RAS v Commissioner of Police (No. 2)

[2012] QDC 239

DISTRICT COURT OF QUEENSLAND

CITATION:

RAS v Commissioner of Police (No.2) [2012] QDC 239

PARTIES:

RAS
(Appellant/ Defendant)

v

COMMISSIONER OF POLICE
(Respondent/ Plaintiff)

FILE NO:

74/2011

DIVISION:

Appeal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Beenleigh

DELIVERED ON:

15 March, 2012

DELIVERED AT:

Beenleigh

HEARING DATE:

15 March, 2012

JUDGE:

Dearden DCJ

ORDER:

1.   That the words "conviction recorded" be removed from the magistrate's decision on penalty and the words "no conviction recorded" be substituted in respect of the offence of breach of domestic violence order.

2.   No order as to costs.

CATCHWORDS:

APPEAL – FAMILY LAW – DOMESTIC VIOLENCE – convicted and fined for breach of Domestic Violence Order – whether conviction should have been recorded

LEGISLATION:

Security Providers Act 1993, ss.11(4)(d) and (e)

Penalties and Sentences Act 1992, s.12, particularly ss.12(2)(c)(i) and (ii)

CASES:

COUNSEL:

Mr J Ide (solicitor) for the appellant

Ms C Hurley for the respondent

SOLICITORS:

Ide Lawyers for the appellant

Director of Public Prosecutions (Queensland) for the respondent

1.On 21 December 2011, I delivered my written reasons for judgment, dismissing the appellant's appeal against a conviction, but upholding the appeal in respect of sentence. In particular, I held that the learned magistrate should, prior to recording a conviction, have sought submissions from the appellant as to whether or not a conviction should be recorded. Those submissions, of course, are necessary from both a defendant and from the prosecuting authority so that a judicial officer in those circumstances can properly consider the exercise of the discretion provided for by section 12 of the Penalties and Sentences Act 1992. I granted the appeal in respect of sentence to the extent only of whether or not a conviction should have been recorded, and I've had the benefit today of hearing submissions from Mr Ide on behalf of the appellant/applicant and from Ms Hurley on behalf of the respondent, Commissioner of Police.

2.The issues that affect whether or not a conviction should be recorded, in this case, are essentially twofold.  Firstly, Mr RAS, in an affidavit affirmed 14 March 2012 (Exhibit 1), attests to the circumstances of his previous breaches of domestic violence and breach of bail, namely that they involved telephoning the complainant in respect of consent orders made in the "Federal Magistrates Court" in respect of access to the daughter of the relationship, and also on an occasion when flowers and strawberries were delivered to Ms MME.  The point that's made in respect of those matters, which are matters for which the appellant appeared in the Beenleigh Magistrate's Court on 14 May 2010, is that they were relatively minor examples of breaches of a domestic violence order and/or breaches of bail, and although some of that information was provided to the learned Magistrate it does not appear to have been considered in the context of the exercise of a discretion about the recording or not recording of a conviction.

3.The second matter that Mr Ide presses is addressed at paragraphs 7-10 of Mr RAS’s affidavit, affirmed 14 March 2012. This is a relevant issue in respect of section 12(2)(c)(i) and (ii) of the Penalties and Sentences Act, namely the impact "that recording a conviction will have on the offender's-

(i)economic or social wellbeing; or

(ii)chances of finding employment."

4.The relevant information is that the applicant is a security officer by trade, currently holds a security licence subject to the provisions of the Security Providers Act 1993, which relevantly provides (s.11(4)(d)) that the Chief Executive in considering an entitlement to a security providers licence he's entitled to into account whether a person "has been convicted of an offence in Queensland or elsewhere for which a conviction has been recorded".

5.I note, in balance, that s.11(4)(e) also makes relevant in any such enquiry "an unrecorded finding of guilty has been made against the person in relation to a relevant offence".

6.I note that the written submissions on sentence on behalf of the respondent make the point, very simply, that in this case the appellant "had two prior offences of exactly the same nature" and for those circumstances "it was appropriate for a conviction to be recorded for a serious example of the offence" to which the appeal related.

7.It is clear that the recording of a conviction does have a potential impact on the applicant's economic wellbeing and his chances of finding employment in the future.

8.I'm advised from the bar table that the applicant is currently in custody on remand in respect of other offences, but that, in my view, is not a relevant consideration at this stage.  I'm obliged to consider the matter as it appeared before the learned magistrate when she dealt with these proceedings on 24 May 2011 and in the light of the applicant's criminal history as at that date, which was a criminal history that contained just one matter of receiving and stealing on 19 December 1996 (when the applicant would have been 17 years old) and the two breaches of domestic violence order and a breach of bail dealt with on 14 May 2010.

9.Although it is a relatively marginal matter and there is no doubt that on the one hand the breach of the domestic violence order was a serious breach involving actual violence against the aggrieved, that does need to be balanced against the relatively minor nature of the two previous breaches of domestic violence orders and the breach of bail, and the potential effect on the applicant's economic wellbeing and prospects of finding employment.

10.Not without some hesitation, I consider on exercising the discretion afresh that I am persuaded that it is appropriate that no conviction be recorded in respect of this matter and accordingly to this extent the appeal against sentence is granted. 

11.Order:
That the words "conviction recorded" be removed from the Magistrate's decision on penalty and the words "no conviction recorded" be substituted in respect of the offence of breach of domestic violence order.

12.By agreement in respect to the issue of costs, the order is as follows: 
No order as to costs.