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Judge quashes conviction for failing to appear after man travels abroad to funeral

A Sunshine Coast judge has quashed a conviction recorded against a man who failed to appear in court because he had travelled abroad to attend his grandmother’s funeral.

Samuel Michael Faircloth, 21, was convicted and fined $1000 after pleading guilty in the Magistrates Court on 8 August 2018 to charges of driving under the influence of alcohol on 10 June 2018 and failing to appear in court on 24 July 2018.

At the time of his sentencing, the presiding magistrate said nothing about recording a conviction against Faircloth, however the bench charge was endorsed by the court and convictions were recorded on both counts.

On June 17, 2021, lawyers for Faircloth filed a notice of appeal under Section 222 of the Justices Act 1886 on the grounds that the recording of convictions had been manifestly excessive.

Maroochydore District Court Judge Vicki Loury QC, in granting the appeal in a decision published on Monday, was told that, in relation to the failure to appear in court, Faircloth had travelled to New Zealand to attend his grandmother’s funeral.

Judge Loury said: “(Faircloth) had sent an email to the court asking his matter be adjourned for that reason… (and when) he returned to Australia on 27 July 2018 and contacted the court (he) was informed that a warrant had been issued for his arrest.

“(Faircloth) then surrendered to the warrant to police. No submissions were made to the recording of convictions.”

The court was told Faircloth did not become aware a conviction had been recorded against him until he was required to undergo an annual ‘National Coordinated Criminal History Check’ by his employer, an insurance company.

Judge Loury said: “On 5 December 2019 a report was provided by the Australian Criminal Intelligence Commission which revealed that (Faircloth) had a disclosable court outcome for failing to appear.

“As a consequence of having a disclosable court outcome (Faircloth) was required to provide an explanation to his employer for that offence so that they could decide whether he would be able to retain his employment.

“He provided an explanation to his employer which was accepted. He was allowed to retain his position. (Faircloth) further states that he began looking for a second job at the beginning of 2021. A position he wished to apply for required that he have no criminal history. It was then he became concerned about the conviction having been recorded against him. At least by April 2021 the appellant had instructed solicitors to consider an appeal against the recording of the convictions.”

Judge Loury noted Faircloth was still a young man and had adduced evidence that his conviction for failing to appear is a disclosable court outcome in the provision of a Nationally Coordinated Criminal History Check Certificate.

She said he also adduced evidence that this disclosable court outcome had limited the opportunities available to him to obtain further employment.

“Because (Faircloth) is still a young man with good prospects of rehabilitation, the recording of a conviction in these circumstances would, in my view, result in (him) being continually punished into the future well beyond what is just in the circumstances,” Judge Loury said.

“The reason for (his) failing to appear, his attempt to avoid failing to appear and his prospects of rehabilitation would favour the conviction not being recorded.”

In her final orders, Judge Loury granted Faircloth’s application for an extension in time to appeal the magistrate’s decision and leave to adduce fresh evidence.

She also ordered no conviction be recorded against Faircloth in relation to the failure to appear in court charge and ordered he be paid $1800 in costs.

Read the decision.

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