R v Craigen

[1997] QCA 313

[1997] QCA 313

COURT OF APPEAL
PINCUS JA
McPHERSON JA

de JERSEY J

CA No 224 of 1997
THE QUEEN
v.

JAMES ANGUS CRAIGEN Applicant

BRISBANE
..DATE 28/08/97
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PINCUS JA: This is an application for leave to appeal against
sentence, the applicant having been convicted in the Magistrates
Court of assault occasioning bodily harm. There was a trial and
the magistrate had to resolve a conflict of evidence. He
resolved it in favour of the complainant, a woman with whom the
applicant once had a relationship. There were children of the
relationship and the applicant was entitled to have access to
them. It appears there was a confrontation between the parties
relating to that subject, that is, the subject of access. An
argument developed and according to the complainant's evidence,
which the magistrate accepted, she was punched on the side of
the face. The complainant then told the applicant to get off
her property. She said that the applicant then gouged out her
eyes, which presumably is intended to convey something less than
it would literally mean, and then punched her again on the face.
According to the complainant, she told the applicant she would
call the police and he replied, "I'll make a good job of it" and
punched her again, in the mouth. The complainant suffered
swelling and bruising to both sides of her face and a split lip.

It is not really clear from the complainant's evidence whether she was punched twice rather than three times. When questioned by the police the applicant told them he was not even present at the premises where the assault took place, but that turned out not to be so. The applicant admitted having struck the complainant once; but it appears provocation and self defence were pleaded; those defences were rejected. In giving reasons for his decision the magistrate said in effect that he could not discount the penalty because the plea was not guilty, but that he took into account that the applicant had no previous convictions. The applicant was born on 1 June 1959 and is so 38 280897 T13-14/JAP/20 M/T COA 195/97

years of age. He was also charged and convicted of breach of a domestic violence order but he was not fined in relation to that. The breach consisted in his having entered upon the complainant's premises when, according to the order, he was not entitled to and there was also a breach of a clause requiring him to be of good behaviour and not commit domestic violence.

The fine imposed for the assault was $500 and there was an order that $300 compensation be paid, plus $86 witness expenses. The magistrate recorded a conviction in respect of the assault; he allowed six months payment. Although not included in the record there is before the Court a transcript of the submissions made upon sentence on behalf of the applicant by Mr McInnes. That set out, as indeed the applicant himself, who appeared for himself today, has told us, that he is not presently employed. He has been employed on and off for a lengthy period of time. He has always tried to get employment to support his family and has had as many as 40 different employers, his most recent employment being as a cleaner at the Kenmore Village shopping centre. There is also mention that one of the children who wanted to move back with his father has done so.

In giving his reasons for sentence the magistrate dealt with the
question of recording a conviction in this way:
"Now, in relation to recording - not of the conviction on the

breach of domestic violence order; I will not record the conviction, as it was a minor breach as far as the paragraph 5 goes, and you are convicted and discharged without that conviction being recorded.

On the assault charge; I do take into account the nature of the offence, it is a serious offence, it is a prevalent offence before these Courts, and although you do not have any prior convictions or appearances before a Court I intend to record the conviction against your name."

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His Honour then referred to a decision of this Court in a case of Lewis v. McCourt (CA No 356 of 1996) and it seems to me unnecessary to set out the summary of that case which the magistrate included. It is enough to say that it was another assault case.

His Worship concluded with these remarks:
"The defendant in that case was a 61-year old man, the Court of

Appeal said that 'It was a serious offence', and that offence also was unprovoked, and the Court of Appeal ruled that the conviction should be recorded in that matter against the defendant, and the conviction was recorded. Taking that into account; I follow suit and record the conviction in this matter."

The applicant has not said so, but it appears to me possible, that the learned magistrate with all respect to him, took too much from Lewis v. McCourt. The facts of the case are not set out in great detail either in the judgment or in the magistrate's summary of them and, in particular, it does not appear from that whether the case was one where, like the present, the applicant was a person who was after employment.

We have been told today by the applicant that this has, in fact, caused some difficulty in obtaining a particular job - that is, his having a conviction for assault occasioning bodily harm recorded against him - and it seems to me plain that it could do that in relation to certain jobs, although not in respect of others. The applicant has not relied upon this but it seems to me to be a factor that should be mentioned; he is a man of not wholly European appearance and that, in my opinion, is likely to be a difficulty, to some extent, in obtaining certain jobs. But 280897 T13-14/JAP/20 M/T COA 195/97

looking at the matter broadly, here you have a man in his 30s who is convicted of an assault for which he is fined in relation to a dispute about access.

It appears to me that, although I have great respect for the magistrate's view of the matter, His Worship's exercise of discretion must have erred in some way. It is disadvantageous, as it appears to me, for such an applicant to have a conviction recorded against him. That in itself does not entitle him to have it not recorded, but I should have thought that an assault of this character, in relation to a man of this kind, would be one which called out for the exercise of the favourable discretion. I would therefore accede to the applicant's application to have the recording of the conviction deleted and otherwise I would confirm the sentence.

de JERSEY J: The Magistrate appears to have considered that a conviction should not be recorded because of a view that the offence was serious and unprovoked. Part of the seriousness of the offence was that it was committed in breach of a domestic violence order.

He referred to Lewis v. McCourt but that case really does no more, for present purposes, than provide an example of when the recording of a conviction might be upheld. The Magistrate was, nevertheless, in my view, entitled to see Lewis in that light and I think that is what he has done.

In the end, the considerations which weigh with me having regard to our present role are that the Magistrate received submissions on the aspect of whether a conviction should be recorded. He 280897 T13-14/JAP/20 M/T COA 195/97

turned his mind expressly to the exercise of discretion and he assigned a sufficient reason for the approach he took. I would therefore not interfere and would refuse the application.

McPHERSON JA: I agree with the view adopted by Mr Justice
de Jersey. The question of whether to record a conviction was,
in my view, one to be determined at least partly by the
impression gained by the Magistrate of the character of the
offence which he found to have been committed and of the parties
in giving their evidence.

The Magistrate was in as good a position or a better position than we are now to judge the weight to be given to the finding that which he made against the applicant. He had seen and heard them give their evidence and, in my view, that was a matter of which legitimately entered into the exercise of his discretion in this case in deciding, as he did, to record a conviction against the applicant.

That was the only point that was directly raised by the applicant at the hearing before us and since on the view that the majority have taken in this Court he will not succeed on that point. It would appear that the application should be dismissed. However, to make sure of that I will ask the applicant now.

Now, Mr Craigen, apart from that question, that is, the recording of the conviction are there other matters that you wanted us to deal with in this application?

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APPLICANT: Your Worship, I would just like to say that I am not a solicitor and there are relevant points amongst what your learned colleague has said that I should have raised.

McPHERSON JA: No. I will not allow you to go back over that question. I thought I had secured from you before agreement that you were not going to ask the Court to alter the $500 fine.

If that is correct, perhaps, you will confirm it?

APPLICANT: Yes, Your Worship.

McPHERSON JA: So, far as the recording of conviction is concerned we have now dealt with that. Is there anything else that you wish us to look at which we, for some reason, might have overlooked so far?

APPLICANT: No, Your Honour.

McPHERSON JA: Right. Well, the order of the Court will be that the application for leave to appeal is refused.

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