DISTRICT COURT OF QUEENSLAND
CITATION:
Gonzalez v Commissioner of Police [2021] QDC 310
PARTIES:
RAMON GONZALEZ
(appellant)
v
COMMISSIONER OF POLICE
(respondent)FILE NO:
13 of 2021
DIVISION:
District Court
PROCEEDING:
Hearing of s 222 Appeal
ORIGINATING COURT:
Magistrates Court at Ipswich
DELIVERED ON:
14 December 2021
DELIVERED AT:
Brisbane
HEARING DATE:
12 November 2021
JUDGE:
McDonnell DCJ
ORDER:
The appeal is dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – where appellant entered early plea of guilty in respect of single count of common assault – where learned Magistrate imposed $750 and recorded a conviction in respect of offending – where appeal brought on the basis that the recording of a conviction rendered the sentence manifestly excessive – where appellant contends learned Magistrate erred in giving weight to prior historical offending – where appeal dismissed
LEGISLATION:
Justices Act1886 (Qld) ss 222, 225
Penalties and Sentences Act 1992 (Qld) ss 9, 12
CASES:
Adcock v Queensland Police Service [2021] QDC 116
Embleton v Commissioner of Police [2016] QDC 282
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
House v The King [1936] HCA 40; (1936) 55 CLR 499
R v Briese; ex parte Attorney-General [1997] QCA 10; [1998] 1 Qd R 487
R v Brown; ex parte Attorney-General [1993] QCA 271; [1994] 2 Qd R 182
R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467; (2005) 158 A Crim R 488
COUNSEL: Ms C Waters for the appellant
Ms C Brown for the respondent
SOLICITORS: Guest Lawyers for the appellant
Office of the Director of Public Prosecution for the respondent
Introduction
On 18 March 2021, the appellant pleaded guilty to a single charge of common assault (which occurred on 15 November 2020) in the Ipswich Magistrates Court. The learned Magistrate imposed a fine in the amount of $750 and a conviction was recorded. The appellant has appealed against the recording of the conviction, which he says renders the sentence excessive.
Background of offending
The circumstances of the offending are uncontested and are summarised as follows. On or about 15 November 2020, the complainant returned home from walking his dog and approached the front footpath outside his residence in Chuwar. The complainant observed the appellant reverse out of his driveway, drive in his direction, park the car and approach him. A verbal altercation ensued between the two parties during which the appellant grabbed the complainant by his singlet and struck the complainant in the left ear with his right, open hand. The appellant then walked to his vehicle and drove away from the location. It is agreed that the complainant suffered no injuries as a result of the altercation with the appellant.
On a subsequent date, the complainant reported the offending to police. The appellant later attended the police station and participated in an electronic record of interview. During this interview, the appellant made admissions to his offending and stated that the complainant had been speaking to him in an aggressive manner and lunging at him.
Following the police interview, the appellant was charged with one count of common assault and given a notice to appear before the Ipswich Magistrates Court on 19 January 2021. A plea was entered on 18 March 2021.
The appellant in this proceeding is a mature man and was aged 35 at the time of offending.
The nature of the appeal
The appeal has been brought under s 222 of the Justices Act1886 (Qld) (the Justices Act) and so is by way of rehearing on the original evidence. [1] The process to be followed in this appeal has been outlined by Morzone DCJ in Adcock v QPS: [2]
“The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case. Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so it ought pay due regard to the advantage that the Magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the Magistrate’s view.
For an appeal by way of rehearing ‘the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error,’ and thereby resulting an a manifestly excessive sentence.” [3]
[1]Fox v Percy (2003) 214 CLR 118.
[2][2021] QDC 116.
[3]NOTE: Footnotes omitted.
This court ought not interfere with the Magistrate’s decision unless there is some demonstrated error in the decision-making process.
As this appeal is against the exercise of a discretion, the principles outlined by the High Court in House v The King apply:[4]
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[4](1936) 55 CLR 499 at 504 – 505.
The onus is on the appellant to show that there is an error in the decision under appeal.
I may confirm, set aside or vary the appealed order or make any other order in the matter I consider just.[5]
[5]Justices Act 1886 (Qld) s 225.
Grounds of appeal
The ground of appeal, as submitted by the appellant, is that the learned Magistrate failed to properly consider the provisions under s 12 of the Penalties and Sentences Act 1992 (Qld) (the Penalties and Sentences Act) and as such, the discretion to record a conviction was miscarried.
The appellant contends that the exercise of the discretion to record a conviction was miscarried for three reasons:
(a)Because of the failure to appropriately take into account the impact the recording of a conviction could have on the appellant’s employment;
(b)Because the learned Magistrate placed excessive weight on the appellant’s dated criminal history; and
(c)Because the emphasis on the prior criminal history was disproportionate to the other considerations of s 12 of the Penalties and Sentences Act namely, the nature of the offence and impact on economic wellbeing.
Section 12(1) of the Penalties and Sentences Act provides a wide discretion to the courts in relation to the recording of a conviction.
Sentencing
In the substantive proceeding, the respondent outlined the facts of the offending to the learned Magistrate and tendered a copy of the appellant’s criminal history. The respondent made no submissions with respect to penalty.
The legal representative for the appellant did make submissions with respect to penalty and, while conceding that he had a relevant criminal history, submitted that a fine was within range for the offending in light of the appellant’s general antecedents. In respect of recording a conviction, the following exchange occurred:
“MS WATERS: …..the nature of the offence is of a lower level, the victim suffered no injuries as a result, he was cooperative with police and made admissions to his offending. He’s not been before the court for over seven years. The references demonstrate that my client’s reaction is out of character for him, and he has been a contributing member of the community for quite some time now. He is employed by the government, and a recording of a conviction would adversely impact that. He’s well regarded in his employment, clearly, by the references before your Honour.
BENCH: I’m not sure that that statement is correct in that, as I understand it, if he’s – a conviction’s recorded, I’ll consider it, but he won’t necessarily lose employment.
MS WATERS: No. He has told me that in the past when he first obtained his job with Queensland Health he did have that conviction recorded on his history and he had to face a board of members of that department to explain the offending and he had to wait some time before they allowed him to be employed. So he instructs me that the conviction would see him face the board again and potentially face disciplinary action if a conviction was to be recorded. He has been employed by the government for quite some time now, and it’s – in those circumstances that ask you Honour to consider not recording a conviction. Particularly, considering he has not been before the court for some time now and he has been a contributing member of the community in that interim period.”[6]
[6]Transcript of Submissions dated 18 March 2021, T1-3 at line 40 to T1-4 at line 13.
At the time of sentence, the appellant’s criminal history consisted of four entries. Of relevance, one entry was a conviction for assault occasioning bodily harm and another was for breaching a domestic violence order. The relevant aspects of the appellant’s criminal history were largely dated.
Turning now to the grounds of appeal raised by the appellant.
The appellant submitted that the exercise of the discretion to record a conviction miscarried because of the failure to appropriately take into account the impact the recording of a conviction could have on the appellant’s employment.
Before the learned Magistrate:
(a)Submissions were made that the appellant would be required to face a board of directors with respect to his employment if a conviction was recorded which could potentially result in disciplinary action being taken; and
(b)References were tendered on behalf of the appellant from current or previous colleagues, but not those he would face before any board.
The appellant now submits that the fact of having to face a board is itself an impact on his economic wellbeing and in addition, there is the potential damage when he applies for other government positions at the conclusion of the current project, regardless of whether disciplinary action was taken with respect to his current role. I do not accept this for the reasons set out below.
Section 12(c)(i) of the Penalties and Sentences Act requires that the court must have regard to the impact that the recording of a conviction would have on the offender’s economic or social wellbeing. In my view, the learned Magistrate did appropriately have regard to the impact the recording of a conviction would have on the appellant in this instance.
As is apparent from the exchange set out at paragraph [15], her Honour was aware of the appellant’s employment and the possible consequences that could flow from the recording of a conviction.
As Keane JA noted in R v Cay, Gersch and Schell; ex parte A-G (Qld):[7]
“Of course, it may be accepted that simply to point to a possible detrimental impact on future employment prospects will usually be insufficient, of itself, to warrant the positive exercise of the discretion to order that a conviction should not be recorded.”
[7][2005] QCA 467 at [45].
The appellant had revealed a prior conviction to his employer and gained employment. That employer would have a genuine interest in subsequent criminal convictions. The appellant was back before the court for a further charge of assault. To point to a mere possibility of a detrimental impact on the appellant’s future employment was, in my view, insufficient to warrant the positive exercise of the learned Magistrate’s discretion not to record a conviction.
In the circumstances, I am satisfied that the learned Magistrate, in the exercise of her discretion, did properly take into account the impact the recording of a conviction could have on the appellant’s employment.
The appellant further submitted that the exercise of the discretion to record a conviction miscarried because the learned Magistrate placed excessive weight on the appellant’s dated criminal history.
At sentencing, the police prosecutor made no submissions with respect to the entries on the appellant’s criminal history and told the court nothing about those matters.
The legal representative for the appellant advised the learned Magistrate at sentencing that the appellant “has a relevant, but very dated criminal history” and had “not been before the court for offences of a like nature since 2004...”[8]
[8]Transcript of Submissions dated 18 March 2021, T1-3 at lines 31 – 32.
The Magistrate observed, “…these things all tend to indicate a person who has not been in great control of their temper or their – or not have a lot of respect for the law.”[9]
[9]Transcript of Decision dated 18 March 2021, T1-2 at lines 7 – 9.
In the appeal proceeding before me, the appellant submitted that the lack of information provided to the learned Magistrate with respect to the prior entries in the criminal history did not allow the Magistrate to make that conclusion.
The appellant referred me to Embleton v Commissioner of Police.[10] In that case, his Honour concluded that the sentencing Magistrate erred in relying upon earlier convictions of the appellant about which nothing was known.
[10][2016] QDC 282.
While I am not bound by that decision, it is distinguishable from the present case. In Embleton, the prosecutor said that the prior convictions were not relevant, and his Honour considered that important. In the present case, the appellant indicated that the offending was relevant. Further, the nature of the prior offending was relevant to sentencing.
While the Magistrate was not informed of the facts of the prior entries, that the appellant had a prior conviction for assault occasioning bodily harm and breach of a Domestic Violence Order was before her. There are concerning elements of the offending that are clear on the face of the charge.
The appellant was before the court for assaulting another person. Her Honour was required to have regard to the appellant’s criminal history and treat it as an aggravating factor if she considered it reasonable, having regard to the nature of the appellant’s prior offending, its relevance to the current offence and the time elapsed since the conviction.[11] It is apparent that her Honour did this. Her Honour was aware that the prior entries were dated.[12]
[11]Penalties and Sentences Act1992 (Qld) ss 9(3)(g), 9(10).
[12]Transcript of Decision dated 18 March 2021, T1-2 at lines 4 – 6.
The appellant has not shown the learned Magistrate erred in the weight attributed to the appellant’s criminal history.
The appellant further submitted that the exercise of the discretion to record a conviction miscarried because the emphasis on the prior criminal history was disproportionate to the other considerations of s 12 of the Penalties and Sentences Act namely, the nature of the offence and impact on economic wellbeing.
The matters which the court must have regard to in determining whether or not to record a conviction are set out in s 12(2) of the Penalties and Sentences Act. In R v Briese; ex parte Attorney-General,[13] it was held that the reference to the nature of the offence includes reference to the effects on the community of not recording a conviction, and that the relevant considerations for that include:
(a)Whether violence was used and if so to what extent;
(b)Whether there was exploitation or abuse of trust;
(c)The extent of economic loss to the victim; and
(d)The extent to which the circumstances of the offence suggest a propensity to offend or a risk that if given an opportunity, the offender may re-offend.[14]
[13][1998] 1 Qd R 487.
[14]R v Brown; ex-parte Attorney-General [1994] 2 Qd. R 182 at 498.
In the matter of R v Brown; ex-parte Attorney-General,[15] the Honourable Chief Justice noted:
“…all relevant circumstances must be taken into account by the sentencing court. The opening words of s 12(2) of the Act say so and then there follows certain specific matters which are not exhaustive of all relevant considerations. … Nothing justifies granting a general predominance to one of those specified features rather than to another. They must be in balance and none of them overlooked, although in a particular case one, rather than the other, may have claimed greater weight.”
[15][1994] 2 Qd. R 182 at page 185.
Her Honour was informed of the appellant’s age and had regard to the factors outlined in s 12(2) of the Penalties and Sentences Act, as is apparent from her sentencing remarks. Her Honour stated that “..Certainly, everybody can lose their temper from time to time, but your responses, you well know in your past dealings with the Courts, indicate that that is relatively serious, what you did.”[16]
[16]Transcript of Decision dated 18 March 2021, T1-2 at lines 23 – 25.
The appellant submitted that the characterisation of the offending as ‘relatively serious’ was wrong as it relied too heavily upon the appellant’s dated criminal history and that her Honour failed to take into account the following features which demonstrate the offending was at the lower end of assault offences:
(a)The offending involved grabbing the complainant by his singlet and a single slap to the left side of the face where no injury was suffered;
(b)The appellant walked away from the scene immediately and later made admissions to his offending in an electronic record of interview;
(c)The complainant suffered no economic loss and there was no abuse of trust;
(d)The offending stemmed from an ongoing dispute between neighbours with respect to a fence being erected between their properties. That dispute was resolved in QCAT proceedings after the offending and the risk of re-offending is low; and
(e)The appellant entered an early plea of guilty demonstrating his remorse.
The appellant was sentenced for an offence of violence. That he received another criminal conviction during the time of his employment, having already been before a board of members for a criminal conviction, would be of genuine interest to his employer.
I am not satisfied that in exercising her discretion, the learned Magistrate erred in emphasising the appellant’s criminal history disproportionately to the other considerations.
Conclusion
I am satisfied that the learned Magistrate properly considered s 12 of the Penalties and Sentences Act in the exercise of her discretion to record a conviction in respect of the relevant offending. In my view, the recording of a conviction was open as an appropriate exercise of her discretion.
In all the circumstances, I am satisfied that there is no identifiable error in the exercise of the sentencing discretion and the recording of a conviction did not render the sentence excessive.
Order
I confirm the decision of the sentencing Magistrate and dismiss the appeal.