Proctor : December 2018
38 PROCTOR | December 2018 applicant was, by his actions, threatening to kill the complainant, reflects no error at all – where in the course of what plainly must have been a terrifying incident for the complainant, the applicant has grabbed her and pushed her, causing her to fall; threatens to bite her face off, and then proceeds to try to bite her face and cheeks; pulls out a flick knife and holds it against her throat; throws her to the floor when someone intervenes, then picks her up with both his hands around her ribs and slams her, on her back, on a massage table; puts his hands around her throat and squeezes, causing her to be unable to breathe or speak; throws her onto the floor and then, on the floor, pins her arms down with his knees, and again squeezes her throat such that she is unable to breathe or swallow; and punches the floor next to her head three or four times with significant force – where the sentencing judge’s remarks about being sceptical about placing reliance on things the applicant had said – relevantly, about the role of medication in combination with alcohol in causing his offending on 17 February 2017 – were not merely on the basis of the view his Honour formed about the applicant’s comment about flick knives; but more generally on the basis that, having regard to the agreed statement of facts, the applicant was not frank or candid with police when he was interviewed the day after the offending – where he denied the offending, and suggested the complainant had been injured when she tripped on something and fell over, and that the only time he touched her was when he went to help her up – where the caution adopted by his Honour was appropriate, on the basis of the agreed facts, and in the absence of any evidence to support the submission in relation to medication – where the applicant was sentenced to four years’ imprisonment for choking in a domestic setting under s315A of the Criminal Code – where this court has recently considered, for the first time, an appeal against a sentence imposed for the offence of choking or strangulation in a domestic setting, in R v MCW  QCA 241 – where in the context of this particular type of domestic violence offending, choking or strangling, the serious and dangerous nature of such an act, the fact that it has been shown to be a predictive indicator of escalation in domestic violence offences, and the concerning prevalence of this act in domestic violence offending all support the need for stern punishment in cases of this kind – where the applicant is a mature man, with a serious and relevant criminal history, including for offences of violence – where the offending was protracted and violent, including a threat with a flick knife, threatening to bite the complainant’s face off, and attempting to bite her face and cheeks, squeezing the complainant’s throat, twice, to the point she could not breathe, and wilful damage of substantial value – where general deterrence, personal deterrence and denunciation, as well as community protection, are important factors in sentencing an offender under s315A – whether the sentence imposed by the sentencing judge was manifestly excessive. Application refused. R v CCF  QCA 285, Date of Orders: 18 October 2018; Date of Publication of Reasons: 23 October 2018 Sentence Application – where the applicant was convicted of two offences of indecently dealing with a child under 16 years – where the applicant was aged 16 at the time of the first offence and was 17 or 18 at the time of the second offence – where the complainant was the same person for both offences and was about five years younger than the applicant – where the applicant was convicted and sentenced about 20 years after the offending occurred – where the sentencing judge ordered that no conviction be recorded in relation to the first offence, but that a conviction be recorded in relation to the second offence – where the applicant sought leave to appeal only in relation to the sentence imposed for the second offence – where the sentencing judge was obliged to consider the matters prescribed by s12(2) Penalties and Sentences Act 1992 (Qld) (PSA) in deciding whether or not to record a conviction, and those matters include the impact that recording a conviction would have on the offender’s economic or social wellbeing or chances of finding employment – where the judge was addressed by defence counsel on the potential consequences for the applicant’s employment from the recording of a conviction – where the submission was that a conviction would “obviously have a significant impact on his ability to continue that profession insofar as it involves children”, referring to his profession as a nursing assistant for which he would require a Blue Card for work involving children – where it was apparent that the judge did not consider the matters prescribed by s12(2) PSA – where the judge referred to what he saw as the material considerations, but made no mention of the effect on the applicant’s employability – where s12(2) required that matter to be considered and the necessity for a court to give reasons for its decision required the consideration of that matter to be demonstrated in the sentencing remarks, if not clearly demonstrated during the argument – where it must be inferred that the matter was not considered – where the nature of the offence, as the judge said, fell “towards the lower end of the scale of seriousness” – where it involved a momentary touching – where as the judge also said, his offending had “some degree of immature sexual experimentation about it” – where the conviction will have an impact on his prospects of finding employment, because it will limit the work which he is able to do – where it cannot be supposed that he is a danger to children: the judge said that he had “rehabilitated from this type of conduct”. Leave to appeal granted. Allow the appeal. Vary the order made on count 2 of the indictment by ordering that a conviction not be recorded. Wassmuth v Commissioner of Police  QCA 290, 26 October 2018 Application for Leave s118 District Court of Queensland Act 1967 (Qld) (Criminal) – where a magistrate at Townsville issued a search warrant under the Police Powers and Responsibilities Act 2000 (Qld) (PPRA) authorising the search of premises at Cranbrook in Townsville – where a search warrant was executed at the applicant’s residence – where during the search, officers located a mobile telephone – where the officers asked the applicant for the access code – where the applicant did not provide the access code to police, and was charged with and convicted of an offence under s205 of the Criminal Code (Code) for disobeying a lawful order – where the warrant contained an order pursuant to s154(1) (a) of the PPRA requiring the applicant, in effect, to provide the PIN code to her mobile telephone – where without suggesting or implying anything concerning the character of the applicant, it is a commonplace investigative avenue of gathering evidence by police officers concerned with offending with respect to dangerous drugs to search and obtain details of the records held in mobile phones relating to phone calls, and more importantly text messages – where frequently it is these text messages that lay the foundation for the proof of offending, be it the possession of dangerous drugs (s9 Drugs Misuse Act 1986 (Qld)) (DMA), the supply of dangerous drugs (s6 DMA) or trafficking in dangerous drugs (s5 DMA) – where in seeking and obtaining an order from the magistrate directing the applicant to supply the information necessary to access the stored data on the phone plainly the police officer was searching for evidence of drug offending going beyond the instances alleged in the warrant – where the potential for self-incrimination by a suspect should that person answer questions acknowledging ownership or possession of the phone, or knowledge of the access information or familiarity with how to use the phone, is obvious – where the cases relied upon by the applicant shows that the privilege against self-incrimination is a right closely protected by the courts – where the consequence is that for a statute to abrogate the privilege clear and unambiguous intent must be shown usually demonstrated by words expressing a clear, unambiguous and irresistible intention that the privilege is abrogated – where significantly in the context of this case it was s205 that created the offence of which the applicant was convicted – where that section had nothing in express terms to say about the privilege of self-incrimination but importantly it expressly contemplated a “lawful excuse” – where s154 of the PPRA to like effect has no express statement touching upon the privilege – where the applicant had a lawful excuse for failing to provide to the police officer the access information to the phone – where that lawful excuse was her right to insist upon her privilege not to incriminate herself by demonstrating the extent of her knowledge of the information necessary to access the phone and its data, and thus to demonstrate she knew how to use the phone and that she had used it and its PIN code – where this conclusion is fortified by the amendments made by the Parliament subsequent to the events with which this court is concerned to insert provisions into the PPRA and the Code of which the former expressly refer to and in terms remove a person’s privilege against self-incrimination in this context – where it follows that the applicant, having a lawful excuse not to comply with the order contained in the search warrant was not guilty of the offence with which she was convicted. Leave to appeal granted. Appeal allowed and the order of the District Court made on 22 September 2017 be set aside. The conviction entered in the Magistrates Court at Townsville on 16 November 2016 be quashed and a verdict of not guilty be entered. Written submissions directed on costs. On appeal Prepared by Bruce Godfrey, research officer, Queensland Court of Appeal. These notes provide a brief overview of each case and extended summaries can be found at sclqld.org.au/caselaw/QCA. For detailed information, please consult the reasons for judgment.