DISTRICT COURT OF QUEENSLAND

CITATION:	Kleinig v The Commissioner of Police [2015] QDC 304	
PARTIES:	COED’Y ANDREW KLEINIG
(appellant)
v
THE COMMISSIONER OF POLICE
(respondent)
	
FILE NO:	269/2015	
DIVISION:	Civil	
PROCEEDING:	222 Appeal 	
ORIGINATING COURT:	District Court, Brisbane	
DELIVERED ON:	27 November 2015	
DELIVERED AT:	Brisbane	
HEARING DATE:	16 October 2015	
JUDGE:	Richards DCJ	
ORDER:	Appeal Allowed. Matter remitted to Magistrates Court Brisbane for hearing before another Magistrate	
CATCHWORDS:	Section 142A of the Justices Act 1886 – proceeding to sentence ex parte – where imprisonment imposed in absence of defendant	
COUNSEL:	Mr B White for the Respondent	
SOLICITORS:	R Cavalli of Legal Aid Queensland for the Appellant
Office of the Director of Public Prosecutions for the Respondent	
[1]	The appellant was charged on 12 September 2014 with dangerous operation of a motor vehicle, failure to stop a motor vehicle, trespass and wilful trespass on the railway.  The matter proceeded on 9 October 2014 and 23 October 2014 in the absence of the appellant.  
Facts
[2]	On 12 September 2014 the police were patrolling an industrial estate in Blackwater.  They noticed an unmarked vehicle entering the industrial estate and a male person exiting the main entry/exit point to Blue Chip Heavy Vehicle Mining Compound.  The male person appeared to be carrying something. As he was illuminated by the high beam of the vehicle, he turned around and ran back into the compound where police lost sight of him.  The police parked their vehicle and they noticed a white Nissan Tray Utility parked in darkness.  One officer ran to the front gate of the compound and could see where the male had fled.  He then called for backup and waited just inside the compound. 
[3]	 Another police vehicle arrived within a short time and whilst speaking to each other they heard a car door slamming from the direction of the utility. A police officer ran up to the vehicle and as he approached he noticed the male inside.  He told him to get out of the car but instead he started the vehicle. The police officer struck the driver’s side window with the police torch calling for him to stop.  Contrary to this instruction he accelerated, swerving to the right on the loose dirt causing the officer to throw himself to the side to avoid being struck.  A police chase followed.  
[4]	The appellant drove into Turpentine Street, a rough dirt track running parallel to the railway lines.  He refused to stop.  They followed him for approximately 2 km.  He then crossed the main railway lines running parallel to the Capricorn Highway east of Blackwater and was intercepted on the highway.  
[5]	He was charged and bailed to appear on 9 October 2014. On that day he failed to appear and the police prosecutor sought a warrant for his arrest but the Magistrate determined to hear the matter ex-parte and sentenced the appellant to six months’ imprisonment to be suspended after serving three months’ imprisonment for an operational period of three years for the dangerous operation of a motor vehicle and failure to stop the motor vehicle.  He then adjourned the matter for further mention on 23 October 2014 to allow a notice to be served pursuant to s 142A(4) of the Justices Act 1886.  The appellant did not appear on that date and the Magistrate upheld the sentence and issued a warrant of commitment for two months hence.  He also on that date imposed a cumulative disqualification period of four years being two years for each of the offences.
Application for extension of time for filing a notice of appeal
[6]	The appellant was arrested and taken into custody at the Cleveland Watch House on 21 January 2015.  He says in his affidavit that he did not realise that his bail undertaking contained the incorrect bail address.  He did contact the Blackwater Magistrates, on 8 October 2014 to say he would be unable to attend court on 9 October 2014 and asking if the matter could be transferred to Brisbane.  He was told they could not locate him on the system and he would have to call back.  He did not call back immediately because he could not locate his paperwork.  About a month later he called back to enquire about the charges and he was told he had been sentenced to six months’ imprisonment reduced to three months and that he should contact Legal Aid.  He did not do anything more about the matter other than speak to his probation officer about it and she indicated that a warrant did not appear on his system but that he had been disqualified from driving for two years.  He was arrested on 21 January 2015 and taken into custody at which time he spoke to a duty lawyer and began proceedings to appeal in this Court.  The Crown concedes that there is no prejudice experienced by the delay in instituting the appeal and does not argue that the leave to appeal should be granted accordingly.  I extend the time within which to appeal to 23 January 2015.
[7]	In this case the Magistrate proceeded to act under s 142A of the Justices Act 1886 which provides:
“(1)	Notwithstanding the provisions of this Act or any other Act it shall be lawful to adopt in respect of a complaint of a simple offence or breach of duty made by a public officer or police officer the procedure prescribed by this section.

……..

(4)	Where – 

(a) 	a complaint of a simple offence or breach of duty is made by a public officer or a police officer, and 

(b) 	the defendant is required to appear at a time and place fixed for the hearing of the complaint –

(i) 	by a summons issued on the complaint and served at least 14 days before the date on which the defendant is required by the summons to appear; or

(ii) 	under a condition of the defendant’s bail or by notice given to the defendant under the Bail Act 1980; or 

(iii) 	by notice of adjournment given to the defendant a reasonable time before the date previously fixed for the hearing of the complaint; and

(c) 	the defendant does not appear at the time and place fixed for the hearing of the complaint;

the Court before which the complaint comes for hearing, whether on the return date or an adjourned date, may, if it is satisfied that the facts as alleged in or annexed to or served with the complaint or summons or as stated by the complainant according to law constitute such a simple offence or a breach of duty and that reasonably sufficient particulars thereof are set out in or annexed to or served with the complaint or summons or as stated by the complainant, deal with and determine the matter of the complaint as fully and effectually to all intents and purposes as if the said facts and particulars had been established by evidence under oath before it and as if the defendant had personally appeared at the time and place fixed for the hearing of the complaint.

(5) 	In dealing with and determining a complaint pursuant to subsection (4) the court may take into account any information considered by it to be relevant brought to its notice by or on behalf of the complainant or defendant in relation to the circumstances of the matter of the complaint and the imposition of a penalty.

(6) 	If in respect of a proceeding under subsection (4) the court considers that:

(a) 	the defendant should be imprisoned otherwise than by way of default; or

(b) 	any licence, registration certificate, permit or other authority held by the defendant under any action be cancelled or suspended; or 

(c) 	the defendant should be disqualified from holding or obtaining a licence, registration certificate, permit or any other authority under any Act;

it shall not deal further with the complaint in such proceeding unless it has first adjourned or further adjourned the hearing of the complaint to a time and place appointed by it to enable the defendant to appear for the purpose of making submissions on the question of such penalty, disqualification, cancellation or suspension, as the case may be.”
[8]	Section 142A(12) of the Justices Act 1886  allows for an application for rehearing to be made within two months of the determination of the sentence.  Unfortunately this is a situation where in this case like many others the sentence has been imposed and the appellant has been unaware of the sentence being imposed until after that two month period has expired. There is no provision within the Act for that two month period to be extended and therefore no possibility of a rehearing in those circumstances.  
[9]	The Crown raises the proposition that whether a person convicted in their absence is able to appeal to the District Court pursuant to s 222 of the Justices Act 1886.  In this case the ground of appeal is that the Magistrate’s discretion in deciding to proceed pursuant to s 142A of the Act miscarried, that the complainant was denied natural justice by the Magistrate and that the Magistrate failed to take into account relevant matters, including but not limited to s 9 of the Penalties and Sentences Act 1992, and finally, that the sentence was manifestly excessive.  In Atkin v Commissioner of Police [2015] QDC 224 the situation with s 222 of the Justices Act 1886 was raised and the decision of Guy v McLoughlin & Anor [2006] QDC 17 (at 10-11) was considered.  In following that case it was decided that the appellant does have a right to appeal on the basis that the Magistrate’s discretion has miscarried and that does not require a prior application under s 142A(12) to have occurred.  
[10]	In its submissions on this matter the respondent has submitted that s 222(2)(b) of the Justices Act precludes an appeal against conviction to the District Court because the matter is an indictable offence dealt with summarily.  However, I note that only applies to a complainant aggrieved by the decision and not the defendant, so that provision is not relevant to this question. 
Did the magistrate’s discretion miscarry? 
[11]	There is no doubt that the terms and legislation allow for a Magistrate to exercise a discretion to proceed under s 142A where appropriate circumstances exist.  Whether that is on the first return date or on a date specified in the future is a matter for the Magistrate’s discretion.  However, in every case a Magistrate, or any judicial officer for that matter, must proceed to exercise their discretion to proceed in a certain way in a judicial manner.  That much is certain from the propositions espoused in House v R (1936) 55 CLR 499 per Stark J.  Where the penalty being imposed includes one of imprisonment there should be extreme caution exercised in proceeding in the absence of any submissions made on behalf of that person.  In fact, the legislation itself requires that where a matter proceeds ex-parte it requires the judicial officer to: 
“deal with and determine the matter of the complaint as fully and effectually to all intents and purposes as if the said facts and particulars have been established by evidence under oath before it and as if the defendant had personally appeared at the time and place fixed for the hearing of the complaint”. 
Further, the Magistrate “may take into account any information considered by it to be relevant brought to its notice… in relation to the circumstances of the matter of the complaint and the imposition of a penalty”.  Those portions of the legislation, in my view, create an obligation on the judicial officer proceeding ex-parte to explore not only the circumstances of the offence but any matters in mitigation or defence that would normally be raised in a situation where the defendant or a legal representative is present and those matters must be considered before sentencing a person to imprisonment.  In R v Cunningham [2005] QCA 321 at p 5 Keane JA noted: 
“To impose a penalty without allowing the person affected to have an opportunity to respond is a clear breach of the rule of natural justice that a court is required to follow.” 
It follows that careful consideration and full reasons should be given for (a) proceeding in the absence of the defendant and (b) coming to a decision to impose a sentence of imprisonment in the absence of a defendant. 
[12]	In this case the matter proceeded to sentence after a recitation of the facts and with nothing more.  There is no doubt that the driving was serious and properly deserved consideration of deterrence and general condemnation.  However, the magistrate proceeded to sentence the offender without regard to any antecedents of the offender.
[13]	The Magistrate did not comply with any of the provisions of s 9 of the Penalties and Sentences Act 1992, in particular, pursuant to s 9(2) of the Act he did not have any regard to the offender’s character, age or intellectual ability.  The Magistrate also failed to have regard to the presence of any aggravating or mitigating factor concerning the offender, other sentences imposed on and served by the offender for any offence committed at or about the same time as the offence with which the Court is dealing, sentences already imposed on the offender that have not been served, sentences that the offender is liable to serve because the revocation of orders made under any other act, whether the offender was the subject of a community based order and any compliance with that order, whether he was on bail and required to attend any programs and whether he was an Aboriginal or Torres Strait islander person.
[14]	The appellant was 21 years of age at the time of the offence and there is no evidence that he took into account the appellant’s youth.  There is no evidence that he was given or took into account his criminal history or his traffic history or his performance on community based orders [he had been subject to a community based order and was at the time of sentence].  
[15]	The reasons given for imposing a term of imprisonment were sparse and did not consider any possible matters in mitigation.  In those circumstances it seems to me that the discretion did miscarry and the lack of time and reasoning that was involved in coming to the decision is reflective of the failure to properly exercise judicial discretion. 
[16]	It is accepted that an appellate court should not easily interfere with a lower court’s exercise of judicial discretion, however, as was noted in House v R (supra) by Dixon, Evatt and McTiernan JJ: 
“It may not appear how the primary judge has reached a result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellant court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” 
This is a case where the discretion was exercised in an arbitrary manner and without any real consideration of the merits and problems of proceeding in the absence of the appellant. 
[17]	In my view it is appropriate that the appeal be allowed and the matter remitted back to the Magistrates Court for further hearing before another Magistrate.