KFL v Commissioner of Police[2023] QDC 20

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 31 October 2019, a protection order was made naming the appellant as the respondent. On 8 April 2022, the appellant pleaded guilty in the Magistrates Court at Southport to one charge of contravention of a domestic violence order (aggravated offence), contrary to section 177(2)(A) of the Domestic and Family Violence Protection Act 2012 (Qld). The offence, committed on 30 January 2022, was aggravated as the appellant had been sentenced for another contravention within the previous five years. The appellant was sentenced to a fine of $800. A conviction was recorded.

2. [2]
   The appellant has appealed against his sentence. In an amended notice of appeal the grounds are stated as:

1. (a)
   The learned magistrate did not comply with section 13 of the Penalties and Sentences Act 1992 (Qld) by stating that he took the plea of guilty into account.
2. (b)
   The learned magistrate did not have proper regard to section 12 of the Penalties and Sentences Act 1992 (Qld) by recording a conviction.
3. (c)
   The overall sentence was manifestly excessive in all the circumstances.

3. [3]
   The application for leave to amend the notice of appeal by substituting the grounds of appeal was not opposed by the respondent^[1] and I granted leave at the hearing.

Facts of the Offending

4. [4]
   Conditions of the protection order included that the appellant was prohibited from remaining at the aggrieved’s residence at Pacific Pines and entering or attempting to enter or approach within 100 metres of the premises of any place where the aggrieved resides.

5. [5]
   Police attended the address of the aggrieved on 30 January 2022. The aggrieved told officers that she had allowed the appellant to reside at her address for a week while he recovered from COVID symptoms. On the last day, when the appellant was feeling better, the aggrieved asked him to leave. The appellant refused to leave until the complainant advised that the police had been called.^[2]

The Appellant’s Antecedents

6. [6]
   The appellant was aged 37 at the time of offending and sentence. His criminal history contains one entry for contravention of a domestic violence order and assault occasioning bodily harm from 2019, which was perpetrated against the same complainant as the offending subject to this appeal. The appellant was sentenced to a fine of $800 and no conviction was recorded.^[3]

Nature of the Appeal

7. [7]
   The appeal is brought pursuant to s222 of the Justices Act. This Court is required to conduct a review of the sentencing hearing and ultimately correct any error of the sentencing Magistrate. As the appeal is in respect of an exercise of discretion, an error in the exercise of the sentencing discretion as identified in House v The King^[4] needs to be demonstrated.^[5] This Court may confirm, set aside or vary the appealed order.^[6]

Further Evidence

8. [8]
   Leave is sought by the appellant under section 223 of the Justices Act to adduce further evidence namely an affidavit in his name.

9. [9]
   The appellant filed an affidavit on 3 August 2022, where he deposed to the following matters:

1. (a)
   At the time of his sentence in the Magistrates Court, he advised his legal representative that he was a delivery driver and did not wish for a conviction to be recorded as it “would impact [his] employment and prospects of future employment”.^[7]

2. (b)
   The appellant “was shocked when [his] legal representative did not attempt to convey [his] instructions to the Court”.^[8]
3. (c)
   The appellant advised his legal representative that the offence was not of a violent nature, being an assertion supported by his partner (the aggrieved in the matter) who was also present in Court to support the appellant.^[9]
4. (d)
   The appellant has “travel aspirations”, including for potential employment.^[10]
5. (e)
   The appellant has “since found that [his] options of employment have been cut short due to [a] conviction being recorded”.^[11]

10. [10]
    Whilst the application for leave to adduce further evidence was opposed by the respondent in written submissions,^[12] in oral submissions it was conceded that if the appeal was allowed and I was exercising the sentencing discretion afresh, then it was in the interests of justice for leave to be granted.

11. [11]
    I am prepared to grant leave for the appellant to adduce further evidence. The affidavit details the matters he expected to have placed before the court by his legal representative relevant to the recording of a conviction. The contents of the affidavit are not contested by the respondent. The submissions by the legal representative below did not address the criteria in s 12(2)(c) of the Penalties and Sentences Act (1992) (Qld) (the Act). In circumstances where, for the reasons set out below, I conclude that the sentencing discretion should be exercised afresh, it is in the interests of justice to take into account the affidavit material which deposes to the impact of recording a conviction on the appellant.

Discussion

Ground 1: The learned Acting Magistrate did not comply with section 13 of the Penalties and Sentences Act 1992 by stating that he took the plea of guilty into account

12. [12]
    Section 13 of the Act provides that in imposing a sentence on an offender who has pleaded guilty, a Court must take the guilty plea into account and may reduce the sentence that it would have imposed had the offender not pleaded guilty. Section 13(3) of the Act states:

“When imposing the sentence, the Court must state in open Court that it took account of the guilty plea in determining the sentence imposed”.

13. [13]
    The sentencing remarks of the learned Acting Magistrate do not make any reference to the appellant having pleaded guilty. The entire sentencing remarks of the learned Acting Magistrate are:

“All right. So from what I am told, that (sic) the aggrieved allowed you to attend at the address by permission. That seems, from what Mr Savic has told me, the whole house was isolating, so there you were no greater danger to them than they each were to each other. Obviously, though, when that consent is withdrawn, you were expected to leave, and that is really why you are in trouble today. But it seems that you have been in a situation where that order has now been varied, so you can have that contact now. So I will take those matters into account. I am prepared to accept, as the Sergeant says, the fine is an appropriate disposition. That is not contested by Mr Savic. So under the circumstances, you will be convicted and fined $800, which I will refer to SPER for registration. A conviction is recorded”.

14. [14]
    The respondent concedes that the sentencing remarks of the learned Acting Magistrate do not expressly state that he took the appellant’s plea of guilty into account.

15. [15]
    The respondent submits at paragraph 8.2 of written submissions:

“Non-compliance with s 13(3) of the Penalties and Sentences Act 1992 will not always require a review of the sentence, particularly where it is clear that the guilty plea was taken into account.^[13] However, in the absence of the Acting Magistrate’s express statement and in circumstances where the decision is brief, it is conceded that the Acting Magistrate did not comply with s 13 (3) of the Penalties and Sentences Act 1992. Despite this, it is submitted that this material error did not infect the sentence”.

16. [16]
    The appellant submits that the learned Acting Magistrate fell into error by failing to comply with section 13 of the Act and the appeal should be allowed on this ground.

17. [17]
    As the Court said in R v Woods [2004] QCA 204:^[14]

“the necessity to take a guilty plea into account and state that it has been done and how it has been done is an essential part of the transparency of the sentencing process”.

Further, as was said by Daubney J in R v Harris [2008] QCA 141 at page 4:

“Section 13 is a significant element in the mechanism of achieving efficient administration of criminal justice in this State. It self-evidently provides for an accused to receive appropriate and tangible recognition in the sentencing process for the savings in time and cost to the Courts, the prosecuting authorities, and to publicly funded or community-based defence organisations which result from the entering of a plea of guilty or at least to be expressly told why such recognition is not being given in a particular case…”.

18. [18]
    This is not a case where it is evident that the guilty plea was in fact taken into account.^[15] There is no statement by the learned Acting Magistrate that the appellant had pleaded guilty and there is nothing in the sentence imposed which makes it clear that the guilty plea was taken into account. There is reference in the sentencing remarks to taking other factors into account namely the circumstances of the contravention and that the terms of the protection order had since been varied but there was no reference to the guilty plea. In this case, the requirements of section 13 of the Act have not been complied with. I allow the appeal on this ground.

Ground 2: The learned Acting Magistrate did not have proper regard to section 12 of the Penalties and Sentences Act 1992 by recording a conviction

19. [19]
    The learned Acting Magistrate did not provide any reasons for recording a conviction and all that is said on the topic is “a conviction is recorded.”^[16] The respondent submits that the learned Acting Magistrate “may well have” considered the factors contained within section 12(2) of the Act when deciding to record a conviction.

20. [20]
    The learned Acting Magistrate was given no real assistance by the parties. The prosecution “requested”^[17] that a conviction be recorded but made no submissions as to why. The appellant’s legal representative, when asked by the learned Acting Magistrate, submitted that it was within his discretion to not record a conviction but then said “I might be stretching it a little” and did not put forward any reasons as to why, in the exercise of discretion, a conviction ought not be recorded.^[18]

21. [21]
    As detailed, the sentencing remarks are silent as to why a conviction was recorded. No reference was made to section 12(2) of the Act nor to any of the factors identified 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”.

22. [22]
    I am satisfied, in all the circumstances, that the discretion miscarried and the appeal should also be allowed on this ground.

Disposition

23. [23]
    As detailed above, I allow the appeal on grounds 1 and 2 noting that only one needs to be established. I proceed to sentence afresh. The only issue taken by the appellant is in relation to the recording of a conviction.

24. [24]
    Section 12(2) of the Act provides:

12 Court to consider whether or not to record conviction

1. (1)
   A court may exercise a discretion to record or not record a conviction as provided by this Act.
2. (2)
   In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—

   1. the nature of the offence; and
   2. the offender’s character and age; and
   3. the impact that recording a conviction will have on the offender’s—

1. economic or social wellbeing; or
2. chances of finding employment.

25. [25]
    The respondent submits that a conviction should be recorded as the offence was the appellant’s second contravention of a domestic violence order, the appellant did not leave the complainant’s home until police were called and he is of mature age.

26. [26]
    As observed by Justice Lee in R v Brown ex parte Attorney-General (1994) 2 Qd R 182 at 193:

“The discretion is at large. The considerations are not limited to the matters contained in paragraphs (a), (b) and (c); they are inclusive. There is nothing in the Act which requires more weight to be given to any one factor than to the others. Relevant weight depends upon the circumstances of each case”.

In that same matter, Chief Justice Macrossan made this observation at 185:

“Where the recording of a conviction is not compelled by the sentencing legislation, all relevant circumstances must be taken into account by the sentencing court. The opening words of section 12 subsection (2) of the Act say so, and then there follow certain specified matters which are not exhaustive of all relevant circumstances. In my opinion nothing justifies granting a general predominance to one of those specified features rather than to another. They must be kept in balance and none of them overlooked, although in a particular case one, rather than another, may have claim to greater weight”.

27. [27]
    Considering the factors in s 12(2) of the Act:

1. (a)
   The nature of the offence – whilst any offending of this type is serious, the nature and circumstances of the offence is at the lower end of seriousness. It was a situation where the appellant failed to leave the residence when being requested to do so, after being allowed to reside there for a week. He left when police were called. There was no violence or threats against the aggrieved.

2. (b)
   The offender’s character and age – whilst the appellant, a mature man, does have a previous breach of a domestic violence order and assault in 2019 where a fine was imposed, he has never had a conviction recorded and has no other entries on a criminal history.
3. (c)
   Economic or social wellbeing or chances of finding employment – the appellant has provided a sworn affidavit that deposes that recording a conviction would impact his employment as a delivery driver and, following the conviction being recorded by the learned Acting Magistrate, he has “found that [his] options of employment have been cut short due to [the] conviction being recorded.”^[19]

28. [28]
    In all the circumstances, that is, taking into account the plea of guilty, that the offending falls at the lower end of the scale of seriousness, the applicant’s limited but relevant criminal history and the impediment that recording a conviction would impose on his chances of finding employment, I conclude that this is an appropriate matter to exercise the discretion to not record a conviction.

29. [29]
    Given that I have allowed the appeal on both grounds 1 and 2 and exercised the sentencing discretion afresh, it is not strictly necessary for me to consider ground 3. I would not have been prepared to conclude on the material before the learned Acting Magistrate that it was not open to record a conviction. There were no submissions made or material placed before the Acting Magistrate that recording a conviction would have any impact on the appellant’s economic or social wellbeing or chances of finding employment and it was a second breach of a domestic violence order. However, when taking into account the appellant’s affidavit, more particularly that it deposes that recording a conviction will have an adverse impact on the appellant’s chances of finding employment, it militates against the recording of a conviction such that when all relevant factors are considered and balanced, I would have concluded that the recording of a conviction is manifestly excessive.

Order

30. [30]
    1. The appeal is allowed.

2. The application to adduce fresh evidence is allowed.
3. The sentence imposed on 8 April 2022 be set aside insofar as the recording of a conviction is concerned.
4. No conviction is recorded.