RAJ v Commissioner of Police[2024] QDC 26

Introduction

1. [1]
   On 14 September 2023 at Caboolture Magistrates Court, the appellant pleaded guilty to unlicensed driving; driving an unregistered vehicle and driving an uninsured vehicle.  The appellant was sentenced to pay a $100 fine for unlicensed driving and a $200 fine for driving an unregistered and uninsured vehicle.  Convictions were recorded.  No action was taken against the appellant’s licence. 
2. [2]
   The charges arose from events occurring on 24 July 2023. The appellant was observed by police leaving an undercover carpark driving a motorbike.  He was unlicensed to ride a motorbike although held a licence with respect to driving a car.  The motorbike was unregistered and uninsured.  The appellant was said to have co-operated with police. 
3. [3]
   The appellant appeals the sentence imposed on the ground that the sentence was excessive by virtue of the recording of convictions. 
4. [4]
   The respondent concedes that the sentences imposed, to the extent that convictions were recorded, resulted in sentences being imposed which were excessive in the circumstances. 

The appellant’s antecedents

5. [5]
   The appellant was 18 years of age at the time of the offending and 19 at sentence. The appellant has a brief but relevant traffic record which contains convictions on 28 April 2021 for failing to wear a helmet while riding a bicycle and on 17 July 2022 for unlicensed driving and using or permitting use of an unregistered motorbike. The offences were committed while the appellant was a youth. No convictions were recorded. The appellant has no criminal convictions. 
6. [6]
   The appellant’s biological parents were drug addicted and neglected the appellant. As such, the appellant has lived with long-term legal guardians with whom he continues to reside. 
7. [7]
   The appellant has a family history of bipolar affective disorder and as such was on lithium from the age of 16 years. The use of lithium ceased in January 2023 when the appellant was 18 years old and no decline in mood was observed. The appellant has a low-average intelligence quotient and has been on a disability pension since the age of 16. The appellant has required more involved levels of supervision to learn and has struggled to cope with work.  As at the timing of the sentence the appellant was looking for work as a delivery driver for food items. 
8. [8]
   The appellant had been seeing a psychiatrist for two and half years, who described him as showing significant stabilisation that was likely due to maturation and a stable living environment. 
9. [9]
   The appellant wrote a letter which was tendered at sentence in which he expressed, consistent with his cognitive difficulties, that after his mother showed him a registration renewal notice and explained to him the significance, in terms of insurance of registering a vehicle, that he was ‘sorry for breaking these laws and I know that I need to respect all laws even if I don’t understand why those laws exist.’ 

Nature of the appeal

10. [10]
    As this is an appeal against the exercise of the sentencing discretion, this Court is empowered to intervene only if it is established that the learned Magistrate acted upon a wrong principle; mistook the facts; took into account irrelevant circumstances; failed to take into account relevant circumstances or imposed a sentence which was ‘unreasonable or plainly unjust’ such as to demonstrate that the sentencing discretion miscarried even though no specific error can be identified.^[1]

Consideration

11. [11]
    Section 12(2) of the Penalties and Sentences Act 1992 (Qld) (‘PSA’) provides the following:

1. A Court may exercise a discretion to record or not record a conviction as provided by this Act.
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.

12. [12]
    In Wilson v Commissioner of Police^[2], Morzone KC DCJ articulated the application of the discretion to record convictions for traffic offences:

‘[Section 12] recognises that the recording of a conviction has considerable potential public impacts on an offender’s social and economic wellbeing and work prospects. The identified considerations are not exhaustive. And while the application of the relevant considerations may differ, having regard to the circumstances of the particular case, this Court has dispelled the legal fiction of distinguishing a traffic offence conviction to a conviction recorded for any other type of criminal offence. The recording of a conviction is both a legal and social censure, which results in a diminution of a defendant’s character in the community.’^[3]

13. [13]
    It is well established that the considerations listed in section 12(2) PSA are not exhaustive and do not have general predominance to one another and must be kept in balance.^[4] In some cases however, one may be given greater weight.^[5]
14. [14]
    The learned Magistrate turned his mind to the recording of convictions.  His reasoning for having recorded convictions is limited.  He said that on the material before him he was not satisfied to the extent where he could exercise his discretion to not record convictions.  His principal reason appears to be because these were traffic convictions.  He referred to decisions of Morzone KC DCJ and Porter KC DCJ, however, neither party has been able to identify which decisions he was referring to.
15. [15]
    It is reasonable for the Court to take the view that traffic convictions may reasonably be expected to impact the appellant’s chances at finding employment and therefore his economic and social wellbeing, particularly if driving is a requirement of the role.  The appellants antecedents, particularly his low-average intelligence, suggest his chances of finding employment may already be more restricted than a person of average intelligence. The impact of recording a conviction will likely be disproportionate when considering the young age of the appellant at the time of the offending and the low-level nature of the offending. The appellant’s character in being forthcoming with police and indicating remorse for the offending also inform the exercise of any discretion to not record a conviction.
16. [16]
    In Wilson, the recording of a conviction was quashed on appeal. Indeed, Wilson differed from the present case in that the charge attracting the recording of a conviction was a charge of driving under the influence of liquor, a more serious charge than those in the present case. The appellant in Wilson was also aged 23 years at the time of the offending and was therefore more mature.
17. [17]
    The relevant consideration is the impact on the offender’s chances of finding employment.^[6] While there have been no submissions made regarding the prevalence of traffic convictions being used in police checks in the course of gaining employment or their impact, I am of the view that the chance of such an impact on the appellant’s ability to obtain employment driving a motor vehicle, when considered against the low-level nature of the offence and the appellant’s young age and good character is sufficient to warrant the non-recording of convictions. 
18. [18]
    Upon balancing the considerations, the nature of the offences do not, in my view, involve such seriousness that they favour convictions being recorded.   I consider that the sentence imposed by the learned Magistrate was manifestly excessive by virtue of the recording of convictions. 
19. [19]
    For those reasons I will allow the appeal.
20. [20]
    The orders of the Court are:

    1. The appeal is allowed.
    2. The sentences imposed on 14 September 2023 are set aside to the extent that convictions were recorded. 
    3. No convictions are recorded. 
21. [21]
    As there is no objection by the respondent to an order for costs, I further order that the respondent pay the appellant’s costs of the appeal fixed at $1800.