R v MDT

[2024] QCA 23

SUPREME COURT OF QUEENSLAND

CITATION:

R v MDT [2024] QCA 23

PARTIES:

R
v
MDT
(applicant)

FILE NO/S:

CA No 92 of 2023
DC No 2948 of 1995

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 5 August 1996 (Wolfe DCJ)

DELIVERED ON:

1 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2024

JUDGES:

Bowskill CJ and Morrison JA and Fraser AJA

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – POWERS OF APPELLATE COURT – where the applicant was convicted in 1996 of one count of misappropriation and two counts of false pretences – where the applicant was sentenced to three years’ imprisonment, wholly suspended, for the misappropriation and ordered to pay compensation for the other offences – where the applicant contends the conviction is hindering his employment opportunities and seeks a “review” of the sentence and a declaration that the conviction is “spent” – where the term of imprisonment imposed exceeds the term up to which the “rehabilitation period” provisions under the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) may apply – where those provisions operate by force of statute in any event, with no provision for any application for a declaration of spent conviction status to be made by a court – where the Court does not have power to “review” a sentence, any application for leave to appeal is substantially out of time, no basis for any error in the exercise of the sentencing discretion was shown, and the Court does not have power to declare a conviction spent

Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), s 3(2)

COUNSEL:

The applicant appeared on his own behalf
S J Dickson for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. BOWSKILL CJ: On 5 August 1996, the applicant was convicted, on his pleas of guilty, of one count of “misappropriation”, or what would now be called fraud, under s 408C of the Criminal Code, and two counts of an offence then known as “false pretences”.[1]  The offences were committed in what the sentencing judge described as an atmosphere of ruthless opportunism affecting the mobile telecommunications industry at the time.  There was money to be made by people working as sales agents for telecommunications carriers, to persuade people who had subscribed to one mobile network to leave and join another.  The other network would pay those agents a commission for each person so persuaded.  The networks were also, it seems, paying new customers who agreed to subscribe to their service a bonus for doing so.  The applicant lied to a particular telecommunications company about the number of customers he had persuaded to join its network.  He was paid an amount by way of commission based on those lies.  In addition, he caused a company of which his wife and her parents were the shareholders to apply for a number of subscriptions in return for which the telecommunications company paid the company the bonus amounts.

   [1]Under a now repealed section of the Code (s 427, repealed by the Criminal Law Amendment Act 1997). This offence would now also be captured by s 408C of the Code.

2. The applicant was sentenced to imprisonment for three years for the count of misappropriation, to be wholly suspended for an operational period of five years.  For the other two counts, he was ordered to pay compensation of $14,000, on the basis that the telecommunications company would be able to recoup the remaining balance of what it had paid out (about $10,000) from the sale of a car the applicant had purchased with the money dishonestly obtained.  The convictions were recorded.  Then, as now, that was not discretionary in the case of the penalty of imprisonment, suspended or otherwise.[2]

   [2]See ss 143 and 152 of the Penalties and Sentences Act 1992 (Qld).

3. Nevertheless, it is apparent from the sentencing remarks that the sentencing judge expressly considered whether recording a conviction was an appropriate consequence, and found that it was, observing that:

   “… there is no doubt that it would be difficult to operate in that atmosphere, with the attitude shown by some of the carriers and providers, in an honest, forthright and open manner, but people do and the reason that I am going to record a conviction for these offences of dishonesty, fully aware of what [effect] that may have on your future earning capacity and your position in the community, is that people do work in difficult and ruthless environments but they manage to remain honest.”

4. Personal as well as general deterrence were relevant factors, with the sentencing judge also saying that:

   “I do not accept that the fact that deals were being done day in and day out by others in a ruthless competitive industry as your counsel submitted excuses what you have done.  People in the same situation must be aware that they face a term of imprisonment if they are tempted to lie in order to gain benefits for themselves at the expense of those with whom they are in a position of trust, or a special relationship.”

5. Her Honour said she had wholly suspended the sentence of imprisonment, rather than requiring the applicant to serve some part before partially suspending the term, because the applicant had already “suffered from the shame of the consequences” and recording the convictions would have an effect on his employment opportunities in the immediate and longer term.

6. More than 26 years later, the applicant applied to this Court to request a “review” of the sentence imposed in August 1996, for the purpose of “seek[ing] a spent conviction status pursuant to” the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld).  As the applicant explained to the Court, he has worked hard since his conviction, “to transform my life, demonstrating a steadfast commitment to reform and becoming a responsible member of society”.  As a man now in his late 50s, seeking to work in the information technology industry, he says these convictions hinder his employment opportunities.  He emphasises that “substantial shifts in technological capabilities, societal norms, and employment practices since the late 1990s have created a markedly different landscape”, which has exacerbated the consequences of having a criminal record, “a reality that was not and could not have been anticipated at the time of the original sentencing”.

7. One cannot help but feel some sympathy for the applicant, because the search for employment at any age can be difficult, even more so as one gets older.  It is also accepted that a criminal conviction, particularly for an offence of dishonesty, may be an impediment.  However, the application to this Court is not competent for the following reasons.

8. First, there is no mechanism for “review” of a sentence imposed – only an application for leave to appeal the sentence (s 668D(1)(c) of the Criminal Code).

9. Secondly, such an application was required to have been made within one month of the sentence being imposed (s 671 of the Criminal Code).  The application here, even if treated as an application for leave to appeal, is more than 26 years out of time.

10. Thirdly, no basis has been advanced to question the appropriateness of the sentence imposed below.  It could not be said to have involved any error in the exercise of the discretion, nor to be manifestly excessive having regard to the circumstances of the offending.

11. Lastly, this Court does not have power to grant “spent conviction status”.  Whilst in some other jurisdictions there is legislation providing for an application to be made to a court for a declaration that a conviction is spent,[3] that is not the case in Queensland.  Here, the notion of a “spent” conviction comes from the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) which provides for a “rehabilitation period” for some convictions. Once that rehabilitation period has expired, subject to some exceptions, a person may lawfully deny the conviction (and it is, in that way, “spent”). That occurs by operation of the statute, not by any order of a court.

    [3]See, for example, s 6 of the Spent Convictions Act 1988 (WA) and s 11 of the Spent Convictions Act 2021 (Vic).

12. Relevantly, in relation to a conviction upon indictment recorded against a person as an adult, the rehabilitation period is 10 years from the date the conviction is recorded (see s 3(1)).  A conviction may be “revived”, even after the rehabilitation period has expired, if the person is again convicted for an offence (s 11).  But if the rehabilitation period has expired, and the conviction has not been revived, as a general rule (there are statutory exceptions) the person is not required to disclose the conviction (s 6) and may deny it (s 8).

13. However, significantly for the applicant, s 3(2) of the Act provides that a rehabilitation period applies in relation to a conviction of a person for an offence only if no term of imprisonment is imposed or a term of imprisonment of not more than 30 months is imposed on the person for the conviction. The sentence imposed on the applicant for count 1 (misappropriation) was one of 36 months (three years). Accordingly, the “rehabilitation period” provided for under the Act does not apply to this conviction (although it would apply to the conviction of the other two counts, false pretences, because no sentence of imprisonment was imposed).

14. In those circumstances, the application must be refused.

15. I consider it appropriate to anonymise the judgment in relation to this application because to do otherwise would only serve to further publicise these historical convictions.  The applicant was self-represented, and may, for that reason, not have appreciated that his application was not within the power of this Court to grant.  Whilst he does not have the benefit of the “rehabilitation period” provisions, in relation to the conviction of count 1, the impact of that conviction ought not, in my view, be amplified by publication now, in 2024, of his name and the details of it.

16. MORRISON JA:  I agree with Bowskill CJ.

17. FRASER AJA:  I agree with the Chief Justice.