Rees v The Commissioner of Police
[2015] QDC 305
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- Rees v The Commissioner of Police[2015] QDC 305
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Rees v The Commissioner of Police[2015] QDC 305
Rees v The Commissioner of Police[2015] QDC 305
DISTRICT COURT OF QUEENSLAND
CITATION: | Rees v The Commissioner of Police [2015] QDC 305 |
PARTIES: | DANIEL CAMERON REES (appellant) v THE COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | D 74/2015 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Ipswich |
DELIVERED ON: | 4 December 2015 |
DELIVERED AT: | District Court at Ipswich |
HEARING DATE: | 2 December 2015 |
JUDGE: | Richards DCJ |
ORDER: | Appeal allowed. Sentence set aside. Appellant is fined $800 to be paid within 3 months in default of payment in that time the matter is referred to SPER. No conviction recorded. |
CATCHWORDS: | Penalties and Sentences Act 1992 – whether a conviction should be recorded against a young first offender |
COUNSEL: | Mr Jones for the appellant. Mr P O'Connor for the respondent. |
SOLICITORS: | Salvos Humanitarian and Legal Solicitors for the appellant. Office of the Director of Public Prosecutions for the respondent. |
- [1]The appellant was convicted after trial of obstruction of police on 1 March 2015. He was fined $800 and a conviction was recorded. He appeals against the recording of a conviction.
- [2]Although there were extensive written submissions in relation to the question of whether the appellant should have been convicted of obstruct police, the appeal was lodged only in relation to sentence and in particular whether a conviction should have been recorded.
- [3]The Crown has conceded that the Magistrate erred in the application of s 12 of the Penalties and Sentences Act 1992 and that the sentencing discretion should be exercised afresh. The Magistrate stated in giving his decision that “the default position is that convictions are recorded” and that the Penalties and Sentences Act 1992 gives courts the discretion not to record a conviction. This is, of course, not the case. The Crown rightly concedes that that was appellable error. Section 12 of the Penalties and Sentences Act 1992 sets out the factors to be considered in the exercise of the discretionary court to not record a conviction. It states:
“(1) A court may exercise the discretion to record or not record a conviction as provided by this Act.
(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 wellbeing; or
(ii) chances of finding employment.”
- [4]In this case the applicant was arrested in the early hours of 1 March 2015. The behaviour is effectively over four parts. Initially, he and his group were ordered to stop at a train station but they pushed past police. The police then attempted to place one member of the group under arrest for an assault at which time the appellant grabbed the police officer saying “let him go you can’t arrest him” and called him a “cunt”. He was later seen by the police who approached him to arrest him and he resisted, tensing his body and struggling, and then managed to slip away. Approximately an hour later police saw him at McDonalds, approached him and told him he was under arrest to which he said “fuck off I haven’t done anything wrong” and tensed his body and resisted arrest.
- [5]He was 17 years old at the time of the offence, 18 years old at sentence. He had no criminal history, he was employed as an apprentice spray painter for Aurizon. It was submitted that a conviction would severely affect his employment at Aurizon but no formal material was placed before the Magistrate. The Magistrate decided that he had shown no remorse. (He was entitled to make finding due to the fact that the appellant had taken the matter to trial, given evidence and made allegations against the police which he found to be untrue).
- [6]It is submitted by the respondent that given the nature of the offending, that it was not momentary, that it was persistent and that he showed a lack of remorse in his actions, that a conviction should be recorded regardless of his age and antecedents.
- [7]In R v Cay, Gersch and Schell ex parte Attorney-General (Qld) [2005] QCA 467 at paragraph 43 Keen JA observed:
“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 the offender, it is not an essential requirement. See R v Condoleon (1993) 69 ACR 573 at 576. 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 with the express reference in s 12(2)(c) to ‘the impact that recording a conviction will have on the offender’s changes of finding employment’.”
- [8]In this case the appellant’s behaviour was very poor. There is little evidence of remorse in his actions before the Magistrate and there was no evidence, other than a statement from the bar table, that his employment would be effected by recording a conviction.
- [9]However, when one looks at the principles of s 12(2) of the Penalties and Sentences Act and considers that the nature of the offence in that there was no assault, no weapon, no planning and it was a single offence, his conduct, despite being committed against a police officer fell within the lower range of seriousness for offending. The applicant was a 17 year old boy and, therefore, still entitled to an appropriate allowance for his youth, and a letter has now been tendered indicating that his future employment with Aurizon may well be impacted by the recording of a conviction.
- [10]The appellant had no criminal history at all and it can therefore be assumed that this behaviour was out of character for him. In all the circumstances, given that it was a single offence committed by a very young boy of good character in full time employment that may be affected by the recording of a conviction, there is no doubt in my mind that a conviction should not be recorded in this case. The appeal is allowed. Sentence is set aside to the extent that a conviction is not recorded in relation to the sentence.