R v Lennon and Attorney-General of Queensland

[1997] QCA 18

IN THE COURT OF APPEAL	[1997] QCA 018
SUPREME COURT OF QUEENSLAND

C.A. No. 568 of 1996

Brisbane

[A-G v. Lennon]

THE QUEEN

v.

ANDREW PATRICK GERARD LENNON

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Macrossan C.J.
Fitzgerald P.

Byrne J.

Judgment delivered 4 March 1997

Judgment of the Court

APPEAL AGAINST SENTENCE ALLOWED.
THE RESPONDENT IS TO PERFORM 240 HOURS OF COMMUNITY SERVICE.
THE RESPONDENT IS TO PAY COMPENSATION IN THE AMOUNT OF $2,590 TO
THE COMMISSIONER OF POLICE.

CONVICTIONS RECORDED.

CATCHWORDS:	CRIMINAL LAW - Attorney-General’s appeal against sentence for stealing as a public servant and attempted forgery - respondent police officer stole money located on suspect and made false receipt - sentenced to bond and ordered to pay compensation - no convictions recorded - whether sentence manifestly inadequate.
Counsel:	Mrs L. Clare for the appellant. Mr T. Rafter for the respondent.
Solicitors:	Queensland Director of Public Prosecutions for the appellant. Gilshenan & Luton for the respondent.
Hearing Date:	24 February 1997
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 4 March 1997

The Attorney-General has appealed against a sentence imposed on the respondent in the District Court at Cairns on 25 November 1996. The respondent, a Detective Senior Constable attached to the Cairns CIB, had pleaded guilty that day to one count of stealing as a public servant between 6 January and 23 March 1994 and one count of attempted forgery on 5 February 1995.

On 7 January 1994, the respondent and his partner arrested a person suspected of defrauding the Commonwealth Bank and took him to the Cairns watch house. The watch house keeper subsequently informed the respondent that $2,590 had been found on the suspect. The respondent took possession of the money, and initially claimed to have returned it to the bank and been given a receipt dated 12 January 1994, which he could not produce. The matter was referred to the Criminal Justice Commission, and arrangements were made to interview the respondent on 6 February 1995. On the previous day, the respondent claimed to have located a copy of the receipt on a personal disk and, on 6 February, he gave the disk to his Senior Sergeant. It was later established that the document on the disk was a forgery which the respondent had prepared on 5 February. On the basis that the document had been prepared but not printed by the respondent, he was charged with, and pleaded guilty to, attempted forgery, not forgery.

The sentencing judge released the respondent on a recognisance without surety in the sum of $3,000 on conditions that he be of good behaviour, appear for conviction and sentence if called on at any time during a period of two years, and within three months pay the sum of $2,590 to the Commissioner of Police by way of restitution. It seems that both the prosecution and the defence counsel, as well as the judge, acted on the basis that such an order could only be made under s. 19 of the Penalties & Sentences Act 1992 and that, in that event, convictions could not be recorded. Were that so, it would demonstrate - if further demonstration be needed - the total inappropriateness of the course adopted by the sentencing judge in releasing the respondent on a recognisance. In fact, as was common ground before this Court, had a recognisance and compensation been appropriate, the sentencing judge could have acted under Divisions 3 and 4, instead of Division 1, of Part 3 of the Penalties & Sentences Act, and ordered that convictions be recorded.

The respondent, who is 31 years of age, born on 17 July 1965, has no previous convictions. It is usual for this Court to give effect to favourable comments made by a sentencing judge, although on this occasion we do so with some reservations. His Honour described the sentencing as “a sad occasion” for him, referring to the circumstances that the respondent’s family was well- known and well-respected in Cairns, that he had frequently dealt with offenders whom the respondent had investigated and charged, and that the respondent had given evidence before him. After stating that “leniency would be much easier had you made an immediate admission of your guilt when the matter was first investigated”, his Honour went on to say that, on the other hand, the respondent had “done the wrong thing impulsively”, and that it was “only human nature to try to retrieve the situation”. It was accepted that the respondent’s offences were committed under circumstances of emotional and financial strain, although before this Court the respondent’s counsel seemed to accept that no more was involved than domestic difficulties. The sentencing judge also stated that the respondent had “always met the highest standards of integrity and honesty expected from police officers, except for this one occasion”, adding that it was clear that the respondent had the friendship, support and respect of his colleagues and the respect and good wishes of many people in the community. His Honour assumed that the respondent would be dismissed after a “distinguished and exemplary career in the police force of ten years”, and that the loss of his chosen career would be a great loss to him, as well as a great financial loss. Finally, his Honour added:

“It seems to me that for an offence of this nature committed impulsively, the loss of your position and employment as a police officer, together with the shame that you have brought upon yourself - it seems to me that you already have been substantially punished, or will be substantially punished for the offence.”

Having regard to these statements and the surprising attitude adopted by the prosecutor who informed the sentencing judge that “the Crown is not asking for a custodial penalty”, together with the concession made by the prosecution before this Court that, in view of the course of events below, a sentence of imprisonment is not sought on this appeal, a custodial sentence will not be imposed although that would ordinarily be warranted for such offences by a police officer. The 240 hours community service proposed by the prosecution is the minimum punishment which the Court can countenance.

That leaves the question whether convictions should have been recorded, which admits of only one answer. Theft and deception by an experienced police officer in the performance of his duties must ordinarily have such a consequence. A submission was made by the respondent’s counsel that a conviction would prevent the respondent from obtaining a licence, and hence from working, as a “security provider” under the Security Providers Act 1993. It is correct that, under s. 12 of the Penalties & Sentences Act, when considering whether or not to record a conviction a court must have regard to the impact that recording a conviction will have on the respondent’s economic or social wellbeing and chances of finding employment (sub-s. 12(2)(c)). However, sub-s. 12(2) makes it clear that the court must have regard to all the circumstances of the case, including the nature of the offence. It is by no means an automatic consequence of the fact that a conviction will adversely affect a person’s employment prospects or exclude that person from a particular career that a conviction should not be recorded. It is plainly appropriate that in the circumstances which have been referred to convictions should be recorded in respect of the respondent’s offences.

The Attorney’s appeal should accordingly be allowed and the orders made below set aside. The respondent should be ordered to perform 240 hours’ community service. He should also be formally ordered to pay compensation in the amount of $2,590 to the Commissioner of Police, although the Court was informed that that compensation had already been paid. In addition, it should be ordered that convictions be recorded.