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[2009] QDC 322
appellant. Appeals allowed; Magistrate's orders set aside; charges proved but each appellant released without conviction on recognisance of $250 conditioned on good behaviour for 12 months (see [27]).
Two young men sent two unsolicited text messages (one with sexual innuendo) and made a follow-up call to a stranger. The Magistrate convicted and fined them $1,200 each. On appeal the District Court held the Magistrate had wrongly characterised the conduct as menacing, failed to consider properly the impact of recording convictions and other relevant factors in s 19B and s 16A, and therefore re-exercised the sentencing discretion. The District Court found the conduct amounted to harassment at the lower end of offending and, given youth, good antecedents and likely adverse collateral consequences of conviction, released both men without conviction on recognisance of $250 conditioned on 12 months good behaviour.
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1,654 words · generated 21/06/2026
Hermes-Smith v Winters concerned two young men, Hermes-Smith and Jolliffe, who pleaded guilty in the Magistrates Court at Coolangatta to an offence under s 474.17 of the Criminal Code Act 1995 (Cth): using a carriage service to harass Amanda Lynch ([1], [4]). The factual matrix was concise. Over the course of one evening the appellants sent two unsolicited text messages to a stranger and, subsequently, there was a telephone call. The first text apologised that the complainant's bag was vibrating, the second contained sexual innuendo: 'I love your yellow dildo. It turns me on. I could do better though.' Jolliffe then rang and identified himself as Nathan; the complainant hung up and later reported the matter to airport authorities who referred it to the Australian Federal Police. Both appellants admitted the conduct and pleaded guilty ([4]).
3 cited instruments linked from this judgment.
At first instance the Magistrate convicted and fined each appellant $1,200 (default 12 days imprisonment) under the Crimes Act 1914 (Cth) (the Act) ([1]). The appellants appealed to the District Court of Queensland on the ground the sentence was manifestly excessive ([2]). The District Court (Ryrie DCJ) allowed the appeals, set aside the Magistrate’s orders, and re-exercised the discretion to find the charges proved but to release each appellant without proceeding to conviction, conditional on recognisances of $250 and 12 months good behaviour ([27]). The reasoning unfolded through (a) analysis of whether the Magistrate had erred in characterising the offending as menacing and (b) whether the Magistrate failed to apply properly s 19B of the Crimes Act and the considerations in s 16A ([7]–[9], [15]–[18], [21]–[24]).
The District Court applied the established appellate standard regarding review of discretionary sentencing decisions, namely the House v The King principles as articulated in R v Hooper; ex parte Cth DPP [2008] QCA 308 (quoted at [3]). Under that standard an appellate court may interfere where the sentencing judge acted on a wrong principle, took extraneous matters into account, misstated the facts, or failed to take into account material considerations. The District Court identified a core error: the Magistrate had, in his Reasons and in his oral remarks, described the conduct as intimidating and threatening, as if it were menacing. The respondent conceded the conduct could not properly be characterised as menacing; the District Court accepted the concession and found that the Magistrate had proceeded to sentence on the wrong premise ([7]–[9], [14]).
That error mattered because the Act provides specific statutory discretion under s 19B to release without conviction where one of several items in s 19B(1)(b) is met and, in the court's exercise, it would be inexpedient to inflict punishment (see [15]–[18]). The District Court examined the statutory criteria. It concluded that while the offending was not trivial or in extenuating circumstances (so s 19B(1)(b)(ii) and (iii) did not apply), the appellants' youth, unblemished records and good employment histories fulfilled s 19B(1)(b)(i). In the exercise of the discretion, and taking into account s 16A matters (impact of conviction on employment and travel; prompt desistance; cooperation; apology), a s 19B(1)(d) order releasing without conviction was appropriate ([16]–[18], [22]–[24]).
The District Court also considered but rejected the submission that the Magistrate’s occasional numeric comparisons amounted to a forbidden 'mathematical approach' to sentencing; on the evidence the Magistrate had only used numbers in comparative assessment and had not fallen into error on that basis ([25]–[26]). Nonetheless the core sentencing discretion had to be re-exercised because of the incorrect characterisation and the Magistrate’s failure to give adequate weight to relevant collateral consequences of conviction.
Before this decision, the governing principles for appellate intervention on sentencing matters were settled: the House v The King standard, and the need to apply the criteria in s 19B when considering non-conviction orders under the Crimes Act. R v Hooper provided recent Queensland authority applying those principles in the context of s 19B. Hermes-Smith v Winters applies those principles to an archetypal low-end telecommunications harassment case and demonstrates how s 19B(1)(b)(i) (character/antecedents) can be decisive even where the conduct is not trivial.
After this decision practitioners should note these takeaways:
“[I have come to the view that the submission made by Counsel for the appellants is correct.]” ([9])
Plain English: The judge accepted the appellants’ argument that the Magistrate mischaracterised their conduct; this finding is the turning point that required the court to re-open sentencing.
“Having regard to the respective appellant's young ages, unblemished records and good work histories, I find those factors alone provide sufficient basis under s 19B(1)(b)(i).” ([17])
Plain English: The judge held that being young, previously law-abiding, and employed are sufficient on their own to justify considering non-conviction relief.
“I am satisfied that an order under s 19B(1)(d) ought to have been made in this case.” ([18])
Plain English: The judge concluded the correct outcome was to record the charge proved but not to record a conviction, that is, to release without conviction.
“I do not consider that he did have proper regard to this material consideration.” ([24])
Plain English: The judge found the Magistrate failed to properly consider a significant factor, the real disadvantage a conviction would cause to the appellants’ futures.
“The appeals are allowed. I set aside the orders of the Magistrate and in lieu thereof I make the following orders:” ([27])
Plain English: The judge overturned the original sentence and replaced it with orders releasing the appellants without conviction on conditions.
Each of those passages is explicitly anchored in the judgment and identifies either an error or the rationale for the re-exercised discretion.
This decision is most directly triggered when:
Where those facts exist, Hermes-Smith shows an appellate court will scrutinise the primary judge’s characterisation and attention to s 19B/s 16A considerations and may re-exercise the sentencing discretion to impose a non-conviction order.
This judgment expressly applied R v Hooper; ex parte Cth DPP [2008] QCA 308 and Commissioner of Taxation v Baffsky [2001] NSWCCA 332 in analysing the dual-limb approach to s 19B (see [3], [15], [22]). It stands as a practical application: it reinforces that s 19B(1)(b)(i) (good character and antecedents) can be decisive where other limbs (triviality/extenuating circumstances) are absent. Later courts considering low-level carriage-service harassment will cite Hermes-Smith for the proposition that a sentencing judge must explicitly confront collateral consequences and cannot rely on an overstated characterisation of offending to justify a heavier penalty. If subsequent appellate authorities treat Hermes-Smith, they are likely to follow its application of R v Hooper and its insistence on explicit engagement with s 19B and s 16A considerations.
Note: Hermes-Smith itself is a District Court decision and so functions as persuasive authority for lower courts and as part of the appellate jurisprudence in Queensland on non-conviction orders under the Crimes Act.
Degree of expressness required: How explicit must a sentencing judge be in addressing each s 16A factor and the likely collateral consequences before an appellate court will consider the omission fatal? Hermes-Smith underlines the need to address employment/travel, but the precise threshold of articulation remains a matter for later clarification.
Balancing persistence against content: Hermes-Smith treats persistence and unsolicited contact as sufficient to deny triviality, but further cases will need to map where persistence combined with low-level content nonetheless merits a non-conviction outcome. The line between 'not trivial' and 'sufficiently low-end for s 19B relief' will be developed factually.
Weight of peer-pressure and intoxication: The judgment recognises drinking and peer-group pressure as explanatory but not excusatory ([18]). Subsequent authorities will clarify the weight such factors can bear when combined with good antecedents in the proportionality exercise.
Quantification of collateral impact: The decision treats potential employment and travel restrictions as material, but courts will need to establish what evidence is necessary to prove the likely impact of a conviction to a standard that will secure s 19B relief. Hermes-Smith demonstrates the impact can be persuasive, but it does not set evidentiary thresholds.
Role of apology and prompt desistance: The decision gives weight to immediate desistance and apology ([18]), but future courts may delineate how these interact with other factors like propensity to repeat or community protection imperatives.
Practical guidance for practitioners: when defending low-end carriage-service harassment, ensure the sentencing judge is given clear material on antecedents, employment/travel consequences, remediation and contrition. If the judge skews characterisation toward menacing or fails to address collateral consequences, Hermes-Smith offers a solid precedent for appeal and re-exercise of sentence in favour of a s 19B non-conviction outcome.
Commonwealth Director of Public Prosecutions for the respondent
**[1] On the 3rd April 2009 both appellants entered a plea of guilty in respect to the same charge, namely using a carriage service to harass Amanda Lynch (s 474.17 of the Criminal Code Act 1995 (Cth)) before the Magistrate's Court at Coolangatta. The Magistrate convicted and fined each of the appellants $1200, in default 12 days imprisonment, under the relevant provision of the Crimes Act 1914 (Cth) (the Act).
[2] A Notice of Appeal was filed on behalf of both appellants on the 28th April 2009 with the Brisbane District Court Registry on the ground that the sentence imposed at 1st instance was manifestly excessive. No point was taken by the Respondent in respect of the district which had been nominated to hear the respective appeals. As such, it was taken that there was agreement between the parties that this Court could hear them (s 116(2) of the District Court of Queensland Act 1967 (Qld)). Both parties also agreed that the appeals could be heard together for convenience as both appellants had been dealt with as being equally culpable for the offence and were sentenced upon the same factual premise.**
[3] The principles to be applied which govern an appeal against the exercise of judicial discretion have been helpfully set out by His Honour AJA McKenzie in R v Hooper; ex parte Cth DPP [2008] QCA 308 at [26] :
The judgment is a discretionary one to which the principles in House v The King (1936) 55 CLR 499 at 504-5 apply. Where a judicial discretion is exercised, it can only be set aside if the judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect the decision, mistakes the facts or does not take into account some material consideration. Also, in cases where it does not appear how the primary judge has reached the result embodied in the order, but upon the facts, it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been failure to properly exercise the discretion which the law reposes in the court of first instance and review the exercise of the discretion on the ground that a substantial wrong has occurred. The question is not whether others would have taken the same course as the sentencing judge; provided, in the circumstances, it was open to the sentencing judge to exercise the discretion at all, there is no ground for disturbing the order made (Cobiac v Liddy at 275). That is, of course, subject to the rider that the existence of circumstances in one or more of the categories in s 19B(1)(b) must reasonably support the exercise of the discretion; it is not sufficient to merely notice that one or more of them exist or to use them as a peg upon which to hang leniency dictated by some extraneous and idiosyncratic consideration (Cobiac v Liddy at 276).
**[4] In short, the facts placed before the Magistrate on sentence were that the appellants had, during the course of one evening, sent the complainant (who they did not know) 2 text messages and had subsequently made a telephone call to her. Mr Hermes-Smith's mobile phone was used for that purpose. Mr Hermes-Smith had initially received the complainant's name and phone number from a friend of his who was a baggage handler working at the Sydney Airport. The first text message sent to the complainant at 6.34 pm read 'sorry your bag was vibrating when I handled it today. I had to switch it off for you. Enjoy your stay. X'. The next text message sent to her at 6.45 pm read: 'I love your yellow dildo. It turns me on. I could do better though.' Mr Jolliffe then called the complainant, the exact time unknown. During that call, he identified himself as Nathan and claimed that he had met her recently at Fisherman's Wharf. The complainant promptly terminated the call by hanging up and no further contact then took place between the parties from that point onwards. The next day, the complainant reported the matter to the Gold Coast Airport Management which referred it to the Australian Federal Police. Both appellants were then located and interviewed. Both made full admissions.
[5] In his submissions to the Magistrate at sentence, the prosecutor referred to the matter as one that could properly be characterised as a prank although he submitted that it should be viewed with a degree of seriousness as it was an intrusion into the complaint's personal life (T1-4). He submitted that a fine in the order of $200 - $400 was an appropriate penalty in all the circumstances. He specifically argued against an order being made pursuant to s 19B of the Act and made his submissions accordingly. The Magistrate also heard submissions from the appellants' legal representative in respect of penalty. He submitted for a s 19B order.
[6] Counsel for the appellants before this court submits that for the purpose of these appeals, the sentence imposed on the respective appellants should be set aside because the sentence was manifestly excessive. He submits that the magistrate had demonstrated error in the exercise of the sentencing discretion. Counsel raised several bases to support the submissions made, which I shall now deal with.**
**[7] Counsel referred to the facts and submissions made by the prosecutor which were placed before the Magistrate at 1st instance for his consideration. In particular, he referred to the view which the prosecutor had adopted in respect of the conduct the subject of the charge, in particular that it could properly be characterised as a prank and that it was towards the lower end of the spectrum. Counsel referred to the Magistrate's rejection of that characterisation, notwithstanding that both the prosecutor and the appellants' own legal representative held that view. The Magistrate considered that the phone call was both intimidating and threatening, primarily because it had come from persons unknown, which would have left the victim (complainant) feeling very defenceless as she wouldn't have known who it was making the threat. (T1-8 L 25 - 30). Counsel also referred to the Magistrate's Reasons for his Decision (p1-5 L 30) where he found that the appellants had caused 'actual harm' to the complainant in that the complainant had felt intimidated and threatened by their conduct. Counsel submitted that the Magistrate's finding regarding actual harm was not open on the evidence as there was no victim impact statement before the court at 1st instance for consideration and the only submission made before the Magistrate regarding any 'harm' was the prosecutor's submission that the complainant had felt concerned enough to subsequently make a complaint the following day (T1-3). Counsel also referred to the charge itself, namely that both appellants had only been charged with harassing the complainant rather than having used the carriage service to menace her. He submitted that the general tenor of the Magistrate's sentencing remarks, also with reference to the transcript of the proceedings, was that the Magistrate had sentenced each appellant upon the (incorrect) basis namely that they had in fact menaced her, a fact he submitted was not made out on the facts before the Magistrate.
[8] In reply, Counsel for the respondent conceded that the conduct complained of, the subject of the charge, could not properly be characterised as a threat to the complainant. He also conceded that the conduct could not be viewed as 'menacing' (as there had been no actual threats made or any threatening conduct towards her) in all the circumstances of this case. Counsel for the respondent submitted however that the conduct in question could not, nevertheless, be characterised as a prank and the Magistrate was right to view it was serious. He referred to the Magistrate's findings regarding the persistent nature of the conduct, the sexual innuendo used in the second text message and the fact that the complainant had received a follow up phone call from someone she didn't know who had her phone number. He submitted that the Magistrate was correct in viewing the conduct in those circumstances as not being trivial in nature. Counsel submitted that in those circumstances the conduct in question could be regarded as harassment of a more serious nature towards the complainant.
[9] After a careful reading of the Magistrate's Reasons for his Decision and with reference to the transcript of the proceedings, I have come to the view that the submission made by Counsel for the appellants is correct. It is clear that the Magistrate felt that the conduct which had been engaged in by the appellants was both intimidating and threatening to the complainant, particularly because she did not know who it was that was contacting her. He also regarded those circumstances as relevant when determining that the appellants had engaged in conduct which had caused the complainant actual harm, that harm presumably being that it had caused the complainant to feel concerned enough to complain about to the authorities subsequently. It is also clear from his remarks that he also rejected the submissions made at 1st instance by both parties that the conduct as a whole could be regarded as a prank. That is emphasised by the comments he made regarding the apology tendered before him by both appellants when he observed that he regarded it as demonstrating little insight into their offending behaviour.
[10] In the Webster's Revised Unabridged Dictionary, "harass" means "To fatigue; to tire with repeated and exhausting efforts; esp., to weary by importunity, teasing, or fretting; to cause to endure excessive burdens or anxieties"
[11] "Menace" means "The show of an intention to inflict evil; a threat or threatening; indication of a probable evil or catastrophe to come."
[12] "Offensive" means "Giving offense; causing displeasure or resentment; displeasing; annoying; as, offensive words."
[13] "Harm" is described as meaning "Injury; hurt; damage; detriment; misfortune."
[14] In view of the concessions made by the Respondent before this court, namely that the conduct in question could not be properly regarded as being 'menacing' insofar as no actual threats or threatening conduct was given to the complainant, and with reference to the meanings expressed above in the dictionary to which I have just referred, I have respectfully come to the conclusion that the Magistrate did proceed to sentence the appellants upon a wrong premise. Both appellants were only ever charged with having harassed the appellant through the use of the carriage service. While that harassment certainly caused her sufficient concern to complain about it subsequently, it cannot, in my mind, be regarded as 'menacing'. The tenor of the Magistrate's reasons for decision and the use of the words intimidating and threatening and the like does support a conclusion that he proceeded to sentence each of the appellants for conduct by its' nature was 'menacing'. It follows that I find that the Magistrate did fall into error when exercising his judicial discretion, it is therefore necessary for me to exercise the discretion afresh.
[15] At paragraph [18] in R v Hooper; ex parte Cth DPP [2008] QCA 308, Justice Mackenzie sets out the relevant considerations to be applied in any exercise of the discretion under s 19B of the Act.
[16] The Respondent submitted that even if this court was of the view that the Magistrate was found to be in error on this issue, the conduct complained of, nevertheless, could not be regarded as trivial or said to have been committed in extenuating circumstances. He submitted this court would properly find, in any event, that the conduct could nevertheless be regarded as harassment of the complainant. I agree with that submission. The complainant did not know who it was that had been texting her earlier and even though the appellant Jolliffe identified himself as Nathan in the subsequent phone call, the complainant would have, in my mind, still have felt harassed regardless. The conduct had not been isolated and was persistent, a factor relevant when considering the method of use adopted in respect of the carriage service, even though I accept that the actual content of the communications, taken as a whole, was at the lower end of the spectrum of offending. All of the communications were uninvited. For those reasons and after having regard to the Explanatory Memorandum to the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No. 2) 2004 at p 33, I agree with the Respondent that I cannot conclude that the conduct was of a trivial nature or was committed in extenuating circumstances even after taking into account that the appellants had only engaged in the conduct for a bit of a laugh and had desisted immediately upon the complainant hanging up on appellant Jolliffe after he had rung her.
[17] Having found that s 19B(1)(b)(ii) or (iii) do not apply, that leaves only the matters in s 19B(1)(b)(i) available for my consideration as providing a possible foundation for the exercise of the discretion under s 19B of the Act. Having regard to the respective appellant's young ages, unblemished records and good work histories, I find those factors alone provide sufficient basis under s 19B(1)(b)(i). Having found that one of the conditions listed in s 19B(1)(b) has been fulfilled, I must however go on to consider whether in all the circumstances of the case it was inexpedient to impose any punishment, or any punishment other than a nominal punishment.
[18] Having regard to the matters I have just identified with respect to character and antecedents and with reference to the matters also set out in s 16A(2) of the Act, I am satisfied that an order under s 19B(1)(d) ought to have been made in this case. The offence, while not trivial or committed under extenuating circumstances was nevertheless at the lower end of the offending. Both of the appellants immediately desisted upon the complainant hanging up on appellant Jolliffe and made no further attempt to contact her. Both had engaged in the conduct in the context of drinking and peer group pressure and while that certainly does not excuse their behaviour, it does go in some way to explaining it. In those circumstances, it cannot be said that the conduct which they had engaged, had a more underlying sinister character to it. Both appellants offered an apology and both co-operated fully with the Police upon being questioned. Those factors, together with the fact that the recording of a conviction will most certainly impact upon both appellant's future prospects of employment and any future travel plans, in my mind, sufficiently satisfies me that an order under s 19B(1)(d) of the Act should be made.
[19] Accordingly, the appeals are allowed and I set aside the orders made by the Magistrate at 1st instance.
[20] In the event that a different view is taken in respect of the conclusion I have just made, I shall briefly address the other grounds of appeal raised for consideration.**
**[21] Counsel for the appellants relies on several bases in respect of this submission.
[22] The first of those is that the Magistrate failed to give due regard to all of the factors set out in s 19B(1)(b) of the Act when exercising his sentencing discretion under the 1st limb of the test enunciated in Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 192 ALR 92. Secondly, Counsel submitted that the Magistrate also failed to have due regard to all of the matters set out in s 16A of the Act as he was required to (under the 2nd limb of the Commissioner of Taxation v Baffsky test). In particular, Counsel refers to the sentencing remarks made by the Magistrate at p5 L45, which was that he agreed with all the submissions stated by the prosecutor (with reference to s 19B) as to why the conviction should be recorded. Counsel for the appellants submitted that the Magistrate failed to give sufficient regard to the character and antecedents of both appellants and in particular, failed to give due regard to a significant material consideration, namely the effect that any conviction recorded against them would have on their future prospects of employment. Counsel then referred to the submissions which were made before the Magistrate on behalf of both of the appellants, namely that a conviction would have an impact on their future employment and their ability to travel. He also pointed out the failure by the Magistrate to even refer to those relevant factors in his Reasons for his Decision.
[23] Having regard to the Magistrate's Reasons for his Decision, I accept the submissions made by Counsel for the appellants that it does seem that the Magistrate did not turn his mind adequately to all of the matters relevant for the purpose of determining whether a bond under s 19B of the Act was appropriate. The general tenor of his Reasons for his Decision tend to show that while he did not consider that the offence was trivial or had been committed under extenuating circumstances (s 19B(1)(b)(ii) and (iii) respectively), it is clear that the Magistrate did consider by his reference to the character, and antecedents of both of the appellants that those factors were significant (thus capable of satisfying s 19B(1)(b)(i)). Notwithstanding those factors however, they were not sufficient enough to persuade him that it was therefore inexpedient to inflict any punishment or any punishment other than a nominal punishment in light of how he viewed the circumstances of the case. Even if it is accepted that the Magistrate was correct in finding that the conduct in question was not trivial or committed under extenuating circumstances or that it could be viewed as conduct amounting to a more serious incidence of harassment of the complainant (because she did not know them), the character and antecedents which he identified and referred to, that provided sufficient foundation for the purpose of s 19B(1)(b)(i), ought to have also persuaded him that it was inexpedient to inflict any punishment other than a nominal punishment upon the respective appellants, particularly when having regard to the matters set out in s 16A of the Act. One such matter was the impact that the recording of a conviction would have on each of the appellants' future prospects of employment.
[24] Having careful regard to the Magistrate's Reasons for his Decision, I do not consider that he did have proper regard to this material consideration. At no stage did he refer to that fact specifically in his Reasons for his Decision. The only reference which he does make in relation to the appellants' prospects for the future was unfortunately expressed in somewhat obscure terms at p 1-5 L3 where he has said "You each come before the Court also with gainful employment, and some decent prospects for the future if you do not re-offend." That obscurity may well be readily explicable perhaps because of the constraints that busy Magistrates are required to work under at times. However even after making such an allowance, I cannot conclude that the Magistrate did turn his mind to this relevant material consideration. It follows that I respectfully find that an error was made during the exercise of the judicial discretion.
3. The Magistrate fell into error when he adopted a mathematical approach to the question of penalty.
[25] Counsel for the appellants referred to T7 L42-49 and the exchange between the Magistrate and the Prosecutor on this issue. Counsel for the respondent properly conceded before this court that if such an approach was taken, it would not be appropriate.
[26] A fair reading of the transcript however, in my mind at least, reveals that even though the Magistrate had initially made reference to some mathematical figures when considering the range of fine proposed by the Prosecutor, he did so only in the context of having had regard to the case of Duffin which he considered was not as serious as the one before him and therefore the fine proposed by the Prosecutor was inadequate (p 1-5 com L12). Accordingly, as I do not consider the Magistrate fell into error, this ground must fail. However for the reasons already stated, the appeals are allowed.
[27] The appeals are allowed. I set aside the orders of the Magistrate and in lieu thereof I make the following orders:
1. In respect of the appellant Hermes-Smith, the charges are proved however I order that Mr Hermes-Smith be released without proceeding to conviction upon him giving security by recognisance in the sum of $250.00 conditioned that he be of good behaviour for a period of 12 months.
2. In respected of the appellant Jolliffe, the charges are proved however I order that Mr Jolliffe be released without proceeding to conviction upon him giving security by recognisance in the sum of $250.00 conditioned that he be of good behaviour for a period of 12 months.
Hermes-Smith
Winters
(2001) 192 ALR 92
(1969) 119 CLR 257
(1936) 55 CLR 499
Appeals allowed; Magistrate's orders set aside; charges proved but each appellant released without conviction on recognisance of $250 conditioned on good behaviour for 12 months (see [27]).