R v Qualischefski

[1994] QCA 289

IN THE COURT OF APPEAL	[1994] QCA 289
SUPREME COURT OF QUEENSLAND

C.A. No. 139 of 1994

Brisbane
[R. v. Qualischefski]

BETWEEN:

T H E Q U E E N

v.

DAVID LANCE QUALISCHEFSKI (Applicant)

Fitzgerald P.
McPherson JA.

Ambrose J.

Judgment delivered 12/08/94

Joint reasons for judgment of the President and Ambrose J, McPherson JA separately.

All concurring as to the order made.

Application for leave to appeal against sentence refused.

CATCHWORDS:CRIMINAL LAW - Sentence - applicant in possession of a small quantity of marijuana - previous conviction for similar offence although no conviction recorded - conviction could possibly threaten applicant's employment - whether the recording of a conviction manifestly excessive

Counsel:Ms. L. Clare for the respondent

Ms. J. Dick for the applicant

Solicitors:Director of Prosecutions for the respondent
P. Russo and Associates for the applicant
Hearing Date:05/08/94
Judgment delivered 12/08/94

This is an application for leave to appeal against sentences imposed in the Magistrate Court at Brisbane on 10 March 1994. The applicant pleaded guilty to one charge of possession of a dangerous drug and one charge of possession of a pipe for use in connection with the smoking of a dangerous drug. He was fined $450.00 and $200.00 respectively, and a conviction was recorded in respect of each offence.

The applicant has applied for leave to appeal against the sentences on the grounds that convictions should not have been recorded and, accordingly, the sentences are manifestly excessive.
On 15 December 1993, police intercepted a vehicle driven by the applicant and, on searching the car, found a bag containing 6.5 grams of cannabis sativa and 0.211 grams of tetrahydrocannabinol and a pipe. The applicant admitted ownership.
The applicant is 28 years old and is employed as a computer operator by the Health Department. The recording of the convictions is likely to cost him his job, and his career, social position and lifestyle will all be adversely affected.
However, the applicant was at all times aware of such matters. On 5 April 1991, he had been convicted of possession of a dangerous drug on 23 January 1991. On that occasion, he was required to enter into a recognisance in the sum of $200.00 to be of good behaviour for twelve months. No conviction was then recorded. The applicant had been suspended from his employment but was reinstated when the outcome of the proceeding was known.
It was submitted for the applicant that his offences were not serious and that the consequences of recording convictions were disproportionate to the criminality involved. There is force in that view, and it was obviously correct not to record a conviction against the applicant on the first occasion in 1991.
However, unless a policy is to be introduced that ordinarily good citizens, or at least those who will lose their jobs as a result of a conviction, are not to have a conviction recorded in respect of a second offence of possession of cannabis sativa, there is no justification for interfering with the sentence imposed by the magistrate, which was within the range of his sentencing discretion. There was nothing before the Court on the occasion which would justify the adoption of such a policy.

Accordingly, the application is refused.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the Twelfth day of August 1994

In the catalogue of cases that come before this Court, the present appeal is small; but it has implications which in some respects are quite fundamental. The applicant for leave to appeal claims that a conviction for possession of cannabis will have dire consequences for him if it continues to be recorded. It will, he says, lose him his job as a computer operator with the Health Department, along with his career, his social position, and his life style.

Those consequences are undoubtedly severe; but, if for that reason, appeals like this are allowed and recording of convictions set aside, the impact on the administration of justice will in the course of time be no less serious. It will mean we are sanctioning the division of offenders into two classes. There will be those with good jobs and careers, enviable social positions, and prosperous life styles. Their convictions will not be recorded for fear of the damage it may do them. Then there will be those without jobs, or career prospects, or with standards of living that are already depressed. In their case convictions will be recorded.

Such an outcome seems to me to be quite wrong and thoroughly indefensible. It smacks of privilege, and can only lead to the evolution of a special class of persons in society who are exempt from the full operation of the criminal law at least at its lower reaches. If that possibility may seem to some to be fanciful, one need only to look to the case in hand. This is the second time the present applicant has been charged with an offence like this. In 1991 he was found guilty of possession of a dangerous drug. No conviction was recorded. Almost certainly the reason for that was the possible impact on the applicant's job, his career, his social position and his life style. It is difficult to see why the same reason for not recording a conviction should not operate with equal force if he ever commits the same offence again.

Meanwhile, others who commit such offences are, because they are less fortunate in their occupations or prospects, not able to advance the same reason for not having their convictions recorded. To discriminate against them, and in favour of others who are more fortunate, on grounds like that seems to me not only to be wrong in principle but contrary to the oath that each of us as judges and magistrates takes on appointment to office. By that we promise and swear (Oaths Act 1867, s.3):

"at all times and in all things [to] do equal justice to the poor and rich ...

according to the laws and statutes [of Queensland]."

To differentiate in penalty among individuals according to their occupations, prospects and life styles, seems to me to run directly counter to the terms of that oath. Of course, it may be that in enacting s.12 of the Penalties and Sentences Act the legislature has determined to impliedly override the precepts of judicial oath; but it would take a lot to persuade me that it has.

On the face of it, therefore, the application before us has little to commend it. But there is even more to be said against the proposition that underlies it. The fact that another person may in future act in an irrational manner would not often be considered a persuasive reason for asking a court to refrain from imposing a proper penalty for an offence. On the other hand, if someone claims he will as a result of conviction lose his job, a court ought not perhaps to set out to exercise its sentencing discretion in such a way as to anticipate and prevent that result. The discretion to sentence is not intended as an instrument for enforcing or frustrating employment policy.

Whether or not this is so, it is plainly incumbent on anyone who advances the claim to exemption made here by the applicant to identify in clear terms the extent of the risk to him and the basis on which it arises. The material in the record and proffered to the Court on appeal, falls well short of demonstrating anything as clearly as that. There is a reference in the applicant's affidavit to his reinstatement in employment after the occasion in 1991 when his earlier conviction was not recorded. Precisely how that came about, and under what statutory power, is not disclosed. Under regulations made under the Public Service Act of 1922, an officer charged with or convicted of an indictable offence was bound to report that fact to the departmental head. Under s.28(1) of the Act he might be suspended from duty; and under s.28(2) the Governor in Council was, on the recommendation of the Public Service Commission, authorised to summarily dismiss an officer who was convicted of an indictable offence.

How the discretion conferred by s.28(2) was exercised in practice is now of no account, because the Act was repealed by the Public Service Management and Employment Act 1988. The Public Service Management and Employment Regulations now contain in reg.48 the following provision:

"48. Where an office is charged with having committed any indictable offence, or is convicted by any court of an offence, whether punishable on summary conviction or otherwise, the officer shall immediately report the fact and the circumstances in writing to the prescribed authority as defined for the purposes of section 29 of the Act, through the officer's immediate supervisor."

Regulation 29(1), which is headed "Discipline", is as follows:

"29.(1) An officer of the public service is liable to disciplinary action upon any of

the following grounds shown to the satisfaction of the prescribed

authority to exist, namely -

(a)incompetence or inefficiency in the discharge of the duties of the office;

(b)negligence, carelessness or indolence in the discharge of the duties of the

office;

(c)misconduct;

(d)absence from duty except -

(i)upon leave duly granted as prescribed; or

(ii)with reasonable cause;

(e)wilful failure to comply with a lawful direction issued to the officer by any

person having authority over the officer;

(f)wilful failure to comply with any provision of a code of conduct approved by

the Governor in Council for officers of the public service."

Regulation 29(3) provides for the disciplining of an officer, and reg. 29(3A) specifies, as forms of discipline, dismissal or reprimand, as well as other matters which affect salary.

The only item in reg. 29(1) within which the applicant's conduct in this case

might be brought is "misconduct" in reg.29(1)(c). The word is defined in reg. 4(1) as:
"(a)disgraceful or improper conduct that shows unfitness to be or continue as an

officer of the public service; or

(b)behaviour that does not satisfy a standard of behaviour generally expected of

officers of the public service."

The words "disgraceful or improper conduct" are by no means unknown in comparable contexts and their meaning has been expounded in the past. On any view, they serve to restrain the power to dismiss an officer simply for the reason that he has sustained a conviction irrespective of the nature of the offence or of whether or not the act giving rise to the conviction satisfies the definition of misconduct.

There is in all this therefore no good reason for supposing that simply recording a conviction against the applicant will have the dire consequences that he apprehends. Before he is dismissed from the public service or his position in it the applicant may expect to be dealt with under the Regulations. That remains so if his action leading to the conviction amounts to "misconduct", whether or not a conviction is or is not recorded against him in respect of the subject offence.

In the present case, therefore, the magistrate may not have been accurately informed when at the hearing below the applicant's solicitor, on instructions from the applicant, told him that "the recording of a conviction may place his current employment in jeopardy". Jeopardy would ensue only if there has been "misconduct" on the part of the applicant, which is not to be equated with recording a conviction against him. In any event, whether the solicitor was correct or not in what he said, the magistrate in fact took account of the possibility that the applicant's employment would be affected. He nevertheless concluded that it was appropriate to record a conviction. He is not shown to have arrived at the decision to do so by reference to any impermissible consideration, and the circumstances of the applicant make it impossible to say that the decision was plainly wrong.

In these circumstances the application for leave to appeal must therefore be

refused.