Brown v Martinovic[2006] QDC 422

[2006] QDC 422

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No BD731 of 2006

BRISBANE

DATE 04/12/2006

JUDGMENT

CATCHWORDS: Justices Act 1886 s. 222 - Weapons Act 1990 s. 51(1) - appeal by 17 year old first offender against recording of a conviction when he pleaded guilty to possession of a knife in a public place - a knife was in his pocket but he was not the one who produced a knife in an earlier melee involving two groups of youths - appeal allowed notwithstanding Magistrate's reasoned justification for the decision.

HIS HONOUR:  This is an appeal under s. 222 of the Justices Act 1886 by a 17 year old against the recording of a conviction by a Magistrate for an offence to which he pleaded of guilty of possession of a knife in a public place contrary to section 51(1) of the Weapons Act 1990.

The appellant was self-represented.  What was put up in extenuation by him was the following:

"I just wanted to add that the other group of males instigated us with racial abuse, calling us terrorists and fucking Muslims.  They did that twice and one of them initially grabbed me and then his friends pulled him back and then they proceeded down the road and then they started abusing us and we followed - after two times we followed them to see what the problem was and I was not the male that actually pulled the knife out.  The knife was in my pocket the whole time and was not pulled and there was no abuse on our side.  They instigated us and then we just walked away after." 

The prosecution accept that the appellant was not the person who had been seen to produce a knife during a confrontation between two groups very late at night in the Fortitude Valley area.  He was asked by police who were not on the scene - came on the scene later, whether he had a knife and produced the pocket knife or flick knife which underlies the charge. 

The appellant made no submissions to the Magistrate regarding the effect that the recording of a conviction might have on him. 

He accepts the $300 fine which was accompanied by an order for default imprisonment of five days.  The latest pronouncement of the Court of Appeal in respect of recording of convictions of which I am aware is Cay, Gersch and Schell, ex parte Attorney General [2005] QCA 467. 

That unsuccessful Attorney's appeal in respect of respondents who pleaded guilty to armed robbery but had no conviction recorded indicates that it is not essential for material to be placed before the court to establish that the recording of a conviction may have adverse effects on the prospects of offenders.  When a court considers its task in that regard under sections 9 and 12 of the Penalties and Sentences Act, to an extent, the approach (with which I respectfully agree), is that judicial notice or something similar may establish the potential detriment. 

The community tends to be extremely unforgiving of persons convicted of anything and, of course, the non-recording of a conviction does not mean, if an offender is back before the courts, that the offence for which no conviction was recorded will not be fully ventilated and be taken as an adverse factor.

I accept that the general approach is that it is for the original sentencing court to exercise the discretion in relation to recording or not of a conviction.  The number of appeals about it is indicative of the importance of this aspect of sentencing.  Whether those are prosecution appeals or defendants' appeals, they do not have a great record of success, but there is some record.

In this case it is clear that the Magistrate considered the question with some care.  He was conscious that the appellant was the first defendant before him on that day to have a conviction recorded after a succession of defendants who had been more fortunate.  The Magistrate, in explaining why he was "not minded to exercise my discretion in you favour by not recording a conviction" made specific mention of the generality of the Weapons Act provisions which, as he said, apply to everyone in the community of "whatever racial group, belief or background".

The care with which the Magistrate approached the issue will be noted.  It does not, in the passage in the respondent's submissions, in any event, acknowledge the youth of the appellant, his lack of criminal history and what I think is the important consideration, that the recording of a conviction was likely (even in the absence of evidence to establish it) to be something that would tend to blight the appellant's future. 

The earliest appeal which resulted in a conviction not being recorded rather than recorded as had happened at first instance was Lang [1992] QCA 251, a case of dangerous driving causing death, committed the day before the offender turned 15.  It may well have been the day when he completed 15 years of life, and was 15 as a matter of law.

He was, of course, dealt with as a juvenile.  In Catherine Condoleon 69 Australian Criminal Reports 573 a 21 year old convicted of 12 counts of supplying cannabis to younger people aged 15 to 17, a conviction had been recorded at first instance, indeed, imprisonment had been pronounced.  The Court of Appeal considered that no conviction should be recorded in that case. 

Again I suppose that one may be seen as special in that whether or not a conviction ought to be recorded became an issue for the first time on appeal, given that it inevitably accompanied the pronouncing of imprisonment by the Magistrate.  A more straightforward instance of the Court of Appeal allowing an appeal against a sentence where community based orders were imposed (defectively, as it turned out) is Seiler [2003] QCA 217.

That involved an offender pleading guilty on ex officio indictment to six counts of burglary and stealing and six counts of fraud.  The offender was 18 at the time of committing the offences.  The Court, for reasons set out by White J, considered that no conviction ought to be recorded.

I find this a difficult appeal.  I think the appellant would be justified in thinking, in light of what he had observed happen in the Court on that day (and more so if he learnt of the authorities such as the one I have been discussing), that he had been harshly dealt with.  The Magistrate was perfectly correct in his views about the seriousness of carrying knives.  His views reflected, although without quoting them, what Judge Forno QC said in Dunne v. Williams, Appeal 5893 of 2001, 29 April 2002 at page 4 of his reasons.

Parliament and the people are very concerned that a person who has a knife in a public place may be tempted to use it if some threatening situation should happen to arise:

"such as might occur to a 17 year old person in the street late at night."

His Honour was not impressed with arguments that the provisions about possession of knives were vague and uncertain and perhaps ambiguous, so that the appellant before him "ought to be given the benefit of that ambiguity."

Ms Gilbert (for the appellant) raises no issues of that kind.  I think that, given the offender's youth, clean record, non-production of the knife in the affray that happened make it a proper occasion for allowing the appeal, which I will do to the extent only of setting aside the order that a conviction be recorded; in lieu the order will be that no conviction be recorded.  It is also necessary to amend the title of proceeding so that the respondent is named as Robert Jason Brown rather than Commissioner of Police, as one finds in the notice of appeal.  Cover everything?

MS RANKINE:  Yes, your Honour.  I might just raise one point whilst the matter is still before the Court.  I may have taken the matter down incorrectly but from my recollection in your Honour's reasons you indicated that you were of the understanding that the Magistrate had not referred to his lack of prior criminal history or his‑‑‑‑‑

HIS HONOUR:  Yes.  Well, I limited that to what is set out.  All right.  I am grateful if you set the record straight; so, please go ahead.

MS RANKINE:  He did, in fact, refer to it a number of times‑‑‑‑‑

HIS HONOUR:  Yes.

MS RANKINE:  ‑‑‑‑‑and also the plea of guilty in his reasons on the first page in the first paragraph and in the second paragraph and in the third paragraph.  If that makes‑‑‑‑‑

HIS HONOUR:  Yes.

MS RANKINE:  ‑‑‑‑‑any difference to your Honour's determination, I'm not sure but the case is that he did refer to those matters‑‑‑‑‑

HIS HONOUR:  Yes.

MS RANKINE:  ‑‑‑‑‑in coming to his decision.

HIS HONOUR:  Well, I hadn't suspected the Magistrate of not having taken those matters into consideration.  I suppose in a way it comes down to a feeling that it's unjust which I certainly think the appellant would justifiably feel.  The closest case, I suppose, is Seiler.  I do not want to be critical of the Magistrate.  He may just have had too many bad young people before him on the day.  Thanks Ms Gilbert.

MS GILBERT:  Thank you, your Honour.