Sparks v Hughes[2005] QDC 228

DISTRICT COURT OF QUEENSLAND

1. [1]
   The Appellant, a male aged 43, was convicted before Inala Magistrates Court on 8 July 2004 on his own pleas of guilty of one offence of failing to supply a specimen of breath, and on of obstructing police. He was fined $900 on the first count, and $150 on the second, and disqualified from holding or obtaining a drivers license for 10 months. He was allowed six months to pay but on his solicitor’s immediate application Fine Option orders were granted and the fines were converted to 105 hours community service. He appeals only against the recording of convictions.

2. [2]
   The uncontested facts presented to the Magistrate were that at about 5:10pm on 10 February 2004 police from Acacia Ridge attended at the Appellant’s home “ … in relation to information about a possible drink driving offence”. They saw a vehicle parked in the garage of the home with the garage door in the upright position and the Defendant seated in the driver’s seat of the vehicle. When police approached the Defendant and attempted to have a conversation with him he refused to answer questions and became agitated and aggressive. They then had a conversation with his wife, who:

“… stated she’d seen the Defendant drive to this address in the vehicle, park the vehicle in the garage five minutes prior to police arrival. She stated that she’d walked up to the driver’s side of the vehicle, turned the ignition off and removed the keys from the ignition because she thought he was intoxicated.”

3. [3]
   The Defendant was required to submit to a roadside breath test but continued to argue and remain aggressive towards police. He was given numerous opportunities to provide a sample and eventually did so, which showed a reading in excess of the legal limit. He was then detained. As he was being placed in a police vehicle he attempted to grab a police officer’s firearm and punched and kicked at police and was placed in handcuffs. He continued to struggle in the rear of the vehicle.

4. [4]
   At Inala police station he was again required to provide a specimen of breath in the approved form and failed to do so after two requests. A certificate was then issued. He had no relevant previous history.

5. [5]
   The recording of a conviction is discretionary and the legislation lists factors relevant to that discretion: Penalties and Sentences Act 1992, s 12:

“12 Court to consider whether or not to record conviction

3. (1)
   A court may exercise a discretion to record or not record a conviction as provided by this Act.

3. (2)
   In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—

1. (a)
   the nature of the offence; and

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

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

1. (i)
   economic or social wellbeing; or

2. (ii)
   chances of finding employment.”

6. [6]
   In R v Briese, ex parte Attorney-General (1998) 1 QR 487 at 491 Thomas JA and White J said:

“… it is enough to note that the making of an order under s 12 has considerable ramifications of a public nature, and courts need to be aware of this potential effect. In essence a provision of this kind gives an offender a right to conceal the truth and it might be said to lie about what has happened in a criminal court … on the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation, and it may be thought to be a reasonable tool that has been given to the courts to avoid undue oppression.”

7. [7]
   At the commencement of this Appeal the Appellant sought and was, without objection from the Respondent, given leave under s 223 of the Justice Act in the form of affidavits from the Appellant and his wife. The gist of those affidavits is that the Appellant, an American citizen, had suffered mental illness featuring suicide attempts, hospitalisation and an ongoing need for psychiatric treatment since 2002. In January 2004 he suffered a psychotic episode and attempted suicide again and was treated as an in-patient at Princess Alexandra Hospital. On the morning of 10 February 2004 he experienced another psychotic episode and purchased a knife, and alcohol to give him the courage to kill himself. He drove away from his home and his wife contacted the hospital and police. About three hours later she heard his car pull into the garage and found her husband, in a closed garage, apparently attempting suicide via carbon monoxide poisoning. She called the police to tell them her husband had returned home and was attempting to gas himself. She swears that she did not complain to the police about drink driving.

8. [8]
   After being taken to the police station the Appellant’s condition was such that he was transported to Princess Alexandra Hospital for psychiatric evaluation, and he was admitted as an inpatient for two weeks.

9. [9]
   When the charges were first brought the Appellant consulted a solicitor and, subsequently, pleas of not guilty were entered, the solicitor advising he thought the Appellant ought be acquitted because of his want of mental capacity at the time. The matter was listed for hearing at Inala on 8 July 2004 but on that day, after consultation with the solicitor, the Appellant pleaded guilty “… with an explanation”.

10. [10]
    For the Appellant, it was submitted that on the material before the Magistrate a recording of convictions was manifestly excessive; or that the Court fell into error in failing to apply proper sentencing principles under the legislation; or, thirdly, that a miscarriage of justice occurred by reason of the Appellant’s solicitors’ failure to properly represent him on sentence.

11. [11]
    It is appropriate to address the last matter first because, if correct, it colours the circumstances in which sentencing occurred and brings into play factors which may have been relevant to the discretion. I was referred to cases in which attacks have been made upon the competence of lawyers representing accused persons at trial^[1]which contain reference to a test under which the question whether a miscarriage of justice has occurred by reason of the incompetence of those who represented an accused person at trial is addressed by asking whether there could be a reasonable explanation for the conduct complained of. In TKWJ v The Queen Gaudron J referred (at 134) to other terms sometimes found in the cases like “flagrant incompetence” and “significant faults”, but then said:

“But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel it was the result of “flagrant incompetence”, “egregious error” or the like”

12. [12]
    TKJW v R was amongst the authorities referred to by McMurdo J in R v Nudd in which he said at para [59] (Davies JA and White J concurring):

Although recent cases have expressed the need for assessment of whether the conduct of the trial could be reasonably explained, the ultimate question remains one of whether there has been a miscarriage of justice.

13. [13]
    These cases involved, of course, appeals brought in circumstances involving later criticism of the conduct of a trial by legal representatives. I was not referred to any authority concerning their application in the current arena, but it seems almost trite they would apply. For the reasons which follow, I am satisfied some aspects of the Appellant’s representation defy reasonable explanation, in the sense that there seems no apparent reason why matters arising from the Appellant’s personal circumstances and evidence relevant to the sentencing discretion were not put before the court. The cases cited above indicate it is not necessary, then, to go so far as to categorise the lawyer’s conduct in the strong terms referred to; indeed, to do so in the context of a busy Magistrates’ Court would be harsh.

14. [14]
    The criticisms of the Appellant’s legal representative are various; he failed to tell the Court the Appellant’s age, anything about his character, or his work history, or the circumstances of his arrival in Australia; or, importantly, anything about his history of apparently serious mental illness both prior to and after the commission of the offence, save in very short compass. The Appellant had provided the solicitor with a letter dated 25 February 2004 from his treating psychiatrist to the effect the Appellant was “… acutely distressed and unwell” at the time of the commission of the offences and required omission to hospital that day. The solicitor would not tender the letter which, he said, was inconsistent with the Appellant’s plea.

15. [15]
    Nor, the Appellant says, did the solicitor act upon instructions given at the bar table to the effect that part of the police version was incorrect: namely, that the police had been called to the house following information about a “… possible drink driving offence”. The mere fact the Appellant’s version differed from the Prosecutions’ statement of facts did not inhibit the lawyer from acting upon these instructions, even if the effect was to convert the matter into a contested sentence.

16. [16]
    Nor were any instructions taken from the Appellant about the possible affect the recording of convictions might have upon his prospects of employment, or necessary permission to remain in Australia. These gaps in the submissions made on sentence occur in the context of a general complaint from the Appellant (and his wife) that having been told by the solicitor on previous occasions there were reasonable prosects of defending the charges, it was only on the morning of the hearing the solicitor recommended pleas of guilty and instructions were taken in haste, and incompletely.

17. [17]
    I do not think it is necessary to make a finding whether or not these circumstances satisfy the test in TKWJ v The Queen because, when they are considered in conjunction with other aspects of the sentencing process revealed in the transcript (including the transcript of the learned Magistrate’s Reasons) it is impossible to avoid the conclusion that the discretion under s 12 has miscarried. Those factors include that the prosecution itself did not seek the recording of convictions; the Appellant had no criminal history; the fines (particularly the fine in respect of the second charge) were low compared with the available maximum penalties and signified the charges were not seen to be at the serious end of the scale; and, the Court was not told of the elements of mental illness which plainly governed the Appellant’s conduct at the time.

18. [18]
    Reference to these matters was required under s 9 (ii)(c), (d), (e), (f), (g) of the Penalties and Sentences Act 1992. Although it is not uncommon to find that on a busy court day Magistrates are simply too pressed to carefully traverse the matters which s 9 provides are relevant to the sentencing discretion, this was an unusual case and those factors were of considerable moment.

19. [19]
    There is also, in the transcript, an exchange between the learned Magistrate and the lawyer representing the Appellant during which the Court indicated that the possible affects of a conviction upon the citizenship prospects of a non-Australian resident were irrelevant to the exercise of discretion, a proposition for which neither counsel was able to advance authority. Indeed, MacKenzie J said in Wilmot v Saleri^[2]that:

“It is a factor in deciding whether to grant or refuse a visa under the Migration Act that past criminal conduct and general conduct show that the person may not be a person to whom a visa should be given.”

20. [20]
    In the same case, his Honour referred to the decision in Briese (supra) and statements there about the balance which needs to be struck between the interests of persons such as employers and licensing authorities, and the rehabilitation of offenders.

21. [21]
    Of course a mere possibility that a conviction may affect prospects of employment may not be sufficient^[3]and neither can it be assumed, as an automatic consequence, that a conviction will adversely affect a person’s employment prospects or exclude the person from a particular career^[4]but it is regrettable the Magistrate simply had no useful submissions about the matter in this instance.

22. [22]
    The compelling conclusion is that, had all of these factors been submitted and ventilated, the only proper exercise of the discretion would have involved a refusal to record convictions. Even without them, the question was borderline and, in light of the absence of previous convictions and the Appellant’s personal circumstances as they were presented the imposition of recordings of convictions does not impress as a proper exercise of the discretion. Once the additional factors revealed by the further evidence and the misdirection the court gave itself about possible affects on citizenship rights are taken into account, that conclusion is, again, compelling. For these reasons the Appeal in respect of each recording should be upheld.