AA v Commissioner of Police
[2025] QDC 73
•4 June 2025
DISTRICT COURT OF QUEENSLAND
CITATION: | AA v Commissioner of Police [2025] QDC 73 |
PARTIES: | AA (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO: | BD 450/2025 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court of Queensland |
DELIVERED ON: | 4 June 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 May 2025 |
JUDGE: | Richards DCJ |
ORDER: | Appeal allowed. Sentence varied to the extent that a conviction is not recorded. The appellant is fined $1000 with no conviction recorded |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – where the appellant pleaded guilty to an offence of observations in breach of privacy – where the offending involved a one-second video taken beneath a shower cubicle door – where the video was deleted shortly after recording – where the appellant made full admissions to police and expressed immediate remorse – where the appellant was 27 years old with no previous convictions and studying in Australia on a student visa – where the appellant lost his job – where the Magistrate imposed a $1,000 fine and recorded a conviction – where the Crown concedes the Magistrate failed to provide adequate reasons for recording a conviction – whether the sentencing discretion miscarried due to the failure to properly apply s 12 of the Penalties and Sentences Act 1992 (Qld) – whether the sentence was manifestly excessive – whether the recording of a conviction should be set aside. |
LEGISLATION: | Penalties and Sentences Act 1992 (Qld) |
CASES: | R v RBN [2024] QCA 185. R v Piatscheck, District Court at Maroochydore 14 May 2007. R v L’egan, District Court at Brisbane 10 March 2010. R v Wyllie [2010] QCA 938. |
| LEGAL REPRESENTATIVES: | Ms C Robertson of Legal Aid for the appellant Mr H N Prasad of the Office of the Director of Public Prosecutions for the respondent |
Introduction
The appellant pleaded guilty in the Magistrates Court to an offence of observations in breach of privacy on 16 February 2025. He was fined $1,000 with a conviction recorded. The appellant appeals on the basis that the recording of a conviction renders the sentence manifestly excessive.
Facts
The defendant was a cleaner with Cleancorp and was working at 179 Grey Street, Brisbane. At 8.47 am on 11 February 2025, the complainant, having ridden to work on a bicycle, entered the building via the basement carpark and entered the female bathroom in the end of trip facilities. When she entered, a cleaner was already in the bathroom restocking towels. She went into a shower cubicle, closed and locked the door and began to shower. After she had finished, she turned to see half a mobile phone placed under the cubicle door with the camera pointing towards her. She then noticed it slide away until it was no longer visible and heard the cleaner leave the bathroom. She reported the matter to her supervisor and then to the police on the same day.
The police obtained data from the swipe card access to the bathroom which revealed the cleaner was the appellant. Police arrested him on 13 February 2025. He was taken to the police station where he made full admissions to the offence saying he was remorseful and that he knew what he had done was wrong and inappropriate. He said he had made a one second recording of the victim in the shower cubicle but deleted the recording shortly afterwards.
Police took his phone and confirmed the recording had been deleted. They then went to his residential address and examined a laptop and a USB stick and there were no saved recordings on those electronic devices.
Discussion
In deciding to record a conviction, the Magistrate stated that while it was a very serious offence that could be dealt with by way of a fine, it was necessary to send a very serious message, not just to the appellant but to the entire community, that those placed in positions of privilege must not abuse it.
It is accepted by the Crown that the Magistrate did not give adequate reasons for deciding to record a conviction and that this constitutes an error which enlivens the jurisdiction to sentence afresh. In coming to that conclusion, both parties relied on R v RBN [2024] QCA 185, where Bond JA found that the failure to provide reasons when considering the factors in s 12 of the Penalties and Sentences Act 1992 (Qld) (the Act) amounted to a sentencing error which justified a conclusion that the sentencing discretion miscarried.
Section 12(2) of the Act states that in considering whether or not to record a conviction in the exercise of its discretion, a court must have regard to all the circumstances of the case, including:
(a)the nature of the offence; and
(b)the defendant’s character and age; and
(c)the impact that the recording of the conviction will have on the defendant’s:
(i)economic or social wellbeing; or
(ii)chances of finding employment.
The appellant is a 27 year old man with no previous convictions. He made full admissions to the offence in circumstances where the recording had been deleted. At the hearing of this matter, it was suggested that the appellant may have deleted the video because he was worried about being arrested or getting in trouble. That scenario does not fit with the full admissions the appellant made when the police spoke to him; if he had deleted the recording to avoid detection, it would make little sense to then make full admissions to the conduct. I accept that he deleted the recording because he was immediately remorseful for his actions. He pleaded guilty at the earliest possible opportunity. He is on a student visa studying language at a college in the city. He had been in Australia for seven months and he was working part-time at two jobs as a bar attendant and as a cleaner. He is a qualified engineer in multi-media in Columbia, hoping to specialise in web design through a course in Australia.
In making submissions, the Crown helpfully attached sentences imposed for this type of offending prior to the increase in maximum penalty from two years to three years imprisonment. In the case of R v Piatscheck,[1] the offender recorded the complainant showering and was fined $450, with no conviction recorded. In the case of R v L’egan,[2] the offender filmed the complainant in the shower on two separate occasions, three days apart. The recordings were 12 and 14 minutes in duration. He was fined a $1,000, with no conviction recorded. Finally, in the case of R vWyllie,[3] the offender set up a camera connected to a computer in the roof cavity above the bed of a female tenant. He had a minor and irrelevant criminal history and suffered from paranoid schizophrenia. He was sentenced to two years’ probation, with a conviction recorded.
[1]R v Piatscheck, District Court at Maroochydore 14 May 2007.
[2]R v L’egan, District Court at Brisbane 10 March 2010.
[3]R v Wyllie [2010] QCA 938.
None of these sentences suggest that a conviction should be recorded in this case, where the filming was momentary, the remorse was immediate, the image was deleted, and the young man had no previous convictions.
Conclusion
In balancing the factors to be considered in s 12 of the Act, it is correct to categorise the offence as serious.[4] This is particularly the case here where he had been given access to bathroom facilities in the course of his employment. However, the appellant was a young man of good character.[5] It can be assumed the offending was out of character. He was immediately remorseful. He lost his job as a result of the offending and had to look for a new job.[6] The recording of a conviction being recorded would hamper that effort. He also was on a bridging visa.
[4]Penalties and Sentences Act 1992 (Qld) s 12(2)(a).
[5] Ibid s 12(2)(b).
[6] Ibid s 12(2)(c)(ii).
I accept the submissions by the defence that a conviction should not have been recorded against this young man. Accordingly, the appeal is allowed. The sentence is set aside to the extent that a conviction is not recorded. The fine of $1,000 is to remain.
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