NBY v Queensland Police Service [2025] QDC 75

• [4] The appellant appeals pursuant to section 222 of the Justices Act 1886 (Qld). The nature of such an appeal, when the appeal is against sentence from a plea of guilty in the Magistrates Court, was recently considered in Chakka v Queensland Police Service [2024] QCA 213. Brown J stated as follows:

"[87] In my view, the correct construction of section 222(2)(c), having regard to the language used and the context of the provision is that "sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate" permits appellate intervention where an error in the exercise of the discretion of the kind recognised by the House v The King is established, and the error has resulted in a sentence which is excessive. Similarly, if a sentence is said to be inadequate, it must be established that the error has resulted in a sentence being inadequate.

[88] The above construction that requires an appellant to demonstrate not only that the sentencing discretion has miscarried due to error, but also that the resulting sentence is excessive or inadequate:

(a) is consistent with the language used in section 222(2)(c), and gives effect to "may only", "sole ground" and "excessive and inadequate";

(b) construes the provision in the context of the Justices Act as a whole, particularly the appeal provisions in Division 1 of the Justices Act, which provides that the nature of the appeal is by way of rehearing in section 223(1);

(c) adopts the interpretation which produces "the fairer and more convenient operation" in adopting a construction which provides for appellate intervention on the basis of any of the errors of discretion identified in the decision of House v The King provided the resultant sentence is excessive or inadequate;

(d) is consistent with a rational legislative intention reflected by the language used to limit appeals from the lower court to the District Court and is the interpretation which best achieves the purpose of the Act; and

(e) may give rise to a potential injustice insofar as an offender is entitled to be sentenced according to law and may result in an error going uncorrected if the sentence is not excessive or inadequate, however such a construction accords with the inferred legislative intent.

[89] Such a construction does not require the appellate judge to undergo an artificial exercise of determining the degree to which the sentence could be said to be excessive, but rather for the judge to be satisfied absent the error, the appellate judge would in all the circumstances have sentenced the defendant to a lesser sentence. Once the appellate judge is satisfied that without the error identified, a lesser sentence should have been imposed in all the circumstances that were before the lower court, the sentence should be set aside and the sentencing discretion re-exercised. That would similarly apply where the sentence is said to be inadequate.

[90] Obviously, if the ground of error raised is that a sentence is "manifestly excessive" or "manifestly inadequate", that two-stage process will not be required given the nature of the error raised. Otherwise, the two different types of error in the exercise of discretion would be conflated. The difference in approach adopted in determining whether there is specific error in the course of the sentencing decision, as opposed to considering by reference to the outcome of the sentencing discretion whether it is manifestly excessive or manifestly inadequate, was discussed by Hayne J in AB v The Queen.

[91] Thus, while specific error alone is not sufficient to establish a ground of appeal under section 222(2)(c), it will be sufficient if it is shown to have caused a sentence to be excessive or inadequate. To the extent that the applicant sought to contend that specific errors had occurred which resulted in the sentence being excessive, it would not have been outside the jurisdiction of the District Court on appeal had it been raised below." (footnotes omitted)

• [5] The appellant pleaded guilty to the following charge contrary to section 124A(2) of the Corrective Services Act 2006 (Qld) ('Act'): "That between the 22nd of May 2023 and the 14th of July 2023, [NBY] being a staff member had an intimate relationship with [name of prisoner] who was an offender". The offence carries a maximum penalty of 100 penalty units or three years' imprisonment. "Intimate relationship" is defined in the Act as: (a) sexual conduct or other physical expressions of affection or sexual conduct; (b) the exchange of written or other forms of communication of a sexual or intimate nature.
• [6] The following facts are taken from the prosecutor's submissions to the learned Magistrate below. As I will turn to, some factual circumstances detailed by the prosecutor did not fall within the offending period, which was limited to approximately two months commencing on 22 May 2023.
• [7] The appellant was working as a custodial correctional officer at [name of correctional centre]. Reports were received that a relationship had commenced between the appellant and the prisoner on or about 16 June 2022. Rumours had been circulating that the appellant and the prisoner were flirting with each other, and the appellant had been spending too much time attending to her needs. The appellant was spoken to by Queensland Corrective Services regarding the rumours. He said there was no truth to them.
• [8] On 28 September 2022, there was a record of the prisoner having a panic attack whilst attending church. The appellant allegedly closed the door to the chapel and spent time with the prisoner alone. Once the prisoner returned to her cell, rumours began to circulate that the prisoner had told them that she had engaged in "sex" with the appellant "during this time".
• [9] On 31 May 2023, during the offence period, Queensland Corrective Services received further information that the appellant was having inappropriate contact with the prisoner. The appellant was spoken to again (the facts are silent as to what, if anything, the appellant said).
• [10] On 3 July 2023, again during the offence period, Queensland Corrective Services received information that the prisoner (the transcript reads defendant, but this must be an error) was in possession of numerous notes and letters written by the appellant.
• [11] On 6 July 2023, the prisoner's cell was searched. Several letters and notes were discovered, indicating a relationship had formed between the appellant and prisoner. The prisoner indicated that the relationship would continue once she was released from custody. The dates of the letters were daily, between 13 June and 22 June. The appellant identified himself by name in the letters. A review of further letters, which appear to have been written by both the appellant and the prisoner, "show there's a clear indication of the relationship forming, whereby the letters profess love for each other."
• [12] On 26 April 2024, the prisoner, who had by then been released from custody, was spoken to by police. She did not wish to provide a formal statement to police, although stated that the relationship began from the moment that she was incarcerated. She stated that, "there was a bit of touching here and there, or flirty remarks here and there". She also indicated that everyone knew what was going on, but no-one had approved. She denied that they had ever had sex in the chapel, but they did kiss on four separate occasions. She says she "felt bad" as she was also to blame, and she was part of something that could possibly ruin the appellant's career. She also stated that she was at fault for her part and should not have done what she did also.
• [13] The appellant took part in an electronically recorded interview with police on 21 May 2024. He stated that he had been employed with Queensland Corrective Services since 2014. He admitted that the relationship had commenced shortly after the prisoner arrived at the facility in April 2022. I again reiterate that the charged period was from 22 May 2023 to 13 July 2023.
• [14] He stated that he had written notes and letters over this period. He denied that he and the prisoner had sex in the chapel; they had only ever kissed on about four to five occasions. He stated that they would flirt with each other. He admitted the notes and letters were written by him and acknowledged that the prisoner had written him letters. He advised police he had been spoken to several times during the period from April 2022 to July 2023, about the allegations. Police described the appellant as remorseful and apologetic during the interview.

The submissions of the parties below regarding the appropriate sentence

• [15] The prosecution made no submissions as to the appropriate sentence and did not rely on any comparable decisions.

• [16] The appellant relied on two references: one from his wife; the other from his mother-in-law. In relation to the reference from his wife, it stated that the offence was out of character, and that leading up to the offence, she had observed a drastic decline to the appellant's mental and emotional wellbeing. He had expressed that he was not coping with the pressures and volatile nature of the work. At the time, there were also life stressors, including a hostile environment at home due to the appellant's parents moving in. She stated that the appellant is remorseful.
• [17] The appellant's wife stated that the appellant resigned from Queensland Corrective Services in July 2023, losing all he had built up for himself in that position, and, since then, there has been financial hardship. He lost all contact with his peers and colleagues, which had a significant impact on his social wellbeing. The appellant now works as a security guard earning less than before. He will have difficulties gaining further employment.
• [18] The appellant's wife stated that there were also marriage difficulties because of the offending, and they have attended marriage counselling. She said that the appellant is "a loving and devoted husband and father." The appellant, she says, has taken steps to improve his mental health and wellbeing and sets out what those were.
• [19] In relation to the mother-in-law's reference, she described the offending as a "momentary lapse of judgment ... during a difficult time he was going through emotionally and mentally." She further described the offending as out of character. The mother-in-law's reference otherwise is in similar terms to that of the appellant's wife.
• [20] The appellant's legal representative submitted that the appellant, then aged 33 years, had been married for 10 years and that one of the references was from his wife. He has one young child and currently works as a security guard. The name of the company he worked for, for the previous three months was provided. He attended marriage counselling for four or five sessions, and a letter was tendered in support of that. No comparable decisions were referred to.
• [21] It was submitted that the appellant exhibited "extremely poor judgment ... and it has had significant ramifications for his career quite clearly." His plea of guilty, it was submitted, indicates his remorse, and that was also noted in the references and by police in his electronically recorded interview. It was, she submitted, an early plea of guilty. It was submitted on behalf of the appellant that a fine would be suitable in the circumstances. There were no submissions made as to the quantum of the fine or capacity to pay. The remainder of the submissions focused on whether a conviction should be recorded.

Sentencing remarks and statements made by the Magistrate during submissions

• [22] The learned Magistrate stated during submissions: "Well, I don't think you can characterise something that went for, what, over a year as being a momentary lapse of judgment."[1] All that was said in response by the legal practitioner, who also appears as the solicitor for the appellant on the appeal, was "Thank you, your Honour."
• [23] The learned Magistrate later stated, "I'm not going to record a conviction, but I don't think a fine is a sufficient response to a prison guard having a relationship over a long period with a prisoner".[2] Nothing was said in response by the legal practitioner.
• [24] The learned Magistrate stated in his remarks:

(a) "a lapse of judgment is putting it mildly [name of appellant]. A gross course of stupidity is probably far more accurate";

(b) "not a momentary lapse of judgement: as a prison guard, you must clearly understand the ramifications for order and discipline in a jail. If guards start having sexual or other intimate relationships with prisoners ... favours being done for prisoners, guards who are being potentially extorted or stood over because of their misdeeds will be revealed if they don't do what they're asked to do by other prisoners ...";

(c) "first time seen a charge of this nature; not surprising hasn't been referred to comparable decisions";

(d) "otherwise complete lack of history, plea of guilty, remorse, consequence of being dismissed from the Corrective Services Department on the one hand, and on the other, the competing public interest in ensuring that prison guards who embark on this sort of thing are dealt with appropriately";

(e) "deterrent penalty must be imposed so that others do not do the same thing, which is why I don't think a fine is a sufficient sentencing response";

(f) "the message has to be sent to those who do work in a prison that there will be some form of punishment attached to this sort of behaviour that extends beyond the industrial outcome of losing your job, which is why I think a community service order is appropriate. You don't need probation. I'm not going to impose imprisonment obviously because that involves the recording of a conviction for starters, but a fine is not a sufficient response."

• [25] It is submitted that factual error has been established and the appellant should be re-sentenced to a modest fine with no conviction recorded. The appellant submits that there was a factual error, which led to the appellant being sentenced on the basis that the relationship lasted for over a year whereas the charged period was 54 days between 22 May 2023 and 14 July 2023. The appellant took the court to the passages in the transcript, which I have already highlighted above.
• [26] It is submitted that the strong language used by the learned Magistrate of "absolutely nothing like" a momentary lapse in judgment, when read in combination with the hearing transcript, demonstrates that the learned Magistrate sentenced the appellant on the basis that the intimate relationship lasted for at minimum 10 months longer than the period particularised in the charge. It is submitted that this was a material factual error as the duration of the relationship is an important factor in assessing the seriousness of the offending. I was taken to statements of principle in that regard.
• [27] There is no longer any need to summarise the remainder of the written submissions in relation to what was termed "inadequate remarks" and "excessive weight to general deterrence" in circumstances where the ground of appeal has been amended today by leave.
• [28] The appellant submits that if the appeal is allowed and the court re-sentences the appellant, the following features are relevant:

(a) the offending was a low-level example of offending of this nature;

(b) the appellant co-operated with the administration of justice by making admissions that have substantial value as the prisoner told police that she would not provide a formal statement;

(c) the appellant was and is remorseful;

(d) an early plea was entered;

(e) the appellant has no prior convictions;

(f) the appellant has experienced extra-curial punishment in the sense that the offending led to the termination of his employment with Queensland Corrective Services; and the very real punishment that he will be precluded from obtaining a security licence and obtaining employment and occupations which require that licence;

(g) offending of this nature is not prevalent, which moderates the need for general deterrence;

(h) general deterrence and denunciation are not primary sentencing considerations;

(i) the need for specific deterrence is ameliorated as the appellant is no longer working in the same environment which led to the offending; and

(j) the appellant has now completed a portion of community service.

• [29] In oral submissions today, the court was told that the appellant has completed 56.5 hours of the community service, leaving 63.5 hours remaining.
• [30] The appellant's counsel submitted that the specific error is sufficient to establish the ground of appeal, as it has caused a sentence to be excessive. Ultimately, it was submitted that a fine of $1,000 should be imposed, having regard to the fact that 56.5 hours of community service has been completed, and the appellant should be given three months to pay the fine.

• [31] The respondent submits that the appeal should be dismissed. It is accepted by the respondent that it is unclear "exactly what acts the learned Magistrate did sentence upon". It is noted though that no objection was taken to the factual basis at the time of sentencing by the appellant's solicitor, and there is no material to suggest that the learned Magistrate acted on any factual basis, apart from that to which the appellant entered the plea of guilty.
• [32] In the alternative, the respondent submits: "if it is found that the learned Magistrate sentenced erroneously on the basis that the charged period was over one year, in circumstances where it was, in fact, one month and 23 days, that is not an error which would result in the appeal being allowed ... the successful demonstration of an error does not itself give rise to the success of the appeal. It must be shown that any error affected the decision being handed down, and that the decision was manifestly excessive beyond the permissible range."
• [33] Today, the prosecutor accepted that the appropriate way to approach an appeal of this nature is per Brown JA's judgment in Chakka v Queensland Police Service [2024] QCA 213.
• [34] The respondent submits that neither party below provided the learned Magistrate with comparable cases, and community service was the appropriate penalty for the offence. It was committed in the context of the appellant's employment in a government role funded by taxpayers. The appellant brought into dispute the integrity of a vital department of the Queensland Government and has impacted the community's trust in the department. Community service provides the appellant with an opportunity to give back to the community following the detrimental impact of his offending.

• [35] The charge nominated the period of the offending as between 22 May 2023 and 14 July 2023. Despite this, the prosecutor outlined factual circumstances outside of this period, which would have led the learned Magistrate to believe that they were charged acts. There was no reference otherwise during the recitation of the facts to the charged period or the basis upon which the factual circumstances outside of the charged period were relevant.
• [36] Whilst prior factual circumstances are often led to set out the background to the charged offence, in this case, as the respondent accepts, it is unclear exactly which acts the learned magistrate did sentence upon. The prosecutor did not detail what the factual basis of the sentence was, and the court was informed of factual circumstances outside of the charged period with no submissions made as to relevance of those circumstances.
• [37] To my mind, the learned Magistrate was led into error by both parties. The appellant's counsel contends on appeal that the learned Magistrate made a factual error regarding the length of the relationship. Ultimately, that must be accepted. However, the appellant's legal practitioner below did nothing to assist the learned Magistrate as to the factual basis for the sentence. In fact, the legal practitioner did not refer to the facts at all below, despite the submissions of the prosecutor raising circumstances outside the charged period.
• [38] When the learned Magistrate stated, "Well, I don't think you can characterise something that went for, what, over a year as being a momentary lapse of judgment," the only response of the legal practitioner was, "Thank you, your Honour." Similarly, when the learned Magistrate stated, "I don't think a fine's a sufficient response to a prison guard having a relationship over a long period with a prisoner," the legal practitioner said nothing on that point in response.
• [39] I have considered that the statements I have referred to by the learned Magistrate were during the course of submissions and not during the sentencing remarks, however, in my view, it seems clear that the Magistrate continued to be of the same erroneous view that the relationship was over a "long period", given his statements in the sentencing remarks that it was not a momentary lapse of judgment, rather, it was a "gross course of stupidity."
• [40] I am of the view that the learned Magistrate erred as to the facts relating to the length of the intimate relationship between the appellant and prisoner. I am satisfied, absent the error, a lesser sentence should have been imposed in all the circumstances that were before the lower court, although I note that is not without some hesitation.
• [41] My reason for the hesitation, which I raised with counsel for the appellant today, is due to the appellant being spoken to by superiors about his conduct both prior to and during the charged offending period. He was, therefore, put on notice in relation to his conduct, and he went on to offend.
• [42] However, I am ultimately satisfied that a lesser sentence should have been imposed, absent the error, and as such, I set aside the sentence and re-exercise the sentencing discretion. The offending period was a confined one, from the 22nd of May to the 14th of July 2023. There was an early plea. The appellant made admissions, and it has resulted in his loss of employment, and possible loss of current and future employment in the security industry (he is now in a show cause position).
• [43] The nature of the relationship is relevant, and there is no suggestion, in this case, that the prisoner was taken advantage of (other than the position of power, which would always be the case in offending of this nature). The prisoner has indicated that she considered herself to blame. The contact involved kissing on four or five occasions, and the sending of a number of communications.
• [44] I am ultimately satisfied that the offending was a low-level example of offending of this nature. The appellant was, and is, remorseful, and has no prior convictions. The appellant was operating under stressors at the time of the offence, and it was described as out of character by his referees. The appellant has now completed a significant portion, almost half, of the community service hours; that being 56.5 hours.
• [45] In those circumstances, I am satisfied that the appropriate sentence to impose in re-sentencing is a fine of $1000.00 with three months to pay. I note though, lest this be thought to be a yardstick decision in other cases, that it is highly relevant that the appellant has already completed 56.5 hours of the community service.

• [46] I have awarded costs to the appellant. That was opposed by the respondent. It was submitted by the respondent that no assistance was provided by the legal representative at the relevant time and I should exercise my discretion to not award costs. The appellant submits that costs should be awarded to the scale amount.
• [47] I am ultimately persuaded that the respondent should pay the appellant's costs of the appeal according to the scale in schedule 2 of the Justices Regulation 2014 (Qld). Whilst it is true that the learned Magistrate was not given any assistance from the appellant's legal representative, he importantly was also not given any assistance by the prosecution. It was the prosecution that set out the facts but made no submissions as to how it was relevant, given the confined charged period.
• [48] The prosecution did nothing to correct the learned Magistrate when it should have been apparent from the exchange with the appellant's legal representative that the Magistrate was acting under an error as to the length of the offending period. The prosecution also gave no assistance in relation to the appropriate sentence.

• [49] My orders are as follows:
  1. The appeal is allowed.
  2. The community service order imposed in the Richland Magistrates Court on 9 August 2024 is vacated.
  3. The appellant is fined the sum of $1,000. The fine is to be paid within three months. If not paid by that date, I direct the Registrar refer the non-payment to the State Penalties and Enforcement Registry.
  4. The order made where a conviction was not recorded is not disturbed.
  5. The respondent is to pay the appellant's costs of the appeal according to the scale in schedule 2 of the Justices Regulation 2014 (Qld).