MG v Commissioner of Police[2024] QDC 72

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant appeals sentences imposed upon him in the Brisbane Magistrates Court on 14 December 2023.  On that occasion, the appellant pleaded guilty to one count of contravening a domestic violence order and one breach of bail condition. 
2. [2]
   On the contravening the domestic violence order he was fined $500 with a conviction recorded and he was convicted and not further punished with respect to the breach of bail condition.
3. [3]
   The appellant appeals the recording of the convictions.

Proceedings below

4. [4]
   The prosecutor informed the Magistrate that on 22 November 2022 a temporary protection order was made against the appellant as respondent containing five conditions.  This included prohibiting him from having contact with the aggrieved.  On 25 November 2022, the appellant was served and explained the order.  On 22 November 2022, he entered into a bail undertaking at the Southport Magistrates Court which included a condition that he not have contact or have anyone else contact the aggrieved. 
5. [5]
   On 9 December 2022 at 9.30pm, the appellant telephoned the aggrieved and said:

“hey babe it's me.  I can’t afford to get into trouble.  I want to reach out to you.  Do you know what I mean? I’m in Newmarket.  I miss you.  I miss you a lot.  Are you going to dob on me babe?  I’ve been fucked over by these cops.  They’ve ruined my life.  I’ve lost so much money.  Can I invite you over?”

6. [6]
   Police obtained a recording of this call and a statement from the aggrieved.  On 13 December 2022, they attended his bail address and arrested him for contravening the order and breaching his bail.
7. [7]
   The appellant’s criminal history was tendered.  This disclosed that he had a number of previous court appearances.  He first appeared in the Southport Magistrates Court in 1997 for behaving in a disorderly manner and was fined $50 with no conviction.  In August 1997, he was convicted and fined $210 for possessing a utensil.
8. [8]
   On 17 December 1998, he was convicted and fined $150 for behaving in a disorderly manner.  On 22 May 2009, he was fined with no conviction for assaulting or obstructing a police officer.  On 9 November 2015, he was fined $700 with no conviction for possessing dangerous drug x 2. 
9. [9]
   On 6 March 2019, he was given a drug diversion with no conviction for possessing dangerous drugs. 
10. [10]
    On 17 March 2022, he received a fine of $300 with no conviction recorded for contravening a police banning notice. 
11. [11]
    On 17 January 2023, he received no conviction and a fine of $100 for breach of a bail condition. 
12. [12]
    The substantive offences with which he was charged were common assault, assault occasioning bodily harm, deprivation of liberty and choking.  These have not yet been dealt with.
13. [13]
    A copy of the temporary protection order was tendered.
14. [14]
    The defence solicitor informed the Court it was a plea of guilty at the earliest opportunity.  The appellant had been arrested the day before and had spent one night in custody.  There were two charges arising out of the same conduct.  He was 45 years of age and owned his own business.  He had an Australian credit licence and owned a credit business.  There was no previous history for breaching a domestic violence order and it was agreed a fine should be imposed.  The lawyer asked the Magistrate to exercise the discretion to not record a conviction because he was a director of a business.  It was conceded there was no evidence the recording of a conviction would have a negative impact on him. 
15. [15]
    The Magistrate in his decision noted the pleas of guilty and took them into account.  He noted there was a temporary protection order which prevented him contacting the aggrieved but despite this breached it.  He did note there was a previous breach of bail condition.  Taking into account all matters, a fine was imposed and a conviction was recorded.

Appellant’s submissions

16. [16]
    The appellant submits that he was represented by the duty lawyer.  He is self-employed and has a financial licence.  He submits that the conviction means he will lose his financial licence and have to close his business. 

Respondent’s submissions

17. [17]
    The respondent submits the sentence is not manifestly excessive and the appeal should be dismissed.  It is conceded that whilst the offences are low level they were in breach of a court order.  It is submitted that the breach of the domestic violence order is a serious offence and it is difficult to see how a fine and the recording of a conviction is excessive.  It is submitted there was no evidence there would be a financial detriment to the appellant as a result of convictions being recorded and there is still no evidence before the Court on this point.  It is submitted the Magistrate took into account all relevant matters.  It is also submitted that the recording of a conviction is not outside the broad sentencing discretion despite his employment and his being the holder of an Australian credit licence.

Discussion

Principles

18. [18]
    Section 12 of the Penalties and Sentences Act 1992 (Qld) provides:

“12Court to consider whether or not to record conviction

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.”

19. [19]
    The approach to whether or not a conviction is recorded was discussed by the Court of Appeal in R v Briese; ex-parte Attorney-General.^[1] The court noted that it is a balancing exercise between the seriousness of the offence and the economic or social impact of the recording of a conviction.
20. [20]
    As was said in R v Ali,^[2] all of the relevant circumstances (in section 12) must be taken into account by the sentencing Court.  They are all kept in balance and none of them overlooked although in a particular case one factor may claim greater weight.
21. [21]
    In R v ZB^[3] the Court of Appeal noted that the offender’s future prospects are significant matters. The promise of future rehabilitation is relevant to the decision. The sentencing Judge must consider the potential benefits and detriments to the community in adopting either the course to record a conviction or not. Sometimes an offence is too serious not to record one because of the requirement for public denunciation or the offender’s history is such that one should be recorded.^[4]
22. [22]
    Ordinarily, it is necessary for an offender to place before the Court specific evidence as to the impact a conviction might have on their economic well-being. 
23. [23]
    It was however recognised in R v Ndizeye,^[5] that the Court of Appeal has not yet specified the extent to which information or evidence should be put before a sentencing Judge to raise for consideration the matters in s 12.  The bare possibility that a conviction may affect an offender’s economical or social wellbeing or chances of finding employment is usually insufficient.^[6] Normally counsel should identify specific employment opportunities likely to be lost if a conviction is recorded, but this is not essential. Indeed with young offenders for example the practice of requiring specific evidence may be less rigorous.^[7]
24. [24]
    In R v Ali^[8] it was said:

1. “[76]
   Although the sound exercise of the discretion conferred by s 12 does not require the identification of specific employment opportunities that will be lost to an offender if a conviction is recorded (Cay [43]), the absence of any information or the provision of vague information about the prospective impact that the recording of a conviction will have on the offender’s future employment will ordinarily result in diminished weight being given to the consideration specified in s 12(2)(c)(ii). See R v Mitchell-Herden [2023] QCA 39 (pp 4-5) (Henry J; Mullins P and Gotterson AJA agreeing)…”

1. “[81]
   Defence counsel did not identify any specific employment opportunities that would be lost to the applicant if any convictions were recorded.”

1. “[82]
   It is true, as this Court has explained in a number of cases, that it is not essential to the sound exercise of the discretion under s 12 that specific or particular employment opportunities be identified that will be lost to an offender if a conviction is recorded. The nature of an offence may be likely to damage an offender’s chances of finding employment generally or employment of a specific or particular kind if a conviction is recorded. However, the failure to identify specific or particular employment opportunities that will be lost to an offender will ordinarily result in limited or diminished weight being given to the factor specified in s 12(2)(c)(ii).”

Disposition

25. [25]
    Information was placed before the court that the appellant’s credit licence may be adversely affected by the recording of convictions. I had given the opportunity to the parties to file further written submissions on this question.
26. [26]
    Section 37 of the National Consumer Credit Protection Act 2009 (Cth) requires a person to be fit and proper in order to obtain a credit licence. Section 37B sets out the factors to which ASIC must have regard. There seems to be an ongoing obligation on the licensee to disclose relevant matters to ASIC under section 49. It is possible the appellant may have to disclose these convictions. It is uncertain though whether ASIC will remove or suspend his licence.
27. [27]
    There is mandatory reporting for offences such as serious fraud. Section 54 only requires cancellation in the case of fraud.
28. [28]
    In this case as this is not a conviction for fraud or dishonesty it is entirely speculative as to whether the recording of convictions or the findings of guilt (with no convictions) will have any effect on his licence.
29. [29]
    I note that the matter was adjourned for the appellant to lead specific evidence on this point and he failed to do so.
30. [30]
    As against the licence point there are a number of factors to consider.
31. [31]
    First the appellant had a history with convictions being recorded previously. He had been given a number of chances previously by the courts.
32. [32]
    Second the appellant was charged with serious offences against his wife. These offences were in breach of a court order and constituted implied pressure on her concerning the complaint.
33. [33]
    Third the fact they were domestic violence offences was an aggravating feature.^[9]
34. [34]
    In all of the circumstances I am not satisfied any error has occurred in this case.
35. [35]
    On the rehearing I am satisfied the Magistrate’s order was the correct one.
36. [36]
    I would dismiss the appeal.

Orders

1. I dismiss the appeal.
2. The orders of the Magistrate are confirmed.