Dixon v Nagy [2010] QDC 536

1 [2010] QDC 536 DISTRICT COURT APPELLATE JURISDICTION JUDGE HARRISON Appeal No 173 of 2010 GRAEME FRANCIS DIXON Appellant and DEBRALEE ELIZABETH NAGY Respondent CAIRNS ..DATE 14/12/2010 JUDGMENT -- 1 of 5 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal by Graeme Francis Dixon against sentence. On the 24th of August 2010 he pleaded guilty in the Magistrates Court at Atherton to one charge of common assault, one charge of unauthorised dealing with shop goods, one charge of drive unregistered vehicle, and one charge of drive uninsured vehicle. In relation to all four matters, the learned Magistrate imposed convictions and placed him on a recognisance in respect of the common assault and unauthorised dealing with shop goods in the sum of $500 for a period of 12 months. In relation to the two traffic matters, one fine of $250 was imposed. The appeal in this case relates to the recording of convictions. I have read a transcript of the sentencing procedure and it is clear that he had no criminal convictions when he appeared before the Magistrate at age 59. He did, however, have some traffic matters and a traffic history was tendered. It is argued on his behalf that, firstly, the sentence imposed by means of recording a conviction was manifestly excessive and, secondly, that the Magistrate erred in not properly considering the provisions of section 12 of the Penalties and Sentences Act before recording the convictions. As I indicated even before the start of argument here today, this is a matter which had it come before me I would never -- 2 of 5 -- 3 JUDGMENT 1 10 20 30 40 50 60 have even considered imposing any convictions against this appellant and the reason for that is borne out in the history that was placed before the learned Magistrate by the solicitor who appeared on his behalf. For a start, he was 59 with no previous convictions. He had conducted his own businesses throughout the course of his life time and, more importantly, he had sustained a very serious injury which resulted in him having a brain injury. He had served in the Royal Australian Air Force and there was a very clear connection between his brain injury and what happened in the circumstances leading up to what I would deem the more serious of the matters, the one of common assault involving the child complainant. He was staying at the home of the complainant when the complainant was playing with some bubbles and some bubbles landed on his head. It was suggested in the facts that were put forward before the learned Magistrate by the prosecutor that he reacted to that and smacked the child on the bottom. It was explained by his solicitor on sentence, however, that when some bubbles had landed on his head the child - and I presume this was only playfully - went to burst the bubbles and that this caused him pain and an instantaneous reaction because that was the area where he had sustained his injury. The circumstances surrounding the stealing were also rather unusual. He stole a blister pack of three tins of crab meat from a store but the circumstances surrounding his financial -- 3 of 5 -- 4 JUDGMENT 1 10 20 30 40 50 60 situation were quite exceptional. It was explained to the learned Magistrate that because of his injury his affairs were managed by the Public Trustee and the Public Trustee was providing him only $85 a week to live on. The solicitor was very careful to clarify this with Mr Hartigan, who was his advocate, before putting these facts before the Magistrate. So it does seem that he was a man of 59 who'd been a very productive member of society, who'd raised a number of children, who through no fault of his own was now in a situation where he had a lot of difficulty coping because of his brain injury which had wrecked his working life and which had also led to him living, from what the facts suggest, in absolute poverty. Against that background, I certainly would never have considered imposing any convictions for those two matters. There is a distinction between those and the two traffic matters, as I raised with counsel on argument before me this morning, and I would not interfere in any way with the penalties that were imposed there. I intend to uphold the appeal for two reasons in this case. Firstly, I believe that the facts here were so exceptional that I could easily find that it was manifestly excessive to record a conviction on the assault and stealing charges -- 4 of 5 -- 5 JUDGMENT 1 10 20 30 40 50 60 against a man with this rather exceptional background and who was living in such difficult circumstances. Secondly, it seems to me that the learned Magistrate erred by not in any way considering whether or not he should have exercised his discretion under section 12 not to record a conviction. He did not seek any submissions in that regard and made no reference whatsoever to any of the matters that are relevant under section 12. In this case, had he turned to the exercise of the discretion, it seems to me that it would have been compelling not to record a conviction. I do not have to go that far because having found that he erred in law, it seems to me that I can very easily, in those circumstances, substitute my own exercise of discretion and I have made it very clear that I believe that this is a proper case in which to exercise the discretion not to record. So insofar as the appeal is concerned, it is upheld insofar as it relates to the charges of common assault and unauthorised dealing with shop goods, and I order that convictions not be recorded in relation to both of those matters, and I order that the bond which was imposed remain in place. ... ----- -- 5 of 5 --