Meehan v Johnston

[1996] QCA 357

[1996] QCA 357

COURT OF APPEAL

FITZGERALD P
LEE J

FRYBERG J

CA No 295 of 1996

MEEHAN

v.

DUGALD ALAN JOHNSTON

BRISBANE

..DATE 11/09/96
JUDGMENT
110996 T2/VT9 M/T COA218/96
THE PRESIDENT: This is an application for leave to appeal

against sentence. The applicant pleaded guilty and was convicted on his own plea on 12 June 1996 of stealing a compact disk player the property of the complainant. The offence occurred between

approximately 4 October 1995 and 18 October 1995 following which the applicant was convicted in the Brisbane Magistrates Court and

fined $400. He was also ordered to pay restitution of $600 within four months with a default period of six weeks imprisonment and a conviction was recorded.

Before this Court the sole point raised by the applicant is

whether or not the conviction should have been recorded and the

respondent concedes that it should not.

The facts can be very briefly stated. The applicant was a tow

truck driver who towed the vehicle of the complainant to a

holding yard after the engine of the vehicle had caught fire.

The applicant subsequently removed a compact disk player from the

complainant's vehicle while it was in the holding yard and threw it away. He threw it away because although he did not have

permission to do so, when he removed the player he found it was

inoperative. There is no dispute about that fact, that is to

say, that he threw it in an industrial waste bin. He obviously

gained no benefit from the theft.

Other matters raised by the applicant in support of his

application include his youth, he is 24 years of age; absence of a criminal history; plea of guilty at the earliest opportunity; good employment history; standard of education demonstrating his

desire to improve himself - he was educated to senior level at

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110996 T2/VT9 M/T COA218/96

school and has undertaken TAFE courses; and his willingness to offer compensation. It was correctly pointed out that the recording of a conviction in these circumstances would likely jeopardise his future employment opportunities and it was

submitted and agreed that the conviction should not have been

recorded.

In the circumstances it is unnecessary for the Court to say any

more of the matter. I agree with the concession. In the circumstances the application should be granted, the appeal allowed and the sentence varied by deleting the order that a conviction be recorded.

LEE J: I agree. I have nothing to add.

FRYBERG J: I agree.

THE PRESIDENT: The order of the Court is:

1. Application granted.

2. Appeal allowed.

3.   Sentence below varied to the extent that the order

recording a conviction is deleted.

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