Wy v Commissioner of Police - [2024] QDC 174

DISTRICT COURT OF QUEENSLAND

LOURY KC DCJ

DC No 1212/24

WY Appellant

COMMISSIONER OF POLICE Respondent

BRISBANE

4 OCTOBER 2024

JUDGMENT

LOURY KC DCJ:

The appellant pleaded guilty to three offences of breaching a bail condition. He was ordered to perform 50 hours of unpaid community service. Convictions were recorded.
The appellant appeals against his sentence to the extent that the recording of convictions resulted in a manifestly excessive sentence. The appellant’s grounds of appeal allege two specific errors made by the learned Magistrate and a ground that the sentence is manifestly excessive.
The appellant breached a condition of his bail undertaking, entered into on 26 May 2022, by breaching a curfew condition requiring him to be at home between 10 pm and 5 am every day.
The first of the breaches arises from the appellant not being home at 12.20 am on 29 December 2023. Police inquiries confirmed that at 1.04 am he was triaged at the Ipswich General Hospital. He remained at the hospital until 3.50am. Closed circuit television footage revealed that the appellant arrived at the hospital at 12.50 am. Despite what might appear to be a legitimate reason for breaching his curfew, the appellant nonetheless pleaded guilty to this offence.
The second breach arose when the appellant was not at home at 12.39 am on 31 December 2023. He said that he was visiting a family member.
The third breach arose when the appellant was not at home at 10.10 pm on 2 February 2024. He said that he was on his way home when he became caught in traffic due to a violent incident which resulted in the closure of roads for a time.
The appellant’s first ground of appeal is that he was denied procedural fairness as the learned Magistrate did not aver him to the fact that he was going to record convictions. The appellant was represented at his sentence. His legal representative was given the opportunity of making submissions on sentence. His legal representative made submissions contending for fines to be imposed. He further submitted that a wholly suspended sentence was not within the appropriate range within which a sentence could be imposed. In those circumstances it would be expected that submissions would have been made with respect to the recording of convictions. After the sentence was imposed the appellant’s legal representative made no application to make any further submissions with respect to the recording of a conviction.
I am not persuaded that the learned Magistrate failed to afford the appellant procedural fairness in the circumstances of this case.
The appellant’s second ground of appeal is that in recording convictions the learned Magistrate failed to properly consider section 12(2) of the Penalties and Sentences Act 1992 (Qld) (‘PSA’).
The remarks of the learned Magistrate were brief. He asked the appellant his age, being 23. He referred to the timely plea of guilty and his criminal history, which contained previous convictions for two breaches of bail conditions in 2021 and an offence of unlawful possession of suspected stolen property. He referred to the principle that a sentence of imprisonment was a sentence of last resort. He considered that a fine was inappropriate given the large State Penalties Enforcement Registry debt that the appellant had already accrued. He considered that probation was not an appropriate sentence given the lack of any suggestion that the appellant needed assistance to rehabilitate. He indicated an intention of imposing a sentence which acted as a deterrent to the appellant. Other than obtaining the appellant’s consent to the order and informing him of the consequences of breaching his community service order the learned Magistrate made no remarks concerning the recording of convictions.
The appellant’s still relatively young age, his minimal criminal history and the nature of the offending weighed against the recording of convictions. Two of the breaches of bail conditions were at the lowest end of the range of seriousness. Further submissions were made by the appellant’s legal representative that although the appellant was not then working, he was engaging in some volunteer work.
No new evidence has been placed before me to further the submission that convictions ought not to have been recorded. It is contended that the recording of convictions given that the appellant is not working will impact upon the chances of his finding employment. That is a feature given his young age which weighs against the recording of convictions.
Section 12(2) of the PSA requires consideration be given to the impact of recording convictions on the economic and social well-being of the offender and chances of finding employment. It is well established that the considerations in s 12(2) are not exhaustive and do not have general predominance to one another and must be kept in balance.[1]
[1] R v Brown; ex parte Attorney-General [1994] 2 Qd R 182, 185 (Macrossan CJ).
It is perhaps trite to say that the recording of convictions will invariably impact upon the chances of a person finding employment given the ready access potential employers have to National criminal history checks. Given the appellant’s limited criminal history and the nature of the offending his rehabilitation will be furthered if he can find stable employment. An employer knowing of the conviction would naturally ask what he on bail was for. If acquitted, this may impact the chances of finding employment.
Volunteering has many positive effects upon a person. It tends to increase a person’s self-confidence and can boost self-esteem. It instils in a person a sense of pride and purpose and is therefore capable of countering the effects of anxiety, stress and depression. It can make a person more competitive in the job market. Having engaged in volunteering is a positive feature to the appellant’s character.
The non-recording of convictions is an important feature in promoting the appellant’s social well-being and increasing his chances of finding employment. In my view the prospects of the appellant’s rehabilitation, given the benefit it naturally provides to him and the community, would be hampered by the recording of convictions, particularly if it led to a loss of self-confidence at the end of the criminal justice process. The nature of the offences is not such that public denunciation of the offences to the detriment of the appellant’s prospects of rehabilitation is such that convictions ought to be recorded.
I am satisfied that the learned Magistrate failed to take into account relevant considerations[2] in determining to record convictions. The appeal is allowed to the extent of setting aside the order recording convictions. I order that no convictions be recorded.
[2] House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ).