Kimber v McDermott

[2000] QDC 381

IN THE DISTRICT COURT  APPEAL NO. 86 OF 2000

HELD AT SOUTHPORT

QUEENSLAND

[2000] QDC 381

Before J M Hanger, D.C.J.

BETWEEN  M. A. KIMBER

Appellant

AND  JOAN McDERMOTT

Respondent

REASONS FOR JUDGMENT – J M HANGER, D.C.J.

Judgment delivered on the 12 day of May 2000.

This is an appeal on behalf of the Crown against the failure of the sentencing magistrate to record a conviction against the respondent on a charge of “Drink Driving” pursuant to s.16 (2) of the Traffic Act.   The respondent pleaded guilty on 4 January this year, was fined $650.00 and was disqualified from holding or obtaining a driving license for 14 months, although a provisional license was issued for that period.

Briefly, the facts are that the respondent was stopped while driving on Chevron Island at Surfers Paradise for a random breath test at 2.25 a.m. on 21 November, 1999.   She was found to have a blood alcohol reading of .137%.   Although she had no previous convictions she had previously been issued with speeding tickets on some five occasions since 1994.  

Pursuant to s.12 (1) of the Penalties & Sentences Act the Court has a discretion as to whether or not to record a conviction.   Section 12 (2) of the Act states that –

“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.”

It is for the appellant to show that the Magistrate has improperly exercised her discretion as to the non-recording of a conviction.   The discretion must be exercised properly and in accordance with general sentencing principles, policies and practices.

The offence is a serious one in that it was potentially dangerous to others. The maximum penalty is imprisonment for three months plus a fine of 13 penalty units. It cannot be described as trivial or of a minor nature. The blood alcohol reading was well above the permissible limit. The offence is prevalent and the deterrent aspect of the penalty, both from a personal and general viewpoint, is a significant factor to be taken into consideration. The respondent’s previous Traffic Act breaches, which involved speeding, are also a relevant consideration.

Although the respondent has been a person of good character and has been involved in community work, there were no particular exceptional or remarkable features, either in the material or the submissions made before the Magistrate in mitigation, or before this Court, either relevant to this particular offender or to the offence she committed, which would warrant the non-recording of a conviction.   It is not disputed that convictions are normally recorded for this type of offence and the failure to do so may well give rise to a justified sense of grievance on the part of others who have been dealt with for similar types of offences.   For this reason a degree of consistency in sentencing is important.

It is further submitted on behalf of the respondent that the attitude expressed by the prosecutor when invited to make submissions about the recording of a conviction should make an appellant Court reluctant to interfere.   When asked by the Magistrate whether he had any submissions the prosecutor replied –

“Your Worship, it is only a traffic related offence.  The recording of a conviction will not affect her at all, but I have no real objection to it, Your Worship.”

Although it may be a relevant consideration it does not detract from the general principle that a Court is required to exercise a discretion properly and fairly, and independently of the attitude of the prosecution.   In any event, where such an attitude is expressed by a police prosecutor, I have doubts about whether it should be given the same weight as if made by a member of the profession who is an officer of the Court.

The respondent also made reference to a number of instances of more serious offences, such as robbery, where no conviction had been recorded.  I do not find these of much assistance.    Each case involves a consideration of a number of factors.   The nature of the offence is only one such consideration which may well be over weighed by other mitigating circumstances such as, for example, the age of the offender.   On the other hand convictions are frequently recorded for less serious offences than the present one.  

Consequently, I am satisfied that the Magistrate made a discernable error in not recording a conviction and that consequently the sentence was manifestly inadequate.  

In the circumstances the appeal is allowed and I order that the order of the Magistrate be varied by ordering that a conviction be recorded against the respondent.   I further order that the respondent pay the appellant’s costs in the matter.