R v Cope

[1995] QCA 461

COURT OF APPEAL

[1995] QCA 461

DAVIES JA
MOYNIHAN J

FRYBERG J

CA No 249 of 1995
THE QUEEN
v.

DAVID MICHAEL COPE Applicant

BRISBANE
..DATE 23/08/95
230895 D.1 T8/KC M/T COA95/256
MOYNIHAN J: This is an appeal against a penalty in that a
conviction was recorded against the applicant when he was
dealt with for an assault on a police officer. He was also
dealt with for disorderly conduct but no application is made
in respect of the penalty imposed for that or for the penalty
otherwise in respect of the assault on the police officer.

The circumstances of the offences were that the police were called to a residence in Cairns in the early hours of the morning. The occupant of the residence was a former girlfriend of the applicant and he had gone there and found another man there. The situation deteriorated from there, the police were called, there was an episode of disorderly conduct. While he was being conducted, I think, to the police station he got out of the police car, one of the police officers gave chase and in the course of his apprehension on that occasion, the assault on a police officer of which he was convicted took place.

The applicant was affected by alcohol in some degree although
I don't suggest that that of itself bears on the
considerations which arise for us. The applicant was 25 years
old at the time. He had no previous convictions and otherwise
appeared to be a person of good character. He was in
employment as a waiter, had among other things studied
Japanese and intended to travel to Japan. The recording of a
conviction might provide some inhibition for his desire in
that respect. This Court in a number of cases - for example,
230895 D.1 T8/KC M/T COA95/256
Johnson, CA206 of 1993, judgment delivered on 17 August 1993 -
has pointed to the desirability of first offenders, and
particularly young first offenders whose prospects might
adversely be affected by the recording of a conviction, being
subjected to that particular aspect of sentence.

It is true to say that the magistrate specifically gave attention to the matter. He was rightly concerned about the circumstances of an assault on a police officer and on the need for the Courts to reflect the undesirability of that sort of conduct but, to my mind, the consideration of the age, good character, absence of any previous criminal history and the prospective effect on the applicant's career opportunities bring the case within the principles laid down by the Court on occasions such as Johnson and the appropriate sentence in the circumstances would have involved not recording a conviction and I would therefore to that extent allow the application and remove that recording from the sentence.

DAVIES JA: I agree.

FRYBERG J: I agree.

DAVIES JA: The order is as indicated by Justice Moynihan.

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