DJM v Commissioner of Police - [2025] QDC 12

DISTRICT COURT OF QUEENSLAND

CITATION:

DJM v Commissioner of Police [2025] QDC 12

PARTIES:

DJM

(appellant)

v
COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

D2782/24

DIVISION:

Appeal

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

21 February 2025

DELIVERED AT:

Brisbane

HEARING DATE:

12 and 18 February 2025

JUDGES:

Smith AM DCJA

ORDER:

1.   The appeal against sentence is allowed.

2.   The sentence is varied only to the extent that it is ordered that no conviction be recorded.

3.   The appeal is otherwise dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – whether a conviction should have been recorded – where the appellant was represented by a duty lawyer who did not take instructions as to the effect of a conviction – where the evidence showed that the recording of a conviction could have an adverse effect on the appellant’s employment prospects - whether miscarriage of justice has occurred

Justices Act 1886 (Qld) ss 222, 223
Penalties and Sentences Act 1992 (Qld) s 12
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, applied
R v Ali [2023] QCA 207, applied
R v Briese; Ex-parte Attorney-General [1997] QCA 10; [1998] 1 Qd R 487, applied
R v Maniadis [1997] 1 Qd R 593, cited
R v ZB [2021] QCA 9; [2021] 287 A Crim R 519, applied

R v Ndizeye [2006] QCA 537, cited

SOLICITORS:

Self-represented appellant
Director of Public Prosecutions for the respondent

Introduction

The appellant appeals the sentence imposed on him in the Brisbane Magistrates Court on 9 September 2024. He pleaded guilty to one charge of contravening a domestic violence order on 14 August 2024 at Wooloowin. He was fined $1,200 with a conviction recorded.
The facts
The facts were that Ms M, the aggrieved, was 17 and is the appellant’s daughter. The condition breached was that he be of good behaviour towards the aggrieved and not commit domestic violence.
On 14 August 2024 by telephone, the appellant became upset with the aggrieved and yelled at her about not cleaning her room. He called her a piece of shit and told her to kill herself and film it so he could watch it. That would be the greatest day in his life. When interviewed the appellant denied the allegation.
The prosecution tendered the appellant’s criminal history. The history showed that the appellant had two previous entries. On 17 February 2023, he had Weapons Act convictions for which he was fined with no conviction recorded. On 4 June 2024 he was dealt with on numerous breaches of the domestic violence orders. He was fined a total of $2,900 with no conviction recorded.
The duty lawyer who appeared for the appellant on 14 August 2024 told the Court the appellant was 46. He had separated from his partner. There were three children aged 12 to 19, including the aggrieved. The appellant had custody of the 12 year old.
The duty lawyer informed the Court that the appellant cared for his parents who were aged 85 and 86. His mother had advanced Alzheimer’s and Parkinson’s disease. His father also suffered significant ailments. The appellant was responsible for organising transport to the hospital and appointments for them as well as cleaning and other services. The appellant had a fulltime job with Reece Plumbing were he had worked for a period of eight and half years. When he was not working, he was assisting with his parents or his child.
Since the offence in mid-August 2024, he had maintained contact with his daughter, the aggrieved, and he had two Facetime conversations with her. There was no allegation there had been any further domestic violence breaches. Whilst he did have a criminal history, the date of the last breach was some six months prior. He had spent two days in the watchhouse which should be taken into account. The plea of guilty should be taken into account. He had paid the previous fine. It was submitted that he had a partial knee replacement in July of 2024 and further surgery was required the next year. The time in the watchhouse was a “wakeup call” and in the circumstances a moderate fine should be imposed.
The Magistrate asked the duty lawyer whether there were any submissions with respect to recording of a conviction but the duty lawyer said he had none.
The Magistrate then handed down his decision. In his decision, the Magistrate took into account the plea of guilty and took into account the circumstances of the offence. He took into account the previous convictions and was satisfied that a fine should be imposed. He took into account that the breaches did not involve violence or property damage. The penalty referred to earlier was imposed.
Fresh evidence
Pursuant to section 223 of the Justices Act I granted leave to the appellant to file an affidavit.
The appellant swears that there is a real chance that the recording of a conviction will affect his employment. In particular, security clearances are necessary for working in the aviation industry and also in the transport industry. He has worked in those occupations previously and the disclosure of a domestic violence conviction would put him at a significant disadvantage in obtaining such employment.
Submissions
The sole ground of appeal in this case is whether the sentence was made excessive by the recording of a conviction.
The appellant submits that the duty lawyer in this particular case erred in not submitting that a conviction should not be recorded. The appellant in his outline says that he has health issues and he may well need to seek alternative employment. He refers to the knee replacement issue in particular.
The respondent on the other hand submits that the recording of a conviction in this case was well within the discretion of the Magistrate to order and in all of the circumstances the appeal should be dismissed.
Discussion
As this is a rehearing in order for the appellant to succeed he must demonstrate legal, factual or discretionary error.[1] In this particular case, fresh evidence is relied upon as the recording of a conviction and its effect. I now turn to a consideration of that issue.
[1]Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172.
Section 12 of the Penalties and Sentences Act 1992 (Qld) provides:
“12     Court 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—
(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 Court of Appeal in R v Briese; Ex-parte Attorney-General[2] noted it is a balancing exercise for the Court to consider the seriousness of the offence and the economic or social impact of recording a conviction.
[2][1997] QCA 10; [1998] 1 Qd R 487 at page 493.
In R v Ali[3], the Court noted that all of the relevant circumstances mentioned in s 12 must be taken into account and are to be kept in balance.
[3][2023] QCA 207.
The Court of Appeal in R v ZB[4] noted that an offender’s future prospects are significant matters. A judge has to consider the benefits and detriments to the community in adopting a decision to record a conviction or not. Sometimes an offence is so serious to not record one.
[4][2021] QCA 9; [2021] 287 A Crim R 519 at [10].
Although it is usually necessary for an offender to place before the Court specific evidence as to the impact a conviction might have, it has been recognised by the Court of Appeal that it is not absolutely essential that specific employment opportunities to be lost should be identified.[5]
[5]R v Ndizeye [2006] QCA 537.
Further, in R v Ali[6] said:
“[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).
[81]Defence counsel did not identify any specific employment opportunities that would be lost to the applicant if any convictions were recorded.
[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).”
[6][2023] QCA 207 at [76].
In this particular case, it is my opinion that the appellant has sufficiently identified the impact a conviction might have on his future employment prospects. Although he had numerous convictions for breaches of domestic violence orders, the breach in this particular case did not involve actual violence or threats of violence. Whilst the words used to his daughter were very unpleasant, they were uttered in the context of a heated argument between them. It seems they have reconciled on the evidence.
Conclusion
In all of the circumstances, I am persuaded that it would be wrong to allow the conviction to stand.[7]
[7] R v Maniadis [1997] 1 Qd R 593.
In the circumstances in the exercise of the Court’s discretion, I have decided to allow the appeal and remove the conviction.
My orders are as follows:
1.The appeal is allowed.
2.The sentence is varied only to the extent that it is ordered that no conviction be recorded.
3.The appeal is otherwise dismissed.