Parker v Commissioner of Police
[2016] QDC 354
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- Unreported Judgment
- Parker v Commissioner of Police[2016] QDC 354
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Parker v Commissioner of Police[2016] QDC 354
Parker v Commissioner of Police[2016] QDC 354
DISTRICT COURT OF QUEENSLAND
CITATION: | Parker v Commissioner of Police [2016] QDC 354 |
PARTIES: | PARKER, Stacey Leanne (applicant) v COMISSIONER OF POLICE (respondent) |
FILE NO: | D 67 of 2016 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court at Caloundra |
DELIVERED ON: | 23 December 2016 |
DELIVERED AT: | District Court at Maroochydore |
HEARING DATE: | 18 November 2016 |
JUDGE: | Long SC DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – EXTENSION OF TIME – Where the applicant applies for an extension of time for the filing of her Notice of Appeal – Whether to exercise judicial discretion to allow for the extension of time APPEAL – s 222 of the Justices Act 1886 – Where the applicant had a conviction recorded for an offence of dangerous operation of a vehicle and was fined $1,800 and disqualified from holding or obtaining a driver’s licence for a period of 6 months – Where the sentencing magistrate stated that “A traffic conviction’s recorded” and where the applicant acted on that misunderstanding – Where the applicant contends that the sentencing magistrate erred in the actual recording of a criminal conviction – Whether the sentencing magistrate proceeded upon an erroneous understanding as to the effect of her decision to record a conviction for this offence – Whether a conviction should be recorded |
LEGISLATION: | Acts Interpretation Act 1954, Part 11 Criminal Code, ss 2 and 328A Criminal Law (Rehabilitation of Offenders) Act 1986, s 3 Justices Act 1886, ss 222, 222(1), 222(2)(c) and 224(1)(a) Penalties and Sentences Act 1992, ss 4, 12, 12(1), 12(3) and 44 Regulatory Offences Act 1985, ss 3(2) and 3(3) Transport Operations (Road Use Management) Act 1995, ss 17E, 77, 86 and Schedule 4 |
CASES: | House v R (1936) 55 CLR 499 R v Briese; Ex parte Attorney General [1998] 1 Qd R 487 R v Tait [1998] QCA 304 |
COUNSEL: | DR Wilson for the applicant MA Gawrych for the respondent |
SOLICITORS: | Robert Bax & Associates for the applicant Office of the Director of Public Prosecutions (Qld) for the respondent |
Introduction
- [1]On 2 June 2016, the applicant filed a Notice of Appeal in relation to the orders made in the Magistrates Court, at Caloundra, on 19 November 2015 and consequently, to her guilty plea to a charge that on 27 September 2015, she dangerously operated a vehicle on the Bruce Highway at Meridan Plains.
- [2]
“1. The sentence imposed was manifestly excessive.
- The learned magistrate erred by imposing a sentence that included the recording of a criminal conviction and did not place sufficient weight on the mitigating factors, including those factors referred to s 12(2)(b) and (c) of the Penalties and Sentences Act (Qld) 1992.”
- [3]Reference is made to what is proposed, because the Notice of Appeal has not been filed within the time period stipulated in s 222(1) of the Justices Act. In recognition of this, the applicant also filed, on 2 June 2016, a notice of application for extension of time for filing the Notice of Appeal, pursuant to s 224(1)(a) of the Justices Act. The stated grounds of that application are that:
“When the Defendant was sentenced on 19 November 2015, Magistrate Tonkin verbally ordered that a Traffic Conviction be recorded. The Defendant was unaware and/or not advised that in fact the Magistrate had recorded a criminal conviction.
The Defendant only became aware that a criminal conviction was recorded on or about 5 April 2016 when she applied for a job, and in the course of this, the employer obtained a National Police Certificate. The Defendant was unable to Appeal the decision in the required time period, as she had no notice of the actual decision.
Between 5 April 2016 to 5 May 2016, the Defendant’s solicitors were in contact with the Caloundra Magistrate’s Court to ascertain what had in fact occurred at the Sentence on 19 November 2015.
The Defendant will suffer prejudice is (sic) leave is not granted as this criminal conviction has clearly affected her employment prospects.”
- [4]
- (a)the reasons for and length of delay;
- (b)any prejudice to the respondent; and
- (c)whether it is in the interests of justice to grant the extension, which may involve some assessment as to the viability or merit of the appeal.
- [5]For the offence of dangerous operation of a motor vehicle, the magistrate fined the applicant $1,800, allowed two months for payment and in default, directed referral to SPER. In addition, the applicant was disqualified from holding or obtaining a driver’s licence for 6 months. The bench charge sheet is further noted “CR”, which may be taken as an entry indicating that a conviction was recorded.
- [6]It is only in respect of the order recording a conviction that the appeal is sought to be pursued and the essential explanation for the delay, which is provided in the applicant’s affidavit sworn on 12 November 2016, appears as follows:
“3. I confirm that I entered a plea of guilty to one charge of dangerous operation of a motor vehicle on 19 November 2015.
4. On this occasion I was of the understanding that a criminal conviction was not recorded, and that only a traffic conviction was recorded.
5. I only became aware of the fact that a criminal conviction had been recorded on or about the 5 April 2016. On this occasion, I had applied for an interim job in Brisbane. They had requested a police clearance.
6. I then requested a national police certificate, which confirmed that I had been convicted of the offence that went before the court on 19 November 2015.”
- [7]Whilst and as will be seen, there are some problems with the legal efficacy of the mistaken understanding as to what had occurred when the applicant was sentenced, there is no identified prejudice to the respondent and where, as is the case here, the most critical issue is as to the merits of the appeal, it is appropriate to effectively or substantially hear the appeal, in order to decide whether to grant the extension.
- [8]For that purpose, it may be noted that in addition to what has been noted as to the explanation for delay in seeking to appeal, in the applicant’s affidavit, she only sought and was granted leave to rely upon the evidence (including the following additional evidence) as to her employment situation and future prospects, as new evidence relevant only to the re-exercising of discretion, which she sought:[4]
“9. My usual employment is operating heavy machinery, predominantly in the mining areas. For the last 10 years I have been working in this industry. The mining industry has a strict policy that they will not grant employment when an employee has a criminal conviction.
- Annexed hereto and marked with the letter “C” is two (2) current application through SEEK that I would be suitable for. Both application confirm that employment will be subject to a police check.
- The recording of a criminal conviction will have a detrimental affect over my future employment prospects, which will therefore cause me extreme financial hardship.”
Further and in addition, also annexed to her affidavit was:
- (a)a copy of a document entitled “National Police Certificate” and which confirmed the recorded conviction for the matter which is the subject of this appeal; and
- (b)a copy of a letter from the “National Manager 360 Finance Pty Ltd” confirming that:
- (i)the applicant had been employed in March 2016, after disclosure of not having been employed for 4 months due to being disqualified from driving;
- (ii)that a predicament was encountered when “as a requirement of her employment like every employee she was to supply a cleared Police Report in order to deal with our panel of lenders and insurers”; and
- (iii)that subject to the conviction of what was then understood to be the misunderstanding that has prompted this application, her training and employment has continued, due to her apparent aptitude for the position and “subject to being provided a clear record”.
Some Principles
- [9]That, in turn, requires regard to the principles that on such an appeal, this Court is required to conduct a review of the sentencing hearing and ultimately, correct any error of the sentencing magistrate, determined on the basis of that review and this Court’s own conclusions.[5]
- [10]However and because such a review is to be conducted in respect of an exercise of sentencing discretion, the following principles, as extracted from House v R,[6]apply:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”[7]
- [11]An additional problem is that perusal of the transcript of the proceedings on 19 November 2015, demonstrates that the sentencing magistrate was not expressly addressed by either party, as to s 12 of the Penalty and Sentences Act 1992 (“PSA”).
- [12]However, it may be noted that s 44 of the PSA provides that “a court may impose a fine whether or not it records a conviction”. And having decided that the imposition of a fine was not an appropriate penalty, it was then necessary for the sentencing magistrate to exercise the discretion provided by s 12(1) of the PSA, as follows:
“A court may exercise a discretion to record or not record a conviction as provided by this act.”
Further, this was not a situation where there was any provision mandating that a conviction be recorded[8] and therefore, an exercise of discretion was required.
The sentencing proceedings
- [13]As to the relevant facts, the prosecutor informed the sentencing magistrate that:[9]
“The defendant, Ms Parker, she owns a Toyota Coaster. The defendant is also conjointly charged with another female person by the name of Carly Flynn. On the 22nd of September this year at 6.15am, that motor vehicle, the Toyota Coaster van, was travelling southbound on the Bruce Highway at Meridan Plains. It left the road and crashed into the centre medium culvert. There were three persons in this vehicle which only seats two persons. Two were seating in seats while a third person was asleep on the bed at the rear of the bus. Police arrived at the scene. The defendant in this matter advised she was driving the vehicle prior to the crash.
The crash occurred on a sealed road of bitumen, dual lane, with a speed limit being 110 kilometres an hour. Upon arrival at the scene, police spoke with the defendant who stated she was driving the vehicle prior to the crash when she and Flynn decided to change drivers whilst the vehicle was still in motion. Whilst Flynn held onto the steering wheel, the defendant attempted to move out of the driver’s seat and behind Flynn to allow her to move into the driver’s seat. As this happened, the vehicle was driven off the road into the centre medium. The passenger asleep on the bed has been thrown about the cabin and had suffered compressed fractures to the back and some broken ribs.
She was transported to a Nambour Hospital for treatment. She took part in a recorded interview and stated the vehicle was in good mechanical order, believed the crash had not occurred as a result of any mechanical failure. She refused to answer any further questions in relation to how the crash occurred. I’ll tender a - a traffic and criminal history.”
- [14]As an important aside and as has been noted to unfortunately and frequently occur in respect of similar matters that come to this Court from various Magistrates Courts, no exhibits have been marked, as such, in the proceedings below. It should be done as an important aspect of procedure and in order to clearly delineate the evidence before the Court and upon which the Court acts and in order to create the record, for the purpose of any appeal to this Court. As it transpires, there are documents which may be inferred to be those tendered by the prosecutor in the court file. However and as will be later seen, the same cannot be said as to documents identified by the applicant’s solicitor. As was noted in Carlson v R:[10]
"It has long been established that it is the duty of a Court of first instance, from which an appeal lies to a higher Court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. The duty is incumbent, not only upon magistrates, and District Courts, but also upon this Court, from which an appeal lies to the High Court and the Privy Council”. (citations omitted)
- [15]In any event, it may be noted that whilst the applicant does have three entries in her criminal history, the last such entry is for 3 March 2008 and is in respect of offences of committing a public nuisance and a breach of a domestic violence order, in December of 2007. The first entry for 1 April 2003 does relate to assaults occasioning bodily harm and a common assault all, occurring on 8 February 2002 and the other entry relates to, what appears to be, offending by way of breaching an order under the Peace and Good Behaviour Act 1982 in February and March of 2007 and which was dealt with on 18 July 2007. For present purposes, it is important to note that on each occasion, the applicant was fined and on the first occasion, ordered to pay compensation but, importantly and on each occasion, no conviction was recorded. As to the applicant’s traffic record and whilst she has some, now dated, entries for drink driving and entries in relation to speeding offences, as the sentencing magistrate later observed to the applicant’s solicitor, the history was “not bad since…certainly in the last five years”.[11]
- [16]For the applicant, her solicitor emphasised the following considerations:
- (a)she was 34 years of age and resided in Brisbane and had completed high school to grade 12;[12]
- (b)since leaving school, she had been in full-time employment. For the first six years in the car industry and in sales and finance. For the last 10 years she had been working in the mines on a full-time basis and she had worked her way up by obtaining several different tickets and licenses, including a multi-combination license, which was described as the highest license available to allow the driving of very heavy machinery;[13]
- (c)in 2012 she was involved in a car accident and suffered injuries, including to her back but this did not interfere with her full-time employment;[14]however
- (d)in July 2015 she had experienced some difficulties for the first time, due to the breakdown of a relationship and her leaving a job without another contract to take up. She was emotionally and financially impacted by these events and it was in that context that this offence occurred which she accepted to be a “very foolish decision of changing drivers on the highway”, for which she was “sincerely remorseful and embarrassed”.
- [17]In those circumstances, the applicant’s solicitor noted the statutory consequence, described as “a mandatory minimum of six months disqualification”[15]and pointed out the significant impact that the disqualification would have on her because she had obtained a job as a truck driver in Brisbane and would be necessarily terminated upon the disqualification of her licence. The solicitor referred to having a reference from her employer about that and also, another reference under the hand of Danny Thompson. However, only the document relating to her employment is to be found in the court file. Otherwise, the solicitor pointed out that the matter was an early plea and submitted for the disqualification to be no more than the required 6 month period.
- [18]The sentencing magistrate’s reasons were expressed as follows:[16]
“Ms Parker, I have heard why Mr Neuendorf has said and what the prosecutor has said. I take those matters into account. It is a timely plea of “guilty”. Your traffic history for the last five years is not bad, and you have, as Mr Neuendorf has pointed out that - have had a very, very valuable license. Obviously, you’re a person with a multitude of very valuable skills. And you can do a lot for yourself with those skills. You’re certainly about to lose your license for a minimum of six months. I accept that when we’re under emotional pressure we can make all sorts of crazy decisions, and people often take that emotional stress onto the roads and make the decisions that affect their driving and put other people at grave, grave risk. And that’s what’s happened, from what I can see, in this case.
If the emotional issues that were going on in your life were affecting your judgement it might be time to go and get some counselling, because the next six months is going to be tough too with your disqualification. And you’ll be under pressure, and if you’re going to do this sort of thing under emotional pressure, you know, lose your judgment like this, perhaps you need to go and get some help. In any case, it’s fortunate that there was no alcohol combined with this episode of driving and that nothing worse happened than was did happen.
So in all those circumstances I’m satisfied I can deal with you by way of a fine. You’re convicted and fined $1,800. I order that be referred to SPER if you haven’t paid it within two months. A traffic conviction’s recorded and you’re disqualified from holding or obtaining a driver’s licence for six months from today.”
Discussion
- [19]It is of importance to understand that what is sought, is to engage the appellate jurisdiction of this Court. Necessarily, that must be in order to correct some demonstrable error in the exercise of the sentencing magistrate’s discretion. By way of contrast, it is not now a matter of seeking a further or new hearing in respect of the discretion that is exercised pursuant to s 12 of the PSA, particularly having regard to an impact that has been subsequently identified or encountered.
- [20]To that end, the contention, on the hearing of the appeal, became focused on the initial part of the second ground of appeal and that part of the magistrate’s sentencing remarks, where she stated:
“A traffic conviction’s recorded”.
- [21]The first point to note about this is that it stands as an indication that the sentencing magistrate did turn her mind to the necessary exercise of discretion, despite that having not been specifically raised with her, by the applicant’s legal representative. However and as will be seen, from a point of view of legal efficacy, the reference to a traffic conviction, is legally meaningless and this does tend to raise a question as to whether the sentencing magistrate proceeded upon an erroneous understanding as to the effect of her decision to record a conviction for this offence. That is, an offence pursuant to s 328A(1) of the Criminal Code.
- [22]In the first instance, it may be noted that s 12 of the PSA is concerned with the issue as to whether or not a conviction is recorded for a particular offence, with the particular consequence, if a conviction is not recorded, being:
“(3) Except as otherwise expressly provided by this or another Act—
- (a)a conviction without recording the conviction is taken not to be a conviction for any purpose; and
- (b)the conviction must not be entered in any records except—
- (i)in the records of the court before which the offender was convicted; and
- (ii)in the offender’s criminal history but only for the purposes of subsection (4)(b).”
- [23]Accordingly, the issue as to whether or not a conviction is recorded, is separate and distinct to the issue as to whether or not there is a conviction for the offence, as defined in s 4 of the PSA:
“Conviction means a finding of guilt, or the acceptance of a plea of guilty, by a court.”
- [24]Relevantly, s 2 of the Criminal Code provides the following definition of “offence”:
“An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.”
Further, s 3(1) provides for only two types of offences. That is, criminal offences and regulatory offences. Therefore and apart from those offences which are defined as regulatory offences, by the Regulatory Offences Act 1985, all other offences are criminal offences. Pursuant to s 3(2) and (3) of the Criminal Code, offences are divided as indictable offences (further divided into crimes and misdemeanours) and simple offences. The latter are offences dealt with summarily in the Magistrates Court.[17]Unless otherwise designated, an offence is a simple offence.[18]Part 11 of the Acts Interpretation Act 1954 provides for the creation of offences and applicable parameters as to penalty, by statute.
- [25]Accordingly, s 12 of the PSA is concerned with the issue as to whether or not a conviction is recorded for a criminal or regulatory offence and as is clear from s 12(3), in the case of an exercise of discretion not to record a conviction, allows only for the conviction to be recorded in the offender’s criminal history and only for the purposes of consequential proceedings in respect of the sentence imposed for that offence and subsequent proceedings for the same or a subsequent offence.[19]As was noted in R v Briese; Ex parte Attorney General:[20]
“It is difficult to make any useful assessment of the impact that recording a conviction will have unless one knows what is meant by the reference to ‘the offender’s criminal history’ in s. 12(3)(b)(ii). In the absence of more detailed submissions we shall state only a provisional view on this point. The reference to the ‘criminal history’ in s. 12(3)(b) contemplates a document that will be brought to the attention of a sentencing court on a subsequent occasion (see s. 12(4)). It would seem that the drafting of this section was based upon the practice that existed when the Act was passed, and that the central names index-based criminal history prepared by the Queensland Police Service is the document to which reference is made. It is difficult to think that anything else was intended by s. 12(3)(b)(ii) than the ‘criminal history’ which is supplied to the courts many times every day for the purposes of proving antecedents during the sentencing of offenders. So far as we are aware such ‘criminal history’ documents have no particular legal parentage and are prepared by the Queensland Police Service, presumably under responsibility or direction for the efficient and proper administration management and functioning of the police service under ss 4.8 and 4.9 of the Police Service Administration Act 1990. Such documents are made available to the Director of Prosecutions who tenders them as evidence during sentencing procedures. They are the only organised criminal history documents of which we are aware in this State. The ‘criminal history’ in s. 12(3)(b) is to be distinguished from the records of the particular courts which impose the sentences.”
- [26]To the observations made there and as to the continued practice in Queensland courts of the presentation of a document[21]in the form of a criminal history, may be added the observation of a similar practice, when appropriate, of presentation of a separate document, being an offender’s traffic record or history.
- [27]Also, it may be noted that for the purposes of the Criminal Law (Rehabilitation of Offenders) Act 1986, the concept of “criminal history” is defined as follows (in the context of the accompanying definitions of “charge” and “conviction”):[22]
“charge means an allegation formally made in court that a person has committed an offence where—
- (a)the allegation is not pursued to a final determination in a court; or
- (b)a conviction is not recorded by a court in respect of the allegation; or
- (c)a conviction recorded by a court in respect of the allegation is to be deemed, pursuant to law, not to be a conviction.
conviction means a conviction by or before any court for an offence, whether recorded, in Queensland or elsewhere, before or after the date of commencement of this Act.
criminal history means, in relation to any person, the convictions recorded against that person in respect of offences.”
Otherwise, it may be noted that s 5(1) of this Act provides:
“It is declared that a conviction that is set aside or quashed and a charge are not part of the criminal history of any person.”
- [28]Whilst it can be noted that the concept of “criminal history” in the Criminal Law (Rehabilitation of Offenders) Act 1986, is capable of being referable to all offences in respect of which convictions have been recorded, a concept of “traffic history” is defined in Schedule 4 of the Transport Operations (Road Use Management) Act 1995 (“TORUM”), as:
“traffic history of a person means the history of—
(a) the contraventions for which the person has been dealt with under this Act, including by the recording of demerit points under a regulation; or
- (b)the contraventions of the Criminal Code, section 328A for which the person has been dealt with; or
- (c)the contraventions for which the person has been dealt with as a driver under the Heavy Vehicle National Law (Queensland); or
- (d)the contraventions of the Police Powers and Responsibilities Act 2000, section 754 for which the person has been dealt with.”
Further, it may be noted that s 77 of TORUM implies responsibility for the keeping of traffic history information by the Chief Executive responsible for administering TORUM and allows for the release of such information, including and as further provided by s 17E, by arrangements with the Commissioner of Police, as to the exchange of information.
- [29]Accordingly and as a matter of some relevance to this appeal, it may be noted that primarily, the information which will be recorded in a traffic history will be that relating to the simple offences, which are defined in TORUM and the specific inclusion of the offence of which the applicant was convicted, namely dangerous operation of a motor vehicle pursuant to s 328A of the Criminal Code. It is of note that TORUM and other related legislation, is particularly concerned with the regulation of the driving of motor vehicles and the licensing of drivers for that purpose. Accordingly, it is in s 86 of TORUM that one finds the mandatory provisions in relation to driver’s license disqualification periods, upon conviction of offences under TORUM and also, for offences under s 328A of the Criminal Code.
- [30]Therefore and of practical significance, the expectation would be for the applicant’s offence, under s 328A of the Criminal Code, to appear in both her criminal and traffic histories. Further and although as was noted in the submissions made in this appeal, commonly reference is made to a category of “traffic offences”, there is no such category at law and that nomenclature can only have meaning as a reference to those offences that are compiled for the purposes of subsequent reference, only in a person’s traffic history.
Conclusions
- [31]It is in this context that the sentencing magistrate’s statement: “A traffic conviction’s recorded”, is to be considered. There can be no other conclusion other than an implication that the sentencing magistrate has proceeded upon a false premise, that the recording of the conviction for this offence would be of some limited effect, rather than a correct appreciation that the exercise of discretion, pursuant to s 12 of the PSA, is as to whether or not a conviction for a criminal offence is to be recorded, irrespectively as to the form in which information as to any recorded conviction is kept and disseminated.
- [32]Accordingly, it may be concluded that there is substantial merit in the proposed appeal, insofar as the appellant has established a basis for the re-exercise of the discretion as to whether or not to record a conviction.
- [33]However, the question remains as to whether an extension of time should be allowed, so as to enable that contention to be pursued. On the one hand, it should be noted that particularly in respect of an exercise of discretion under s 12 of the PSA and where some assessment of future prospects, particularly in the sense of impact on an offender’s chances of finding employment, may be required, a subsequent identification of such an impact arising consequently upon a recorded conviction, will not necessarily and by itself suffice as a basis for an appeal or any extension of time in which to bring one.[23]But in this case, the explanation for the delay and basis for now seeking to appeal, lies in the very misunderstanding of the effect of the sentencing magistrate’s order, which encompasses the error which would otherwise justify the appeal. In those circumstances, it is appropriate and in the interests of justice, to extend the time for filing the notice of appeal, to 2 June 2016.
- [34]It follows from what has already been noted that the appeal should then be allowed and now having all of the necessary materials, the most appropriate course is for this court to re-exercise the discretion under s 12 of the PSA.
- [35]In those circumstances, the applicant is entitled to rely upon the currently available information and therefore, on the evidence as to the potential impact that the recording of this conviction will have on her chances of retaining the employment presently available to her and therefore, her economic wellbeing and of finding any similar employment. However, that circumstance is to be considered in the context of all other relevant circumstances including:
- (a)The nature of the offence, which was correctly noted below as a significant departure from the expected standards of safe management of a motor vehicle, whilst being driven at speed on a highway and which not only created danger to other road users, but actually caused some harm to a passenger; and
- (b)The appellant’s character and age. At 34 years, she has had a good work history and, as noted by the magistrate her traffic history, whilst by no means exemplary, was “not bad…. in the last five years.” However, there is also some criminal history, although dating back to respectively 2003, 2007 and 2008 and therefore when the appellant was aged 22-27 years. Importantly, for present purposes, on each occasion no conviction was recorded.
- [36]Whilst the fact that this discretion is to be exercised in circumstances where the applicant has no recorded conviction for any criminal offence is important, it is also necessary to note that is only because of the favourable exercise of discretion in that regard, on three prior occasions. In R v Briese,[24]it was observed:
“For present purposes it is enough to note that the making of an order under s. 12 has considerable ramifications of a public nature, and courts need to be aware of this potential effect. In essence a provision of this kind gives an offender a right to conceal the truth, and it might be said, to lie about what has happened in a criminal court.
On the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation, and it may be thought to be a reasonable tool that has been given to the courts to avoid undue oppression.”
- [37]Clearly, in this case and with such observations in mind, there are significantly opposed considerations. However, the applicant has the benefit of demonstrating that the impact on her of a recorded conviction, is not just in respect of her ongoing prospects of employment in an occupation involving driving and in respect of which a conclusion of public benefit of knowledge through recording the conviction, might be more readily reached. That is because, the materials demonstrate that she has available and is considered suitable for a position in the financial industry, but may be precluded from it because of the imposition of what appears to be a blanket rule, imposed on her employer as a requirement of lenders, with which the employer engages and which will be triggered by the response that the applicant has a recorded conviction on her criminal history, irrespective of any particular relevance of the offence involved.
- [38]That, in all the circumstances, appears to be an unduly harsh and unwarranted consequence of the needs and purposes in sentencing the applicant for a not-insignificant offence of dangerous operation of a motor vehicle, but one involving a sense of culpable mismanagement, rather than anything more sinister. Accordingly, an appropriate exercise of discretion is to order that no conviction be recorded.
- [39]However, it is appropriate to observe that, should there be a future occasion when a court is called upon to again sentence the applicant for any offence and where the exercise of discretion under s 12 of the PSA arises, although the result will necessarily depend on the particular circumstances then before that court, the applicant should now note that this is likely to be the last occasion on which a favourable exercise of this discretion may be considered appropriate.
- [40]Therefore, the orders are:
- The time for filing the notice of appeal is extended to 2 June 2016; and
- The order of the sentencing magistrate of 19 November 2015 and in respect of recording a conviction for the offence of dangerous operation of a vehicle on 27 September 2015, is set aside and replaced with an order that no conviction be recorded.
Footnotes
[1] See: Pullen v O'Brien [2014] QDC 92, at [27]-[39].
[2] Notice of Appeal, filed 2/6/16.
[3] [1998] QCA 304.
[4] Affidavit of SL Parker, sworn 12/11/16.
[5] s 223 Justices Act 1886 and see: Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313, at [33]-[34] and Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, at 686-7; and cf: Fox v Percy (2003) 214 CLR 118, at [25], Teelow v Commissioner of Police [2009] QCA 84, at [2]-[4], Tierney v Commissioner of Police [2011] QCA 327, at [26], Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181, at [10] and Commissioner of Police v Al Shakaji [2013] QCA 319.
[6] (1936) 55 CLR 499, at 505.
[7] See Teelow v Commissioner of Police [2009] QCA 84, at [20].
[8] For example: ss 143 and 152 of the PSA.
[9] At 1-2.29 – 1-3.5.
[10] (1947) 64 WN (NSW) 65 at 66, by Jordan CJ.
[11] At 1-4.31-35.
[12] At 1-3.17-18.
[13] At 1-3.18-30.
[14] At 1-3.35 – 1-4.4.
[15] At 1-4.5-6.
[16] Sentencing remarks, at 1-2.1-23.
[17] Criminal Code, s 3(4). In appropriate circumstances, particular indictable offences may also be dealt with summarily, pursuant to Chapter 58A of the Criminal Code.
[18] Criminal Code, s 3(5).
[19] See Penalties and Sentences Act, s 12(4)(b).
[20] [1998] 1 Qd R 487, at 490-1.
[21] Or documents, when there are similar records from other Australian states or territories or international sources.
[22] Criminal Law (Rehabilitation of Offenders) Act 1986, s 3.
[23] Otherwise, the principle of public interest in the finality of decided cases, would be infringed: see Mango Boulevard P/L v Spencer & Ors [2010] QCA 207, at [16].
[24] [1998] 1 Qd R 487, at 491-2.