Brown v Queensland Police Service [2011] QDC 301

District Court of Queensland|2011-12-06|Before: Act J

Office of the Director of Public Prosecutions for the Respondent

[1] The appellant was convicted of a number of offences in the Magistrates Court at Townsville on 22 March 2011. He appealed against sentence on the ground that the sentences imposed were excessive.

[2] There were three appeals. I heard them together on 13 September 2011. The appeals were allowed.

2. An alleged omission by the Magistrate to sentence the appellant on two of the charges he had entered pleas of guilty on;

3. An omission to fix a parole release date or to suspend, a sentence of four months' imprisonment imposed in respect of one of the charges.

[4] The fourth irregularity - the admission into evidence of a juvenile criminal history in sentencing an adult was not conceded. However, it was resolved in the appeal against the respondent by reference to case authority.

[5] However, I decided to reserve the preparation of reasons in respect of the first "irregularity", the way in which the arraignment was conducted by the Magistrate; and the fourth "irregularity", the admission of the juvenile history.

[6] I adjourned the further disposition of the appeals to follow the publication of my reasons. No formal order quashing the convictions was made at the time. I reserved for further consideration the appropriate forum for re-sentencing the appellant. His bail was enlarged until the delivery of judgment or until further order.

A The arraignment procedure on guilty pleas in the Magistrates Court

[7] One of the Bench Charge Sheets (AOBH) on file 4332/11 is notated by the Magistrate "P/G to all chges". That file has another Bench Charge Sheet (Stealing from the Person) but no notation on it; file 2710/11 has seven charges (property offences and breaches of bail). The first of those charges is notated "P/G 22/3/11" on the Bench Charge Cover Sheet and the following four are then ticked to indicate that the same notation applies. The last two of those charges (breaches of bail) appear to be notated "CNFP", which I interpret as being "convicted but not further punished"; and file 1067/10 (AOBH/Armed/In Company) has no relevant notation.

[8] There is no other Court record of the arraignment process. However, Mr Lynham in his written submission described the process as follows:

"[7] At the commencement of the sentencing hearing the Magistrate undertook what might loosely be described as an 'arraignment in bulk' in which the Magistrate simply identified the date of each offence and a short description of the offence. Having read out the charges in this manner, the Magistrate asked the appellant:

Q. 'Okay Mr Brown, to which of those charges I've read to you, how do you plead, guilty or not guilty?'

[9] Mr Lynham described that abbreviated process as having been "irregular" and not in compliance with section 552I of the Criminal Code (Qld) "(the Code)" or with the customary procedure for "bulk arraignments".

[10] There is no Practice Direction published by the Chief Magistrate about arraignment procedures for indictable offences heard and determined summarily or summary charges per se.

[11] Part 4 of the Justices Regulation 2004 provides a procedure for Bench Charge Sheets and Bench Cover Sheets. The following are the relevant provisions: Section 12 requires a police officer to give to the Clerk of the Court a separate Bench Charge Sheet for each charge against a defendant; Section 13 provides that a Bench Charge Sheet must state a number of particulars, including that "the offence with which the defendant is charged and adequate particulars of the charge to inform the defendant of the nature of the charge including, for example, the following particulars -

"(i) Particulars of the alleged time and place of committing the offence;

(ii) Particulars of the person, if any, alleged to be aggrieved;

(iii) Particulars of the property, if any, in question;"

"Any circumstances of aggravation on which it is intended to rely."

[12] Section 14(2) and (3) require a description of persons or things that would be sufficient in an indictment to be sufficient in a Bench Charge Sheet and a description of the offence in the words of the Criminal Code or the act defining it or in similar words is sufficient. Section 14 requires:

"(3) If the Court accepts the defendant's plea, or enters a plea for the defendant, to the charge, the Court must record the plea on the Bench Charge Sheet.

(4) The Court must ensure the decision on the charge is recorded on the Bench Charge Sheet."

[13] Section 15 refers to a Bench Cover Sheet in the following terms:

(a) a proceeding under the Act before a Court in relation to a charge for which an Act does not require a Bench Charge Sheet; or

(2) The Court before which the application or proceeding is brought must record the following information on a document (a Bench Cover Sheet) -

(d) the Court's decision on the charge or application.

[14] Section 145 of the Justices Act 1886 provides, with respect to proceedings in the case of simple offences and breach of duty, as follows:

(1) When the defendant is present at the hearing the substance of the complaint shall be stated to the defendant and the defendant shall be asked how he or she pleads.

(2) If the defendant pleads guilty, the Magistrates Court shall convict the defendant or make an order against the defendant or deal with the defendant in any manner authorised by law."

[15] A simple offence is summary offence: Section 3 of the Code.

[16] The summary offences, or charges, in this case were:

• Possession of Tainted Property, s 252(1) Criminal Proceeds Confiscation Act 2002

• Breaches of bail, s 33(1) Bail Act

[17] Hence in respect of those charges, "the substance of the complaint" is mandatorily required to be stated to the defendant.

[18] The word "substance" is relevantly defined in the Macquarie Dictionary (2nd) Revised Edition as "the essential part, or essence, of a thing". It is difficult to definitively determine whether or not the Magistrate stated the "substance" of those four charges to the defendant. The Magistrate is said to have spoken to him, using the words "... those charges I've read to you ..." The "substance" of a charge may of course differ from charge to charge. It is a matter for the exercise of discretion by a Magistrate, in the context of the intent of the Justices Regulation 2004 and section 145(1) of the Act. Whilst both section 145(1) of the Act and section 552I of the Code contain the word "substance", the procedure in the Code section is more detailed and specific.

[19] In the circumstances I find that the Magistrate complied with section 145(1) of the Act. However, the Justice Regulation 2004 was not complied with because the Bench Charge Sheets were not each notated with the required information. It may be convenient to use the Bench Cover Sheet but that does not appear to me to be the purpose of that document and the regulation is specific as to what is required.

[20] One of the grounds of the appeal was that two of the charges in respect of which the appellant was convicted but not sentenced, were the two breaches of bail. However, the notation on the Bench Cover Sheet (as distinct from the Bench Charge Sheet) seems to indicate, subject to my interpretation of the acronym being correct, that the Magistrate considered those charges and convicted the appellant but did not further punish him. It may be the case that the Magistrate omitted to announce that order in open court.

[21] In R v SBJ [2009] QCA 100 the appellant was sentenced to imprisonment on a count of maintaining a sexual relationship. However, the sentencing judge had not pronounced a conviction on a further eight counts (that were, in effect, particularised instances of the sexual misconduct in respect to the maintaining charge) and then state that the appellant would not be further punished in respect of those counts. There had been a bulk plea arraignment and a guilty plea was made. However the allocutus was administered in respect to all nine counts. Hence he had been properly convicted.

[22] The remaining offences are indictable offences that must be heard and decided similarly unless the appellant had elected for a jury trial pursuant to section 552B of the Code:

[23] Section 552I of the Code outlines the procedure that applies to section 552B. It is expressed in similar terms to section 145 of the Act. Section 552(I) provides as follows:

"(2) If the defendant is not legally represented, the Magistrates Court is required -

(a) to state the substance of the charge to the defendant; and

(b) to explain to the defendant that he or she is entitled to be tried by a jury and is not obliged to make any defence; and

(3) Whether or not the defendant is legally represented, unless the defendant informs the Magistrates Court that he or she wants to be tried by a jury, the Magistrates Court must ask whether the defendant is guilty or not guilty of the offence."

[24] Mr Lynham submitted that the expression "of the offence" requires a defendant to be arraigned upon and to enter a plea with respect to each offence with which he or she is charged.

[25] Failure to comply with the procedure in section 552I of the Code is not an irregularity capable of waiver: Rochow v R (1983) 8 A Crim R 37.

[26] He submitted that this procedure was not followed and that a "bulk plea arraignment" is not a permitted procedure. "Bulk plea arraignments" are able to be made upon indictments (and summary charges transferred to this court) in the District Court (and similarly, I assume, in the Supreme Court): Section 597C of the Code and section 46 Criminal Practice Rules 1999. In practice there is a specific procedure that must be followed: Associates' Manual, District Court of Queensland (Jan 2011). However, section 552B does not specifically permit such a procedure. I have no doubt that this is a matter that should be addressed in respect of the Magistrates Court because of the convenience and efficiency of this process where there are a large number of charges against an accused who is to plead guilty upon an arraignment.

[27] In R v Carkeet [2008] QCA 143 the appellant appealed an armed robbery conviction on the ground, inter alia, that he did not commit the offence. He had pleaded guilty to the offence upon a bulk plea arraignment. The court of appeal held that the plea was properly made. The appeal was dismissed. See also R v SBJ (supra) on this point.

[28] R v Ellis (1973) AC 571, whilst it refers to the requirement for an accused to personally enter a plea on an arraignment upon indictment, provides guidance that in my view applies to the procedure under section 552I of the Code. Edmund Davies LJ wrote, so far as is relevant, at 573-575:

"Arraignment is basic to criminal trials by a Judge and jury. As Russell puts it (Criminal Evidence, 16th ed. p 242):

'It consists of two parts, the reading of the statement and the particulars of the offence to the defendant and the asking him whether he is guilty or not guilty ..."

[29] There is a discussion of the ancient origins and history of "the arraignment" by the Court of Appeal in Victoria in R v Talia [1996] VicRp 33; [1996] 1 VR 462. See also my observations in R v Logan (2009) QDC 237 (about the taking of a plea in a committal proceeding); and Pinkstone v R (2000) WASCA 367. See also the commentary in Archbold, Criminal Pleading, Evidence and Practice at Ch. 4-98.

[30] Finally in this matter there is some uncertainty as to whether the allocutus was administered to the appellant by the Magistrate. The allocutus ordinarily reflects the court's acceptance of the plea of guilty or verdict of a jury and constitutes conviction: R v Jerome (1964) Qd R 595, at 602-603; section 648 of the Code.

[31] The administration of the allocutus is a necessary part of the plea-making and conviction process. There is no conviction until the court accepts the plea. It is the way in which the determination of guilt is recorded by the court. A plea of guilty, while amounting to a confession of guilt, does not of itself amount to a conviction. Something more, indicating there has been a determination of guilt, is necessary: that is, the administration of the allocutus: Maxwell v The Queen [1996] HCA 46; [1996] 184 CLR 501; [1996] 70 ALJR 325; R v Shillingsworth [1985] 1 Qd R 537 at 543; and R v Lowrie and Ross [1999] QCA 305; [2000] 2 Qd R 529 at 539.

[32] The taking of the pleas on the indictable offences was irregular. The concession of this ground of appeal by the respondent was a proper concession to make in the circumstances.

[33] Where indictable offences are to be heard and determined summarily, each offence must be read to the defendant and a separate plea taken to each offence, after it is read to the defendant. A failure to follow that procedure is in my view, an incurable irregularity that will result in a conviction on a plea of guilty being quashed on appeal and the sentence imposed being set aside.

B The admission of a juvenile criminal history in sentencing an adult

[34] Section 148(1) of the Youth Justice Act 1992 provides with respect to admission of childhood offences, the following:

"148 Evidence of Childhood Finding of Guilt Not Admissible Against Adult

(1) In a proceeding against an adult for an offence, there must not be admitted against the adult evidence that the adult was found guilty as a child of an offence if a conviction was not recorded.

(2) Subsection (1) applies even though the evidence would otherwise be admissible under the Evidence Act 1977, section 15 and the Criminal Law (Rehabilitation of Offenders Act) 1986, section 5(3)(b).

(3) This section does not prevent a Court that is sentencing an adult from receiving information about any other sentence to which the adult is subject if that is necessary to mitigate the effect of the Court's sentence.

(4) For sub-section (1), if a person is found guilty as a child of an offence, the person is not taken to have been found guilty as an adult of the offence merely because of the making of a declaration under section 143(4)."

[35] The Youth Justice Act 1992 refers to circumstances affecting whether an offender is treated as an adult or child: section 140 relevantly provides that if a proceeding for a childhood offence is started whilst the offender is a child but not completed until after one year has passed after an offender has become an adult, the proceeding is finished as a juvenile offence but if found guilty, the offender must be sentenced as an adult.

[36] The appellant's date of birth was 22 February 1993. He was aged 16 years - a child - when he committed the Assault Occasioning Bodily Harm on 14 February 2010. He was sentenced as an adult because one year had passed after he had become an adult. The other offences were committed when he was 17 years and he was 18 years when sentenced.

[37] The appellant's juvenile criminal history was tendered on sentence. It contained convictions for offences in respect to which no convictions were recorded.

[38] Reference was made to the juvenile criminal history in the prosecutor's submissions and by the Magistrate who said, referring to previous convictions committed as a child where no convictions were recorded:

"... I have to take all that into account globally when imposing a sentence" and

"... it can't be said that he hasn't done this sort of thing before"

"... [I am] dealing with a person who has previously been dealt with [for] an offence of that nature."

[39] In sentencing the appellant, the Magistrate referred to the childhood and adult criminal histories and said:

"... you have been dealt with in the Children's Court for a similar type of offence, so it's not the first time you have done this", referring to the burglary charge.

[40] In R v Malayta, the similar section in the predecessor to the Juvenile Justice Act 1992, section 114, was considered by the Court of Appeal. In the joint judgment of de Jersey CJ and Helman J, their Honours wrote the following:

"[18] Read literally, the provisions would authorise reference by the Court to all offences, committed while the offender was a child, for which the child was found guilty but convictions not recorded, and not just those which amounted to seven year offences. Introducing the concept a finding of guilt, subs (1) contemplates all cases or any cases where a conviction has not been recorded. The apparent prohibition is, in short, comprehensive. But the prohibition - that 'comprehensive' prohibition - is lifted by the operation of subs (3) where the child has been dealt with for a seven year offence, and has then committed and been dealt with for another seven year offence. Then 'the finding of guilt' may be referred to at the sentencing of the adult (subs (4)). Those words, 'the finding of guilt' take one back via subs (3), to subs (1) which, as said, is to be read as referring to all or any cases where convictions have not been recorded."

[41] In R v Hodcroft [1997] QCA 379, the Court of Appeal in dealing with the same section of the Juvenile Justice Act 1992, identified clearly the fact that juvenile offences cannot be used in sentencing an adult. Even if juvenile offences are inadvertently let in during the submissions, they are not to be used in the sentencing by the judicial officer.

[42] Those two cases highlight the difficulty that may face judicial officers when sentencing an adult for childhood offences where section 148 of the Youth Justice Act 1992 applies. Nevertheless, the requirement of the section must be followed by the sentencing judicial officer.

[43] The respondent conceded the appeal on this ground after considering the relevant statements of the Court of Appeal in Malayta.

[44] The arraignment of the defendant on the indictable offences that were to be heard and determined summarily was irregular. Hence that is a further ground upon which the appeal must succeed.

[45] Whilst I am uncertain as to whether it is correct to say that the Magistrate omitted to sentence the defendant on the two breach of bail charges in respect of which pleas were taken, nevertheless those charges are subject to the same order quashing convictions and setting aside sentences that is made in relation to the other charges.

2. The convictions and sentences made in the Magistrates Court on 22 March 2011 are quashed and set aside respectively**.**

3. The appellant to be re-sentenced in the District Court at Townsville on a date to be fixed.

Justices Regulation 2004

Proceeds Confiscation Act 2002

However, the Justice Regulation 2004

Juvenile Justice Act 1992

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