Hoad v Gerber

[2010] QDC 64

DISTRICT COURT OF QUEENSLAND

CITATION:

Hoad v Gerber [2010] QDC 64

PARTIES:

CHRISTIE LENELLE HOAD

(Appellant)

AND

BRENT GERBER

(Respondent)

FILE NO/S:

D97/2009

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Toowoomba

DELIVERED ON:

5 February 2010 (ex tempore)

DELIVERED AT:

Toowoomba

HEARING DATE:

5 February 2010

JUDGE:

Irwin DCJ

ORDER:

1.        Appeal against sentence allowed.

2.        Sentence imposed at first instance varied and instead a conviction is not recorded.

3.        The respondent pay the appellant’s costs of the appeal in the sum of $1800.

CATCHWORDS:

CRIINAL LAW – Appeal Against Sentence – where for a breach of probation the appellant was fined $250 and a conviction was recorded – whether the appellant was not dealt with for the offence for which the probation order was made – whether the magistrate acted on a wrong principle in proceeding on the basis that it as mandatory to record a conviction – whether sentence manifestly excessive

Justices Act 1886 (Qld) s 222, s 225(1)

Penalties and Sentences Act 1992 (Qld) s 12(2), s 12(6), s 123(1), s 125(2)

Hughes v Hopwood (1950) QWN 21, applied

House v The King (1936) 55 CLR 504, applied

COUNSEL:

B.M.P. Mumford for the applicant

C.W. Winlaw for the respondent

SOLICITORS:

Creevy Russell lawyers as town agent for P.W.S. Kewes & Dempster

Director of Public Prosecutions (Qld) for the respondent

HIS HONOUR:  On 10 September 2008, the appellant was sentenced in the Longreach Magistrates Court for one count of assault occasioning bodily harm.  She was sentenced to 12 months' probation and ordered to pay $300 compensation.  No conviction was recorded.

On 25 September 2009, in the Toowoomba Magistrates Court, the appellant pleaded guilty to one count of possession of a dangerous drug, committed on 26 June 2009.  She was fined $400 which she was allowed three months to pay, with eight days' imprisonment in default.  No conviction was recorded.

This offence was in breach of the probation order and she was charged with this offence under section 123(1) of the Penalties and Sentences Act 1992 (Qld). She was fined $250 which she was allowed three months to pay, with eight days' imprisonment in default. The probation order was continued. A conviction was recorded.

The appeal against sentence under section 222(1) of the Justices Act 1886 (Qld) and having regard to section 222(2)(c) of that Act is on the following grounds:
"(1) that the learned Magistrate erred in ordering a conviction be recorded for the offence of breach of probation in circumstances where the said Magistrate did not resentence me for the original offence of assault occasioning bodily harm;
(2) that the learned Magistrate erred in law in finding that she had no discretion but to record a conviction for the offence of breach of probation and misdirected herself as to the application of section 12(6) of the Penalties and Sentences Act 1992 (Qld);
(3) that, having regard to my criminal history and antecedents, the written submissions of my solicitors dated 18 September 2009 and the Court report of Queensland Corrective Services dated 16 September 2009, that the learned Magistrate should have exercised her discretion to not record a conviction for the said offence."

In total, I consider that, in accordance with section 222(2)(c), the basis of the appeal is that the punishment was manifestly excessive.

The possession offence related to an ecstasy tablet which was located when a search warrant was executed on the appellant's residence.  The appellant admitted that she had the tablet and directed the police officers to where it was.  She subsequently made admissions to its possession in a record of interview.

In relation to the contravention of the probation order, the representative of Queensland Corrective Services advised the Court that:

·     She had complied with her reporting requirement to a satisfactory standard;

·     She was generally polite and respectful to her supervising officer;

·     She had maintained stable accommodation and employment.  Her work was in an administration capacity.

It is likely that the Magistrate was influenced by these factors in exercising her discretion not to record a conviction for this offence. 

In recording a conviction for the breach of probation, despite the Magistrate saying that the report was "probably one of the most glowing reports I've seen in Court for a breach of probation", her Honour said: "Unfortunately, because it's a breach of probation, I have no choice but to record a conviction."

The representative from Queensland Corrective Services had previously responded to a question by her Honour confirming that it was necessary to record a conviction for this breach. As conceded by the respondent, this involved an error on behalf of both the representative and the Magistrate. Section 12(6) of the Penalties and Sentences Act governs the circumstances in which the Court must record a conviction for a breach of a probation order. It provides: "If -
(a) a Court -
(i) convicts an offender of an offence; and
(ii) does not record a conviction; and
(iii) makes a probation order or community service order for the offender; and
(b) the offender is subsequently dealt with by a Court for the same offence in any way which it could deal with the offender if the offender had just been convicted by or before it for the offence;
the conviction for the offence must be recorded by the second Court."

It follows that it is only mandatory for a Court to record a conviction if the offender "is subsequently dealt with by a Court for the same offence".  If this is not the case, the Court has a discretion as to whether or not to record a conviction.

There are a number of possible sentencing outcomes available where a Magistrates Court convicts an offender of an offence against section 123(1) of the Penalties and Sentences Act other than dealing with the offender for the same offence.

Section 125 provides that in these circumstances:
"(2) The Court may, in addition to or instead of dealing with the offender under section 123(1) admonish and discharge the offender or make one or more of the following orders -
(a) an order -
(i) requiring payment of an amount that was required to be paid by the community based order concerned and has not been paid; and
(ii) for the enforcement of payment of the amount as if it were then making the community-based order;
(b) with the offender's consent, an order to increase the number of hours for which the offender is required by the order to perform community service;
(c) an order extending the period of 1 year allowed for the offender to perform community service.
(3) The imposition of a fine under section 123(1) or the making of an order mentioned in subsection (2) does not affect the continuation of the community based order.
(4) The Court may also -
(a) if the community based order was made by a Magistrates Court, subject to section 126A, deal with the offender for the offence for which the community based order was made in any way that it could deal with the offender if the offender had just been convicted by it of the offence;"

Because her Honour did not act under section 125(4)(a), she did not deal with the appellant for the offence of assault occasioning bodily harm for which the probation order had been made and therefore she retained a discretion as to whether to record a conviction.

The principles governing appeals against the exercise of a discretion on sentence are well established in Hughes v Hopwood [1950] QWN 21 (at p31) Macrossan CJ stated that an Appeal Court is not entitled to interfere unless it "can find that the sentence is manifestly excessive or that there are some circumstances which show that the Magistrate acted under a misapprehension of fact or on some wrong principle in awarding sentence".

Similarly, in House v The King [1936] 55 CLR 504 at 505, Dixon, Evatt and McTiernan JJ stated that, "It is not enough that Judges comprising the Appellate Court consider that if they had been in the position of a primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion."

In this case, the Magistrate's exercise of her sentencing discretion involved acting upon a wrong principle in imposing sentence. As the exercise of this discretion miscarried, it is open to me to resentence the appellant in respect of the breach of probation. Section 12(2) of the Penalties and Sentences Act provides:
"(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;
(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 imposition of a moderate fine demonstrates that the breach of probation was not a serious example of this type of offending.  This is confirmed by the Magistrate's decision to take no other action other than to effectively allow the order to expire rather than to resentence the appellant for the original offence for which the probation order was made.  As the Magistrate recognised, the appellant was still a young person who was in responsible employment in which she was highly regarded.  Other than the conviction for assault occasioning bodily harm, she had only one other conviction.  This was for a public nuisance offence for which she was fined $100 in 2006.  No conviction was recorded.

On behalf of the appellant, it is submitted that the breach occurred nine months into a 12-month probation order.  This breach involved a minor example of the offence of possession of a dangerous drug and the appellant's response to probation was otherwise satisfactory.  The probation order had in fact expired at the time of sentence.  Further, as recognised by the respondent, the Magistrate exercised her discretion not to record a conviction for the breaching offence and it is clear from her sentencing remarks that she was likely not to have recorded a conviction for the breach if she had not misconceived that her hands were tied so as to prevent her from exercising her discretion not to do so.

In these circumstances, I consider that the appropriate exercise of the sentencing discretion is to exercise it so as not to record a conviction. I consider that the sentence imposed by the Magistrate insofar that it recorded a conviction was manifestly excessive and I vary the sentence accordingly under section 225(1) of the Justices Act. However, the appellant also argues that rather than being fined, the appellant should be admonished and discharged for this offence.

Reliance is placed on the factors that I have considered in exercising my discretion not to record a conviction.  However, I agree with the Prosecutor that the imposition of a $250 fine for the offence of breach of probation was not outside the sound exercise of the Court's sentencing discretion.  I do not consider it manifestly excessive or otherwise involving some error of fact or principle.

The appellant has been given sufficient recognition for her personal circumstances by the exercise of the discretion not to record a conviction and, for my part, I would also impose a fine of $250.

The order of the Court is:
(1) Appeal against sentence allowed;
(2) Sentence imposed at first instance varied and instead a conviction is not recorded.

I will hear any submissions as to costs.

MR MUMFORD:  The appellant has, certainly in part, been successful to the extent that the recording of a conviction has been removed and, in those circumstances, she ought to have her costs.  This can't be said to be a matter of complexity or any of the other considerations that arise under the regulations, so she ought to be entitled to costs at the standard amount for an appeal of this type, namely $1800.

HIS HONOUR: Can you refer me to the part of the Justices Regulation where that figure appears?

MR MUMFORD: Yes. It appears in this way, your Honour. The standard figure is $1500. Under the Justices Regulation, there is a loading of 20 per cent for 222 appeals. It is in schedule 2 of the Justices Regulation - I've got my copy open at the page‑‑‑‑‑

HIS HONOUR:  You're happy to hand it up to me?

MR MUMFORD:  I'm content to hand it to you.  It's marked with a yellow post-it note and‑‑‑‑‑

HIS HONOUR:  Has it got your name on, Mr Mumford?

MR MUMFORD:  No.

HIS HONOUR:  I'll do my best to remember to return it at the end of the proceedings.

MR MUMFORD:  Thank you.

HIS HONOUR:  What a handy volume.

MR MUMFORD:  Well, I had to make some adjustments by putting some extra hole punches in my copy.  It just means I don't have to carry an entire volume with me.

HIS HONOUR:  And where does it make reference to the loading?

MR MUMFORD:  Okay.  The page that your Honour has, if we start from the top it says "part 1".

HIS HONOUR:  Yes.

MR MUMFORD:  There should be an item 4.  The number 4 should be in bold.

HIS HONOUR:  I've found it.

MR MUMFORD:  Then if we go to the very bottom of the page, the award is 1500 - up to 1500, I should say, and item 4 provides for a loading of 20 per cent; 20 per cent of 1500 is 300.

HIS HONOUR:  Thank you, Mr Mumford.

MR MUMFORD:  Thank you, your Honour.

HIS HONOUR:  Do you have any submissions on that, Mr Winlaw?

MR WINLAW:  No, I don't, thank you, your Honour.

HIS HONOUR:  No.  You couldn't oppose the submission, could you?

MR WINLAW:  No.  No, your Honour.

HIS HONOUR:  No.

The appellant has applied for costs in the standard amount of $1,800 on the basis that it has been partly successful in relation to this appeal. Under the Justices Regulation 2004 in schedule 2, part 2, read with section 4, I am satisfied that costs up to $1800 may be awarded for instructions and preparation for the hearing, including the attendance on the first day of the hearing.

I consider that the appellant has been successful in relation to the principal aspect of the appeal which is embodied in the original grounds of appeal.  The error in this case was due to the Magistrate misconceiving her power to exercise her discretion as to whether or not to record a conviction.  The appeal has been allowed on that basis.  That put in issue the entire sentence.  The fact that I have come to the same decision in relation to the quantum of fine does not diminish the success of the appellant on the principal point on which the appeal turned.

In those circumstances, I order the respondent pay the appellant's costs of the appeal in the sum of $1,800.  If there is nothing further, those are the orders of the Court.

MR MUMFORD:  I have nothing else, thank you, your Honour.

HIS HONOUR:  All right.  Thank you for your assistance, Mr Mumford, and also Mr Winlaw.

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