Laing v Commissioner of Police
[2017] QDC 312
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Laing v Commissioner of Police[2017] QDC 312
- Add to List
Laing v Commissioner of Police[2017] QDC 312
Laing v Commissioner of Police[2017] QDC 312
DISTRICT COURT OF QUEENSLAND
CITATION: | Laing v Commissioner of Police [2017] QDC 312 |
PARTIES: | MATTHEW STEPHEN LAING (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | D90 of 2017 |
DIVISION: | Appellate |
PROCEEDING: | Appeal under s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court at Maroochydore |
DELIVERED ON: | 20 December 2017 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 15 December 2017 |
JUDGE: | Long SC DCJ |
ORDER: | The order of the Magistrate of 26 June 2017 be varied, to be that no conviction is recorded. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – s 222 of the Justices Act 1886 – Where the appellant entered pleas of guilty in the Magistrates Court to two offences pursuant to the Drugs Misuse Act 1986, in that he unlawfully had possession of the dangerous drug, cannabis, and also unlawfully had possession of things (a water pipe and a cone piece) that he had used in connection with the smoking of a dangerous drug – Where the sentence imposed was a single fine in the amount of $600 with convictions recorded – Where the appellant appeals against the recording of convictions – Whether there was any legal, factual or discretionary error on the part of the sentencing Magistrate |
LEGISLATION: | Justices Act 1886 ss 222; 223; 225; 225(2) Penalties and Sentences Act 1992 ss 12; 12(2)(a); 12(2)(b); 12(2)(c); 44 |
CASES: | R v Brown [1994] 2 Qd R 182 R v Cay; Ex Parte A-G (Qld) (2005) 158 A Crim R 488 House v R (1936) 55 CLR 499 R v Hyatt [2011] QCA 55 McDonald v QPS [2017] QCA 255 R v Ndizeye [2006] QCA 537 Syrmis v Commissioner of Police [2017] QDC 225 Teelow v Commissioner of Police [2009] 2 Qd R 489 |
COUNSEL: | The appellant appeared on his own behalf E Howard for the respondent |
SOLICITORS: | The appellant appeared on his own behalf Commissioner of Police for the respondent |
- [1]On 6 July 2017, the appellant filed a notice of appeal in respect of the sentence imposed upon him in the Magistrates Court at Maroochydore on 26 June 2017 and upon his entering guilty pleas to two offences pursuant to the Drugs Misuse Act 1986, in that he, on 11 June 2017, unlawfully had possession of the dangerous drug, cannabis, and also unlawfully had possession of things (a water pipe and a cone piece) that he had used in connection with the smoking of a dangerous drug.
- [2]That had occurred on his first appearance by way of notice to appear and the sentence imposed was a single fine in the amount of $600 (immediately referred to SPER) with convictions recorded.
- [3]The single ground of appeal is that:
“The sentence was manifestly excessive in that a conviction was recorded against me.”
- [4]Accordingly, the appeal is brought pursuant to s 222 of the Justices Act 1886 and pursuant to s 223 of that Act and in the absence of any application to adduce new evidence, conducted by way of rehearing on the original evidence, or record of the proceedings below. As is the case here, as matters stand and in the absence of any successful application to adduce “new evidence”, the appeal is conducted by way of rehearing on the record of the proceedings below.[1] In such an appeal, this Court is required to conduct a review of the sentencing hearing and ultimately correct any legal, factual or discretionary error of the sentencing Magistrate, determined on the basis of that review and this courts own conclusions.[2] Necessarily, regard must be had to the issues raised by the grounds of appeal[3] and where, as here, the appeal is in respect of an exercise of discretion, the principles discussed in House v R[4] are applicable.[5] As to the application of those principles, it may be noted that in Wong v R,[6] it was observed that:
“If, however, further elucidation of the principle is necessary, it is evident in cases like House v The King and the discussion of when an appellate court may conclude that a trial judge’s exercise of discretion has miscarried. Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In the second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all of the circumstances, the appellate court considers that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.” (citations omitted)
- [5]As to the record of the proceedings below and as may be a typical incident of the summary nature of such proceedings in the Magistrates Court, they were quite brief. The facts were succinctly stated by the police prosecutor, essentially by explanation that when the vehicle being driven by the appellant was intercepted by police, a “cannabis joint” was observed on the floor, in front of the passenger seat. When detained for search of the vehicle, the appellant indicated to police the presence of the things the subject of the second charge, as they were then located in the rear of the van. And a small bag containing about 1 gram of cannabis was located inside a tobacco pouch in the centre console of the vehicle. It was noted that:
“He stated that he didn’t know the cannabis was inside the pouch. However, he would not advise police who owned that pouch anyway.”[7]
- [6]In the hearing below the appellant was represented by a duty lawyer, whose submissions were:
“I ask the court to consider his – his admissions by way of declarations to police of the search. Now [indistinct] my client holds down two jobs, and my instructions are he is a surfboard sander for 15 hours a week or so, and then paper delivery for another 30 hours. He doesn’t receive a Centrelink income at all. He lives in a unit, your Honour. This can be dealt with by way of a fine, but I am instructed to submit that it’s appropriate no conviction be recorded for – given his last was a couple of years ago. Your Honour, he instructs me that his mother lives in the United States, and that if a conviction is recorded to this, what might be regarded as quite a minor drug offence, he will be unable to travel to visit her.”
- [7]Immediately following that and before the Magistrate imposed sentence, there was a brief exchange which commenced with the following observation of the Magistrate: “Well he would’ve been told that, surely, at his last drug offence” and which concluded with the Magistrate asserting that had occurred “only two years ago”.
- [8]Although there is nothing in the record to indicate that the criminal history of the defendant was tendered to the Court or marked as an exhibit, there is such a document in the court file. The only reference by the prosecutor was as follows: “Those are the facts. He had some previous entries from 2015 of a like nature”. And prior to his submissions, as already noted, the duty lawyer is recorded as acknowledging what the prosecutor said, as follows:
“This was conceded, your Honour, as are the facts that have been alleged.”
- [9]The orders and statement of reasons for them by the Magistrate, were also terse:
“I take into account your early plea of guilty, the circumstances of the offence, and your previous conviction two years ago for similar offences. You are convicted and fined $600, which is referred to SPER, and a conviction is recorded. Thank you.”
- [10]As has been noted, the ground of appeal requires only consideration of the exercise of the Magistrate’s discretion pursuant to s 12 of the Penalties and Sentences Act 1992, which relevantly provides as follows:
"12 Court to consider whether or not to record conviction
- (1)A court may exercise a discretion to record or not record a conviction as provided by this Act.
- (2)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.”
- [11]When a fine is imposed by way of penalty, pursuant to s 44 of the Penalties and Sentences Act 1992 the discretion provided by s 12 is enlivened and must then be exercised judicially and in reference to the materials as placed before the Court and more particularly, the relevant considerations arising therefrom.
- [12]Although it appears that no specific reference was made to this fact in the proceedings in the Magistrates Court, the criminal history records the appellant’s date of birth as 8 September 1992 and the appellant particularly relies on his relative youth, at 24 years of age, on 11 June 2017 and 26 July 2017, and also the relatively minor nature of the offences. In this context, the written contentions are:
“10.It is not demonstrated on the face of the judgment that the learned magistrate has taken into account the mandatory considerations in s 12(2)(b) and 12(2)(c) Penalties and Sentences Act. In particular, his young age and the effects of a conviction on his chances of finding employment and hence his economic wellbeing.
- It is not demonstrated on the face of the judgment that in considering the ‘nature of the offence’ for the purposes of s 12(2)(a) Penalties and Sentences Act, the learned magistrate has taken the small amount of cannabis into account.
- To the extent that the learned magistrate may be seen to have applied s 12(2) Penalties and Sentences Act by use of the words ‘the circumstances of the offence’, it would be an insufficiently judicial exercise of discretion to cover findings as to a list of specific and mandatory factors with such a general assertion.”
- [13]It can also be noted that it was also contended that in the event of the demonstration of error in the exercise of discretion, the contention is for the exercise of the power in s 225(2) of the Justices Act 1886 to remit the matter for reconsideration by another Magistrate. That was further expressed to be on the understanding that this Court was “likely not in the best position to itself reassess the circumstances of the case and the s 12 considerations”.
- [14]Also, it may be noted that the references, in the written submissions, to the “chances of finding employment” and “economic wellbeing”, were premised on an understanding that the submission made for the appellant below was to the effect that the recording of a conviction would jeopardise future employment opportunities which are open to him in the United States. It was acknowledged that that contention was made without the benefit of reference to the transcript and on the hearing of the appeal, that the transcript does not bear out that contention. However, it was intimated to be the appellant’s intention to rely upon such an assertion, if he is able to upon any reconsideration of the exercise of the discretion.
- [15]The essence of the contentions made by the appellant is therefore as to the absence of expressed reasoning as to why convictions were recorded.[8]
- [16]It has been recognised that the discretion to be exercised pursuant to s 12 of the Penalties and Sentences Act 1992 is at large and the considerations that may be relevant are not limited to the matters contained in paragraphs (a), (b) and (c) of s 12(2). Nor is there anything “which requires more weight to be given to any one factor than the others”, it depends on the circumstances of each case.[9]
- [17]As to the engagement of s 12(2)(c) and accordingly, of what often may be regarded as an important consideration in this exercise of discretion, the following was noted by Jerrard J (with the agreement of Holmes JA) in R v Ndizeye:[10]
“[17]This Court has not yet specified the extent to which information or evidence should be put before a sentencing judge to raise for consideration the matters ins 12(2)(c)(i) and (ii). In R v Bain [1997] QCA 035, the judgment of the Court included the statement:
“There was (and is) no evidence that recording a conviction would have any impact on her economic or social wellbeing or her chances of finding employment. A bare possibility that a conviction may affect her prospects is insufficient.”
The Court cited as authority Barrett v Jensen (unreported, Court of Appeal, CA No 158 of 1995, 20 June 1995). de Jersey CJ took a similar view in R v Cay, Gersch and Schell; Ex parte A-G (Qld) [2005] QCA 467. His Honour wrote, regarding s 12(2)(c)(ii), that that legislation invites attention to what would, or would be likely to ensue in the case at hand, were a conviction recorded, and not to mere possibilities. He later added that:
“Prudence dictates that where this issue is to arise, Counsel should properly inform the court of the offender’s interests in relation to employment, and his relevant educational qualifications and past work experience, etc, so that a conclusion may be drawn as to the fields of endeavour realistically open to him; and provide a proper foundation for any contention a conviction would foreclose or jeopardize a particular avenue of employment. Compare R v Fullalove (1993) 68 A Crim R 486, 492.”
This applicant had done as the Chief Justice suggested in the first part of that paragraph, but that is all.
[18] Keane JA took a perhaps less rigorous approach where he wrote as follows:
“One complaint that is advanced by the appellant is that there was no specific identification of any employment option open to any of the respondents which might be hampered by the recording of a conviction. But the existence of a criminal record is 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. Such a strict requirement would not, in my respectful opinion, sit well with the discretionary nature of the decision to be made under s 12, nor with the express reference in s 12(2)(c) to ‘the impact that recording a conviction will have on the offender’s chances of finding employment’ (emphasis added). In this latter regard, s 12(2)(c) does not refer to the offender’s prospects of obtaining employment with a particular employer or even in a particular field of endeavour.” [original emphasis].
[19] Mackenzie J thought that case was not a suitable vehicle to attempt any detailed analysis of how s 12(2) should be applied, but did write that:
“Section 12(2)(c) speaks of the impact a conviction ‘will’ have on the offender’s economic or social wellbeing or chances of finding employment. This involved an element of predicting the future. Ordinarily, the word ‘will’ in that context would imply that at least it must be able to be demonstrated with a reasonable degree of confidence that those elements of an offender’s life would be impacted on by the recording of a conviction. The notion of impact on the offender’s ‘chances of finding employment’ is another way of describing the impact of a conviction on the opportunity to find employment in the future or the potentiality of finding employment in the future.
“In cases involving young offenders, there is often uncertainty about their future direction in life. Perhaps, because of this, the concept may, in practice, often be less rigidly applied than in the case of a person whose lifestyle and probable employment opportunities are more predictable.”
[20]The currently envisaged employment opportunities for Mr Ndizeye seem to be with the Commonwealth Government and with a limited number of departments. More could have been done by his legal representatives on his sentence to put evidence or information before the court as to the effect that recording a conviction would have on his chances of finding employment with the Commonwealth generally as an employer, or in the Departments of Immigration and Multicultural Affairs, or of Foreign Affairs and Trade. Because it was probable on the information given to the judge that a conviction for making a false statutory declaration would adversely affect Mr Ndizeye’s chances of getting employment with those departments, I respectfully consider that the learned sentencing judge erred in not having regard to that matter when considering whether or not to record a conviction. Even on the limited submissions made it was a matter to which the judge was obliged to have regard.” (some citations omitted)
- [18]In this case, it can be noted that there was some obviously competing relevant considerations. The offences themselves were obviously of a relatively minor nature, such as to favour an exercise of discretion not to record convictions. However, they were a repetition type of offending, committed and dealt with more than two years previously. Whilst the appellant was and is relatively young, he had turned 24 and relevantly to his character, this was the fourth occasion upon which he was before a court, albeit on each occasion in respect of what may be properly regarded as relatively minor offending, notwithstanding that on each of the first two occasions and respectively in April 2013, in respect of an offence of urinating in a public place and again in August 2013, in respect of an offence of committing public nuisance, there is a related offence, it would appear in the nature of obstructing police. However and apart from those considerations perhaps tending towards the prospect of a conviction being recorded, the contention made for the appellant as to his inability to travel to see his mother in the United States directly raised an impact of the type referred to in s 12(2)(c), in terms of the appellant’s social wellbeing. Moreover, that contention was neither challenged in any way nor contradicted and from the perspective of procedural fairness, neither was there any indication by the Magistrate that she would not accept and act upon that contention without any further confirmation or proof.[11]
- [19]Accordingly, it can be seen that the position is not one which provides any clear indication as to an appropriate exercise of discretion either way and that the absence of reasons for the exercise of discretion to record convictions is both problematic and to be seen as an error on the part of the Magistrate requiring intervention of this Court. Neither is there any indication in the sentencing proceeding as to any approach to this exercise of discretion. The indication of expectation of the defendant being told previously as to a recorded conviction potentially preventing his travel to the United States of America, says nothing about any exercise of balancing of the competing considerations. And whilst repetitive offending will be relevant to an assessment of character, there is nothing in s 12 of the PSA which limits the application of the discretion to the first instance or even type of offending. Rather, each occasion of the discretion must be considered according to the identified relevant circumstances.
- [20]It follows that the appellant has identified the need for intervention of this Court to exercise a power pursuant to s 225 of the Justices Act 1886 in respect of the order of the Magistrate to record convictions for these offences. And it only remains to consider how that discretion may be most appropriately re-exercised and therefore the most appropriate order to be made by this Court.
- [21]On 20 December 2017 and after the reasons and conclusion set out above were provided to the parties in draft form, it was the common position that this Court should re-exercise the discretion rather them remit the matter to the Magistrates Court. For that purpose and without objection, the appellant was given leave to adduce some new evidence,[12] which had been previously disclosed to the respondent in accordance with directions made when the appeal was heard on 15 December 2017. Consequently, the respondent was also granted leave to read and file an affidavit,[13] evidencing some research into the immigration laws and policies of the United States of America.
- [22]It is unnecessary to traverse those additional materials in any detail. It suffices to note that for the appellant there was support for contentions that his desire to visit his mother there, given her return to live there after the breakdown of her relationship with the appellant’s father, and a specifically identified employment opportunity in surfboard manufacture, are likely to be impacted upon if not prevented by a recorded conviction. As to the later point, the materials collected by the respondent tend to indicate the difficulty in attempting to be categorical about any postulated situation, because of the prospect of future discretionary decision making on any visa application. However and as conceded by the respondent, it is at least likely that a recorded conviction would put the appellant, on any visa application, in a position where he would require a decision to waive a potentially disqualifying circumstance.
- [23]Accordingly, it was properly conceded that it was appropriate to recognise relevant impact pursuant to s 12(2)(c) upon the appellant’s social wellbeing and chances of finding employment.[14] In that context and returning to the other relevant circumstances, as noted above in paragraph [18], it was, on 20 December 2017, concluded that the appropriate exercise of discretion was to not record convictions, in this instance and an order made that the order of the Magistrate of 26 June 2017 be varied, to be that no conviction is recorded.
- [24]As was sought to be explained to the appellant upon this appeal, his age and prior criminal history were important considerations but that upon any future occasion of need to exercise the same discretion, his position will necessarily be more tenuous, in that, although much will depend on the relevant circumstances at that time, he will be older and have more in the way of criminal history telling against him, in terms of character and potentially the need for general deterrence, and that the weight to be given to any difficulty in travel to the United States of America and even relatively minor offending, may not be enough to warrant another exercise of discretion in his favour.
Footnotes
[1]Justices Act 1886, s 223.
[2]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, 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], Commissioner of Police v Al Shakaji [2013] QCA 319, White v Commissioner of Police [2014] QCA 121 and McDonald v QPS [2017] QCA 255 at [47].
[3]Justices Act 1886, s 222(8)(a) and see: Forrest v Commissioner of Police [2017] QCA 132.
[4](1936) 55 CLR 499 at 505.
[5]Teelow v Commissioner of Police [2009] QCA 84 at [20].
[6](2001) 207 CLR 584, at [58].
[7]Although the defendant pleaded guilty to unlawfully possessing that drug, it should be noted that in doing so, he confronted the evidentiary effect of s 129(1)(c) of the Drugs Misuse Act 1986 (“DMA”) and that the decision in R v Nguyen and Troung [1995] 2 Qd R 285 is to leave open the prospect that his relevant state of mind may have been no greater than having reason to suspect that the drug was in the car (noting the defn. in s 4 of the DMA that “place includes a vehicle”).
[8]See Teelow v Commissioner of Police [2009] 2 Qd R 489 at [13] and R v Hyatt [2011] QCA 55 at [11], as to the importance of reasons in support of orders that are made, and the discussion in Syrmis v Commissioner of Police [2017] QDC 225 at [14]-[17], as to the requirements of procedural fairness in dealing with submissions made in sentencing proceedings.
[9]R v Brown [1994] 2 Qd R 182 at 193.
[10][2006] QCA 537.
[11]See the discussion in Syrmis v Commissioner of Police [2017] QDC 225.
[12]Exs. 2-4, noting that the criminal history on the Magistrates Court file was marked as Ex. 1.
[13]Affidavit of B Kelly, affirmed on 19/12/17.
[14]Cf: R v Cay; Ex Parte A-G (Qld) (2005) 158 A Crim R 488 at [43]-[45].