Allen v Director of Public Prosecutions [2024] QDC 154

DISTRICT COURT OF QUEENSLAND CITATION: Allen v Director of Public Prosecutions [2024] QDC 154 PARTIES: BENJAMIN JAMES DAVID ALLEN (appellant) v DIRECTOR OF PUBLIC PROSECUTIONS (respondent) FILE NO/S: 1054/24 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Brisbane Magistrates Court DELIVERED ON: 18 October 2024 DELIVERED AT: Brisbane HEARING DATE: 6 & 9 September 2024 JUDGES: Dearden DCJ ORDER: (1) Appeal dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST CONVICTION – whether the sentence was manifestly excessive in that a conviction should not have been recorded – whether the learned magistrate erred in sentencing the applicant on the basis that the complainant was a “child” – whether the learned magistrate erred in concluding that the recording of a conviction was necessary to alert licensing bodies – whether the learned magistrate failed to place sufficient weight on applicant’s risk of re-offending LEGISLATION: Penalties and Sentences Act 1992 (Qld) ss 9, 12 Criminal Code Act 1899 (Qld) ss 210, 215, 352 Acts Interpretation Act 1954 (Qld) Sch 1 Working with Children (Risk Management and Screening) Act 2000 ss 17, 18, 177-180, 221, 226 CASES: Jenkins v Commissioner of Police [2021] QDC 289 House v The King [1936] 55 CLR 499 R v Ikin [2007] QCA 224 R v Pham (2015) 256 CLR 550 R v Morse [1979] 23 SASR 98 R v Cay, Gersch and Schell; ex parte Attorney-General (Qld) [2005] QCA 467 R v Briese [1997] QCA 10 -- 1 of 17 -- 2 COUNSEL: S Dickson for the appellant N Hopper for the respondent SOLICITORS: Beavon Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent Introduction [1] The appellant, Benjamin James David Allen, pleaded guilty in the Brisbane Magistrates Court on 26 March 2024 to the following charge: (1) Sexual assault (10 October 2022). [2] The appellant was sentenced to 180 hours community service with a conviction recorded. Grounds of Appeal [3] The appellant’s notice of appeal filed 19 April 2024 identified the ground of appeal as: “That the sentence, in all the circumstances, was manifestly excessive in that a conviction should not have been recorded.” [4] The appellant’s outline of submissions1 identified two bases on which it is submitted the sentence imposed is “manifestly excessive”, namely: (1) that the learned magistrate erred in sentencing the applicant when he referred to the complainant as a “child”; and (2) [that the learned magistrate] … failed to place sufficient weight on the applicant’s future risk of re-offending. [5] In a supplementary outline of submissions on behalf of the applicant the appellant contended that the learned magistrate had further erred as follows: “(3) The learned magistrate erred in concluding that a conviction needed to be recorded for licensing bodies to be informed.”2 1 Exhibit 1 – Appellant’s outline of submissions. 2 Exhibit 5 – Appellant’s supplementary outline of submissions, [11]. -- 2 of 17 -- 3 The law - appeals [6] I repeat and rely upon my exposition of the law in respect of sentence appeals in this court as set out in Jenkins v Commissioner of Police [2021] QDC 289. [7] As House v The King [1936] 55 CLR 499, 505 identified: “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 material for doing so”. [8] In R v Ikin [2007] QCA 224 [6], King JA (as he then was) observed: “The judgment appealed from is a discretionary one. An appeal can succeed only if an error of the kind described in House v The King (1936) 55 CLR 499 at 504-505 has occurred. In this regard, there may be cases where the sentence is so ‘unreasonable or plainly unjust’ in the circumstances as to give rise to an inference that the discretion has miscarried. It is this idea which informs the familiar ground of appeal that a sentence is manifestly excessive. But that having been said, as was emphasised by Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at 341, this court should allow an appeal against sentence only where the error is clearly apparent.” [9] In R v Pham (2015) 256 CLR 550, 559 it was held: “Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.” [10] In R v Morse [1979] 23 SASR 98, 99, King J stated: “To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime. The standards of sentencing customarily observed with respect to the crime; the place which the criminal conduct occupies in the scale of seriousness of crimes of that type; and the personal circumstances of the offender.” -- 3 of 17 -- 4 Circumstances of the offending [11] The facts of the offence were placed before the learned magistrate by way of a statement of facts3 which articulated the background and offending as follows: “Background 1. The defendant was 33 at the time of the offending and worked as the head swimming coach at the [redacted] Swim Club. 2. The complainant … was 16 at the time of the offending. She swam in a squad coached by another person, however, sometimes swam in the squad coached by the defendant at the Swim Club. 3. Around April 2022 the defendant started to send the complainant messages via text message and Snapchat. The two exchanged over 900 messages between July and December 2022. 4. The defendant asked the complainant whether she was sexually active and that he would keep it a secret from her parents in return for a ‘favour’. Over months, between other conversations, the defendant repeatedly brought up the favour but did not tell the complainant what it was. He asked her to guess the favour each time. Whenever the defendant was alone with the complainant in person, he asked her about the favour and whether the answer was a ’yes’ or a ‘no’. The complainant said she could not say yes without knowing what it was. When she did say no, the defendant asked if it was a ‘definite no’. On several occasions at the Swim Club, the defendant asked whether the complainant had decided, and that he needed a definite answer. After those conversations he told the complainant not to tell anyone. 5. On 9 October 2022 the complainant asked what the favour was via Snapchat. The defendant sent her an open-hand emoji and said ‘does this give you a hint?’ The complainant asked whether it was a hand job and whether that would be cheating. The defendant said it was complicated and he was in an open relationship. 6. In one message, the defendant said the favour was to do with being on your knees in the office, that it would be messy, and it would take 30 minutes on a Saturday morning after training when there was no one else around. Offending 7. On the morning of 10 October 2022, the complainant was in the pool training at the Swim Club. The defendant asked her to get out of the pool to correct her freestyle stroke. She had not been asked to do this previously. The other students stayed in the pool. 8. The defendant stood behind her and placed his left hand on her hip to correct her posture and asked her to place both of her hands on 3 Exhibit 1 in the original sentence proceedings. -- 4 of 17 -- 5 the starting block nearby the pool. He used his right hand to grip her right wrist under the guise of correcting her swim stroke with that hand. As he stood behind her, he rotated her arm forwards and then behind her in a freestyle stroke motion. As he moved her hand upward behind her, he brushed her hand against his hard penis underneath his shorts. He did this four times. 9. One of the other students asked the complainant why she had to get out of the pool. She later told another student and a teacher at school. 10. The defendant continued to contact the complainant after the offence occurred. 11. On 26 October [2022] the complainant gave a s 93A statement to police. 12. On 7 December 2022, the defendant sent the complainant a message saying he was sorry if anything he had previously said was inappropriate and that he was ‘bantering’ to get information about the boys but it may have gone too far. 13. On 23 December 2022, the defendant was arrested and issued a notice to appear.” [12] The complainant’s victim impact statement4 referred to “numerous internal struggles and considerable mental distress throughout this ordeal”; that she “felt manipulated” which led to “a profound impact on [her] psychological wellbeing”. The complainant described a period of making rash decisions at school and in her personal life, of fluctuating grades, and a “once-passionate pursuit of swimming” vanishing entirely. The complainant described engaging in self-destructive behaviour as a distraction and self-punishment to cope with emotional pain. The complainant described feeling guilty by reporting what had occurred and described the feelings of isolation from others at the swimming club and feeling harassed by her peers, including contact over social media platforms and accusations that she was ruining the appellant’s life. The complainant also described her psychological struggles when details of the matter were publicised in the media and refers to an attempt on her own life some ten months prior to the sentence. [13] In submissions on sentence before the learned magistrate,5 the prosecutor identified the maximum penalty (ten years) and submitted for a term of imprisonment of up to twelve months structured as a suspended sentence, leaving open the possibility of a 4 Exhibit 2 in the original sentence proceedings. 5 Exhibit 2 – Transcript of sentencing submissions. -- 5 of 17 -- 6 period in actual custody and stressing the importance of both general and personal deterrence as well as denunciation.6 [14] The prosecutor identified the following aggravating features:7 (1) the complainant’s extremely young age (16 at the time of the offence); (2) the defendant’s age (in his thirties and 17 years older than the complainant); (3) the relationship of trust between the defendant and the complainant at the time the offence was committed and the consequent abuse of that trust not only of the complainant but of her parents as well; (4) the abuse of the position of power; (5) the severe impact (demonstrated through the victim impact statement) on the complainant’s welfare; (6) the commission of the offence in the context of months of inappropriate communications with the complainant; (7) the brazen nature of the offending committed on a pool deck while the remainder of the swim squad was still training. [15] In mitigation, the prosecutor acknowledged the following:8 (1) the appellant’s lack of criminal history; (2) the appellant’s plea of guilty demonstrating a cooperation with the administration of justice, saving the complainant the ordeal of giving evidence and her family the ordeal of that process; (3) the appellant’s favourable antecedents (noting however that it was the appellant’s good character and reputation as a swim coach that put him in the position of trust and power that he abused through the commission of the offence). 6 Exhibit 2 – Transcript of sentencing submissions, T1-15, ll 31-39. 7 Exhibit 2 – Transcript of sentencing submissions, T1-15 ll 41-49 – T1-16 ll 1-3. 8 Exhibit 2 – Transcript of sentencing submissions, T1-16 ll 5-13. -- 6 of 17 -- 7 [16] The prosecutor noted that the psychological report relied upon by the appellant at the sentence failed to provide any explanation for the offending outside of it being for the defendant’s sexual gratification, despite identifying a lack of criminal history, a responsible and pro-social law-abiding life, a lack of adverse childhood events, identifiable history of mental illness, employment or relationship difficulties and any discernible pattern of behaviour that indicated a deviant sexual interest in children or adolescents.9 [17] The prosecutor acknowledged that it was an early plea.10 [18] Mr McDougall of counsel who appeared for the appellant at the sentence before the learned magistrate relied on a psychological report of Dr Yoxall,11 references from 12 persons (including the appellant’s wife),12 a letter from the appellant to the court13 and a letter of apology by the appellant to the complainant.14 [19] The appellant’s counsel tendered written submissions.15 [20] Counsel for the appellant identified and stressed the following matters on the plea16: (1) the timeliness of the plea which was early and arose from the acceptance of a submission to the prosecution which resolved the matter in the Magistrates Court rather than in the District Court; (2) the appellant’s remorse (to the point of self-loathing) demonstrated not only in the early plea but in his apology to the complainant, his apology to the court and in his statement to Dr Yoxall (who prepared the psychological report tendered to the court); (3) that the appellant had not dragged out the proceedings in any way; (4) the appellant’s lack of criminal history of any kind; (5) the appellant’s acceptance of responsibility for his offending; 9 Exhibit 2 – Transcript of sentencing submissions, T1-17 ll 1-11. 10 Exhibit 2 – Transcript of sentencing submissions, T1-19 ll 5-6. 11 Exhibit 3 in the original sentence proceedings. 12 Exhibits 5-12, 15-18 in the original sentence proceedings. 13 Exhibit 13 in the original sentence proceedings. 14 Exhibits 14 in the original sentence proceedings. 15 Exhibit 4 in the original sentence proceedings. 16 Exhibit 2 – Transcript of sentencing submissions, T1-22 l 32 – T1-25 l 10. -- 7 of 17 -- 8 (6) the appellant’s loss of his job, career and relationship with many family members; (7) the ongoing support of the appellant by his wife and his in-laws as well as his parents and siblings; (8) the loss of “almost all” of the appellant’s friends and the loss of “an entire industry that he was involved in”; (9) the appellant’s attendance upon a psychologist to obtain psychological assistance for a number of sessions; (10) the use of messaging with all of his students in a process of “engaged friendliness”; (11) the media response including being named in the media on 3 October 2023 after the amendment of legislation in terms of publication orders; (12) the appellant’s good antecedents which would assist in rehabilitation; (13) the appellant’s role as the parent of an 18 month old daughter and his disgust about his own behaviour; (14) the appellant undertaking a six month course to obtain new employment in a different field; (15) the role of work in assisting in rehabilitation and recovery from depression; and (16) the provision of a sum of $3,000 by way of compensation available to be paid immediately upon sentence. [21] The appellant’s counsel submitted that the appropriate penalty in the circumstances was a three year probation order, a community service order, a compensation order in the sum of $3,000 but submitted further that a conviction should not be recorded.17 In particular, counsel drew attention to the impact of recording a conviction in respect of his new employment given that they provided services to some major educational institutions and the lack of a Blue Card would severely limit the appellant’s suitability for those engagements.18 17 Exhibit 2 – Transcript of sentencing submissions, T1-26 ll 26-38. 18 Exhibit 2 – Transcript of sentencing submissions, T1-26 l 41 – T1-27 l 36. -- 8 of 17 -- 9 Sentencing remarks [22] The learned magistrate, in his sentencing remarks, identified the following factors:19 (a) The early plea of guilty; (b) The acknowledgement of remorse; (c) The lack of previous criminal convictions; (d) The defendant’s age (33 at offending, 34 at sentence); (e) The nature of the offence which involved touching, not skin to skin, through the appellant’s own actions of the hand of the complainant in respect of his penis; (f) The fact that the appellant was fully clothed and the complainant was in a swimming costume; (g) The identification of the matter as a “most serious offence” which “involved the abuse to a very high degree of [the appellant’s] position of trust where there was ‘a power imbalance’” and a significant age differential between the appellant and the complainant, and the appellant’s position as the complainant’s coach; (h) The offending occurring only on one occasion (but the learned magistrate noted that although the actual event was momentary, it could not be separated from the steps taken previously by way of messages and “suggestions”), although the learned magistrate noted that it had not been submitted that “there was grooming involved” but that there had been contact between the appellant and the complainant which was totally inappropriate and could not be divorced from the final act. [23] The learned magistrate noted that the complainant had provided “a very powerful victim impact statement” and noted that the complainant had clearly been “devastated by the actions [of the appellant] that day”, but further identified that while the victim impact statement had been taken into account, the learned magistrate had “not been overwhelmed by it” but took it into account as a “significant factor”.20 19 Exhibit 3 – Transcript of sentencing remarks, T1-2 ll 1-29. 20 Exhibit 3 – Transcript of sentencing remarks, T12 ll 31-37. -- 9 of 17 -- 10 [24] The learned magistrate identified that the prosecutor had called for a period of imprisonment up to 12 months, without actual imprisonment, and an automatic conviction flowing from such a penalty.21 [25] The learned magistrate noted the submissions made on the appellant’s behalf including that the appellant:- • Had lost everything, in particular his career. • That the appellant had had to reinvent himself. • The devastating public shaming of the appellant by the media. • The loss of the majority of the appellant’s friends and those in the coaching area. • The re-establishment of the appellant with full employment. • The content of the references and their identification of him as a ‘decent member of the community’. • The identification of the appellant’s actions as ‘an error of judgment’. • The apology in writing to the complainant. • The offer of compensation from an appellant who was not a high worth individual and the significant burden of that compensation • The steps taken towards rehabilitation as identified in the report from Dr Yoxall. • The appellant’s insight into his offending and acceptance of responsibility for what he did.22 [26] The learned magistrate noted the submission by the appellant’s counsel for a community based order.23 [27] The learned magistrate then stated the following:- “Mr Allen, what you did was unforgiveable. There was a degree of planning in it, the lead up to it, and in any society, this type of behaviour cannot be tolerated and the community expects courts to impose appropriate punishments, one that will be – a punishment that will be seen as being a real punishment. One that will act as a deterrent 21 Exhibit 3 – Transcript of sentencing remarks, T1-2 ll 39-43. 22 Exhibit 3 – Transcript of sentencing remarks, T1-3 ll 4-32. 23 Exhibit 3 – Transcript of sentencing remarks, T1-3 ll 39-42. -- 10 of 17 -- 11 to you and one that will act as a deterrent to other people who are like minded. And this involves protection of members of the community but also, the protection of vulnerable members of the community, our future – that is to say our young people.”24 [28] The learned magistrate identified that “jail is within range” and notes the submission by counsel for the appellant that a conviction ought not to be recorded because of the effect on the appellant’s continued rehabilitation, employability and overseas travel.25 [29] The learned magistrate identified that he had taken those matters into account and the matters set out in Penalties and Sentences Act (PSA) s 12 in dealing with the recording of a conviction.26 [30] The learned magistrate identified that appeal cases, in respect of the decision whether or not to record a conviction, have “made reference to is it in the community’s interests or would the community require the recording of a conviction” as part of the consideration.27 [31] The learned magistrate identified that the appellant had “done everything that you possibly can since the offending to rehabilitate yourself and to show you are sorry for what occurred”.28 [32] In all of the circumstances, the learned magistrate considered that he was satisfied that “the appropriate order is one that would allow for [the appellant’s] future rehabilitation” which would ensure that “any danger to the community is significantly reduced” and also noted that it was a factor in the appellant’s favour that he had offered compensation and an order would be made.29 [33] The learned magistrate then turned to the issue of whether or not to record a conviction and identified that he had considered the matters in PSA s 12; accepted that if a conviction was recorded it may have some effect on the appellant’s employability and on overseas travel but indicated his concern that “if a conviction was not recorded, that your behaviour and misbehaviour here, being the – involving 24 Exhibit 3 – Transcript of sentencing remarks, T1-3 ll 47-48 – T1-4 l 6. 25 Exhibit 3 – Transcript of sentencing remarks, T1-4 ll 8-11. 26 Exhibit 3 – Transcript of sentencing remarks, T1-4 ll 11-13. 27 Exhibit 3 – Transcript of sentencing remarks, T1-4 ll 21-24. 28 Exhibit 3 – Transcript of sentencing remarks, T1-4 ll 29-31. 29 Exhibit 3 – Transcript of sentencing remarks, T1-4 ll 35- 38. -- 11 of 17 -- 12 the significant abuse of trust as an older person teaching younger children to swim, that it might not reflect the true nature of the seriousness of your offending”.30 [34] The learned magistrate noted that the appellant’s employment did from time to time require association with groups where there might be contact with children and identified the protection of vulnerable children as a paramount concern.31 [35] The learned magistrate then concluded:- “In those circumstances, I am satisfied that it is appropriate to record a conviction. That way, licencing bodies, those bodies who have – who are charged by the community with determining if persons are given authority, cards, and regulate who is to have contact in – with vulnerable people, including children, and prospective employers, that they be made aware of the full circumstances of the person, you, applying for a position so that they are fully informed and are in a position then to make a decision in the best interests of the community. Protection of the children, as I have said, is paramount, but also that extends equally to vulnerable persons or categories in the community.”32 [36] The learned magistrate then proceeded to impose, with the appellant’s consent, 180 hours community service, compensation in the sum of $3,000 payable to the complainant, and ordered that a conviction be recorded. Consideration [37] The appellant identifies clearly that “no issue is … taken with the sentence other than the recording of the conviction.”33 The learned magistrate erred in sentencing the applicant when he referred to the appellant as a “child” [38] The appellant identifies that in his sentencing remarks, the learned magistrate said:- “It is a child against whom you have offended here, and as I’ve said, protection of our children, the – our vulnerable children – is paramount”.34 30 Exhibit 3 – Transcript of sentencing remarks, T1-4 ll 43-48. 31 Exhibit 3 – Transcript of sentencing remarks, T1-4 ll 48-49 – T1-5 l 5. 32 Exhibit 3 – Transcript of sentencing remarks, T1-5 ll 7-16. 33 Exhibit 1 – Appellant outline of submissions, [17]. 34 Exhibit 3 – Transcript of sentencing remarks, T1-5 ll 3-5. -- 12 of 17 -- 13 On two further occasions the learned magistrate referred to the protection of children in his sentencing remarks.35 [39] The appellant argues that:- “In accordance with s 9(4) of the Penalties and Sentences Act 1992, a child is one under 16 years”.36 [40] In addition, the appellant’s submissions note that Criminal Code ss 210 and 215 relate to children being under year 16 years.37 [41] With respect, this is a substantial misunderstanding of the text of PSA s 9(4), which relevantly provides:- “… in sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years or a child exploitation material offence— (a) the court must have regard to the sentencing practices, principles and guidelines applicable when the sentence is imposed rather than when the offence was committed; and (b) the principles mentioned in subsection (2)(a) do not apply; and (c) the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.” [42] The learned magistrate was, in my view, clearly aware that the offence for which the appellant was to be sentenced (sexual assault pursuant to Criminal Code s 352(1)(a)), was an offence that could be committed against a child aged 16 or 17, or an adult, as opposed to an offence of indecent treatment (Criminal Code s 210), which is an offence of indecent treatment of children under the age of 16 years. [43] The Acts Interpretation Act 1954 (Qld) in Sch 1 defines a child to mean “an individual is under 18”. In referring to the complainant as a child, the magistrate was accurately referring to a complainant, aged 16 at the time of the offending and 17 years at sentence. In any event, the learned magistrate was not sentencing the appellant for an indecent sexual assault on a child under 16. 35 Exhibit 3 – Transcript of sentencing remarks, T1-5 ll 10 & 15. 36 Exhibit 1 – Appellant outline of submissions, [20]. 37 Exhibit 1 – Appellant outline of submissions, [20]. -- 13 of 17 -- 14 [44] I have no hesitation in concluding that the learned magistrate’s references to the protection of “children” were appropriate in context, and were not a reference to an aggravating circumstance pursuant to PSA s 9(4). [45] There was no error in respect of this aspect of the learned magistrate’s reasons for recording a conviction. The learned magistrate failed to place sufficient weight on the appellant’s future risk of reoffending [46] It is clear that the learned magistrate identified and acknowledged the steps that the appellant had taken since offending to rehabilitate himself and to show that he was sorry.38 The learned magistrate was also clearly cognisant of the potential detrimental impact on the applicant’s future employment prospects by recording a conviction, despite the acknowledged low risk of the applicant reoffending.39 [47] The learned magistrate identified (correctly in my view) that:- “… I am concerned that if a conviction was not recorded, that your behaviour and misbehaviour here, being the – involving the significant abuse of trust as an older person teaching younger children to swim, that it might not reflect the true nature of the seriousness of your offending”.40 [48] The learned magistrate went on to note that:- “… I am satisfied that it is appropriate to record a conviction. That way licencing bodies, those bodies who have – who are charged by the community with determining if persons are given authority, cards and regulate who is to have contact in – with vulnerable people, including children, and prospect of employers, that they be made aware of the full circumstances of the person, you, applying for a position so that they are fully informed and are in a position then to make a decision in the best interests of the community.”41 [49] Relevantly, in considering whether or not to record a conviction, the learned magistrate was required to consider carefully the public interest in the recording of the conviction, counterbalanced with the appellant’s interests, including the appellant’s ongoing rehabilitation. 38 Exhibit 3 – Transcript of sentencing remarks, T1-4 ll 26-29. 39 Exhibit 3 – Transcript of sentencing remarks, T1-4 l 40 – T1-5 l 6. 40 Exhibit 3 – Transcript of sentencing remarks, T1-4 ll 45-48. 41 Exhibit 3 – Transcript of sentencing remarks, T1-5 ll 7-13. -- 14 of 17 -- 15 [50] In R v Cay, Gersch and Schell; ex parte Attorney-General (Qld) [2005] QCA 467, [11], the Court of Appeal said:- “Is there sufficient reasons to contemplate subsequently denying persons, with an otherwise legitimate interest in knowing the truth, knowledge of the offender’s true circumstances?” [51] In R v Briese [1997] QCA 10:- “It is therefore obvious that the effect of such an order [that no conviction be recorded] is capable of considerable effect in the community. Persons who may have an interest in knowing the truth in such matters include potential employers, insurers, and various government departments … For present purposes it is enough to note that the making of an order under s 12 [the Penalties and Sentences Act] has considerable ramifications of a public nature, and courts need to be aware of this potential effect. In essence a provision of this kind gives an offender a right to conceal the truth, and it might be said, to lie about what has happened in a criminal court.” [52] The learned magistrate was clearly aware of and engaged with the relevant principles and, in the exercise of his discretion, sought to balance the competing considerations identified in the decisions of Briese and Cay, Gersch and Schell in deciding, in the context of the appellant’s offending, in particular his breach of trust in his role as a swimming coach, even though a community based order was imposed, whether a conviction should be recorded. [53] The learned magistrate did not fail to place insufficient weight on the appellant’s future risk of offending. The learned magistrate carefully and thoughtfully considered and assessed all competing considerations. This ground of appeal fails. The learned magistrate erred in concluding that a conviction needed to be recorded for licencing bodies to be informed [54] It appears that this particular assertion of error arises out of the portion of the sentencing remarks in which the learned magistrate stated:- “In those circumstances, I am satisfied that it is appropriate to record a conviction. That way licencing bodies, those bodies who have – who are charged by the community with determining if persons are given authority, cards and regulate who is to have contact in – with vulnerable people, including children, and prospect of employers, that they be made aware of the full circumstances of the person, you, applying for a position so that they are fully informed and are in a -- 15 of 17 -- 16 position then to make a decision in the best interests of the community.”42 [55] It is submitted that the learned magistrate was primarily concerned that Blue Card Services needed to be alerted by the recording of a conviction. [56] As the appellant’s counsel correctly points out, pursuant to the provisions of Working with Children (Risk Management and Screening) Act 2000 s 17,:- “A person is a disqualified person if the person— (a) has been or is convicted of a disqualifying offence”. [57] Pursuant to Sch 7,43 “… conviction means a finding of guilt by a court, with the acceptance of a plea of guilty by a court, whether or not a conviction is recorded.” [58] The appellant was not a “relevant disqualified person” pursuant to s 1844 because he was not sentenced to a term of imprisonment, and accordingly, as a “disqualified person” it is open to the appellant to make an application for an “eligibility declaration” pursuant to ss 177-180.45 To obtain an “eligibility declaration”, the person must go through the same process as required to apply for a working with children clearance46 and to refuse an eligibility declaration, the chief executive needs to be satisfied that “it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to the person.47 [59] Among the factors that the chief executive can take into account in making this assessment, the chief executive is entitled to consider:- “… in the case of a conviction – the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under s 357, the court’s reasons for its decision.”48 [60] Clearly, the appellant in this case is able to make an application for an eligibility declaration, whether or not a conviction is recorded, although the fact that a 42 Exhibit 3 – Transcript of sentencing remarks, T1-5 ll 7-13. 43 Working with Children (Risk Management and Screening) Act. 44 Working with Children (Risk Management and Screening) Act. 45 Working with Children (Risk Management and Screening) Act. 46 Working with Children (Risk Management and Screening) Act s 180(2) & (3). 47 Working with Children (Risk Management and Screening) Act ss 221(2)(b), 226. 48 Working with Children (Risk Management and Screening) Act s 226(2)(a)(b). -- 16 of 17 -- 17 conviction was recorded can be taken into account by the chief executive. It is submitted that recording a conviction would make it more difficult for the applicant to get a Blue Card, but, with respect, there is no evidence nor any legislative basis for that submission. The chief executive would, of course, have access to the court record (including submissions, exhibits and sentencing remarks) and the recording of a conviction is just one of the relevant factors to be considered. [61] It was further submitted on behalf of the appellant that it appeared on the basis of the passage quoted from the learned magistrate’s sentencing remarks, that he was “primarily concerned that Blue Card Services needed to be alerted by the recording of a conviction”.49 [62] With respect, the learned magistrate has clearly identified “licencing bodies” (a reference to the plurality of those bodies who are involved in any way with granting “authority, cards and regulation of contact” with vulnerable people, including children and prospective employers). It is also clear in those sentencing remarks that the learned magistrate was not confining his observations to any specific need for Blue Card Services to be alerted by the recording of a conviction but more generally in respect of any licencing body who might need to be aware of the full circumstances of the appellant in applying for a licence relevant to and/or required for a particular position. [63] The learned magistrate did not err in concluding that a conviction needed to be recorded for licencing bodies to be informed. This ground of appeal fails. Conclusion [64] It follows that the learned magistrate has not erred, either generally nor specifically, in the exercise of his discretion, and the appeal fails. Order [65] Appeal dismissed. 49 Exhibit 5 – Appellant’s supplementary outline of submissions, [11]. -- 17 of 17 --