Kim v Commissioner of Police[2016] QDC 44

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 27 March 2015, the appellant pleaded guilty in the Brisbane Magistrates Court to a charge of leaving a child under 12 unattended, contrary to s 364A(1) of The Criminal Code (Qld). 

2. [2]
   She was fined $500 and a conviction was recorded.

3. [3]
   She now appeals against the sentence pursuant to the provisions of s 222(1) of the Justices Act 1886, in relation to the recording of the conviction, on the ground that it was excessive. 

The appeal

4. [4]
   As this is an appeal against the exercise of the learned magistrate’s discretion, it is necessary to demonstrate error in House v The King sense.^[1] 

5. [5]
   An appeal under s 222 of the Justices Act 1886 is an appeal by way of rehearing, either on the original evidence or, if leave is granted to adduce new evidence, on both the original and the new evidence.^[2]

6. [6]
   It is well established that to succeed on such an appeal an appellant must establish some legal, factual or discretionary error.^[3]

The facts

7. [7]
   The Police prosecutor set out the facts as follows:

“The victim child in this matter was born on the 7^th of December 2009, making her five years old.  Approximately 11am on Wednesday the 11^th of February 2015, police attended 347 Legage Street, Windsor, code two, being lights and sirens, in relation to reports a young child could be heard calling out at the address and sounding to be in distress. 

Upon arrival, police observed the victim child at the address.  However, the child could not open the door for police.  Police forced entry to the address, located the victim child within the residence alone.  The child was located wearing winter clothing.  The unit was hot, and observed to be locked up with no fans or windows or doors open.  There was food and drink left out for the child.  The victim child was changed into cooler clothing by police, and QAS requested and attended.  They said the child was in good health, however, was very thirsty. 

At 12.25pm that day, the defendant returned to the address.  The defendant stated that she was the child’s auntie.  The defendant admitted that she had been at work since 9am that morning, that she had returned home on her break at work to check on the victim child, and intended to return to work after she had checked on the child…

There was no supervision or provision for care for the victim child arranged.  Inquiries with Graham Lurch, the defendant’s boss at the time, confirmed that yes she was at work from 9 and left work at approximately 12 o’clock.”^[4]

Criminal history

8. [8]
   The appellant has no criminal history.

Prosecutor’s submissions on sentence 

9. [9]
   Beyond a recitation of the above facts, the prosecutor did not make any submissions.

Defence submissions on sentence

10. [10]
    The following submissions were made on behalf of the appellant:

1. (a)
   She is 49 years of age and is married;

2. (b)
   Her niece came into her care about October last year;

3. (c)
   The circumstances surrounding the child coming into her care were:

1. (i)
   The appellant went to Korea,^[5] as her sister (the child’s mother) was said to be in hospital for mental health issues;^[6]

2. (ii)
   The child’s father works in Saudi Arabia but he had also travelled to Korea because the child’s mother was in hospital;

3. (iii)
   Whilst the appellant was in Korea the child’s mother was released from hospital, but her whereabouts became quickly unknown and she has not been heard from since;

4. (iv)
   The child’s father returned to work in Saudi Arabia effectively leaving the child orphaned. The appellant subsequently brought the child to Australia to care for her.

4. (d)
   The appellant has been a permanent resident in Australia for 19 years and resides with her husband;

5. (e)
   The appellant was required to attend a Salvation Army ‘Work for the Dole’ program on the day of the offence;

6. (f)
   When the appellant attended that program to explain that she was unable to work that day due to her child-caring responsibilities, her intention had been to immediately return home.

7. (g)
   She was told that she could not leave and that if she did, she would lose her payment. She then made the decision to stay at the job;

8. (h)
   The appellant had been trying to get work and hoped to receive training as a shop assistant to improve her chances of finding employment;

1. (i)
   Her husband had only recently gained employment and was at work that day;

10. (j)
    The appellant was very remorseful for her actions.  She had tried with school and day-care centres to have the child enrolled but because the child was not an Australian citizen, and as far as immigration were concerned the child had to return to Korea, there had been no arrangements made for supervision. As a result, the appellant had been the child’s full time carer;

2. (k)
   The appellant had tickets booked to return to Korea for the purposes of applying to adopt the child so she could bring her back to Australia and then, hopefully, be able to enrol her into school;

2. (l)
   English was the appellant’s second language and “things may have been lost in translation” when she spoke to her ‘employer’ when she went to the Salvation Army and perhaps it was not realised how serious her situation was;

2. (m)
   The appellant was of the view that she had to remain at work, otherwise she might lose her eligibility for social security payments;

2. (n)
   She has no criminal history and had otherwise not been in trouble with the law;

2. (o)
   She is of good character and had the best intentions with regards to her niece;

2. (p)
   It was submitted that no conviction should be recorded although her legal representative was unable to articulate any potential adverse consequences for the appellant if a conviction was recorded;

2. (q)
   The appellant has taken steps to rectify her situation so that she will be able to care for her niece;

2. (r)
   The appellant has no children of her own; and

2. (s)
   The Department of Child Safety visited the appellant once since the subject incident but had not had contact with her since that time.

Sentencing

11. [11]
    In sentencing the appellant, the magistrate said:

“Alright.  Stand up.  I take into account your plea of guilty.  It’s at a relatively early stage of the proceedings.  I’ve paid due regard to the facts of the matter.  I’m not sure what terms Ms Cavalli tried to use, but it was unfortunate – I can’t recall precisely the term that was used, but certainly this is a very serious matter. 

I appreciate the circumstances within which you took charge and responsibility of this child.  But quite frankly to have – or to be charged with the responsibility for the health and welfare of a child of that very young age, to leave the child locked in a house with no means of supervision, comfort, support, such that the little girl was so distressed that it caused a police attendance, you should, really, be thoroughly ashamed that you acted in this totally selfish manner. 

In all the circumstances, having regard to – and notwithstanding your good character, you’re a woman of maturity.  You certainly should have known better as regard to the appropriate provision of a child of that tender age.  Returning – returned home after three and a half hours and told police that you had an intention to go back to work.  That seems to be at odds with the… instructions you provided Ms Cavalli, that you were trying to get out of being at work on that day.  In any event, I don’t determine the issue of penalty based upon that fact, nor the circumstances of your case. 

I order that you be convicted and fined the amount of $500 – that’ll be referred to SPER for registration – and a conviction is recorded.”^[7]

The issue of recording a conviction

12. [12]
    Section 12(2) of the Penalties and Sentences Act 1992 (‘the Act’) notes:

2. (2)
   In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including-

2. (a)
   the nature of the offence; and

2. (b)
   the offender’s character and age; and

2. (c)
   the impact that recording a conviction will have on the offender’s-

2. (i)
   economic or social well being; or

2. (ii)
   chances of finding employment.

13. [13]
    In R v Cay, Gersch & Schell; ex parte A-G (Qld),^[8] the Court of Appeal upheld the non-recording of convictions for three offenders, each of whom had pleaded guilty to armed robbery committed when they were aged either 17 or 18.  Keane JA (as his Honour then was) concluded at [53] that:

“…it was open to the learned sentencing judge in the present case to conclude that the offence was so out of character for these young men that, on balance, the interests of the community were best served by an order which is apt to facilitate the rehabilitation of each of these young men in circumstances where there is no immediate risk that the public is likely to be seriously misled about the content of their character”. 

14. [14]
    At [43] – [45] his Honour said:

[43] But 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 an offender, it is not an essential requirement (see R v Condoleon (1993) 69 A Crim R 573 at 576; R v Fullove (1993) 68 A Crim R 486 at 492-493)…

[44] In R v Seiler, the applicant had pleaded guilty to six counts of burglary and stealing as well six counts of fraud.  He was sentenced to perform community service, placed on probation and convictions were recorded.  The applicant sought leave to appeal against the recording of the convictions.  White J, with whom McPherson JA and Wilson J agreed, concluded that the order to record the convictions should be set aside.  In the course of considering the matters contained in s 12(2) of the Act her Honour observed that:

‘No evidence was offered to the sentencing court about the impact that recording a conviction would have on the applicant’s… change of finding employment but it might be presumed with some confidence that the revelation could only have a negative impact on his employability.’

[45] The point to be made here is that the very nature of some offences means that the recording of a conviction will inevitably damage an offender’s future employment prospects and, therefore, his or her prospects of rehabilitation.  It is for this reason that, for example, a court might be quicker to record a conviction for offences that might only be relevant to certain employers, such as dangerous driving, than for offences that would concern all potential employers, such as fraud or stealing as a servant.

15. [15]
    de Jersey CJ took a more restrictive approach in that matter. He considered that counsel should provide to the court “a proper foundation for any contention that a conviction would foreclose or jeopardise a particular avenue of employment.”^[9]

16. [16]
    The comments by Keane JA need be read in the context of the facts of that particular matter. There is a significant factual distinction between that matter and this. That matter dealt with offences of dishonesty and, was therefore, a matter in which the recording of convictions would more likely have an adverse impact on the offender’s chances of finding employment. Furthermore, it involved very young offenders who had (hopefully) a lifetime of employment ahead of them.

17. [17]
    The current matter does not involve an aspect of dishonesty. In fact, other than for employment involving caring for children, it is difficult to identify how the recording of a conviction for this offence could affect the appellant’s chances of finding employment, particularly as a shop assistant, although I will return to that issue shortly.

Comparative sentences

18. [18]
    The appellant referred the Court to three single judge District Court decisions relating to sentences imposed for this type of offence.

19. [19]
    In R v Navuru,^[10] the defendant pleaded guilty to two counts of cruelty to a child under 16, although the offences related to leaving a child unattended in inappropriate circumstances.  The defendant was 22 years old at the time and had no relevant criminal history.  The offending involved the defendant leaving her two young children alone whilst she took her car to the mechanics.  On the way back she called into a friend’s for lunch and was away from the children for one and a half hours.  Her daughter was found by others asleep on the veranda in the sun and the baby was crying with a heavily urine soaked nappy.  Each child was mildly dehydrated.  At the time, the defendant had no family support and was suffering undiagnosed post-natal depression.  Since the offending conduct she sought support from her parents who travelled from overseas to assist her for a period of time.  She had also accessed counselling and treatment programs and was treated for her depression. She was placed on probation for a period of nine months and no conviction was recorded. 

20. [20]
    In R v Ashton,^[11] the defendant pleaded guilty to one count of leaving a child unattended.  She was 23 years old and the child was her three year old daughter.  The defendant’s ex-partner had threatened her with eviction from her home and as a consequence she attended a nightclub to speak to an associate who may have been able to offer her financial support.  She then spent some time drinking with friends.  She was said to have acted recklessly, in that she had made inadequate arrangements with her sister to look after the child as there had been no confirmation by the sister that she could or would do so.  It was accepted that the defendant was genuinely remorseful and had since commenced living with her grandmother who provided her with much needed stability.  She had no relevant criminal history and made full and frank admissions.  She was ordered to undergo 18 months’ probation and no conviction was recorded.

21. [21]
    In R v Sykes,^[12] the defendant pleaded guilty to one count of leaving his 14 month old son unattended in an enclosed car on a hot day in June whilst he played poker machines in a tavern.  The child was rescued by police and, although he was hot, clammy, distressed and was sitting in a soiled nappy, he did not suffer any permanent adverse effects.  The defendant was 21 years old and had no relevant criminal history.  He was placed on probation for two years and, due to the seriousness of the offending conduct, a conviction was recorded. 

Appellant’s submissions on appeal

22. [22]
    The appellant has submitted that the learned magistrate erred in the exercise of his discretion by recording a conviction. She submits that the following matters support that submission:

1. (a)
   The nature of the offence;

2. (b)
   Her lack of a criminal history;

3. (c)
   Her full cooperation with the authorities and her plea of guilty;

4. (d)
   She had demonstrated remorse;

5. (e)
   Her steps to rectify the situation and still maintain the care of her niece so that the child did not end up being placed in an orphanage in Korea; and

6. (f)
   The impact the recording of a conviction will have on her economic or social wellbeing or on her chances of finding employment.

23. [23]
    She submits that although the magistrate said that he took into account the appellant’s plea of guilty and her good character he, nevertheless, failed to give proper weight to each of the relevant sentencing considerations under s 12(2) of the Act.

Respondent’s submissions on appeal

24. [24]
    The respondent has submitted that the comparable cases do not demonstrate an error on the part of the magistrate in recording a conviction. It is further submitted that no other error on the part of the magistrate is discernible when the facts of the case in the sentencing remarks are analysed.

Analysis of the issues

25. [25]
    The magistrate took the view that the circumstances of the offence were serious. No reasonable exception to that categorisation could be made. Counsel for the appellant attempted to demonstrate in oral submissions that the three comparable cases each involved more serious offending. Whilst I agree that Sykes is a more serious example of this type of offending conduct, I do not agree that this matter is less serious than the other two cases.  They all involve offending conduct of a similar nature and each case has mitigating features unique to it.

26. [26]
    Given that degree of similarity in seriousness, the sentences imposed in those matters provide some support for the submission that the recording of a conviction may have been excessive.

27. [27]
    In that regard, I note that the learned magistrate was not referred to any comparative sentences during the hearing below. Had that occurred, it is highly likely that a different outcome would have resulted.

28. [28]
    In so far as the appellants other submissions are concerned, I can discern no apparent error on the face of the decision. The magistrate specifically took into account the appellant’s “good character” which I infer included her lack of a criminal history, the circumstances of how she came to assume responsibility for the child and her continuing responsibility for the child.

29. [29]
    In relation to the her age, the magistrate quite correctly noted that she should have been mature enough to know that she should not have left the complainant child on her own. In other words, he concluded that the potential mitigating circumstance of immaturity had no application in this matter. He did not, however, make any comment which could support the submission that he regarded her age as a factor which disqualified her from being sentenced without a conviction being recorded.

30. [30]
    The appellant has also submitted that the magistrate failed to give due recognition to her cooperation with the authorities and has relied on the matters of R v PW [2005] QCA 177 and R v Holmes [2008] QCA 259 in support of that submission. 

31. [31]
    Neither of those matters is of relevance, however, as each of those cases was concerned as to whether the offenders cooperation in admitting to offending conduct that was not known to the authorities at the time of the admission and about which no other evidence existed, had been appropriately recognized on sentence. This was not an issue in this matter.

32. [32]
    Otherwise, I note that the magistrate specifically took the appellant’s timely plea of guilty into account.

33. [33]
    In so far as remorse is concerned, whilst he did not specifically refer to it, there is no doubt that the magistrate accepted the submission that the appellant was remorseful for her behaviour. The nature of the penalty imposed reflects as much.

34. [34]
    The appellant’s principle argument was that the magistrate failed to give proper consideration to the effect that that the recording of a conviction would have on her social or economic wellbeing or on her chances of finding employment. I note though, that the only submission made in the Court below, rather unhelpfully, was:

“And with regards to a conviction being recorded, ultimately – I don’t know how this type of conviction could affect my client in regards to s 12.  However, it is her first offence before the Court”.^[13]

35. [35]
    On appeal, the appellant has, rather curiously, relied on the following statement by Keane JA in R v Cay, Gersch & Schell; ex parte A-G (Qld) at [45] and repeated at paragraph [16] above.

36. [36]
    In paragraph 41 of her written submissions, counsel for the appellant has said:

“The offence in this case is not in the category that might be relevant to all potential employers and has a result, it is submitted, that the Court should take into account the fact that a recording of a conviction will “inevitably damage” the appellant’s future  employment prospects and therefore her rehabilitation.”

37. [37]
    If it was intended to concede that this offence “is not in the category that might be relevant to all potential employers”, then the statement of Keane JA does not assist the appellant, because this is not an offence that would inevitably damage an offenders future employment prospects.

38. [38]
    If the submission contained a typographical error, and it was intended to submit that “this case was in a category that might be relevant to all potential employers”, then I would disagree with the submission. This is undoubtedly a charge that would be most relevant to potential future employers in the child care industry. Given the appellants hope of obtaining employment as a shop assistant, the relevance of a conviction for this offence to her social or economic wellbeing or to her chances of finding employment is somewhat more remote.

Conclusion

39. [39]
    Section 12(2) of the Act requires an exercise of discretion after taking competing consideration into account. In this matter, I infer that the magistrate concluded that the seriousness of the offending conduct outweighed the other considerations, such that it was appropriate to record a conviction.

40. [40]
    There are, however, two difficulties in that approach.

41. [41]
    The first arises from the magistrate’s comment when passing sentence: “In any event, I don’t determine the issue of penalty based upon that fact, nor the circumstances of your case.”^[14]

42. [42]
    Just what was meant by the second part of that statement is unclear, although on its face, it can only mean that the magistrate did not take the mitigating circumstances surrounding the commission of the offence into account at least insofar as the issue of a recording or non-recording of a conviction is concerned.

43. [43]
    The second difficulty arises from the fact that comparable sentences do not support the recording of a conviction, although, as I have already noted, the magistrate was not provided with the details of those comparable matters.

44. [44]
    It follows that there has been an error in the course of that proceeding and the requirement that this court consider the matter afresh has been enlivened.

45. [45]
    Whilst I have reservations as to whether the recording of a conviction for this offence would have an impact on the appellant’s economic or social wellbeing or on her chances of finding employment, I nevertheless am cognisant of the fact that she is an unskilled 49 year old woman with English as her second language. In such circumstances, the additional feature of having a conviction recorded against her may well have an adverse impact in that regard.

46. [46]
    Taking that fact into account, together with the other s 12(2) considerations, I am of the view that this is an appropriate matter in which to exercise the discretion to not record a conviction. It follows that the appeal should be allowed.

Order

1. The appeal is allowed.
2. The order made in the Brisbane Magistrates Court on 27 March 2015 in relation to the recording of a conviction is set aside.
3. No conviction is recorded.