Case Note QLD – Kemp v The Commissioner of Police [2021] QDC 30
The ongoing punishment of a conviction being recorded can be greater than the gravity of the offence
Murray Torcetti Lawyers are criminal lawyers in Caboolture. We write our own case notes from recent criminal decisions for internal purposes.
However, unlike your annoying sibling, we don’t mind sharing.
Facts: The applicant put $15.06 worth of fuel in her car, went to pay but had forgotten her wallet and made arrangements to attend the next day to pay. After two weeks the service station made a complaint to the police and she was charged with stealing.
The District Court inferred that when speaking with police she was suffering from addiction, mental health issued and financial problems and had forgotten to return to the service station. When attending court she was mistakenly advised by court staff she did not need to appear.
The Magistrate convicted her in her absence without a written plea of guilty and fined her $400.00. The Magistrate when recording a conviction reasoned the offence was “prevalent” and “He noted the appellant made admissions but said that she had shown no remorse by not having entered a written plea of guilty”.
The appellant was 25 years of age and had no previous convictions.
Finding: The District Court found there has been remorse expressed to the police. Loury QC DCJ of the District Court when deciding it was excessive to record a conviction found:
- It has been accepted that there is at least some social prejudice which attaches to the recording of a conviction.
- That prejudice may result in the offender being continually punished in the future in a way not commensurate with the punishment which is just for the offending. It might also stand in the way of rehabilitation, particularly by making it difficult for an offender to obtain employment (See R v Briese; ex parte Attorney-General (1988) 1Qd R 487.)
- Section 12 of the Penalties and Sentences Act 1992 requires only that the Court consider the impact that the recording of a conviction will have on the offender’s chances of finding employment.
Notes for practice:
- Tidy turn of phrase for submissions about not recording a conviction: “the continuing social prejudice of a conviction is not proportionate to the charges”.
Because lawyers love a good disclaimer – here is ours – It boils down to: If you need legal advice see a lawyer. Dr Google isn’t going to prescribe you meds if you are sick, Google LLB isn’t going to give you advice or information specific to your situation.
If you need legal assistance. See a lawyer. We are lawyers, you could see us! Call our office on 07 5414 4209.
You might not read it, but we will rely on it if you try and sue us (smug face).
