McGlade v Rolph[2005] QDC 367

[2005] QDC 367

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No BD850 of 2005

BRISBANE

DATE 07/11/2005

ORDER

HIS HONOUR: This is an appeal under section 222 of the Justices Act against sentences imposed by a Magistrate on 22nd of February this year, consequent upon the appellant's pleading guilty to four offences that occurred shortly after midnight on the 1st of January this year, a time which may very well form a good part of the explanation of what happened.

The offences were: driving whilst under the influence of liquor under section 79 of the Transport Operations (Road Use Management) Act 1995; an offence of unlicensed driving under section 78; an offence of failing to stop at a red traffic light under section 56 of the associated Road Rules Regulation 1999; and finally, an offence of failure to stop a vehicle for a prescribed purpose under section 51 of the Police Powers and Responsibilities Act 2000.

I accept, on the basis of the inherent likelihood of it, Mr Brennan's statement from the Bar table, that when Mr McGlade, who was self represented, took some advice from the duty solicitor at the Magistrates Court, which may have happened the previous day, he was told that all four matters were traffic matters with which the duty solicitor would have nothing to do.

That is an erroneous categorisation, although understandable in the circumstances in respect of the Police Powers and Responsibilities Act offence which Mr Brennan has asserted, without attracting any resistance from Mr Hungerford-Symes, gives his client a criminal record of a different kind from his traffic history.

Unfortunately, the now 21 year old appellant, who is in the final year of his law degree, has both. On 28th of January, 2003 he was fined $75 and $50 respectively for an offence under the Police Powers and Responsibilities Act of obstructing a police officer on the 27th of November, 2002,  and an offence under the Vagrants Gaming and Other Offences Act of using insulting words on the following date. It may well be those two matters were aspects of the same event. No conviction was recorded.

The appellant has a traffic history commencing on the 3rd of March 2002 with a speeding offence. There were similar offences in each of the next two months, leading to his finding himself on a "good driving behaviour period".  The next speeding offence occurred in May 2003, followed a couple of months later by an offence of failing to signal intention to change direction right.

Once again there was a "good driving behaviour period".  It is obscure what (if any) impact this had on the liquor-related offence. The appellant's reading was .134. It is understandable that the Magistrate described the traffic history as "appalling". 

The police were in the vicinity when the appellant, with his girlfriend in the vehicle, drove through a red light at the traffic lights on Moggill Road under the Freeway overpass. Fortunately, he was able to brake quickly enough to avoid collision with a vehicle crossing his path with the benefit of a green light. Once that vehicle had cleared, the appellant continued his journey inbound on Moggill Road.

The police prosecutor described to the Magistrate what happened next:

"In relation to the charge of failing to stop for police, police immediately pulled in behind the red Celica and activated their warning lights and siren. Continued driving inbound on Moggill Road, failing to pull over for police and swerving between both lanes, narrowly avoiding the concrete traffic island and lights. They continued to follow the vehicle on Moggill Road with their lights and sirens activated and advised police communications of the incident. Eventually the driver did pull over and he came to a stop after the police vehicle was manoeuvred slightly in front of the Celica and gradually forced it on to the side of the road. Police had been trying to stop the vehicle for approximately 1.2 kilometres."

...

There was no suggestion of speeding or a pursuit which threatened real danger, although understandably the Magistrate adverted to dire things which might have happened in the scenario as described to him. The appellant implored the Magistrate to be merciful in the context of expressing shame and remorse, which had previously been communicated by telephone to the arresting police officer. According to what he said, he acknowledged that:

"As a final year law student I realise that such conduct is unacceptable for a member of the legal profession."

No particular plea was made to the Magistrate that a conviction should not be recorded, still less was anything said about the embarrassment recording of a conviction might create for the appellant, not only in securing admission as a legal practitioner but thereafter in obtaining employment in legal areas or in matters to do with international travel.

The Court of Appeal had occasion to acknowledge the admission aspect in Mould v. Newland [2001] QCA 211. The Magistrate in the circumstances was not informed of that authority. I require no persuasion that for someone in the appellant’s situation, the recording of a conviction is a serious matter and may blight his prospects in various ways.

The appeal seeks that the Magistrate’s orders be changed only by the recording of convictions being interfered with. That is sought in respect of all four offences. Pressed, Mr Brennan acknowledged that the real concern is with the Police Powers and Responsibilities Act offence.

It is the case that this is an appeal against the primary Tribunal's exercise of discretion which succeeds only on the familiar bases acknowledged in House’s case 55 CLR 499. Cases such as Mould  in which there was an unsuccessful appeal against the original sentencer's declining to record a conviction are accordingly of little assistance - although that observation does not apply to the listing in the reasons for judgment of factors to be considered in circumstances where the recording of a conviction or not is the issue.

Examples of the Court of Appeal intervening so that a conviction should not be recorded have been located by Mr Brennan, in particular, Graden v. Dixon CA36 of 1993 BC 930 4071 and Seiler [2003] QCA 217.

In my opinion, the Magistrate’s discretion did miscarry in respect of the Police Powers and Responsibilities Act matter. I am not prepared to say, in light of the traffic history, the same in respect of the traffic matters. I am conscious of the previous matter under the Police Powers and Responsibilities Act about which the court knows little. As Mr Brennan says, the appellant’s previous offending was all relatively long in the past, particularly assessed against his youth.

I have frequently thought it appropriate in the interests of offenders’ futures in the community to distinguish among multiple offences by ordering a recording of convictions on some and the non-recording of convictions on others, for example, where recording of convictions on particular matters might work injustice by depicting particular matters as far more serious than they truly were.

In the present case I do not think any attention was directed towards the different considerations as between the conventional traffic offences and the other one. Although the Magistrate heard Mr McGlade describe himself as a final year law student, there does not appear from anything he said that he took that into account or indeed that he gave any attention whatever to whether or not convictions ought to be recorded. To the extent that the appellant’s personal circumstances were considered – were ventilated, that related to things such as his financial circumstances.

It might be noted here that the Magistrate did impose punishments in the form of a single fine in the amount of $1,500 with six months default imprisonment attached. There was a disqualification from holding a driving licence for nine months.

In the circumstances, where it does not appear that attention was devoted to the issue of recording convictions, I think it is open to this court to exercise its discretion in the matter which I do by leaving convictions recorded in respect of the traffic matters but not recording a conviction in respect of the Police Powers and Responsibilities Act matter.

That is not an indication to the appellant that he can disregard the matter. Not only will it continue to appear on printouts of his criminal history, it is clear that he will be under an obligation to disclose it to the relevant Board in connection with any application for admission as a legal practitioner. If he fails to do so he is likely to face severe embarrassment. I say that without suggesting he would have any intention of keeping the matter secret.