DISTRICT COURT OF QUEENSLAND
CITATION:
Poile v Queensland Police Service [2018] QDC 61
PARTIES:
DANIEL POILE
(Appellant)v
QUEENSLAND POLICE SERVICE
(Respondent)FILE NO/S:
198 of 2017
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court, Blackall
DELIVERED ON:
14 March 2018 (ex tempore)
DELIVERED AT:
Cairns
HEARING DATE:
14 March 2018
JUDGE:
Fantin DCJ
ORDER:
1. Leave is granted pursuant to s 224(1) of the Justices Act 1886 to extend the time for filing the notice of appeal to 8 November 2017;
2. Appeal allowed;
3. The order of the learned Magistrate dated 7 August 2017 is varied only in respect of the recording of convictions, as follows:
a. In respect of the possess dangerous drugs and possess utensils or pipes, etc. that have been used charges: no convictions are recorded;
b. In respect of the drive while relevant drug is present charge: a conviction is recorded;
c. All other orders of the learned Magistrate dated 7 August 2017 are affirmed.
4. The parties bear their own costs.
CATCHWORDS:
CRIMINAL LAW – appeal against recording of convictions on sentence pursuant to s 222 Justices Act 1886 – possess dangerous drugs – possess utensils or pipes etc. that had been used – drive while relevant drug is present – impact on firearms licence of recording conviction – leave to extend the time for filing of appeal pursuant to s 224(1)(a) Justices Act 1886
Legislation
Justices Act 1886 (Qld) ss 222, 223, s 224(1)(a)
Penalties and Sentences Act 1992 (Qld) s 12Cases
R v Tait [1999] 2 Qd R 667COUNSEL: G Kable, solicitor, for the Appellant
T Hancock, solicitor, for the RespondentSOLICITORS: Hartmann & Associates for the Appellant
Director of Public Prosecutions for the Respondent
HER HONOUR: On 7 August 2017, the appellant was convicted on his own plea of guilty in the Magistrates Court at Blackall of the following offences: possessing dangerous drugs; possessing utensils or pipes that have been used; and driving while a relevant drug is present.
He was sentenced, as follows. For the two drug matters, (the possession of drugs and utensils or pipes) he was fined $330. With respect to the drug driving charge, he was fined $440 and had his licence disqualified for three months. The relevant verdict and judgment record details that convictions were recorded against each of those offences.
The appellant now appeals his sentence on the basis that it was manifestly excessive. The notice of appeal was prepared by the appellant when he was self-represented. He now has legal representation. The appellant’s position on appeal is that the appeal is limited to the recording of a conviction for the charges of possess dangerous drugs and possess utensils or pipes. There is no appeal against a recording of a conviction for the drug driving charge.
Both parties provided outlines of argument and made further submissions on the hearing of the appeal which I have considered.
The appeal is pursuant to section 222 of the Justices Act 1886 (Queensland). By virtue of section 223, the appeal is by way of re-hearing on the evidence in the proceeding before the Magistrate unless the Court grants leave to adduce fresh evidence, having been satisfied there are special grounds for the giving of leave.
The jurisdiction of the Court in such an appeal is well known. The appellant must demonstrate that, having regard to the evidence now before the Court, the order the subject of the appeal is the result of some legal, factual or discretionary error. The re-hearing requires the Court to conduct a real review of the evidence before it and make up its own mind about the case.
Before dealing with the substantive issue in an appeal, the appellant applied under section 224(1)(a) of the Justices Act 1886 for leave to extend the time for the filing of the appeal.
Pursuant to section 222(1), the appellant had one month after the date of the order in which to appeal. That time expired on 7 September 2017. The appeal was filed on 8 November 2017, so a period of approximately two months out of time.
I considered the relevant criteria in assessing an application for an extension of time, as set out by the Court of Appeal in R v Tait [1999] 2 Qd R 667. I am satisfied that the appellant has explained the delay in the application. In short, the appellant was self-represented before the learned Magistrate in Blackall. He was unaware that there would be any consequences for the recording of convictions until police arrived and confiscated his firearms and revoked his firearms licence (on or about 10 October 2017). At that time, he immediately sought legal advice. By then, the appeal period had already expired.
There was no prejudice identified by the respondent in granting an extension of time for leave to appeal. Indeed, the respondent ultimately concedes that there was an error of law in that the learned Magistrate failed to consider section 12 of the Penalties and Sentences Act 1992, or alternatively failed to provide reasons for the decision to record a conviction. That amounts to an error of law. In those circumstances, the respondent appropriately submits that it is in the interests of justice to hear the appeal due to that error of law and that the extension of time should be granted.
In my view, the appellant has shown a sufficient explanation for the delay and has demonstrated that it would be in the interests of justice to grant the extension of time sought, having regard to the issues raised in the appeal. I allow the application for leave to extend time and the appeal hearing proceeded on that basis.
The case is an unusual one in this sense. Although the verdict and judgment record records that convictions were recorded for each of the three offences, according to the transcript of both the proceeding and the decision of the learned Magistrate, there was never, at any time, any discussion of section 12 of the Penalties and Sentences Act 1992 and whether or not a conviction ought be recorded. The proceeding was, understandably, brief.
According to the transcript, no order was made by the Magistrate about the recording of a conviction for those offences. If the learned Magistrate considered section 12 of the Act, no reasons were given about why a conviction should be recorded or whether or not a conviction should be recorded.
The respondent concedes that a failure to consider section 12 of the Act, or a failure to provide reasons as to a decision under that section, amounts to an error of law. In those circumstances, the appropriate course is to re-sentence the appellant. I accept that submission.
The factual basis of the offending can be summarised, as follows. The appellant was intercepted by police while driving his car down the Landsborough Highway. He readily declared that he had possession of 85 grams of cannabis and a cone piece that had been recently used. He participated in a saliva test, indicating the presence of cannabis. He pleaded guilty at the first opportunity and represented himself.
He relied upon a reference, or letter of support, which provided some background information and support for the circumstances leading to his offending. He had a prior conviction for driving whilst under the influence of drugs, but that conviction occurred at a time when his wife was suffering from terminal brain cancer and occurred in circumstances where he was seeking to self-medicate with cannabis.
Both the appellant and the respondent provided a draft form of order by consent in the appeal. That order is to the effect that the orders of the learned Magistrate be varied only in respect of the recording of convictions (not with respect to the fines imposed) and that for the possess dangerous drugs and possess utensils or pipes charges, no convictions be recorded, but in respect of the drive while relevant drug is present charge, a conviction remain recorded. The order proposes that all the other orders of the learned Magistrate remain affirmed and that the parties bear their own costs.
Notwithstanding that the parties have consented to those orders, it remains for the Court to exercise its discretion properly pursuant to section 12 as to whether or not to record a conviction for the possess dangerous drugs and possess utensils or pipes charges.
In considering whether or not to record a conviction, I must have regard to all the circumstances of the case, including the matters in section 12(2) of the Act. They are the nature of the offence; the offender’s character and age; the impact that recording a conviction will have on the offender’s economic or social well-being or chances of finding employment.
Considering each of those matters in section 12(2) in turn, here the offending was relatively minor.
The appellant was a 43 year old man who did not have a criminal history. His traffic history was unremarkable but did have one relevant entry for the charge of drive while relevant drug is present, for which he was dealt with on 6 August 2015. The sentence imposed included that a conviction be recorded and his drivers licence be disqualified for one month.
The appellant was qualified as an auto electrician and was doing mechanical work. The appellant was in current employment. There was some evidence of rehabilitation in that the appellant maintained he had not consumed cannabis in the 10 to 12 weeks before the sentence. The appellant provided a character reference in his favour that also detailed the difficulties associated with his wife’s very recent death as a result of cancer.
I accept that because the appellant lived and worked in a small outback community, the recording of a conviction would have an impact on his social well being because of the social prejudice of a conviction in such a small community. I also accept and take into account that the appellant uses firearms for personal use, as is common in outback locations, and that he also uses firearms as part of his employment from time to time. That includes employment on rural cattle properties where he is required to use firearms to euthanise sick stock and undertake feral animal culling programs.
In those circumstances, I am satisfied that, in addition to the impact on his social well-being, recording a conviction for the two drug offences will have an impact on his economic well-being. The reason for that is that I am informed that a conviction for a drug matter in the form of possession of dangerous drugs, or possession of utensils or pipes, results in a mandatory loss of his firearms licence. The appellant was unaware of this consequence at the time he pleaded guilty before the learned Magistrate and represented himself. I am further informed that, even if those convictions are removed and I exercise my discretion not to record them, the Weapons Licensing Branch of Queensland Police has a discretion as to whether to grant the appellant a firearms licence, but it can only do so if no conviction is recorded.
The respondent concedes, having regard to all of those circumstances, that not recording a conviction against those two drug charges is open on a proper consideration of section 12. It also concedes that, as the appellant already has a conviction on his traffic history, retaining the recording of a conviction for the traffic offence is of less significance. As I have already identified, the appellant does not appeal against the recording of a conviction for the driving offence.
Taking all of those matters into account, I am satisfied that it is appropriate to exercise my discretion to not record a conviction pursuant to section 12 of the Penalties and Sentences Act for the two charges, possess dangerous drugs and possess utensils or pipes. In those circumstances, I make the following orders in accordance with the draft order amended by me and placed with the papers, as follows:
Leave is granted pursuant to section 224(1) of the Justices Act 1886 to extend the time for filing the notice of appeal to 8 November 2017.
The appeal is allowed.
The order of the learned Magistrate dated 7 August 2017 is varied only in respect of the recording of convictions, as follows:
(a)In respect of the possess dangerous drugs and possess utensils or pipes, etc. that have been used charges: no convictions are recorded;
(b)In respect of the drive while relevant drug is present charge: a conviction is recorded;
(c)All other orders of the learned Magistrate dated 7 August 2017 are affirmed.
The parties bear their own costs.