Kiviranta v Commissioner of Police
[2023] QDC 23
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- Kiviranta v Commissioner of Police[2023] QDC 23
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Kiviranta v Commissioner of Police[2023] QDC 23
Kiviranta v Commissioner of Police[2023] QDC 23
DISTRICT COURT OF QUEENSLAND
CITATION: | Kiviranta v Commissioner of Police [2023] QDC 23 |
PARTIES: | KAREN KIVIRANTA (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 1179 of 2022. |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Caboolture Magistrates Court |
DELIVERED ON: | 2 February 2023 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 February 2023 |
JUDGE: | Byrne KC DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – JUSTICES ACT 1886 s 222 – drink driving – impact on employment of recording a conviction – where ground of appeal was that the sentence was manifestly excessive and the sentencing judge erred in recording a conviction – whether a conviction could have been be recorded. |
LEGISLATION: | Justices Act 1886 (Qld), s 222 Penalties and Sentences Act (Qld), s 12 |
CASES: | House v The King (1936) 55 CLR 499 Kemp v The Commissioner of Police [2021] QDC 30 McDonald v Queensland Police Service [2018] 2 Qd R 612 Norbis v Norbis (1986) 161 CLR 513 R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467 R v Kelley [2018] QCA 18 Wilson v The Commissioner of Police [2022] QDC 15 |
COUNSEL: | J Torcetti (solicitor) for the appellant L Devereaux (solicitor) for the respondent |
SOLICITORS: | Murray Torcetti Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]On 19 May 2022 the appellant was convicted on her own plea of guilty in the Caboolture Magistrates Court of one charge of driving a motor vehicle while over the middle alcohol limit but not over the high alcohol limit. She was fined $650 with that penalty referred to SPER. She was also disqualified from holding or obtaining a driver’s licence for four months. The magistrate recorded a conviction for the offending.
- [2]The next day a notice of appeal was filed alleging that the recording of the conviction rendered the sentence manifestly excessive in all of the circumstances.
The nature of the appeal
- [3]The appeal has been brought pursuant to s 222 of the Justices Act 1886, and so is by way of a rehearing on the record. In this appeal it is necessary for me to consider the evidence and make up my own mind about the effect of it, particularly where any inferences are to be drawn from primary facts.[1] The onus is upon the appellant to show that there is some relevant error in the decision under appeal.[2]
Given the present appeal is an appeal against the exercise of a discretion, the principles from House v the King[3] apply. The appellant submits that there is an error of the last category referred to by the High Court in that decision. Adapting the words from that decision, a sentence will be manifestly excessive if it is “unreasonable and plainly unjust”. It is sometimes said that the decision must be one that no reasonable decision maker could have made. A conclusion to that effect will not be made simply because the appellate court, if in the position of the primary judge, would have taken a different view.[4] It follows that the appellate Court will not interfere unless the error in the exercise of discretion below is very clear.[5] Particularly, the Court may only intervene if it concludes that the sentence falls outside the permissible range of sentences in light of all of the relevant circumstances including the circumstances pertaining to the offender and to the offence itself. [6]
The proceedings below
- [4]The proceedings below were conducted with the usual economy which attaches to a short sentence hearing in that jurisdiction. That does not, of itself amount to an error, but the submissions made, or lack of them, remain relevant in establishing error and determining if error has been proven.
- [5]The appellant was intercepted by police on Anzac Day and asked to provide a sample of breath for analysis. It returned a reading of 0.116. Although the Magistrate was not specifically told by the prosecutor or defence solicitor, the bench charge sheet before the Magistrate showed that the appellant was 56 years of age and was employed as a finance officer. She had a minor traffic history that was of no particular relevance, other than it showed that there was no previous entry concerning any drink or drug-driving offence.
- [6]In sentencing, the Magistrate expressly stated that he took into account the plea of guilty at the first available opportunity, her age and lack of prior convictions. He also took into account a reference which had been provided by the appellant’s husband speaking of this being completely out of character for her, and a certificate showing she had completed the QTOP program.
- [7]He said that he would reduce the fine and the disqualification because of all of that. He imposed the fine and disqualification earlier referred to and indicated that ordinarily the latter penalty would be closer to six months. He then stated:
“I am not satisfied that I should not record a conviction. I cannot see any requisite impact upon you, to be honest. It is pretty much the bald assertion that it will impact your employment. It may do, but it is just not precise enough for me. So, I do not exercise a discretion in your favour under s 12. Conviction is recorded.”
- [8]The reference to the “bald assertion” is a reference to brief submissions made on the topic at the invitation of the Magistrate. I note that they were invited even though the Prosecutor had not ventured into that area. They were that the considerations for a conviction being recorded for a traffic matter are the same as for a criminal matter. That was properly accepted by the Magistrate. They continued that:
“… whilst there are nothing similar on the record, and it is not the highest version of the offence, that it – a traffic conviction should not be recorded, in my submission. There may be other employment [indistinct] where employers look through a traffic record.” ([indistinct] portion in transcript)
In oral submissions before me it was accepted by the solicitor who appeared below that the indistinct word was probably “opportunity” or some similar word or phrase.
The parties’ submissions
- [9]The appellant contends that the penalties otherwise imposed recognised matters in her favour, and that the subsequent recording of a conviction was inconsistent with the balance of the otherwise moderate sentence and rendered the overall sentence excessive. It is submitted that the sentencing Magistrate erred by a misapplication of the considerations in s 12 of the Penalties and Sentences Act.
- [10]The appellant recognises that in order to succeed she must satisfy the criteria set out in House v The King. The appellant also points to statements of principle to be found in other District Court appeal cases, namely Wilson v The Commissioner of Police[7] and Kemp v The Commissioner of Police[8] as to the recording of a conviction and the presumed prejudicial effect that will have.
- [11]In essence, the respondent contends that it was open to record a conviction in the particular circumstances of this matter, as they were placed before the sentencing Magistrate. It is emphasised that there was no material placed before the Magistrate to show with any specificity any impact on employment which would be suffered by the recording of a conviction.
Consideration
- [12]It is trite to say that s 12 of the Penalties and Sentences Act allows for the exercise of a discretion as to the recording of a conviction. All relevant factors must be taken into account in considering whether the discretion not to record a conviction should be exercised favourably or not. Some of those matters will also be relevant to other aspects of the punishment to be imposed, but some will be only, or at least more obviously, relevant to the exercise of this discretion.
- [13]In R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467, [45] Keane JA said, in an oft quoted passage:
“The point to be made here is that the very nature of some offences means that the recording of a conviction will inevitably damage an offender’s future employment prospects and, therefore, his or her prospects of rehabilitation. It is for this reason that, for example, a court might be quicker to record a conviction for offences that might only be relevant to certain employers, such as dangerous driving, then for offences that would concern all potential employers, such as fraud or stealing as a servant. … of course, it may be accepted that simply to point to a possible detrimental impact on future employment prospects will usually be insufficient, of itself, to warrant the positive exercise of the discretion to order that a conviction should not recorded.” (Footnotes omitted)
- [14]While short judgments were given by the other members of the Court, nothing said therein detracts from the force of those observations. For more recent observations to similar effect see R v Kelley.[9]
- [15]In oral submissions before me, the appellant’s solicitor argued that the offending involved in both R v Cay, Gersch and Schell and in R v Kelley was significantly more serious than the current offending. That may be the case, but it does not, in my view, detract from the applicability of those observations as part of the overall balancing process in the exercise of the discretion.
- [16]Further, the observations I have referred to should not be thought to be contrary to the observations of some judges of this Court in Wilson v The Commissioner of Police and Kemp v The Commissioner of Police. In fact, when one looks at the facts of those two cases, they are entirely consistent with the quoted observations.
- [17]In the present matter the appellant, although I would hesitate to call her of mature years, did not have the benefit of youth. There was nothing placed before the Magistrate as to what the appellant’s actual occupation was, but I proceed on the basis that his Honour had regard to the occupation as stated on the bench charge sheet.
- [18]Further, there was nothing as to how the recording of a conviction would affect her continued present employment, nor with any specificity as to the impact on future employment. Also, it was not suggested that there was any future employment in actual contemplation.
- [19]While it may be accepted that the recording of a conviction for any offence casts some shadow over the reputation of the person convicted, the nature of the offence here is not such as to tend to require that it be hidden from the whole world.
- [20]As I have said, I do not consider the cited District Court appeal cases to differ from the quoted statements of principle. What is however obvious in each of them is that the appellants in those cases were considerably younger than the present appellant. Further, in Kemp the subject offence was a minor stealing offence where the appellant had no prior convictions at all and there was a plausible explanation for how the offence came to be committed, which detracted considerably from the seriousness of it.
- [21]It is true that the police prosecutor in the matter before me did not seek the recording of a conviction. However, I accept the respondent’s submission that the Magistrate was not bound by any view that may have been formed by the failure to make any submission on the topic. To have recorded a conviction there would have been disproportionate to the overall circumstances of the matter.
- [22]The assumption that any form of conviction may restrict access to future employment is more readily applicable where the offender is a more youthful person, or promotes other circumstances that more reliably demonstrate the prejudice suffered by the recording of a conviction, than is the case here. Those matters are, in part, the explanation for statements to the effect that actual prejudice should be demonstrated to gain a favourable exercise of the discretion.
- [23]It is clear enough that the current offence was an aberration on the part of the appellant. Nonetheless, it cannot be said that the offence had some serious aspects to it. Nor can it be that the Magistrate did not have regard to the matters placed before him, as brief as they were.
- [24]I accept that the non-recording of a conviction would, in my view, also have been open as a proper exercise of the discretion under s 12. But that does not, of itself, mean that the recording of the conviction was the result of an improper exercise of discretion, and it is not the function of the appeal court on a rehearing to substitute its own preferred view for that of the decision under appeal.
- [25]I am unable to accept that the criteria for the overturning of a discretionary decision from House v The King have been met. Overall, the effect of the sentence with the recorded conviction is more harsh than without it, but it is not manifestly excessive and, accordingly, the appeal must be dismissed.
- [26]The respondent did not seek costs in the event that she succeeded on the appeal, and so there will be no order for costs.
Orders
- [27]My orders are as follows:
- Appeal dismissed.
- No order as to costs.
Footnotes
[1]McDonald v Queensland Police Service [2018] 2 Qd R 612, [47].
[2]McDonald v Queensland Police Service, ibid.
[3](1936) 55 CLR 499, 504-505.
[4]House v The King, ibid; Norbis v Norbis (1986) 161 CLR 513, 518-519.
[5]Lovell v Lovell (1950) 81 CLR 513, 519, 533 – 534.
[6]Kentwell v The Queen (2014) 252 CLR 601, [35].
[7][2022] QDC 15.
[8][2021] QDC 30.
[9][2018] QCA 18, [55]-[57].