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Weston v Commissioner of Police[2015] QDC 221

Weston v Commissioner of Police[2015] QDC 221

DISTRICT COURT OF QUEENSLAND

CITATION:

Weston v Commissioner of Police [2015] QDC 221

PARTIES:

MATTHEW JOHN WESTON

(Appellant)

v

COMMISSIONER OF POLICE

(Respondent)

FILE NO/S:

19/15

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Maroochydore Magistrates Court

DELIVERED ON:

24th July 2015; ex tempore

DELIVERED AT:

Maroochydore District Court

HEARING DATE:

24th July 2015

JUDGE:

Robertson DCJ

ORDER:

  1. The appeal is allowed to the extent of setting aside the order that convictions are recorded and in lieu ordering that convictions are not recorded in relation to the three offences

CATCHWORDS:

CRIMINAL LAW: appeal against sentence; appeal against conviction; where the Appellant pleaded guilty and was convicted of committing a public nuisance, assaulting or obstructing a police officer while adversely affected by an intoxicating substance and wilful damage of police property; where the Appellant was fined $800 in relation to all three offences and convictions recorded; where the solicitor made no reference to not recording a conviction; consideration of s 12 of the Penalties and Sentences Act 1992; the need to consider the impact recording a conviction will have on the Applicant’s social and economic wellbeing and chances of finding employment; where the solicitor referred his Honour only to the Applicant receiving training as a security guard; where the Applicant had obtained his security license; where recording a conviction would have potential adverse consequences to a person holding a security license and therefore obtaining employment; whether the penalty was excessive.

 

Legislation

Justices Act 1886

Penalties and Sentences Act 1992

Cases

House v the King [1936] 55 CLR 499

R v Cay, Gersch and Schell; ex parte Attorney General Queensland [2005] QCA 467

COUNSEL:

Stark, A. for the Respondent

Crews, D. for the Appellant

  1. [1]
    On the 19th of January 2015 Mr Weston, the Appellant, pleaded guilty before his Honour Magistrate Hillan in the Gympie Magistrates Court to three offences, namely, committing a public nuisance, assaulting or obstructing a police officer while adversely affected by an intoxicating substance and wilful damage of police property. He was represented by a solicitor, Mr Anderson. His Honour gave brief reasons and imposed one fine of $800 in relation to all three offences and recorded convictions. Mr Weston appeals against the sentence on the grounds that it is excessive in that a conviction should not have been recorded.
  1. [2]
    The circumstances of the offending are that at 11.35 pm on the 19th of December police were called to attend the Royal Hotel at Mary Street in Gympie in relation to two male persons who were being asked to leave and were remaining out the front of the licensed premises. On arrival police observed two males standing directly out the front to the entrance to the hotel. They spoke to the two males, one of whom was the Applicant, and the police asked the Applicant and the other male to move away from the entrance so that they could speak to them and for them to move on. The other person was then arrested by the police. At this point the Applicant tried to stop police from arresting the other person. The Applicant tried to move in between police and the other male person. He was told on multiple occasions to step back and stop obstructing. He continued to act accordingly and police arrested him for obstruction.
  1. [3]
    Whilst in the police vehicle he was aggressive and started to swear. He was told to stop. He continued to swear. Police advised him that he was committing a public nuisance. He continued to behave in an inappropriate manner and to swear. His behaviour was interfering with the peaceful passage of members of the public. As a result of his actions, he was charged with committing a public nuisance. At the watch-house, in the early hours of the morning, again he behaved badly. At one point he removed the pants that had been provided to him by the watch-house keeper and damaged the pants, and that leads to the third count of wilful damage to police property.
  1. [4]
    He was 27 years of age at the time and was a single man with no children. He had two prior entries which could be regarded as extremely minor. These were offences of the public nuisance type, namely, not refraining from noise abatement and urinating in a public place. In neither case had a conviction been recorded. Mr Anderson informed his Honour that his client had just obtained his security license and he had a friend who had offered him work as a security guard at licensed premises. Because of that and because of the training he had to undertake in relation to the license Mr Anderson told his Honour that he was extremely embarrassed by his behaviour and was extremely remorseful. He also tendered through Mr Anderson an apology to the police.
  1. [5]
    As I have noted, his Honour’s reasons were brief. To be fair to him, the solicitor made no reference to not recording a conviction but that does not obviate the need for a judicial officer to consider the application of section 12 of the Penalties and Sentences Act 1992 in circumstances in which that arises. His Honour seemed to have misunderstood, in a relatively minor way, what he had been told by the solicitor and did not refer to the fact that the Applicant had obtained his security license. He referred only to him receiving training as a security guard. His Honour recorded convictions and imposed the fine for all three offences in default five days. His Honour gave no reasons for recording convictions.
  1. [6]
    Section 12(2), imposes a mandatory duty when exercising the discretion in considering whether or not to record a conviction upon a court to have regard to all the circumstances of the case including the nature of the offence, the offender’s age and character and in subsection (2) (c), the impact that recording a conviction will have on the offender’s (i) economic and social wellbeing or (ii) chances of finding employment. It is axiomatic that a conviction for this type of offending had the very real potential for interfering with the applicant’s economic or social wellbeing and chances of finding employment.
  1. [7]
    In his very helpful written submission Mr Crews refers to the well-known decision of the R v Cay, Gersch and Schell; ex parte Attorney General Queensland [2005] QCA 467 and in particular the judgment of Justice of Appeal Keane, as his Honour then was. That case, and a number of other authorities, is authority for the proposition that the offer of work is more than a mere chance of employment. But clearly, as I say here, the potential adverse consequences to a person holding a security license and therefore obtaining employment in that field are obvious. That his Honour did not refer to those issues is, in itself, an error in the sense identified in House v the King [1936] 55 CLR 499 at 503.

The sole ground of appeal under section 222(2)(c) of the Justices Act 1886 is that the penalty was excessive. Section 223(1) provides that the appeal is by way of rehearing on the evidence given in the proceeding below, and that has been held to be a technical rehearing in the sense that the Appeal Court acts on the material before the learned Magistrate in the absence of any application for leave to adduce new evidence. In this case, in my view, appropriately, Mr Stark on behalf of the Respondent, concedes appealable error on behalf of his Honour and concedes that the appeal should be allowed. In the circumstances, the appeal is allowed to the extent of setting aside the order that convictions are recorded and in lieu ordering that convictions are not recorded in relation to the three offences

Close

Editorial Notes

  • Published Case Name:

    Weston v Commissioner of Police

  • Shortened Case Name:

    Weston v Commissioner of Police

  • MNC:

    [2015] QDC 221

  • Court:

    QDC

  • Judge(s):

    Robertson DCJ

  • Date:

    24 Jul 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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