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[2008] QCA 308
Court of Appeal (Qld)
2008-10-03
Mackenzie AJA, Cullinane and Jones JJ, Separate, reasons for judgment of each member of the Court, each concurring as to the
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Hooper; ex parte Cth DPP [2008] QCA 308
PARTIES: R v HOOPER, Daryl John (respondent) EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (appellant)
FILE NO/S: CA No 194 of 2008 / DC No 263 of 2008
DIVISION: Court of Appeal
PROCEEDING: Sentence Appeal by Cth DPP
ORIGINATING COURT: District Court at Brisbane
DELIVERED ON: 3 October 2008
DELIVERED AT: Brisbane
HEARING DATE: 19 September 2008
JUDGES: Mackenzie AJA, Cullinane and Jones JJ / Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER: Appeal dismissed
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – where the respondent was convicted on his plea of guilty of one count of using a carriage service to menace – where the learned sentencing judge discharged the respondent without proceeding to conviction upon his giving security by recognisance of $500 on condition that he be of good behaviour for two years and have no contact with named persons – whether the learned sentencing judge erred in her application of s 19B of the Crimes Act 1914 (Cth) – whether the sentence was manifestly inadequate / Crimes Act 1914 (Cth), s 16A, s 19B, s 20(1)(a) / Criminal Code Act 1995 (Cth), s 474.17(1) / Cobiac v Liddy (1969) 119 CLR 257; [1969] HCA 26, cited / Commissioner of Taxation v Baffsky (2001) 192 ALR 92; [2001] NSWCCA 332, applied / House v The King (1936) 55 CLR 499; [1936] HCA 40, applied / Jones v Morley (1981) 29 SASR 57, cited / Matta v Australian Competition and Consumer Commission [2000] FCA 729, considered / Moreland v Snowdon [2007] WASC 137, cited / R v Melano; ex parte Attorney-General [1995] 2 Qd R 186; [1994] QCA 523, cited / Riddle v Riddle (1952) 85 CLR 202; [1952] HCA 12, applied
COUNSEL: P J Callaghan SC, with J N Hanna, for the appellant / R East for the respondent
SOLICITORS: Commonwealth Director of Public Prosecutions for the appellant / Legal Aid Queensland for the respondent
MACKENZIE AJA: This is an appeal against a sentence imposed for an offence against s 474.17(1) of the Criminal Code Act 1995 (Cth) of using a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, to which the respondent pleaded guilty. The maximum sentence for the offence is three years imprisonment. The sentencing judge discharged the respondent under s 19B of the Crimes Act 1914 (Cth) (“the Act”) without proceeding to conviction upon his giving security by recognisance of $500, on condition that he be of good behaviour for two years and that he have no contact directly or indirectly with named persons during the period of the order.
The grounds of appeal are that the sentencing judge erred in the application of s 19B and that the sentence is manifestly inadequate. The appellant seeks substitution of a similar recognizance under s 20(1)(a); the only practical consequence for the respondent would be that he would have a conviction recorded against him instead of being discharged on recognizance without conviction. The appellant submits that an important issue concerning the proper application of the relevant provisions of the Crimes Act is involved. The distinction between the criteria for not entering a conviction in s 12 of the Penalties and Sentences Act 1992 (Qld) (“PSA”) and the more constraining ones in s 19 of the Crimes Act was referred to.
The respondent was 33 years old at the time of the offence. The complainant was the fiancée of the daughter of a woman with whom the respondent had been living. All four of them lived in the same premises. According to the unchallenged information placed before the sentencing judge by the respondent’s solicitor, the respondent had been drinking on the afternoon when the conduct complained of occurred. The offence was the culmination of seven months of frustration on the respondent’s part about the complainant’s behaviour. It was said he had become irritated with him over a variety of issues, such as his failure to maintain employment or to contribute to household tasks and expenses, including rent, electricity and personal phone calls. On the day of the conduct complained of, the respondent’s mobile phone charger had been borrowed by the complainant without asking the respondent who found it in the complainant’s room. It was said that the respondent had previously asked the complainant to respect his property and to ask if he wanted to borrow something.
Being able to telephone or text others in the expectation that the message you wish to convey will become known to them almost instantaneously is, no doubt, mostly very convenient. But the irretrievable text message, written in anger and sent with a hasty press of the send command, can have a distinct downside, as this case shows. Seeing text or e-mail messages in evidence in a variety of matters, as judges do, tends to confirm that the temptation, when angry, to say impersonally by text what might not be said in a person to person conversation is easy to succumb to. Since there is an accurate record of the contents of the message, the words alleged to contravene s 474.17(1) are easily provable. Therefore, writing in haste and regretting at leisure seems to be a by-product of the technology, unlike the situation, in times gone by, where communications were conducted in a more leisurely and deliberate way and there was necessarily time, before posting a letter, to reflect and tear it up once commonsense had reasserted control.
“Thanks for fucken telling me you borrowed my shit. If you keep taking shit and not letting me know, I’m going break your fingers.”
The complainant terminated that call without replying. At 4.44 pm, he sent a text message from his mobile phone to the respondent’s. The message said:
“Hey look I’m sorry I was sidetracked and in a rush and didn’t think you would have mind I was going to ring you and let u know.”
“How does get fucked sound and both of you have till mick moves in a Saturday 2 get a fucken job and think b4 you do things b4 I flog the living shit out of both of yas k! P.S. bring greg round 2 and instead of a scar 4 what he did 2 my woman I will cut his fucken head off this time k! Don't fuck with me from 2day on b careful what you do and say or I'll teach u guys a fucken lesson in life u will regret k!!!”
The reference to “greg” is a reference to the father of the complainant’s fiancée.
“Yeah, so what. What you can’t threaten someone?”
When he was informed that he had committed an offence he said:
“What? I threatened Michael? Can’t you even do that? It’s not like I actually hurt him.”
He also said:
“I was pissed off about him using my stuff without asking.”
The following day the complainant and his fiancée moved out of the house. At sentence it was common ground that he and the respondent had not had contact with each other since that date and there had not been contact with the other two people referred to in the text message.
The point of departure between the prosecution and the defence at sentence was whether the respondent had made out circumstances entitling him to a discharge without proceeding to conviction under s 19B(1) of the Crimes Act 1914 (Cth). The prosecutor at sentence submitted that an order under s 19B(1) would not be appropriate but conceded that a recognisance under s 20(1)(a) was within range. The appellant’s counsel did not press for more than that outcome on appeal.
Section 19B(1) relevantly permits a court to discharge the offender without proceeding to conviction upon security being given by recognisance or otherwise to the satisfaction of the court, conditioned on the offender being of good behaviour for a period specified in the order, not exceeding three years, and that during a specified period not exceeding two years the offender will comply with other conditions, if any, specified in the order. The prerequisites to making such an order are that the court is satisfied that the charge is proved but is of opinion, having regard to:
(i) The character, antecedents, age, health, or mental condition of the person;
(ii) The extent (if any) to which the offence is of a trivial nature; or
(iii) The extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or any punishment other than a nominal punishment.
Section 20(1) provides, inter alia, that when a person is convicted of a federal offence, the court may, if it thinks fit, by order, release the person without passing sentence, upon the offender giving security by recognisance or otherwise to the satisfaction of the court that the offender will comply with the conditions to be of good behaviour for a specified period not exceeding five years and that he or she will, during a specified period not exceeding two years, comply with other conditions (if any) as the court thinks fit to specify in the order.
It was submitted at sentence on the respondent’s behalf that extenuating circumstances to which the court should have regard were the factors, summarised earlier, that led to the offending behaviour. It was submitted that the respondent’s criminal history was minor. The record of his criminal history tendered shows that he committed offences of wilful and unlawful damage and aggravated assault on a female on the same day in 1993 and was released on recognisance under s 31 of the Penalties and Sentences Act (Qld). The record is uninformative as to whether a conviction was recorded or not. Then in 1997 he was charged with entering land used in connection with a building in company, for which he was fined without conviction. Then in 2006 he committed a group of associated drug offences (supplying a dangerous drug, and possession of utensils and property used in connection with drug offences). He was fined $1,500 as a single penalty and also placed in a drug diversion program upon recognisance without conviction.
While the plea of guilty was entered only about a fortnight before sentence, it was not contentious that, once an indication of the level of penalty the Crown would seek if there were a plea of guilty was received, the intended plea of guilty was notified. The sentencing judge treated the plea as a timely one.
There was also a letter to the presiding judge, apparently written on the day of sentence, in which the respondent explained that at the time of the offending he was under a lot of stress, drinking a lot of alcohol and was often not thinking straight. He expressed his regrets for his actions and apologised for what he had done. He said that he had changed his life since then and was now a better person. There was also a favourable reference from a former employer.
It was also submitted that there had been no real damage or loss in the case and that his level of co-operation with the justice system had been significant because of potential difficulties in proof in the prosecution case, (although, it must be said, any deficiency of other evidence that the respondent sent the text was not of great consequence given the admissions made to the police). Personal deterrence was accomplished by the fact that he was being dealt with for something he thought was not serious. The fact that he had refrained from contacting the complainant and the other persons since the incident was in his favour.
“But you don't come before the Court as a person, for example, without any history. Even though they're not of a like nature, you come before the Court with history that dates back a long time ago. Admittedly and, indeed, it suggests to me that you're doing well insofar as - since the offences that first were on your history were committed in 1993, suggest that even in the later years of 2006 that, at worst, your offending is getting less insofar as the nature of the offending. You've still got some drug offending happening of which you're getting drug diversion I see and that you've been performing well under any orders.”
One possibility is that she was intending to convey that his offending had been sporadic and minor and that he had performed non-custodial orders satisfactorily. That was an aspect of his character and antecedents, but standing alone, would not have been weighty in favour of the order made. However, if it carried with it an implication that his offending was tempered by its nature and his disposition to accept the consequences of it, it might, in conjunction with other relevant aspects of his character and antecedents, not count greatly against him. She said that, while not discounting his apology, the situation might not have got to the point where the police became involved had he apologised in a timely way and directly to the complainant. But she had the information in that document he had written about his changed lifestyle, the uncontradicted information that he had been a hard working person and the reference from a former employer. While the offence was not committed in extenuating circumstances, it was committed through loss of temper, not in more discreditable or sinister circumstances.
She said that she considered the case a borderline one for making an order under s 19B(1). It is apparent from the reasons that she appreciated that the discretion involved consideration of the three matters referred to in s 19B(1)(b). She said that she did not look in isolation at whether the offence was trivial or committed under extenuating circumstances. She had to look at character, antecedents, age, health, and mental condition as well. She did not expressly refer to the phrase “...that it is inexpedient to inflict any punishment or to inflict any punishment other than a nominal punishment.” This led to a submission by the appellant that she had not applied the proper test in determining the second stage of the process of applying the subsection. Specific reference to the phrase would have been better in the interests of clarity, but it is hardly to be expected that she overlooked it since she had referred in detail to the other parts of the subsection. Further, she did say that she was required to determine, when she weighed up all the factors, whether she came to the conclusion that he could be adequately punished by making an order releasing him on recognisance without further punishment.
The sentencing remarks were delivered ex tempore. Impreciseness of language due to that can have less significance than it might otherwise have.1 The notion to which she referred of whether the offender could be adequately punished by the order ultimately made is not necessarily inconsistent with the notion that it is inexpedient to impose more than nominal punishment on him. The word “inexpedient” can bear a range of meanings depending on the context in which it is used. In Riddle v Riddle (1952) 85 CLR 202 at 214, Dixon J said of the word “expedient”, when used in defining a power in trustee legislation, that it was “a criterion of the widest and most flexible kind”. If “inexpedient” in the bears a meaning like “not advantageous, useful or suitable in the circumstances”, or “not tending to promote a purpose” or “not tending to the end desired”, I am not persuaded that what the sentencing judge said expressed a test inconsistent with that required by s 19B(1)(b).
R
Hooper; ex parte Cth DPP
(1969) 119 CLR 257
(2001) 192 ALR 92
(1936) 55 CLR 499
(1981) 29 SASR 57
(1952) 85 CLR 202
In this case, there were two separate communications, although charged in the one count of the indictment. No point was raised in that regard. The first was a telephone call made at 4.37 pm to the complainant’s mobile telephone. The agreed facts state that the respondent said:
The respondent’s legal representative at sentence finished her submission by saying that although it was not a trivial offence, the circumstances made it a less serious offence and he could be adequately punished, given all the circumstances, by a nominal punishment and discharged on a recognisance under s 19B with a condition that he have no contact with the three people referred to in the message.
The prosecutor adopted the concession that the matter was not trivial, and submitted that the respondent’s character and antecedents were not exceptional and that any provocation was not extenuating to an extent where the court would be persuaded not to record a conviction. It was submitted that a recognisance under s 20(1)(a) was within range.
Commissioner of Taxation v Baffsky (2001) 192 ALR 92 is authority for the proposition that the application of the discretion in s 19B consists of two stages. The first is identification of one or more of the factors identified in s 19B(1)(b) being operative. The second stage is the determination, that having regard to the factors so identified, it is “inexpedient to inflict any punishment”. Also, it establishes that s 16A(2) of the Act identifies the matters that must be taken into account in exercising the second stage of the discretion provided by s 19B. (In this regard, counsel for the respondent submitted that the principle in s 16A(1) was also important).
In the sentencing judge’s reasons, she said, in effect, that had the telephone call been the only contact, it may have been able to be treated as merely an expression of anger with the complainant, made in the heat of the moment. However, the response to the conciliatory text message from the complainant was an over-reaction containing menacing words towards him, his fiancée and her father. It could not be described as trivial and had not been committed in extenuating circumstances. Those comments address the issues in s 19B(1)(b)(ii) and (iii).
She then considered the matters referred to in s 19B(1)(b)(i). She said, with respect to his criminal history, that there was no similar offence and because convictions had not been recorded, he had not been treated as a serial or serious offender by the courts previously. She then said, obscurely, the following:
The other aspect of the appellant’s submissions was that the findings of the sentencing judge that the offence was not trivial or committed under extenuating circumstances left only the matters in s 19B(1)(b)(i), the respondent’s character, antecedents, cultural background, age, health or mental condition, as a foundation for the exercise of the discretion. It was submitted that the matters identified by the sentencing judge as being significant for the purpose of establishing those matters were insufficient to do so.
The sentencing judge took a wide view of what is comprised in the term “antecedents” (which is not inconsistent with Baffsky, Cobiac v Liddy (1969) 119 CLR 257 and Jones v Morley (1981) 29 SASR 57). She said that it was only because of the circumstances individually relating to his case that she was prepared to make such an order. She said that it was not to be taken as an indication that she considered offences of that nature should automatically attract the kind of order she intended to make. She recognised that terms of imprisonment were not infrequently imposed for offences against s 474.17(1) but said that generally they were concerned with a more serious factual context than the present case. She considered that, given the fact that the respondent had not attempted to contact any of the people referred to in the text message since the offence, they could be adequately protected by making a condition that he not contact them. She concluded by saying that she had, in coming to that conclusion taken into account the factors contained in s 19B and s 16A of the Crimes Act.
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).
Counsel for the appellant relied on an observation of French J in Matta v Australian Competition and Consumer Commission [2000] FCA 729 that the exercise of the discretion under s 19B is exceptional. That comment was made in a case involving an appeal by a person convicted of offences under the Trade Practices Act 1975 (Cth) of knowingly supplying sunglasses that did not comply with Australian standards. Similarly, in Moreland v Snowdon [2007] WASC 137 Jenkins J, at [46], accepted that the observation was also apt in a case involving the making of false declarations to Centrelink. The proposition is of obvious application in cases involving fraudulent or deliberately deceptive conduct or other forms of moral turpitude. But in the end, each case has to be looked at in its own setting with close regard to the criteria in s 19B(1). It was not submitted, as it could not be, given the legislative prescription of the power, that there was no scope for its operation to offences under s 474.17.
The focus of the submissions on behalf of the appellant was that because the sentencing judge had found that the offence was not trivial and was not committed under extenuating circumstances, the matters to be taken account of under s 19B(1)(b)(i) did not provide a sufficient basis for the exercise of the discretion. It was conceded that, if the court was satisfied that one of the conditions listed in s 19B(1)(b) had been fulfilled, the court had to consider whether in all the circumstances of the case it was inexpedient to impose any or any other than a nominal punishment. But it was submitted that despite the sentencing judge being satisfied that one of the preconditions under s 19B(1)(b) was fulfilled, there was no proper basis for her to form the conclusion that it was inexpedient to impose any or any other than nominal punishment under the second stage of the test.It was submitted that a proper balancing of all the relevant factors, including the fact that the case was a serious instance of the offence, the impact on the victim and the need for general and specific deterrence, there was no scope for the exercise of the discretion under s 19B.
One of the aspects of the appellant’s submission which requires comment is its characterisation of what occurred as a serious example of the offence. A similar submission was also made to the sentencing judge, who did not refer to it in her sentencing reasons. In my view, while there is no dispute that the words used had the necessary objective character to satisfy the requirements of the section, they fall short of that description.
In his submission before this court, Senior Counsel for the appellant said that one of the targets of the provision was cyber-bullying and that one of the points about it was that when a message was electronically transmitted, it was unlike a voice transmission where the conversation may provide the opportunity to assess whether the person delivering the message was capable of or serious about putting what was said into action. No doubt that is often true. It is easy, for example, to accept that a text message with menacing content may convey, to a recipient knowing the history of dealings between the parties, that what the message foreshadows is a real threat, delivered with calculated malicious intent. In some cases, a message of the necessary character may be more unsettling if delivered in ambiguous terms than one that is explicit. Messages having the necessary criteria, delivered in the course of a campaign of gratuitous harassment against another person, would, more often than not, have a different character from a single message sent from a distance during an outburst of anger over some relatively minor irritant.
Each case must be looked at in its own particular context. In this case, the information known to the sentencing judge5 about the background of the offence did not extend beyond the unchallenged version of the state of the relationship between the complainant and the respondent from the respondent’s point of view. Analysing the text message sent against that background, it had been preceded by a telephone call which clearly expressed annoyance over the borrowing of the charger without asking. The response in the complainant’s message sent at 4.44 pm shows he knew what the cause and nature of the grievance was.
The first sentence of the text complained of starts with what is probably to be interpreted as an emphatic vernacular rejection of the apology offered in the text message sent at 4.44 pm. That is followed by an ultimatum that if both of them, presumably the complainant and his fiancée, did not get a job and think before they did things by a nominated time, he would “flog” them. The background to the second sentence is unexplained, but one possible meaning is that if the fiancée’s father came around, he would suffer more serious consequences than he had on a previous occasion. The final sentence is essentially a further warning to mend their ways or he would give them a lesson in life that they would regret.
Whether it contained a degree of hyperbole as to the likely course of events is of no consequence since the plea of guilty admits that reasonable people would regard it as menacing. Taken literally, the message conveys a threat that certain consequences will follow if a course of behaviour with which the respondent was annoyed, and which the complainant, from his apology, knew annoyed him, is not modified. But it was a case where it would have been appreciated by the complainant, in the circumstances and from its tone that it had been sent by the respondent in a flare-up of rage. It was not a case where there was a threat in it of immediate consequences which would happen in any event immediately upon the respondent encountering the complainant, or in some unpredictable way. In that context, the case seems to be in a category of less seriousness than implied in the prosecutor’s submissions. But having said that, it was correct for the sentencing judge to say that the offence was neither trivial or committed in extenuating circumstances for the purposes of s 19B(1)(b)(ii) and (iii), and that it was an overreaction to the event that precipitated it.
The appellant’s submission that a proper balancing of all the relevant factors did not provide scope for the exercise of the discretion under s 19B arguably understates what is necessary to set aside the exercise of a discretion of the kind given by s 19B. The sentencing judge was aware of the principles involved. In this case the critical questions are whether the sentencing judge misapplied the law by taking into account matters that should not have been, and, if not, whether the exercise of the discretion was unreasonable. For reasons given previously, she understood the nature of the discretion. She made it plain that it was a case where the particular circumstances led to the exercise of the discretion in favour of the respondent in what she recognised was a “borderline case”. There were, in my view, matters that fell properly within the description of character and antecedents that could be taken into account in deciding that it was inexpedient, in the particular unusual circumstances of the case, to impose more than nominal punishment. She correctly discerned that the case was “borderline” but exercised the discretion in favour of the respondent.
It was accepted that the principle applying to appeals by the State Attorney-General (R v Melano; ex parte Attorney-General [1995] 2 Qd R 186) is applicable in an appeal by the Commonwealth prosecuting authority. Where a case is borderline, there is scope for minds to genuinely differ as to the appropriate outcome. But provided the criteria for considering the exercising of the discretion are made out, an appellant has a difficult task in persuading an appellate court to overrule a particular exercise of it. I am not persuaded that it has been established that the exercise of the sentencing discretion misapplied the law or was unreasonable. I would dismiss the appeal.
CULLINANE J: I have read the draft reasons of Mackenzie AJA in this matter. I agree with his reasons and the order proposed.
JONES J: I have read the reasons for judgment of Mackenzie AJA in draft form. I respectfully agree with those reasons and with the order proposed.