Lawrence v Queensland Police Service

[2023] QDC 213

QUEENSLAND COURTS AND TRIBUNALS

TRANSCRIPT OF PROCEEDINGS

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DISTRICT COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE LYNCH KC

Indictment No 175 of 2022

LAWRENCE  Appellant

v.

QUEENSLAND POLICE SERVICE  Respondent

TOWNSVILLE

9.54 AM, THURSDAY, 11 MAY 2023

DAY 1

RULING

Any rulings in this transcript may be extracted and revised by the presiding Judge.

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HIS HONOUR:   This is an appeal against sentence imposed by a Magistrate in the Townsville Magistrates Court on the 31^st of October 2022.  The grounds of the appeal against sentence are that the sentence imposed was excessive having regard to the recording of a conviction, and it is only the recording of a conviction that is the subject of attack on the hearing of the appeal.

The appellant was fined the sum of $750.  The Magistrate recorded a conviction.  The respondent concedes that there was error in the proceedings below.  The transcript of what occurred before the Magistrate is included in the material.  It shows that the Prosecutor below recited the facts very briefly, and submissions were then made on behalf of the appellant.  Included in those submissions was one that the learned Magistrate would not record a conviction.

The appellant was charged with a breach of or contravention of the police notice on the basis that he attended his home residence within a time period that was precluded in accordance with the conditions of the notice that he had been given.  He was, according to the notice, not permitted to return to his home address prior to 10.45 pm.  He was found by police to be at his home address at 1.30 pm.  He was found sitting in the back area of the house.  It is not suggested that he made any effort to get into the house.  His former partner apparently had called the police and locked him out to prevent him entering.

Clearly enough, he was in breach of the requirements of the notice.  The explanation offered on his behalf by the lawyer acting for him was that he had come from the hospital, he had been released and told that he was allowed to return home, and although he had the notice he did not take sufficient care in reading it appropriately to understand that he should not have gone home until at least after the designated time.  Of course, it was entirely relevant that it was his home.  He was entitled to return there, just not before the designated time.

The learned sentencing Magistrate addressed the appellant in terms which would suggest that he had regard to other material, and the transcript shows that the Magistrate had regard to other material which was contained, presumably, in an application for a protection order.  It was urged that he would put that material to one side, nevertheless he addressed the appellant.  He simply pronounced the sentence, told the appellant that he was convicted, and a conviction was recorded.  He was fined the sum of $750.

No explanation at all was given by the learned Magistrate as to why he determined that it was appropriate to record a conviction.  It is possible, having regard to the interaction between the Magistrate and the appellant - that is, the way that the Magistrate addressed the appellant - to conclude that the Magistrate regarded the offence as serious.  It is not easy to ascertain why that was particularly so. The Magistrate’s interaction with the appellant included his telling him that if he committed a similar offence, he would send him to jail for “a fair stretch”.  In any event, there was no explanation at all given by the Magistrate in his sentencing remarks which would explain his decision to record a conviction.

There are two arguments put by the appellant in support of the argument that the recording of a conviction was excessive. The first is the failure of the Magistrate to explain it, or to address section 12 of the Penalties and Sentences Act in coming to that conclusion, or explain how he addressed it. The second is that he failed to give opportunity to the appellant’s lawyer to make submissions if he were considering such a course.

I am not satisfied that the second of those grounds is established.  There was opportunity for each of the parties to make submissions about the recording of a conviction.  The solicitor acting for the appellant in fact made that submission.  It may well be that the solicitor was not then in possession of information which is now before the Court which includes the possibility of the appellant losing his blue card, and hence his employment.  But in any event, it may be that the appellant was unaware that there was a risk of that occurring, and the solicitor was unaware similarly because the solicitor had not been advised of any of those matters.  But there was nevertheless opportunity to make whatever submissions were intended to be made concerning the recording of a conviction.

It seems to me though that the first of the grounds is made out. The purpose of a Court giving reasons for a decision is so that the parties, that is, the appellant and the respondent, understand why it is that a particular result is reached. And it also provides opportunity for review of any decision made by the Court. In this instance, no reference was made at all to section 12 of the Penalties and Sentences Act, and no explanation at all provided as to why the matters that were required to be considered resulted in the Magistrate concluding that a conviction should be recorded.

In those circumstances, I am satisfied there is clear error demonstrated on the part of the Magistrate. He did not, on the face of it, address any of the considerations required under section 12. Those include having regard to the nature of the offence, the offender’s character and age, and the impact that recording a conviction will have on the offender’s economic or social wellbeing or chances of finding employment.

If the learned Magistrate had had regard to the nature of the offence, it seems to me he must have concluded that this was an offence at the very lower end of the scale of seriousness, comparatively speaking.  Undoubtedly there would be serious examples of the offence where there was a deliberate flouting of an order, and where there was no other reason for a person to attend an address.  And instances of such behaviour sometimes are before the Court where the purpose of the offender in defying the notice is to revisit committing acts of domestic violence.  No such conduct occurred in this case.

As I have noted, the appellant was entitled to go to the residence, just not until after a specific time.  It was in fact his place of residence, and notwithstanding that the couple had separated.  If the Magistrate had had proper regard to that and weighed it against the other circumstances, it seems to me it would or should inevitably have led to a conclusion that no conviction should be recorded.  The appellant had one entry on a criminal history from 30 years before which was not in any way similar, and which was of no relevance at all.

I am now in possession of information not before the Magistrate contained within the appellant’s affidavit concerning the prospects of his losing his blue card, and hence his employment.  I am well and truly satisfied, on the basis of all of that material and the concession that is made by the Prosecution, that no conviction should be recorded for this offence.  In light of there being error, it follows that the sentence should be set aside; that part of the sentence where the Magistrate ordered the conviction be recorded should be set aside, and having regard to the material, I am satisfied that no conviction should be recorded.

The formal orders therefore are as follows.  The appeal is allowed.  The sentence imposed at first instance is varied to the extent that the recording of a conviction is set aside, and I order that no conviction be recorded.  Otherwise the fine remains as was ordered.  Is there any further order required?

MR MALCOLMSON:   No, thank you, your Honour.

HIS HONOUR:   All right.  Thank you for your assistance.

MR MALCOLMSON:   Thank you, your Honour, for having today brought on at late notice.

HIS HONOUR:   No.  That is fine.  We will just adjourn.

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