DISTRICT COURT OF QUEENSLAND
CITATION:
EKL v The Commissioner of Police [2021] QDC 193
PARTIES:
EKL
(appellant)
v
THE COMMISSIONER OF POLICE
(respondent)
FILE NO:
2890 of 2020
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court, Brisbane
DELIVERED ON:
18 August 2021
DELIVERED AT:
Brisbane
HEARING DATE:
17 August 2021
JUDGE:
Sheridan DCJ
ORDER:
1. An extension of time to file the Notice of Appeal is granted.
2. The appeal against sentence is allowed.
3. The sentence imposed is set aside to the extent that a conviction be recorded.
4. No conviction be recorded.
CATCHWORDS:
MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where appellant pled guilty in the Magistrates Court to one count of unlawfully possessing a dangerous drug namely cocaine under the Drugs Misuse Act 1986 (Qld) and was fined $2000 with a conviction recorded – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) – where ground of appeal was that the sentence was manifestly excessive and the sentencing judge erred in recording a conviction – whether sentence manifestly excessive – whether a conviction should be recorded
LEGISLATION:
Drugs Misuse Act 1986 (Qld)
Justices Act 1886 (Qld), s 222
Penalties and Sentences Act 1992 (Qld), s 12CASES:
AB v The Queen [1999] 198 CLR 111, cited
Hili v The Queen (2010) 242 CLR 520, cited
Tak Fat Wong v The Queen (2001) 207 CLR 584, citedCOUNSEL: M L Longhurst for the appellant
K McFarlane for the respondent
SOLICITORS: Roland McGrath for the appellant
Office of the Director of Public Prosecution for the respondent
On 7 September 2020, the appellant pleaded guilty and was sentenced in the Magistrates Court of Brisbane to one count of unlawfully possessing a dangerous drug namely cocaine under the Drugs Misuse Act 1986 (Qld).
Facts of Offending
The facts of the offending were fully admitted by the appellant, including the type and quantity of the drugs alleged to have been found in his possession. The appellant was found to have had in his possession a quantity of over 3 grams but with a purity of 1.03 grams of cocaine making the proportion of cocaine only 38.2 percent.
The drugs were found on a consensual search of the vehicle being driven by the appellant which had been intercepted by police conducting routine patrols for licence checks on Alfred Street, Fortitude Valley.
The appellant, whilst admitting the contents of the clip seal bag found was cocaine, denied that the drugs were his. He told police that he had found the drugs in the bag wrapped in tissue in his letterbox and he believed the drugs belonged to a family member who had a dependency problem with cocaine. He said to police that he was worried the family member might get into trouble with criminals and he was holding it for safekeeping; not really knowing what to do with it.
In sentencing, his counsel maintained the version as given to police and said that the explanation given was plausible and was something volunteered straightaway to police. He said that the appellant denies any cocaine use or addiction.
Antecedents
The appellant was 30 years old at the time of sentence and was going through a relationship break up and was in the process of sorting out custody arrangements for his two and a half year old daughter. He was currently working as a site supervisor for an insurance builder.
The appellant had a prior conviction for possession of a dangerous drug which dated back to 2015. The Magistrate was told that the drugs on that occasion were a nearly empty vial of steroids. The appellant was fined $450 with no conviction being recorded.
The appellant also had prior conviction for public nuisance in 2011 for which he was fined $200 and no conviction recorded and a prior conviction for wilful damage in 2014 for which he was fined $200 and no conviction recorded.
Submissions before Magistrate
The prosecution submitted that the appellant on this occasion should be given a period of probation and, as it was not his first offence, a conviction recorded. Defence counsel submitted that the probation and parole service should not be burdened as the appellant did not have a problem with drugs and he does not use drugs. Counsel submitted that a sizeable fine would reflect the quantity of drugs found. The Magistrate did not appear to challenge those submissions.
The focus of the Magistrate’s decision was on the recording of a conviction. In relation to that issue, the Magistrate commented, in the course of the hearing, “I can’t get past, given his history and his age and his ability to understand things, I don’t see anything that fits him, within s 12, at all.”
Defence counsel said that the recording of a conviction could have some bearing on whether he has custody of his child. The Magistrate did not accept that submission and indicated that counsel knew that.
Counsel also relied upon the potential impact of recording a conviction on the appellant’s work as a supervisor in the building industry, it being said that he was required to make declarations every year about his police record.
Ultimately, defence counsel identified four matters and asked that the appellant be given one more chance:
1. The age of the previous conviction for drugs;
2. The fact that it was a different drug, being steroid and only a very small amount;
3. His co-operation with police; and
4. His plea of guilty at the earliest opportunity.
Sentence of Magistrate
In giving her sentencing remarks, the Magistrate found that whilst the appellant had entered an early plea of guilty, he was a mature man with a responsible job and who had past experience of the criminal justice system; observing that he had now been before the courts on three occasions and observed that:
“Without doubt, you were told on three occasions, what no conviction recorded means, and yet here you are, back before the Court on a fourth occasion. And the second, for possession of dangerous drugs.”
The Magistrate then went on to say that she did not “comprehend why a 30 year old with a good job, would jeopardise that for a family member or anybody.” She commented:
“There are many things that you could have done with this clip seal bag of cocaine, but putting it in your wallet and keeping it was definitely not one of them, and raises the spectre that there is far more to the story than what is coming out in the courtroom today.”
The Magistrate then said:
“we take into account some aspects of that but the most important aspect, before the Criminal Court today is, you have breached the law for the fourth time, you have breached the Drugs Misuse’s [sic] Act for the second time, you have been given those opportunities to have no conviction recorded against you, and yet here you are back again.”
It is unclear what matters the Magistrate was referring to when her Honour said that “we take into account some aspects of that”, but presumably it is a reference to her comments about the appellant having possession of the drugs despite it jeopardising his good job.
The Magistrate recorded a conviction and imposed a fine of $2000 giving one month to pay.
Mode of Appeal
This appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld). The ground of appeal was that the sentence imposed was manifestly excessive and the sentencing judge erred in recording a conviction.
An appeal under s 222 is by way of a rehearing on the original evidence.
In approaching its task, the court ought not to interfere with the sentence unless it is manifestly excessive. It is not enough that the result arrived at below is markedly different from other sentences that have been imposed in other cases. Rather, it has been said that:
“the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”[1]
[1]Hili v The Queen (2010) 242 CLR 520 at [59] quoting Tak Fat Wong v The Queen (2001) 207 CLR 584 at [58].
The decision must be shown to be vitiated by an error of principle or there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.
If successful, the court is obliged to exercise the sentencing discretion afresh in relation to the offence.[2]
[2]AB v The Queen (1999) 198 CLR 111 at [130].
The notice of appeal having been filed four business days after the expiry of the relevant expiry date for lodgement of the Notice of Appeal, an extension of time under s 224(1) of the Justices Act 1886 (Qld) is required.
The approach taken by the court to the grant of an extension is usually to make some provisional assessment of the strength of the applicant’s appeal and take that into account in deciding whether to grant an extension.
The appellant submitted that he had instructed his legal representatives prior to the expiry of the period. In those circumstances, the appropriate course is to consider the merits of the appeal.
Submissions on Appeal
The focus of the submissions for the appellant were on the recording of a conviction and in particular, the statement by the Magistrate that the most important aspect before the Criminal Court is his previous convictions. No submissions were made in relation to the $2000 fine.
Counsel submitted that s 12(2) of the Penalties and Sentences Act 1992 (Qld) refers to a number of factors which the court must have regard in considering whether or not to impose a conviction. Counsel submitted that whilst it is not an exclusive list, nowhere in s 12(2) is there a discrete reference to the number of previous court appearances of a defendant being a prescribed consideration, “let alone an overwhelmingly or the most important one in exercising this discretion.”
In oral submissions, defence counsel referred to s 12(5) which permits a court in sentencing an offender for a subsequent offence to disregard a conviction that was ordered not to be recorded but which is entered in the offender’s history (amongst other things, for the purpose of proceeding against the offender for a subsequent offence). Defence counsel submitted that the Magistrate in referring to previous convictions made no reference to the fact that, under s 12(5), in the exercise of her discretion, she could disregard previous convictions if it had been ordered that no conviction be recorded.
Defence counsel referred to the fact that the convictions were dated, minor and the drug conviction was in relation to a different drug. He submitted that it was clear in giving her decision that the Magistrate had no regard to s 12(5) and, in fact, gave undue regard to the existence of the previous convictions, even though in respect of each it had been ordered that no conviction was recorded. Their inclusion on the defendant’s criminal history was by virtue of s 12(4).
Counsel submitted that s 12(2) requires that the court must have regard to all the circumstances of the case and then lists a number of factors to which the court must have regard in considering all the circumstances of the case.
Counsel submitted that the Magistrate appeared to give no discernible consideration to the prescribed matters in s 12 and that her remark “we take into account some aspects of that” is entirely inconsistent with the wording of s 12(2) requiring that “a court must have regard to all the circumstances”.
Counsel submitted that the Court would find that the Magistrate erred and that the sentence imposed was excessive and should resentence by way of a reconsideration of the requirements of s 12 and not record a conviction.
The prosecution submitted that the Magistrate did not fail to take into account all circumstances. The prosecution submitted the Magistrate referred to age, work history and the circumstances of the offending when sentencing the appellant.
It was submitted that no evidence was put before the Magistrate as to the impact of the conviction on the appellant’s employment, other than a general submission that the appellant was concerned that his position as site supervisor would be jeopardised as his employer conducts police checks.
Consideration
The sentencing remarks of the Magistrate suggest that the Magistrate gave undue weight to the appellant’s very minor previous convictions, with the Magistrate emphasising that this meant the appellant had been previously told what no conviction recorded meant. The Magistrate does not appear to have considered the submissions made as to the relevance of the previous convictions. Rather, her sentencing remarks show they were an overwhelming factor in her approach to sentence.
Further, the Magistrate does not appear to have given much attention to the jeopardy that a conviction may have on the appellant’s current employment. Whilst it is said that the Magistrate was not given much detail as to that impact, it is difficult to know what more could have been provided in the circumstances. In fact, the Magistrate’s comments suggest that she considered the appellant’s possession of drugs would not jeopardise his job.
Finally, the Magistrate’s comment that the putting of the cocaine in the wallet “raises the spectre that there is far more to the story” suggests that the Magistrate did not accept the uncontradicted evidence put before her as to the circumstance of the offending. The circumstances were plausible and were provided to police at the time the appellant was apprehended.
In all the circumstances, I consider that the Magistrate gave undue weight to certain facts and failed to give sufficient weight to other facts in exercising her sentencing discretion.
In my view, that led to a miscarriage of justice by the recording of a conviction.
Having regard to all the circumstances of the case and each of the matters referred to in s 12, an appropriate exercise of the discretion would have resulted in a conviction not being recorded.
It is appropriate that I grant an extension of time for the making of the appeal.
Accordingly, the orders made are:
1. An extension of time to file the Notice of Appeal is granted.
2. The appeal against sentence is allowed.
3. The sentence imposed is set aside to the extent that a conviction be recorded.
4. No conviction be recorded.