R v Waite[2017] QCA 270

SUPREME COURT OF QUEENSLAND

1. MORRISON JA:  I have read the reasons of Philippides JA and agree with those reasons and the order her Honour proposes.
2. PHILIPPIDES JA:  The applicant was sentenced on 14 September 2016 on her plea of guilty to one count of supplying the dangerous drug, methylamphetamine.  She was sentenced to a fine of $1,500 and a conviction was recorded.  The applicant seeks leave to appeal against sentence, her complaint concerning the recording of the conviction.  The applicant was 28 years old at the time of the offending and 30 years of age when sentenced.

Matters relied on by the applicant

3. At the hearing of the application, the applicant sought, and was granted, leave to amend the grounds of appeal in the Notice of Appeal as follows:
   1. The sentencing judge erred in failing to have regard to a delay of 14 months between the offence and the applicant’s arrest.
   2. The sentencing judge erred in finding that the Regulator’s need to know about the applicant’s offence was relevant in exercising his discretion to record a conviction.
   3. The recording of a conviction for such a minor example of this offence rendered the sentence manifestly excessive.
4. A ground of appeal raising failure to have regard to parity issues arising from the sentence imposed on the applicant’s husband was abandoned.  Rather, it was contended that that sentence was relevant as a comparative in respect of ground 3.

Circumstances of the offence

5. On 20 December 2013, the police commenced investigations targeting a particular individual (Smith) in relation to trafficking of methylamphetamine in the Caboolture area.  The applicant was captured on a recording device on 20 September 2014 attending a shed with Smith and telling him that she had given “the rest of the stuff from her hens” to her sister and brother-in-law who had called from a concert (the day before).
6. More than a year later in 2015, a search was conducted at the applicant’s premises.  The applicant voluntarily accompanied police and participated in a recorded interview.  In the interview the applicant accepted that she may have purchased methylamphetamine to share with her girlfriends but said she did not remember.
7. The sentence proceeded on the basis that the applicant had purchased methylamphetamine for use by herself and others at her hens’ party and had later, on 19 September 2014, supplied an unknown quantity that remained to her sister and brother‑in-law for their own personal use that night.  The charged offence related to the supply of the drug to her sister and brother-in-law.

Matters referred to by the sentencing judge

8. In sentencing the applicant, the sentencing judge noted that the offending concerned a single occasion of supply not involving profit.  His Honour had regard to the applicant’s antecedents, including her age and criminal history, which comprised a minor offence in May 2011 for unauthorised dealing with shop goods, for which a fine was imposed but no conviction was recorded.  His Honour took into account the applicant’s plea of guilty, which was entered at a very early time and facilitated the administration of justice, and the applicant’s cooperation with the authorities.  His Honour made reference to the applicant’s letter of apology and noted that the applicant had expressed remorse and had insight into her offending.
9. His Honour also observed that the applicant had taken some constructive steps towards her rehabilitation and to reduce her risk of reoffending.  The applicant had had counselling for drug use and had stopped using drugs.  She had negative urine drug screen tests between March and September 2014.  His Honour noted that the applicant had the support of her husband, family and friends and that her references spoke of her commitment to family and her constructive contributions to the community.
10. His Honour had regard to the need for a sentence to assist in rehabilitation, as well as to punish her in a way that was just in all the circumstances and proportionate to the nature of the offending, having regard to considerations of personal and general deterrence, denunciation and protection of the community.
11. In imposing sentence, the sentencing judge observed that the applicant worked with children in the childcare industry.  His Honour remarked that he had taken into account the impact that recording a conviction may have on the applicant’s economic wellbeing and chances of finding employment.  Those effects needed to be balanced against the Regulator’s and her employer’s interest in knowing the applicant’s history to ensure the safety of children they placed in her care.

The delay between the offence and the applicant’s arrest

12. The period between the date of the offence and the applicant’s arrest of 14 months was apparent from the schedule of facts and the respondent’s summary of the facts at sentence. In this case, neither counsel addressed the reason for the delay in submissions.  Nor were any specific submissions made by the applicant’s counsel that the delay should be considered as a further matter in mitigation.
13. The authorities demonstrate that delay itself is not automatically and inevitably a matter requiring mitigation of a sentence.  The burden is on the offender being sentenced to demonstrate the reasons as to why the delay in a particular case has resulted in some unfairness that should be taken into account in mitigation at sentence.^[1]  In R v L; Ex parte Attorney‑General,^[2] the Court made the following observations as to when delay may be considered as having a mitigating effect:

“It is difficult to see why lapse of time between commission of an offence and sentence should be a mitigating factor in sentence unless that delay has resulted in some unfairness to the offender.  There are two obvious cases in which that will be so and in which, consequently, it has been said that that unfairness should mitigate the sentence which should otherwise be imposed.

The first is where there is delay between the date of apprehension of the offender, or first indication to him by some person in authority that he is likely to be prosecuted and the date of sentence, in consequence of which the offender may have had his liberty curtailed or his reputation called in question or, at least, left in a state of uncertainty caused by a failure to prosecute his case more quickly… The rationale for mitigation in these cases is analogous to that for which, in jurisdictions where a right to a speedy trial is constitutionally or legislatively guaranteed, proceedings may be stayed because of such delay…

The second is where the time between commission of the offence and sentence is sufficient to enable the court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress.”

14. The second example concerns Street CJ’s statement in R v Todd,^[3] cited with approval by the High Court in R v Mill.^[4]  In R v Cox; R v Cuffe; R v Morrison,^[5] the following observations were made concerning that example:

“One would not ordinarily regard the fact that there has been sufficient time for rehabilitation to be demonstrated as itself unfair; the second reference in R v L can only be to its being unfair in such circumstances not to take that feature into account.  The focus must be on whether there is either a significant element of punishment in the delay because of the uncertainty and anxiety involved or the interval of delay is of sufficient length to make a law-abiding life in the interim a promising indication of rehabilitation.”

15.  In Cox,^[6]the Court recognised that it was not imperative that there be direct evidence that delay has had an impact through the protracted anxiety of the threat of prosecution, as, in a sufficiently obvious case, an inference to that effect may be drawn.
16. In this case, there was no evidence of the reason for the delay following the charging of the applicant.  The respondent submitted that it may be inferred that the delay resulted from the nature of the evidence implicating the applicant and/or that there were also charges relating to the applicant’s partner.  The respondent also submitted that, although the applicant was not charged immediately upon her criminality becoming known to the police, the intervening period could not be described as excessive.  In the circumstances of this case, I also do not consider that, in the absence of evidence as to the effect of the delay, the extent of the delay warrants an inference, of the kind referred to in Cox, to be drawn that would be relevant to mitigation.  The applicant argued that unfairness arose because she continued in her employment, which was not employment she had only recently committed to, and did not look to make alternative arrangements.  I do not consider there is much weight to that submission which, in any case, could have been made at sentence but was not.  Further, the applicant’s employment in the intervening period is to be viewed in the context that she continued in the same employment as when she committed the offence and would not call for particular consideration by demonstrated rehabilitation.  In my view, no unfairness to the applicant has been identified, nor has error been demonstrated in the sentencing judge’s approach in relation to the issue of delay.

Complaints going to whether the sentence is manifestly excessive by virtue of the recording of a conviction and the sentencing judge’s reference to “the Regulator” in the context of determining to record a conviction

17. The applicant had previously held a blue card.  In June 2016, the (blue card) Authority became aware of the applicant having been charged with the offence of supplying a dangerous drug.  As at the date of sentence, a decision had not yet been made regarding her suitability to retain or renew her blue card.  It was submitted on behalf of the applicant that, accepting the recording of a conviction would not preclude her from obtaining a blue card, it would “make it harder”.  A decision by the sentencing judge not to record a conviction would “significantly assist” the applicant’s prospects of obtaining her blue card.
18. As to the issue of the recording of a conviction and its impact on the applicant’s blue card status, the sentencing judge identified that the applicant was obliged to, in any event, disclose the result to the Regulator.  This was acknowledged by the applicant’s counsel, who informed his Honour that it was his client’s intention to do so once the sentencing proceedings were completed.^[7]
19. His Honour further remarked that the “real issue” was the balancing of the applicant’s economic and social wellbeing and chances of finding employment against the interest of her employer and the Regulator knowing of the conviction.  His Honour invited the applicant’s counsel to make such further submissions on that issue.  The applicant’s counsel indicated that he had no further submissions to make but reiterated the submission that his Honour should exercise his discretion not to record a conviction where the applicant was working and intended to continue working where she was for the remainder of her working life.^[8]  Counsel indicated that his instructions were that the applicant “had informed” the Regulator that she would notify it of the outcome.
20. The Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act) provides the framework for the risk management procedures involved in the consideration of eligibility for the issuing of a positive notice and a blue card.  Those procedures do refer to disqualifying offences, which preclude a positive notice from being issued to an applicant.  Offences under the Drugs Misuse Act 1986 (Qld) are not “disqualifying offences” within the meaning of the Act.^[9]  In addition to disqualifying offences, the regime under the Act contemplates a further tier of offence, being “serious offences”.  An offence of supplying a dangerous drug, absent a circumstance of aggravation, is not a “serious offence”, as defined in the legislation.^[10]  The guidelines for considering the grant of a blue card provide^[11] that, for someone convicted of an offence other than a serious offence, a positive notice must be issued, unless the decision maker is satisfied that it is an exceptional case in which it would not be in the best interests of children to issue a positive notice and blue card.  When considering if a case is an “exceptional case”, the assessment will also consider^[12] when the offence was committed, the nature of the offence committed and its relevance to working with children, as well as the penalty imposed, including the reasons given in imposing that penalty, if the applicant was not sentenced to imprisonment.  On the basis that the recording of a conviction is a “penalty”,^[13] it is at this stage that the decision as to the recording of a conviction becomes of note.  While one of the details that must be disclosed is whether or not a conviction was recorded,^[14] the legislation is silent as to the particular weight to be given to that factor in an assessment of whether there are exceptional circumstances.  The respondent thus submitted that the submissions made at sentence by the applicant’s counsel, that recording a conviction would make it harder for the applicant to obtain a blue card and not recording a conviction would “significantly assist” the applicant, put the position more strongly than it was in reality.
21. Before this Court, the applicant submitted^[15] that, because she must, when disclosing her conviction for the offence also disclose whether or not a conviction is recorded, the recording of a conviction is likely to have an impact on the applicant’s employment prospects and social wellbeing.
22. Relevant to the present case, the holder of a blue card has an obligation, in any event, to inform the Authority of a change in her police information, including her having been convicted of the offence of supplying a dangerous drug.  It is apparent from the submissions made that the applicant had continued working with her employer despite her blue card eligibility not having as yet been clarified.
23. It is accepted that the non-recording of a conviction for an offence would not preclude information about the offence being disclosed by police if requested by the Chief Executive Officer for a purpose under the Act.  This was not a matter expressly canvassed in submissions.
24. At all times when his Honour referred to the need for the existence of the offence being known, his Honour did so in the context of referring to both the applicant’s employer and to the Regulator.^[16]  In that context his Honour was expressing a view that the area in which the applicant worked was such that her having been convicted of the offence was a matter that should be positively known to her employer and the Regulator for their consideration, as opposed to his Honour being of the view that the consequences that may follow if the conviction were recorded/known tended against the recording of a conviction.  The sentencing judge’s consideration of such matters was appropriate.^[17]  The recording of a conviction cannot be said to have been done to put in place any particular review process.  It is evident that the sentencing judge was not erroneously of the view that a conviction needed to be recorded in order that the Regulator become informed of the proceedings or their result.  Moreover, the applicant had undertaken to make that disclosure.
25. The applicant was a mature woman.  While the offence was not the most serious example of the offence of supplying a dangerous drug, that offence is itself an indictable offence that is viewed seriously by the Courts and the community.  The offending related to a Schedule 1 drug and involved actual supply.  The remarks of the sentencing judge indicate that his Honour had proper regard to the matters required to be considered by s 12 of the Penalties and Sentences Act 1992 (Qld).
26. I am unpersuaded that the recording of a conviction rendered the sentence manifestly excessive.  The sentencing judge had a broad discretion.  No evidence was put before the Court that the applicant would be prevented from pursuing employment but rather that the process of obtaining a blue card may be made more problematic.  That is, there was no evidence that financial detriment would automatically follow on the recording of a conviction because the applicant would necessarily be precluded from having a blue card.
27. As the respondent submitted, that another sentencing judge may have exercised their discretion in favour of not recording a conviction against the applicant does not demonstrate error in the order that was made.
28. The matter of the sentence imposed on the applicant’s husband is also not of any assistance.  At the sentencing hearing, the respondent informed the sentencing judge that the applicant’s partner, Mr Waite, had also been charged as a result of the investigation and was sentenced on 23 August 2016 for two counts of supply and two counts of possession, for which he was sentenced to 15 months’ probation and 100 hours of community service with no conviction being recorded.  The prosecutor stated that that information was put before the Court “for completeness”.  The sentencing judge was expressly informed that no issues of parity arose thereby and that Mr Waite and the applicant were not parties to each other’s offending.  Mr Waite’s offending was not said to be related to the offence with which the applicant was charged.  The common view was thus that no issues of parity arose.  Nor can it assist as to the issue of whether a conviction ought to have been recorded in the applicant’s case.
29. I would dismiss the application for leave to appeal against sentence.
30. BROWN J:  I agree with the reasons for judgment of Philippides JA and the order proposed by Her Honour.