Johnson v Commissioner of Police [2025] QDC 136

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where the appellant appeals against sentence pursuant to s 222 of the Justices Act 1886 (Qld) - where the appellant pleaded guilty to using a carriage service to menace or harass - where the appellant was fined $400 and a conviction recorded - whether the magistrate ought to of considered the appellant's release without conviction

[1] HIS HONOUR: In March of 2025 the appellant was 21 years old. He was communicating with a young woman on Snapchat and Instagram. It is clear that he had a romantic interest which was not reciprocated by this young woman. She made it plain to him that she did not wish him to contact her. Police did become involved at one point and warned the appellant not to contact the young woman.
[2] Despite this, in early March of 2025 the appellant sent to her a long message which included references to him being a fighter, that he would not give up on her and, on the facts presented to the magistrate, he communicated with her brother in an effort to discover her location, purportedly in order to send her flowers. This conduct amounted to using a carriage service to menace or harass contrary to Commonwealth legislation.
[3] The appellant entered a plea of guilty at the Noosa Magistrates Court on 6 May 2025. He was represented by a barrister who was the duty lawyer that day. At the time, the appellant had a single prior conviction for possessing cannabis just before the commission of the Commonwealth offence, for which he was placed on a recognisance for six months. It was not something of great relevance at the time of the sentence.
[4] The sentence hearing was brief. The appellant was fined $400, with the fine referred to the State Penalties Enforcement Registry. A consequence of the Commonwealth sentencing legislation is that the imposition of the fine mandated the recording of a conviction. The appellant appeals against the sentence decision and in particular, he is aggrieved by the recording of the conviction.
[5] While the appellant may be due some sympathy in the circumstances, and while there may be arguments about the effectiveness of a policy that requires the recording of a conviction in such circumstances, the matter of which he complains was in effect unavoidable. There was no error in the proceeding before the magistrate, and in my opinion, the appeal must be dismissed.
[6] An appeal brought under section 222 of the Justices Act 1886 (Qld) is by way of a rehearing on the evidence given before the Magistrates Court. This court may give leave to adduce fresh, additional or substituted evidence, but only if satisfied that there are special grounds for giving leave. That is relevant in this case for reasons I will return to. My obligation is to conduct a re-review of the evidence before the magistrate and the magistrate's reasons for imposing the sentence to determine whether the decision was affected by error.
[7] Because this is an appeal against the exercise of the sentencing discretion, it is to be determined having regard to the general principles identified in House v The King.[1] If the court finds the learned magistrate acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, or did not take into account some material consideration, then this court can exercise the sentencing discretion afresh.
[8] It is not enough that I consider that if I had been in the position of the magistrate, I would have taken a different course. Where the alleged error is that the sentence is excessive, in order to succeed, the appellant must demonstrate the sentence falls outside of the permissible range of sentences, considering all of the relevant circumstances including the circumstances pertaining to the offender and the offence itself.[2]
[9] In identifying the grounds of appeal, it is plain that there is no challenge to the guilt of the appellant. Where a plea of guilty has been freely entered, as it was in this case, only the sentence can be challenged on appeal. As best as may be discerned, the appellant's complaint is that the magistrate did not consider his release without conviction under section 19B of the Crimes Act 1914 (Cth), or that the magistrate should have preferred such an option.
[10] There was some mention by the duty lawyer who was involved in the matter below indicating that this was not a matter suitable for a 19B disposition. It is plain from the transcript that 19B was considered by the magistrate. In those circumstances, it is unsurprising there was no detailed consideration of the operation of section 19B. In any event, a consideration of 19B would not have assisted the appellant and would not have produced some different result.
[11] Section 19B allows a court to release an offender without conviction but only in circumstances where the court is satisfied of the matters listed in section 19B, subsection (1)(b). Importantly for the present matter, that involves considering the extent to which the offence is of a trivial nature and the extent to which the offence was committed under extenuating circumstances. A consideration of those matters in the context of the present offence would inevitably have led to the result that this was not a matter where it was inexpedient to inflict any punishment, or inexpedient to inflict any punishment other than a nominal punishment. Such a conclusion would exclude the operation of section 19B. Pursuant to Commonwealth legislation, that left as the only options, sentences which would involve the mandatory recording of a conviction.
[12] In terms of whether the sentence which was imposed is one which is impermissibly excessive, it is necessary to have regard to the nature of the offending and the characterisation of it in the context of the appellant's background. In this regard, one begins by consideration of section 16A of the Crimes Act, and the relevant matters which are set out in that section.
[13] The appellant's conduct of 11 March 2025 which constitutes the relevant offending did not involve violence or threats of harm to any person or property. That said, it was not trivial offending. It occurred in a context where the victim had requested the appellant stop contacting her, warning that if he did not, she may make a complaint to the police. It also occurred in circumstances where the police had warned the appellant cease contact with the victim.
[14] In his favour, the appellant entered a plea of guilty at an early stage. This is relevant, as is the fact that it was of benefit to the community in that it saved the resources of a trial and saved the victim from being required to give evidence. Another matter in the appellant's favour was that he cooperated with law enforcement agencies in the investigation of the offence. He agreed to participate in a recorded interview with the police and during that interview, made relevant submissions. That said, the early plea and the admissions are to be considered in the context of a compelling case against the appellant.
[15] General and personal deterrence were also relevant considerations. General deterrence was important given the ease with which telecommunication offences can be committed. The appellant's conduct was an entirely inappropriate way to express his interest in the victim, given that she had made it clear that she wanted him to stop all contact. It was appropriate that the sentence imposed upon the appellant made it clear to the community that offences of this type committed in these circumstances, will be met with condign punishment.
[16] Personal deterrence was also relevant given the appellant's comment during the sentencing hearing. His submissions on appeal also indicate an ongoing failure to appreciate that his actions, at the time of the sentence at least, were offensive, menacing or harassing in nature. He now accepts that is the case and that his conduct was wrong.
[17] It is apparent though from all of the circumstances, that the sentence of a fine was one which was within the permissible range which could be imposed. In those circumstances, the appellant has not demonstrated the sentence was one which was impermissibly excessive.
[18] It remains only to mention material filed in the appeal, which is in the nature of references to demonstrate the otherwise good character of the appellant. I have considered that material, but it is not sufficient to persuade me that some other sentence should have been imposed. In these circumstances, consistent with authority, I would refuse leave to admit that evidence.
[19] In my view, there is no demonstrated error of principle in the exercise of the magistrate's sentencing discretion. It was open to the magistrate to impose the sentence that was imposed. The sentence was within the acceptable scope of judicial discretion in all of the circumstances. For these reasons, the appeal is dismissed.

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