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Penhaligon V QPS [2020] QDC 289 PARTIES: NATHAN JOHN PENHALIGON (Appellant) V QUEENSLAND POLICE SERVICE (Respondent) FILE NO: Appeal No: 137/20

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Penhaligon V QPS [2020] QDC 289 PARTIES: NATHAN JOHN PENHALIGON (Appellant) V QUEENSLAND POLICE SERVICE (Respondent) FILE NO: Appeal No: 137/20 DISTRICT COURT OF QUEENSLAND CITATION: Penhaligon v QPS [2020] QDC 289 PARTIES: NATHAN JOHN PENHALIGON (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO: Appeal No: 137/20 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING Magistrates Court, Beenleigh COURT: DELIVERED ON: 13 November 2020 DELIVERED AT: Cairns HEARING DATE: 4 November 2020 JUDGE: Morzone QC DCJ ORDER: 1. Allow the application for extension of time for filing the notice of appeal until 21 August 2020. 2. Appeal allowed. 3. The respective bench charge sheets are amended in respect of charges 19, 24, 25, 26, 27, 28, 29 and 31 for the offence of failing to appear in accordance with an undertaking to reflect the dates of the required appearance and the operative undertaking relied upon in the Schedule of Facts tendered at the sentence. 4. The sentence and orders of the Magistrates Court made in Beenleigh Magistrate on 24 June 2019 are varied in respect of Charges 19, 24, 25, 26, 27, 28, 29 and 31 of Failing to Appear in Accordance with an Undertaking, by substituting the following sentences: Charge 19 - 1 week imprisonment, Charge 24 - 1 week imprisonment, Charge 25 - 1 week imprisonment, Charge 26 - 1 week imprisonment, Charge 27 - 1 week imprisonment, Charge 28 - 1 week imprisonment, 2 Charge 29 - 1 week imprisonment, and Charge 31 - 1 week imprisonment. 5. I otherwise confirm the decision of the sentences magistrate including the cumulative effect of the sentences. 6. I direct the registrar to substitute the respondent on the court file, being ‘Beenleigh Magistrates Court’ for Queensland Police Service. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – appeal pursuant to s 222 Justices Act 1886 – 8x failure to appear in accordance with undertaking – multiple new offending and resentence for offences subject of breached of intensive correction order – legislated mandatory cumulative sentence required by s 33(4) of the Bail Act 1980 (Qld) – totality principle – whether overall sentence manifestly excessive. LEGISLATION: Bail Act 1980 (Qld) s 33(4) Justices Act 1886 (Qld) ss 222, 223(1), 224(1)(a) & 227 Penalties and Sentences Act 1992 (Qld) s 9 CASES: Allesch v Maunz (2000) 203 CLR 172 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 60 Lovell v Lovell (1950) 81 CLR 513 Mill v The Queen [1988] 166 CLR 59 R v Margaritis; Ex parte Attorney-General (Qld) [2014] QCA 219 R v Morse (1979) 23 SASR 98 R v Tait [1999] 2 Qd R 667 R v Yarwood [2011] QCA 367 The Queen v Crofts [1999] 1 Qd R 386 The Queen v Kendrick [2015] QCA 27. White v Commissioner of Police [2014] QCA 12 COUNSEL: Self-represented Appellant 3 C Georgouras for the Respondent SOLICITORS: The Office of the Director of Public Prosecutions for the Respondent Introduction [2] The appellant applies for an extension of time to appeal against the sentence imposed on 24 June 2019 in the Magistrates Court at Beenleigh, on the grounds they were manifestly excessive. [3] On 24 June 2019 the appellant was sentenced to an effective 2 years and 2 months of imprisonment with a parole release date after 6 months. The sentence related to new offending as well as a resentence in the wake of breaching an earlier intensive correction order imposed on 21 January 2019. The period of imprisonment included sentences of 1 month imprisonment for each of the eight charges of failing to appear in accordance with an undertaking to be served cumulatively pursuant to s 33(4) of the Bail Act 1980. The appellant argues that these cumulative sentences were manifestly excessive. [4] The parties were prepared to deal with the appeal as well as the merits of the appeal on 4 November 2020. By the time of hearing the appellant had served all but about 5 months of his sentence. At the conclusion of the hearing I granted the application for extension of time, allowed the appeal and ordered that the summary charges be amended, and that cumulative sentences of 1 week imprisonment be substituted for each of the eight charges of failing to appear in accordance with an undertaking. This had the effect of reducing the appellant’s effective sentence to expire on 6 October 2020. [5] These are my reasons. Extension of Time [6] Pursuant to s 222(1) of the Justices Act 1886 (Qld), the applicant had one month after the date of the order in which to appeal. Under s 224(1)(a), a District Court judge may, on the application of a party, extend the time for filing a notice of appeal. In 2 R v Tait,1 the Court of Appeal explained the considerations relevant to granting an extension of time. [7] The appellant has explained how he came to start his appeal 13 months too late. The appellant says that he was unaware of the nature and extent of the sentences, and upon receipt of the verdict and judgment record, he was alerted to multiple anomalies in the bench charge sheets and the circumstances of the offending, which were not conveyed to the court at sentence. He acted quickly as soon as he realised the true position, but his efforts were thwarted by the rejection of requests for information from the court and his lawyers, and further delayed by being incarcerated and unrepresented. There was no prejudice identified by the respondent and there was obvious merit in the appeal, which I explain below grounds below. [8] In my view the applicant showed sufficient reason for the delay and demonstrated that it was in the interests of justice to grant the extension of time sought having regard to the issues raised in the appeal. Mode of Appeal [9] The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld). Pursuant to s 223 of the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. [10] For an appeal by way of rehearing "the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error,”2 and thereby resulting in a manifestly excessive sentence. [11] The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.3 Its 1 R v Tait [1999] 2 Qd R 667. 2 Allesch v Maunz (2000) 203 CLR 172, [22] – [23] followed in Teelow v Commissioner of Police [2009] QCA 84, [4]; White v Commissioner of Police [2014] QCA 121, [8], McDonald v Queensland Police Service [2017] QCA 255, [47]; contrast Forrest v Commissioner of Police [2017] QCA 132, 5. 3 Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255, [47]. 3 function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so it ought to pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence and attach a good deal of weight to the magistrate’s view.4 [12] On the appeal I allowed the appellant to raise several new points which were not taken up by his representative or brought to the courts attention at the time of sentence. These matters included an error in the date of the offence for charge 28, other anomalous dates of the breached undertakings in all charges, and a defective plea in response to a non-compliant bulk arraignment. I have made orders correcting the errors identified in the bench charge sheets. The appellant did not wish to disturb his plea notwithstanding the facts. Was the sentence manifestly excessive? [13] The appellant also appeals against the cumulative sentences imposed for the eight charges of failure to appear in accordance with an undertaking on: 1. 14 June 2018 for Charge 25; 2. 14 June 2018 for Charge 26; 3. 24 July 2018 (corrected from 6 April 2018) for Charge 28; 4. 10 July 2018 for Charge 29; 5. 23 October 2018 for Charge 24; 6. 13 November 2018 for Charge 31; 7. 16 November 2018 for Charge 19; and 8. 27 November 2018 for Charge 27. [14] Multiple bench charge sheets averred that the date of the undertaking was after the date of the breach, this was demonstrably wrong. The parties and the learned magistrate overlooked the error and proceeded in reliance on the detailed schedules of facts which accurately identified the relevant undertaking. [15] These charges were amongst a total of 29 charges subject of a sentence of 12 months’ imprisonment to be served by way of Intensive Correction Order imposed on 4 White v Commissioner of Police [2014] QCA 12, [5]-[8]; Forrest v Commissioner of Police [2017] QCA 132, 5 & 6; McDonald v Queensland Police Service [2017] QCA 255, [47]. 4 21 January 2019. He had already served actual custody of 52 days awaiting sentence. The appellant breached the Intensive Correction Order by committing 3 offences only 13 days after the original sentence on 3 February 2019. Then on 12 February 2019 the applicant committed a further 2 offences, which also breached the Intensive Correction Order.
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