Phillips v Louw[2001] QDC 47

[2001] QDC 047

District Court of Queensland

Robin QC

Matthew Dominic Phillips v Constable Johannes Albertus Louw

Appeal No D4135 of 2000

MATTHEW DOMINIC PHILLIPS

CONSTABLE JOHANNES ALBERTUS LOUW

DATE 19/03/2001

JUDGMENT

HIS HONOUR: This is Matthew Dominic Phillips' appeal against the exercise by a Magistrate on 28 December last year of the discretion to record a conviction or not to record a conviction in the first mentioned way.

Mr Phillips pleaded guilty on that day to offences of possession of a dangerous drug and possession of a water pipe which he committed three weeks before, it seems on his 36th birthday. The Magistrate, it appears to me, was influenced by the convictions representing the second occasion on which Mr Phillips had been convicted of a minor drug matter. The earlier occasion was some 13 years or more in the past.

I agree with Mr Reid for Mr Phillips that the Magistrate had to determine for the purposes of section 12 of the Penalties and Sentences Act 1992 whether or not to record a conviction and that there was before the Magistrate material justifying an exercise of discretion against recording a conviction as referred to in section 12(2)(c)(i), in particular where it mentions the impact that recording a conviction “will have on the offender's social well-being”.

Mr Phillips' case before the Magistrate was confined to the prospect he would lose his ability to engage in the activity of pistol shooting which he has done for a number of years and which represents a significant part of his life. The Magistrate had before him a letter from the association or club through which Mr Phillips enjoys his hobby indicating that the club officers knew of the charges and Mr Phillips' intention to plead guilty and took the view that if a conviction were recorded Mr Phillips will be precluded for five years from pursuing his interest.

The letter I refer to speaks highly of him in his activities in the club, of his apparent sense of responsibility and the like. It appears to bespeak satisfaction in the minds of the club's officers that nothing about the circumstances of the offending would cause problems, whereas the recording of a conviction might. No conviction was recorded in relation to the 1980's offending.

Whether or not the Magistrate worked on the basis of a misunderstanding of just how automatic it was that Mr Phillips might be precluded from pursuing his interest of pistol shooting, I think this Court ought to devote some attention to the situation which by general assent is governed by the provisions of the Weapons Act. I think it is important to record these details in Mr Phillips' interest and in the context that Mr Perrett, who appeared for the respondent in the appeal, presented exactly these submissions.

The pistol club's approach, I think, depends on the view that the Weapons Act would work in such a way that if a conviction were recorded Mr Phillips would lose his licence to have pistols. Section 29 of the Weapons Act 1990 deals with revocation of licences. Subsection (1) says that an authorised officer may revoke the licence if satisfied, among other things, that “(d) the licensee is no longer a fit or proper person to hold the licence”. There is no relevant definition, in Mr Perrett's submission, of “fit or proper person”.

For what might be thought analogous purposes in other sections, specifically section 31, there is a definition of “fit and proper individual” which refers back to section 10. Section 10 applies to the initial issue of a licence which by subsection (2)(e) is limited to “a fit and proper person to hold a licence”. The risk apprehended to Mr Phillips appears from subsection (6) which enacts that:

“However, a person is not a fit and proper person to hold a licence if, in Queensland or elsewhere within the 5 year period immediately before the day the person applies for the issue of a licence -

1. (a)
   the person has been convicted of, or discharged from custody on sentence after the person has been convicted of, any of the following offences -

1. (i)
   an offence relating to the misuse of drugs;
2. (ii)
   an offence involving the use or threatened use of violence;
3. (iii)
   an offence involving the use, carriage, discharge or possession of a weapon; or

2. (b)
   a domestic violence order, other than a temporary protection order, has been made against the person.”

While there may be room for argument as to what is “an offence relating to the misuse of drugs”, for the purposes of this appeal it has been assumed the offences dealt with on 28 September last year qualified. Subsection (6), beginning with the word “however”, is, in my view, inevitably to be construed as a qualification attaching to subsection (5) which is:

“(5) For this section, in deciding whether a person is a fit and proper person to hold a licence an authorised officer must consider, among other things -

1. (a)
   the mental and physical fitness of the person; and
2. (b)
   whether a domestic violence order has been made against the person; and
3. (c)
   whether the person has stated anything in or in connection with the application for the licence the person knows is false or misleading in a material particular; and
4. (d)
   the public interest.”

ldquo;This section” is section 10.

I agree with Mr Perrett's submission that subsection (6) has no application for the purposes of section 29. What subsection 29 requires is a determination by the authorised officer of the question indicated in subsection (1)(d) on its own merits. The authorised officer in Mr Phillips' case as a matter of elementary fairness would be required to have regard to the high regard in which Mr Phillips is clearly held on the basis of their experience by the officers of the National Security Training Academy and VIP Shooting Club.

Speaking for this Court I can see no compelling reason at all why the possession of marijuana in a quantity well within the limit which applies from a point of view of matters being dealt with summarily, and which the Magistrate was satisfied was for personal use, would reasonably be taken to render the offender not a fit and proper person to hold a licence in the face of a contrary assessment by responsible citizens in the club who are presumably well-placed to assess these matters.

I say again, picking up Mr Perrett's submission in resistance to the appeal, that it would be completely wrong for there to be any automatic application by the authorised officer of the provisions of section 10(6). He or she would have to look at all of the relevant circumstances on the assumption that some reporting occurs under section 24 to raise the issue at all.

It should also be noted that there are appeal provisions in part 6 of the Weapons Act (section 142 and following) which would entitle Mr Phillips, if the worst occurs, to appeal to a Magistrate against an unfavourable determination by the authorised officer which I for one would certainly not be anticipating.

Notwithstanding the view as to the effect of the Weapons Act just set out, I consider that these circumstances are ones in which it would have been open to the Magistrate under section 12 of the Penalties and Sentences Act to determine not to record a conviction. As I said during the argument, I can recall in a general sense decisions of my own involving other kinds of offending where the benefit of a conviction not being recorded has been extended to offenders, particularly young ones, who have had the benefit on a previous occasion for offending of a similar kind.

The issue is not what I might have done, however, but whether an error appears in the approach of the Magistrate. Unsurprisingly Mr Perrett has referred to House's case, 55 CLR 599. He has the advantage of being able to produce a number of Court of Appeal decisions from earlier times when the Court of Appeal was often exercising the function that this Court is asked to today. Those cases have resulted in what I think has become a rule of practice which the Court of Appeal itself was pleased to see in the interests of consistency in cases like Mr Phillips'.

The rule of practice for the purposes of this case appears to be that the Court of Appeal was extremely loath to consider allowing an appeal against the recording of a conviction by a Magistrate for a second bout of offending under the Drugs Misuse Act. The cases include Jennings v. Carrigan, BC9404018, 21 September 1994 (in which much consideration was given to Qualischefski, CA 139 of 1994, 12 August 1994) and more recently Wheatley v. Williams, CA 79 of 1995, 24 April 1995. (See also Steer, CA 353 of 1995, 23 October 1995 and Jones v. Irvine, CA 535 of 1994, 27 March 1995.)

I agree with Mr Reid that cases such as Fullalove (1983) 68 ACR 486 indicate that it would have been a sound exercise of the Magistrate's discretion to record no conviction. In his determining to act in a different way I can see no error in his approach which would justify this Court in interfering and substituting its own view of how the discretion ought to be exercised.

I might mention that Mr Perrett has also referred to the more general approach in Beissell CA 425 of 1996 in which McPherson JA, with the concurrence of other members of the Court of Appeal, said:

“In my opinion it really misapprehends the purpose and function of provisions like section 12 to suppose that the provisions they confer are designed to enable the fact that criminal convictions have been sustained to be concealed from bodies or authorities whose duty it is to determine whether or not an applicant is a fit and proper person to be licensed under a particular statute.”

Mr Perrett also referred to Briese (1998) 1 QdR 487 page 491. The last reference of Mr Perrett's I will acknowledge here is to Hagan CA 442 of 1996, 15 November 1996, in which the Court of Appeal said at page 5:

“It is not appropriate that this Court should routinely fashion a special order with the object of defeating the operation of such a section.”

- referring in that instance to section 239 of the Corporations Law and also to Beissell.

For the reasons given the appeal will be dismissed.

It is perhaps appropriate to repeat that from this Court's point of view it would seem unfortunate that the dire consequences feared by Mr Phillips, which have induced him to bring the appeal, should come to fruition. The Court may not have all the information, but on the basis of what it has, he would be thought to be very hardly done by in that event.

The appeal is dismissed.