MJB v Queensland Police Service
[2013] QDC 80
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- Unreported Judgment
- MJB v Queensland Police Service[2013] QDC 80
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MJB v Queensland Police Service[2013] QDC 80
MJB v Queensland Police Service[2013] QDC 80
DISTRICT COURT OF QUEENSLAND
CITATION: | MJB v Queensland Police Service [2013] QDC 80 |
PARTIES: | MJB (Appellant) And QUEENSLAND POLICE SERIVCE (respondent) |
FILE NO/S: | 3278/12 |
DIVISION: | Appellate |
PROCEEDING: | Section 222 Appeal |
ORIGINATING COURT: | Brisbane Magistrates Court |
DELIVERED ON: | 22 March 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 March 2013 |
JUDGE: | Reid DCJ |
ORDER: | Application to extend time in which to appeal allowed. Appeal upheld. Sentence varied by ordering that no conviction be recorded. |
CATCHWORDS: | Appeal against severity of sentence – self represented defendants – recording of conviction |
COUNSEL: | J Buckland for the appellant W Cloake for the respondent |
SOLICITORS: | Buckland Allen Criminal Lawyers for the appellant Office of Director of Public Prosecutions for the respondent |
- [1]The appellant pleaded guilty in the Brisbane Magistrates Court on 11 July 2012 to one offence of possessing dangerous drugs under s 9(d) of the Drugs Misuse Act 1986. He was convicted and fined $350. He appeals against the severity of that sentence.
Facts
- [2]The facts of the case can be stated very briefly. The matter was dealt with expeditiously in the Magistrates Court.
- [3]The plaintiff was born on 3 March 1987. He had a very minor criminal history. On 12 September 2005 he’d been dealt with for two offences of unauthorised dealings with shop goods and possessing graffiti instruments, which offences occurred on 17 and 23 August 2005. He was then 18 years of age. Convictions were not recorded. He is a mechanic by trade.
- [4]On 24 June 2012 when he was 25 years of age he was stopped by police at 12.05 am in Warner Street, Fortitude Valley. He was found to be in possession of three pills containing 3, 4-Methylenedioxymethamphetamine, commonly known as Ecstasy. He said he had purchased the pills for $25 each and that they were for his personal use.
The court proceedings
- [5]The appellant was un-represented and pleaded guilty. The facts I’ve outlined were presented to the Court. The full extent of his submissions is as follows;
“BENCH:Just stand up. You’ve heard those facts. Do you accept them as correct?
DEFENDANT:Yes your Honour.
BENCH:Have you read through this?
DEFENDANT:Yes.
BENCH:Do you agree that relates to you? Is there anything you wish to say?
DEFENDANT:No your Honour.
BENCH:Have you got a drug problem or anything like that?
DEFENDANT:No your Honour.
BENCH:What’s your occupation?
DEFENDANT:Mechanic.
BENCH:Is a conviction for this offence going to affect your future employment?
DEFENDANT:No. I wouldn’t think so.”
- [6]The Magistrate then gave his decision. He very briefly said that he’d taken into account the appellants plea of guilty, his previous criminal history, the fact he didn’t have any other drug related matters and the fact he didn’t have any drug problem. He indicated a conviction would be recorded and that he was fined $350. The appellant was given time to pay.
The appeal
- [7]The appellant submits that the recording of a conviction makes the sentence manifestly excessive. He does not object to the amount of the fine that was imposed.
- [8]It seems apparent that the appellant has appealed because, as a result of his conviction, he received on 3 August 2012 an Information Notice from QPS Weapons Licensing advising him that his firearm license number 26514591 was revoked. Subsequently police attended his residence and seized five firearms. He had acquired some as family heirlooms and purchased two for a not insignificant sum. He was not previously aware that the recording of a conviction would result in the revocation of his firearms license.
- [9]Section 12(2) of the Penalties and Sentences Act (“The Act”) sets out a number of factors which a Court must have regard to in determining whether or not to exercise it’s discretion to record a conviction in a particular matter. They are:
- (a)The nature of the offence;
- (b)The offenders character and age;
- (c)The impact of recording a conviction will have on the offender’s;
- (i)Economic and social wellbeing; or
- (ii)Chances of finding employment
- [10]In addition to the factors numerated in s 12(2), factors beyond those set out may also be considered (R v Brown; ex-parte A-G (Queensland) (1994) 2 Qd R 185; R v Ndizeye [2006] QCA 537).
- [11]It is clear that when enquiring as to whether a conviction was going to affect the appellant’s future employment, the learned Magistrate was directing his mind to the provision of s 12(2)(c)(ii) of the Act. The question is whether the learned Magistrate also gave proper regard to other provisions of s 12(2) and any other relevant factors and, also, whether he appropriately informed the defendant, who was self-represented, of the fact and nature of the discretion which he was required to exercise.
- [12]I’m mindful of the decision of R v Baine QCA number 452 of 1996, 14 March 1997, unreported, BC9700800 which is referred to in the annotations to the Act in Carter’s Criminal Law of Queensland. In that case the Court held the circumstances in s 12(2)(c) did not rise to be considered when there was no evidence that recording a conviction would have an impact on a persons economic or social wellbeing or chances of finding employment. Furthermore in R v Briesse; Ex parte Attorney General (Queensland) [1998] 1 Qd R 487, Thomas and White JJ observed that it is impossible to consider the discretion that is involved in s 12 in isolation from the particular sentencing option that is being considered. And it is likewise inappropriate to consider those sentencing options in isolation from the circumstances whether the conviction is recorded or not. It is the combined affect of the orders which needs to be looked at before the Court decides that a sentence is appropriate. The Court agreed with the remarks of Dowsett J in the same case that the more serious the offence, the greater the legitimate public interest in knowing that a person has been convicted of it. The Court further considered that relevant specific considerations might include whether violence was used, and if so to what extent; whether there was exploitation or abuse of trust; the extent of economic loss to victims; the extent to which the circumstances of the offence suggested a propensity to offend or risk that if given an opportunity to offend, the offender might re-offend; and that the seriousness of some types of offence dictated a recording of a conviction in all but the most exceptionable of cases.
- [13]In my view it is important that if a defendant is self-represented that a judicial officer imposing a sentence informs the defendant of the process so as to make him aware of what options the court is considering. In my view the passage from the sentencing in the court that I have set out, which is the totality of what might be described as the defendant’s submissions on the matter, would not have caused the appellant to turn his mind to the fact that the recording of a conviction or not was a discretion reposed in the Court, or of what factors were relevant to the exercise of the discretion. In such circumstances he was unlikely, as in fact occurred, to have ever turned his mind to what he might say in his own best interests.
- [14]In my view that is particularly so when there were reasonably open to the Court a number of sentencing options, some of which necessarily would not result in the recording of a conviction. Other possible sentencing options might have included for example, probation or community service or a release order under Part 3, Division 1 of the Act (a drug diversion order) or the imposition of a fine with no conviction recorded.
- [15]It appears to me that unless the defendant was aware of the fact and nature of the discretion whether to record a conviction, and of the other possible sentencing options, then his response to the questions he was asked (for example, whether he had a drug problem or whether conviction would affect his future employment) were unlikely to elucidate a helpful answer. It may, for example, have been that the defendant might believe that by saying he had a drug problem he might find himself in greater trouble, not less, and so might well result in an inaccurate or less than fulsome answer.
- [16]I was informed by the solicitor for the appellant that in his experience as a solicitor specialising in criminal matters, and more especially in his experience as a duty solicitor at the Southport Magistrates Court, that a “usual” sentence for an offence such as the appellants, dealt with as a guilty plea by someone with no relevant criminal history, as I think the defendant’s history is properly characterised, would be a fine, perhaps one in excess of $350, but with no conviction recorded. Other common alternatives might be the making of a drug diversion order.
- [17]Before this the DPP did not disagree with that assertion before me.
- [18]I am mindful of the fact that, on an appeal, a Court must find appealable error and not merely conclude that, if the matter was being considered afresh, a different outcome might have eventuated.
- [19]In my view;
- The failure of the learned Magistrate to have specifically informed the appellant of the fact of and nature of the discretion under s 12 of the Act in circumstances in which he was self represented; and
- The imposition of a conviction following the brief exchange I have referred to
together constitute an error entitling me to set aside the sentence. In my view this is not simply a matter of my coming to a different conclusion from the learned Magistrate. Whilst I appreciate the pressures on a very busy Court to deal with pleas to relatively minor matter expeditiously, I think it important that self-represented parties be fully informed of the process and in particular, in the circumstances of this case, of the fact of and nature of the discretion whether to record a conviction. To do otherwise runs the significant risk, as here occurred, that a party who was self-represented is not aware of the need to make submissions in his or her own interests.
- [20]In the circumstances I would order that no conviction be recorded. In so concluding I am mindful:
- that the appellant is a relatively young man, with no significant criminal history, no prior convictions and no drug offences.
- It was not asserted by the police that the appellants conduct on the night was such as to cause one concern at his behaviour.
- The offence was a relatively low level drug offence and it was accepted the drugs were solely for his own use.
- He is in employment as a mechanic. Despite his assertion I think it distinctly possible a drug conviction may significantly effect his future employment.
- Other factors, such as his ability to proceed or, as here occurred, to hold a weapons licence may also be adversely affected.
In my view the combination of these factors militate against the recording of a conviction.
- [21]I should also say that this was an application for an extension of time in which to appeal. The DPP did not oppose the extension of time. The circumstances in which the appellant failed to appeal within the 28 days allowed under the Act are set out in his affidavit filed 19 August 2012. The appeal was lodged about one week outside the 28 days. In circumstances where he’d been self-represented and, following a discussion with a lawyer in a social setting, he attempted to but was unable to make appropriate contact with that lawyer because she cancelled a number of appointments that had been made. Subsequently the appellant’s current solicitors were engaged on Friday 17 August and the appeal documents lodged on Wednesday 26 August, indicating that there had been no delay thereafter. In the circumstances I have little difficulty extending the time in which to appeal.