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Kemp v The Commissioner of Police[2021] QDC 30

Kemp v The Commissioner of Police[2021] QDC 30

DISTRICT COURT OF QUEENSLAND

CITATION:

Kemp v The Commissioner of Police [2021] QDC 30

PARTIES:

ELOISE SARAH KEMP

(appellant)

v

THE COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

2700 of 2020

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to section 222 Justices Act 1866

ORIGINATING COURT:

Magistrates Court of Queensland

DELIVERED ON:

2 March 2021, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

2 March 2021

JUDGE:

Loury QC DCJ

ORDER:

  1. Extend time within which to file the Notice of Appeal to 22 September 2020.
  2. The appeal is allowed.
  3. Set aside that part of the sentence that involves a conviction being recorded.
  4. No conviction be recorded.

COUNSEL:

ML Jones for the appellant

D Sampey for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Office of the Director of Public Prosecutions for the respondent

  1. [1]
    On 2 October 2019 the appellant was convicted in her absence, pursuant to section 142 of the Justices Act 1886, of an offence of stealing.  She was fined $400 and ordered to pay $15.06 in compensation.  A conviction was recorded. 
  1. [2]
    On 22 September 2020 the appellant filed an application for extension of time within which to appeal her sentence and a notice of appeal. She indicated that she attended the Richlands Magistrates Court on 2 October 2019, but was mistakenly advised by court staff that she did not have to attend on that day. She did not know that she was convicted in her absence until February 2020 when she spoke to a duty lawyer. Due to the suspension of proceedings in the Magistrates Court she did not see a duty lawyer again until 17 July 2020 where she again saw a duty lawyer and discussed appealing her sentence. On 21 August 2020 she completed a Legal Aid application and a Notice of Appeal which she returned to Legal Aid on the understanding that it would be filed with the District Court as soon as was possible.
  1. [3]
    The respondent does not oppose the granting of an extension of time and concedes it would be in the interests of justice for such an extension to be granted.
  1. [4]
    An appeal to this court pursuant to section 222 of the Justices Act 1886 is by way of rehearing on the evidence before the Magistrate and any other evidence admitted with the leave of this court.  The appellant must demonstrate that the decision the subject of the appeal is the result of some legal, factual or discretionary error.  Such an error will be evident where the sentence is “plainly unreasonable or unjust”.[1]
  1. [5]
    The circumstances of the offence involved the appellant stealing fuel valued at $15.06. She went inside the store and said that she had forgotten her wallet and made arrangements to return the next day. When she did not return for two weeks a complaint was made to police. The appellant said, presumedly to the police upon being charged, that she was suffering from a deterioration in her mental health, that she was struggling with drug addiction and financial issues and that she had simply forgotten to return and pay for the fuel. She expressed remorse for her offending.
  1. [6]
    The learned Magistrate was not provided any material by the appellant in the form of a written plea of guilty. He said in his brief remarks that the offence of “petrol drive-off” was prevalent. He noted the appellant made admissions but said that she had shown no remorse by not having entered a written plea of guilty.
  1. [7]
    The bench charge sheet which was before the learned Magistrate reveals that the appellant was 25 years of age at the time of the offence. No previous convictions were alleged against her. Unfortunately, the police prosecutor who appeared at the ex parte hearing did not provide any of this information to the learned Magistrate.
  1. [8]
    The appellant argues that the recording of the conviction rendered the sentence manifestly excessive. Whilst no material was placed before the learned Magistrate in that regard, the appellant was still a young woman, who had expressed remorse to the police for her offending. It has been accepted that there is at least some social prejudice which attaches to the recording of a conviction. That prejudice may result in the offender being continually punished in the future in a way not commensurate with the punishment which is just for the offending. It might also stand in the way of rehabilitation, particularly by making it difficult for an offender to obtain employment.[2]  The very existence of a criminal record is likely to impair a person’s employment prospects.[3]  Section 12 of the Penalties and Sentences Act 1992 requires only that the Court consider the impact that the recording of a conviction will have on the offender’s chances of finding employment.  Whilst no material was placed before the learned Magistrate, given the appellant’s age and lack of criminal history, the balance favoured the non-recording of a conviction. 
  1. [9]
    The nature of the offence was not that the appellant simply filled her car with petrol and callously drove away without making payment. She attended inside the store and made arrangements to pay the following day but did not do so. The amount of fuel she stole was not significant. She was still a young woman with no criminal history. It could be accepted that the recording of a conviction for stealing would cause her some social prejudice and would impact on her chances of finding employment to such an extent that she would be continually punished in a way which was unjust when considered against the nature of the offence.
  1. [10]
    In those circumstances it can be inferred that there was some failure on the part of the learned Magistrate to properly exercise the sentencing discretion.
  1. [11]
    I will allow the appeal and set aside that part of the sentence that involves a conviction being recorded. I order that no conviction be recorded.

Footnotes

[1] House v The King (1936) 55 CLR 499 at 505.

[2] See R v Briese; ex parte Attorney-General (1988) 1Qd R 487.

[3] R v Cay, Gersch & Schell; ex parte Attorney-General (Qld) (2005) QCA 467.

Close

Editorial Notes

  • Published Case Name:

    Kemp v The Commissioner of Police

  • Shortened Case Name:

    Kemp v The Commissioner of Police

  • MNC:

    [2021] QDC 30

  • Court:

    QDC

  • Judge(s):

    Loury QC DCJ

  • Date:

    02 Mar 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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