Getawan v Queensland Police Service [2024] QCA 234 (22 November 2024)

Last Updated: 22 November 2024

SUPREME COURT OF QUEENSLAND

CITATION:	Getawan v Queensland Police Service [2024] QCA 234
PARTIES:	GETAWAN, Henry Raymond (applicant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	CA No 150 of 2023 DC No 2 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Townsville – Unreported, 3 August 2023 (Coker DCJ)
DELIVERED ON:	22 November 2024
DELIVERED AT:	Brisbane
HEARING DATE:	12 November 2024
JUDGES:	Mullins P and Flanagan and Brown JJA
ORDERS:	The applicant’s oral application for leave to adduce further evidence is refused. Leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty in the Magistrates Court to one charge of serious assault occasioning bodily harm whilst adversely affected in a public place, one charge of obstructing police while adversely affected in a public place and one charge of possessing tainted property – where the offending occurred while the applicant was affected by serotonin syndrome following his voluntary consumption of drugs – where the total penalty imposed by the Magistrate was 15 months’ imprisonment – where the applicant appealed to the District Court pursuant to s 222(2)(c) of the Justices Act 1886 (Qld) and the District Court judge dismissed the appeal – where the applicant contends that the charges should have been dismissed due to his ‘insanity’ – where the applicant contends that the Magistrate and District Court judge did not have regard to his mental and physical health at the time of the offending when considering the sentence – where the applicant made an oral application to adduce further evidence in relation to his physical health at the time of the offending District Court of Queensland Act 1967 (Qld), s 118 Justices Act 1886 (Qld), s 222 McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, cited R v Gerhardt (2019) 3 QR 48; [2019] QCA 283, cited R v RBE (2021) 8 QR 358; [2021] QCA 146, cited
COUNSEL:	The applicant appeared on his own behalf S R O’Rourke for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

[1] MULLINS P: I agree with Brown JA.
[2] FLANAGAN JA: I agree with Brown JA.
[3] BROWN JA: This is an application for leave to appeal pursuant to s 118 of the District Court of Queensland Act 1967 (Qld). The applicant is Mr Getawan, who now chooses to go by the name of Israel Judah.
[4] On 12 December 2022, the applicant pleaded guilty in the Magistrates Court at Townsville to:

(a) one charge of serious assault occasioning bodily harm whilst adversely affected in a public place;
(b) one charge of obstructing police while adversely affected in a public place; and
(c) one charge of possessing tainted property.

[5] On the same date, the Magistrate imposed a head sentence of 12 months’ imprisonment on the serious assault charge, which was to be served concurrently with a sentence of two months’ imprisonment on the obstruction charge. In respect of the charge relating to the possession of tainted property, a further term of four months was imposed, however, all three were to be served concurrent with each other. The Magistrate imposed a community service order for a total of 40 hours on both the serious assault and obstruction charges.
[6] The applicant was also to be dealt with for breach of an earlier suspended sentence imposed by the Magistrates Court at Brisbane on 1 September 2020, given that the offending giving rise to the serious assault charge occurred only a few weeks prior to the conclusion of that suspended sentence. The sentencing Magistrate activated the whole of that suspended sentence, which was three months suspended, to be served cumulatively upon the 12-month head sentence imposed in relation to the serious assault charge.
[7] The total penalty imposed by the Magistrate on 12 December 2022 was 15 months’ imprisonment. However, 125 days of presentence custody was declared, and the applicant was ordered to be released immediately on parole.
[8] The applicant appealed to the District Court pursuant to s 222(2)(c) of the Justices Act 1886 (Qld). The appeal was heard by Judge Coker on 26 May 2023. The appeal was dismissed. It is from that decision the applicant now seeks leave to appeal in relation to the charges of obstructing police and the serious assault charge. There is no complaint pertaining to the sentence for possession of tainted property.
[9] I will briefly set out an overview of the facts relating to the obstructing police and serious assault charge and the decision of the Court below.
[10] On 7 August 2022, the applicant was intercepted by police. Believing he was suffering a serious medical episode whilst adversely affected by a drug, police requested assistance from ambulance officers. In order to assess the applicant, he needed to be removed from his car. The complainant police officer entered the car in order to do so and the applicant bit him on the right triceps area, which later resulted in bruising. He continued to behave violently so he was transported to hospital in a secure police vehicle.
[11] Whilst at the hospital, he was placed on an emergency examination authority. Doctors advised that he was suffering ‘serotonin syndrome’ which is a serious drug reaction. He suffered serious health complications. When he was ultimately arrested, he told police he could not recall anything.
[12] As the applicant pleaded guilty to the offending in question, the appeal in the District Court is limited by operation of s 222(2)(c) to the sole ground that the punishment was excessive or inadequate. The appeal was heard by Judge Coker by way of a rehearing pursuant to s 223 of the Justices Act.
[13] The applicant was self-represented in the District Court appeal proceedings and left the “grounds of appeal” section of his notice of appeal blank. His Honour, however, allowed oral submissions to be made by the applicant to identify his grounds of appeal.
[14] His Honour noted from the material that it was “clear” that the applicant contended that the sentence imposed by the Magistrate was excessive, however, he also found that it had become increasingly apparent that there was a live issue as to whether a conviction should have arisen.
[15] As to whether there should have been a conviction, Judge Coker noted, “Quite simply, the appellant suggests that whilst he entered a plea of guilty, it was a situation where it should be the case that the ‘charges should be dismissed’”. His Honour stated that, in particular, the applicant “notes those issues to which I have already made reference, including a mental health assessment, intoxication from illicit drugs, to the extent where he was seeking to commit suicide when parked at the service station where the offending in relation to obstruct police and the assault occasioning bodily harm occurred”.
[16] Having analysed the Magistrate’s interactions with the applicant, Judge Coker found that it was clear that “as the matter progressed there was an acceptance or understanding on the part of the appellant that the matter was proceeding upon his plea of guilty and that he understood the plea of guilty.” Judge Coker concluded that the case was not “one of those extremely rare circumstances where it might be suggested that the plea of guilty was not one entered by free choice or with a clear understanding of the circumstances that gave rise to the count.”
[17] His Honour then considered whether the sentence imposed was excessive, including having regard to the applicant’s mental state at the time of his offences. Judge Coker reviewed the various factors taken into account by the learned Magistrate in terms of the nature of the offending, the circumstances in which it occurred, the applicant’s criminal history against a background of abuse and mental health issues and the cases referred to by the Magistrate. His Honour noted the Magistrate had considered each of those decisions in comparison to the present case. After identifying the matters in common and points of distinction, the Magistrate imposed a lower sentence than most of the cases to which he had been referred given the applicant’s offending was less serious. Judge Coker concluded that the penalty imposed by the Magistrate fell within the ambit of what could be accepted as a reasonable penalty in all of the circumstances. Accordingly, he dismissed the appeal.
[18] The applicant seeks leave to have the charges of obstructing a police officer whilst adversely affected in a public place and serious assault causing bodily harm whilst adversely affected in a public place “dismissed” due to his “insanity” at the time of the offence. He otherwise contends that medical evidence was not taken into account as a mitigating factor and a “fairer” sentence should have been given. The applicant makes no complaint in relation to the conviction and sentence imposed for possession of tainted property, so the sentence for that offence is not required to be considered for the purpose of this application.
[19] The present appeal is stricto sensu, in respect of which this Court’s sole duty is to determine whether error has been shown on the part of the District Court on the basis of the material before the District Court.^[1] This Court is not engaged in a rehearing.
[20] I have determined leave should not be given for the following reasons, bearing in mind that leave is not given lightly given an applicant has already had two judicial hearings.^[2]
[21] In his application for leave to appeal, the applicant refers to the sole ground of appeal, namely that the Magistrate and District Court judge failed to take into account a particular “Mental Health Assessment” in the course of their sentencing remarks. It would appear he is referring to the “Transfer of Care document” which was exhibit 9 in the Magistrate Court’s proceedings. He also refers to the “Doctors Diagnosis on QP9” as not having been taken into account. It would appear that the applicant is referring to the sentencing schedule, which was exhibit 1.
[22] The applicant’s principal complaint is that the Magistrate and Judge Coker did not take account of his mental state at the time of his offending against the police on 7 August 2022 or his history of mental health.
[23] It is evident that both the Magistrate and Judge Coker had regard to the relevant matters.
[24] In the case of the Transfer of Care documents, the Magistrate had referred to the applicant’s mental health issues which had been diagnosed and which were “contained in the transfer of care documents” and which the applicant had described to him. Judge Coker referred to the applicant’s medical and mental health issues, which were described by the applicant to the Magistrate, in paragraph [22] and paragraph [42] of his reasons.
[25] The sentencing schedule, which contained statements as to the applicant’s mental health issues on 7 August 2022, were plainly a matter to which his Honour had regard, as set out particularly in paragraph [26] of his Honour’s reasons.
[26] As to the contention that the charges should have been dismissed due to the applicant’s insanity, the applicant did not contest the charges and entered a plea of guilty. Whether that plea of guilty had truly been entered by the applicant was carefully considered by Judge Coker and his Honour found that there was no error in in the Magistrate proceeding on the basis of that plea.
[27] The applicant has not demonstrated any basis upon which this Court should find error in his Honour’s conclusion that the applicant’s pleas were freely given and that he understood that plea of guilty. As Judge Coker found, the applicant confirmed his pleas of guilty to the Magistrate and declined an invitation to withdraw the pleas of guilty.
[28] There was therefore no error in not dismissing the charges. In any event the applicant appears to have a misunderstanding that he had a defence of insanity available to him and could have contested the charges on that basis.
[29] Both the Magistrate and Judge Coker noted that the applicant had intentionally taken drugs and that his behaviours in relation to the police arose as a result of his consumption of drugs.
[30] Judge Coker in his reasons dismissing the appeal noted that “whilst the ingestion of the illicit substances provides some explanation for behaviour of the appellant, it does not provide any excuse and certainly does not provide any basis upon which it could be suggested that there is an absolute excusal of the criminal behaviours that brought the appellant before the Court”. In this regard his Honour was not in error. Even if in that intoxicated state the applicant suffered unsoundness of mind or suffered from “insanity” in his offending against the police, given his intoxication was intentional and voluntary, Judge Coker was correct that it did not abrogate criminal responsibility for the offences given s 28 of the Criminal Code (Qld). Nor does it generally serve as a mitigating factor. His Honour was not in error in that regard.
[31] Notwithstanding the serious medical episode that the applicant experienced after taking a large amount of drugs which affected him at the time his offending against the police occurred, the medical evidence did not therefore exonerate the applicant from criminal responsibility for the offence.
[32] The applicant seeks to adduce further medical evidence before this Court as to his condition on 7 August 2022. That evidence consists of some medical notes and pathology results which appear on the face of the document to have been from blood tests taken on 7 August 2022. It was attached to an affidavit filed 1 November 2024. While no application was filed the applicant confirmed he wished to adduce that evidence. The pathology report was the focal point of the applicant’s oral submissions. In particular, he pointed to a high glucose level of 19.1 which he contends raises another explanation for his conduct on 7 August 2022, namely that he was experiencing hyperglycaemia, not a reaction to a drug overdose.
[33] That was not in evidence before either the Magistrate or the District Court. The applicant has obtained it since then, although it may have been available at the time of the hearings. The pathology report itself is not evidence of what the applicant in fact wishes to put before the Court, namely that his behaviour on 7 August 2022 was the result of a hyperglycaemic episode, which would need to be the subject of medical opinion. There was no medical opinion in the notes referring to the applicant suffering hyperglycaemia. While the applicant states he has been a diabetic for a long period of time, he is not in a position to provide that evidence. The application is therefore refused.
[34] This Court has to determine whether error has been shown on the basis of the material before the District Court. In that regard, a schedule of facts was tendered before the Magistrate, without objection from the applicant, which referred to the police having been advised he was suffering serotonin syndrome as a reaction to drugs. While that schedule contained medical opinion, it was the accepted basis upon which the sentence proceeded.^[3] It was not contradicted or challenged by the applicant in his submissions to either the Magistrate or Judge Coker and it was therefore proper for the schedule to be used as the factual basis for sentence.^[4]
[35] The applicant in his submissions to the Magistrate described his poor mental state at the time. He explained he had taken a cocktail of drugs, described the symptoms he had suffered in response and said that he was fighting for his life. Similarly, the applicant accepted before Judge Coker that he had taken a massive cocktail of drugs with at least a gram of methylamphetamine and that had caused his offending behaviour. He relied on the description of his state and medical condition in the schedule of facts to contend that he was suffering serotonin syndrome. Based on the material before Judge Coker, there was no basis upon which his Honour should have made a different finding as to the reason for the applicant’s medical condition.
[36] The applicant also complains of lack of transcripts “or other relevant court documents” which are said not to have been sent to the applicant, he does not identify what steps he took to obtain them or how they have created any unfairness which can be said to have given rise to error.
[37] Nor has the applicant demonstrated any error in Judge Coker’s determination that the sentence was not manifestly excessive. His Honour acted in accordance with established principle. The medical episode and its explanation for the applicant’s behaviour on the day was considered as part of the overall circumstances but as stated by the Magistrate and Judge Coker it offers an explanation but not an excuse for his behaviour. It was accepted by the Magistrate and Judge Coker in his review that, notwithstanding his lengthy criminal history, it did not show that the applicant had any significant history of violence. Judge Coker also observed that the Magistrate had taken into account the exposure of the applicant to abuse and his mental health issues as being of some significance in terms of his long criminal history.
[38] As to the cases provided to the Magistrate upon sentence it was accepted that they were overall more serious cases than the applicant’s offending which resulted in a sentence of twelve months being imposed not eighteen months. The cases had been carefully analysed by the Magistrate as found by Judge Coker.
[39] Considering the applicant’s lengthy criminal history, even though it did not include serious violence, and the nature of the offending and the circumstances in which it occurred, Judge Coker was not in error in considering that a sentence of imprisonment in the order of 12 months’ imprisonment, cumulative upon the applicant’s activated suspended sentence, was within the proper exercise of the Magistrate’s sentencing discretion.
[40] There are no reasonable arguable errors which justify the granting of leave.
[41] In those circumstances I would decline to grant leave to appeal.

Orders

[42] I would order:
1. The applicant’s oral application for leave to adduce further evidence refused.
2. Leave to appeal refused.

^[1] McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 612 at 624-5 [36].

^[2] See McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 612 at 625-6 [39].

^[3] R v RBE [2021] QCA 146; (2021) 8 QR 358 at 366 [22].

^[4] See R v Gerhardt [2019] QCA 283; (2019) 3 QR 48 at 61-2 [56]- [58].

Authorities Cited3

Referred to (3)