Appellant’s submissions below

1. The appellant submitted that he did not spit on a police officer.  He apologised and told the magistrate he had written a letter of apology.  He submitted for a fine of between $500 and $2,000.  He told the magistrate he was a regular customer of The Coffee Club and always took his yoghurt in there.  He said that he had a good relationship with everybody in The Coffee Club but the complainant on this occasion was aggressive to him, speaking loudly in front of the customers.  He felt humiliated but agreed that this did not excuse his behaviour.  He lost his temper in the heat of the moment, but she was aggressive from the outset.  He said there was adverse publicity about him in the local newspaper.  He told the learned magistrate he suffered from a major depressive disorder and was recovering from a methylamphetamine addiction.  He said that his actions his day were out of character.  He was working as a journalist and his ambition was to work in legal aid.  He denied he was the person who had been convicted of the disorderly conduct offence because the date of birth in the record was different to that in the history.  The prosecution did not rely upon it.  The appellant consented to the community service order.

Decision below

1. The magistrate in sentencing the appellant noted that he pleaded guilty at an early opportunity.  It was further noted that the appellant sent a letter of apology.  He took into account the appellant had a depressive disorder, was a recovering methylamphetamine addict and in the circumstances, in light of the nature of the offence, thought that community service should be imposed.

Appellant’s submissions on appeal

1. In his written submissions in support of the appeal, the appellant submits:

(a)        this was not a case involving the spitting on a police officer, and the penalty was excessive;

(b)        the previous convictions not relied on by the prosecution influenced the magistrate;

(c)        the case of R v Hill was “out of date”;

(d)        in other cases, people had received fines or bonds;

(e)        more serious cases relied upon resulted in 150 hours’ community service;

(f)         the learned magistrate was not given, nor asked to see, the letter of apology;

(g)        the learned magistrate did not take into account whether the appellant had the ability to perform community service, nor did he take into account that community service would cause undue hardship;

(h)        the appellant is currently homeless and has experienced homophobia whilst on community service;

(i)          the learned magistrate did not take into consideration that community service involves frequently mixing with drug users;

(j)         the learned magistrate failed to give sufficient weight to the factors mentioned in ground 13;

(k)        his complete written submissions were not read by the learned magistrate;

(l)          the details of these written submissions and adverse media are attached to his submissions.

Respondent’s submissions on appeal

1. The respondent submits:

(a)        the sentence is not manifestly excessive;

(b)        the learned magistrate clearly did not take into account the criminal history tendered;

(c)        the learned magistrate found the decision of Hill was helpful in some respects but limited because it occurred after a trial;

(d)        the decisions of Daniels v O’Brien [2012] QDC 181 and Di Vita v QPS [2008] QDC 230 are of assistance;

(e)        the letter of apology was taken into account by the magistrate when the magistrate sentenced the appellant;

(f)         the learned magistrate did explain community service to the appellant, who consented to it;

(g)        matters that he is currently homeless, experiences homophobia and performs community service with drug users are not relevant to this appeal;

(h)        the learned magistrate took into account all relevant matters in determining the sentence;

(i)          the appellant had the opportunity to tender his written submissions but chose not to do so, and he was asked whether he had anything else to say, and he said he did not;

(j)         in the circumstances, the appeal should be dismissed.

Disposition

1. Having read all of the material, it is my respectful view that the learned magistrate approached this case perfectly correctly.  The magistrate took into account all relevant matters and did not take into account any irrelevant ones.  I could not detect any error in the conduct of the sentencing proceedings. 

1. Turning to the particulars raised by the appellant, it is my view that the 1995 case was relevant but the magistrate distinguished it in any event.  Secondly, the comparable decisions quoted by both parties indicate to me that the penalty imposed by the learned magistrate was clearly within the sentencing range and therefore not manifestly excessive. Thirdly although the letter of apology was not tendered, it was referred to in detail by the appellant and referred to by the magistrate in his decision, so no error occurred in this regard. Fourthly the learned magistrate did not impose the community service order without obtaining the appellant’s consent, and therefore there is no merit in the ground that he did not take into account as to whether or not the appellant had the ability to perform community service. Fifthly it is my opinion that the appellant’s present situation is not relevant to this appeal.  Any such matter might be relevant to an application to vary or revoke the community service order.

1. Finally as to the allegation that the written submissions were not read by the learned magistrate, the appellant appears to me to have been an eloquent speaker and intelligent man.  He put before the court most, if not all, of the matters referred to in the written submissions.  He had the opportunity to tender them but did not.  I do not see any error in the approach here. 

1. The appellant did not attend at the hearing of this appeal.  The appellant advised on 24 May 2015 that he was no longer living at a particular address in Bundaberg and wished all correspondence to be sent to his email address.  He was advised by email on 20 May 2015 of the date of the hearing of this appeal and was advised, “You are required to appear personally at the court on the date and the time listed above.  If you do not appear the appeal may be heard in your absence.”  The matter was listed for 9 a.m. but the matter was not mentioned until later that morning.  The appellant failed to appear at his appeal.  Despite this, I did not strike out the appeal and have considered the appeal on its merits.

1. In the circumstances, my orders are as follows:

1.          The orders made by the Bundaberg Magistrates Court on 5 January 2015 in this matter are confirmed.

2.          The appeal is dismissed.