Mould v Newland[2001] QCA 211

COURT OF APPEAL

THOMAS JA

HELMAN J

ATKINSON J

BRISBANE

DATE 31/05/2001

JUDGMENT

HELMAN J:  This is an application under s.118 of the District Court Act 1967 for leave to appeal against a decision of a District Court judge handed down on 6 December 2000.

The applicant, Sergeant Steven Newland of the Indooroopilly Traffic Branch of the Queensland Police Force, brought a charge against the respondent under s.79 of the Transport Operations (Road Use Management) Act 1995 which was heard in the Brisbane Magistrates Court on 7 April 2000.  The respondent was charged that on 26 March 2000 at Brisbane she, while under the influence of liquor or a drug, drove a motor vehicle on Hale Street, Brisbane.  She pleaded guilty.  She had been driving a motor car in Hale Street when she was stopped for a random breath test and was found to have a concentration of alcohol in her blood of 192 mg of alcohol per 100 ml of blood.  After hearing full submissions on the appropriate sentence the presiding stipendiary magistrate convicted the respondent of the offence, fined her $1,000, disqualified her from holding or obtaining a driver's licence for ten months and exercised the discretion provided for in s.12 of the Penalties and Sentences Act 1992 by not recording a conviction.

That discretion was considered in R v. Brown, ex parte Attorney-General [1994] 2 Qd.R. 182.  In that case the Attorney-General unsuccessfully appealed against an order that no conviction be recorded against a young man twenty-three years old who had no prior convictions and who was, following a trial, convicted of dangerous driving causing death.  Two people had been killed in the collision that gave rise to the charge against him.  The dangerous element in his driving had been excessive speed.

In this case the respondent is a young woman who was twenty-one years old when she committed her offence.  She had no prior convictions and she pleaded guilty soon after being charged.  She had, shortly before the hearing in the Magistrates Court, begun work as a clerk articled to a solicitor.  His Worship accepted a submission made to him on her behalf that a recorded conviction could affect her chances of obtaining the consent of the Solicitors' Board to her entering into articles of clerkship. 

The applicant appealed against the decision of the magistrate to a judge of the District Court under s.222 of the Justices Act 1886 on the ground that an error had been made by the magistrate in ordering that no conviction be recorded.  His Honour was unable to detect any error in the way in which the discretion had been exercised and accordingly dismissed the appeal.  The applicant now seeks to come to this Court to re-open yet again the question whether a conviction should have been recorded against the respondent. 

Subsection 12(2) of the Penalties and Sentences Act provides:

"(2)In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including -

(a)the nature of the offence; and

(b)the offender's character and age; and

(c)the impact that recording a conviction will have on the offender's -

(i)economic or social wellbeing; or

(ii)chances of finding employment."

His Worship in his sentencing remarks left no doubt that he was conscious of the nature and gravity of the offence.  He began with these words,

"Yes, well, I am sure you realise yourself that it is very unusual for people to receive no conviction for this type of offence."

Later he said,

"I do not accept that you could possibly have been of the opinion that you were not intoxicated though, particularly having regard to this very high reading."

Having referred to other aspects of the case personal to the respondent, he reached the decision he did as to how his discretion should be exercised.  There is no doubt that a blood-alcohol reading of .192 per cent. shows a driver to have been adversely affected by the consumption of alcohol, but it does not follow that in every case in which an offender has been guilty of a serious offence circumstances personal to the offender cannot be relevant and decisive when the discretion provided for in s.12 of the Penalties and Sentences Act is being considered.  Were it otherwise the discretion provided for by the Act would have been eliminated in such cases.  To demonstrate that the discretion has not been eliminated in such cases one need look no further than R. v. Brown, ex parte Attorney-General. 

The alleged error in the sentencing of the respondent which the applicant seeks to pursue in this Court has already been given detailed consideration by the District Court judge.  His reasons for dismissing the appeal occupy fourteen pages of the appeal book.  This matter should now be regarded as closed, I think, unless it can be shown that there has been an error on an important point of principle which, if not corrected, could lead to error in other cases.  I can detect no such error in this case.  I therefore see no valid reason for permitting the appellant a further appeal. 

The application for leave to appeal should be refused.

THOMAS JA:  There are six main considerations why leave to appeal should be refused.  Firstly, it is an appeal in which the prosecution seeks to increase a penalty.  Secondly, the prosecution has already subjected the respondent to an appeal in the District Court seeking an increase of penalty and failed.  Thirdly, the District Court Judge presented a reasoned judgment which contains no obvious error or imbalance. 

Fourthly, the point under review, namely whether or not to record a conviction under section 12 of the Penalties and Sentences Act 1992, is a discretionary one.  Fifthly, that section, section 12, has received judicial consideration and there is no point of principle or practice which would be clarified by pursuit of the present appeal.  And sixthly there is no obvious injustice that this Court is called upon to redress. 

I agree both with the reasons that have been given by Mr Justice Helman and with his suggestion that the application be refused.

ATKINSON JA:  I agree with the reasons of both Justice Thomas and Mr Justice Helman and with the view expressed by the President in Riordan v. Grohl, CA No 152 of 2000 at page 6 where her Honour said:

"On the facts of this case the discretion could have been validly exercised either way but the applicant has not demonstrated any reason to justify the granting of leave to appeal in this case."

I agree that the application should be refused.

THOMAS JA:  The order of the Court is application refused.

...

THOMAS JA:  Application refused with costs to be assessed.