Hurley v Queensland Police Service
[2015] QDC 45
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- Hurley v Queensland Police Service[2015] QDC 45
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Hurley v Queensland Police Service[2015] QDC 45
Hurley v Queensland Police Service[2015] QDC 45
[2015] QDC 45
DISTRICT COURT OF QUEENSLAND
APPELLATE JURISDICTION
JUDGE DEVEREAUX SC
Appeal No 2424 of 2014
BLAKE CAMERON HURLEY Appellant
and
QUEENSLAND POLICE SERVICE Respondent
BRISBANE
10.26 AM, FRIDAY, 13 FEBRUARY 2015
JUDGMENT
HIS HONOUR: This is an appeal against sentence. On 10 June 2014, the appellant appeared in the Brisbane Magistrates Court with respect to one count of entering premises and committing an indictable offence. He pleaded guilty. He was self-represented. The Magistrate imposed a fine of $1200 and ordered that a conviction be recorded. I’m informed today that the fine has substantially been paid. It was referred to SPER and the appellant has been paying $40 a week. The argument concerns principally the recording of a conviction. The appellant, as I said, was self-represented. There was only a short exchange between him and the Magistrate. I will come to that in a moment.
First, I record that the Magistrate was told the following with respect to the offence: at 1.30 am on 24 May 2014 police were contacted. Some time between 12.30 and 1 am, the applicant climbed the fence to the Langlands Memorial Pool. He removed a blanket from the swimming pool and entered the pool. He then tried to open a door at the canteen area and an adjoining roller door. He did not obtain entry to any building. He collapsed a marquee which was along side the pool area and leapt over the fence with the marquee. All of this was captured on CCTV. He was captured nearby with mates. The offence has all the hallmarks of youthful, perhaps drunken, stupidity and skylarking. The appellant did not tell that to the Magistrate. His counsel today tells me that that is the inference to be drawn.
The appellant clearly did not impress the Magistrate with his language and conduct in court, but did say this: “Out of character to steal something. We had no intentions to take anything. Going there for a swim and, yeah, I’ve apologised to the owner”. Mr Jacob who appears on the appeal today has confirmed that after the event, his client apologised to the owner. The Magistrate said, “Well, you’ve made a nuisance of yourself for the last few years, haven’t you?” and the appellant replied, “Yes, your Honour”. The Magistrate asked, “Do you work?” and the Appellant replied, “Yes, your Honour”. The Magistrate asked, “Doing what?” and the Appellant replied, “Carpenter”. The learned Magistrate then said, “Well, you’ve certainly run out of chances for no conviction to be recorded, given that this is your fourth time before the court. So a conviction is going to be recorded. This is a serious offence. Essentially, it’s burglary. Anything else you want to say?” and the Appellant replied, “No, your Honour”.
His Honour then proceeded to sentence saying, “Well, I’ve taken into account your plea of guilty and reduced the fine otherwise imposed. I’ve also taken into account the fact that only last year you were convicted of unlawful use of a motor vehicle and wilful damage. So your previous appearances and the treatment you’ve received in court weren’t any real deterrent to you, were they? You’re convicted and fined $1200. This is a serious offence. Private property, one type or another, is exactly that. Private property is not for anyone to enter who feels like it to steal property from it. You will be referred to SPER and a conviction is recorded”.
I have come to the view that it was an error to record a conviction, but by that I do not mean any criticism or disagreement with the Magistrate’s remarks concerning the seriousness of the offence itself certainly in the abstract and the sanctity of private property.
The appellant has a criminal history. The Magistrate referred to it, but importantly the only really relevant entry is the previous appearance in the Magistrates Court at Brisbane on the 4th of April 2013 for unlawful use of a motor vehicle and wilful damage. The disposition was no conviction recorded and a $600 fine.
The appellant was born on the 9th of December 1992. So he was about 21 years old at the time of the offence. It is, in effect, conceded by the Respondent that the Magistrate failed to properly to take into account the matters referred to in section 12 of the Penalties and Sentences Act with respect to the recording of a conviction. His Honour took a serious view of the offence. His Honour inquired about whether the Appellant was working and was told he was. His Honour did not inquire any more or explain to the Appellant the significance of the question. So I do infer that his Honour was mindful of the relevant considerations in section 12, but there simply is not a sufficient enunciation of the principles and an assessment of them to support – as a reasonable exercise of discretion – the decision to record a conviction.
I do not mean that a busy court dealing with many matters in a summary way is required to set out lengthy reasons, but it should not be forgotten that the recording of a conviction is a serious step, especially for a young person with hopefully a life of work and other adventures in front of him.
I grant leave – it wasn’t contested – for the Appellant to present further evidence under section 223 of the Justices Act and without my reading it into the record now, in essence, it demonstrates that there is some real potential for a recorded conviction to affect the Appellant’s future employment. He is a fully qualified carpenter, and the material shows that a recorded conviction might affect his prospects of employment in certain circumstances. Although it is a serious offence, it is certainly at the lower end of entering premises and stealing. As I said, it is conceded, in effect, that the Magistrate was in error. I think that is a proper concession to have been made by Mr Lloyd who appears for the Respondent. It is open then for me to exercise the sentencing discretion fresh.
With respect to the question of recording a conviction, Mr Jacob, in his outline, has included extracts from two decisions worth noting. R v Briese; ex parte the Attorney-General [1998] 1 Qd R 487 and Cay, Gersch and Schell; ex parte the Attorney-General [2005] QCA 467. It seems to me that an appropriate outcome as well as the fine that was imposed by way of punishment would be a probation order which would provide some supervision for the Appellant, and in that sense some insurance for the community that what is said to be his foolish, youthful skylarking was really just that, and not the start of a career in dishonest behaviour. So taking into account the nature of the offence and the Appellant’s character and age and particularly the material which does demonstrate that there may well be some impact on his economic or social wellbeing and chances of finding employment, I’m satisfied that a conviction should not be recorded. To that extent, I would vary the Magistrate’s order by removing the recorded conviction, but, further, by imposing a probation order. That order would be one for 12 months starting today.
Now, just stand up for a moment, Mr Hurley. I can’t make a probation order without your consent. The conditions of the order would be that you not commit an offence during the period, that you report to and receive visits from an authorised corrective services officer as directed by the officer, that you take part in counselling and satisfactorily attend other programs as directed by an authorised corrective services officer, that you notify an authorised corrective services officer of every change of your place of residence or employment within two business days after the change happens, that you not leave or stay out of Queensland without the permission of an authorised corrective services officer, and that you comply with every reasonable direction of an authorised corrective services officer. Now, I don’t know if that’s the first time you’ve heard all of those. Do you follow those conditions?
APPELLANT: I can, your Honour.
HIS HONOUR: Do you consent to my making an order for 12 months under those conditions?
APPELLANT: Yes, your Honour.
HIS HONOUR: Now, I expect that to be a little bit inconvenient for you, but that’s because a number of times now you’ve appeared before courts for ostensibly very dishonest behaviour even if it really was, as has been presented, more like youthful, stupid behaviour. It’s nonetheless behaviour that interferes with other people’s property. Do you understand how serious that is now?
APPELLANT: Yes, your Honour.
HIS HONOUR: If you appear in a court again, not only are you very likely to have a conviction recorded against you, but you’re also likely to be sent to jail, and any good work you’ve performed – getting an apprenticeship or being a good employee – might well be wasted. Do you follow? Okay. To what office could he report by the end of today?
MR WHITTON: He lives in Balmoral, but if your Honour simply says Brisbane, we can get the correct address from downstairs.
HIS HONOUR: Okay.
MR JACOB: Brisbane south at Stones Corner.
HIS HONOUR: Okay. So the order is the order of the learned magistrate is varied by removing the recorded conviction and by ordering that the appellant be released under the supervision of an authorised corrective services officer for a period of 12 months on the conditions set out in section 93 of the Penalties and Sentences Act, including that he report to an authorised corrective services officer at Brisbane south by close of business today. And in case that is left in any doubt, there is no conviction recorded.
MR JACOB: Thank you, your Honour.
HIS HONOUR: All right.
DEFENDANT: Thank you, your Honour.
HIS HONOUR: The other orders that were made were an order allowing the – giving leave to amend and giving leave to adduce evidence.
MR LLOYD: Thank you, your Honour.
HIS HONOUR: Mr Jacob?
MR JACOB: As an indictable offence dealt with summarily, I don’t think there’s – I think I’m precluded from making an application for costs, so there’s no other orders sought.
HIS HONOUR: Thank you. Thank you ‑ ‑ ‑
MR LLOYD: Thank you, your Honour.
HIS HONOUR: ‑ ‑ ‑ Mr Lloyd too.
MR LLOYD: Thank you, your Honour.
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