Ross v Commissioner of Police [2018] QDC 99

Penalties and Sentences Act 1992 (Qld), ss 9, 10, 12

Police Powers and Responsibilities Act 2000 (Qld), s 154A

Serious and Organised Crime Legislation Amendment Act 2016 (Qld)

Baumer v The Queen (1988) 166 CLR 51

Berner v MacGregor [2013] QDC 33

Buse v Commissioner of Police [2018] QDC 90

Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41; (2017) 91 ALJR 1063

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Gartner v Brennan [2016] WASC 89

Hickey v Chief Executive Officer of Customs; Hickey v Commissioner of Police [2017] QDC 27

House v The King (1936) 55 CLR 499

Hurley v The Commissioner of the Queensland Police Service [2017] QDC 297

Lamont v Queensland Police Service [2018] QDC 10

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

McDonald v Queensland Police Service [2017] QCA 255

Pullen v O'Brien [2014] QDC 92

R v Cunningham [2005] QCA 321

R v Goodwin; Ex parte A-G (Qld) [2014] QCA 345

R v Hyatt [2011] QCA 55

R v Ikin [2007] QCA 224

R v Kelley [2018] QCA 18

R v Kitson [2008] QCA 86

R v Lawley [2007] QCA 243

R v McConnell [2018] QCA 107

R v NT [2018] QCA 106

R v Robertson [2017] QCA 164

R v Tout [2012] QCA 296

R v Wruck [2014] QCA 39

Rongo v Commissioner of Police [2017] QDC 258

Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489

TND v Queensland Police Service [2014] QDC 154

Young v White [2016] QDC 159

WAA v QPS [2014] QDC 297

Office of the Director of Public Prosecutions for the respondent

[1] This is an appeal under s 222 of the Justices Act 1886 (Qld) ("the Act") against the sentence imposed on the appellant, Mr Shane Anthony Ross, by the learned Magistrate at the Southport Magistrates Court on 29 September 2017. On that date, the appellant was convicted on his own pleas of guilty and sentenced as follows:

Count 1 - Contravening order about information necessary to access information stored electronically pursuant to s 205A of the Criminal Code 1899 (Qld) ("Criminal Code").

Imprisonment for 12 months to be wholly suspended forthwith for an operational period of three (3) years.

Fined in the sum of $500 and conviction recorded.

Fined in the sum of $500 and conviction recorded.

Count 4 - Offence in relation to unauthorised and prohibited explosives.

Fined in the sum of $500 and conviction recorded.

Count 5 - Authority requires to possess explosives.

Fined in the sum of $500 and conviction recorded.

[2] An order for the forfeiture to the Crown of the steroids, fireworks and all un-accessed telecommunication items (five BlackBerry phones and one Apple iPhone) relating to these charges was also made.

[3] On appeal, the appellant identified seven apparent errors by the Magistrate, to support his overall contention that the sentence of a suspended term of imprisonment imposed for count one was manifestly excessive in the circumstances. These errors can be summarised as follows:

Failing to afford the appellant's solicitor the opportunity to address him in relation to whether a sentence of imprisonment should be imposed (Ground 1).

(a) Failing to have regard or sufficient regard to s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) ("the PSA") that a sentence of imprisonment should only be imposed as a last resort (Ground 2).

(b) Placing too much emphasis on s 9(2)(b) of the PSA, that the maximum penalty for the offence was 5 years imprisonment (Ground 3).

(c) Placing too much weight on extraneous matters not supported or evidenced in the proceeding, particularly, in respect of the quantity of phones and the nature of the BlackBerry as being a very secure device (Ground 4).

(d) Sentencing on a factual basis adverse to the appellant, namely that he was the owner of and had access to the phones, when this was neither alleged against him nor supported by evidence (Ground 5).

(e) Sentencing on a factual basis adverse to the appellant namely that the BlackBerry was a very secure device when such fact was neither alleged against him nor supported by evidence (Ground 6).

(f) Taking into account criminal conduct as to the use of, nature of the phones, or their conduct, when such discredible conduct was not alleged against the appellant nor was the subject of any evidence; and did not form part of any of the offences for which the appellant was convicted (Ground 7).

[4] In relation to counts two to five, the appellant raised the sole ground of appeal that the Magistrate failed to have regard to the matters set out under s 12 of the PSA in recording convictions. This ground is only pressed if the appellant is successful in relation to Ground 1.

[5] The right to appeal is a creature of statute with the nature of the appeal right dependent on the construction of the statute concerned. [1]

[6] Relevantly, s 222(1) of the Act founds the appellant's right of appeal to the District Court. Subsection (2)(c) provides that if a defendant pleads guilty, then there may only be an appeal on the ground that the punishment or penalty was excessive or inadequate.

[7] Section 223 states that such an appeal is by way of re-hearing on the original evidence on the record.[2] Section 225 empowers a judge to confirm, set aside, or vary an appealed order, or make any other order considered just.

[8] On appeal, it is not a sufficient basis for this court to intervene, that this court considers it might have taken a different course between the competing considerations which have to be weighed in the exercise of the discretion.[3] It must appear that some error has been made in exercising the discretion of the kind identified in House v The King (1936) 55 CLR 499.[4] If the Magistrate acted upon a wrong principle, if he allowed extraneous or irrelevant matters to guide or affect him, if he made a mistake about the facts, if he did not take into account some material consideration, then the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.[5]

[9] It is not necessary to identify a particular error. As Keane JA (as he then was) observed in R v Ikin[6]:

The judgment appealed from is a discretionary one. An appeal can succeed only if an error of the kind described in House v The King (1936) 55 CLR 499 at 504 - 505 has occurred. In this regard, there may be cases where the sentence is so "unreasonable or plainly unjust" in the circumstances as to give rise to an inference that the discretion has miscarried. It is this idea which informs the familiar ground of appeal that a sentence is manifestly excessive. But that having been said, as was emphasised by Kirby J in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 341, this Court should allow an appeal against sentence only where the error is clearly apparent. [Emphasis added]

[10] Despite differing approaches by judges of this court to this task,[7] the crucial question on an appeal under s 222(2)(c) remains, in my view, whether upon a proper review of the original record, the sentence was excessive.

[11] Of course, that is certainly not to say that the identification of an error is not relevant to this task. As Devereaux SC DCJ observed in Rongo v Commissioner of Police,[8] successfully demonstrating an error does not guarantee success of the appeal but it might explain why the sentence was excessive. This approach, in my view, is consistent with the observations of the High Court in Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym),[9] that where there is a misapplication of principle or an accused has been sentenced by reference to an erroneous understanding of the principles which inform a just sentence, there is no good reason not to correct the effect of the error and determine the correct sentence according to law.

[12] Support for the proposition that the error must have affected, guided or informed the sentence, is also found, in my view, in R v Lawley[10] where the Court of Appeal concluded that "the sentence which was imposed was not manifestly excessive nor otherwise affected by error".[11]

[13] In the present case, apart from the general ground that "in all of the circumstances" the sentence was manifestly excessive, the appellant relies on a number of errors which he submits lead the Magistrate into error in imposing the sentence [that was manifestly excessive].

[14] To demonstrate that a sentence is excessive, an appellant must do more than show that other offenders have received lesser sentences for similar conduct; or that the sentence is markedly different from sentences in other cases.[12]

[15] Most recently in R v McConnell,[13] Fraser JA (with whom Sofronoff P and Philippides JA agreed) identified (on an application for leave to appeal against sentence) that the real issue in that case was whether the sentence was manifestly excessive. In doing so, his Honour observed that it is not established unless the sentence is "unreasonable or plainly unjust" such as to justify the conclusion "that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance".[14] Ultimately in McConnell, Fraser JA considered that a different judge might have imposed a more lenient sentence but that while the sentence was severe it was not manifestly excessive.[15]

[16] Ultimately, there is a breadth of sentencing discretion and an obligation on appeal courts to respect the role assigned to those who have the "difficult task of balancing competing considerations of deterrence, protection of the community, denunciation of crime and vindication of victims' rights on the one hand, and rehabilitation and compassion on the other."[16]

[17] The hearing before the Magistrate was relatively short, as are his Honour's reasons. This is not unusual, nor a criticism. The jurisdiction is a busy one with many matters listed before a sitting Magistrate on one day.

[18] The observations of Pritchard J in Gartner v Brennan [2016] WASC 89 at [58] "apply equally in the Queensland context"[17] and are, in my view, most apposite to the present case:[18]

Many cases have confirmed that magistrates are expected to undertake the work of that busy Court with expedition and with a degree of informality appropriate to the disposition of a large volume of cases. Consequently, appeal courts should not scrutinise the reasons for decision given by magistrates with an eye keenly attuned to the identification of error, and errors should not be inferred from mere infelicities of language. The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached. The adequacy of a magistrate's reasons must be assessed by looking at the reasons as a whole, including not only findings expressly made but findings to be inferred from the findings expressly made, and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced).[19] [Emphasis added]

[19] At the outset, the appellant's Queensland criminal history was tendered.[20] It contained the following two entries:

(a) Southport Magistrates Court on 31/05/2012 - Contravene direction or requirement on 17/05/12 - No conviction recorded, fined $250 to pay within 28 days or 2 days imprisonment in default; and

(b) Southport Magistrates Court on 04/04/2017 - Fraud on 14/06/2016 - No conviction recorded, fined $600 to pay within 1 month or 6 days imprisonment in default.

[20] No information about the circumstances of the previous offending was provided to the Magistrate.

[21] The facts relating to the present charges were then outlined by the police prosecutor.

[22] Relevantly, on 30 June 2017, police executed a search warrant at the appellant's residential and business addresses in Coomera. Police located 10 vials of Novotropin (anabolic steroid) and two 10ml vials of Nandrolone (anabolic steroid) at the appellant's residence. Another vial of steroids and a bag containing numerous fireworks were located at the appellant's business address. During the searches, a number of computers and phones including five BlackBerry phones, and one Apple iPhone were seized by police. It is not clear at which (or whether it was both) locations these items were found.

[23] On 18 July 2018, police obtained a search warrant in relation to things seized from the earlier warrants. On 17 August 2017, police obtained an authorised order for the access of information requiring the appellant to provide the access codes to the six phones that had been seized on 30 June 2017 ("the Order for Access").[21]

[24] On 17 August 2017, the appellant attended Coomera police station with his solicitor and participated in a record of interview. During this interview the appellant made frank admissions in relation to the possession and use of the steroids and to being in possession of the fireworks. The Order for Access was served on the appellant during this interview. This order was explained and the appellant said he understood it. He then told the police that he was unable to provide the passwords but "he would be able to contact the persons who provided the device to him for access [indistinct] police by his lawyer."

[25] The police prosecutor then told the court that the appellant had "since advised he could not provide access codes, hence the offence".

[26] After outlining the facts, the police prosecutor told the Magistrate that he was "instructed that police are requesting all electronic devices unable to be accessed without the access codes will be forfeited to the Crown. There are a number of mobile phones and an Apple iPhone that are in the court's hands."[22] After some confusion about the number and type of devices, the appellant's solicitor clarified, without objection, that a number of computers had been seized but the passwords to those devices and a number of other phones had been provided. But his client was "unable to provide for these items."

[27] Prior to the appellant's solicitor making his submissions, the following exchange took place with the Magistrate.

BENCH: So could you tell me, for a start, why your client had five BlackBerries and an iPhone?

MR FRASER: My instructions are they are all old phones, your Honour, and a number of them were also brand new, had not been used. Now, the facts tend to suggest, and it is certainly the case that there were phones found in the premises that were indicated by the defendant to the police as not being his. He informed the police on the police facts, I think it's conceded, that he would make attempts to obtain that information for police but was simply unable to do so.

MR FRASER: It was a 24-hour order. The timeframe was insufficient to all him to - - -

BENCH: You want to explain to me again why your client had five BlackBerries that were not apparently his?

MR FRASER: I'm not saying they all were not his, your Honour. I'm saying that they were a number of old phones and some of the phones were brand new. So I guess it's how

BENCH: Can you explain to me why I shouldn't sentence your client, who has possession of five brand new and old BlackBerries, on the basis that they were not all his - - - If you have any material to put before me to prove that they were not all his - - -

[28] It follows that the appellant was sentenced on the basis that the six phones were his.

[29] At sentence, it was submitted on behalf of the appellant that he was 34 years of age at the time of offending and at sentence. He was married with three children. The appellant was educated to year 11 level and had operated his own clothing company called Monster Clothing for three years. The court was told that the appellant sponsored a number of events around Australia including the Gold Coast 600. A reference tendered spoke of the appellant as being thoughtful, caring, a valuable member of the community, involved with fundraising, an exemplary member of society, family man and friend.

[30] The court was also told that the appellant solicitor did not intend to delve too deep into the charges as "full admissions were obviously made".

[31] The appellant's solicitor referred to a newspaper article tendered which had reported on a trial heard in the Supreme Court at Brisbane where it had been submitted that the mule in that case had lied to the police to shield the real drug kingpin of the Gold Coast, the appellant. The appellant's solicitor submitted that a few days after this publication, a search warrant was executed on the appellant's house, when his wife and children were there without him as he was undergoing day surgery. It was also submitted that the appellant received the brunt of the tabloid media from the trial and that he had suffered extra curial punishment because his reputation was significantly impacted as a result of the media publications.

[32] The appellant's solicitor referred to the charges as being of a minor nature and that the extra curial punishment suffered by the appellant and his family through the media process, significantly outweighed the seriousness of the offending. He also argued that as the appellant had at no point been asked for his personal mobile phone which was the phone he used daily, this meant that the police were no longer interested in obtaining any information.

[33] The appellant's solicitor referred to the appellant being remorseful for his actions and that he had accepted responsibility and pleaded guilty at the first available opportunity.

[34] Against this background, the appellant's solicitor submitted that "a fine would be appropriate, perhaps a substantial fine, as one sentence for all charges before you this morning".

[35] No submissions were made about any impact the recording of a conviction would have upon the appellant.[23]

[36] After requesting and being told that there were no comparative decisions and clarifying that the maximum penalty for count one was five years imprisonment and not one year [under s 205(1) of the Criminal Code], the Magistrate handed down his sentence.

BENCH: Mr Ross, in relation to all these charges, you have pleaded guilty at the first available opportunity. Your traffic history and your criminal history are not at all bad for somebody of your age and maturity. You are a family man who has responsibilities and at least has one person prepared to write you a character reference today.

In relation to the four charges that are heard together, the possession of the drugs and the firearm - the fireworks, I think an appropriate penalty for you is a $500 fine, and one fine in respect of all four matters. I intend to impose another penalty in respect of the failing to provide information necessary to access electronically stored information.

It is a serious offence, as you have heard me discuss with the Prosecutor. There are a maximum penalty of five years' imprisonment for such a thing, and I am left having· to decide the basis on which you should be sentenced. Nothing is placed before me to convince me that you did not own those phones, and, as a matter of common sense, people do not possess phones and have access - possess a number of phones, any number of phones, without having access to them. The very number of phones, indeed, raises question marks, and the nature of the BlackBerry as a very secure device raises further question marks.

However, taking into your account your plea of guilty, I have decided that, while the sentence that I should impose is one of imprisonment - that you will not be required to serve it immediately. You will be sentenced to a period of 12 months' imprisonment, suspended immediately for three years, in relation to that offence. That has the consequence that, if you stay out of trouble for that three years, you should not serve any part of that. Whether you do that or not is a matter for you. I record convictions in relation to all offences.

A/SNR CONST McSHANE: Is your Honour minded to issue a forfeiture order?

BENCH: Sorry. Yes. I have - I have made the note. I will forfeit - order forfeiture of the drugs, the fireworks and all un-accessed telecommunications items to the Crown.

MR FRASER: Your Honour, I have nothing further in this Court. May I be excused?

[38] Section s 205A of the Criminal Code states as follows:

205A Contravening order about information necessary to access information stored electronically

(a) an order made under the Police Powers and Responsibilities Act 2000 , section 154(1) or (2) or 154A(2); or

(b) an order made under the Crime and Corruption Act 2001, section 88A(1) or (2) or 88B(2);

Penalty: Maximum penalty - 5 years imprisonment.

[39] It is uncontroversial that the Order for Access was obtained pursuant to s 154A of the Police Powers and Responsibilities Act 2000 (Qld). This section provides:

154A Order for access information after storage device has been seized

(a) a storage device is seized under the search warrant and removed from the place; and

(i) the search warrant did not contain an order made under section 154(1) or (2); or

(ii) the search warrant contained an order made under section 154(1) or (2) but further access information is required for a police officer to gain access to information stored on the device that may be relevant evidence.

(2) On the application of a police officer, a magistrate or a judge may make an order requiring a specified person to do a thing mentioned in section 154(1)(a) or (b).

(a) may be made at any time after the warrant has been issued; and

(i) if the search warrant was issued by a judge - to a Supreme Court judge; or

(ii) if the search warrant was issued by a magistrate - to a magistrate.

(4) An order made under subsection (2) must state -

(a) the time at or by which the specified person must give a police officer the information or assistance; and

(b) the place where the specified person must provide the information or assistance; and

(c) any conditions to which the provision of the information or assistance is subject; and

(d) that failure, without reasonable excuse, to comply with the order may be dealt with under the Criminal Code, section 205A.

(5) A magistrate or a judge may make an order under subsection (2) only if satisfied there are reasonable grounds for suspecting that information stored on the storage device may be relevant evidence. [Emphasis added]

154B Compliance with order about information necessary to access information stored electronically

A person is not excused from complying with an order made under section 154(1) or (2) or 154A(2) on the ground that complying with it may tend to incriminate the person or make the person liable to a penalty.

[41] Under s 552A of the Criminal Code, s 205A must be dealt with summarily on prosecution election.

[42] The offence created by s 205A is a fairly recent addition to the Criminal Code having been inserted by the Serious and Organised Crime Legislation Amendment Act 2016 (Qld), which was assented to on 9 December 2016.

[43] The insertion of s 205A created a new offence punishable as a crime with a maximum penalty of five years imprisonment. It stands in addition to the existing (and remaining) offence under 205(1) of the Criminal Code which provides for a misdemeanour offence with a maximum penalty of one year imprisonment, as follows:

205 Disobedience to lawful order issued by statutory authority

(1) Any person who without lawful excuse, the proof of which lies on the person, disobeys any lawful order issued by any court of justice, or by any person authorised by any public statute in force in Queensland to make the order, is guilty of a misdemeanour, unless some mode of proceeding against the person for such disobedience is expressly provided by statute, and is intended to be exclusive of all other punishment.

(2) The offender is liable to imprisonment for 1 year.

[44] It is instructive to consider the background to the insertion of s 205A into the Criminal Code.

[45] The Explanatory Notes for the Serious and Organised Crime Legislation Amendment Act 2016 (Qld) describe the new provisions as a "major investigative tool to combat serious criminal activity",[24] introduced "in response to the proliferation of....the increased use of technology to promote and distribute offending material as well as to conceal offending".[25] The maximum penalty of five years imprisonment for the new offence under s 205A was "justified to ensure a balance between the penalty for non-compliance with an order of the court and the maximum penalty for offending behaviour...which may be concealed by technology".[26]

[46] In my view, the offence created under s 205A of the Criminal Code is a serious one which strikes at the heart of the administration of justice. It involves a failure to comply with a court order. It follows that in considering the penalty to impose, it is necessary to take into account the need for general deterrence and denunciation.

[47] As it often the case, there is a degree of overlap between the grounds of appeal raised by the appellant.

[48] It is submitted that the learned Magistrate failed to afford the appellant's solicitor the opportunity to address him in relation to whether a sentence of imprisonment should be imposed.

[49] The appellant relied on the observations of Keane JA (as he then was) in R v Cunningham,[27] that "To impose a penalty without allowing the person affected to have an opportunity to respond is a clear breach of the rule of natural justice that a Court is required to follow".[28]

[50] The Court of Appeal in R v Kitson,[29] considered the issue of affording natural justice in the context of a judge at first instance setting a parole release date after three quarters of the head sentence after a plea. In that case, the court found that "because that aspect of the sentence was unusual and was not sought or contemplated in the submission of either parties. It should not have been imposed without the learned judge adverting to it and giving the parties an opportunity to be heard."[30]

[51] Recently in R v Robertson,[31] Morrison JA relevantly observed that:[32]

[55] ...A sentencing judge is not obliged to set out each and every alternative available to that judge in sentencing a defendant who appears before the judge. Counsel who appear before judges on sentences are expected to know the provisions of Queensland's sentencing law and to make relevant submissions.

[56] Unless the judge is considering imposing a sentence which may be considered unusual or an additional penalty which is unusual, there is no obligation upon a sentencing judge to advise counsel of the sentence that may be imposed and to seek specific submissions on that. Both the prosecution and the defence have the opportunity to make all submissions on appropriate and alternative penalties that may apply in the circumstances and that happened in this case. A judge may remain completely silent while the submissions are made or test propositions made by counsel during their submissions, but a suggestion that the sentencing judge in this case failed to afford procedural fairness is without merit. [Emphasis added]

[52] In the present case, the police prosecutor made no submission as to penalty. The appellant's solicitor was given every opportunity to make submissions about penalty. He submitted that a substantial fine was appropriate.

[53] The Magistrate sentenced the appellant on the basis that he had been found in possession of five BlackBerry phones (some old and some new) and one iPhone and that he owned these devices. Despite a court order that he do so, the appellant failed to provide access codes to six phones. If he had a reasonable excuse it would be expected that he would have pleaded not guilty to the offence. He did not. He pleaded guilty based on his failure to comply with a court order. This guilty plea was made in the context that he had given the police access to other devices and phones. Leaving to one side the Magistrate's comments about BlackBerry's being more secure than other phones, the uncontroversial facts on sentence were that all of the phones were unable to be accessed by the police without the access codes. In other words, all six phones were secure. An order for forfeiture to this effect was sought and obtained at the sentence (without objection).

[54] The Magistrate was sentencing the appellant for offending under a recently introduced offence for which the maximum penalty was five years. The offending involved non-compliance with a court order to provide access codes to six phones found in the appellant's possession. That a term of imprisonment might be imposed for committing such an offence can hardly in my view be described as unusual.

[55] On appeal, the appellant both in the written outline filed on his behalf[33] and through his counsel before me, submitted that at the hearing his solicitor ought to have had the opportunity to address the Magistrate on whether some other order, such as probation, could be made. Given the appellant's age, criminal history and antecedents presented him as an upstanding citizen without addiction, it is not surprising that the appellant's solicitor did not make a submission that probation was an appropriate penalty.

[56] I do not consider in this case that it was incumbent on the Magistrate to go through every alternative sentence available to him. As a matter of procedural fairness, the appellant's solicitor made submissions in relation to the facts and as to penalty. That the Magistrate did not accept that it was not a serious offence and that a fine was appropriate does not in my view mean that he erred by failing to afford procedural fairness.

[57] It is submitted that the learned Magistrate failed to have regard or sufficient regard to s 9(2)(a) of the PSA that a sentence of imprisonment should only be imposed as a last resort.

[58] The requirement for a sentencing court to state in open court its reasons for imposing a sentence of imprisonment is contained in s 10 of the PSA.

[59] As Margaret Wilson AJA observed in R v Hyatt [2011] QCA 55 at [11]:

It is desirable that sentencing remarks be succinct, sharply focussed and expressed in a way likely to resonate with the offender, the victim and the public at large. They also have to be able to withstand the scrutiny of appellate courts. The reasons for structuring a sentence in a particular way should ordinarily appear in the sentencing remarks, and a sentencing court may more readily infer error when reasons are not expressed. [Emphasis added]

[60] After taking into account the appellant's early guilty plea under s 13 of the PSA and his antecedents under s 9(2)(f) of the PSA, the Magistrate distinguished the penalty to be imposed for the four offences relating to the possession of drugs and fireworks with the penalty for the offence under s 205A of the Criminal Code.

[61] The Magistrate then stated his reasons for imposing a term of imprisonment for the one count. He considered it to be a serious offence with a maximum penalty of five years imprisonment. These are relevant factors under s 9(2)(b) and (c) of the PSA. The Magistrate considered that the very number of phones "indeed, raises question marks" and that the nature of the BlackBerry as a very secure device "raises further question marks". The nature of the offence is that it involved six phones the subject of the Order for Access are also relevant considerations under s 9(2)(c) and (g). It is instructive to recall the High Court's conclusion in Baumer v The Queen[34] that apart from mitigating factors, it is the circumstances of the offence alone that must be the determinant of the appropriates sentence.

[62] I accept there was no evidence before the Magistrate that the BlackBerry was a very secure device. But I do not consider that the Magistrate's comment that they were secure lead him into error. As I have stated above, it was uncontroversial that all six phones were secure in that they could not be accessed by police without access codes. And all six phones were forfeited for that reason. In my view, whether the BlackBerry was "very" secure did not matter.

[63] Whilst he does not expressly say so, in my view it can be readily inferred from the analysis in the Magistrate's reasons that he turned his mind to the relevant considerations under the PSA, including the principles in s 9(2)(a), that imprisonment should only be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable.

[64] For these reasons, this ground of appeal is without merit.

[65] It is submitted that the learned Magistrate placed too much emphasis on s 9(2)(b) of the PSA, that the maximum penalty for the offence was 5 years imprisonment.

[66] As I have discussed in my consideration of ground 2, the maximum penalty is a relevant consideration. It was not used in this case, as the appellant submits,[35] as the appropriate commencing sentence before discounting for subjective features. It was quite properly but one of the factors taken into account by the Magistrate.

[67] It follows and I find that this ground of appeal is without merit.

[69] It is submitted that the learned Magistrate sentenced on a factual basis adverse to the appellant and placed too much weight on extraneous matters not supported or evidenced in the proceeding, particularly, in respect of the quantity of phones and the nature of the BlackBerry as being a very secure device.

[70] For the reasons I have articulated in my discussion of grounds 1 and 2 above, I find that both grounds are without merit.

[71] It is submitted that the learned Magistrate sentenced on a factual basis adverse to the appellant namely that he was the owner of and had access to the phones, when this was neither alleged against him nor supported by evidence.

[72] During the hearing before me, counsel for the appellant withdrew one aspect of this ground, accepting that before the Magistrate, the appellant's solicitor conceded that he could not explain why his client should not be sentenced on the basis that the phones were not all his.

[73] Despite this concession, counsel for the appellant maintained before me that the appellant ought not to have been sentenced on the basis that he failed to give the access codes to the phones. This submission in my view is entirely misconceived. That is exactly what he was being sentenced for.

[74] Before me, counsel for the appellant also submitted that there was no evidence at all of what attempts had been made by the police to access the phones. That is true, but irrelevant. At the hearing it was uncontroversial that the police had been unable to access the phones. And that is why the police requested an order that all electronic devices unable to be accessed without the access codes were to be forfeited to the Crown. Those specific phones were the six phones in question.

[75] To the extent it is pressed, I find this ground of appeal is without merit.

[76] It is submitted that the learned Magistrate took into account criminal conduct as to the use of, nature of the phones, or their conduct, when such discredible conduct was not alleged against the appellant nor was the subject of any evidence; and did not form part of any of the offences for which the appellant was convicted.

[77] In my view this ground misconceives the seriousness of the offence. As the respondent correctly submits, the gravamen of the offence lies in the fact that it stymies an investigation and potentially conceals more serious offending.[36] Crucially too, in my view, it is instructive that the maximum penalty was arrived at by balancing the refusal to provide access information and the punishment for concealment of potential offending.

[78] Finally, it is submitted that in all of the circumstances the Magistrate imposed a sentence that was manifestly excessive.

[79] It is uncontroversial that there are no comparable cases dealing with this section.

[80] In R v Goodwin; Ex parte A-G (Qld),[37] Mullins J (with whom Philippides J agreed), made the following relevant observations:[38]

The lack of comparable sentences may deprive the sentencing judge of the assistance of "the yardstick" for testing the proposed sentence, but it does not preclude the sentencing judge from otherwise finding the relevant facts for the purpose of the sentencing, weighing up the relevant factors relating to the offence and the offender, and applying the principles of sentencing found in the relevant legislation and the common law, in order to reach the appropriate sentence for that offending. The sentencing judge may very well find the exercise of the discretion to be more difficult, in the absence of, and without the usual assistance afforded by, comparable sentences, but as a matter of principle the sentencing judge will have available sufficient material from the evidence adduced on the sentence and the relevant law to undertake the well defined process of sentencing.

[81] The key to resolving this question, as Sofronoff P reiterated recently in R v Kelley,[39] lies in the proper characterisation of the offending conduct, the impact of the appellant's age and criminal history and any other matter comprehended within s 9(2) of the PSA.[40] This section relevantly provides:

(2) In sentencing an offender, a court must have regard to -

(i) a sentence of imprisonment should only be imposed as a last resort; and

(ii) a sentence that allows the offender to stay in the community is preferable; and

(b) the maximum and any minimum penalty prescribed for the offence; and

(c) the nature of the offence and how serious the offence was, including -

(d) the extent to which the offender is to blame for the offence; and

(f) the offender's character, age and intellectual capacity; and

(g) the presence of any aggravating or mitigating factor concerning the offender; and

(i) how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences; and

(q) anything else prescribed by this Act to which the court must have regard; and

[82] The sentencing guidelines set out in s 9(1) of the PSA are also relevant. These state as follows:

(1) The only purposes for which sentences may be imposed on an offender are -

• (a) to punish the offender to an extent or in a way that is just in all the circumstances; or
• (b) to provide conditions in the court's order that the court considers will help the offender to be rehabilitated; or
• (c) to deter the offender or other persons from committing the same or a similar offence; or
• (d) to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or
• (e) to protect the Queensland community from the offender; or
• (f) a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e).

[83] In my view, the offending in this case is well characterised as serious. The new provision was inserted as a tool to combat serious criminal activity. It is not a spur of the moment offence. It is an offence that has the potential to deflect a police investigation into potentially very serious offences.

[84] The applicant failed to comply with the court order to provide access codes to six phones. Whilst the appellant must be given credit for his guilty plea and that he saved the State the time and resource of having to prepare for a trial, I do not accept that he assisted in the administration of justice or that it was a sign of genuine remorse for his offending conduct for count one. He has acted to the contrary. As I have stated previously, such an offence strikes at the heart of the administration of justice.

[85] There was no evidence or cogent submission before the Magistrate to explain why the appellant gave the police access to some phones and not others. If the appellant had a reasonable excuse it was not offered. The only reasonable inference to be drawn is that he did not want the police to have access to any of the phones because he was hiding something.

[86] The appellant is not a youthful first time offender. At 34 he is a mature man. He is also a successful businessman, a husband and a father. The uncontroverted evidence and submissions before the Magistrate were that he is a contributing member of society and is held in high regard by some. The fact that the appellant's family endured the embarrassment of the raid and that there was bad publicity in the tabloid media from the appellant's name being mentioned in a trial of another person is unfortunate but of marginal, if any, relevance to the sentencing process in this case.

[87] The Magistrate quite properly weighed up the competing considerations as he was required to.

[88] In my view another judge may have imposed a different sentence in this case. The sentence imposed is at the higher end of the range for the offence. But it is not outside the permissible range of sentence in this case.

[89] It follows that, in my view, upon a re-hearing of the evidence before the Magistrate, the sentence imposed for count one was not excessive.

[90] Given my conclusion and as conceded by the appellant, there is no need for me to consider the remaining ground of appeal that convictions ought not to have been recorded for counts two to five.

[91] I therefore order that the appeal be dismissed.

[1] McDonald v Queensland Police Service [2017] QCA 255 per Bowskill J [9] with reference to Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [20].

[2] Cf an appeal to the Court of Appeal from the District Court in its appellate jurisdiction is made under s 118 of the District Court of Queensland Act 1967; if leave is granted, the appeal is not by way of re-hearing; it is an appeal in the strict sense in which the Court considers whether there was error, on the basis of the material before the court below; An appeal from the District Court in its original jurisdiction is by way of rehearing [s 118 (8)]; Ibid McDonald at [10], [12], [13] and [39].

[3] R v Lawley [2007] QCA 243 at [18]; Cf R v Wruck [2014] QCA 39, where the Court of Appeal granted leave to appeal on the basis of the sentencing judge's error in approach but dismissed the appeal on the basis that the sentence was not manifestly excessive and because as Holmes J (as she then was) stated "I would not reach any different conclusion as to sentence".

[5] Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489 at [4]. In Young v White [2016] QDC 159 at [13] McGill SC DCJ considered that upon the demonstration of a vitiating error (for the purpose of House v The King), the question is whether the appellant has shown that it is appropriate to exercise the residual discretion in favour of allowing the appeal and that the discretion extends to a discretion not to interfere with the original sentence.

[6] [2007] QCA 224 at [6].

[7] Berner v MacGregor [2013] QDC 33 at [8] - [18]; Cf Pullen v O'Brien [2014] QDC 92 [27] to [35]; Lamont v Queensland Police Service [2018] QDC 10 at [4]. [5]; WAA v QPS [2014] QDC 297 at [4]-[6]; TND v Queensland Police Service [2014] QDC 154 at [27] - [33].

[8] [2017] QDC 258 at [23]- [24].

[9] [2017] HCA 41; (2017) 91 ALJR 1063 at 1074-1075 [60], [63], [65]-[67], [70], [84]-[85].

[10] [2007] QCA 243.

[11] Ibid at [12]; Cf R v NT [2018] QCA 106 at [34] where Atkinson J [with whom Gotterson JA and Morrison JA agreed) on an application to appeal against a sentence imposed in the District Court stated that since an error had been identified, the Court of Appeal did not need to assess to what extent the error affected the outcome in determining what the correct sentence should be, but rather in the exercise of its independent discretion, the court must determine what is the appropriate sentence for the offender and the offence and if the court would not impose any different sentence then the application for leave to appeal would be refused.

[12] Buse v Commissioner of Police [2018] QDC 90 at [12] per Farr SC DCJ with reference to .R v Tout [2012] QCA 296 at [8] per Fraser JA.

[13] [2018] QCA 107.

[14] Ibid at [15], with reference to House v The King (1936) 55 CLR 444 at 504-555.

[15] R v McConnell [2018] QCA 107 at [22].

[16] R v Lawley [2007] QCA 243 at [18].

[17] Hickey v Chief Executive Officer of Customs; Hickey v Commissioner of Police [2017] QDC 27 at [28].

[18] As I also found them to be in Hurley v The Commissioner of the Queensland Police Service [2017] QDC 297 at [105].

[20] Together with some references to be relied upon by the appellant.

[21] A copy of this order was not tendered at the hearing below or on appeal.

[22] As stated in paragraph [2] of these Reasons, the order for forfeiture that was made included the forfeiture of five BlackBerry phones and one Apple iPhone.

[23] During the hearing of the appeal before me, counsel for the appellant described this as being "obviously regrettable".

[24] Explanatory Memorandum at page 46.

[26] Explanatory Memorandum at page 46.

[27] [2005] QCA 321.

[29] [2008] QCA 86.

[31] [2017] QCA 164.

[33] Outline of argument on behalf of the appellant at [15].

[34] (1988) 166 CLR 51 at 58.

[35] With reference to the observation of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 31.

[36] Outline of submissions on behalf of the respondent at [5.12].

[37] [2014] QCA 345.

[39] [2018] QCA 18 at [40].

[40] In R v Kelley [2018] QCA 18, unlike the present case, the offending involved the use of violence so the relevant principle were those under s 9(3).