Noblett v Queensland Police Service

[2008] QDC 217

DISTRICT COURT OF QUEENSLAND

CITATION:

Noblett v Queensland Police Service [2008] QDC 217

PARTIES:

David Leigh Noblett

(Appellant)

V

Queensland Police Service

(Respondent)

FILE NO/S:

569/07

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrate Court, Southport

DELIVERED ON:

18 June 2008

DELIVERED AT:

Southport

HEARING DATE:

18 June 2008

JUDGE:

Kingham DCJ

ORDER:

   [1]      THE SENTENCE OF THE LEARNED MAGISTRATE OF THE 26TH OF OCTOBER 2007 IS SET ASIDE. 

   [2]      NO CONVICTION IS RECORDED

   [3]      MR NOBLETT IS FINED THE SUM OF $200.

COUNSEL:

Mr W Potts for the appellant

Mr M Mitchell for the respondent

SOLICITORS:

Price & Roobottom for the applicant

Director of Public Prosecutions for the respondent

1. HER HONOUR:  This is an appeal by David Leigh Noblett against the sentence imposed by the learned Magistrate on the 26th of October 2007 for 2 offences; one of knowingly participating in the provision of prostitution and one of possessing tainted property.  Mr Noblett was sentenced in the one hearing along with 2 co-accused, 2 women who were also involved in the particular incident.

1. I have reviewed the transcript of the proceedings, in particular the submissions by the Prosecutor as to the facts alleged by the Crown, which facts were not disputed by any defendant.

1. It appears to me that the learned Magistrate drew conclusions as to the role of this particular defendant, Mr Noblett, which were not justified by the submissions made by the Prosecutor as to the facts of the offence.

1. In particular, his Honour drew the conclusion that this defendant had an enhanced role in the operation, and also decided that, without this defendant's active participation in it, the offences could not have been committed.  There are other expressions of opinion stated by his Honour, but those two are of particular significance as they were referred to in his sentencing remarks.

1. His Honour imposed a penalty of a $200 fine and did not record a conviction against either of the 2 other defendants.  For this defendant, he imposed a fine of $500 and did record a conviction.

1. I am satisfied that there is no basis for his Honour to have drawn the distinction that he did between the defendants, and I will quash the order that he be fined $500 and replace that with an order that he is fined the sum of $200.

1. As to the decision as to whether or not his Honour should have exercised his discretion not to record a conviction, I am somewhat troubled that there is little information on the record about this defendant, the sort of material that normally would be provided in support of a submission that no conviction be recorded.  It is evident from the transcript that the nature of the exchange between the Bench and the Bar table at the time may have distracted both from a proper consideration of that matter.  I do, though, have before me information about the nature of the offence and the age and the character of this defendant, at least to some extent.  There is nothing in his previous history, no similar offence of this kind.  There are some previous entries but they relate to a period when this current sentencing regime was not in place, and there was no facility then for convictions not to be recorded for relatively minor offences.  The Court must have regard to a lengthy period of compliant behaviour, and I consider that is a relevant factor for my consideration as to whether or not I should exercise the discretion not to record a conviction.

1. It is also appropriate that I take into account the nature of the offence.  It is not an offence that normally one might consider the public had an interest in knowing of in circumstances where otherwise it may be seen as a relatively minor offence.

1. It appears to me that the learned Magistrate decided not to exercise his discretion under the relevant provision of the Penalties and Sentences Act purely on the basis of his erroneous assumptions about the nature of the defendant's role in these proceedings. As such, I think it is appropriate that I look at that matter afresh, taking into account the limited material before me and relying primarily on the nature of this offence and the considerable period of no offending by this defendant. I think it is appropriate that I not record a conviction in this case.

1. The sentence of the learned Magistrate of the 26th of October 2007 is set aside.  No conviction is recorded, and Mr Noblett is fined the sum of $200.