Thompson v State of Queensland
[2009] QDC 242
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- Unreported Judgment
- Thompson v State of Queensland[2009] QDC 242
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Thompson v State of Queensland[2009] QDC 242
Thompson v State of Queensland[2009] QDC 242
DISTRICT COURT OF QUEENSLAND
CITATION: | Thompson v State of Queensland [2009] QDC 242 |
PARTIES: | Martin Neil THOMPSON (Appellant) and State of Queensland (Respondent) |
FILE NO/S: | D 108/09 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Townsville |
DELIVERED ON: | 30 July 2009 |
DELIVERED AT: | Townsville |
HEARING DATES: | 22 & 24 July 2009 |
JUDGE: | Durward SC DCJ |
ORDERS: | 1. Appeal allowed.2. Sentence imposed on 16 April 2009 set aside and in lieu thereof the appellant is to be re-sentenced as follows.
3. I make no order as to costs. |
CATCHWORDS: | APPEAL – SENTENCE - whether term of imprisonment wholly suspended with convictions recorded manifestly excessive – serious property offending – 9 day crime spree – university student – 18 years age – no previous criminal history – good character – employed – early plea – remorse – restitution made in full – rehabilitation – unlikely to re-offend – professional career prospects. RECORDING OF CONVICTIONS – Section 12 (2) Penalties and Sentences Act 1992 – proper approach to exercise of discretion – review of specific authorities. Hughes v Hopwood (1950) QWN 21; House v R (1936) 55 CLR 499; R v Briese; ex parte Attorney-General (1988) 1 Qd R 487; R v Brown; ex parte Attorney-General (1994) 2 Qd R 182; R v Bain (1997) QCA 035; R v Pahoff (2002) QCA 525; R v Cay, Gersch & Schell; ex parte Attorney-General (Qld) (2005) QCA 467; R v Ndizeye (2006) QCA 537. |
COUNSEL: | Ms V Keegan for the appellant Ms C Kelsey for the respondent |
SOLICITORS: | Anderson Telford Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent |
THE SENTENCE
- [1]On 16 April 2009 the appellant was convicted on pleas of guilty, in the Magistrates Court at Townsville, to imprisonment for 12 months wholly suspended for an operational period of two years; and ordered to pay restitution in the sum of $3,457.75. The charges were 23 indictable offences involving burglary and property offending. Convictions were recorded.
- [2]The appellant was also convicted of two summary offences and one traffic offence and fined in respect of each. No convictions were recorded on the two summary offences. A conviction was recorded on the traffic offence.
GROUNDS OF APPEAL
- [3]The appeal was made in respect of the indictable offences only. The grounds of the appeal were:
“1. That the learned Acting Magistrate failed to have regard to the sentencing principle that a sentence of imprisonment should only be imposed as a last resort; and
2. That the learned Acting Magistrate placed insufficient weight on the exceptional circumstances namely; the applicant’s youth, the lack of any prior criminal history and prospects of rehabilitation.
- [4]The issue on the appeal was primarily, in effect, that the sentence was manifestly excessive and that convictions should not have been recorded.
THE APPEAL PROCEEDING
- [5]The appeal was heard on 22 July 2009 and I foreshadowed that I would allow the appeal and re-sentence the appellant. In so far as the recording of convictions was concerned, I reserved that issue for further consideration.
- [6]On resumption of the appeal on 24 July 2009 I gave oral reasons which included a re-sentencing of the appellant. The sentences imposed by me were non-custodial orders. I did not record convictions. I stated that I would provide a written judgment in respect of the issue of non-recording of convictions. The oral reasons given on 24 July 2009 as transcribed and revised may be read with this judgment.
APPELLANTS’ ANTECEDENTS
- [7]The appellant had no criminal history. He was 18 years of age. He had good antecedents and character and had been a high achiever at high school through to grade 12. He had been a student at university, having commenced a course in medicine. He committed the offences over a period of nine days in the company of others and influenced he seems by a bad peer group that he had fallen in with. Alcohol, drugs, personal and family problems and difficulties with his peers contributed to what is in my view, aberrant conduct on his part. When apprehended by the police he largely co-operated with the authorities and he entered timely pleas of guilty. He was prepared to pay the restitution order in full. He had returned to a more stable life and it appears that he no longer takes drugs or abuses alcohol. He expressed remorse for his conduct.
BRIEF SUMMARY OF THE FACTS
- [8]The appellant committed the offences in the company of others. Three of the dwellings that were the subject of burglaries were occupied at the time of entry. He was a lookout and a vehicle driver respectively in two of those. He was inside the premises in the other when the occupant was disturbed.
- [9]A co-accused female who was involved in four burglaries was given an 18 month probation order in the Magistrates Court.
- [10]The offences were serious. However there was no evidence of harm or injury to any person and damage to or loss of property was the subject of a restitution order.
APPELLANTS’ CIRCUMSTANCES AT APPEAL HEARING
- [11]The changes in circumstances were not great but reflected an ongoing process of rehabilitation. Hence the appellant appeared on the appeal with antecedents that were minimally different from those submitted to his Honour on sentence. When the appeal was heard the appellant had paid the restitution order in full. He had enrolled in an engineering course at university. He was working. He was living in a more stable environment. He aspired to pursue an engineering degree including the possibility of seeking a career in the Australian Defence Force. There is a reasonable basis for the view that I have formed that any re-offending behaviour is unlikely to occur.
THE APPEAL HEARING
- [12]On the hearing of the appeal on 22 July 2009 the respondent conceded that in all of the circumstances the sentence of imprisonment was excessive and that there were other options, specifically community based orders, that had been open to the Acting Magistrate to impose. However, the respondent submitted that in all the circumstances it was proper that convictions had been recorded and maintained that in any re-sentencing of the appellant, in the event that the appeal was allowed and the sentence below was set aside, convictions should again be recorded.
- [13]I allowed the appeal and intimated that I would set aside the sentence imposed by the Acting Magistrate. I adjourned the hearing so that I might give further consideration to the issue of the recording of convictions.
- [14]On 24 July 2009 I made formal orders with respect to the appeal, as I have indicated, set aside the sentence imposed below and re-sentenced the appellant. I further reserved the reasons for my decision not to record convictions on the re-sentencing.
- [15]This judgment therefore deals with that issue of the recording of convictions and, to the extent required to put those reasons into context I have referred to some other matters arising from the Acting Magistrate’s consideration of the matter below; to some statements that I made in the oral reasons and to the sentencing remarks made on 24 July 2009.
THE DISCRETION NOT TO RECORD A CONVICTION
- [16]The recording of a conviction is part of the sentence imposed.
- [17]Section 12(1) of the Penalties and Sentences Act 1992 (Qld) (“The Act”) gives a wide discretion to the court as to whether or not to record a conviction. Section 12(2) of the Act provides a list of the criteria relevant to the exercise of the discretion:
“(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 offender’s –
(i) economic or social well being; or
(ii) chances of finding employment.”
- [18]There is a broad range of authority that deals with the proper exercise of the discretion, including the following:
R v Briese; ex parte Attorney-General (1988) 1 Qd R 487
R v Brown; ex parte Attorney-General (1994) 2 Qd R 182
R v Bain (1997) QCA 035
R v Pahoff (2002) QCA 525
R v Cay, Gersch & Schell; ex parte Attorney-General (Qld) (2005) QCA 467
R v Ndizeye (2006) QCA 537
- [19]In Briese (supra, at page 491) the majority of the members of the Court of Appeal said the following with respect to the issue of a concealment of character that might result from the non-recording of a conviction:
“For present purposes 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 some 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.”
- [20]In Brown (supra, at page 185) Macrossan CJ referred to the proper approach to an exercise of this discretion:
“Where the recording of a conviction is not compelled by the sentencing legislation, all relevant circumstances must be taken into account by the sentencing court. The opening words of s 12(2) of the Act say so and then there follows certain specified matters which are not exhaustive of all relevant circumstances. In my opinion nothing justifies granting a general predominance to one of those specified features rather than to another. They must be kept in balance and none of them overlooked, although in a particular case one, rather than other, may have claimed a greater weight.”
- [21]In Cay, Gersch & Schell (supra, at paragraphs 43 to 45) Keane JA referred to s 12(2)(c) (ii) in respect of the impact that recording a conviction would have on the offender’s chances of finding employment:
“[43] One complaint that is advanced by the appellant is that there was no specific identification of any employment option open to any of the respondents which might be hampered by the recording of the conviction. But the existence of a criminal record is, as a general rule, likely to impair a person’s employment prospects, and the sound exercise of the discretion conferred by s 12 of the Act has never been said to require the identification of specific employment opportunities which will be lost to an offender if a conviction is recorded. While a specific employment opportunity or opportunities should usually be identified if the discretion is to be exercised in favour of an offender, it is not an essential requirement. Such a strict requirement would not, in my respectful opinion, sit well with the discretionary nature of the decision to be made under s 12, nor would the express reference in s 12(2)(c) to “the impact that recording a conviction will have on the offender’s chances of finding employment” (emphasis added). In this latter regard s 12(2)(c) does not refer to the offender’s prospects of obtaining employment with a particular employer or even in a particular field of endeavour.
[44] In R v Seiler the applicant had pleaded guilty to six counts of burglary and stealing as well as six counts of fraud. He was sentenced to perform community service, placed on probation and convictions were recorded. The applicant sought leave to appeal against the recording of the convictions. White J, with whom McPherson J A and Wilson J agreed concluded that the order to record the convictions should be set aside. In the course of considering the matters contained in s 12(2) of the Act, her Honour observed that:
‘No evidence was offered to the sentencing court about the impact that recording a conviction would have on the applicant’s … chance of finding employment but it might be presumed with some confidence that the revelation could only have a negative impact upon his employability.’
[45] The point to be made here is that the very nature of some offences means that the recording of a conviction will inevitably damage an offender’s future employment prospects and, therefore, his or her prospects of rehabilitation. It is for this reason that, for example, a court might be quicker to record a conviction for offences that might only be relevant to certain employers, such as dangerous driving, than for offences that will concern all potential employers, such as fraud or stealing as a servant. Armed robbery, with its connotations of personal violence, falls squarely into the latter category. Of course, it may be accepted that simply to point to a possible detrimental impact on future employment prospects will usually be insufficient, of itself, to warrant the positive exercise of the discretion to order that a conviction should not be recorded.”
- [22]His Honour referred to Parhoff (supra) where the Court had considered the contrast between an offence of dangerous driving and offences such as fraud or stealing as a servant or armed robbery and recognised that contrast when refusing leave to an offender to appeal against the decision of the sentencing judge to order that no conviction be recorded for offences of breaking, entering and stealing and obstructing a police officer, but that a conviction be recorded for the offence of dangerous driving.
- [23]In Cay, Gersch & Schell (at paragraphs 74 and 75) MacKenzie J also referred to the impact that recording a conviction might have on an offender’s chances of finding employment:
“[74] Section 12(2)(c) speaks of the impact a conviction ‘will’ have on the offender’s economic or social well-being or chances of finding employment. This involves an element of predicting the future. Ordinarily the word ‘will’ in that context would imply that at least it must be able to be demonstrated with a reasonable degree of confidence that those elements of an offender’s life would be impacted on by the recording of a conviction. The notion of impact on the offender’s ‘chances of finding employment’ is another way of describing the impact of a conviction on the opportunity to find employment in the future or the potentiality of finding employment in the future.
[75] In cases involving young offenders, there is often uncertainty about their future direction in life. Perhaps, because of this, the concept may, in practice, often be less rigidly applied than in the case of a person whose lifestyle and probable employment opportunities are more predictable.”
- [24]The Chief Justice in Cay, Gersch & Schell (at paragraph 8) also referred to this consideration in the non-recording of a conviction in the following terms:
“[8] Prudence dictates that were this issue is to arise, counsel should properly inform the court of the offender’s interests in relation to employment, and his relevant educational qualifications and past work experience, etc, so that a conclusion may be drawn as to the fields of endeavour realistically open to him; and provide a proper foundation for any contention a conviction would foreclose or jeopardise particular avenues of employment. Compare R v Fullalove (1993) 68 A Crim R 486, 492.”
- [25]Finally, in Ndizeye (supra) the appellant had made a false statutory declaration in respect to driving offences. He had been dealt with in the District Court and sentenced, the sentence including the recording of a conviction. Jerrard JA approached the latter issue in the following terms:
“[13] Mr Ndizeye was born in Rwanda and come to this country in 1998 with his family. He became a citizen in 1999 … he learned English and completed grade 12 … and persisted with his education, succeeding to the extent of obtaining a Diploma of Business Information Systems in December 2002. At the time of sentence he was studying for the degree of Bachelor of Business at the Queensland University of Technology.
[14] His ambition, described to the learned sentencing judge, was to obtain employment with the Department of Foreign Affairs and Trade and he had worked with both the Multicultural Development Association Inc and the Department of Immigration. His counsel submitted to the sentencing Judge that it is likely his employment opportunities, given his skill with languages and the qualifications he is pursuing would be in a Commonwealth government department and that a recording of a conviction would potentially damage his future employment prospects. No evidence was lead in support of that submission, although on the information given to the judge it appears realistic.
…
[16] The learned sentencing Judge certainly referred to the nature of the offence and to Mr Ndizeye’s age and character, but did not specifically refer to the impact that recording a conviction would have on Mr Ndizeye’s economic or social well being or his chances of finding employment. Submissions had been made on the latter topic in terms of the impact that a conviction ‘may’ have, and the submission was also made that recording a conviction “would potentially damage his future employment prospects”. No actual evidence or information was put before the learned judge other than that general submission.
[17] This court has not yet specified the extent to which information or evidence should be put before sentencing Judge to raise for consideration the matters in s 12(2)(c)(i) and (ii). In R v Bain [1997] QCA 305, the judgment of the Court included the statement:
'There was, and is, no evidence that recording a conviction would have any impact on her economic or social wellbeing or her chances of finding employment. A bare possibility that a conviction may affect her prospects is insufficient.’
His Honour then referred to the judgments of the Chief Justice, Keane J A and MacKenzie J in Cay, Gersch & Schell, to which I have already referred. His Honour’s judgment continued in the following terms:
[20] The currently envisaged employment opportunities for Mr Ndizeye seemed to be with the Commonwealth government and with a limited number of departments. More could have been done by his legal representatives on his sentence to put evidence or information before the court as to the effect that recording a conviction would have on his chances of finding his employment with the Commonwealth generally as an employer, or in the Departments of Immigration and Multicultural Affairs or of Foreign Affairs and Trade. Because it was probable on the information given to the judge that a conviction for making a false statutory declaration would adversely affect Ndizeye’s chances of getting employment with those departments, I respectfully consider that the learned sentencing Judge erred in not having regard to that matter when considering whether or not to record a conviction. Even on the limited submissions made it was a matter to which the judge was obliged to have regard.
[21] It follows that that part of the sentencing discretion miscarried, and this Court should re-exercise the discretion …”
DISCUSSION
- [26]The recording of a conviction is part of the sentence. Hence a consideration of whether a sentence is manifestly excessive includes the issue of the recording of a conviction. In this case the recording of convictions followed upon the sentence of imprisonment. (Section 143 of the Act provides that a Court may make an order of suspended imprisonment only if it records a conviction).
- [27]A proper consideration of s 12(2)(c) of the Act was an important consideration in this case. The authorities to which I have referred illustrate that the provision of some evidence as to the impact on the offender's economic or social well-being or chances of finding employment should not be the subject of "over-vigorous" application. The discretion is expressed in broad terms. It should be exercised in that context.
- [28]In his sentencing remarks, the Acting Magistrate said, inter alia:
"I also take into consideration the timely plea and your young age. I also take into account the fact that you have no previous criminal history. I am willing to accept that these offences, although large in number, occurred over a relatively short period of time, namely seven days or nights. I take into consideration that it was submitted that you had fallen out with your mother due to an argument over your tertiary studies which eventually resulted in you leaving home and that for a period of time you fell in the company of the co-defendants in this matter.
The character references supplied to the Court are of limited value given the nature of the relationship between those who supplied the references and yourself. Despite this, I believe that all offences were very much out of character. This is also supported by your academic and non-academic achievements when you attended Cathedral College.
Although it was submitted by Miss Payne that a probation order without recording a conviction is appropriate, I cannot agree with that submission. The large number and the serious nature of the offences lead me to conclude that a period of imprisonment is appropriate despite you having no previous criminal history. The submission that no conviction should be recorded is also rejected on the basis that the actual impact of recording a conviction was not clear to the Court …”(my underlining).
…….
"With respect to each of these 23 offences, I order that you be sentenced to a term of 12 months imprisonment on the basis of your young age, your lack of previous history, your partial co-operation with authorities in that admissions were made to police, and the fact that you have made genuine efforts to get your life back in order. In particular, you have obtained full time employment, you have applied for entry to the Air Force and you are looking to recommence tertiary studies."
- [29]The recitation of factors in mitigation were so significant that one wonders how his Honour came to the conclusion that imprisonment was the appropriate sentence and that convictions should be recorded.
- [30]More specifically, "the rejection" of the submission that no conviction should be recorded, said to have been based on the actual impact of recording a conviction not being clear to the Court, hardly seems to make any sense in light of his Honour's reference to the fact that the appellant had got his life back in order, was in full time employment, had applied for entry to the Air Force and was looking to recommence tertiary studies. I cannot imagine that one would need very much more than that to meet the threshold consideration for the exercise of the discretion pursuant to s 12(2)(c)(ii).
- [31]Indeed, it seems to me that the Acting Magistrate in reality has not exercised his discretion at all. If there was such an implication in what his Honour said in his sentencing remarks - namely that there was not sufficient evidence upon which to exercise the discretion - that statement is contrary to the submissions which had been made and which he adopted in his decision. Given what I have said about the recording of convictions being part of the sentence, His Honour should have approached this matter in a holistic way and given proper consideration to the appropriate sentence including, at the time of that consideration, the impact of the recording of a conviction on the appellant.
- [32]The reasons why the discretion was not exercised cannot be explained in any way other than to which I have referred because the reasons for it are really quite inadequate. One might have thought that if the basis of the submission as to the non-recording of a conviction was unclear then his Honour might have enquired further or, at the very least, perhaps given the appellant's solicitor an opportunity to further support her submission. His rejection of her submission was not supported by any meaningful reasons.
POWERS ON AN APPEAL AGAINST SENTENCE
- [33]The principles governing appeals against the exercise of discretion on sentence are well established. In Hughes v Hopwood (1950) QWN 21 (at p31), Macrossan CJ stated that an appeal court is not entitled to interfere unless it “…can find that the sentence is manifestly excessive or that there are some circumstances which show that the magistrate acted under a misapprehension of fact or on some wrong principle in awarding a sentence.”
- [34]Similarly, in House v R (1936) 55 CLR 504 (at p505), Dixon, Evatt and McTiernan JJ sated that “…it is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has ben made in exercising the discretion.”
CONCLUSION
- [35]It was, in all the circumstances open to his Honour to not record convictions. In my view that would have been the proper course for him to have taken. There was sufficient evidence, upon a broad application of the discretion as is proper in respect of section 12(2) (c) of the Act in particular, to support an exercise of discretion in the appellant's favour.
- [36]I find that the Acting Magistrate's exercise of discretion, even if it was exercised, in respect of s 12(2) of the Act has miscarried and that he was in error in rejecting the submission that convictions should not be recorded. The orders made below should be set-aside and the appellant re-sentenced.
- [37]In so far as the sentence of imprisonment was concerned, whilst I dealt with this in the oral reasons given on 24 July 2009, I should for the sake of completeness say something further about that in this judgment. I found that the imposition of a term of imprisonment wholly suspended was manifestly excessive. Community based orders were open in all of the circumstances. Quite apart from the weight of considerations which would in my view have made non-custodial orders quite unobjectionable, his Honour failed to give proper weight to the principle of sentencing in s 9(2) of the Act, namely:
"(2) In sentencing an offender, a court must have regard to -
(a) principles that -
(i) a sentence of imprisonment should only be imposed as a last resort; and
(ii) a sentence that allows the offender to stay in the community is preferable …"
- [38]In my view the failure by the Acting Magistrate to recognise and to apply that principle, which is evident on the face of the record, was a significant error in the circumstances of this case.
ORDERS
1. Appeal allowed.
2. Sentence imposed on 16 April 2009 set aside and in lieu thereof the appellant is to be re-sentenced as follows.
- (a)In respect of the eight burglary and commission of indictable offence and three enter premises and commission of indictable offence charges, I make an order of probation for a period of two years.
- (b)In respect of the seven unlawful entry of a motor vehicle and commission of an indictable offence and five stealing charges I make a community service order for 60 hours;
- (c)I order that the appellant pay restitution in the sum of $3,457.75; and
- (d)I order that no convictions be recorded.