AKD v Commissioner of Police[2024] QDC 158

DISTRICT COURT OF QUEENSLAND

1. Background

1. [1]
   On 10 January 2024 the appellant pleaded guilty to two offences, one of Contravention of a Domestic Violence order and one of Common Assault.  The appellant was sentenced to probation for two years in relation to each offence and convictions were recorded for both. 
2. [2]
   By notice filed on 1 February 2024, the appellant appeals against the orders of the sentencing magistrate.  The appeal is pursuant to s. 222 of the Justices Act 1886.  An appeal pursuant to s. 222 is by way of rehearing on the evidence given in the proceedings before the magistrate and on the basis of any new evidence adduced with leave.
3. [3]
   The appellant contends that the penalty imposed was excessive in respect of the recording of convictions which was, he submits, the product of the learned magistrate failing to properly consider the factors relevant to the recording of a conviction under s. 12 of the Penalties and Sentences Act 1992, and the plea of guilty, which was entered at the earliest time.  The conclusion that these relevant factors were overlooked is evidenced, according to the appellant’s submission, by the lack of reference, or proper reference, to those factors in the sentencing remarks of the learned magistrate.
4. [4]
   The appellant’s offending was committed by him on the evening of 9 January 2024.  The following morning, 10 January 2024, he entered his pleas of guilty at his first appearance in the arrest Court having the benefit of advice and representation by the duty lawyer, who, on this occasion was an experienced criminal lawyer from Legal Aid Queensland.  The appellant’s plea was, without question, entered at the earliest possible opportunity.
5. [5]
   The relevant factual circumstances were placed before the sentencing magistrate in submissions.  At the time of the offending, the defendant was the respondent to a Protection Order under the Domestic and Family Violence Protection Act 2012 which commenced in June 2023.  That order prohibited the appellant from attending at the complainant’s usual place of residence, dictated that he be of good behaviour towards the complainant and further, and that he not commit domestic violence against her.  Despite the clear terms of that order, it seems that the complainant was staying, with the appellant’s consent, at his home from time to time, including on the night of the offences.
6. [6]
   On this evening, the appellant went out for dinner without the complainant.  Messages exchanged during the evening reflected some tension between them as a consequence of his decision to go out, which culminated in the appellant expressing some hostility by the use of an emoji which reflected a commonly understood hand gesture.
7. [7]
   Sometime later, the appellant again messaged the complainant and asked her to cook him some food for when he arrived home in an hour’s time.  The complainant’s negative response was clear and measured.  This prompted a series of 14 messages from the appellant to the complainant, effectively demanding that she leave his home.  The complainant gave no response.
8. [8]
   When the appellant arrived home, he continued to demand that the complainant cook him some food.  She declined and went to the bedroom.  The appellant followed her and verbally abused her in strong terms.  He then punched her on the left side of her face.  She retaliated by striking him to the face with her phone and kicked out at him to get him away from her.  He then grabbed her and dragged her along the hallway and forced her out of the unit and he locked the door behind her.
9. [9]
   Police were called to a disturbance and found the complainant visibly shaking and with an observable injury to the side of her face. 
10. [10]
    To the sentencing magistrate it was explained that the complainant did not have stable accommodation of her own, and that therefore, the appellant had allowed her to stay with him as he “feels sorry for her”.  Through his legal representative, the appellant expressed insight into the wrongfulness of his actions and that he was remorseful.  The court was told something of his personal circumstances:  that he is a mining engineer, employed on a ‘FIFO’ basis at sites in Queensland and in Western Australia, that he is in Australia from Papua New Guinea on a working visa which is valid until 2026, and that he has no children.^[1] 
11. [11]
    Of particular relevance, the court was told that he has entered his plea of guilty at the earliest time and that he has no prior criminal convictions.  It was made plain in submissions by the prosecutor that the relevant events occurred the previous evening.  Therefore, the fact that this was a plea entered at the earliest time cannot have been lost on the sentencing magistrate. 
12. [12]
    The duty lawyer then submitted that the magistrate consider not recording a conviction.  That prompted a response from the magistrate that his present thinking was that it was appropriate for convictions to be recorded.  The duty lawyer continued her submission and expressed an inability to place anything before the court as to the tangible impacts of a conviction being recorded.  Despite the lack of supporting material, the duty lawyer submitted that given the nature of his work, a recorded conviction would potentially have an impact on his employment.  That submission was, of course, framed as a potential impact, rather than an actual impact, because of the paucity of material available at that time. 
13. [13]
    After discussing the appropriateness of a probation order and the scope of it, the learned magistrate again returned to the issue of a recorded conviction in these terms;

“Just to be clear, my inclination is to record a conviction, given the nature of this offence, given the deterrence aspect of any sentence that needs to be imposed for these offences – given the allegations.  I mean, there is, it seems, a punch to the face of a person in circumstances of the background of those text messages.  And I think it needs to be clear that that type of behaviour is not acceptable.”

14. [14]
    It can be observed that those comments clearly made reference to the nature and seriousness of the offence, but made no reference to the other factors relevant to the exercise of the discretion to record a conviction set out in s. 12(2) of the Penalties and Sentences Act. 
15. [15]
    After additional general discussions relevant to the making of a probation order, and despite the invitation to make further submissions on that topic, or indeed any other relevant topic, the duty lawyer concluded her submissions.
16. [16]
    In his reasons for his decision, the magistrate referred to the circumstances of the appellant’s offending, his lack of previous convictions, the circumstances of his employment and the details of his background and personal circumstances (to the extent that they had been placed before the court).  The appellant was sentenced to probation for two years for each of the two offences to which he pleaded guilty.  Convictions were recorded.  
17. [17]
    The appellant now submits that as no specific reference was made to the appellant’s plea having been made at the earliest opportunity, nor the appellant’s expression of remorse, that I should conclude that those factors were given insufficient weight in the exercise of the sentencing discretion and resulted in a penalty which was excessive.  The appellant submits that properly considered in the context of all relevant circumstances, those factors ought to have weighed in favour of not recording a conviction. 

1. Were the pleas of guilty and expression of remorse properly considered?

18. [18]
    The lack of specific reference in the sentencing remarks to a relevant mitigating factor may not of itself evidence that the factor was not appropriately considered.  However, s. 13(3) of the Penalties and Sentences Act 1992 imposes a positive obligation on a sentencing court to state, in open court, that it took account of the guilty plea in determining the sentence imposed.   It is that positive requirement that is said to be absent in this case.  The fact that the events for which the appellant was being sentenced occurred only hours beforehand cannot have been lost on the sentencing magistrate. Whilst the magistrate opened his remarks by stating the fact of the appellant having pleaded guilty to the two charges before the court,  he did not formally announce that he took the fact of the plea of guilty, nor, perhaps more importantly, the timeliness of it, into account in determining the appropriate sentencing response. 
19. [19]
    The early plea of guilty was a significant mitigating factor in this case.  It evidenced a willingness to facilitate the efficient administration of justice, saved the community the expense of running a contested hearing, and saved the complainant from having to relive the events by giving evidence.  It also strongly supports the contention advanced by the duty lawyer that the appellant had insight into the wrongfulness of his actions and that he was remorseful.  Those factors suggest some potential in the appellant, for an offence-free future.
20. [20]
    Those factors ought to have weighed heavily in the exercise of the sentencing discretion.  Given the force of the plea of guilty in particular, it would be right to expect mention of it in the reasons for sentence, even were it not formally required by s. 13(3) of the Penalties and Sentences Act.  
21. [21]
    No challenge is made to the appropriateness of a period of two years’ probation, and in my view, nor could there sensibly be.  The factors referred to by the sentencing magistrate compellingly support such an outcome having regard to the principles of sentencing set out in s. 9 of the Penalties and Sentences Act. 
22. [22]
    However, the failure to specifically refer to the value and effect of the plea of guilty in this case as a factor taken into account in determining the appropriate penalty, especially in the context of the discretion to record a conviction, was an error.

1. Was the discretion to record a conviction properly exercised?

23. [23]
    The appellant further submits that the sentencing magistrate failed to properly consider the factors relevant to the exercise of discretion to record a conviction and, in particular the factors set out in s. 12 of the Penalties and Sentences Act.
24. [24]
    At the sentencing hearing, the duty lawyer expressed a ‘belief’ that there may be an impact from a conviction being recorded, given the nature of the appellant’s employment.  However, nothing further was submitted to support that submission. 
25. [25]
    The appellant seeks leave to adduce new evidence to support the submissions made as to the impact of the recording of a conviction and to demonstrate the actual, as opposed to the potential, impact of a recorded conviction.  The material now sought to be admitted was apparently available at the time the matter was heard, but given the speed with which this matter was progressed through the court, the opportunity to assemble this material was not taken.  Instead, the appellant sought to have the matter resolved in the most expeditious manner.  The material is therefore new, rather than fresh, but in my view, some dispensation is warranted, and the interests of justice are not served by denying the appellant the opportunity, on this appeal, to place material before the court relevant to the factor of most importance to him in the appeal. 
26. [26]
    Consequently, I am satisfied that there are special grounds for the granting of leave for the appellant to adduce the further evidence consisting of an affidavit under his hand, sworn on 26 April 2024, together with a number of exhibits.^[2]   The appellant deposes to some further details of his personal circumstances and employment.  The material which touches upon the consequences of a recorded conviction remains speculative rather than tangible.  The effect of it is that he will likely have to disclose his conviction, but I am unpersuaded that the recording of a conviction will lead inevitably to his loss of employment.  Similarly, there is no material which supports the conclusion that his visa is placed in jeopardy, nor that his opportunity to remain in Australia will be impacted by the recording of the conviction, as opposed to the fact of his having pleaded guilty, and therefore having been convicted, of these two offences.
27. [27]
    It is well understood by sentencing courts, that the recording of a conviction can have considerable ramifications for those against whom convictions are recorded.  The fact that it does, or can, is no bar to the recording of a conviction, if, in the exercise of a sentencing discretion, the sentencing judge or magistrate is satisfied that in all of the circumstances of the case, it is appropriate to do so.  However, it is recognised that sentencing courts must consider the combined effect of the orders, in the context of the purposes of sentencing and the applicable principles, to determine whether a sentence is appropriate.  
28. [28]
    Again, as this was a matter of discretion, there is a legislative obligation on a sentencing court to have regard to the factors set out in s. 12(2) of the Penalties and Sentences Act.  As already noted, given the circumstances in which the pleas were entered, there was no material available to the appellant to demonstrate any tangible impact from the recording of a conviction, and with the benefit of time and further material, the consequences remain somewhat speculative.  But that does not relieve the sentencing court of the requirement to expressly consider the impact, or the potential impact, in determining whether the sound exercise of the sentencing discretion none-the-less requires a conviction to be recorded. 
29. [29]
    The sentencing magistrate disclosed his thinking on the issue of recording a conviction during submissions by the duty lawyer in the terms set out in paragraph [13] of these reasons.  However, express articulation by the magistrate of the reasons for the recording of a conviction is absent in his sentencing remarks.  He referred to the mitigating factors – the lack of criminal history, his employment and the fact that he is in Australia on a work visa, his age (36), and that he has no children. Against that, he referred to the nature of domestic violence and the need for courts to impose sentences which have a general deterrent effect. 
30. [30]
    What remains absent, in both the hearing and the decision, is any articulation of a consideration of the impact that the recording of a conviction will have on the economic or social wellbeing of the appellant and his chances of finding (or maintaining) his employment.
31. [31]
    Given that the factors in mitigation in this case include that the appellant is a man with no criminal history and who entered a plea of guilty at the earliest possible opportunity, it is reasonable to expect specific reference to the reasons why, despite those (and the other) matters in mitigation, the nature of the offending and the principles and purposes of sentencing required that a conviction be recorded. 
32. [32]
    The appellant contends that the magistrate failed to have regard to “the impact that recording a conviction will have on the offender’s economic or social wellbeing.”  I am compelled to accept that contention.
33. [33]
    Consequently, the sentencing discretion miscarried. 

1. What is the appropriate penalty for this offending?

34. [34]
    Despite the inherent seriousness of this domestic violence offending, the appellant was sentenced only hours after his offending.  His were pleas of guilty entered at the earliest possible opportunity and at the first appearance of the appellant in court. 
35. [35]
    Inherent in his very early plea of guilty was a willingness to facilitate the efficient administration of justice and insight into the wrongfulness of his offending and remorse.  The inherent remorse was supported by his expression of remorse communicated by his legal representative.  He was otherwise a mature man of 36 years of age with no criminal history. 
36. [36]
    The consequences of his offending were expressly demonstrated by his arrest, prosecution, and the penalty imposed.  Whilst community denunciation, general deterrence and personal deterrence are important sentencing principles in a case such as this, so too is the rehabilitation of the appellant.  Whilst no victim impact evidence was placed before the court, offending of this nature would have an understandable impact on the sense of safety and wellbeing of his victim.  It also tends to undermine the community’s sense of safety and wellbeing.  There is therefore a strong community interest in stopping domestic violence offending.  The magistrate was right to consider deterrence as an important sentencing consideration.
37. [37]
    The imposition of a period of probation, which carries with it an opportunity for supervision, but also support and guidance whilst in the community can have a powerful impact on rehabilitation and in that way, protect the community from further offending.  Other requirements of a probation order can also have the effect of placing constraints on a person’s liberty and life, and in that way, have a limiting, and therefore, punishing impact on a person subject to such an order.  As such, there is a deterrent effect in the imposition of a period of probation.
38. [38]
    The more fulsome material, admitted by leave in this appeal, illustrates the interest of the appellant’s employer in the existence of criminal history as well as the understandable interest the Australian Government will have as to his suitability to remain in Australia, demonstrating the potential consequences of the recording of a conviction and the jeopardy he faces as a result. 
39. [39]
    Whilst I accept that, on the material provided,  the consequences remain potential rather than actual, the potential impact remained a relevant consideration.  The passage from Keane JA at [43] of R v Cay, Gersch and Schell; ex parte Attorney-General (Qld)^[3] is apposite;

“…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 s. 12 of the Act has never been said to require the identification of specific employment opportunities which will be lost to an offender is a conviction is recorded.  While a specific employment opportunity to opportunities should usually be identified if the discretion is to be exercised in favour of an offender, it is not an essential requirement”.

40. [40]
    In sentencing the appellant, it is necessary to impose a penalty which is just in all of the circumstances.  All of the circumstances include the particular facts of the offending, as well as the factors personal to the appellant, his good work history, his lack of prior convictions and his plea of guilty entered at the earliest possible opportunity.  A just sentence requires the balancing of the need to impose a penalty which punishes him appropriately, deters him and others from acting out in this way and protects the community, whilst also providing support for the appellant’s rehabilitation.  The imposition of a period of probation for two years is not challenged, and nor could it sensibly be. 
41. [41]
    However, in my view, the circumstances of this case warranted the appellant being given the opportunity to demonstrate that this offending was an aberration in an otherwise law abiding life and that with the benefit that the probation order provides, he is able to put this behind him and move forward without the burden of a recorded conviction.  Thus, I have concluded that the sound exercise of the sentencing discretion does not require the formal recording of a conviction. 

1. Orders

42. [42]
    I make the following orders;

1. The appeal is allowed.
2. The orders recording convictions is vacated and I order that instead, no convictions be recorded in relation to each of the two offences of Contravention of a Domestic Violence order and Common Assault to which the appellant pleaded guilty on 10 January 2024. 
3. The sentence imposed on 10 January 2024 is otherwise affirmed.
4. No order as to costs.