R v Brown; ex parte Attorney-General of Queensland [1993] QCA 271

Court of Appeal (Qld)|1993-08-04|Before: Pincus J, Lee J

In my view this appeal which was brought by the Attorney-General against sentence should be dismissed.

The respondent was, following a trial, convicted of dangerous driving causing death. He was ordered to perform two hundred hours of community service and was disqualified from holding or obtaining a driver's licence for three years. It was ordered that no conviction should be recorded and this is the aspect which the appeal seeks to challenge.

On the hearing of the appeal, counsel for the appellant, in deference to what had occurred below, quite properly refrained from questioning the non-custodial term which had been imposed and restricted his submission to formally pressing for the recording of a conviction. However, he based his submission upon the nature of the offence involved, the claimed serious aspects of the case and the culpability of the respondent. This might be thought to involve, at least indirectly, a measure of departure from the Crown attitude expressed below. In submitting that it was erroneous not to have imposed a conviction, counsel for the appellant did not say that he accepted that it was a case where a term of imprisonment was not called for. He appeared to desire that the Court should judge the serious nature of the case and the culpability of the respondent afresh. I think, however, that the Court should approach its task on the basis that it has been established that a custodial term was not necessary and I am of this view both for the reason that the sentence was accepted below and for the reason that no error appears in the judge's reasoning in support of his conclusion. In short, the circumstances do not shut out the possibility of exercising the sentencing discretion in favour of a non-custodial term.

The judge who heard the evidence presented below thought that the case was one not too dissimilar "from a case of momentary inattention". He accepted that the respondent had not been deliberately engaged in reckless driving. He stated that the respondent "either did not see or did not take into account" warning signs which should have induced him to reduce his speed. It is clear that the respondent's culpability lay solely in his driving on the road up the hill where the accident occurred at a speed which was both excessive and dangerous. In these conditions he came upon the junction at the crest where the very bad topographical features contributed to the collision. There is no evidence that the respondent, through some inattention, failed to see the other car involved at the first opportunity. The circumstances appear to point to the unexpected entry of that other vehicle onto the junction area in breach of the right of way rule and in the path of the respondent's on-coming vehicle as being a contributing cause to the collision. We do not know the point the other vehicle had reached when its driver first saw the respondent's approaching vehicle, if she saw it at all. However, on the respondent's part, the dangerous element in his driving was, as I have said, excessive speed.

The judge, in the course of announcing his decision to impose a non-custodial sentence, took into account community concern with dangerous driving and the need for the Courts, by their sentences, to reflect it and express their condemnation of criminally bad driving. He also noted that the respondent was still a young man (he was only twenty-three), had never been in trouble before and had a good employment record since leaving school. He then had regard to the various matters to which his attention was directed by s. 9(2) of the Penalties and Sentences Act 1992. The judge thought that the most appropriate course was to order the performance of a substantial amount of community service. It cannot be said that this course was not open to the judge and, as has already been said, counsel for the Crown below accepted it.

The judge noted that accordingly he had a discretion to exercise in the matter of the recording of a conviction. This is undoubtedly correct. However, counsel for the appellant submitted that the facts of this case compelled the discretion to be exercised one way, that is, in favour of a conviction. In my opinion this cannot be accepted. The judge below appears once again to have given anxious consideration to the choice open to him before concluding that he would not record a conviction.

The Penalties and Sentences Act 1992 has brought some significant changes in sentencing practice and as part of those changes has expressly conferred discretions in areas where they did not previously exist. In my opinion the deliberate legislative policy discernible behind this should not be impeded by over-rigid rules or by restrictive approaches drawn from the experience of an era when the discretions did not exist.

The broad situation used to be that a finding of guilt and the decision to convict involved the recording of the conviction as a consequence. Then, limited exceptions were created, e.g. under the Code by s. 657A in the case of "trivial offences" and by the Offenders Probation and Parole Act 1980-1983, ss. 85A and 33 where orders for community service and probation resulting from conviction were deemed not to be convictions except for restricted, specified purposes. This narrower sentencing regime is now considerably broadened by the specification of a wide range of circumstances in which a conviction may not be recorded. Thus, if a court acts under Division 2 Part 3 of the Penalties and Sentences Act which is concerned with certain offences against property and provides for release on recognisance, it may not record a conviction; under Part 3 Division 3 there is a broader category providing for release on recognisance and there an option to record a conviction is granted; a similar option applies under Part 3 Division 4 whereby restitution and compensation orders may be made; under the provisions of Part 4 Division 1 fines may be imposed with or without a recorded conviction; under Part 5 Division 1 probation orders may be made without a recorded conviction unless a term of imprisonment is ordered in conjunction, in which case a conviction must be recorded and community service orders under Part 5 Division 2 may be imposed without recording a conviction. However, by s. 111 of the Act intensive correction orders can be imposed but only when a conviction is recorded and, under s. 144, terms of suspended imprisonment of less than five years can be imposed but only when a conviction is recorded.

One aspect of the Act's general policy seems to be summed up by s. 152 which declares that imprisonment can be ordered only when a conviction is recorded.

This survey makes it clear that a conviction for dangerous driving, even for dangerous driving causing death, is one where there is a statutory discretion not to record a conviction but this depends upon the other terms of the sentence. If a term of imprisonment is imposed then a conviction must be recorded. This does not, of course, answer the question whether a sentence imposed without a recorded conviction, and hence theoretically covered by the discretion, may nevertheless in its particular circumstances be judged inadequate for the very reason that the recording of a conviction is absent. I accept that it is possible that the absence of a recorded conviction in some circumstances may, of itself, be enough to persuade an appeal court of an inadequacy of a sentence. However, the Attorney-General's appeal must face a considerable obstacle when, in the case of a young first offender, it is accepted that it was not improper to impose no custodial term but yet the contention is that the only proper course was to record a conviction.

Although, in the present case, I would conclude that it should be adjudged to be within the scope of the judge's discretion not to have recorded a conviction, it is, to an extent, unsatisfactory simply to pronounce in that fashion and offer no further guidance to sentencing courts. This would be to leave the matter in the area of untrammelled discretion with the possibility that random variations might occur. To the extent that in the discretionary area of sentencing some degree of consistency can be achieved, it is better to aim for it. Even accepting that the exercise of sentencing discretion can never be fully circumscribed by an appeal court's pronouncements and that policy must necessarily find expression by degrees and development of sentencing guidelines proceed in an incremental way, certain things can be said. Where the recording of a conviction is not compelled by the sentencing legislation, 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 follow certain specified matters which are not exhaustive of all relevant circumstances. In my opinion nothing justifies granting a general predominance to one of those specified features rather than to another. They must be kept in balance and none of them overlooked, although in a particular case one, rather than another, may have claim to greater weight. It would, however, in my opinion, not be correct to say that because "age" finds mention, the principle that should be applied is that only youthful offenders should escape a recorded conviction or because "chances of finding employment" are mentioned, a person not likely to be seeking employment should never be spared or because "nature of the offence" is referred to, only those offences at the more trivial end of the sentencing scale should be regarded as qualifying. Indeed, an offender's previous unblemished character and his assumed desire to maintain his social well-being and community reputation may be able to be regarded as giving him fair claims to consideration in the matter, even if he is of a mature age. A fifty year old first offender, not in employment, is not automatically excluded from the benefit of the terms of s. 12. Only over time will a more comprehensive pattern and approach be established. It would not be correct to decide the questions arising in the current era solely by reference to past sentencing practice and the narrow discretions which then applied. In my opinion the appeal should be dismissed.

This is an Attorney-General's appeal against sentence. The respondent was convicted, after a trial, of dangerous driving causing death, and ordered to perform 220 hours community service. He was disqualified from holding or obtaining a driver's license for 3 years but no conviction was recorded.

Counsel for the prosecution below suggested to the judge that it was open to his Honour to impose a non-custodial sentence and that the judge did. Before this Court, counsel for the Attorney, Mr Bullock, explained that in view of the attitude taken below he could not now press for a custodial sentence; however, Mr Bullock did not concede that a non-custodial sentence would, but for that attitude, have been a proper course.

The question became, then, only whether the judge was right in declining to record a conviction; as will appear, I cannot accept that his Honour exercised his discretion correctly. It was conceded, correctly as it seems to me, that the Attorney may appeal against a refusal to record a conviction. The Court's discretion is presently governed by s. 12 of the Penalties and Sentences Act 1992 and our attention was drawn to the fact that subs. 2 of that provision obliges the Court to have regard to all of the circumstances of the case in considering whether or not to record a conviction; some particular circumstances are mentioned including the nature of the offence. Mr Bullock's argument was simply that in the whole of the circumstances the offence of which the respondent was convicted was too serious to warrant such lenient treatment as he received.

The respondent's vehicle, a Holden Monaro, collided with another vehicle at a T-junction at the top of a hill. The other vehicle came into the junction from the respondent's right and was in the process of turning right when struck; the respondent had intended to drive on through the junction. He told the police that he thought the speed limit at the place in question was 100 km per hour, but that he was travelling at about 60 km per hour. There was evidence suggestive of a substantially higher speed and indeed it is most unlikely, having regard to the physical evidence of what was found after the collision, that the respondent's speed could have been as low as he said. Exhibit 2, a plan prepared by the police, (read with the evidence at page 30) shows that the appellant's vehicle left skid marks about 49 metres in length and that the point of impact was about half way along those skid marks. The other vehicle finished on the footpath 20 metres further on; there were extensive tyre scuff marks on the road from the point of impact to the respondent's vehicle and then on to the other vehicle. Two people in the other vehicle died as a result of the collision.

These facts are suggestive of a collision which involved considerable force, and the length of the brake and skid marks, coupled with the fact that the respondent's vehicle was found well beyond the point of impact, are suggestive of high speed. The judge's finding was that the respondent's speed at the time of the accident was -

"...at least 90 km/h, and it seems to me to be most likely indeed your speed was significantly higher than that."

A video showing the signs which faced the respondent as he approached the scene of the accident was tendered and I have studied it. The video, together with the evidence (p. 39) shows that there was a sign at the base of the hill showing a speed of 80 km per hour, on the way up the hill there was a very big sign, red in colour, reading "REDUCE SPEED NOW"; and at that point there was another speed sign indicating 60 km per hour. Further on there was a yellow sign indicating the presence of the junction and the crest of the hill. There was another sign shown in the video which may be relevant, but its content is not discernable. It is enough to note that the big red sign should have been sufficient to alert any person to the undesirability of travelling at excessive speed at that point. In addition, it is clear from the video and from the evidence that because of the convexity of the hill the visibility of a person approaching the junction, as the respondent was, was rather limited. The witness Ruller gave evidence of the distance at which a person in a vehicle coming up the hill, as the respondent was, would be able to see an object 1.15 metres above the road surface at the junction; it was about 68 metres only.

It is common experience that a driver, even a person who is ordinarily quite careful, can fail to notice standard road signs. The large red sign shown in the video and described in the evidence was not, however, one of an ordinary kind. It is very difficult to think that the accident happened because of a failure on the part of the respondent to see that sign, which could hardly have been more prominent. In my opinion the proper way to describe the respondent's principal fault was that he ignored signs indicating that it was necessary for him to proceed with care, and in particular the large red sign I have mentioned. If he did slow down at all, he was still travelling at such a speed that he must have had difficulty avoiding collision with any vehicle coming out on his right at the top of the hill.

The learned primary judge said that his mind had vacillated, but in the end the matters mentioned in s. 12(2)(b) and (c) "would all lead me to conclude that this is a case where it is not appropriate to record a conviction". Those matters are :

The respondent was, it appears, accepted as a person of good character and he was 22 years of age when convicted. It was not suggested to us that there was any special reason to think that recording a conviction would affect his present employment, although of course it could bring other disadvantages. If his Honour meant to convey that the matters mentioned in subparas. (b) and (c) tended to support a conclusion that there should be no conviction recorded, I respectfully agree. But I have come to the view that the offence committed was too serious, despite the respondent's not having received a custodial sentence for it, to make the course his Honour took a proper one. Two people were killed as a result of driving which, as it seems to me, was of a kind calculated seriously to endanger other road users, at a point where it was quite plain that special care was necessary. We were referred to Lang (Court of Appeal, unreported, 23 July 1992) as an example of a case in which, on appeal, the Court interfered so as to set aside an order that a conviction be recorded. Although there were some bad features of that case, the offender there was not yet 15 years of age. This respondent was, in my view, old enough to have known better than to imperil others' lives as he did, with disastrous consequences for them. It is true that there may possibly have been a degree of inattention on the part of the driver coming from the respondent's right, but the respondent's speed was such that at the crest the respondent's vehicle would have come into view only very briefly before the collision.

I would therefore allow the appeal, by varying the order made by the learned primary judge so as to record a conviction on the indictment.

This is an appeal by the Attorney-General against sentence. Various grounds are set out in the notice of appeal but the only ground relied upon was ground 6 viz. that a conviction should have been recorded. The learned sentencing Judge imposed a community service order and licence disqualification but declined to order that a conviction be recorded. Counsel for the respondent conceded that because of the definition of "sentence" in s. 4 of the Penalties and Sentencing Act 1992 ("the Act") which commenced on 27th November 1992, an appeal against a refusal to record a conviction was competent, but unusual.

I have read the reasons of Pincus JA. In view of his survey of the facts leading up to the collision and its consequences, including the tragic death of two persons as a result, it is not necessary to refer to all of the facts in detail. However, certain additional facts should be mentioned.

There was no question of alcohol involved. The respondent had the right of way on the "T junction" where the collision occurred, notwithstanding that the other vehicle entered the "T junction" from the respondent's right: see Traffic Regulations 1962, reg. 34(2) which has been the position in Queensland since 7th February 1981, in line with the position in other States of Australia for many years. That regulation provides as follows:

"When a vehicle has entered or is approaching a three way intersection other than a roundabout from a terminating carriageway and there is danger of collision with a vehicle which has entered or is approaching the intersection from another carriageway, the driver of the vehicle entering or approaching the intersection from the terminating carriageway shall give way."

"Where these Regulations require a driver to give way to a vehicle or person, the driver shall, in circumstances where if he proceeded there would be a reasonable possibility of his colliding with that vehicle or person or otherwise creating a dangerous situation, slow down to such an extent, or stop and remain stationary for such a time as is necessary to allow that vehicle or person to continue on its or his course without risk of collision or as is necessary to avoid creating a dangerous situation."

This is a continuing and absolute obligation. It does not depend upon the presence of a "give way" or "stop" sign facing the driver in the terminating carriageway. The evidence shows that there were none. There were no relevant "give way" or "stop" signs facing the respondent as he approached the intersection so as to alter his "T junction" right of way: reg. 20(8).

Also, the learned sentencing Judge concluded (this clearly appears from the photographs and other evidence) that the respondent had been driving along an open country road, "Main Road". It was sealed and the major road of the two. Talasea Drive, which joined Main Road on the respondent's right, was a gravel road. There was no other traffic on Main Road at the time. The collision occurred about 4.00 p.m. on 25th April 1992.

His Honour said that the respondent either did not see or did not take into account the warning signs which faced him. His Honour concluded that the respondent was not deliberately engaging in what might be regarded reckless driving. He was not prepared to characterise the case as being one of momentary inattention but concluded that it was not too dissimilar from that type of case.

The visibility of a driver approaching uphill and along the "T" of the junction, as the respondent did, was very restricted. So also was the visibility of a driver approaching the "T" of the junction from the respondent's right. The intersection, located as it was at or just over the crest of a long hill, was described as an extremely bad one which contributed to the unfortunate collision. Constable Oldham, who gave evidence, said that this was a very blind hill with very poor visibility, and that it had a reputation. He also said that Talasea Drive has since been closed off.

These factors of course do not excuse dangerous driving, but the fact that this was a "T junction" with restricted visibility both ways, also required particular care on the part of the other driver who was entering onto it from Talasea Drive, to ensure that she kept a proper lookout and to ensure that she gave way to all vehicles approaching from either direction. She knew that it was a "T junction" and had used Talasea Drive on a few prior occasions. She would have been aware of the nature of this intersection.

There was no evidence that the respondent previously knew that it was a dangerous intersection or that there was a street joining Main Road on the right, just over the crest of the hill. The conduct relied upon by the Crown was that he consciously drove at an excessive speed. He was also under an obligation to observe and take notice of the various signs as well as the painted islands in the centre of Main Road near the top of the hill as an indication that there was an approaching situation which required care. However, I agree with the observations of Pincus JA, that failure to observe normal signs is a common failing in ordinarily competent and careful drivers. One sign was large and prominent.

The other driver gave evidence. She was a pensioner, and she, her husband and her husband's sister had been sightseeing. Her intention was to proceed from Talasea Drive on to Main Road (the road along which the respondent was driving) then turn to the right. This would have involved her travelling in the same direction as that in which the respondent was driving. She said that she stopped, looked and indicated. She looked both ways and had the blinkers on, on her car. She saw nothing coming so she drove out. At no time before the collision did she see the respondent's car approaching from the left.

She did not say that after she had first looked to the left before she commenced to move out, she looked again in that direction as she actually entered upon the intersection to make her turn to the right in Main Road. From a stationary position, her speed would not have been so great that she could not have stopped in time, had she looked again to her left as she proceeded across the broad face of the intersection and before she actually moved onto the opposite side of Main Road from her point of entry into the path of the respondent's car.

Despite some restriction of her visibility, she should have been able to observe the respondent's car before she reached that side of the carriageway. This is confirmed to some extent by the respondent's statement to Constable Oldham that he saw this car "coming out of nowhere". He braked and skidded into it. The plan, ex. 2, shows a long skid mark before the point of impact, indicating that he saw the other car before the impact but could not stop in time before of the speed at which he was travelling.

The scale plan, ex. 2, and the photographs, ex. 3, also show that where Talasea Drive joined Main Road, there were wide painted traffic islands in Main Road separating each lane in that road and that her car had to travel some distance from its original stationary position before it passed between the islands and onto the side of Main Road on which the respondent was travelling.

I agree with Pincus JA. in describing her driving as involving momentary inattention. It probably contributed to the collision. Along with the topographical features, these were factors which the learned sentencing Judge was required to take into account by the new Act. Section 9(2)(d) provides that the court, in sentencing an offender, must have regard to the extent to which the offender is to blame for the offence. Section 9(2)(g) also requires the court to have regard to the presence of any aggravating or mitigating factor concerning the offender.

It should be observed however that the approach of the respondent's vehicle from the left up the hill and to the crest at high speed meant that there was little time available to her to see it after she had initially looked both ways, indicated with her blinkers, and pulled out onto the intersection, depending no doubt on the angle at which she pulled out in preparation for her turn to the right and whether her visibility to the left was in any way affected by her front seat passenger. Nevertheless, her obligation was to look both ways along the "T" of the intersection and to ensure that she gave way to vehicles approaching from either direction.

The learned sentencing Judge accepted that the speed of the respondent's vehicle was at least 90 kilometres per hour and most likely significantly higher than that. This conclusion is justified, having regard to the evidence generally including the long skid marks before and after impact, and position of the vehicles.

His Honour considered all of the circumstances surrounding the offence and commented upon the concern which members of society must have about driving which is characterised as dangerous. His Honour said that every right thinking member of society is concerned at the road toll and in appropriate cases, courts must by their sentences reflect society's concern and condemnation of criminally bad driving.

His Honour took into account the fact that the respondent was a young man, 22 years of age at the date of the accident, and is now 23 years of age. He is single and living at home with his mother. He has no previous convictions of any sort. He has a good employment record. He is employed as a watchmaker at a jewellers firm at Pialba, and has been in that occupation for six years since leaving school. He is completing an apprenticeship. A number of references were tendered to the learned sentencing Judge which spoke highly of him. These facts involved a consideration of the matters contained in s. 9(4) of the Act. That sub-section provides as follows:

"4). A court may impose a sentence of imprisonment on an offender who is under the age of 25 years and has not previously been convicted only if the court, having

b) taken into the account the desirability of not imprisoning a first offender;

is satisfied that no other sentence is appropriate in all the circumstances of the case."

See also s. 9(2)(a)(i) which provides that a sentence of imprisonment should only be imposed as a last resort and s. 9(2)(a)(ii) which provides that a sentence that allows the offender to stay in the community is preferable. Section 9 also sets out various other guidelines to which a court sentencing an offender must have regard including the two sub-sections already specifically referred to above: s. 9(2)(d), (g).

During submissions on sentence, the learned Crown Prosecutor said:

"I haven't got comparable sentences, Your Honour, but I think I can say this fairly confidently: Had there been alcohol on board, had there been an adverse finding in that sense, then I think Your Honour's hands would have been tied with that discretion Your Honour could exercise. In this case there is no suggestion of alcohol. It would appear, Your Honour, that it is open for Your Honour to impose a noncustodial sentence. I think it is fair to say, and I have to be fair - as I say, it appears that the incident itself will cause him some anguish for some time, I would think and his family.

Putting it as best as I can for him, Your Honour, there is a range, and that range includes noncustodial sentences. It includes such things as a lengthy community service, for instance, and a case such as this Your Honour, of course, can suspend - disqualify him from driving for some period and that may also have some effect on him and bring home to him that those in charge of motor vehicles must exercise the greatest care, and it is clear that the jury in this case accepted what Mr. Ruller had said. They accepted that he has come over the hill at some speed - at least 90. It may have been well more than 90. In my respectful submission, it had to be more than 90 and, unfortunately, he had neither time nor the distance to bring the other car to rest to avoid this collision. As I say, Your Honour, I don't see much purpose in - looking at it in a different way, much purpose in sending this young fellow to prison. I will say this: it is a situation that, in my respectful submission, calls either for a substantial fine or community service, perhaps the maximum, and a lengthy suspension or lengthy disqualification of his licence. I think that is the fairest I can be."

This concession was made by the learned Crown Prosecutor, having regard to all of the circumstances of the trial which had just concluded. A noncustodial sentence was asked for by counsel on behalf of the respondent. The learned sentencing Judge ordered that the respondent perform 220 hours of unpaid community service pursuant to the provisions of ss. 101, 103, of the Act. The maximum which could have been ordered was 240 hours: s. 103(2), so in this respect, the number of hours of service to be performed was fairly substantial. This order involved the respondent putting something positive back into the community. He was disqualified from holding or obtaining a driver's licence for three years, but His Honour declined to record a conviction.

Having regard to the provisions of the Act referred to as well as to all of the circumstances of the case, and even apart from the concession made by the Crown Prosecutor at the trial, it cannot be said that the order of community service imposed coupled with the licence disqualification, rather than a custodial sentence, was not the proper exercise by the learned Judge of the sentencing discretion or that these orders failed to have due regard to the serious nature of this offence.

On the question of exercise of the discretion conferred upon him pursuant to s. 12(1) of the Act either to record or not to record a conviction, His Honour said:

"I must give regard to all the circumstances of the case, including: the nature of the offence, the offender's character and age, and the impact that recording a conviction will have on the offender's economic or social well-being, or chances of finding employment. Insofar as the section does descend to particularity, it will be seen that the first has regard to the nature of the offence found to have been committed, whereas the other elements seem to direct one's attention to matters personal to the accused. My mind vacillated through the course of submissions, but in the end it does seem to me that those matters mentioned in sub-paragraph (b) and (c) in sub-section 2 would all lead me to conclude that this is a case where it is not appropriate to record a conviction.

So far as sub-paragraph (a) is concerned, one must of course concede that dangerous driving is a serious offence and the circumstances of aggravation, of course, makes it even more serious. However, it is not the type of case in which one is dealing with people who one usually associates with those who appear before the criminal courts. They are not offences of dishonesty or violence or greed and those types of vices.

In all the circumstances of this case it does seem to me to be appropriate that I do not record a conviction, and that is the course I propose to adopt."

It should be said that merely because a driver convicted of dangerous driving causing death is not guilty of an offence of dishonesty or violence or greed, a conviction should not be recorded. His Honour did not say that dangerous driving cases do not have convictions recorded. As appears from his reasons, his mind vacillated, and in the circumstances of this case he seemed to be saying no more than that these type of offences did not have the same type of moral fault as attached to dishonesty and some other criminal offences.

The circumstances surrounding the commission of the offence of dangerous driving are infinitely various and in some cases it will be entirely appropriate to record a conviction. It must depend upon the particular circumstances of each case. See for example the decision of the Court of Appeal in R. v. Lang (C.A. No. 181 of 1992, 23rd July 1992), which involved three offences, one of dangerous driving causing death, one of causing grievous bodily harm and one of unlawful use of a motor vehicle. The offender was a young boy almost 15 years of age. He was unlicensed and unlawfully using his father's car. It appears to have been a more sustained course of dangerous driving than in the instant case. It involved speeds of between 110 kilometres per hour to 120 kilometres per hour in a 60 kilometre per hour zone apparently in a suburban environment. The sentencing Judge had imposed a care and control order under the provisions of s. 62(1)(g) of the Childrens Service Act which involved the recording of a conviction against him under that Act. The Court of Appeal unanimously concluded that a conviction should not be recorded and that in all of the circumstances, a supervision order with the boy under the custody and care of his father was more appropriate. The consequence was that no conviction was then recorded. He had no prior criminal history. The act was regarded as one of stupidity. He realised the seriousness of his conduct and the court concluded that there was no reason to suppose that he would not conduct himself appropriately in the future.

"In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including -

c) the impact that recording a conviction will have on the offender's -

The discretion is at large. The considerations are not limited to the matters contained in paras. (a), (b), and (c). They are inclusive. There is nothing in the Act which requires more weight to be given to any one factor than to the others. Relative weight depends on the circumstances of each case. Nor is there any requirement that considerations of character and age are limited to young persons, although in such a case, there may potentially be longer term effects of a recorded conviction on a young person impacting on his character, economic or social well-being, or chances of finding employment. An older person may also be severely affected in the same way, and particularly in a case where such a person has otherwise had an impeccable character throughout his or her life.

The discretion now conferred by s. 12(1) is a discretion to record or not record a conviction as provided by the Act. Such a discretion is conferred in a wide variety of cases including the situation where a community service order is made: s. 100, whereas under s. 252 of the Corrective Services Act 1988, which was the operative provision with respect to community service orders made prior to the coming into operation of the Act on 27th November 1992, there was no discretion whether or not to record a conviction. By the operation of that section, a conviction was deemed not to be a conviction for any purpose other than for the limited purposes referred to in subparas. (d) to (h) thereof. For all practical purposes, the effect of that section meant that there was no recorded conviction. Had this offence, which occurred on 25th April 1992, been dealt with before 27th November 1992 and a community service order made, no conviction would have been recorded.

Whilst the Act now gives a discretion whether or not to record a conviction in many cases, s. 12(5) now also confers a discretion on a court sentencing an offender for a subsequent offence whether or not to disregard a conviction that was ordered not to be recorded in accordance with the Act, unlike the effect of s. 252(h) of the Corrective Services Act 1988, which apparently made consideration of the earlier unrecorded conviction mandatory in later proceedings for a further offence. Also if the applicant breaks any condition of the community service order or commits any further offences, he not only commits the offence of breach of that order but may also be dealt with then for the original offence. By virtue of s. 12(6), if he is so dealt with, a conviction must then be recorded with respect to this offence. The fact that no conviction has been recorded in this case would serve to provide an incentive to the respondent to ensure compliance with the order and also to ensure that he does not commit further offences.

This does not mean that in no case where a community service or probation order is made, it would be appropriate to formally record a conviction. The Act now makes it clear that it is a matter of discretion, although if the offence is of such a nature as to warrant the making of a probation order or community service order, this would be a factor to be taken into account in deciding whether or not to record a conviction: s. 12(2)(a).

Prior to the coming into force of the Act on 27th November 1992, all convictions with few exceptions were formally recorded in the sense that they permanently appeared on an offender's criminal history and were of potential use for various purposes. One exception was provided for by the former s. 657A of the Criminal Code (Trivial Offences). This section has now been omitted and replaced by Division I of Part III of the Act. Another exception related to offences resulting in a probation order or community service order by force of s. 252 of the Corrective Services Act 1988. That Act repealed the Offender's Probation and Parole Act 1980-1983 which contained similar provisions. For some years prior to 27th November 1992, this was a statutory recognition of the fact that if the offence was of such a nature as to justify this type of order, no conviction was to be formally recorded. This policy has now been replaced by the Act which confers a discretion whether or not to record a conviction in such cases as well as in many other situations.

One of the uses to which a previous conviction may be put (whether recorded or not) is that it may be considered by a later sentencing court should the respondent commit further offences: s. 12(5). So the fact that a conviction is not recorded does not necessarily defeat this purpose. Another purpose is that the formal recording of a conviction is in itself an element of punishment of the offender and may encourage him not to engage in further criminal activity. Conceivably it could act as some deterrence to others if it becomes known. It goes on his criminal history and is a permanent mark against his character. Section 12(b), (c) now expressly require the court, in deciding whether or not to record a conviction, to have regard to those factors. See also s. 11 which contains matters a court may consider in determining the offender's character. Another purpose is the use to which a recorded conviction may be put by potential employers, or possibly by some countries in granting a travel visa. Section 12(c) also embraces such factors to which the court must now have regard in making the relevant decision.

From the submissions made on behalf of the appellant, it appears that the Crown, now having second thoughts about the concession deliberately made by the learned Crown Prosecutor at the trial that a non-custodial sentence was the appropriate penalty, urged that a conviction should be recorded so as to represent an overall heavier penalty than that imposed by the learned sentencing Judge. As indicated above, it cannot be said that the orders made by His Honour were not appropriate orders in the circumstances of the case. The formal recording of a conviction may be a proper order in an appropriate case, and particularly where deliberate conduct is involved or where the circumstances of the particular offence require such a course.

In the present case however, the respondent was a young man of previous impeccable character and work record. He realises the seriousness of the offence. As in R. v. Lang (supra), there is no reason to think that he will not conduct himself appropriately in the future. This was not a case as His Honour held of deliberately reckless driving on an open country road with no other traffic on Main Road at the time. No alcohol was involved. The learned sentencing Judge regarded the conduct as not too dissimilar from one of momentary inattention. The collision occurred not only due to his high speed and inattention to signs, but also due to other unfortunate factors not attributable to him.

His Honour gave due weight to all of the circumstances of the offence and to all other circumstances which he had before him, including the tragic consequences. His Honour was also entitled in this particular case to place considerable weight on the respondent's good character, age and record, the impact which a recorded conviction might have for life on his economic or social well-being, and his prospects of finding employment in the future. His Honour properly took into account all of the factors referred to s. 12(2) of the Act.

In these circumstances, whilst it may also have been open to the learned sentencing Judge to record a conviction, as his reasons indicate, it cannot be said that in the result, his discretion miscarried in all of the circumstances of the case. The court is reluctant to interfere on an Attorney's appeal unless the sentence imposed falls in an obvious way for correction: R. v. Osmond, ex parte Attorney-General [1987] 1 Qd.R. 429 per Andrews C.J. at 432, per Macrossan J. (as the Chief Justice then was) at 437-8.

Offenders Probation and Parole Act 1980

Penalties and Sentencing Act 1992

Traffic Regulations 1962

Corrective Services Act 1988

Offender's Probation and Parole Act 1980

At a glance

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Legislation Cited (5)