QUEENSLAND POLICE SERVICE and CARTER

[2012] QDC 236

[2012] QDC 236

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE R JONES

No 15 of 2012

QUEENSLAND POLICE SERVICE	Respondent/Plaintiff
and
RAY CARTER	Applicant/Defendant

MARYBOROUGH

..DATE 20/8/2012

ORDER

HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act. I intend to deal with the matter ex tempore but reserve my right to tidy up these reasons before publication.

On 3 April 2012, the appellant pleaded guilty in the Maryborough Magistrates Court to one charge of common assault.  In respect of that charge he was sentenced by the learned Magistrate below to a fine of $500 and was ordered to pay $500 by way of compensation to the complainant and a conviction was recorded.  The appellant has not appealed against the imposition of the fine but appeals the decision to record a conviction and the order compensation in the amount of $500.

It is well established that in appeals such as this the appeal Court ought not interfere with the sentencing discretion simply because it might have imposed a different sentence.  That is, some error has to be identified.  In that regard I refer to the well known decision of the Queen and House.  In House and the Queen which has been footnoted in the respondent's written submissions [1954] 90 Commonwealth Law Report 652 at 655 and 668, Chief Justice Dixon with Justices Fullagar, Kitto and Taylor agreeing, said, "The jurisdiction to revise such a discretion must be exercised in accordance with recognised principles.  It is not enough that members of the Court themselves impose a less or different sentence or that they think the sentence is overly severe.  There must be some reason for regarding the discretion confined to the Court at first instance and properly exercised.  This may appear from the circumstances which that Court has taken into account.  They may include some considerations which ought not to have affected the discretion or may exclude others which ought to have been done so.  The Court may have mistaken or been misled on the facts or in error of law may have been made.".

In respect of the issue of the recording of a conviction, it is contended on behalf of the appellant that that recording of a conviction may impact on a number of aspects of his life and in particular, with the Maryborough SES and also may affect his ability to gain a blue card for an upcoming event which, as I understand it, would involve the joint input of the Queensland SES, the Rural Fire Service and also the local scouting organisation. 

In support of his application, the appellant handed up a letter dated 26th March 2012 from the Queensland Government which relevantly states, "This letter is to acknowledge your correspondence dated 14 March 2012 advising that you had been charged with the criminal office of assault.  As you have not yet been convicted of this offence could you please provide further advice of the Court's finding once your hearing has been undertaken.  Upon receipt of this advice of the Court's decision we will determine the appropriateness of your continuation of duties as an SES member based on considerations contained within the operations doctrine - BMH7.0 Criminal Charges and Convictions.".

As that letter points out it was written at a time before the appellant had been convicted.  Since that time the appellant has continued his services with the SES, notwithstanding the fact that he has, to use his terms, been up front with that organisation and told them that on the 3rd of April 2012 he was convicted and sentenced in respect of that charge.

No evidence has been put before me which convinces me that the recording of a conviction would materially impact on the appellant's employment opportunities, nor in respect of his continuing activities with the SES and the Rural Fire Service Authority.

In this context, then, I am unable to find that the learned Magistrate below erred in recording a conviction.  The assault was only at the lower end of the scale but nonetheless, as the learned Magistrate recognised, it involved an assault on a woman.  As I have said, I am simply not convinced on the material before me that an error was made by the learned Magistrate below in recording a conviction.

Turning then to the next aspect of the appeal, namely, the order requiring the appellant to pay compensation in the amount of $500 to the complainant.  On my reading of the transcript, the Prosecutor did not raise, during his sentencing submissions, the issue of compensation.  When I asked the appellant about the matter he advised me that it was his recollection that compensation was not raised.  It seems tolerably clear to me from a reading of the transcript that the learned Magistrate did not raise with the parties the prospect that he might have been going to impose a compensation order yet did so.  The effect of this is that the appellant, who was legally represented on the day was denied the opportunity to put forward any argument to address that matter.  In my view the appellant was, for that reason, denied natural justice.  Accordingly I am satisfied that the learned Magistrate below did make an error in the exercise of his discretion in imposing that penalty.

In most cases that would result in that part of the appeal being allowed.  However, in circumstances where to make a decision of that type would deny a third party the benefit of a Court order.  I am disinclined to deal with the matter in that way and as unfortunate as it is, it appears to me that the only recourse available is to have that part of the appeal remitted back to the learned Magistrate to allow the appellant to be heard.

For the reasons given, the order of the Court is that the appeal is allowed but only to the extent that the compensation order is set aside and that that matter is to be remitted back to the learned Magistrate to allow the appellant to be heard.  Now, should that be sufficient?

THE COURT ADJOURNED AT 3.10 P.M.

THE COURT RESUMED AT 3.12 P.M.

HIS HONOUR:  Look, I apologise is this but two things occurred to me the moment I walked out the door.  The first is, Mr Carter's not represented today and it struck me immediately that it may not be appropriate to remit the matter back to the same Magistrate in circumstances where that Magistrate has, if you like, formed a view, albeit a view formed without hearing submissions.  It would seem to me that Mr Carter might feel that it be more appropriate to be dealt with by another Magistrate who would be hearing things afresh and not have, if you like, some preconceived ideas.  Mr Carter, do you want to be heard about that?

APPLICANT:  Yeah, that'd be fine, yeah.

HIS HONOUR:  Well, it's not a matter of it being fine.  It strikes me that that'd be a more appropriate course of action‑‑‑‑‑

APPLICANT:  Yeah, all right.

HIS HONOUR:  ‑‑‑‑‑do you agree?

APPLICANT:  Yep.

HIS HONOUR:  So - and the other matter that occurred to me, albeit following some prompting by my Associate, is that it may be open for me to deal with the matter.  Now, I am not aware of whether I'd have the jurisdiction to do so or whether you or Mr Carter would consider that an appropriate course of action but I just thought I should at least signal it because I am going to be here for two weeks and I don't know when the matter might be able to be dealt with by another Magistrate.

MR SWANWICK: Look, I'm just not certain about the provisions for section 222 but I think in other appeals, I think fresh material, if the agreement of the parties and, you know, if - and if leave is allowed then fresh material could be presented and in this case it would be in dealing with one of the points of appeal. I can't - I can't think of any reason why your Honour couldn't do it that way.

HIS HONOUR:  But do you want to get some - Mr Carter do you live locally?

APPLICANT:  Yes.  Yeah, I do.

HIS HONOUR:  All right.  Well, look, do you want to give some thought to it because you might want to gather some material.  It wouldn't - I must say from my own point of view it's not the most desirous course of action but it might be one that, if you like, leads to a speedier result.

MR SWANWICK:  Yes.

HIS HONOUR:  So, if you could both give some consideration to that then I suppose, really, I'm saying, you Mr Swanwick, I'm afraid.

MR SWANWICK:  Yes.  Yes.

HIS HONOUR:  And I'll certainly turn my mind to it.  And if you could leave a contact number.

APPLICANT:  Yeah, no worries.

HIS HONOUR:  So, what I might do is dismiss that part of the appeal dealing with the recording of a conviction but, just let me think.

MR SWANWICK:  You wish to adjourn the - the other part for - to hear submissions?

HIS HONOUR:  Adjourn that part of the appeal concerning the awarding of compensation to allow the parties to be heard further if required.  If that's not the outcome then the orders that I made previously will be varied but only to the extent that the matter of compensation be remitted to the Magistrates Court to be heard and determined by a Magistrate other than the original sentencing Magistrate.  Now, do either of you want to say anything before I leave again?  Thank you.

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