The Queen v Johnson[1997] QCA 21

McPHERSON JA:  The application before us is made by Clinton Ross Johnson to extend the time within which to apply for leave to appeal against the sentence or sentences imposed in the Magistrates Court at Cairns.

The application, on one view of it, was filed some 13 or 14 days out of time; but the applicant claims that he lodged or gave instructions for the lodgment of an application for leave to appeal against sentence, and that it appears to have gone astray. Inquiries by the Crown have not succeeded in ascertaining precisely what happened, because the relevant file is missing from the Lotus Glen Centre.

Turning from the matter of explanation for the lateness of the application to the question of the sentence itself, the material discloses the following matters. The applicant was first dealt with on 12 September 1996 for offences of  possession of a dangerous drug on 29 August 1996, and giving a false name on that occasion; in addition, he was also charged with possession of a dangerous drug and possession of a pipe on 30 July 1996, and taking goods unlawfully from a shop on 4 September 1996.

He came before the Court in respect of those offences on 12 September 1996, when he was convicted and fined, with a default penalty of 16 days, for the first series of offences. For the offence committed on 4 September he was convicted and fined $150.

Thereafter and having (contrary to what might have been hoped) not learned his lesson, he proceeded to commit an offence of breaking, entering and stealing on 16 September, as well as being found in possession of a pipe and amphetamine. On 21 September he was in possession of lysergic acid and, again, amphetamine.

When on 2 October 1996 he pleaded guilty in the Magistrates Court at Cairns to those offences, an effective sentence of 10 months was imposed, consisting of a sentence of imprisonment for six months in respect of the offences committed on 16 September 1996, and of a further four months in respect of the other offence. The result was, as I have said, that he sustained a sentence of 10 months imprisonment against which this application for leave to appeal is now maintained.

I have come to the conclusion that the sentence was, in all the circumstances, severe, particularly when regard is had to some of the mitigating features involved. It is true that he committed the later set of offences shortly after he had been dealt with for the other matters to which I have referred; but he was at the time a young man of 24 years of age and, apart from these offences, he had a clear record. He was in a position of some difficulty financially, and claims that he committed the most serious of these offences, which was the breaking and entering, in consequence of inducements offered by someone who owed him money.

From the time of his sentencing, which in respect of the matters now before us took place of 2 October 1996, he has served three months of the sentence imposed while in actual custody, and has served a further two months or so on home detention. He is in a position now where he expects to be considered for release on parole in a week, or perhaps a fortnight, from this date.

We have had the opportunity of speaking to him here, where the applicant appeared in person, and we have explained to him the conditions under which we might be prepared to allow an appeal against his sentence. They would involve his being placed on probation for a period of some 12 months subject to the usual terms and conditions which apply in such a case.

Having had it explained to him that, from the point of view of inconvenience, he might be better off undergoing parole rather than probation, the applicant has, to his credit, chosen to submit to probation.

I would, therefore, make the following orders conditional upon his consenting to the probation order that I think should be made. Those orders are these.

First, that the time within which to appeal against sentence should be extended. Leave to appeal against sentence should be allowed, the sentence should be set aside and the applicant should be admitted to probation for a period of 12 months on the usual terms and conditions applicable to such orders, which are to be found in the form in the schedule to the Act.

The terms and conditions are these, Mr Johnson:

 you will be under the supervision of a probation officer;

 you must within 72 hours report to the community correction officer in Cairns;

it is a requirement of that order that you commit no further breaches of the law during the period involved, which is, as I say, 12 months, and that 12 months will run from today.

Now, you will be subject to the supervision of the probation officer, who can give you reasonable instructions as to what you are to do; provided his instructions are reasonable, which is what we would expect, you are bound to obey them. If you commit breaches of the probation order you are liable to be brought back before the Court and dealt with again for the offence or offences for which you are being granted probation.

The whole object, as I say, is to ensure that you commit no more offences and that you are given the assistance and guidance of a probation officer during this period.

With those matters in mind I would set aside the sentences in respect of those offences for which you were sentenced in the Magistrates Court, Cairns on 2 October and substitute the probation order to which you are asked to consent.

What about this question of recording convictions?  Is there a discretion in the Court to say whether the conviction should be recorded or not?

MRS CLARE:  That's so, under section 90 of the Act.

DAVIES JA:  Will the conviction recorded affect the other offences, Mrs Clare?

MRS CLARE:  The earlier offences, no conviction was recorded.

McPHERSON JA:  Mr Johnson, the question has been raised of whether convictions should be recorded in respect of the offences for which you were sentenced on 2 October. That is possession and break and enter to put it broadly. What do you say about that?  Is it something that is likely to affect your employment, do you think?

APPLICANT:  Certainly with my future ambitions, I would like to travel overseas and these convictions would have some hold on that.

McPHERSON JA:  From what I can gather from what you are saying, a conviction would probably not affect your apprenticeship, if you still have it, in the area of being a chef. Is that correct?

APPLICANT:  In some areas it might affect it but I went through a bad spot in my life. It won't continue that way.

McPHERSON JA:  I suppose it would do you no good for a future employer if he found that you had burgled a restaurant; but the object of not recording the conviction is not really to enable you to deceive future employers, or at least that's my view.

Mrs Clare, do you have anything to say on the subject?  Our inclination is not to record the convictions. In part, because we have gone to the length of giving him probation, and in part because he has served six months or five months and he perhaps was a bit unlucky in that regard.

MRS CLARE:  Yes, I couldn't argue against those features weighing against the recording of a conviction.

McPHERSON JA:  All right. Well, this must be your lucky day, Mr Johnson. We will also order that convictions not be recorded in respect of the offences for which you were sentenced on 2 October 1996 in Cairns.

Is there anything further we need do?  I have not actually received your consent now to our putting you on probation. Are you agreeable, having heard what I have told you about probation, to undergoing the period of probation which we've mentioned.

APPLICANT:  Yes, Your Honour, I agree.

McPHERSON JA:  We will order accordingly. Nothing further needed, Mrs Clare?

MRS CLARE:  No, as long as all of the matters which were dealt with on that day are the subject of the appeal and they seem to be. I can't see that there's anything else that needs to be done.

McPHERSON JA:  Yes. It is conceivable, is it, that there might have been another offence which because of the informality of the record we might have missed.

MRS CLARE:  That's so.

McPHERSON JA:  I might just check that with you. Are you reasonably sure that we've covered all the offences, Mr Johnson, for which you were dealt with on 2 October.

APPLICANT:  Yes.

McPHERSON JA:  You are pretty sure there aren't any more because they won't be covered by this order if there are any more. Have we got anything better in the record there?  Let's have a look at that, that might work.

FRYBERG J:  A total of six offences, Mr Johnson, is that right?

APPLICANT:  Yes, that's right.

McPHERSON JA:  I think if I describe them in the terms I have, namely the offences for which you were sentenced in the Magistrates Court at Cairns on 2 October 1996, we would have covered all of them. That is how we will dispose of that matter.

DAVIES JA:  I agree.

FRYBERG J:  I agree.