Swain v QPS[2015] QDC 9

DISTRICT COURT OF QUEENSLAND

The appellant pleaded guilty in the Magistrates Court at Brisbane on the 23^rd of July 2014 to one count of unlawfully possessing cannabis and methylamphetamine; that is, possession of dangerous drugs; one count of permitting a place to be used for the commission of a crime against the Drugs Misuse Act, namely possessing dangerous drugs; one count of having unlawfully in her possession items that were used in connection with smoking a dangerous drug; and one count of having in her possession electronic scales, scissors, bowl or bowls reasonably suspected of having been used in connection with the commission of an offence against the Drugs Misuse Act.

The possess dangerous drugs charge and the possession of utensils or property suspected charges occurred on the 9^th of July 2014. The charge relating to the permitting the use of a place occurred during the period from the 1^st of October 2013 to the 10^th of July 2014. The appellant was ordered to pay fines totalling $900 and convictions were recorded. At the time of the offending conduct, she was 34 years of age. She had a prior criminal history which involved an appearance in the Cleveland Magistrates Court on the 6^th of July 1998 on charges of possess utensils or pipes and possess anything used in commission of a drug offence. On that occasion, she was fined a total of $300 and no convictions were recorded. She also appeared in the Brisbane Magistrates Court on the 26^th of April 2012 on a charge of public nuisance, at which time she was fined $250, and again no conviction was recorded.

In the current matter, the appellant has appealed against the order recording convictions for each of the offences. Her original ground of appeal was that the recording of convictions resulted in the sentences being manifestly excessive. During the hearing of this matter and in the written material, counsel for the appellant has sought leave to amend the ground of appeal to delete that ground and substitute it with one which alleges that the learned magistrate erred in her application of section 12 subsection (2) of the Penalties and Sentences Act 1992, and that as a result, the discretion to record convictions miscarried. As the respondent does not oppose that application, I will allow it without further consideration, and such leave is granted.

The four offences arose out of the execution of a search warrant at the appellant’s residence on the 9^th of July 2014. During the course of the search, a small amount of both cannabis and methylamphetamine were located in her bedroom. The appellant made admissions to police in relation to her ownership of both substances and to her usage of them. She further admitted to police that she had, in the past, admitted visitors to her residence to use illicit drugs and that a number of items located by police during that search related to that usage. Paraphernalia associated with the smoking of methylamphetamine and cannabis was located in her bedroom. Scissors, digital scales with drug residue on them, a silver bowl and a ceramic bowl were also located in her bedroom.

The appellant was cooperative with police and made admissions as to her ownership and usage of the items located during the search. The amount of drugs located was particularised by the prosecutor in the Court below as follows:

In relation to charge 1, police searched the defendant’s room and located a small plastic container which contained green leafy material.^[1]

And then later he said:

Police located a small clip-sealed plastic bag which contained what appeared to be a small crystal.^[2]

Prior to sentence, the appellant was assessed by the Court diversion service staff who concluded that she was suitable for drug diversion. She was represented by the duty lawyer who was in Court that day. Submissions were made that she was at that time working one day per week cooking breakfast for factory workers, earning only 70 to 80 dollars per week in addition to her Newstart Allowance. It was further submitted that she had recently become depressed after suffering an injury and a subsequent loss of work. She had then become involved in a friendship group who regularly used drugs.

It was submitted that she had previously used cannabis, but as a much younger person, and had not used drugs for a long time before starting again approximately nine months prior to the commission of the offences on the day of the raid. It was submitted that she had completed a Certificate III in Nursing and was looking for jobs in that area, and that she was suitable for drug diversion in relation to two of the offences, and it was submitted that the learned magistrate could place her on a good behaviour bond for those two offences contingent on her completing the drug diversion course, and a further good behaviour bond for the remaining two offences.

The magistrate rejected that submission, and proceeded to impose fines for each of the four offences and to record convictions, and as I say, this appeal relates only to the recording of those convictions. Neither defence counsel nor the prosecutor were given the opportunity to submit on the question of the recording of a conviction, and after sentencing the appellant to the fines, the magistrate said, “and again, given your criminal history and your age, a conviction is now recorded against you”. After the magistrate made that order, the defendant’s lawyer attempted to make submissions regarding that issue, but those attempts were dismissed by the magistrate who repeated that in the exercise of her discretion a conviction should be recorded and that she had heard nothing to persuade her otherwise.

It is quite apparent, however, from reading the transcript that no opportunity was given to legal representatives to make submissions to the contrary prior to the order being made. The failure to allow legal representative to make submissions constitutes, in my view, an error on the part of the magistrate. The recording or non- recording of a conviction is a discretionary issue and the appellant was entitled to make any submissions that were considered appropriate and relevant to the issue.

It has been further submitted that the magistrate fell into error by failing to properly consider all the circumstances of the case when deciding whether to record convictions, in particular, the relevant circumstances personal to the appellant.

Section 12 subsection (2) of the Penalties and Sentences Act 1992 states:

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.

As observed by Justice Lee in the Queen v Brown ex parte Attorney-General (1994) 2 Qd R 182 at 193:

The discretion is at large. The considerations are not limited to the matters contained in paragraphs (a), (b) and (c); they are inclusive. There is nothing in the Act which requires more weight to be given to any one factor than to the others. Relevant weight depends upon the circumstances of each case.

In that same matter, Chief Justice Macrossan made this observation at 185:

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 section 12 subsection (2) of the Act say so, and then there follow 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 another, may have claim to greater weight.

No specific reference was made during the sentencing submissions or in the sentencing remarks by the magistrate as to the impact that the recording of a conviction would have on the appellant as required by section 12 subsection (2) of the Act; that is, that such consideration must be given; save for the submission of her legal representative that the appellant was in the process of applying for jobs in the field of nursing.

The respondent has quite properly acknowledged that whilst there is no express provision requiring a statement of the Court that it took the section 12 subsection (2) provisions into account, the failure to make such a statement in these circumstances must result in a conclusion that the discretion miscarried and must therefore be exercise afresh. As observed by Justice Fraser in R v WAJ [2010] QCA 87 at 15:

Nevertheless, in the absence of any sentencing remarks expressly directed to the discretion or to the relevant provisions it is appropriate to proceed on the footing that that the discretion miscarried and must be exercised afresh.

Accordingly, I’ll proceed to sentence afresh in relation to the issue of the recording of convictions.

The respondent has submitted that the Court would nevertheless affirm the orders made by the sentencing magistrate by imposing an identical sentence in the proper exercise of the sentencing discretion, so I will now turn to the relevant considerations.

I note that whilst, of course, these offences are serious, they nevertheless involve activity that has no commercial aspect to it. The drugs found were for self use, and the paraphernalia was as well or for the use of friends. Furthermore, I note that the Court was not told the weight of the drugs found. I infer, however, from the description given that they were of very small amount. In fact, the methylamphetamine was described as “a small crystal”, and was said by the appellant to have been something that was a remnant or what was left over.

In my view, the most serious of the charges was the permit use of a place, given that the applicant admitted that she had allowed friends to use drugs at her premises over a period of many months. Counterbalancing that, however, is the fact that the only evidence regarding that offence came from the admissions made by the appellant to police during the search. On the material before the Court, were it not for those admissions, there would have been no evidence to support that charge. That cooperation was therefore extensive and is, in my view, a relevant consideration when one assesses her character, bearing in mind the matters that can be taken into account when assessing character as prescribed by section 11 of the Penalties and Sentences Act.

Furthermore, the appellant has now presented new evidence, which has not been opposed by the respondent, indicating that the recording of convictions on these charges is, or could be, an impediment to her obtaining a blue card, and thus obtaining employment in her chosen field of nursing. In other words, it may impact on her chances of finding employment.

The learned magistrate in the Court below placed particular emphasis on the appellant’s criminal history when deciding to record convictions. Her conviction for public nuisance is of no relevance to the issue, and I must say I do not perceive that the magistrate placed any weight on that matter when determining the issue. Insofar as her prior appearance before the Court for drug-related offences is concerned, however, I note that those offences occurred some 16 to 17 years ago when the appellant was only 18 years of age. That passage of time and the fact that she was so young at the time are also relevant considerations to an assessment of the appellant’s character, as is the lack of any further relevant convictions since that time.

In all the circumstances; that is, the fact that despite the serious nature of the charges, these offences fell very much at the lower end of the scale of seriousness, her old and minor criminal history, her cooperation with the authorities, her earlier plea of guilty, and the impediment that the recording of convictions could impose on her chances of finding meaningful employment, and thus also adversely affecting her social wellbeing, cause me to conclude that this is an appropriate matter to exercise the discretion to not record convictions.

Accordingly, the order of the Court is as follows:

1. The appeal is allowed.
2. The application to adduce fresh evidence is allowed.
3. In respect of each offence, the sentence imposed below on 24 July 2014 be set aside insofar as the recording of a conviction is concerned.
4. In respect of each offence, no conviction is recorded.