Embleton v Commissioner of Police

[2016] QDC 282

DISTRICT COURT OF QUEENSLAND

CITATION:

Embleton v Commissioner of Police [2016] QDC 282

PARTIES:

STEVEN JOHN EMBLETON

(appellant)

v

COMMISSIONER OF POLICE (QUEENSLAND)

(respondent)

FILE NO/S:

DC No 856 of 2016

DIVISION:

Criminal

PROCEEDING:

Appeal against Sentence

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

15 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2016

JUDGE:

Reid DCJ

ORDER:

1.   The appeal be allowed.

2.   In respect of all of the offences dealt with in the Magistrates Court on 2 February 2016 no conviction be recorded. The fine imposed of $900 remains.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty to two counts of possession of dangerous drugs; two counts of possession of pipes; one count of possession of a grinder; and one count of possession of a Taser – where the appellant was fined $900 and convictions recorded for each offence – whether sentence imposed was manifestly excessive

Penalties and Sentences Act 1992 (Qld) s 12

R v Briese ex-parte Attorney General (Qld) (1998) 1 Qd R 487, considered
Cay, Gersch & Schell; ex-parte AG (Qld) [2005] QCA 467, considered
R v Meid [2006] QCA 124, considered
R v Fullarlove [1993] QCA 276, considered
House v The King (1936) 55 CLR 499, followed
R v Seiler [2003] QCA 217, considered

COUNSEL:

S. Lynch for the appellant

J.K Rodriguez for the respondent

SOLICITORS:

Trevor Watt & Associates for the appellant

Director of Public Prosecutions for the respondent

Introduction

1. The appellant on 2 February 2016 pleaded guilty in the Magistrates Court in Brisbane to seven offences – two of possession of the dangerous drugs cannabis and MDMA, possession of a number of instruments used in relation to the commission of a drug offence, supplying the dangerous drug cannabis and possession of a Taser.  The first six offences were against the provisions of the Drugs Misuse Act1986 (Qld) and the last against provisions of the Weapons Act 1990 (Qld).

1. He was fined $900. A conviction was recorded in relation to each offence.  He appeals only against the recording of the convictions.

Facts of offending

1. At about 9.00am on 19 December 2015 police executed a search warrant at the defendant’s home at Kangaroo Point.  They located a small amount of marijuana which he told them he had purchased for himself and his flatmate.  This admission was the basis of the charge of supplying marijuana. Without his admission, police would not have known of this offence. They also found eight pills which he told them was ecstasy.  None of the drugs were analysed, but in circumstances where he admitted to possessing and supplying the dangerous drug marijuana and possession of ecstasy, and entered pleas of guilty, this was unnecessary.  He told police he had purchased the MDMA about 12 months earlier, tried one of the tablets – without apparent effect – and then decided to discard them, putting them in his draw and had forgotten that he had them.  Police also found a metal pipe and two glass pipes he admitted were used for smoking marijuana.  A search of his vehicle revealed a Taser which he somewhat cryptically said was better than a knife. Before the Magistrate he said he used it for herding sheep.

1. It is clear the drug offences involved low level drug offences, primarily marijuana, including the provision of a small unspecified amount of marijuana to his flatmate, a 28 year old adult male.

1. The appellant is a 53 year old self-employed project builder with a minor criminal history.  He had one prior offence of possessing cannabis in May 2005.  He was placed on a recognisance and directed to the drug diversion programme.  In 1992 there were two offences of wilful and unlawful damage and in 1993, an offence of assault occasioning bodily harm.  No convictions were recorded in respect of any of those matters.

Sentence proceeding

1. The police prosecutor advised the court that the appellant’s admissions enabled the charges of supply of marijuana and possession of ecstasy to be proven.  I interpose that the admission in relation to ecstasy in fact only meant that the tablets were not analysed.  We do not know what that analysis might have revealed.  He said the flatmate did not pay anything for the marijuana he used.  It was freely provided by the appellant and so there was no commercial element to the supply offence.  He said the earlier convictions in 1992 and 1993 “are of no consequence today” and gave the court no information about them at all.

1. The appellant’s solicitor advised the court of the appellant’s business interests.  He referred also to the early plea and co-operation with police through his admissions during the search process and subsequent record of interview.  The solicitor submitted that no conviction should be recorded.  He said that the appellant has regular dealings with banks and other developers and said that recording a conviction could adversely affect his business interests.  He also said the appellant travels overseas on recreation and said a conviction would adversely affect that activity.

1. In his sentencing remarks, the learned Magistrate referred to the appellant’s early plea and the small amount of cannabis that was found.  He noted the supply charge related to an adult housemate and that the charge was based purely on admissions the appellant had made.  He referred to the appellant’s co-operation with police, his age and the fact that he was a self-employed project builder who also managed some rental properties.

1. He noted the appellant’s prior criminal history but also said that it was dated and did not involve any actual convictions.

1. He then said that the “offences are serious in nature.  Whilst the amount of drugs… were of a fairly small amount, and certainly there is no proof of any commerciality, certainly they were predominantly for personal use, but, of course, the supply charge relates to your housemate.  They are still relatively serious offences”.

1. He continued that “a deterrent sentence is required.  You have a prior entry for 2006 for the drug offences and certainly supplying a drug to another even where you have not accepted money or other consideration, must still be seen as a relatively serious offence”.

1. His Honour imposed a fine of $900 in relation to all of the matters, as he was entitled to pursuant to the provisions of the Penalties and Sentences Act 1992 (Qld).

1. In relation to his decision to record a conviction, the learned Magistrate said that whilst the effect on prospective dealings with banks or on recreational travel may be relevant, consideration of other issues relevant under s 12 of the Penalties and Sentences Act 1992 (Qld), including the appellant’s four previous convictions, although dated, justified the recording of a conviction for each offence.

Appeal submissions

1. The appellant’s counsel noted that before the Magistrate, the police prosecutor made no submissions as to recording a conviction.

1. He relied on the decision of Thomas and White JJ in R v Briese ex-parte Attorney General (Qld) (1998) 1 Qd R 487, who noted that whilst a decision not to record a conviction gives an offender a statutory right to conceal the truth of his guilt of an offence from others, nevertheless said:

“On the other hand the beneficial nature of such an order to the offender needs to be kept in view.  It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received.  This potential oppression may stand in the way of rehabilitation, and it may be thought to be a reasonable tool that has been given to the courts to avoid undue oppression.  The existence of a conviction sometimes involves direct disadvantage under the law.”

1. Counsel referred also to the decision of Keane JA, as his Honour then was, in Cay, Gersch & Schell; ex-parte AG (Qld) [2005] QCA 467 where at para [43] his Honour said in respect of recording a conviction:

“While a specific employment opportunity or opportunities should usually be identified if the discretion is to be exercised in favour of an offender, it is not an essential requirement. Such a strict requirement would not, in my respectful opinion, sit well with the discretionary nature of the decision to be made under s 12, nor with the express reference in s 12(2)(c) to ‘the impact that recording a conviction will have on the offender's chances of finding employment’. In this latter regard, s 12(2)(c) does not refer to the offender's prospects of obtaining employment with a particular employer or even in a particular field of endeavour.”

1. Counsel referred to a number of matters where no conviction was recorded in relation to offenders who had pleaded guilty to comparable drug offences, namely R v Meid [2006] QCA 124 and R v Fullarlove [1993] QCA 276.

1. Ultimately counsel submitted that “recording of a conviction can have a lasting effect on an accused well beyond the appropriate punishment.  There had been significant co-operation with the administration of justice.  No certificates of analysis had been sought or tendered.  The MDMA had not been used and the cannabis was obviously a very small quantity.  The supply was someone else having access to the cannabis.” 

1. Counsel for the respondent submitted, correctly, that in order to interfere with the exercise of the Magistrate’s discretion to record a conviction, it was necessary to show he had erred in the exercise of his discretion, relying on the following passage in the well-known case of House v The King (1936) 55 CLR 499 at 504-505:

“It is not enough that Judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the Judge acts upon a wrong principle, it he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the material for doing so.”

1. In opposing the appeal, the respondent submitted that there was no evidence before the court as to the impact on the appellant’s economic or social wellbeing or chances of finding employment.  It was submitted that a bare possibility was insufficient although an overly vigorous approach to what is evidence was unnecessary.  The respondent conceded that in R v Seiler [2003] QCA 217 White J as her Honour then was, with whom McPherson JA agreed, said:

“No evidence was offered to the sentencing court about the impact the recording a conviction would have (on the appellant’s) economic or social wellbeing, or chance of finding employment, but it might be presumed with some confidence that the revelation could only have a negative impact on his employability.”

Consideration

1. As I indicated in argument, if I had been sentencing the appellant, I would not have recorded a conviction.  Consequently, if I conclude there has been error in the sense explained in House v The King (supra), then the appeal ought to be allowed.

1. I have, albeit with some misgivings, concluded that there was such error.  I have so concluded because of two matters.

1. In my view, his Honour’s characterisation of the offences as “serious in nature” especially the supply charge which he said “must still be seen as a relatively serious offence” and that “a deterrent sentence is required” is not an appropriate characterisation of the particular circumstances.  The amount of marijuana involved, the fact that the MDMA had been purchased but was unused for a period of about 12 months, the fact that the drugs were never analysed and the fact that proof of the offence of supply depended solely on the appellant’s own admission to that effect are, in my view, features of the case which means that they are at the low end of drug offences.

1. More importantly, the learned Magistrates reliance on the appellant’s four previous convictions as being relevant was, in my view, unjustified.  His criminal history shows there were two offences of wilful and unlawful damage, both committed in 1991 and one of assault occasioning bodily in 1993.  The police prosecutor said during submissions that those offences were of “no consequence today”.  In such circumstance the court was told nothing about those matters.  The appellant’s solicitor was asked nothing about them.

1. In my view, to rely on those matters, as his Honour did, saying he weighed up the adverse effect of convictions on the plaintiff’s business dealings and recreational travel alongside “all other factors under s 12 including the fact you have four previous convictions… albeit dated” was wrong. Absolutely nothing was known about those earlier offences other than the name of the offence and the penalty imposed. The circumstances that the police prosecutor had said they were of no consequence is, in my view, important.

1. I conclude that those factors – characterising a minor drug offence as serious or relatively serious and giving weight to those earlier convictions about which nothing was known, justify my concluding that the Magistrate has fallen into appellable error. 

1. In such circumstances I am required to re-consider the question of whether or not to record a conviction and as I have previously indicated, in my view, for the reasons stated herein no conviction should be recorded.

1. I therefore allow the appeal and set aside the recording of convictions in respect of all of the matters dealt with by the Magistrate on 2 February 2016.  The fine imposed was not subject to challenge on the appeal and remains in the sum of $900.