Clinton v Commissioner of Police
[2022] QDC 222
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- Unreported Judgment
- Clinton v Commissioner of Police[2022] QDC 222
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Clinton v Commissioner of Police[2022] QDC 222
Clinton v Commissioner of Police[2022] QDC 222
DISTRICT COURT OF QUEENSLAND
CITATION: | Clinton v Commissioner of Police [2022] QDC 222 |
PARTIES: | Lachlan James CLINTON (Appellant) v Commissioner of Police (Respondent) |
FILE NO/S: | 156 of 22 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to section 222 Justices Act 1866 (Qld) |
ORIGINATING COURT: | Magistrates Court at Southport |
DELIVERED ON: | 12 October 2022 (delivered ex tempore) |
DELIVERED AT: | Southport |
HEARING DATE: | 12 October 2022 |
JUDGE: | Holliday KC DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – JUSTICES ACT 1886 s 222 – whether conviction should have been recorded |
LEGISLATION: | Justices Act 1886 (Qld), ss 222 and 223 |
CASES: | R v WAJ [2010] QCA 87 Wilson v Commissioner of Police [2022] QDC 15 |
COUNSEL: | J Morris for Appellant T Connolly (sol) for Respondent |
SOLICITORS: | Aegis Criminal Law for Appellant Office of the Director of Public Prosecutions for Respondent |
- [1]The appellant pleaded guilty in the Magistrates Court at Southport on 9 May 2022 to one charge of evading police contrary to section 754 of the Police Powers and Responsibilities Act 2000 (Qld). He was fined $7000 and disqualified from driving for the mandatory minimum period of two years. A conviction was recorded.
- [2]The appellant has appealed against the order recording a conviction for the offence. The ground of appeal is worded: “the learned sentencing Magistrate erred in recording a conviction”.
- [3]At the time of the offence, the appellant was 18 years of age and had no criminal history.
- [4]On 9 October 2021, police were patrolling in Upper Coomera and saw a car being driven without registration plates. The appellant was the driver of the car. Despite police activating their lights and siren, the appellant accelerated away from police. Polair was deployed in order to track the appellant. He was located at a service station in Wacol. He made admissions to the offence.
- [5]The appellant submits that the learned Magistrate erred in recording a conviction because:
- (a)whilst the sentencing Magistrate correctly identified that he had a discretion in relation to recording a conviction, he proceeded on the legally incorrect basis that the offence was a “traffic offence” as opposed to a criminal offence; and
- (b)in construing the offence as a “traffic offence”, he proceeded on the legally incorrect basis that recording a conviction would have a limited effect on the appellant as a “traffic offence” rather than a criminal offence.
- (a)
- [6]The prosecutor below made no submissions as to whether a conviction should be recorded. The exchange between the appellant’s legal representative below and the learned Magistrate, in relation to recording a conviction, is as follows:[1]
Mr Tannock: … The only other thing that I would ask Your Honour to cons – the only other submission I would make is with respect to recording a conviction. With the – in both his current roles for his mum and dad, there are some projects that they – they both work in construction in various capacities. There are some role – job sites that they go to – government buildings for example, where police background checks are requirements for employees to be on site. So if he can’t pass the police background check ---
His Honour: Well, who’s to say he’s not going to pass it? It’s not a criminal conviction; it’s a traffic offence.
Mr Tannock: True. There is some recent authority though that says that ---
His Honour: It’s a discretion that I have in relation to these things, but I’ve got nothing else apart from a verbal submission here about recording a conviction. Nothing from anyone to say that he’s going to be ---
Mr Tannock: I can’t ---
His Honour: --- troubled going anywhere.
Mr Tannock True. I can’t take it any further than that. Other than to say – and of course, there’s the – I suppose there’s the common-sense submission that an 18 year old with a serious conviction may have some difficulties later on down the track. It is increasingly difficult to hide traffic convictions and such things from police background checks, and from future employers. So they’re my submissions, unless ---
- [7]The sentencing remarks of the learned Magistrate do not give any reasons for the recording of a conviction and all that is said on the topic is: “You are convicted…”
- [8]The respondent concedes on this appeal that “the recording of a conviction… was erroneous”.[2] That concession is appropriate.
- [9]In Wilson v Commissioner of Police [2022] QDC 15, the sentencing Magistrate had imposed a conviction in respect of an offence of driving under the influence, but not in relation to the possession of dangerous drugs. The sentencing Magistrate said:
“I am not going to record a conviction for that [drug] charge, however, regarding the offence under the Transport Operations Act, I am going to fine you $800. You are going to be disqualified for a period of eight months, and a conviction is recorded. I have heard what Mr Rigdon had to say on your behalf, I do not accept that it is going to have any impact on your future…”[3]
In allowing the appeal, Morzone KC DCJ described distinguishing a traffic offence conviction to a conviction recorded for any other type of criminal offence as a “legal fiction” and “the recording of a conviction is both a legal and social censure, which results in the diminution of a defendant’s character in the community”.[4] I agree.
- [10]In the absence of any reasons in the sentencing remarks for recording a conviction, and given the exchange between the legal representative for the appellant and the learned Magistrate in this case as detailed above at [6], it appears that the learned sentencing Magistrate fell into the same error as in Wilson v Commissioner of Police.
- [11]As detailed, the sentencing remarks are silent as to why a conviction was recorded. No reference was made to section 12(2) of the Penalties and Sentences Act 1992 (Qld), nor to any of the factors in the sub-sections. As observed by Fraser JA in R v WAJ [2010] QCA 87 at [15]:
“Nevertheless, in the absence of any sentencing remarks expressly directed to the discretion or to the relevant provisions it is appropriate to proceed on the footing that the discretion miscarried and must be exercised afresh”.
- [12]I am satisfied that the learned Magistrate erred and I will proceed to sentence afresh in relation to the issue of the recording of a conviction.
- [13]The appellant was only 18 years of age at the time of the offence and sentence. He pleaded guilty at an early stage; he had no criminal history; and whilst he did have a traffic history by the time he was sentenced, he had taken steps to address his offending, having attended the Queensland Traffic Offenders Program. In addition, he was taking medication for pre-existing mental health issues. At sentence, he had the support of family and friends by way of character references and had obtained further qualifications and licences to enable him to work in landscaping.
- [14]In this case, the respondent concedes that no conviction should have been recorded. That is an appropriate concession to make. This is an appropriate matter to exercise the discretion to not record a conviction. The nature of the offence is not one which has a level of seriousness such that it calls for a conviction to be recorded, and all other factors detailed above militate against the recording of a conviction.
- [15]The order of the court is as follows:
- (a)The appeal is allowed.
- (b)The sentence imposed on 9 May 2022 be set aside insofar as the recording of a conviction is concerned.
- (c)No conviction is recorded.
- (a)