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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Qualischefski

Details

AGLC: R v Qualischefski [1994] QCA 289
Case: [1994] QCA 289
Decision Date: 12/08/1994

CaseChat Overview and Summary

The case of R v Qualischefski involves the applicant, David Lance Qualischefski, who has applied for leave to appeal against the sentences imposed on him by the Magistrates Court of Brisbane. The applicant was convicted of possession of a dangerous drug and possession of a pipe for use in connection with the smoking of a dangerous drug, for which he was fined and had convictions recorded. The applicant contends that the recording of convictions is manifestly excessive and should not have occurred. The consequences of the convictions, according to the applicant, could cost him his job and adversely affect his career, social position, and lifestyle.

The primary legal issue before the Court was whether the recording of a conviction was appropriate in this case, considering the potential negative impact on the applicant's employment and other aspects of his life. The Court considered the severity of the consequences for the applicant if the convictions were recorded and the potential implications for the administration of justice if such consequences were to be taken into account when imposing sentences.

The Court found that there was no justification for interfering with the sentence imposed by the magistrate, which was within the range of their sentencing discretion. The Court also noted that unless a policy was 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 was no justification for interfering with the sentence imposed by the magistrate. The Court further held that it would be wrong and indefensible to differentiate in penalty among individuals according to their occupations, prospects, and lifestyles.

In light of the above, the Court refused the applicant's application for leave to appeal against the sentences imposed on him by the Magistrates Court of Brisbane. The Court emphasized that the discretion to sentence is not intended as an instrument for enforcing or frustrating employment policy and that it was incumbent on the applicant to clearly demonstrate the extent of the risk to him and the basis on which it arose, which the applicant failed to do. The Court concluded that there was no good reason to suppose that simply recording a conviction against the applicant would have the dire consequences that he apprehends.

Orders