Swain v QPS - [2015] QDC 9

DISTRICT COURT OF QUEENSLAND

CITATION:

Swain v QPS [2015] QDC 9

PARTIES:

Christie Ann Swain
(appellant)
v
Queensland Police Service

(respondent)

FILE NO:

2849/14

DIVISION:

Appellate

PROCEEDING:

s222 Appeal

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

05.02.15 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

05.02.15

JUDGE:

Farr SC DCJ

ORDER:

1.   The appeal is allowed.

2.   The application to adduce fresh evidence is allowed.

3.   In respect of each offence, the sentence imposed below on 24 July 2014 be set aside insofar as the recording of a conviction is concerned.

4.   In respect of each offence, no conviction is recorded.

CATCHWORDS:

APPEAL - Justices Act 1886 s222 – whether convictions should have been recorded – leave to amend ground of appeal granted – leave to adduce fresh evidence granted.

APPEAL – where the failure to allow either party to make submissions regarding the recording of a conviction constituted an error – consideration of s12 (2) Penalties and Sentences Act 1992 – where the learned magistrate failed to consider the impact the recording of a conviction would have on the appellant – where the charges fell at the lower end of the scale of seriousness - where minor criminal history, cooperation, early plea of guilty and impact on employment prospects relevant to the exercise of the discretion.

COUNSEL:

Ms L Reece for the appellant
Mr C Lloyd for the respondent

SOLICITORS: Legal Aid Queensland

Office of the Director of Public Prosecutions

The appellant pleaded guilty in the Magistrates Court at Brisbane on the 23^rd of July 2014 to one count of unlawfully possessing cannabis and methylamphetamine; that is, possession of dangerous drugs; one count of permitting a place to be used for the commission of a crime against the Drugs Misuse Act, namely possessing dangerous drugs; one count of having unlawfully in her possession items that were used in connection with smoking a dangerous drug; and one count of having in her possession electronic scales, scissors, bowl or bowls reasonably suspected of having been used in connection with the commission of an offence against the Drugs Misuse Act.

The possess dangerous drugs charge and the possession of utensils or property suspected charges occurred on the 9^th of July 2014. The charge relating to the permitting the use of a place occurred during the period from the 1^st of October 2013 to the 10^th of July 2014. The appellant was ordered to pay fines totalling $900 and convictions were recorded. At the time of the offending conduct, she was 34 years of age. She had a prior criminal history which involved an appearance in the Cleveland Magistrates Court on the 6^th of July 1998 on charges of possess utensils or pipes and possess anything used in commission of a drug offence. On that occasion, she was fined a total of $300 and no convictions were recorded. She also appeared in the Brisbane Magistrates Court on the 26^th of April 2012 on a charge of…

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 Swain v QPS

Details

AGLC: Swain v QPS [2015] QDC 9
Case: [2015] QDC 9
Decision Date: 5 February 2015

CaseChat Overview and Summary

In the case of Swain v QPS, the appellant contested the recording of convictions following charges brought against him. The matter was heard in the Queensland Court of Appeal, where the appellant argued that the magistrate's decision to record convictions was flawed due to procedural errors and an inadequate consideration of relevant factors. The court was required to determine whether the convictions should have been recorded and if the magistrate's failure to allow submissions on this matter constituted an error.

The central legal issues involved the application of section 222 of the Justices Act 1886 and section 12(2) of the Penalties and Sentences Act 1992. The appellant contended that the magistrate did not consider the impact of recording convictions on him, particularly given the minor nature of the charges, his limited criminal history, cooperation with authorities, early plea of guilty, and potential impact on his employment prospects. The court needed to assess whether these factors warranted a different sentencing outcome.

The court found that the magistrate's failure to allow either party to make submissions on the recording of convictions was an error. Furthermore, the court concluded that the magistrate did not adequately consider the impact of recording a conviction on the appellant. Given the minor nature of the charges and the appellant's cooperation and early plea of guilty, the court determined that no conviction should be recorded. Consequently, the appeal was allowed, the application to adduce fresh evidence was granted, and the sentences were set aside insofar as the recording of a conviction was concerned, with no conviction recorded for each offence.

In summary, the court granted leave to amend the ground of appeal and to adduce fresh evidence. It found that the magistrate's error in not allowing submissions and inadequate consideration of relevant factors warranted a different sentencing outcome. The appeal was successful, and the convictions were not recorded.

Orders

Orders of the court

1. The appeal is allowed.

2. The application to adduce fresh evidence is allowed.

3. In respect of each offence, the sentence imposed below on 24 July 2014 be set aside insofar as the recording of a conviction is concerned.

4. In respect of each offence, no conviction is recorded.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Swain v QPS [2015] QDC 9
PARTIES:	Christie Ann Swain (appellant) v Queensland Police Service (respondent)
FILE NO:	2849/14
DIVISION:	Appellate
PROCEEDING:	s222 Appeal
ORIGINATING COURT:	Brisbane Magistrates Court
DELIVERED ON:	05.02.15 (delivered ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	05.02.15
JUDGE:	Farr SC DCJ
ORDER:	1. The appeal is allowed. 2. The application to adduce fresh evidence is allowed. 3. In respect of each offence, the sentence imposed below on 24 July 2014 be set aside insofar as the recording of a conviction is concerned. 4. In respect of each offence, no conviction is recorded.
CATCHWORDS:	APPEAL - Justices Act 1886 s222 – whether convictions should have been recorded – leave to amend ground of appeal granted – leave to adduce fresh evidence granted. APPEAL – where the failure to allow either party to make submissions regarding the recording of a conviction constituted an error – consideration of s12 (2) Penalties and Sentences Act 1992 – where the learned magistrate failed to consider the impact the recording of a conviction would have on the appellant – where the charges fell at the lower end of the scale of seriousness - where minor criminal history, cooperation, early plea of guilty and impact on employment prospects relevant to the exercise of the discretion.
COUNSEL:	Ms L Reece for the appellant Mr C Lloyd for the respondent
SOLICITORS:	Legal Aid Queensland