Ceoline v Commissioner of Police [2010] QDC 410

1 [2010] QDC 410 DISTRICT COURT APPELATE JURISDICTION JUDGE RACKEMANN No 3482 of 2009 TIMOTHY FRANK CEOLINE Applicant and COMMISSIONER OF POLICE Respondent BRISBANE ..DATE 25/10/2010 ORDER -- 1 of 6 -- 2 ORDER HIS HONOUR: This is an appeal against sentence. On 29 October 2009 the appellant pleaded guilty to the offence of assault occasioning bodily harm. He was legally represented at the sentencing hearing, where he was sentenced to 15 months probation. A conviction was ordered and he was ordered to pay $500 and in default five days' imprisonment. The appeal is against a sentence insofar as it related to the recording of a conviction. The appeal was filed out of time and so the matter comes on before me today by way of an application to extend time for the appeal as well as for the hearing of the appeal, should time be extended. The delay between the expiry of the appeal period and the time when the appeal was filed was not lengthy- only a matter of some three days. However there is absolutely no affidavit material before me to explain or justify that delay. All I am pointed to is an assertion, in the grounds of the application itself, which refers to the appellant being extremely busy and having overlooked the appeal period. To that was added a submission, from the Bar table, that there was some problems in changing solicitors however, again, no affidavit material has been filed to depose to those things. Whilst one might often look upon the extending by such a short amount of time, favourably, extensions are not granted as a matter of course, and the failure to depose to the circumstances which might justify an extension of time leads me to conclude that leave to appeal should not be granted. The substantive matters were argued, however, so I will -- 2 of 6 -- 3 ORDER indicate what my decision would have been had I granted leave to appeal. The discretion whether or not to record a conviction is dealt with by section 12 of the Penalties and Sentences Act 1992. It provides in part as follows: (2) in considering whether or not to record a conviction, a Court must have regard to all circumstances of the case including - (a) the nature of the offence and; (b) the offender's character and age and; (c) the impact that recording a convict will have on the offender's - (i) economic or social well-being or; (ii) the chances of finding employment. The nature of the offence and the circumstances were dealt with in the sentencing remarks of the learned Magistrate as follows: "The assault occasioning bodily harm occurred in circumstances where you were at a licensed premises. You were asked to leave. You were escorted from the premises no doubt due to some behavioural issues. You wanted to get back into the premises to obtain some funds from your friends to go home but the security staff of the premises, as is their right, would not allow you to go back into the premises. You then said that you would stand outside the premises and wait. The security officer then motioned you by touching you -- 3 of 6 -- 4 ORDER - that seems to be an unlawful assault upon you - but your reaction to it was over the top. You grabbed him by the arm and pulled him to you and then the two of you began to wrestle and whatever. At one stage there his bicep was against your mouth and you bit on it. You bit on it quite hard according - because you - you broke the skin. What is clearly a bite mark in the photos that have been tendered." The outline of submissions for the appellant invited this Court, on appeal, to proceed on a different factual basis in relation to the nature of the offence, namely it asked the Court to accept that the appellant was being choked at the time and bit the complainant as the only reasonable means open to him to relieve the pressure and only used such pressure as was required to release the grip on his windpipe. Those facts are not evidenced in the transcript and ultimately, on the appeal, the appellant's solicitor conceded that the Court should not act on that basis and disclaimed reliance on paragraphs 3 to 5 inclusive and 19 to 20 inclusive of the written outline. There doesn't seem to be any basis upon which it can be said that the learned Magistrate erred in considering the nature of the offence. In relation to the offender's character and age, the learned Magistrate noted, in particular, that this was not the first time he had behaved badly whilst being involved in the consumption of liquor. The sentencing remarks go through, in -- 4 of 6 -- 5 ORDER some detail, previous offences which, whilst not amounting to assault occasioning bodily harm, were clearly alcohol fuelled offences. On the other hand, he also took into account the steps the appellant had been taking to address his behavioural issues. He took into account counselling that he had been attending and also references that were tendered at trial. There appears to be no error in his Honour's approach to taking account of the offender's situation. In relation to the impact of recording a conviction, there were two matters that have been specifically put on the appellant's behalf. They were that the recording of a conviction might jeopardise his position as a director of a company and might also jeopardise his business travel. The learned Magistrate clearly took those matters into account in addressing them, quite specifically, in his sentencing remarks. He noted that the recording of a conviction did not automatically disentitle the appellant from being a director but also noted that another member of the family could take up that position, if needs be. Insofar as travel is concerned, he noted that the entry requirements for the United States of America, where the appellant had an intention to travel, required disclosure of a Court appearance whether or not a conviction was recorded, although, he also took into account the fact that the -- 5 of 6 -- 6 ORDER recording of a conviction might have an influence on the discretion. He also made specific reference to the position in the United Kingdom. In the end he accepted that the recording of a conviction might have some effect on the appellant's ability to travel, but that was not necessarily a foregone conclusion. In the end he weighed up the adverse effects that might befall the appellant, by reason of a conviction, and the efforts that he had been making towards rehabilitation against the nature of the offence and his history of misbehaviour fuelled by alcohol. In undertaking that balancing exercise, he came to a conclusion that it would be appropriate to exercise his discretion by means of recording a conviction. It is evident that there were competing factors of relevance when it came to the exercise of discretion as to whether or not to record a conviction. In such circumstances different minds might come to different conclusions as to where the discretion ultimately falls. However, in my view the conclusion reached by the Magistrate was within the bounds of an acceptable exercise of discretion and accordingly, I would have dismissed the appeal in any event. I strike out the appeal. ----- -- 6 of 6 --