AHL v Commissioner of Police[2017] QDC 176

DISTRICT COURT OF QUEENSLAND

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE LONG SC

No 114 of 2016

AHLAppellant

and

COMMISSIONER OF POLICERespondent

MAROOCHYDORE

11.03 AM, FRIDAY, 2 JUNE 2017

JUDGMENT

Any Rulings that may be included in this transcript, may be extracted and subject to revision by the Presiding Judge.

HIS HONOUR: On 29 August 2016, the appellant filed a notice of appeal in respect of orders made, on 1 August 2016, in the Magistrates Court at Maroochydore.  Those were orders made in respect of an offence pursuant to section 179(2) of the Domestic and Family Violence Protection Act 2012, that on 8 July 2016, the appellant had contravened release conditions. 

He pleaded guilty to that offence and the outcome was a $500 fine with an immediate referral to SPER and he was convicted in the sense that a conviction was recorded. The only ground of appeal in the notice, is that a conviction should not have been recorded. 

His guilty plea to this offence was on the first appearance before the Court, upon a notice to appear that had been served on 12 July 2016.  The circumstances of the offending relevantly described, by the prosecutor, as follows:

Your Honour, the defendant was in custody at the Maroochydore Watch House for the purpose of a domestic violence application on the 8^th of July 2016 ... At 3.35 am on the 8^th of July, the defendant was released from custody with certain conditions under the Domestic and Family Protection Act.  The condition on the order that relate to the facts is that the defendant is prohibited from contacting the aggrieved or asking someone else to contact the aggrieved.

At 7 am on the 8^th of July, police attended an address at Kuluin and spoke with the aggrieved in relation to her concerns that the defendant was breaching the release conditions.

And after reference to the observation of the aggrieved’s personal mobile telephone, the prosecutor continued:

The aggrieved had minor concerns regarding how often the defendant was attempting to call her.  At around 11.45am on the 12^th of July 2016, police attended the Kuluin address, located the defendant at the dwelling.  The defendant voluntarily accompanied police to the police station.  He declined a police interview.  Police observed on the defendant’s mobile phone call log that there were 19 calls to the aggrieved’s phone on the 8^th of July between 3.53 am and 7.27 am.

Then and after tendering the defendant’s criminal history which, it can be noted, disclosed one prior entry, dealt with in the Maroochydore Magistrates Court on the 19^th of January 2015, for an offence of contravening a direction or requirement under section 791(2) of the Police Powers and Responsibilities Act, for which he was fined $185 and no conviction recorded, the Prosecutor said:

I ask your Honour to consider perhaps a period of probation with an order-  with a voluntary intervention order as a condition of probation.

When asked to address the Court, the defendant said this:

Was released about 3.30 in the morning.  I had no transportation, had no money, had no contact.  I did get in contact with the aggrieved.  What that call log does fail to show is that we did actually speak for an extended period of time, for about an hour, when it was okay for us to talk.  Since then, I have identified that my issues acting on impulse overwhelmed with feelings and taking action without thinking.  As such, from my previous hearing here, I’ve seeked a psychiatrist through the Court, but I’ve also gone out and got my personal psychiatrist as well to help deal with managing my emotions, managing my acting on impulse and just thinking before I do anything.

I do hold a full-time job that I’ve held for nearly two years.  As myself and my – the aggrieved do share a nine month old boy, that’s basically the last stable thing I do have that I can provide for my son.  So I do simply request that whatever the decision is, that’s my job – that my job’s not put at risk so I can continue to provide for my son.

The Magistrate then asked and explained the concept of a voluntary intervention order to the appellant and sought the appellant’s consent to do that, and offered to get a probation officer to speak to him.  She then stood the matter down and later took a report from a representative of Queensland Corrective Services, who provided a recommendation that the appellant was not suitable for a probation order:

given that he’s unable to comply with the reporting requirements, given his hours at work and his lack of transport at present. 

There was further reference to him currently catching taxis and that provided quite a financial strain on him, and working the hours of 8.30 till 5.30.

The representative from Queensland Corrective Services then informed the Magistrate that the appellant had indicated a willingness to comply with the intervention with UnitingCare Communities, noting that:

the men’s group runs outside those hours. 

Then and after excusing the representative of Queensland Corrective Services, the Magistrate proceeded immediately to give her decision.  She began by asking the appellant if he agreed to the intervention order at UnitingCare and he indicated that he was happy to do that.  The Magistrate then said:

Okay.  So I’ll make the voluntary intervention order, and in the circumstances of the matter, including what you’ve had to tell me and your limited history, you’re convicted and fined $500, which is referred to SPER for payment.

She then informed the appellant that he would need to wait outside to collect information in relation to the voluntary intervention order and referral documents for

him to go and see UnitingCare.  Then, and after telling him, “Just wait outside”, the Police Prosecutor is recorded as saying:

And that would be no – sorry.  No – no conviction, your Honour, on that one?

And then he clarified his question as to being:

No conviction recorded, is that?

The Magistrate replied:

I did record a conviction.  Are you advocating for none?

The Prosecutor replied:

I just didn’t hear your Honour.

And her Honour then replied:

No.  Yes.  Conviction recorded.

At that point, the appellant said:

Your Honour, will that put my job in – at jeopardy, though – like, the last thing that I can provide for my son?

The Magistrate responded:

It shouldn’t, because it’s a charge under the Domestic Violence Act. 

The defendant said:

Is it a criminal charge?

The response from the Magistrate was:

I’ve not heard of a conviction upsetting your employment.  What is the nature of your employment?

The defendant is recorded as replying:

Sales, but we do get required to inform of criminal convictions.  Is this going to be on that level?

The matter is then concluded by the Magistrate saying:

You’ll need to get some advice about that, but I can’t see any reason why it should interfere with your employment.  And it is a serious offence, so a conviction is recorded.  Thank you.  Just wait outside to receive that paperwork.

The appeal to this Court is brought pursuant to section 222 of the Justices Act 1886 and it proceeds by way of an appeal by way of rehearing on the record.  Whilst the authorities are clear in terms of the responsibility of this Court conducting an independent review of the record, they are also clear in respect of the need to identify error in the proceedings below as the basis for intervention by the Court. 

As this is an appeal brought against the exercise of discretion allowed, particularly under section 12 of the Penalties and Sentences Act 1992, it is also well established that the principles discussed in the well known decision of House v R are engaged and that it is necessary for the appellant to demonstrate either some specific error, of a relevant kind, in the exercise of the discretion or that the exercise of discretion is manifestly excessive or, perhaps, in the present context, inappropriate.

As to such error, the appellant points to the decision in R v Cunningham [2005] QCA 321, as authority for the proposition that the imposition of a penalty without allowing an affected person an opportunity to respond, is a clear breach of the rules of natural justice required of a Court.  In that case, it was the imposition of a driver licence disqualification, in relation to an offence of wilful damage to a motor vehicle.  Relevantly, it was there observed that the issue arose in circumstances where:

The Crown Prosecutor had made no submission on that subject.  The learned sentencing Judge gave no indication that he was minded to exercise the discretion vested in him by section 187(1)(b) of the Act.

Here, the issue as to whether or not to record a conviction for this offence, necessarily arose pursuant to sections 12 and 44 of the Penalties and Sentences Act, and it is clear that the Magistrate had initially determined the issue without any submission by either party or inviting any such submission of the unrepresented defendant, in particular.  As the inquiry by the prosecutor indicates, this was not a situation where there could be any expectation that a particular exercise of discretion could be taken for granted or even be likely. 

Moreover and even to the extent that the matter was the subject of reconsideration in the final exchange, the Magistrate has erred in the application of section 12(2) of the Penalties and Sentences Act.  First, it appears correct to describe that she was dismissive of the concern raised by the appellant, as this did involve a conviction for a criminal offence and he was indicating an awareness of a reporting obligation. 

Secondly, and more critically, the terse observation by the Magistrate:

I can’t see any reason why it should interfere with your employment.  And it is a serious offence, so a conviction is recorded;

does not necessarily indicate a proper application of the requirements of section 12(2)(c). And this was not a case where the nature of the offence involved such seriousness, as to become an overwhelming consideration demanding that a conviction be recorded. Whilst it may be accepted that there is an element of seriousness inherent in any offence which involves defiance of lawful authority, it must be noted that, in putting the matter into perspective, the maximum penalty provided in section 179(2) of the Domestic and Family Violence Protection Act 2012, is 60 penalty units or two years imprisonment and that the prospect of placing this offender on probation and therefore, a type of order where the non-recording of a conviction often, but not necessarily, follows was suggested by the prosecutor and seriously considered by the Magistrate and apparently not invoked because of the difficulties particularly identified as flowing from the appellant’s work commitments.

As a related, but not necessarily decisive, issue, in the course of the hearing of this appeal, it has been identified that there was likely to have been a lack of power in the Court in the circumstances, to have made the voluntary intervention order.  That is because of the particular requirements of section 69 of the Domestic and Family Violence Protection Act. However, nothing much turns on that, except as noting that that occurred, as well, as part of a flawed exercise of sentencing discretion in this case. Because the appellant agreed to the making of the order, it is at least likely that it has been completed and there does not seem to be any particular consequence relevant to the issues raised in this appeal from the making of the order. 

Accordingly, it is appropriate to allow this appeal and in determining the orders to be made by this Court, appropriate and necessary to reconsider the exercise of discretion pursuant to section 12 of the Penalties and Sentences Act.

For that purpose, the appellant relies upon his affidavit filed on the 24^th of March 2017, which provides some clear evidence of the impact and potential impact that the recording of the conviction that did occur here has and is likely to have on his future prospects of securing and retaining employment, in particular, in the context of what has already been noted as to the nature of the offence committed here, noting that the appellant was 21 years of age when he offended and came before the Court and that although he came before the Court with a prior conviction, it was only in respect of the matter which I have mentioned and for which no conviction was recorded. 

It can be noted that he deposes to having complied with the very requirement that he adverted to before the Magistrate and reported the conviction to his employer.  Although the position is that he ultimately resigned from that position in February 2017, it is in circumstances that he describes that his prior good relationship with the manager deteriorated after reporting that matter and that is what led to that resignation.  He refers to specific instances of seeking employment where he was unsuccessful and the feedback to him, indicated the role of the recorded conviction in relation to that lack of success. And that although he has been offered a position in junior sales business development at the Sydney office of World First Proprietary Limited, that is subject to a criminal history check, which is awaiting the outcome of these proceedings. He refers to aspirations in relation to travel at a later stage, particularly in relation to working in the financial services sector, overseas and where he expects that a recorded conviction may well have an influence on his ability to do so.  None of that is challenged in any way and it is appropriate to take it into account in dealing with this matter. 

In the circumstances, an appropriate exercise of discretion would be to not, for the first time, record a criminal conviction for this offender, in these circumstances.  Accordingly, the appeal will be allowed, and the order of the Court is that the orders made in the Magistrates Court at Maroochydore on the 1^st of August 2016 are varied so that no conviction is recorded for the offence. 

Have I dealt with everything, gentlemen?  Is there anything arising?

MR LEWIS: There is the issue of costs of the appeal your Honour. I’d seek costs just on the schedule basis of $1800. There is nothing to warrant any extra costs.

HIS HONOUR: Has the appellant incurred at least that amount of costs.

MR LEWIS:  Yes

HIS HONOUR: Mr Stark?

MR STARK: I don’t see how the appellant can really oppose that costs be fair in the circumstances.

HIS HONOUR: There will be a further order that the respondent pay the appellant’s costs of the appeal in the sum of $1800.  That is the right figure, isn’t it?

MR LEWIS: Yes, your Honour.  It is a $300 levy on top of what you can get in the Magistrates Court.

HIS HONOUR: That is all you are seeking?

MR LEWIS: Yes.

HIS HONOUR: All right.  That will be the order.

MR LEWIS: Thank you, your Honour.

HIS HONOUR: Nothing else?

MR STARK: No, your Honour.

HIS HONOUR: All right.