Abel v Queensland Police Service

[2013] QDC 178

DISTRICT COURT OF QUEENSLAND

CITATION:

Abel v Queensland Police Service [2013] QDC 178

PARTIES:

RHYS JAMES ABEL
(appellant)
v
QUEENSLAND POLICE SERVICE

(defendant)

FILE NO/S:

D2/2013

DIVISION:

Appellate jurisdiction

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

Magistrates Court at Mount Isa

DELIVERED ON:

13 June 2013

DELIVERED AT:

Mount Isa

HEARING DATE:

13 June 2013

JUDGE:

Bradley DCJ

ORDER:

The appeal is allowed.

Orders of Magistrate varied. No conviction recorded for either offence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – appellant convicted and placed on probation for 18 months and ordered to pay compensation to complainants in Magistrates Court for two charges of assault occasioning bodily harm in company – whether the recording of a conviction would have significant adverse impact on the economic and social wellbeing of the appellant – whether the recording of a conviction would have adverse impact on the appellant’s chances of future employment.

Penalties and Sentences Act 1992 (Qld) s 12

COUNSEL:

M Hibble the appellant
S Jerome for the respondent

SOLICITORS:

Gunn Lawyers for the appellant
Office of the Director of Public Prosecutions for the defendant

HER HONOUR:   The appellant, who is now 20 years of age pleaded guilty in the Magistrates Court, Mount Isa on the 12^th of February 2013 to two charges of assault occasioning bodily harm in company.  Those two offences were committed on the 18^th of December 2012 in Surfers Paradise.  At the time the appellant was 19 years of age.  He was in the company of two associates, and he was in Surfers Paradise on holidays.  The offence took place – or the two offences took place at 3.35 am in Cavill Avenue, Surfers Paradise.  Essentially the appellant and his two associates took umbrage at something that was said by two other young men.  A verbal altercation ensued, followed by a physical altercation.  It’s accepted that the appellant was not the initiator of the physical altercation, and one of his co-offenders did, in fact, initiate the physical altercation.  It seems that the role that the appellant played in the incident was preventing one of the victims from going to the aid of the other and assaulting one of the victims by punching him in the head a number of times. 

It was accepted in the lower court, and it’s accepted in this court, that the appellant played a lesser role than the other two co-offenders in the incident.  Fortunately, the injuries incurred amounted to facial lacerations, swelling and bruising only.  The appellant was sentenced on the basis that he had no criminal history, although his criminal history has, in fact, been tendered in these proceedings, and it appears that he did, in fact, have a conviction at the time for a breach of bail condition.  That appears to have been in relation to bail for these offences.  He was convicted of that on the 29^th of January this year and released on a recognisance.  So whilst it’s not strictly true to say that he had no criminal history, he certainly had no convictions for offences committed prior to these two offences of assault occasioning bodily harm in company, and the conviction for a breach of bail condition would really have no impact, it would seem, on any penalty. 

The appellant was convicted and placed on probation for 18 months.  He was ordered to pay compensation of $500 to each of the complainants and a conviction was recorded.  The only aspect of the sentence that is appealed against is the recording of a conviction.  It’s clear from the transcript that the magistrate was misinformed about the criminal histories of the appellant’s co-accused.  The two co-accused were in fact dealt with in the Southport Magistrates Court together on the 19^th of December 2012.  The initiator of the physical violence, that is, Dwyer, pleaded guilty to the same two offences.  He was sentenced to 18 months imprisonment on each charge, ordered to pay $750 compensation to each of the complainants and given a parole release date of the 18^th of June 2013.  In other words, he was to serve six months imprisonment before being released on parole.  The other co-accused, Lederhose, was given a probation order of 18 months, similarly ordered to pay compensation of $750 for each of the two complainants, and convictions were recorded. 

The submissions made to the magistrate in the case of the sentencing of the appellant included a submission by the police prosecutor that Dwyer, who it was conceded was the main offender, had “a very lengthy criminal history”.  That, in fact, is not the case.  Dwyer’s criminal history and Lederhose’s criminal history  have been tendered in evidence in this matter.  In fact, Dwyer simply

had a conviction back in 2009 for trespass, for which he was fined.  So that was incorrect.  It’s conceded, though, by the respondent that issues of parity were not properly considered by the magistrate in this case and that his discretion did miscarry, and that I should exercise the discretion regarding the recording of a conviction against the appellant anew.

I do, of course, have regard to the provisions of section 12 of the Penalties and Sentences Act with respect to the recording of a conviction. Subsection (2) of that section provides: “In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including: (a) the nature of the offence; and (b) the offender’s character and age; and (c) the impact that recording a conviction will have on the offender’s:
(i) economic or social wellbeing;  or (ii) chances of finding employment.” 

The appellant was 19 years of age.  He was employed in the mining industry.  It was submitted on his behalf that his mother lives in New Zealand and that he does wish to, and will repeatedly wish to, travel to New Zealand to visit her, and that he had ambitions of progressing in the mining industry to the position of supervisor and of working in the mining industry overseas.  In those circumstances, it’s clear that the recording of a conviction would have a significant adverse impact on the economic and social wellbeing of the appellant and, indeed, onn his chances of finding employment in the future. 

The relevant matters in this case to be taken into account when considering the exercise of a discretion whether or not to record a conviction under section 12 of the Penalties and Sentences Act include the fact that the appellant played the lesser role in the offending; the fact that none of the offenders were armed; that it appears to have been a spontaneous incident which escalated very quickly in the early hours of the morning when all participants were intoxicated, at least to some extent. There’s no suggestion of any pre‑meditation with respect to the commission of the offences. Fortunately, each of the complainants suffered only minor injuries.

The appellant is of, and was of a young age.  It was submitted that the offending was out of character and that, in fact, he didn’t drink very often, and there was no reason to suggest that that was an incorrect submission.  He has a very minor criminal history and, in fact, no convictions for offences committed prior to the commission of these two offences.  He is employed and has ambitions in the mining industry that could well involve overseas travel, and that he had an actual intention to travel overseas, given that his mother resides in New Zealand.  As against that, though, the magistrate rightly pointed out that drunken violence in public places in the early hours of the morning is condemned by the community and that the factor of general deterrence is important.  The offending itself is not a trivial matter, and there is some public interest in people knowing – or the community knowing that people have been convicted of such offences.

However, in my view, in this case those factors are outweighed by the factors in favour of the appellant which I’ve just outlined, and I do exercise my discretion to vary the sentence that was imposed on the appellant on the 12^th of February 2013 in the Mount Isa Magistrates Court, and that sentence is varied so that no conviction is recorded for either of the offences.  Otherwise, the sentence imposed is to remain as is.

______________________