DISTRICT COURT OF QUEENSLAND

CITATION:	Rolls v Queensland Police Service [2021] QDC 339	
PARTIES:	TAVIS LYNDON ROLLS
(Appellant)
v
QUEENSLAND POLICE SERVICE
(Respondent)	
FILE NO:	103 of 2021	
DIVISION:	Criminal	
PROCEEDING:	Appeal	
ORIGINATING COURT:	Magistrates Court at Southport
	
DELIVERED ON:	19 November 2021 (ex tempore)	
DELIVERED AT:	Southport	
HEARING DATE:	19 November 2021	
JUDGE:	Jackson QC DCJ	
ORDER:	The appeal is allowed.	

	The orders of the Magistrates Court at Southport made on 11 March 2021 are varied:
1.	by deletion of the order that a conviction be recorded and in lieu thereof it is ordered that no conviction is recorded; and
2.	by substituting an order that the appellant perform 100 hours of community service less the hours already performed.	
CATCHWORDS:

COUNSEL:

SOLICITORS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – Where the appellant was sentenced to 240 hours of community service, ordered to pay $2,000 compensation and a conviction was recorded – where the appellant submits that the recording of a conviction and the imposition of the maximum number of community service hours rendered the sentence manifestly excessive – whether the sentence was manifestly excessive in the circumstances. 

Justices Act 1886
Penalties and Sentences Act 1992

Majeed v The Queen [2013] VSCA 40
R v Cunningham [2005] QCA 321
R v Dang [2018] QCA 331
R v El Hassan [2003] NSWCCA 139 
R v Seiler [2003] QCA 217
R v T [1998] QCA 456 
R v Bradley [2020] QCA 76

E Engwirda for the Appellant 
R Godfrey for the Respondent 

Donnelly Law Group for the Appellant
Office of the Director of Public Prosecutions for the Respondent.	

[1]	The appellant was convicted on his own plea of one count of assault occasioning bodily harm in company on 8 August 2020.  He was sentenced to two years’ probation and 240 hours community service and ordered to pay $2,000 in compensation.  A conviction was recorded. 
Grounds of appeal
[2]	The sole ground of appeal is that the sentence imposed was, in all of the circumstances, manifestly excessive. 
[3]	By his written submissions dated 8 June 2021, the appellant identifies the following reasons it is submitted the appeal should be allowed together with or leading to manifest excess:
(a)	The learned sentencing Magistrate erred in the exercise of the discretion conferred by s 12(1) of the Penalties and Sentences Act 1992 (“the Act”) to record a conviction;
(b)	This is not a case where the nature of the offence of itself warranted the recording of a conviction;
(c)	The learned sentencing Magistrate mis-stated the agreed facts in the sentencing remarks;
(d)	The learned Magistrate imposed the maximum number of community service hours without the appellant’s consent and when such order was not appropriate in the circumstances.
[4]	In a supplementary outline a further argument as to parity is raised.
Nature of the appeal
[5]	To succeed on an appeal such as this pursuant to section 222 of the Justices Act, an appellant must demonstrate that the order the subject of the appeal is a result of some factual, legal or discretionary error.  Because the appellant pleaded guilty, he may only appeal under section 222 on the ground that the sentence was excessive.
The appellant’s submissions 
[6]	The appellant provided an outline of argument dated 8 June 2021, as I mentioned, and a supplementary outline of argument dated 17 June 2021 addressing a submission as to parity with the co-offender (Ryley James Waldie) who was sentenced on 16 June 2021, that is later, before the same Magistrate.  Mr Waldie was sentenced to two and a half  years’ probation and ordered to pay compensation in the sum of $2,000.  No conviction was recorded.  
[7]	The appellant suggests that the learned Magistrate misunderstood the agreed facts being that the appellant had at least “stopped and walked away” rather than remaining involved in the subsequent assault by the co accused.  In my view, proper consideration of the whole of the transcript identifies that the learned Magistrate was not operating under any mistake of fact in this respect. Her Honour proceeded on the basis that the appellant had not been responsible, at least in an immediate physical sense, for the blow that caused the fracture to the complainant’s cheek, however, she had due regard to the fact that there was a circumstance of aggravation to which the appellant had also pleaded. That is, he was in company. There is nothing in this ground in my view.
[8]	The appellant contends that a conviction ought not to have been recorded. Her Honour identified that no specific material had been put before the Court which indicated that there would have been any specific problem arising from the recording of a conviction for the appellant.  However, she also noted, as is plainly correct, that any young person looking for work will encounter more difficulties if they have a conviction recorded. Nonetheless her Honour considered it appropriate to record it.  
[9]	This is to be contrasted with the position regarding the sentence imposed upon the co-offender, where submissions were made and material tendered as to the effect upon the co-offender of the recording of a conviction.  It clearly would have been a significant issue in terms of his employment.    
[10]	Most of the criticisms as to this proceed on the basis that a sentencing judge is obliged to afford an opportunity to a person about to be sentenced to make submissions as to whether a conviction ought to be recorded and, secondly, that it is not the case that it is necessary to identify specific employment opportunities which might be affected by the recording of a conviction before a judge might proceed on that basis.  Curiously, despite that it is complained here there was no opportunity to make submissions on this matter, after her Honour pronounced the sentence, there was no application to re-open to address that matter. If there was something to be said specifically (as was the case with the co-offender) one might have expected that it would have appropriately been dealt with by an application to re-open, not that that is conclusive by any means.
[11]	It is suggested that a letter under the hand of the appellant’s employer, Luke Fiebig, was material “upon which the sentencing Court could inform its discretion”. That letter was tendered and it makes no suggestion that a recording of a conviction would affect the appellant in any way at all.  In fact, it suggests it would have no effect when stating: “We will continue to support Tavis regardless of the outcome of this matter.”
[12]	Further, as to the quote in subparagraph l on page 9 of the outline, to the effect that it might be “presumed with some confidence that (the recording of a conviction) could only have a negative impact on his employability”, her Honour proceeded as I have already said on the basis that there was potential for the creation of a difficulty in terms of employment.  So much is clear from page 3 of the sentencing remarks at lines 12 to 20. In any case, as to that kind of matter, although one may presume a negative effect of recording a conviction, that will almost always be so in terms of a young person seeking employment and there are, of course, numerous cases where despite that a conviction is recorded. 
[13]	The appellant submits that, in effect, had he been provided with the opportunity to address specifically as to whether a conviction ought to be recorded he would have submitted that it should not in circumstances where he had no previous criminal history, no traffic history, was entitled to be sentenced on the basis that the offending was out of character, had positive prospects for rehabilitation and had demonstrated remorse, there was an offer of $2,000 compensation to the victim as well as completion of a 10-module anger management course and a letter of apology. To that submission, it is now added that one of the things that may have been raised is the fact that the appellant currently had a benevolent employer should not be taken to mean that there would not be effects on his employment in the future as there may be with any young person.
[14]	Whilst her Honour was aware of each of those matters, except perhaps the last, as they had been the subject of submissions, they had not been connected with a submission that no conviction ought to be recorded. A better practice might be for practitioners who wish to raise such matters in the event of a community-based order being made, to flag that issue ahead of time so that the presiding Magistrate is not put in the position of addressing whether a conviction ought to be recorded without the benefit of any submissions as to that.  Also, when her Honour said “is there anything further?” immediately after dealing with the conviction issue, that may have been an appropriate moment to say that, actually, the appellant wished to be heard on that point.  
[15]	The respondent submitted, as to the recording of a conviction, that as the large part of the contest on the sentence was between imprisonment or not it ought to have been readily apparent that consideration of whether a conviction should be recorded would be required so that in those circumstances there was an opportunity to be heard but that was simply not taken by those who represent the appellant.  While I am to an extent attracted to that submission, it remains the case that no submissions were received from the appellant as to this issue.  I am conscious of R v T [1998] QCA 456 and R v Cunningham [2005] QCA 321 as to this issue.    
[16]	Ultimately, I am satisfied that it was an error to not ask whether there were any submissions the parties wished to make as to recording a conviction.  It is not difficult to see how this happened given no wish to make submissions was flagged, which was perhaps because the focus had been on whether a term of imprisonment was in order.  It was clearly a matter the learned Magistrate would have to consider as I have said. 
[17]	Having reached that conclusion, it is necessary that the appellant be sentenced afresh.  
[18]	Before I do that and because some of the matters may remain relevant it is appropriate to address the other submitted errors.
[19]	It is submitted that ordering the appellant to perform 240 hours of unpaid community service demonstrated that the sentencing exercise has miscarried because there had not been consent to performing that duration of hours.  R v Marsden [2003] QCA 473 is relied upon as authority for the proposition that a failure to obtain the defendant’s consent to the amount of hours as well as the performance of community service constitutes an error.  What was said in that case, and it was explicitly noted to be said “in passing”, was that the statute required not only consent to the general proposition that community service should be imposed but also consent to perform in the terms ordered.  That was described by Justice McKenzie with whom Justices McPherson and Wilson agreed as a “relatively minor matter”.  
[20]	The difficulty for the appellant is that the way the submissions were put to the learned Magistrate means that this ground is untenable. There was a submission made that the defendant do 40, 60, 80 or 100 hours of community service.  Despite that, it now was contended that there was no consent to do any more, that is, 100 hours, was the outer limit of community service that might be imposed. That would seem to be a very unsatisfactory basis to submit that the Magistrate fell into error, in my view.  It proceeds on the basis of a precision as to submission which, with respect, was missing in what was put before her Honour.  Also, the submission was made that:
“My ultimate submission is if Your Honour could deal with Mr Rolls in the same way that Mr Payne was dealt with, and that is by imposing a lengthy period of probation, coupling that with community service, both orders which have been explained to him and he’s willing to comply with.”
[21]	Also, after indicating the orders proposed for community service of 240 hours the learned Magistrate asked: “Are you prepared to agree to those orders?”  The appellant answered: “Yes, your Honour”.  Finally, on this point, the appellant’s representative said as to community service that: “And I’m not firm on the periods of those or the hours of those orders…”.  It is, at the very least, an ambitious submission to now contend for Mr Rolls that her Honour fell into error because she imposed community service for an amount of hours that were not agreed to, given that if there were an error it was produced as a result of the appellant’s representatives’ conduct.  Ultimately, Mr Engwirda appeared to accept that there were significant difficulties with that submission. 
[22]	The submission was made that because of these matters the sentence produced a result that was manifestly excessive and the result ought to have been no conviction recorded, ordering the performance of 100 hours of community service (less the number already performed) and 12 months’ probation.  Nothing was said as to the compensation ordered in the sum of $2,000 originally but it has subsequently been suggested that should have been $1,000.  Given that $2,000 was the submitted amount before her Honour, that is an extraordinary submission, which I reject.
[23]	In the second outline as I have mentioned, a parity argument is raised in respect of the sentence of the co-offender which only occurred some months later.  As I have mentioned, he was sentenced to probation for two and a half years and ordered to pay the sum of $2,000 in compensation with no conviction recorded.
[24]	The appellant submits that the learned Magistrate appears to have accepted that the appellant was less involved than the co-accused and it was the co-accused who caused the actual fracture being the most serious injury.
[25]	The Court of Appeal considered a parity argument last year (in R v Bradley [2020] QCA 76) where in relation to the second of two co-offenders the sentencing judge increased the sentence she otherwise would have imposed so as to ensure that the person first sentenced would not feel a justifiable sense of grievance.  In allowing the appeal the Court quoted this passage from her Honour’s reasons:
“I have to also consider issues of parity; because your co-offender received a sentence of imprisonment which has been heavily discounted because of his co-operation.  His confession suggested that he was remorseful: whereas I’ve indicated, I do not consider that there is evidence that you are.  His co-operation was of considerable value and resulted in a significant reduction in his sentence.”
Sofronoff P (with whom the other members of the court agreed) said:
“The passage from the sentencing remarks that has already been quoted shows that her Honour took into account the need to achieve parity between the sentence to be imposed upon the applicant, and the sentence that Judge Dick SC had imposed upon Roma.  Indeed, the sentence hearing was adjourned for two days to obtain a copy of the transcript of Roma’s sentence hearing and Judge Dick SC’s remarks.
Parity was a matter that had to be considered.  However, the parity that her Honour was seeking to achieve appears to have been a parity that involved not imposing a sentence upon the applicant that Roma might legitimately think was too low, compared to his own.  This appears from the passage I have quoted from her Honour’s remarks, but it is reinforced by something that was said during argument.  While hearing submissions from Mr Taylor, who appeared for the applicant below, her Honour said:
‘I have a real concern about issues of parity.  Mr Roma would have a justifiable sense of grievance if I did not send your client to jail.’
That is to say, it seems that the question that her Honour posed to herself was whether the sentence that was otherwise just, in the applicant’s case, should be increased in order to achieve parity with Roma’s sentence.  In my respectful view, such an approach was wrong.
As Justice McMurdo noted in R v Dang [2018] QCA 331, the parity principle is not to be used in that way.  His Honour quoted Kaye AJA in Majeed v The Queen [2013] VSCA 40, pointing out:
‘The principle of parity is only relevant where a sentence … might be such as to engender a justifiable sense of grievance in the offender being sentenced.’
This is because the sentence is disproportionately higher than a sentence that has already been imposed upon a co-offender.  See also R v El Hassan [2003] NSWCCA 139 and Majeed v The Queen [2013] VSCA 40 at paragraph 40.’”
[26]	The respondent, like the appellant, does not deal with the fact that at the time this sentence was being considered, a sentence had not already been imposed which might lead to a justifiable sense of grievance in the appellant.  There could not be any justifiable sense of grievance because there was no sentence that had already been imposed on a co-offender.

The respondent’s submissions
[27]	The respondent submits by reference to a range of authorities it relies upon that the sentence was not manifestly excessive.  While it was conceded that the fact that imprisonment was in range does not have the consequence that community-based orders must be at the maximum when imposed in lieu, to do so did not create a sentence which was manifestly excessive.
[28]	The respondent otherwise addresses the points of distinction between the co-offenders and their respective sentences.  Further, the difficulties that the co-offender would have had performing community service are referred to as well as the specific evidence as to the potential effect of recording a conviction in respect of the co-offender.
[29]	As the respondent submitted, it is unfortunate that the co-offenders were not sentenced together.  
[30]	Although I do not consider that there is a parity issue between the appellant and the subsequently sentenced co-offender, the sentence imposed on the co-offender is not irrelevant for present purposes.  It is clearly relevant to a resentence.  It would in any case be relevant as a comparable on the question of manifest excess.
[31]	As to that latter matter, it seems to me that in respect of the absence of community service and the recording of a conviction that there were reasons to distinguish between the co- offenders.  Not least of those is that specific matters were raised in respect of the co- offender as to the effect that recording a conviction would have.  Likewise, it was submitted, and accepted, that his employment would cause him difficulties performing the community service.  Her Honour’s approach was to increase the period he was subject to probation and not require that he perform community service.
[32]	That seems to me in the circumstances to be a perfectly orthodox approach to question.   
[33]	As to not recording a conviction, the appellant now submits in effect that he should not be disadvantaged simply because his present employer is benevolent. The effect of that submission really is that he, too, is an apprentice and it might be expected that at some time in the future, having a conviction recorded might cause him some difficulties.  

Disposition
[34]	Ultimately, as I have indicated I am satisfied that it was an error to not ascertain whether or not the appellant wished to make submissions on the question of the recording of a conviction, albeit one which the appellant’s legal representatives contributed to.  Accordingly, the appeal ought to be allowed. In that respect it is appropriate to record that while the crown did not concede the point, there was clearly an acceptance that an error may have arisen in the circumstances.  
[35]	As to the issue of recording a conviction, as Justice McPherson said in R v T [1998] QCA 456 at page 3 sentence appeals on the issue of convictions being recorded do not often succeed because the statutory provisions afford a very wide discretion and there are markedly different views adopted by and open to sentencing judges.
[36]	In terms of my re-exercise of the sentencing discretion, I particularly take into account that the appellant, like his co-offender, was a 21 year old young man at the time who went out, drank far too much alcohol and did something extremely stupid. It was very serious, and it could have been very substantially worse quite easily. The injuries were serious, but they could have been significantly worse than they were. 
[37]	The other features, though, in relation to the appellant are that he pleaded guilty, he had no criminal history, he had a number of references, he was gainfully employed, he plainly showed remorse, both through his apology, his guilty plea, his offer of compensation and he had also, in terms of rehabilitation, undertaken an anger management module.
[38]	I have decided, narrowly, not to record a conviction despite the absence of any material suggesting specific difficulty for the appellant.  I have done so, given the comparable, or perhaps lesser, level of offending and the other comparable personal circumstances with the co-offender.
[39]	As I have already mentioned I reject the remarkable submission that the appellant should be ordered to pay $1,000 in compensation despite having submitted he would pay $2,000.
[40]	Otherwise, I have decided that it is appropriate to substitute a lesser number of hours of community service, not because I perceive that there is some error in what her Honour did but because, having got to mid-November, approximately 8 months after the sentence was imposed, it appears as though the appellant may have completed about 60 hours. The prospects of completing another 180 between now and March next year would seem to me to be extremely limited and I do not say, in that respect, that there is any suggestion that the appellant has not made reasonable efforts to complete the community service. In the circumstances, it seems to me that it is appropriate to substitute a lesser number of hours and the amount I substitute is 100 hours.