Larsen v Read

[1996] QCA 547

COURT OF APPEAL

[1996] QCA 547

FITZGERALD P McPHERSON JA MOYNIHAN J

CA No 449 of 1996
M P LARSEN
v.

YVETTE ANNE READ Applicant

BRISBANE
..DATE 03/12/96
031296 T12/FLC11 M/T COA300/96
McPHERSON JA: The applicant pleaded guilty in the Magistrates
Court and was sentenced for offences of possession of a
dangerous drug namely methylamphetamine; failure to properly
dispose of a syringe; possession of tainted property, namely a
mobile phone; and unlicensed possession of a weapon, that is to
say, nunchakus. She was sentenced to perform 180 hours
community service and convictions were recorded in respect of
all four offences. Very briefly, the offences were discovered
when police carried out a search of a house in which she lived
with a number of other persons whom she claimed were drugs
users. She applies for leave to appeal against the sentence on
the possession charge in so far as a conviction was recorded.

The amount of pure amphetamine involved was small; but there was evidence that she had been using amphetamine, apparently by injecting her arms, for a period of some two months. The offence involving failure to dispose of the syringes is established by the discovery of used syringes on the dressing table neither of which was in a sharp container, and one of which was not capped and had the needle exposed. So far as the mobile telephone is concerned, it was possible to say that it had been stolen; but the applicant claimed that she had bought it in a pub some months before, while apparently conceding by her plea of guilty that she was aware that it was "tainted".

The nunchakus were explained as having belonged to a person who studied martial arts and had lived at a Bellbird Park address with her some time before. When she left that address, she packed them into her belongings and took them to the house which the police searched. She said she had simply not got round to 031296 T12/FLC11 M/T COA300/96

giving them back to the owner by the time the search was
conducted.

When convicted the applicant was 24 years of age being some two and a half months short of her 25th birthday. She had been married, but was separated and had no children. She had no prior convictions and she pleaded guilty. On the other hand, she had at first denied that the amphetamine was hers while admitting that she was an amphetamine user. She had numerous recent injection marks in her arm, and there were 32 unopened syringes and 28 phials of water in her bedroom when it was searched.

The Magistrate in sentencing her decided to record the convictions. The question seems to have arisen only at the last stage of the sentencing process when, after having explained to the applicant what her duties were in respect of the community service order, counsel for the defence asked the Magistrate whether he intended to record a conviction. To that the Magistrate replied:

"I have noted on the record that the conviction will be recorded in respect of each of those matters. I take into account that it is suggested to me you will be going back into the workforce and that you will be seeking not to have that conviction recorded for that purpose."

But, he went on, he took into account the types of offences, the serious nature of the offences, and also the reasons put before him for not recording the conviction. He added he was satisfied in all the circumstances that a conviction should be recorded, and accordingly he did record the conviction.

031296 T12/FLC11 M/T COA300/96
The application before us did not attempt to identify any error
in the exercise of the magistrate's discretion in deciding to
record convictions apart from the very general complaint that
the age and circumstances of the applicant and the nature of the
offences were such that it was manifestly wrong to record a
conviction in this case. Some emphasis was placed before us on
a statement in the Court below that the applicant did intend to
return to the workforce; but nothing more substantial than that
was put forward to suggest that she had a particular form of
work in mind, or a particular job to go to.

The offences are, it may fairly be said, not the result of useful indiscretion or momentary impulse. Some reliance was placed on the decision of the Court in R. v. Fullalove (No. 155 of 1993) but I think the case here is different in that in Fullalove the offence consisted only of possession of two small amounts of cannabis weighing 3.1 grams and 2.2 grams. It is true that the applicant in that case was a 49-year-old woman, with convictions for shop-lifting and stealing some years before; but it should also be added that she was evidently a disabled person who was confined to a wheelchair. The Magistrate in that case had ordered the applicant to enter into a two-year good behaviour bond when, as the majority in Fullalove pointed out, he could as easily have acted under section 19 of the Act, which would not have involved the recording of a conviction.

In any event, in my opinion the present case is one in which the offences were not so slight or so trivial as to justify the conclusion that the Magistrate manifestly ought not to have recorded the convictions against the applicant. The offence of 031296 T12/FLC11 M/T COA300/96

being in possession of tainted property is one that carries a two-year maximum, and it is in my view not possible to view it as so slight or inconsequential as to require that the Magistrate ought to have exercised his discretion in the way now contended for.

In all the circumstances I can see no reason why we should interfere with the Magistrate's discretion; and, unless we are persuaded (which I am not) that the decision he made was obviously wrong, I do not consider that it is one with which we either can or ought to interfere in this Court. I would therefore dismiss the application.

THE PRESIDENT: I agree.

MOYNIHAN J: So do I.

THE PRESIDENT: The application is refused.

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