Prosecution reliance on previous convictions: Case study Constable SJ Miers v Blewett [2013] QCA 23

A person’s criminal history can have a significant impact on many aspects of your daily life; from your ability to obtain visas to travel overseas, employment opportunities with both private and government agencies to restrictions for the possession of your firearms. Section 12 of the Penalties and Sentences Act 1992 (Qld) outlines those factors that a judicial officer is to consider in exercising their discretion whether or not to record a conviction.

However, your criminal history also relevantly impacts upon the maximum penalties in relation to particular offences. Most commonly these are in respect of offences of breaches of domestic violence where, pursuant to the introduction of the Domestic and Family Violence Protection Act 2012 (Qld), the maximum penalties have been increased.

Under that legislation, the maximum penalty for such an offence pursuant to section 177 is 2 years imprisonment. However, if you have been convicted of the same offence within the last five years, the maximum term of imprisonment increases to 3 years imprisonment. The prosecution is required to serve upon you a Notice to Allege Previous Convictions to seek to increase the maximum penalty for the offence.

The recent decision of the Court of Appeal in Constable SJ Miers v Blewett [2013] QCA 23 can be seen as a broadening of the scope for which the prosecution may seek to rely on previous convictions to increase the maximum penalties for such offences that have previously been subject to a more strict approach.

The District Court decision of Washband v Queensland Police Service [2009] QDC 243, has often been relied upon by defendants in circumstances where the prosecution have failed to properly allege and serve notice on a defendant that they have previous convictions for the same offence.

In that decision, His Honour Judge Durward SC considered that a Notice to Allege Previous Convictions “must be correct in every particular if the Notice is to be effective”.1 His Honour held that in circumstances where the Notice did not correctly describe the offence that “the Notice on its face contains a significant error”.2 Accordingly, it was held in that decision that if the prosecution have not served and sought to rely on a valid Notice, a Magistrate cannot rely on any knowledge of previous convictions of the same offences for the purpose of imposing a greater penalty than a person would otherwise be liable.3 In the decision of Constable SJ Miers v Blewett, the Court of Appeal granted leave to hear an appeal following an appeal from the District Court in relation to a sentence imposed in the Southport Magistrates Court considering that “the issue is of general importance in the administration of justice in the Magistrates Court”.4 Justice of Appeal Fraser, with whom Holmes JA and Atkinson J agreed, expressly overruled Washband. 5 His Honour Justice Fraser considered circumstances where upon the hearing of the sentence before the Magistrate the prosecutor sought to tender the respondent’s criminal history.

The criminal history noted three convictions for summary drug offences, street type offences, a breach of bail and relevantly two offences for breaches of domestic violence. The prosecutor before the Magistrate did not seek to rely on the respondent’s criminal history for the purposes of increasing the maximum penalty, citing that the relevant Notice had not been served. The prosecutor outlined to the Magistrate that the only reason that the criminal history was tendered was to increase the penalty that otherwise was imposed. The Magistrate, in referring to Washband and another authority of Faulker v Morris [2010] QDC 33, considered that the criminal history was not admissible and accordingly the Magistrate in imposing sentence, did not take into account any of the convictions recorded in the respondent’s criminal history.

On appeal to the District Court, the applicant argued that the Magistrate erred in law in holding that the whole of the respondent’s criminal history was inadmissible, stating that at its highest, only the offences of breaches of domestic violence which were not subject to the relevant Notice should have been excluded. The learned District Court Judge accepted a submission from the respondent that criminal history in the form which was sought to be tendered to the Magistrate was correct at law. Accordingly, upon other considerations, the appeal was dismissed.

His Honour Justice Fraser, however, upon granting leave to appeal, considered that the “previous convictions should have been taken into account by the Magistrate if and to the extent that they were material to the sentences to be imposed for the current offences”.6 His Honour noted that section 9(2)(r) of the Penalties and Sentences Act 1992 (Qld) a judicial officer is required to consider a “relevant circumstance” such that a prior conviction may amount to such a circumstance. Further, His Honour considered that it was relevant in assessing a defendant’s character pursuant to section 11 and if there were previous offences which resulted in physical harm pursuant to section 9(4)(g).

The judgement reflects that the suggestion that where there is a requirement to serve Notice to a defendant of every circumstance that may influence the sentencing discretion in favour of a more severe penalty would otherwise have a “broad and impractical effect”.7 His Honour Justice Fraser considered that while it was correct for the Magistrate to refuse to take account of the two previous convictions to the effect of increasing the maximum penalty for the respondent’s current offence, the inadmissibility of the two previous convictions could not be avoided merely by the prosecutor not seeking to rely on them to increase the maximum penalty.

1 Washband v Queensland Police Service [2009] QDC 243, [45].
2 Washband v Queensland Police Service [2009] QDC 243, [45].
3 Washband v Queensland Police Service [2009] QDC 243, [49].
4 Constable SJ Miers v Blewett [2013] QCA 23, [12]
5 Constable SJ Miers v Blewett [2013] QCA 23, [15]
6 Constable SJ Miers v Blewett [2013] QCA 23, [15]
7 Constable SJ Miers