Maloney v The Commissioner of Police

[2016] QDC 191

DISTRICT COURT OF QUEENSLAND

CITATION:

Maloney v The Commissioner of Police [2016] QDC 191

PARTIES:

QUADE DYLAN MALONEY
(Appellant)

v

THE COMMISSIONER OF POLICE
(Respondent)

FILE NO/S:

Appeal no. 32 of 2015

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Bundaberg

DELIVERED ON:

30 May 2016

DELIVERED AT:

Bundaberg

HEARING DATE:

15 October 2015

JUDGE:

Rackemann DCJ

ORDER:

The appeal is allowed and no conviction is recorded.

CATCHWORDS:

CRIMINAL LAW – appeal against sentence – where the appellant was convicted of one count of going armed in public so as to cause fear and one count of public nuisance – where the magistrate exercised discretion in favour of recording a conviction – where the Magistrate proceeded on a misconception – where discretion re-exercised

COUNSEL:

A Hoare for the appellant

Solicitors for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Office of the Director of Public Prosecutions for the respondent

1. This is an appeal against a sentence imposed in the Magistrates Court on the 15th of October 2015, when the appellant was dealt with for one count of going armed in public so as to cause fear and one count of public nuisance.  He was sentenced to 200 hours of community service, and there is no complaint about that.  The appeal focused, however, upon the learned magistrate’s decision to record convictions.

1. The recording or otherwise of a conviction is dealt with in section 12 of the Penalties and Sentences Act. Subsection (1) provides the court with a discretion whether or not to record a conviction, whilst subsection (2) sets out the matters which the court must have regard to in all of the circumstances of the case. Those matters are as follows:

(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

1. The submissions made on behalf of the appellant at first instance focused, understandably, on the second and third of those considerations.  The appellant is a young man, having been born on the 30th of October 1994 and so was just shy of his 21st birthday when he was dealt with in the court and was similarly 20 at the time of the offences, which occurred on the 20th of April that year.  He had, only a month earlier, on the 2nd of March 2015, been dealt with for a public nuisance offence, for which he had been fined, and had a conviction recorded.

1. It was submitted, on his behalf, that the offence for which he was dealt with the previous month and which had occurred in January of the same year, together with the offences for which he was being dealt with, represented a short period of offending by a young man with particular difficulties, which he was putting behind him in an endeavour to rehabilitate and to find useful employment, and that the recording of a conviction in such circumstances was likely to affect his chances of finding employment, and that, in the circumstances, convictions ought not be recorded.

1. The appellant left school at the end of grade 11.  He had had some employment, as well as some periods of unemployment.  His position in the workforce was clearly somewhat tenuous, and as was submitted on his behalf today, the recording of a conviction would obviously have a negative impact upon his prospects.  Not only was he a young man with limited education and some periods of unemployment, but he had a diagnosis of ADHD, for which he had received some treatment at some time in the past.  In short, he was a young man who needs things to go his way if he is to find useful and sustainable employment.

1. The period of his offending was explained against the background of a problem with alcoholism, which stemmed from the brutal killing of his brother in 2012.  The learned magistrate was informed that, since the offending, he had ceased drinking alcohol altogether.  There had been a six-month gap between the offending and when he was being dealt with, and there was no suggestion of there having been any reoffending in the meantime. 

1. Notwithstanding those matters, his Honour exercised his discretion in favour of recording a conviction.  In doing so, he mentioned, in particular, the proximity of these offences to that which for he had been dealt with on the second of March, and also to the seriousness of the offence.  Each of those factors were relevant factors to have regard to. 

1. It appears, however, insofar as the seriousness of the offences is concerned, that his Honour acted on a misconception.  In the course of the sentencing submissions and in response to a submission that no conviction be recorded, his Honour said:

Mr Later, the seriousness of the offence of going armed to cause fear is one that normally – you’ve probably advised Mr Maloney on matters that have gone before the higher court, prior to the amendments of legislation, started at six months.

1. On the hearing of this application, the prosecution consented to the statistics being provided to me, which show that, in fact, offences of this kind dealt with at both the Magistrates Court level and at the higher court level, in fact, ordinarily attracted sentencing options other than imprisonment.

1. It was conceded on behalf of the respondent that his Honour’s statement was in error, but I was urged to view it as something that was being said to caution the appellant, rather than showing that the sentence proceeded on some misconception.  The difficulty in accepting that, however, is that the same statement appears in his Honour’s reasons, when he said:

Normally, as I indicated when Mr Later was making submissions on your behalf, the higher courts have started with imprisonment for this type of offence, starting at about six months. 

1. It seems, therefore, that the discretion as to whether to record a conviction or not miscarried, because insofar as his Honour took into account the nature of the offence and the seriousness of the offence, his Honour did so on the mistaken belief that it is an offence of a nature which ordinarily attracted a starting point of six months’ imprisonment, when that is not so.  That misconception had the potential to affect where the balance of the considerations lay and, in my view, meant that the sentencing discretion miscarried, which justifies me in exercising the discretion afresh.

1. I have already referred to the factors which were urged on behalf of the appellant, and they must be balanced with the nature of the offences and their seriousness.  The offences were certainly not trivial.  I also take into account that, as the respondent pointed out, there is no certainty of the recording of a conviction affecting any particular employment opportunity of the appellant, although it seems to me that it is likely, given the appellant’s precarious position in the workforce, that there would be some adverse effect. 

1. In re-exercising the discretion today, I have the advantage that another 12 months has passed. I was informed there are some unresolved charges, but obviously, since they are unresolved, I won’t take those into account.  But it seems to me that, having regard to the facts as they were before the learned magistrate and on the basis of re-exercising the discretion afresh, it seems to me that the balance lies in favour of not recording a conviction.  Accordingly, the appeal is allowed, and no conviction is recorded.