Faircloth v Commissioner of Police

[2021] QDC 205

DISTRICT COURT OF QUEENSLAND

CITATION:

Faircloth v Commissioner of Police [2021] QDC 205

PARTIES:

SAMUEL MICHAEL FAIRCLOTH

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

97 of 2021

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to section 222 of the Justices Act

ORIGINATING COURT:

Magistrates Court of Queensland

DELIVERED ON:

27 August 2021, ex tempore

DELIVERED AT:

Maroochydore

HEARING DATE:

27 August 2021

JUDGE:

Judge Loury QC

ORDER:

1.   Extend time for the appellant to file his Notice of Appeal until 17 June 2021

2.   Leave is granted to adduce fresh evidence

3.   Set aside the Magistrate’s decision to the extent that he recorded a conviction for failing to appear but not otherwise. 

4.   Order that no conviction be recorded in relation to the offence of failing to appear. 

5.   Costs are awarded to the appellant in the amount of $1,800.

COUNSEL:

P A White for the appellant

B Crook for the respondent

SOLICITORS:

Howden Saggers Lawyers for the appellant

The Office of the Director of Public Prosecutions for the respondent

1. On 8 August 2018 the appellant pleaded guilty to two offences, firstly, that he drove a motor vehicle whilst over the middle alcohol limit at a time when he was not the holder of a licence on 10 June 2018 and, secondly, for failing to appear on 24 July 2018.  He was sentenced that same day and was fined $200 for failing to appear and $800 for driving whilst over the middle alcohol limit.  He was disqualified from driving for a period of three months.  Nothing was said by the learned Magistrate as to the recording of a conviction however the bench charge sheet is endorsed that convictions were recorded for both offences.  The appellant seeks an extension of time within which to appeal, his having filed a Notice of Appeal on 17 June 2021.  His proposed ground of appeal is that the sentence was manifestly excessive by reason of the recording of the convictions.

The circumstances of the offences

1. Police attended an address where a disturbance had occurred in which the appellant was involved.  Prior to police arrival the appellant had driven away in his mother’s car. Witnesses had attempted to stop him driving due to his intoxicated state.  He drove for approximately 200 metres with witnesses pursuing him.  He was then intercepted by police at 5.40am.  His blood alcohol concentration was 0.113 percent.

1. The appellant told police he had consumed three beers and ten glasses of rum and coke throughout the evening prior to police arriving.  He had driven his vehicle from his friend’s address to the parking bay where it was located as he no longer felt welcome at his friend’s house.  He was aware that his licence had expired six weeks earlier.

1. The appellant failed to appear in relation to that offence on 24 July 2018 and a warrant issued for his arrest.  He surrendered to police on 2 August 2018 and pleaded guilty to both offences six days later. 

1. The appellant’s legal representative informed the court that the appellant had no intention of driving however he was at a function where he was assaulted and decided to remove himself from the premises by driving 200 metres down the road where he parked the car.  The appellant worked in real estate.  It was submitted that the minimum disqualification period ought to be imposed to allow him to return to using his car for work purposes.  In relation to failing to appear the appellant had travelled to New Zealand to attend his grandmother’s funeral.  He had sent an email to the court asking his matter be adjourned for that reason.  He returned to Australia on 27 July 2018 and contacted the court when he was informed that a warrant had issued for his arrest.  He then surrendered to the warrant to police.    No submissions were made as to the recording of convictions.

The appellant’s antecedents

1. The appellant was 21 years of age at the time of the commission of the offences and at sentence.  His licence had expired at the time of the driving offence.  He was also subject to a late night driving restriction until 31 July 2018 as a result of the accumulation of demerit points.  That was the second late night driving restriction applied to him as a result of the accumulation of demerit points.  He otherwise had three convictions for speeding; a conviction for failing to keep left; driving between 11 pm and 5 am with a passenger who was not an immediate family member (when he was the holder of a provisional licence); and failing to display red plates at the front and rear of the car.  

1. The appellant had one previous conviction for contravening a domestic violence order committed when he was 18 years of age for which he was sentenced to a recognisance in the amount of $800 for 12 months.  No conviction was recorded. 

The application for an extension of time

1. Relevant to a consideration of an extension of time within which to appeal is whether there is good reason for the delay and whether it is in the interests of justice to grant the extension.[1]  

   [1]R v Tait [1999] 2 Qd R 667 at [5]

1. The appellant has filed an affidavit setting out the reasons for his delay in filing a notice of appeal.  He states that he did not become aware that a conviction had been recorded against him until he was required to undergo an annual “National Coordinated Criminal History Check” by reason of his employment with an insurance company.  On 5 December 2019 a report was provided by the Australian Criminal Intelligence Commission which revealed that the appellant had a disclosable court outcome for failing to appear.  As a consequence of having a disclosable court outcome the appellant was required to provide an explanation to his employer for that offence so that they could decide whether he would be able to retain his employment.  He provided an explanation to his employer which was accepted.  He was allowed to retain his position.  The appellant further states that he began looking for a second job at the beginning of 2021.  A position he wished to apply for required that he have no criminal history.  It was then he became concerned about the conviction having been recorded against him.  At least by April 2021 the appellant had instructed solicitors to consider an appeal against the recording of the convictions. 

Consideration

1. It is apparent from the transcript that the learned Magistrate did not indicate that convictions were recorded.  It is accepted by the respondent that the appellant would not have become aware of the recording of the conviction for failing to appear until November 2019.  No explanation for the delay between December 2019, upon finding out about the recording of a conviction, and his retaining solicitors to act on his behalf has been provided.  I do not consider that good reason has been shown for the delay since December 2019. 

1. That finding however, does not preclude the granting of an extension of time if it is in the interests of justice.  Whilst the appellant’s ground of appeal states that the sentence was manifestly excessive by reason of the recording of a conviction in relation to both offences, the argument made on his behalf in the outline relates only to the offence of failing to appear.  Nonetheless it is submitted in oral submissions that a conviction should not be recorded for the driving offence.

1. No submissions were directed to the learned Magistrate as to the recording of convictions despite the appellant being represented at the hearing.  The learned Magistrate did not state his reasons for recording convictions although it is apparent from his endorsement on the bench charge sheets that he did do so.  The respondent concedes that the failure to provide reasons for the recording of the convictions amounts to an error of law in the circumstances of this case.  In those circumstances despite the inadequate reasons for the delay after December 2019 when the appellant became aware of the recording of the convictions, it is in the interests of justice to extend the time within which to allow the appellant to appeal and to exercise the discretion as to the recording of a conviction afresh. 

1. The appellant submits that a conviction should not be recorded in respect of the driving offence.  Nothing can be pointed in terms of the nature of his employment or otherwise as to why no conviction should be recorded for that offence. It is submitted it is the first offence of that nature of which he has been convicted and as such a conviction should not be recorded. The offence of driving whilst over the middle alcohol limit when he was not the holder of a licence is in my view a serious example of that offence given the very high level of the appellant’s blood alcohol concentration and given that his licence had expired at the time of the offence.  His explanation for having driven the car does nothing to mitigate the seriousness of the offence given that he drove a distance he could just as readily have walked, if his intention was to remove himself from the residence. It is also a concerning feature that he drove despite others telling him not to, due to his level of intoxication.  The appellant’s traffic history given his still young age is serious.  He appears to display an ongoing and concerning disregard for the road rules.  In my view a conviction should be recorded for that offence. 

1. In relation to the offence of failing to appear the learned Magistrate indicated that he was imposing a nominal fine for that offence.  The circumstances in which it was committed involved the appellant attempting to move the date for his appearance to allow for his attendance at his grandmother’s funeral.  He tendered documentation evidencing his attempt to adjourn proceedings.   The appellant surrendered himself to police a short time after his return from New Zealand and pleaded guilty at an early opportunity. 

1. The appellant is still a young man.  He has adduced evidence that his conviction for failing to appear is a disclosable court outcome in the provision of a Nationally Coordinated Criminal History Check Certificate.  He has also adduced evidence that this disclosable court outcome has limited the opportunities available to him to obtain further employment. 

1. The nature of the offence and the circumstances in which it was committed are not such that it could be said that the offence is so grave that a conviction should be recorded to reflect the community’s denunciation for the appellant’s offending.  Because the appellant is still a young man with good prospects of rehabilitation the recording of a conviction in these circumstances would, in my view, result in the appellant being continually punished into the future well beyond what is just in the circumstances.  The reason for the appellant failing to appear, his attempt to avoid failing to appear and his prospects of rehabilitation would favour the conviction not being recorded. 

1. The appellant applies for costs to the scale in the amount of $1,800 pursuant to section 226 of the Justices Act 1866.  Section 226 of the Justices Act gives the Court a discretion to order costs “as the Judge may think just”.  If costs are awarded they are to compensate, to indemnify the successful party against its cost of successfully bringing the appeal.  The respondent submits that relevant to the exercise of my discretion is that the respondent conceded an error and that the prosecutor before the learned Magistrate could not have identified that a conviction was being recorded.   Nonetheless, a cost was incurred by the appellant in successfully bringing the appeal.  The appellant was required to adduce fresh evidence as to his conviction as a disclosable court outcome.  While the appeal is only partially successful, I am satisfied that there were necessary legal services performed.  I consider it just to award the amount of $1,800 by way of costs.

1. My orders are as follows:  

1.          Extend time for the appellant to file his Notice of Appeal until 17 June 2021.

2.          Leave is granted to adduce fresh evidence.

3.          Set aside the Magistrate’s decision to the extent that a conviction was recorded for the appellant having failed to appear but not otherwise. 

4.          Order that no conviction be recorded in relation to the offence of failing to appear.

5.          Costs are awarded to the appellant in the amount of $1,800.