McClennan v Queensland Police Service

[2010] QDC 474

DISTRICT COURT OF QUEENSLAND

CITATION:	McClennan v Queensland Police Service [2010] QDC 474
PARTIES:	ROGER JAMES MCCLENNAN
Appellant
v QUEENSLAND POLICE SERVICE
Respondent
FILE NO:	196 of 2010
DIVISION:	Appellate
PROCEEDING:	Appeal against sentence
ORIGINATING
Magistrates Court at Maroochydore
COURT:
DELIVERED ON:	7 December 2010
DELIVERED AT:	Maroochydore
HEARING DATE:	3 December 2010
JUDGE:	K S Dodds, DCJ
ORDER:	Vary the order made on 19 August 2010 recording a conviction for the offences and in lieu order that no conviction be recorded. The order made by the learned Magistrate on 19 August 2010 is otherwise confirmed.
CATCHWORDS:	APPEAL – where factual basis upon which the Magistrate proceeded was incorrect – where further evidence adduced – whether the recording of a conviction was appropriate in the circumstances
Justices Act 1886 (Qld) s 222, s 223
COUNSEL:	B Winter (sol) for the appellant N Hanly (sol) for the respondent
SOLICITORS:	B Winter Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. This is an appeal against a sentence imposed by a Magistrate on 19 August 2010 at Maroochydore. On that date, the appellant pleaded guilty to two offences against section 22(1) of the Summary Offences Act 2005. The learned Magistrate imposed a fine of $600 for both offences and ordered convictions be recorded. The appeal is against the recording of convictions.

2. Appeals such as this are by way of rehearing on the evidence given in the proceeding before the Magistrate. However, leave may be given to adduce fresh, additional or substituted evidence if the Court is satisfied there are special grounds for giving leave. If leave is given, then the appeal is by way of rehearing on the original evidence and on the new evidence adduced.[1] Here I gave leave for some fresh evidence to be adduced and the appellant entered the witness box and gave evidence on oath.

   [1] Justices Act 1886 section 223.

3. The charges were as follows:

1.	That between the 4th day of January 2010 and the 11th day of January 2010 at Nambour the appellant “imposed on another person, namely the Minister for Health to obtain an advantage, namely to incur a period of unauthorised sick leave”.
2.	That between the 2nd day April 2010 and the 18th day of April 2010 at Nambour the appellant “imposed on another person, namely the Minister for Health to obtain an advantage, namely to incur a period of unauthorised sick leave”.

1. I have read a copy of the transcript of the proceedings before the Magistrate and a transcript of His Honour’s decision.

2. The proceeding before the Magistrate consisted of the Police Prosecutor telling the Magistrate in brief summary what the matter was about and the Duty Lawyer then making some submissions.

3. The factual context can be briefly stated. The appellant was employed by Queensland Heath. Prior to the commission of the offences there had been an issue regarding his work attendance. At the time of the commission of the offences he was subject to an ‘Attendance Improvement Plan’ by Queensland Health. On the occasion each charge related to, he forged or falsified a medical certificate to justify his absence from his work.

4. The Duty Lawyer in submissions to the Magistrate informed His Honour that the main motivation for what the appellant had done was that his supervisor was calling him up on a daily basis regarding his absence, that he had been diagnosed earlier in 2010 with depression and was taking medication and at the time of the commission of the offences his thinking was not particularly clear. His wife had just given birth to a young child, there were stresses in the home and stresses at work. He informed His Honour that there was no actual financial gain. All that the appellant was seeking was to be able to be away from work to sort some problems out at home and to keep his boss off his back.

5. The Magistrate’s reasons for his sentence action indicate that His Honour had formed a view that the reason for what the appellant did in each case was to obtain sick pay. His sentencing appears to have proceeded upon that basis.

6. On reading the appellant’s outline of submissions, it appeared that the appellant was saying that he had no sick pay at the time and that obtaining sick pay was not his motivation. Rather his motivation was avoid pressure and in the words of the submission “harassment and bullying by his supervisor”. That had not been made entirely clear by the Duty Lawyer, although in what he said there are hints of it. Even at that stage during the sentencing proceeding, the transcript indicates that His Honour had a view that a purpose of the false certificates was to obtain sick pay.

7. I gave leave to the appellant to adduce further evidence. The appellant entered the witness box and gave sworn evidence. I accept his evidence.

8. The view I formed about the facts is as follows. The appellant had been in trouble at work for taking an excessive number of sick days. Consequently he was placed on the ‘Attendance Improvement Plan’ by his employer. A condition of that plan was that a medical certificate had to be provided for each period of absence. At the time of the commission of each offence he was absent from work and his supervisor was demanding medical certificates to justify his absence. He produced the certificates to satisfy those demands. At the time, he had no sick leave at all. There was never any prospect of him being paid for the periods he was absent.

9. It now seems apparent the Magistrate proceeded on an incorrect view of the facts, although as I have already mentioned, the Duty Lawyer’s submissions were somewhat obscure. In those circumstances it is appropriate to approach the sentence anew.

10. The appellant has no prior convictions. He is 37 years of age, married with an 11 year old child and 10 month old baby. Like a lot of young couples, their financial situation is very tight. He suffers from epilepsy, experiencing grand mal seizures from time to time, which are exacerbated by stress and sleep deprivation. I also received some fresh evidence in the form of a brief report from a consultant psychiatrist, Dr Martin. He first began to treat the appellant on 30 March 2010. At that time, he was satisfied the appellant required psychiatric treatment and prescribed anti-depressant therapy for him. His depressive symptoms included fatigue, diminished self confidence and self esteem, despairing mood with suicidal ideas and loss of interest and motivation. He is still employed by Queensland Health. He has limited experience outside his current employment and his employability elsewhere, perhaps in the private sector, may be problematical. There is no direct evidence about whether the recording of a conviction will contribute to termination of his current employment. He has been suspended from his duties and is liable for disciplinary action under the Public Service Act 2008. The fact of not recording of a conviction, may be positive in retaining his present employment.

11. It seems to me that given the circumstances surrounding the commission of the offence, his likely mental state at the time and that the offences were not committed for financial gain, rather to avoid further stress from his supervisor resulting from his taking time off work, that it is appropriate not to record a conviction.

12. I have already allowed the appeal and varied the Magistrate’s order to remove the recording of the conviction. In lieu I have ordered that no conviction be recorded. I indicated at the time that I would provide brief reasons for the decision. These are those reasons.