R v Pickering

Case [2016] QCA 231

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pickering [2016] QCA 231

PARTIES:

R
v
PICKERING, Jamieson Lawrence
(applicant)

FILE NO/S:

CA No 116 of 2016
SC No 1007 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


Supreme Court at Brisbane – Date of Sentence: 5 April 2016

DELIVERED ON:

13 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2016

JUDGES:

Gotterson and Philip McMurdo JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of unlawfully supplying a dangerous drug – where the applicant was sentenced on each of the offences to three years’ probation and a conviction recorded on each – where the applicant was the proprietor of a nightclub – where the applicant supplied cocaine to two young women – where it is submitted that the sentencing judge sentenced on a basis which was unavailable on the evidence, namely that the Office of Liquor and Gaming Regulation would remain  unaware of the offending – whether the sentencing judge erred by taking into account the possibility that not recording a conviction would conceal the offending from the Office of Liquor and Gaming Regulation – whether the recording of a conviction was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 12

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, cited
R v Briese; ex parte Attorney-General [1998] 1 Qd R 487; [1997] QCA 10, considered
R v Pham (2015) ALJR 13; [2015] HCA 39, cited

COUNSEL:

P J Callaghan SC, with B P Dighton, for the applicant
D Boyle for the respondent

SOLICITORS:

Murphy’s Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. GOTTERSON JA:  I agree with the order proposed by Daubney J and with the reasons given by his Honour.

  2. PHILIP McMURDO JA:  I agree with Daubney J.

  3. DAUBNEY J:  On 5 April 2016, the applicant pleaded guilty to two counts of unlawfully supplying the dangerous drug cocaine.  On each count he was sentenced to three years’ probation, and convictions were recorded.

  4. The applicant now seeks leave to appeal against sentence, with the proposed appeal limited to the recording of the convictions.  The grounds of the proposed appeal are that:

    (a)the learned sentencing judge erred when, in exercising his discretion to record convictions on both counts, he took into account the possibility that not recording a conviction would conceal the offending from the Office of Liquor and Gaming Regulation, and

    (b)the sentence was, in all the circumstances, manifestly excessive.

    Background

  5. The offences occurred on 1 March 2015.  At that time, the applicant was 49 years old, and was the proprietor of a Gold Coast nightclub.

  6. On the evening in question, two young women went to…

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Details
AGLC
R v Pickering [2016] QCA 231
Case
[2016] QCA 231
Decision Date

CaseChat Overview and Summary

The case of R v Pickering involves an appeal against sentence by the applicant, who had previously pleaded guilty to two counts of unlawfully supplying a dangerous drug. The applicant, a nightclub proprietor, supplied cocaine to two underage women. The legal issues in this case revolve around the sentencing judge’s exercise of discretion in recording convictions on both counts and whether the judge erred by considering the potential concealment of the offending from the Office of Liquor and Gaming Regulation.

The court examined whether the sentencing judge made an error of principle by taking into account the possibility that not recording a conviction would hide the offending from the Office of Liquor and Gaming Regulation. The court also considered if the recording of a conviction was manifestly excessive in the circumstances. The applicant argued that the judge's decision was influenced by factors that were not available based on the evidence, specifically, the potential impact of not recording a conviction on the liquor licensing authorities.

In its reasoning, the court found that the sentencing judge’s decision to record convictions was not based on an error of principle and was in line with the factors outlined in the Penalties and Sentences Act 1992. The court concluded that the judge's consideration of the potential impact on the Office of Liquor and Gaming Regulation was not an error but rather a legitimate factor in the sentencing process. The court further held that the sentence of three years’ probation and the recording of convictions was appropriate given the circumstances.

ORDERS:
The application is refused.

Orders

Orders of the court

The application is refused.

Background

Background to the litigation

The applicant now seeks leave to appeal against sentence, with the proposed appeal limited to the recording of the convictions. The grounds of the proposed appeal are that:(a)the learned sentencing judge erred when, in exercising his discretion to record convictions on both counts, he took into account the possibility that not recording a conviction would conceal the offending from the Office of Liquor and Gaming Regulation, and (b)the sentence was, in all the circumstances, manifestly excessive.Background The offences occurred on 1 March 2015. At that time, the applicant was 49 years old, and was the proprietor of a Gold Coast nightclub. On the evening in question, two young women went to a party at the applicant’s apartment. When these women arrived at the apartment, the applicant and another man, Stevens, were in the kitchen with about six lines of cocaine lined up on the bench. The applicant and Stevens asked the young women if they wanted any, and the young women accepted the offer. The applicant asked, “You’re all 18 hey?”, to which the women responded in the affirmative. Both women were, in fact, younger than 18 but, as the prosecutor informed the learned sentencing judge, each was, in any event, carrying fake identification. The applicant passed over a rolled up $50 note and each of the young women ingested cocaine through that tube. Subsequent police investigation of Stevens’ mobile phone revealed a short video depicting part of the offending. The applicant had a very dated criminal history consisting of only one minor and, for present purposes, irrelevant offence.Penalties and Sentences Act 1992 As I have already noted, the only issue on the present application concerns the exercise of the discretion to record convictions. In that regard, s 12 of the Penalties and Sentences Act 1992 (“PSA”) relevantly provides:“(1)A court may exercise a discretion to record or not record a conviction as provided by this Act.(2)In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including –(a)the nature of the offence; and(b)the offender’s character and age; and(c)the impact that recording a conviction will have on the offender’s –(i) economic or social wellbeing; or(ii) chances of finding employment.”Submissions at sentence hearing Senior counsel who appeared for the applicant below focused his submissions, relevantly, on the possible impact that the recording of convictions would have on the applicant’s dealings with the liquor licensing authorities. So much is clear from the following passage of argument:[1][1]AR 31-32.“HIS HONOUR: Mr Boulten, if it assists you, I’m not troubled about the three year probation aspect. The matter which I am finding more difficult is why a conviction should not be recorded.MR BOULTEN: It’s because of no one factor but a combination of all the relevant factors, and, in that sense, the seriousness of the offence is a very important one. Although we accept that general deterrence is a very important feature of sentencing people who supply dangerous drugs, in the circumstances of this case general deterrence needs to be tempered, to some degree, because there has already been, and will continue to be, other penalties extra curial. For instance, he is likely to have to deal with the Office of Liquor, Gaming and Racing, in some way, shape or form. It’s going to pop its head up.HIS HONOUR: Well, one would expect so.MR BOULTEN: Yes.HIS HONOUR: The idea that someone would be the proprietor of a night club who gives cocaine to young women is not likely to command universal appeal.MR BOULTEN: No. And he expects that there’ll be an inquiry, expects that he’ll need to address concerns. There’s no way of knowing for sure what’s that’s going to lead to.HIS HONOUR: But that will happen whether a conviction’s recorded or not.…HIS HONOUR: I understand that and I’m willing to accept that his efforts in relation to that organisation are commendable, but the recording of a conviction’s unlikely to have any impact upon the consideration to be given by the liquor licensing authority.MR BOULTEN: I beg to, respectfully, differ just marginally because ---HIS HONOUR: Why might it make a difference?MR BOULTEN: Because it will be a signal from the court that this is an offence which, in all of the circumstances that you’re aware of, was capable of being dealt with without a conviction and that will be something that the liquor authorities are entitled to take into account.HIS HONOUR: The thing that concerns me about not recording the conviction is the potential to pull the wool over the eyes of people who need to know. He’s a proprietor of a nightclub. Why would the court, in those circumstances make an order which may have an impact upon the capacity of relevant statutory authorities to discharge their function?MR BOULTEN: I understand that that is a matter which your Honour does need to take into account, yet there are other factors also which your Honour needs to balance against that in determining this issue. It really is an aberration for him to be in a position like this. It’s an extraordinary position for him to be in.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Finally, I should record that even if I had been persuaded on the applicant’s proposed first ground of appeal that there had been an error of principle in the exercise of the sentencing discretion, the practical outcome for the applicant would have been no different. If leave to appeal had been granted, I would nevertheless have been of the view that no different sentence should be passed. The unchallenged sentence of three years’ probation was appropriate and, for the reasons set out above, I would have been satisfied that convictions should be recorded. In those circumstances, I would have dismissed the appeal.[11][11]Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.Conclusion For the reasons set out above, the applicant has not persuaded me that there is any proper basis for the grant of leave to appeal against sentence. The application should be refused.

Ratio Decidendi

Legal Principle Established

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