Teelow v Commissioner of Police
[2008] QDC 234
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- Teelow v Commissioner of Police[2008] QDC 234
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Teelow v Commissioner of Police[2008] QDC 234
Teelow v Commissioner of Police[2008] QDC 234
[2008] QDC 234 | |
DISTRICT COURT | |
CIVIL JURISDICTION | |
JUDGE RACKEMANN | |
No 612 of 2007 | |
SCOTT TEELOW | Applicant |
and | |
COMMISSIONER OF POLICE | Respondent |
SOUTHPORT | |
DATE 18/09/2008 | |
ORDER |
HIS HONOUR: The appellant was convicted, on his own plea of guilty, of one count of possessing dangerous drugs, namely, methyl amphetamine, and was sentenced on the 3rd of December 2007 in the Magistrates Court at Southport. He was fined $900, and in default, 15 days imprisonment. He was allowed three months to pay. There is no challenge to that part of the sentence.
The appeal relates to the recording of a conviction. Under section 12 of the Penalties and Sentences Act, a Court may exercise a discretion to record or not record a conviction. Pursuant to subsection (2): "In considering whether or not to record a conviction, a Court must have regard to all circumstances of the case, including -
(a)the nature of the offence; and
(b)the offender's character and age; and
(c)the impact that recording a conviction will have on the offenders -
(i)economic or social well being; or
(ii)chances of finding employment."
The due exercise of a discretion at first instance will not be interfered with on appeal simply because the appellate Court may consider that the discretion might have been exercised some other way or even where the appellate Court would be inclined to exercise the discretion another way, if it was dealing with the matter at first instance. The appellant must show that the discretion miscarried in some way.
In this case, it was submitted that the learned Magistrate came to a conclusion which was not reasonably available. That is, it was contended that one could not reasonably come to the conclusion that the discretion should be exercised in any way other than favourably to the appellant.
The matters that were relied upon on, behalf of the appellant, were, in particular, the appellant's antecedents, his occupation and the nature and seriousness of the offence.
In that regard, the appellant is a 27 year old man who has two previous convictions, one of which was on the 15th of July 2002, for behaving in a disorderly manner (on 30 June 2002), and an earlier conviction, on 19th of April 1999, for possessing dangerous drugs (on 28 March 1999). In relation to each of those matters he was fined and no conviction was recorded.
The learned Magistrate had before him a reference which spoke in positive terms about the appellant's character. The appellant is a teacher. It was suggested that, because of his line of work, the recording of a conviction may have an impact on his chances of finding employment. It was conceded that, in his current employment, he would have to disclose the offence irrespective of whether a conviction was recorded or otherwise, but it was submitted that it may well have an impact on him if he seeks other employment within the same or a similar field.
In so far as the seriousness of the offence is concerned, it was pointed out that the amount of drugs involved was extremely minor. Particular reliance was placed upon a passage of the joint reasons for judgment of Thomas and White JJ in R v Briese [1997] QCA 10, where it was said, "A Court will be more easily persuaded against the recording of a conviction where there are no prior convictions or a very limited history and where the offence in question is a so‑called "victimless" crime."
It was submitted that the Magistrate ought to have been more easily persuaded against the recording of a conviction in this case because, while there were prior convictions, including one for a similar offence, the history was relatively minor and dated, and the offence, in this case, was of a kind which has been referred to as so-called "victimless" crime and involved a very small quantity.
Discerning the learned Magistrate's approach to the exercise of discretion in this case is not easy, because technical difficulties mean that there is no transcript. His Honour did however, make notes on the bench charge sheet. His Honour made notes which expressly referred to the quantity of the drug involved, the appellant's history, including the previous conviction for drugs, and in particular, the year that the appellant was dealt with for that offence. The notes also record the appellant's age, his occupation, and the positive reference. There does not appear to be any basis for concluding that the learned Magistrate failed to have regard to relevant considerations in the exercise of the discretion.
Whilst the factors to which the appellant refers are factors which meant that it was certainly within his Honour's power, in the proper exercise of discretion, to decide not to record a conviction, they do not lead to the conclusion that his Honour was required to do so, or that it was beyond a proper exercise of discretion for his Honour to have decided to record a conviction.
As the respondent pointed out, the appellant was 27 when he committed the offence, so he was no longer a very young man. The offence, although involving a small quantity, was committed against the background of previous offences, including an offence of a like nature.
Having regard to all the circumstances of the case, it was, in my view, at least open to the learned Magistrate to exercise the discretion in the way that he did, and I am not persuaded to interfere with his Honour's exercise of discretion.
The appeal is dismissed.