Murray Torcetti Lawyers

Case Notes - The More You Know, The Better The Result For the Client

Common Assault and recording a conviction

Gonzalez v Commissioner of Police [2021] QDC 310

Murray Torcetti Lawyers are criminal defence lawyers who appear in Brisbane and Caboolture Courts. We write our own case notes from recent criminal decisions for internal purposes.

However, unlike your annoying sibling, we don’t mind sharing.

Facts: After a brief altercation, the defendant slapped the complainant to the left ear with an open hand. No injures were suffered. The last entries on his criminal history included one for AOBH and a breach of an DVO over 7 years ago. The existing entries did not prevent the appellant from obtaining employment. However, a fresh conviction being recorded will result in having to answer to the board. The appellant was fined $750 with a conviction being recorded. Three arguments were raised as to why recording a conviction made the sentence manifestly excessive:

  1. The impact on employment was not given sufficient weight;
  2. Excessive weight was placed on the appellants existing criminal history;
  3. The emphasis placed on the criminal history should not have outweighed the nature of the offence and the appellants economic wellbeing.

Finding: The appeal was refused. On the first ground, the magistrate noted the previous convictions had not preventing him from gaining employment, appearing before the board may not result in employment and the employer had in interest in knowing about further offending. The weight placed on the dated history for like offending was balanced by the time between the last entry and treated it as an aggravating factor, this ground also failed. Lastly, in balancing the factors is s 12 of the Penalties and Sentences Act and R v Briese; ex parte Attorney-General [1998] 1 Qd R 487 the sentencing court rightly balanced the considerations when recording a conviction.

Notes for practice:

  • Another case that sets out the tests for recording a conviction;
  • The Police might have this case at the ready for common assault charges where there is dated history – be ready to tango.
  • Don’t rely solely on very dated history to resist a conviction; and
  • Try and strengthen the argument about why a conviction will result in employment complications.

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