Magill v The Commissioner of Police [2020] QDC 8

Justices Act 1886 (Qld) s 223

Legal Profession Act 2007 (Qld) s 57

Penalties and Sentences Act 1992 (Qld) s 3, s 3(3), 9(2)(a), s 9(10), s 12(2), s 12(2)(c), pt 2

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, cited

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, cited

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, applied

McDonald v Queensland Police Service [2017] QCA 255, applied

R v Brown; ex parte Attorney-General [1993] QCA 271; [1994] 2 Qd R 182, applied

R v Callow [2017] QCA 304, applied

R v Castle; Ex parte Attorney-General (Qld) [2014] QCA 276, applied

R v Cay, Gersch and Schell; ex parte Attorney General (Qld) [2005] QCA 467, applied

R v Kleimeyer [2018] QCA 9, cited

R v Maniadis [1996] QCA 242; [1997] 1 Qd R 593, applied

R v Sanders [2007] QCA 165, applied

R v WBF [2017] QCA 142, applied

Director of Public Prosecutions (Queensland) for the respondent

[1] On 1 August 2019, in the Magistrates Court at Brisbane, Mr Magill pleaded guilty to five offences under s 29 of the Bail Act 1980 (Qld). The charges relate to Mr Magill breaching his bail conditions on 18 February, 29 March (x2), 28 June and 6 July 2019. For each offence, a fine was imposed ranging from $1,800 to $2,500. Convictions were recorded for the breaches of bail which he committed on 28 June and 6 July 2019.

[2] This is an appeal by Mr Magill against penalty, on the basis that the recording of convictions was excessive and that the learned magistrate erred in concluding that there was no evidence as to the effect of the recording of a conviction on Mr Magill's ability to continue to practice law. Mr Magill also seeks to adduce fresh evidence.

[3] For the reasons set out below, the appeal should be dismissed. Further, the application to adduce fresh evidence should be refused.

[4] On 21 October 2018, Mr Magill was charged with money laundering and other offences of dishonesty. An application for bail was made on the following day. It was granted on Mr Magill's undertaking not to contact or approach, nor have someone else contact or approach a number of persons, including a co-accused and prosecution witnesses, some of whom are barristers. The bail undertakings were reduced to writing in a document which he signed. His name had been misspelled. This was corrected and Mr Magill signed the corrected version of the undertakings on 24 October 2018.

[5] Mr Magill was next required to appear before the Brisbane Magistrates Court on 26 November 2018. On that occasion he was legally represented. There were cross applications to vary his bail conditions. The variation he was seeking was that he be allowed to speak to a number of persons listed in the undertakings for the purpose of conducting his business as a solicitor. In particular, it was said that Mr Magill needed to speak to barristers whom he had briefed in certain cases. At 2.38 pm, the Court varied Mr Magill's bail conditions. The variation Mr Magill had sought was not granted. Rather, an order was made enabling Mr Magill to have incidental contact by virtue of appearing in the same court as some of the persons that he had previously undertaken not to contact or approach.

[6] Approximately an hour later and prior to Mr Magill entering into the varied bail undertakings, he attempted to telephone one of the barristers that his bail undertakings prohibited him from contacting. Shortly thereafter he sent an IMessage to the same barrister's mobile number which read "I'm allowed to talk to you now". He was charged with breach of bail and appeared before the Brisbane Magistrates Court on 29 November 2018. The Court refused an application to revoke his bail.

[7] Mr Magill pleaded not guilty to the breach of bail charge and it was heard before the Chief Magistrate on 4 April 2019. A number of witnesses were called. The question at the hearing was essentially whether Mr Magill's lawyer had told him that he could make contact with the barrister and if not, whether Mr Magill was under a mistaken belief as to whether he was told this by his lawyer. The Chief Magistrate reserved his decision. On 3 June 2019, the Chief Magistrate handed down his decision finding Mr Magill guilty of having breached his bail undertaking. He was fined $1,200. No conviction was recorded.

[8] On this day, Mr Magill and his business partner attended a Lexus dealership at Fortitude Valley to purchase a vehicle for an associate of their firm. They subsequently attended a lunch at a Japanese restaurant in Fortitude Valley between 12.19pm and 3.36pm. Following that, Mr Magill and his business partner went to a bar where they had some drinks with some other people. His business partner left the bar at approximately 5.30pm.

[9] Condition 5 of Mr Magill's bail undertakings prohibited him from having contact with his business partner except in relation to the provision and administration of their legal practice. Mr Magill's interactions on this occasion at the Japanese restaurant and then at the bar, were in breach of this condition.

[10] On this evening, the partner of a co-defendant of Mr Magill was having a birthday party at a bar in Fortitude Valley, which was owned by a prosecution witness. Mr Magill attended the bar. The prosecution witness saw him having a conversation with his co-defendant. The prosecution witness approached them and heard the co-defendant tell Mr Magill that he should leave their premises as their contact was a breach of their respective bail conditions.

[11] Condition 4 of Mr Magill's bail undertakings prohibited him from having contact with his co-accused and the prosecution witness. Mr Magill's interactions with these people on this occasion were in breach of this condition.

[12] Late this evening, Mr Magill again attended the Fortitude Valley bar and again spoke with the same prosecution witness. The offending was captured on CCTV footage. This was again in breach of condition 4 of his bail undertakings.

[13] Around lunchtime, Mr Magill again attended the Fortitude Valley bar and again spoke with the same prosecution witness. The offending was captured on CCTV footage. This was again in breach of condition 4 of his bail undertakings.

[14] The appeal is by way of rehearing of the evidence.[1] The Court must review the record of proceedings and form its own opinion as to the appropriate sentence, giving due deference and attaching a good deal of weight to the learned magistrate's view.[2].

"... only if the sentencing discretion miscarried, either by specific error (such as acting upon a wrong principle, mistaking the facts, taking into account irrelevant circumstances or failing to take into account relevant circumstances) or by imposing a sentence which is "unreasonable or plainly unjust" such as to demonstrate that the sentencing discretion must have miscarried even though no specific error can be identified: House v The King (1936) 55 CLR 499 at 505." [3]

[16] In other words, a mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review.[4] In the recent Court of Appeal decision of R v Callow[5] Morrison J reinforced what Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen[6]:

"Furthermore, there is no one single correct sentence. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the relevant statutory regime."

[17] Section 223 of the Justices Act 1886 (Qld) permits the Court to give leave to adduce fresh, additional, or substituted evidence on this appeal if the Court is satisfied that there are special grounds for giving such leave.

[18] The relevant principles and test for adducing fresh evidence were discussed in R v WBF[7] where Philippides J said at [106]-[107]:

"The relevant principles concerning further evidence are as set out in R v Spina. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. On the other hand, new or further evidence is evidence on which a party seeks to rely in an appeal which was available at trial or could with reasonable diligence have then been discovered.

The test for determining whether to allow an appeal against conviction based on fresh evidence is whether it is established that there is a significant possibility (or that it is likely) that, in light of all the admissible evidence, both the fresh evidence and the evidence at trial, a jury acting reasonably would have acquitted." [citations omitted]

[19] The abovementioned principle applies equally to appeals against sentences. There is a discretion to admit fresh evidence:

"If its admission shows that some other sentence, whether more or less severe, is warranted in law; in this case, that the sentence in fact imposed was unwarranted in the sense that it was manifestly excessive."[8]

[20] The Penalties and Sentences Act 1992 (Qld) ('the Act') creates the regulatory framework which is relevant to this appeal. The purposes of the Act are set out in s 3. Pursuant to s 3(3), they include providing for a sufficient range of sentences for the appropriate punishment and rehabilitation of offenders, and in appropriate circumstances, ensuring that protection of the community is a paramount consideration. Part 2 of the Act sets out the relevant governing principles for sentencing. Section 9(2)(a) of the Act refers to the various factors that a court must have regard to.

[21] The imposition of a fine enlivens the broad discretion provided by s 12 of the Act as to whether or not to record a conviction.[9] It is necessary to consider all the circumstances. These include the nature of the offence, the offender's character and age and the impact that the recording of a conviction would have on the offender's economic or social well-being or chances of finding employment.[10]

[22] In R v Sanders[11], the Court of Appeal confirmed what Macrossan J said in R v Brown; ex parte Attorney-General[12], as to the correct approach to the exercise of the discretion conferred by s 12 of the Act as follows:

"Where the recording of a conviction is not compelled by the sentencing legislation, all relevant circumstances must be taken into account by the sentencing court. The opening words of s 12(2) of the Act say so and then there follow certain specified matters which are not exhaustive of all relevant circumstances. In my opinion nothing justifies granting a general predominance to one of those specified features rather than to another. They must be kept in balance and none of them overlooked, although in a particular case one, rather than another, may have claim to greater weight."

[23] In R v Cay, Gersch and Schell; ex parte Attorney General (Qld)[13] the Court referred to the broader, non-specific impact of the recording of a conviction.

[24] In R v Kleimeyer[14], Sofronoff P said

"It is true that the recording of the conviction is apt to impinge upon the applicant's career, but that is the nature of convictions. They do impinge upon people's lives, and indeed, convictions are recorded in order to mark the very fact that a person has committed a very serious offence."

[25] The sentencing remarks reveal that the learned magistrate took into account the following matters:

(ii) the three days Mr Magill spent in custody between 16 and 18 July 2019 following his fifth breach of bail on 6 July 2019 and the fact that he had been subject to more stringent bail conditions since then;

(iii) Mr Magill's criminal history limited to one prior breach of bail;

(iv) the persons Mr Magill had contact with were people clearly stated in his bail undertakings;

(v) there is no suggestion that Mr Magill attempted to have conversations with his co-accused or the prosecution witness about the substantive proceedings;

(vi) the most serious offences are the breaches of bail on 28 June and 6 July 2019 after the Chief Magistrate had delivered his decision on 3 June 2019 regarding the previous breach of bail;

(vii) the Chief Magistrate in the abovementioned decision had observed that it was not reasonable for Mr Magill to be mistaken about his bail conditions given that he is an experienced criminal lawyer;

(viii) the breaches of bail, particularly those committed on 28 June and 6 July 2019 demonstrated a flagrant disregard for the authority of the Court and law;

(ix) the recording of convictions may or may not have some bearing on Mr Magill's ability to continue practising as a lawyer and there was no evidence of any such effect.

[26] Mr Magill seeks to challenge only the recording of convictions for the breaches of bail committed on 28 June and 6 July 2019. The grounds of appeal are two-fold. The first ground is that the learned magistrate erred in concluding that there was no evidence as to the effect of the recording of a conviction on Mr Magill's ability to continue to practice law.

[27] In my view there was no such error on the part of the learned magistrate. The lawyer representing Mr Magill submitted that he is the sole financial provider for the family and that he has a significant criminal law practice. It was further submitted that while there was nothing from the Queensland Law Society ('the QLS') to indicate that recorded convictions would prevent Mr Magill from holding a practising certificate, it would certainly cause him to come under the scrutiny of the QLS. In her sentencing remarks the learned magistrate found that the recording of convictions may or may not have some bearing on his ability to practice but that she had no evidence to that effect. Therefore, to the extent that this issue was raised, it was taken into account by the learned magistrate and her finding was reflective of the submissions made.

[28] In the absence of this alleged specific error, the Court would be warranted to adjust the sentence only if it is 'manifestly excessive'. This is the second ground of Mr Magill's appeal. I am unpersuaded that the recording of the convictions can be characterised in this way. The reasons for this are detailed below.

[29] The remarks of the learned magistrate indicate that she had proper regard to the matters required to be considered by s 12 of the Act.

[30] Breaches of bail are offences that are viewed seriously by the courts and the community. Mr Magill was being sentenced for five such breaches. Specifically, the two for which the convictions were recorded, were committed a short time after a finding of guilt in relation to the prior conviction for breaching his bail. The prosecution witness Mr Magill had contact with was the same person on both occasions and was clearly identified in his bail undertakings as a person he was prohibited from having contact with. He was the same person Mr Magill had contact with in relation to his third breach of bail. On that earlier occasion, Mr Magill had been reminded by his co-defendant who was also present, that he was in breach of his bail conditions.

[31] While Mr Magill's employment as an experienced solicitor in criminal law is not an overwhelming aggravating factor, it cannot be ignored in the sentencing process. As a solicitor, he is professionally obliged to uphold the laws, not break them. The community had the right to expect he would do so. There is no evidence to suggest that Mr Magill did not understand the importance of his the duty to uphold the law, or of the unlawfulness of not complying with his bail conditions. To the contrary, he knew very well that he was breaking the law. Therefore, the significance of Mr Magill's profession as a solicitor lies in his demonstrated disregard for the authority of the Court.

[32] The learned magistrate was entitled to regard the prior conviction as being relevant to the determination of the sentence, including whether or not to record a conviction. Section 9(10) of the Act specifies when a Court must treat a previous conviction as an aggravating factor. The circumstances of this prior conviction are detailed above. Its relevance stems from the fact that the convictions that are the subject of the appeal, are also for a breach of bail. It further involved Mr Magill having contact with a person he was prohibited from having contact with on account of the conditions in his bail undertakings.

[33] This common feature in the previous offence and the subject offences entitled the learned magistrate to harbour some concern that there would be a risk that Mr Magill might reoffend and for issues of personal deterrence to come into play. It was submitted on behalf of Mr Magill that the three days he spent in custody in July last year, in combination with his more stringent bail conditions imposed subsequent to the fifth breach of bail, provided a powerful incentive to him to not commit further breaches of his bail undertakings. This may be a relevant consideration, although a relatively weak factor in the present context. It does not provide a positive ground for not recording convictions. An arguably stronger factor is the need to deter others from this kind of offending. As the courts have recognised, one of the paramount factors in sentencing is the need for general deterrence.

[34] Mr Magill's character is affected by his offences and their concerning nature. Not only does his profession as a lawyer and his prior conviction not assist him, neither does his age. He offended as a mature man.

[35] It was necessary for the learned magistrate to consider factors which militated against the recording of the convictions. In my view, she did this. These factors included Mr Magill's pleas of guilty and the fact that his criminal history was limited to the one entry. Further, there is no suggestion that Mr Magill attempted to have conversations with his co-accused or the prosecution witness about the substantive proceedings.

[36] Pursuant to s 12(2)(c) of the Act, the learned magistrate considered the impact of the recording of convictions on Mr Magill's economic well-being. The submission at its highest, was that it was not known whether financial detriment would automatically follow on the recording of a conviction. As explained above, this was clearly taken into account by the learned magistrate.

[37] In my view, the recording of convictions for the fourth and fifth breaches of bail was not outside the broad sentencing discretion. The potential impact on Mr Magill's profession as a solicitor does not overcome the weight of the factors favouring the recording of convictions. These factors include the nature and the circumstances of the offending, together with the prior conviction and Mr Magill's mature age.

[38] An oral application for leave to adduce new evidence was made on behalf of Mr Magill. This evidence comprised an affidavit under his hand and annexures dated 30 January 2020. The Court received the evidence initially at least, for the purpose of determining the application.

[39] The affidavit material relevantly reveals the following:

(i) on 2 September 2019, Mr Magill was issued with a 'show cause notice' from the QLS ('the QLS show cause letter');

(ii) on 18 November 2019, Mr Magill's then lawyers forwarded to the QLS a response to its show cause letter and supporting documentation on his behalf;

(iii) on 29 November 2019, the QLS issued Mr Magill with a notification of cancellation of his practising certificate;

(iv) on 4 December 2019, Mr Magill filed in the Queensland Civil and Administrative Tribunal an application to stay the cancellation of his practising certificate, which has been refused;

(v) Mr Magill has applied for this decision to be reviewed and it will be heard on 10 March 2020.

[40] There is no dispute that this material is fresh evidence. It came into existence subsequent to the sentence on 1 August 2019. However, in my view it does not add anything of substance to the material that was put before the learned magistrate. It could not show that the recording of convictions was manifestly excessive and it could not demonstrate that Mr Magill has suffered a miscarriage of justice.

[41] The QLS show cause letter does not advance Mr Magill's contention. The position remains the same as was submitted on his behalf at the sentence hearing, namely that it is not clear whether the recording of convictions would prevent Mr Magill from holding a practising certificate. The reason for this is because it is not at all clear from that letter that the recording of convictions was a decisive, significant or even a relevant factor in the decision of the QLS to cancel Mr Magill's practising certificate. The test they outline and the process by which the QLS have determined that he is not a suitable person, very much focussed on the fact of the multiple breaches of bail and that he failed to give the QLS notification of them in accordance with his statutory obligations pursuant to s 57 of the Legal Profession Act 2007 (Qld). Therefore, the contents of this letter tend to suggest that the hurdles Mr Magill will face continuing to practice as a solicitor will exist irrespective of whether or not convictions are recorded. Further, the uncertainty is additionally exacerbated in circumstances such as these where the QLS' decision is currently the subject of a review.

[42] For these reasons, I am not persuaded that there are special grounds for giving leave to adduce the fresh evidence.

(ii) Mr Magill's application for leave to adduce new evidence is refused.

[1] Justices Act 1886 (Qld) s 223.

[2] McDonald v Queensland Police Service [2017] QCA 255 at [47].

[3] R v Castle; Ex parte Attorney-General (Qld) [2014] QCA 276 at [20].

[4] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 176-178; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at [517]-[519].

[5] [2017] QCA 304 at [36].

[6] [2005] HCA 25; (2005) 228 CLR 357 at 371 [27].

[7] [2017] QCA 142.

[8] R v Maniadis [1996] QCA 242; [1997] 1 Qd R 593.

[9] Penalties and Sentences Act 1992 (Qld) ('the Act') s 44.

[10] R v Castle; Ex parte Attorney-General (Qld) [2014] QCA 276 at [20].

[11] [2007] QCA 165 at [12].

[12] [1993] QCA 271; [1994] 2 Qd R 182 at 185.

[13] [2005] QCA 467 at [43]-[45].

[14] [2018] QCA 9.