Janos v Commissioner of Police

[2008] QDC 147

[2008] QDC 147

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE HOWELL

ISTVAN GABOR JANOS	Appellant/Defendant
and
COMMISSIONER OF POLICE	Respondent/Complainant
HERVEY BAY ..DATE 07/04/2008
ORDER

07042008 T(2)14-15/SIB(CAB) M/T HERV03 (Howell DCJ)

HIS HONOUR: The appellant appeared in the Hervey Bay	1
Magistrates Court on the 26th of April 2007 and pleaded guilty to four associated drugs type offences. They were that on the 14th of October 2006 at Nikenbah he was in possession of
cannabis in the amount of 7.4 grams with the presumptive

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amount being 500 grams, possession of amphetamine being 1.09 grams of crystal rocks containing an unspecified quantity of amphetamine with the presumptive amount of amphetamine being 2
grams, possession of a utensil relating to a small glass pipe

used to smoke methyl amphetamine (known in the vernacular as

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speed), and possession of controlled drugs namely eight
tablets which I understand were Valium and for which the

appellant did not have a prescription.

The appellant was born on the 22nd of March 1984 which means

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at the time of the offending he was 22 and was 23 at the time
of sentence. The appellant's mother contacted the police
stating that her son, the appellant, had overdosed on drugs
and was hallucinating. The mother also stated that the

appellant was becoming violent towards her and her boyfriend.

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On the police arriving at the appellant's premises, his mother informed the police that the appellant had consumed some type of amphetamine. When the police saw the appellant in his bedroom, they noticed that he had enlarged pupils and was

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hallucinating, that he was speaking in an erratic manner and
continually asking for drinks of water.
07042008 T(2)14-15/SIB(CAB) M/T HERV03 (Howell DCJ) 2 ORDER 60

The appellant told police he had taken crystal meth earlier in	1
the night. The police searched the appellant's premises and inside a small black metal locked box located the said proscribed drugs.

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The appellant admitted that the items were his and that he had used the glass pipe to smoke crystal like rocks earlier that night. The appellant was no longer detained but was taken to the Hervey Bay Hospital where he received treatment in relation to an overdose.

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The material before the learned Magistrate included a report from the Fraser Coast Health Service District dated the 28th of December 2006 and although signed by a psychologist it

would seem that the source of functional information was from

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the medical records from a psychiatrist, Dr Oelrichs.

The inelegantly expressed report stated that "subsequent to his admission" the appellant had been diagnosed with schizophrenia. It seems that the almost inescapable

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conclusion is that as a result of the appellant's abuse on a
not irregular basis of proscribed drugs he suffered drug
induced psychoses resulting in schizophrenic and/or
schizophreniform events. As happens virtually always with

people suffering from schizophrenic and/or schizophreniform

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episodes and/or from bipolar affective disorder, and
particularly those suffering drug induced psychoses, are
insightless and therefore not compliant.
07042008 T(2)14-15/SIB(CAB) M/T HERV03 (Howell DCJ) 3 ORDER 60

The report states that the appellant had been compliant with	1
his oral medication particularly his anti psychotic medication. One would hope that the appellant fell in that very small category of people so suffering who are, in fact, insightful and compliant.

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The report suggested favourable progress in relation to those problems for one suffering such drug induced psychoses, but one has to make a very guarded prognosis. It is not something in which one can say with any confidence or even courage that

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after a short period of a couple of years that the problem has
been overcome but there is a certain optimism thereunder and
there is ongoing treatment thereon which was a matter not
inappropriate in the consideration of the learned acting

Magistrate.

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40

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4 ORDER 60

07042008 T(2)16/FLC(CAB) M/T HERV03 (Howell DCJ)

Dr Olhrich provided that most unsatisfactory one-liner	1
many an occasion in which it says that, "As of the 15th of
certificate, the type that I have scarified or lacerated on and would be unfit for trial until the 15th of April 2007."

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For the purposes of today's hearing I will let that one go through to the keeper.

Before the Magistrate the Police Prosecutor referred to no previous criminal history. The solicitor appearing for the

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appellant somewhat surprisingly referred to the appellant's
having received a caution in New South Wales when he was
young. A double-edged sword in relation to matters for
today's consideration is the appellant's work as a security

guard supervisor in New South Wales and it is apparent desire

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at some stage of further employment in that regard.

To state the obvious any right thinking member of the community would not want the person with his drug problem indicated in October last year to be a security guard. One

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would hope that he would never be licensed as a security guard
unless and until after full examination of his history in
relation to the voluntary ingestion of proscribed drugs and
the consequences thereof and with a full and appropriate

material that there was comfortable satisfaction that he has

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sufficiently recovered therefrom and sufficiently
rehabilitated such that he would be an appropriate person to
have a licence to work as a security guard.
07042008 T(2)16/FLC(CAB) M/T HERV03 (Howell DCJ) 5 ORDER 60

The community is heartily sick of drug-fuelled bouncers having	1
regularly in the past inflicted violence of quite some seriousness.
A good citizen spoke well of him in references tendered before

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the Magistrate. Leaving aside the all too often hyperbole
that accompanies such references there is suitable material
speaking favourably of him. The appellant's appearing on a
plea of guilty with its resultant allowance for cooperation in

the administration of justice, with no previous criminal

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history, would obviously be entitled to submit with a certain
optimism that there should be no conviction recorded unless

there was something adverse.

On the question of whether or not to record a conviction the

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learned acting Magistrate was obliged, pursuant to section 12
(2) of the Penalties and Sentences Act, to have regard to a
number of matters in deciding whether or not to record a
conviction and if a conviction were not recorded to give

appropriate reasons thereon.

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The solicitor for the appellant submitted, "Your Honour would not record a conviction to allow him to ultimately be able to return to being a contributing member of the society." It may

arguably have been not inappropriate at that stage if the

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learned acting Magistrate were considering recording a
conviction to say, "On what basis do you submit I should not
record a conviction?" or "I remain to be persuaded on that
topic. Tell me why I should not" in effect.
07042008 T(2)16/FLC(CAB) M/T HERV03 (Howell DCJ) 6 ORDER 60

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The immediate question by the learned acting Magistrate was, "What outcome? Can you advance anything? Do you advance any particular penalty?". The solicitor for the appellant referred to probation but the topic was not further discussed

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on whether or not to record a conviction.

There was discussion in relation to what I will call, whether there should be a medical term. A probation officer was asked to make some comments and the end result of the probation

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officer's comment was that the appellant was currently
undergoing that very course of treatment in effect that he
would, if there were a probation order with the special

medical term.

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Almost, as an aside, the probation officer said the appellant was assessed as suitable for a community based order. When it appeared clear that the learned Magistrate, on the material before him, having the special medical term, would be merely making an order that was already in place and was unnecessary

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that particular order was not considered further whereupon the
learned Magistrate then gave his sentencing reasons.
07042008 T(2)17/KMW(CAB) M/T HERV03 (Howell DCJ) 50

7 ORDER 60

He did not refer to the provisions of section 12(2) in	1
deciding that a conviction should be recorded. For completeness his order was a fine of $1,750. As I think is ratherly well known, in over 24 years in this position I fined someone in Clermont in 1984, which he did not pay, and I fined

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someone in Toowoomba about three years ago.

Generally speaking I regard a fine as the most unsuitable of sentencing options. At one end of the scale for a person of substantial means it is a mere business expense and no real

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punishment at all. At the other end of the scale it can be,
as Stable and Andrews JJ, as they then were, said in Gibson
Wallace Johnston on the 16th of June, 1979 that such is in
effect imprisonment by instalments. That is not to say many a

Court should not regard it as an appropriate exercise and

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discretion in an appropriate case to impose a fine.

In this particular case in which you had a 23 year old first offender would not at first instance serious consideration be given to a community based order such as community service,

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with its punishment component, the appellant is doing
something useful for the community and being done in his
leisure time, but not only more useful for the community but

more useful in the development of the appellant himself.

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If the appeal were merely from a fine of $1,750 I could not say anything other than that was well within the sentencing discretion and not manifestly excessive. However, the main 07042008 T(2)17/CSA(CAB) M/T HERV03 (Howell DCJ) 8 ORDER 60

thrust of the appellant's submissions is there should be no	1
conviction recorded.
Section 12 subsection (2) states:

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The offending is possession of prescribed drugs with no "In considering whether or not to record a conviction the including; (a) the nature of the offence, (b) the offender's character and age and (c) the impact that a recording of a conviction will have on the offenders, (i) economic or social wellbeing or (ii) chances of finding employment"

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suggestion of supply, certainly not of selling such or dealing
in such. It seems the appellant was of otherwise good
character and is still aged under 25. One is concerned with
the impact that recording of a conviction for a 23 year old

would have on the chances of employment. That is a relevant	30
consideration for which, in this case, one might have thought reasons would be given if there were to be a conviction recorded.
The double edged sword in relation to such matter is that the	40
community would arguably not want the appellant to work in the
security industry unless there is convincing and compelling
evidence that the voluntary ingestion of drugs no longer
presents any problems and he has sufficiently rehabilitated
himself thereon.	50

At the end of the day I am of the view that the recording of a
conviction makes the sentence manifestly excessive and the
07042008 T(2)17/CSA(CAB) M/T HERV03 (Howell DCJ) 9 ORDER 60

order will be that the appeal is allowed and in considering	1
the appropriate order pursuant to section 225 of the Justices Act the order is as follows: There is no conviction recorded and by consent if the appellant consents, the appellant is
present in Court - it is ordered that he perform unpaid

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community service within 12 months for 120 hours on the
following terms:

You shall not commit another offence during the period of the order. You shall report within 24 hours to an authorised

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commission officer at Hervey Bay. You shall report to and
receive visits from an authorised commission officer as
directed by the commission officer. You shall perform in a
satisfactory way the 120 hours community service at times and

places as directed by the officer. You shall obey all

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reasonable directions of the supervisor. You shall notify an
authorised commission officer of every change in your place of
residence or employment within two business days after such
change. You shall not leave or stay out of Queensland without

the prior permission of an authorised commission officer. You

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shall comply with every reasonable direction from an

authorised commission officer.

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10 ORDER 60

07042008 T(2)18/CSA(CAB) M/T HERV03 (Howell DCJ)

This order can only be imposed by your consent if you in fact	1
consent. The first term is you shall not commit another offence during the period of the order. If you do in addition to any penalty you get for that offence you will, not might, be brought back before this Court to be sentenced for the

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original offence and if that happens you might anticipate very
real problems talking me out of three months actual
imprisonment for the original offence. If you want three
months imprisonment for the original offences just commit

another offence during the period of the order and I will

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grant you your wish.

You have to report to an authorised officer within 24 hours but before you leave this building you will be supplied with a copy of the order but I order that you be supplied with a copy

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of the order by 4.30 p.m. tomorrow afternoon. So, you can go
to the Registry in this building by 4.30 p.m. tomorrow

afternoon to get a copy of the order.

You have to report to and receive visits from an authorised

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commission officer as directed. The officer will discuss with
you your work and other obligations and tell you when and
where to perform community service and you will comply. At
the place of community service there will be a supervisor.

You will obey all reasonable directions of the supervisor. If

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you decide not to perform the community service adequately or
at all because you are a bit lazy or you would rather be doing
something else or you get a bit bored with it you will, not
might, come back before this Court to be sentenced for the
07042008 T(2)18/CSA(CAB) M/T HERV03 (Howell DCJ) 11 ORDER

original offence. If that happens you might not wish to make	1
any plans for the ensuing three months.
I have heard excuses from the best, the laziest, the most cunning of them all for trying to get out of community

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service, I know all the age old excuses, "I slept in. The bus
was late. I was a bit tired. I wanted to watch something on
TV or I had a bit of a sniffle or whatever", I have heard them
all. I know all the one liner medical certificates from the

Doctor who does not really know you. If possible I check a

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whole community service record card and a pattern usually
emerges.

This is important; if you change your place of employment or residence you must let the office know within two business

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days of the change. You shall not leave or stay out of have to comply with every reasonable direction of the officer. Community service is a very good sentencing option as I have said, particularly for yourself.

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Of the original fine of $1750 you have paid $910 to date and I direct that whatever sum you have paid to date, if it is $910 or whatever, that that sum be refunded to you.

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Istvan Gabor Janos, do you understand the terms of the community service order?

APPELLANT: Yes, your Honour.
07042008 T(2)18/CSA(CAB) M/T HERV03 (Howell DCJ) 12 ORDER

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HIS HONOUR: Do you consent to the community service order?

APPELLANT: Yes, your Honour.

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HIS HONOUR: Where were you born, what town?

APPELLANT: Hungary.

HIS HONOUR: No, what town?

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APPELLANT: Eaja.

HIS HONOUR: Sorry?

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APPELLANT: Eaja.

HIS HONOUR: Yes, thank you. I make no order as to costs.

Thank you, Mr Goodwin. Thank you, Mr Cummings.

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I direct that a certified copy of these reasons be sent to the appropriate regulatory body responsible for the licencing of security guards.

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13    ORDER