Higgs v The Queen

[1999] FCA 1562

FEDERAL COURT OF AUSTRALIA

Higgs v The Queen [1999] FCA 1562

MARK ANTHONY HIGGS v THE QUEEN
No. A45 of 1999

WILCOX, EINFELD and KENNY JJ
CANBERRA
9 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A45 of 1999

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	MARK ANTHONY HIGGS Appellant
AND:	THE QUEEN Respondent
JUDGE:	WILCOX, EINFELD and KENNY JJ
DATE OF ORDER:	9 NOVEMBER 1999
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A45 of 1999

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	MARK ANTHONY HIGGS Appellant
AND:	THE QUEEN Respondent

JUDGE:	WILCOX, EINFELD and KENNY JJ
DATE:	9 NOVEMBER 1999
PLACE:	CANBERRA

EXTEMPORE REASONS FOR JUDGMENT

1. THE COURT:   This is a severity appeal consequential on a decision of Miles CJ, in the Supreme Court of the Australian Capital Territory, to record a conviction, but to release the appellant, Mark Anthony Higgs, without the Court passing sentence, on his giving security by way of recognizance (self in the sum of $2,000 without surety) to be of good behaviour for three years and to pay compensation of $1,000 to the victim of the offence (assault occasioning actual bodily harm).

2. The sole issue raised by Mr Lasry QC, on behalf of the appellant, was the contention that his Honour erred in ordering that a conviction be recorded.  Mr Lasry asked what utility there was in taking that step, especially having regard to the fact that this might prejudice the appellant's career as a professional cricketer.  He submitted the judge should have dealt with the matter under s556A of the Crimes Act and elected not to record a conviction.

3. We do not think the question posed by Mr Lasry is the correct starting point.  The recording of a conviction is the usual result of a guilty verdict or a plea of guilty to the offence charged, the option being available to the sentencing judge not to take that step, having regard to the matters set out in s556A.  The sentencing judge in this case considered an application by counsel for the appellant that he take that course, but decided not to do so.

4. Mr Lasry has not been able to point to any error of law or principle or any failure to have regard to a material matter.  We see no basis for interfering with the sentencing judge's exercise of discretion.

5. The appeal must be dismissed.  The Court so orders.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Einfeld and Kenny.

Associate:

Dated:             9 November 1999

Counsel for the Appellant:	L Lasry
Solicitor for the Appellant:	Saunders & Company
Counsel for the Respondent:	R Refshauge
Solicitor for the Respondent:	Director of Public Prosecutions
Date of Hearing:	9 November 1999