RDB v Queensland Police Service
[2024] QDC 103
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- Unreported Judgment
- RDB v Queensland Police Service[2024] QDC 103
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RDB v Queensland Police Service[2024] QDC 103
RDB v Queensland Police Service[2024] QDC 103
DISTRICT COURT OF QUEENSLAND
CITATION: | RDB v Queensland Police Service [2024] QDC 103 |
PARTIES: | RDB (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 57/24 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Pine Rivers |
DELIVERED ON: | 31 May 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 May 2024 |
JUDGES: | Dearden DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST CONVICTION – where the offence was of a relatively minor nature – where the appellant was 22 years old and had a minor criminal history – whether there was likely to be an impact on the appellant’s economic wellbeing and/or chances of finding employment if a conviction was recorded – whether the learned magistrate erred in recording a conviction. |
LEGISLATION: | Penalties and Sentences Act 1992 (Qld) s. 12 |
CASES: | Jenkins v Commissioner of Police [2021] QDC 289 R v ZB [2021] QCA 9 R v Cay, Gersch and Schell; ex parte Attorney-General (Qld) [2005] QCA 467 |
COUNSEL: | D Funch for the appellant K Kinsella for the respondent |
SOLICITORS: | Howden Saggers Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]The appellant pleaded guilty at the Pine Rivers Magistrates Court on 15 December 2023 to one charge of breach of bail condition. He was fined $900 and ordered to pay the fine within three months. In default, nine days imprisonment. A conviction was recorded.
Grounds
- [2]The grounds of appeal are as follows:
- The learned magistrate erred in applying his discretion under s. 12 of the Penalties and Sentences Act 1992 (Qld) (PSA) in recording a conviction; and
- Whether, in all the circumstances, recording a conviction was manifestly excessive.
The law
- [3]I refer to and adopt my exposition of the relevant principles as set out in Jenkins v Commissioner of Police [2021] QDC 289 [7] - [9].
Circumstances of the offending
- [4]The appellant was 22 years old, and was placed on a bail undertaking on 14 January 2023. The bail undertaking contained various conditions, including a condition to report to the officer in charge, Gap Police Station, between 8 am and 4 pm every Monday from 16 January 2023, unless the appellant had written permission from the officer in charge, Gap Police Station, or the Director of Public Prosecutions to not report on a particular day.
- [5]On 17 March 2023, the condition was varied to require reporting at the Mango Hill Police Station on Mondays between 8 am and 4 pm.
- [6]On 18 November 2023, at 10.15 pm, the defendant was a passenger in a car intercepted by police at Racecourse Road, Hamilton. Police checks ascertained that he was wanted for questioning in relation to a bail breach for failing to report at the Mango Hill Police Station on 13 November 2023. When questioned, the appellant stated that he was working that day, and did not go to the police station to sign in. The prosecutor submitted that the appellant "…gave no emergent reason for not reporting on that day." The appellant was issued with a notice to appear, and pleaded guilty on the second mention, because his solicitors were not available on the first mention. It was clearly a timely plea of guilty.[1]
- [7]The appellant's criminal history[2] contained two entries, a dangerous operation of a motor vehicle on 5 September 2021, for which he was fined $1000, with no conviction recorded, and disqualified for six months from holding or obtaining a driver's licence, at the Brisbane Magistrates Court on 23 September 2021; and a breach of bail condition on 20 February 2023, for which he was fined $300, with no conviction recorded, at the Brisbane Magistrates Court on 27 March 2023.
- [8]The appellant's traffic history[3] contained 11 entries for exceeding the speed limit, as well as offences of unlicensed driving, failing to wear a seatbelt and failing to stop at a red light – in all, a total of 17 traffic offences from 21 December 2020 to 11 November 2023.
- [9]The prosecutor, at sentence, submitted that "…a fine is still within range", and having identified that the appellant had twice previously had no convictions recorded, submitted that a conviction should be recorded.[4]
- [10]The appellant's counsel submitted that a fine was appropriate, but submitted further that no conviction be recorded. He submitted that, given the appellant's current employment as an asphalter, following his career as a rugby league player, and as he was "working in the government, they do, obviously, regular checks within this industry." He also submitted that "…it could have an adverse impact on him continuing his employment, or perhaps gaining further employment in the future."[5]
- [11]The appellant's counsel submitted further that he had completed year 12; represented his state as a rugby league player; wanted to continue his current career as an asphalter, and possibly return to his former career [I infer as a rugby league player] in the future. The breach of bail, it was submitted, was based on the fact he could not attend due to his work commitments – it was new employment, he did not want to lose the job, and "made the poor decision to not attend and sign in", but "did have the intention of doing it at the earliest occasion on the next possible date". His lack of criminal history, youth, adverse impact on his employment, and the fact that he only had one prior entry for a breach of bail, were all matters stressed by his counsel in submissions.[6]
- [12]The learned magistrate clarified in an exchange during submissions that the police interception had occurred five days after the failure to report, and challenged the appellant's counsel on this issue, who indicated that the appellant had intended to apologise on his next weekly report.[7]
- [13]The learned magistrate then raised the issue of the appellant's traffic history, which the learned magistrate said, "shows his character", which the learned magistrate opined demonstrated "…an attitude and a character that suggests he doesn't care, and he doesn't care to comply with the law."
- [14]The appellant's counsel submitted in response that the traffic history was indicative of an immature young man, only 22 at sentence, and submitted further that it was the criminal history that could have an adverse impact.
- [15]There followed an exchange between the learned magistrate and the appellant's counsel, in which the learned magistrate asserted that the appellant was not taking his bail conditions seriously enough, and the appellant's counsel submitted that the appellant had, as a result of his immaturity, failed to appreciate the seriousness of his conduct in failing to report.[8]
- [16]The learned magistrate's sentencing remarks are brief, and can be repeated in full, as follows:
I take into account your early plea of guilty and the savings to the state. I've explained why both your criminal history and traffic history are relevant here today: it shows your character. You're not learning, yet you are capable of learning. You're not disabled from learning. You're not stupid either. Yet you have an attitude that shows a very marked disrespect for the law and your obligations to it.
You are 22 years of age. You're not a teenager; you're a grown man. You might still be youthful. It's all relative. You're certainly a lot younger than me, but you're a grown man, and you've previously been convicted for breach of your bail condition, and you're still facing some other serious charge. Whether you are guilty or innocent of it has no bearing on this today at all. You're on bail; you have to comply with it.
I take into account that you're educated [to] a year 12 level, that you work as an asphalter, and had a previous career as a rugby player. I agree a fine is appropriate, but there's nothing before the court to satisfy me that recording a conviction would have an adverse effect on your economic or social wellbeing. Today you're convicted and fined $900. A conviction is recorded. … three months to pay. In default of payment, nine days imprisonment.[9]
- [17]PSA s. 12(1) & (2) provides:-
- A court may exercise a discretion to record or not record a conviction as provided by this Act.
- In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including –
- the nature of the offence; and
- the offender's character and age; and
- the impact that recording a conviction will have on the offender's –
- economic or social wellbeing; or
- chances of finding employment.
- [18]The appellant's submissions as to why the recording of a conviction was manifestly excessive are set out at in their outline of submissions.[10]
- [19]The appellant submits four reasons why the recording of the conviction was manifestly excessive, namely:-
- The appellant's age and the potential impact on the appellant's social and economic wellbeing;
- Undue weight given to the appellant's criminal and traffic history.
- The nature of the offence, and;
- A conviction was recorded on the basis of an absence of material before the court upon which to conclude harm to economic and social wellbeing.
- [20]In summary, the appellant submits that the learned magistrate did not give due weight to the factors in PSA s. 12, in particular, to his age, education, former and current employment, and the potential adverse impact that the recording of a conviction could have on the appellant. The appellant relies on the observations of Sofronoff P in R v ZB [2021] QCA 9, at [10]. To this effect:
…as is implied by the factors that are identified in section 12(2)(b) and (c), the offender's subjective circumstances, so far as they relate to the offender's future prospects, are also significant matters. They raise for consideration whether the promise of future rehabilitation calls for and justifies affording the offender the advantages that flow from not recording a conviction. To put it another way, the question is whether the community will be better served by not placing the obstacles created by a recorded conviction in the path of the offender towards rehabilitation. The issue is not one of tenderness to the offender.
- [21]It's submitted that any reasonable tribunal would have concluded that the recording of a conviction would hamper future rehabilitation and would not benefit the community.
- [22]The appellant submits in respect of the criminal and traffic history that there were only two entries on the criminal history, and that the learned magistrate placed undue weight, or more accurately, drew impermissible inferences about the appellant's character, in particular, from that traffic history and the relevantly minor nature of the criminal history.
- [23]The appellant submits that the nature of the offence is a relevant matter, and again refers to the observations of Sofronoff P in R v ZB [2021] QCA 9, [6] where his Honour, effectively, says that some offences are so grave that it is right that the offender's crime should be noted officially as part of the community's denunciation, and impliedly, of course, indicates that a less serious offence may be less concerning in respect of the assessment of whether a conviction should be recorded.
- [24]The only two non-compliances with bail conditions since the appellant had entered his bail undertaking in January 2023 were, it is submitted, these two failures to report, which in context, at least arguably, are relatively minor offences.
- [25]In respect of the absence of material to enable a court to conclude harm to economic and social wellbeing, the appellant relies on a passage from Keane JA at [43] of R v Cay, Gersch and Schell; ex parte Attorney-General (Qld) [2005] QCA 467, where his Honour stated:
…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 section 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.
- [26]The appellant further relies on the observations of Mackenzie J in the same case at [75], namely:-
In cases involving young offenders, there is often uncertainty about their future direction in life. Perhaps, because of this, the concept may, in practice, often be less rigidly applied than in the case of a person whose lifestyle and probable employment opportunities are more predictable.
- [27]The appellant submits that there is an error on the part of the learned magistrate in recording a conviction purportedly on the basis of an absence of material.[11]
- [28]The respondent, on the other hand, whilst conceding that the magistrate "may have made a slight error in his sentencing approach" and that it did not "reflect a step-by-step consideration of section 12" submits that the magistrate did briefly consider the features of section 12 throughout his remarks.
- [29]It is submitted that, although there may have been "some error" in not reflecting a regimented consideration of section 12 [of the PSA], the matters before the magistrate do not necessarily affect the recording of a conviction in those circumstances.[12]
- [30]The respondent identifies that the criminal history reveals an offence of dangerous operation of a vehicle albeit that the appellant was fined, and no conviction was recorded, and that the conviction for breach of bail on 27 March 2023 (for which no conviction was recorded) related to the same bail undertaking to which the current breach of bail the subject of this appeal relates. The respondent also points out the significant traffic history with its multiple entries for offences including exceeding the speed limit, unlicensed driving, not wearing a seatbelt and failing to stop at a red light.
- [31]The respondent also submits that breaches of bail are offences which are viewed seriously by the courts and by the community, being an offence against a court order, and that this particular breach was slightly more serious because it was the second time that the appellant had breached the same bail undertaking, and had, in addition, previously varied his bail with the Director of Public Prosecutions to report to a different station, indicating that he clearly knew of his obligation to contact the Director's office to vary his bail, an option which was not taken up in this particular case.
- [32]The respondent also identifies what is submitted to be "relative youth", but indicates that that needs to be taken into account when assessing character and age in the context of both the criminal history and the traffic history, and submits that sufficient account had been taken of those two histories in the learned magistrate's assessment of the appellant's character. Finally, the respondent submits that there was no evidence that a conviction would adversely affect the appellant's current or future employment, only that it could. The respondent (entirely appropriately) recognises that the observations in the decision of R v Cay, Gersch and Schell; ex parte Attorney-General (Qld) [2005] QCA 467, but submits that the learned magistrate did take this into account.[13]
Discussion
- [33]The respondent's argument has the significant difficulty that any reading of the learned magistrate's sentencing remarks clearly indicates that the learned magistrate has effectively failed to engage with the specific provisions of the PSA s. 12(2). Although Mr Kinsella, for the respondent, submits that the learned magistrate did briefly consider the features of PSA s. 12 throughout his remarks, any such consideration during submissions can only be seen as testing the submissions made on behalf of the appellant, not reasons for the exercise or non-exercise of a discretion, and as is obvious from any reading of the learned magistrate's decision, there is an almost complete paucity of reasoning as to the exercise of the discretion pursuant to PSA s. 12.
- [34]The learned magistrate, in considering the nature of the offence, should, in my view, have concluded that it was a relatively minor breach of a relatively minor offence (albeit not the first time for the appellant, and noting, of course, that breaches of bail can be matters of some significant concern, but this was a weekly report to a police station only), and of course, that it was an offence committed by an immature 22 year old, with only two entries previously on his criminal history, both of which had no convictions recorded.
- [35]The learned magistrate, in my respectful view, appeared to place undue weight on the appellant's traffic history, which is, on any view of it, unattractive, but effectively appears to have relied on that in reaching a conclusion in respect of the appellant's character, to apparently conclude that a conviction should be recorded on his criminal history, which of course has a far more serious impact on the appellant's future, both social, economic or otherwise, than his traffic history, which in my view was an error.
- [36]The learned magistrate did have before him submissions in respect of the impact of recording a conviction, and as Keane JA points out in the passage that I have quoted from R v Cay, Gersch and Schell; ex parte Attorney-General (Qld) [2005] QCA 467, [43], that can be sufficient to exercise the discretion to not record a conviction.
- [37]In my view, it was clear that there was material before the court on which the learned magistrate could conclude that a conviction recorded would have a negative impact, in particular, on the appellant's economic wellbeing and/or chances of finding employment (PSA s. 12(2)(c)(i) & (ii)).
- [38]It follows, in my view, that the learned magistrate has erred in exercising his discretion to record a conviction pursuant to PSA s. 12(1).
- [39]I consider that, given the relatively minor nature of the offence, in its context; the appellant's relatively minor criminal history (on which no convictions had previously been recorded); his age (22) and immaturity; and the impact on his economic wellbeing and/or chances of finding employment, the learned magistrate should have exercised his discretion to not record a conviction.
Orders
- Appeal granted.
- Vary the sentence imposed at the Pine Rivers Magistrates Court on 15 December 2023 to delete the order that "a conviction was recorded" and substitute an order "that no conviction be recorded".
- The sentence imposed on 15 December 2023 is otherwise affirmed.
- No order as to costs.
Footnotes
[1] Exhibit 2 (Sentence Submissions) – T1-3.
[2] Exhibit 1 (Appellant Outline of Submissions).
[3] Exhibit 2 (Sentence Submissions).
[4] Exhibit 2 (Sentence Submissions) – T1-3.
[5] Exhibit 2 (Sentence Submissions) – T1-4.
[6] Exhibit 2 (Sentence Submissions) – T1-4.
[7] Exhibit 2 (Sentence Submissions) – T1-5.
[8] Exhibit 2 (Sentence Submissions) – T1-6.
[9] Exhibit 3 (Sentencing Remarks) – T1-2.
[10] Exhibit 1 (Appellant’s Outline of Submissions) – [15]-[26].
[11] Exhibit 1 (Appellant’s Outline of Submissions) – [15]-[26].
[12] Exhibit 4 (Respondent Outline of Submissions) – [6.]-[6.4].
[13] Exhibit 4 (Respondent Outline of Submissions) – [6.2]-[6.17].