Smart v Commissioner of Police

[2011] QDC 249

[2011] QDC 249

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE JONES

No 19 of 2011

RAYMOND ALLEN SMART	Appellant
and
THE COMMISSIONER OF POLICE	Respondent

MARYBOROUGH

..DATE 31/10/2011

ORDER

HIS HONOUR:  This is an appeal against a sentence imposed in the Magistrates Court on 19 July 2011. 

The appellant was convicted on his own plea, in respect of one count of possession of a dangerous drug, one count of possession of an unlicensed firearm and one count of being in possession of ammunition.

The appellant was fined $500, $450 and $200 respectively.  A conviction was recorded in respect of those offences. 

The appeal is concerned only with the recording of a conviction.  The ground of appeal is that the Magistrate erred in recording of a conviction. 

In the sentencing remarks of the learned Magistrate Below, it would appear that there her Honour decided that a conviction ought be recorded based largely on the fact that the appellant was a self-employed person.  At page 2 of her Honour's reasons, commencing at about line 10, her Honour said, "I take into account the nature and seriousness of the offences.  I also take into account your age and personal circumstances.  You are a self-employed person.  I'm not convinced on what has been put by Ms Millward that a recorded conviction on any of these will affect your social or economic well-being, or your chances of finding employment in the future.  Accordingly, convictions today will be recorded." 

In the appellant's written outline of argument, it is stated to the effect, that the decision below failed to take into account that the appellant, in fact, earned a significant income from what he described as "off-farm" work. That off-farm work grossed the appellant income in 2008 in the order of $53,500, in 2009, in excess of $46,000 and in 2011, nearly $23,000.  Much of that off-farm work was doing contract work for Thiess Services Pty Ltd, who, according to the appellant has a zero drug tolerance policy. 

Again, according to the appellant, the recording of a conviction would be likely to exclude him any future work from that company. 

It would appear therefore, that her Honour proceeded under the mistaken view that nearly all, if not all of the appellant's income was earned by way of him being self-employed.  It seems tolerably clear on the material, as limited as it is, before me that the recording of a conviction would be likely to have a material impact on future earning capacity in the future. 

I should note here that it would seem that the reason that her Honour is said to have erred in respect of this matter was through no fault of her own. As it would appear that the matter of off farm employment was not fully explored before her for whatever reason. Technically speaking then no error below was revealed and the appellant is now relying on additional evidence. This was not opposed by the Crown.

The Crown effectively concedes that the appeal ought to be allowed.  In fact, reading from the outline of submissions filed on behalf of the respondent, the respondent contends that the appropriate orders are that the appeal be allowed, that the applicant be re-sentenced to the original offences to the extent that no conviction is recorded and that there be no order as to costs. 

For all of the reasons given, the orders of the Court are that the appeal is allowed and that the appellant is re-sentenced but only to the extent of deleting from the original conviction, the recording of a conviction.  That is, no conviction is to be recorded. 

I will hear from the parties as to costs.  Mr Smart, are you seeking costs for this appeal?

APPELLANT:  Sorry, sir?

HIS HONOUR:  You are self-employed, you are not - have you incurred any expenses apart from filing fees?

APPELLANT:  No, sir.  No, your Honour.

HIS HONOUR:  So you are not pursuing any costs?

APPELLANT:  No, well, only for my lawyers and that.  I am not worried about the costs, your Honour. 

HIS HONOUR:  You are not worried about the costs?

APPELLANT:  No, your Honour. 

HIS HONOUR:  All right, there will be no order as to costs.  Thank you, Mr Smart, you are excused.

APPELLANT:  Thank you, your Honour.

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