Kirstenfeldt v Commissioner of Police

[2011] QDC 251

[2011] QDC 251

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE JONES

No 9 of 2011

RENEE ANN KIRSTENFELDT	Appellant
and
COMMISSIONER OF POLICE	Respondent

MARYBOROUGH

..DATE 1/11/2011

ORDER

HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act (1886). The appellant is 39 years of age and is a single mother with three children, the youngest of which is five.

On 16 May 2011, the appellant appeared in the Magistrates Court at Maryborough and was dealt with summarily in respect of a charge of common assault.  The appellant was convicted on her own plea of guilty and was sentenced by the learned Magistrate to 100 hours community service.  A conviction was recorded. 

Briefly stated the circumstances of the assault were that the complainant had been a friend of the appellant.  However, it would appear that the complainant and the appellant's husband were having a relationship, including a sexual relationship, and on the day of the assault, when the complainant went to pick up her children from Central Primary School at the closure of school at about 3 p.m., she was confronted by the appellant.  Some abusive language took place and the appellant then assaulted the complainant.  The appellant cooperated with the police and, as I referred to earlier, entered a plea of guilty.  A somewhat disturbing feature of the assault, of course, is that it took place in or about primary school grounds in the presence of children. 

The essential feature of the appeal is the assertion that the sentence imposed was manifestly excessive.  It is, of course, well recognised that an appellate Court, even in circumstances where the Judge on appeal might have considered that he or she might have imposed a different sentence,  that is not sufficient. To substitute a sentence in lieu of that already imposed what really has to be identified is a discernible error in the reasons given by the sentencing Judge below.

In the well known and often cited authority of House and the Queen (1936) 55 CLR 499 at 505, the High Court identified that it must appear that some error had been made in the exercising of the sentencing discretion. That may involve the sentencing Judge acting on a wrong principle, taking into account extraneous or irrelevant matters or failing to take into account relevant matters. Error might also arise where the sentencing Judge has acted on a mistaken view of the facts.

The situation that I find myself in here is that had I been the sentencing Judge, I might have been inclined not to record a conviction.  But it has not been shown that the learned sentencing Magistrate made a discernible error in imposing the sentence that he did and that I should therefore interfere with and disturb that sentence. 

The appellant, as I said, is now aged 39, will not be actively seeking employment for in the order of another three years and in circumstances where she has not worked for the past 17 to 18 years, it would have to be said with no disrespect to her whatsoever intended, that the prospects of employment could reasonably be described as not being good.

In the Queen and Bain QCA 452 [1996], the Court noted that a bare possibility that a conviction might affect the person's prospects was insufficient grounds not to impose the recording of a conviction, in my view, for the reasons I have already given, the description of a bare possibility essentially covers the situation here.  For the reasons given, the appeal is dismissed. 

MS COKER:  I should indicate, I seek no order as to costs.

HIS HONOUR:  There will be no order as to costs.

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