Woolston v Commissioner for Taxation

[2010] QDC 124

DISTRICT COURT OF QUEENSLAND

CITATION:

Woolston v Commissioner for Taxation [2010] QDC 124

PARTIES:

LORETTA DALE WOOLSTON

Applicant

v

COMMISSIONER FOR TAXATION

Respondent

FILE NO:

54 of 2010

DIVISION:

Appellate

PROCEEDING:

Application for leave to appeal

ORIGINATING COURT:

Magistrates Court at Maroochydore

DELIVERED ON:

1 April 2010

DELIVERED AT:

Maroochydore

HEARING DATE:

19 March 2010

JUDGE:

K S Dodds, DCJ

ORDER:

The application is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – where delay in bringing application for leave to appeal – whether it is in the interests of justice to allow leave to appeal

Crimes Act 1914 (Cth) s 19B

Justices Act 1886 (Qld) s 224(1)

Taxation Administration Act 1953 (Cth) s 8C(1A)

Cases cited:

R v Daq [2008] QCA 75

R v Tait [1999] 2 Qd R 667

COUNSEL:

The applicant appeared on her own behalf

S Allen for the respondent

SOLICITORS:

The applicant appeared on her own behalf

Commonwealth Director of Public Prosecutions for the respondent

1. This is an application pursuant to section 224(1) of the Justices Act 1886 (Qld)0. for leave to appeal filed 1 March 2010 arising out of the applicant’s conviction and sentence in the Magistrates Court.

1. The applicant appeared on her own behalf on the application as she did on the occasion of her conviction and sentence in the Magistrates Court.

1. On 24 April 2009 the applicant was convicted on her pleas of guilty of two offence against section 8C(1A) of the Taxation Administration Act 1953 namely that on or about the 27^th of October 2008 she “failed to furnish in an approved form, namely an income tax return to the Commissioner when and as required pursuant to a taxation law”.  The taxation returns were for the years ending 30 June 2006 and 30 June 2007.  The Magistrate fined her $1700 for both offences, in default imprisonment for 20 days and ordered she pay costs of $140.70.

1. The applicant also filed a proposed notice of appeal.  The grounds of appeal therein were:

   §  that these offences were her first offences and the Magistrate should have acceded to her request at the hearing that no convictions be recorded;

   §  that she had made an application for guardianship (which she described as restrictive practices guardianship) of a person which was “due” on 10 April 2010.

2. The latter ground was enlarged in oral submissions the applicant made.  She said, as I understood it, that an application she had made was to be heard on 10 April 2010, that in the process of making the application, the forms to be filled out asked whether she had any criminal convictions.  She said that from the time of the convictions until the time when she was filling out the application, while she did not agree with the Magistrate’s decision, she regarded herself as having been dealt with by the system and didn’t bother appealing.

1. In determining whether leave may be given to appeal by extending time, the court will consider such matters as:

   §  reasons for the delay;

   §  the length of the delay;

   §  whether in the circumstances it is in the interests of justice to grant the extension[1]. 

   [1] R v Tait [1999] 2 Qd R 667 at 668; R v Daq [2008] QCA 75.

2. In R v Daq [2008] QCA 75 at [10] Keane JA (as he then was) said “Delay in making an application is relevant to the exercise of the discretionary power to grant an extension of time because delay detracts from the public interest in the finality of litigation. Indeed it is the public interest in this regard that affords the raison d’etre of statutory time limits on appeals--- where an applicant has made a deliberate decision not to appeal and has changed his mind in that regard, only after serving the bulk of his sentence, it is understandable that the discretion to allow an appeal to proceed should be exercised in favour of an applicant only where the applicant presents a compelling demonstration of a serious injustice which can be corrected only on appeal”.

The applicant’s prospects were leave to be granted

1. Unlike the Queensland sentencing regime the Crimes Act 1914 (Cth) does not provide for the non-recording of a conviction. Pursuant to the Act the only way there may be no conviction after a plea of guilty or a verdict of guilty after trial, is by the use of section 19B of the Act. Relevantly, that section provides:

   “(1) Where:
                     (a) a person is charged before a court with a federal offence or federal                   offences; and
                     (b) the court is satisfied, in respect of that charge or more than one of                    those charges, that the charge is proved, but is of the opinion, having              regard to:
     (i) the character, antecedents, cultural background, age, health   or mental condition of the person;
     (ii) the extent (if any) to which the offence is of a trivial nature;   or
     (iii) the extent (if any) to which the offence was committed    under extenuating circumstances;
     that it is inexpedient to inflict any punishment, or to inflict any   punishment other than a nominal punishment, or that it is   expedient to release the offender on probation;
                     the court may, by order:
                     (c) ---;
                     (d) discharge the person, without proceeding to conviction---, upon his                  or her giving security, with or without sureties, by recognizance or   otherwise---.”

1. Section 19B was considered by the Magistrate. It was the subject of submissions before him. The applicant asked that there be no convictions because she was involved in child care and held a disability card. She also told the Magistrate she “had guardianship papers” to show him “for two and a half years I’ve been involved with a brain injured man”. She said the convictions would harm persons dependant on her. She went on to tell the Magistrate of her work with persons she described as at risk, homeless people, how she had volunteered friendship for a brain injured man since 2005 and that had been authorised by the adult guardian, how she was participating with law reform “at the Guardian”, how she had made submissions there about some of the things that went on for that particular man. She also asked the Magistrate whether she would be able to appeal the Magistrate’s decision and was informed she could if she wished.

1. In his reserved decision on sentence the Magistrate considered the question of the applicant requiring a blue card to work with children and concluded that conviction for the offences before him would not effect the applicant’s blue card status or her ability to work as a voluntary friend to a disabled man. He went on to consider whether he should, under section 19B, deal with the applicant without recording convictions. He found that he was not satisfied in the circumstances and in terms of the section he should so proceed, that there was nothing in the character, antecedents, health, age or mental condition of the appellant “to enliven the discretion”. (His Honour was under the impression the applicant had no previous convictions which in fact is not the case, although on both prior appearances for offences, no conviction was recorded). He considered the offences were not trivial and there was “a need for personal and general deterrence in order to keep the taxation system functioning”.

1. No error is apparent in the Magistrate’s sentencing. He had been referred to decisions in other jurisdictions which discussed the need for personal and general deterrence regarding offences against the tax laws. He considered deterrence was an important factor and so it was. It cannot in my view be said that his refusal to proceed under section 19B was incorrect.

1. As observed above, the Magistrate was unaware at the time of sentencing the applicant had any criminal convictions because he had been told by the prosecutor that the applicant had no prior convictions.  In saying that the prosecutor may have been referring to convictions under the taxation legislation.  That aside, because the applicant on this application seemed to be saying that a lack of criminal convictions was of significance in regard to her application and because counsel for the respondent told me she in fact did have some criminal convictions, I gave the respondent leave to provide information about them. 

1. It emerged they were offences under the Police Powers and Responsibilities Act 2000.  On 19 March 2004 the applicant appeared before the Ipswich Magistrates Court charged with obstructing a police officer in the execution of the officer’s duty and was fined.  On 20 September 2005 she appeared before the Magistrates Court at Brisbane charged with contravening a direction or requirement and with obstructing a police officer in the execution of the officer’s duty and was fined.  On each appearance, no conviction was recorded.  She also has quite an extensive traffic history.

The relevant of no conviction being recorded

1. Section 15, subsection 1 of the Guardianship and Administration Act 2000 provides that in deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the tribunal must consider a number of matters, amongst which are:

   “(a) the general principles, and whether a person is likely to apply them---
         (g) the person’s appropriateness and competence to perform functions and exercise powers under an appointment order”. 

   Subsection 4 of section 15 provides that in considering a person’s appropriateness and competence the tribunal must have regard to:

   “(a) the nature and circumstances of any criminal history whether in          Queensland or elsewhere of the person, including the likelihood the     commission of any offence in the criminal history may adversely effect the    adult”.

Criminal history is defined in Schedule 4 to the Act very broadly. It would include a proceeding where a person has been dealt with under section 19B of the Crimes Act 1914.  It also would include the appearances in the Magistrates Court referred to above.

Decision

1. A significant time has passed since the Magistrate’s decision.  The explanation for now seeking to prosecute an appeal seems to be that when fairly recently filling out forms for an application to be made, the applicant became aware the form or forms required her to list any convictions or criminal convictions.

1. There has been a long delay in bringing this application. The delay appears to be a consequence of the applicant’s own decision. The Magistrate’s reasons for refusing to deal with the applicant pursuant to section 19B of the Crimes Act 1914 do not reveal any error.  The provisions of the Guardianship and Administration Act 2000 are such that the fact that the applicant had pleaded guilty before the Magistrate to the taxation offences and been dealt with for them, would be considered by a tribunal under the Act, as would the applicant’s convictions in the Magistrates Court.  There is nothing to indicate the interests of justice require an appeal to proceed.

1. There is no adequate basis to grant the applicant’s application.  The application is dismissed.