Taylor v Queensland Police Service
[2021] QDC 144
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- Unreported Judgment
- Taylor v Queensland Police Service[2021] QDC 144
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Taylor v Queensland Police Service[2021] QDC 144
Taylor v Queensland Police Service[2021] QDC 144
DISTRICT COURT OF QUEENSLAND
CITATION: | Taylor v Queensland Police Service [2021] QDC 144 |
PARTIES: | DECLAN TAYLOR (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO: | 79/21 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Richlands |
DELIVERED ON: | 21 July 2021 |
DELIVERED AT: | District Court, Brisbane |
HEARING DATE: | 28 June 2021 |
JUDGE: | Richards DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – where the appellant was sentenced to 240 hours community service for a single count of wilful damage – where a conviction was recorded – whether the Magistrate erred in recording a conviction |
LEGISLATION: | Youth Justice Act 1992 (Qld) s 184(2) |
CASES: | R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467 R v Briese; ex parte the Attorney General (Qld) [1997] 92 A Crim R 75 |
COUNSEL: | M Jones for the appellant T Little for the respondent |
SOLICITORS: | Legal Aid Queensland for the appellant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]The appellant pleaded guilty to one charge of wilful damage and was sentenced on 14 December 2020 in the Richlands Magistrates Court to 240 hours community service. A conviction was recorded. He has appealed against the recording of the conviction.
- [2]The appellant damaged tiles, plastic chairs and pool equipment in the pool area of the Brisbane Youth Detention Centre. He was 18 years of age at the time of offending and at the time of sentence he was in the process of completing a Grade 10 certificate and was about to start a Certificate III in construction. He had no previous convictions.
- [3]At the time of sentencing the Magistrate seemed to have become irrationally annoyed at the submission that he had no previous convictions stating:
“Although I’m required to comply with the fiction that you have no previous convictions, even though the fact you’re a prisoner in a Detention Centre makes it obvious that you’re not, in reality, a first offender, I’m still required to comply with the fiction that you were – that you are a first offender. But it’s an objective fact that you were a serving prisoner of the state in a corrective services facility at the time you committed this offence which seriously aggravates the offending.”[1]
- [4]The legislature requires that once a child becomes an adult the matters for which no convictions are recorded are not to be taken into account.[2] Further, the assumption that he was in fact serving a sentence and therefore not a first time offender is one that was not grounded in reality. The 2020 Annual Children’s Court Report demonstrates that in fact 84.5% of children in detention at any one time in that year were on remand and not serving a sentence, it is therefore more likely than not that the child was not serving a sentence but awaiting the outcome of court proceedings which, of course, may have ended with no finding of guilt.[3]
- [5]At the hearing of this matter the Magistrate stood the sentence down so that the quantum of the damage could be obtained. At the further hearing of the matter on 14 December 2020 a copy of a quote for damage was handed up and tendered. However, that was not marked as an exhibit and is now no longer on the file. The Magistrate mentioned that there was $8,000 worth of damage over a period of hours. However, the actual breakdown of the damage is not available on this appeal.
- [6]Section 12(1) of the Penalties and Sentences Act 1992 (Qld) provides a wide discretion to the courts as to whether in relation to the recording of a conviction. The criteria relevant to the exercise of that discretion, namely the nature of the offence, the offender’s character and age and the impact that the recording a conviction will have on the defendant’s economic or social wellbeing and chances of finding employment are all relevant factors to consider.
- [7]In Briese[4] the Court of Appeal noted that there is a need to balance competing principles when deciding whether to record a conviction:
“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.”
- [8]In relation to the prospects of obtaining employment it was noted in R v Cay, Gersch and Schell; ex parte A-G (Qld)[5]:
“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, 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. 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.”
- [9]In this case the offender was 18 and therefore on the cusp of adulthood. The nature of the offence was serious in that it was in a detention facility, however the defence pointed to his efforts to rehabilitate himself by undertaking further education. He had no previous convictions. He was remorseful and it was an early plea. The Magistrate was clearly overwhelmed by the unfounded assumption that “if he was in the detention centre he’s got pages and pages and pages of criminal history”.[6]
- [10]The Crown concedes that there was a miscarriage of the sentencing discretion in that the Magistrate relied heavily on impermissible aggravating features when assessing the appellant’s character which resulted in error. The Crown concedes that in the circumstances of this offence it was open for no conviction to be recorded particularly given the young age of the offender and his previous lack of criminal history.
Order
- [11]The appeal is allowed, the conviction is set aside and no conviction is recorded.