Meehan v Toman - [2005] QDC 434

[2005] QDC 434

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No BD682 of 2005

PATRICK JOSEPH MEEHAN AND MARIA JOANNE MEEHAN	Complainant/Respondent
and
VLADIMIR TOMAN	Defendant/Appellant

BRISBANE

..DATE 05/12/2005

ORDER

CATCHWORDS: Appeal from Magistrate to District Court under s.222 of the Justices Act 1886 against recording of a conviction - whether s.132C of the Evidence Act 1977 required the Magistrate to accept factual assertions not challenged - appellant a mature age first offender running a pawnbroking business not said to have been dishonest - whether Magistrate may have discriminated against the appellant because he was not young, misapplying s.12(2) of the Penalties and Sentences Act 1992.

HIS HONOUR: The appellant, Mr Toman, on the 10th of February 2005, pleaded guilty before a Magistrate to two charges. One was brought under the Second-hand Dealers and Collectors Act 1984, in respect of a transaction relating to the acquisition of second-hand goods, namely, a quantity of jewellery, Mr Toman failed to forthwith enter in the Register of Transactions, the particulars.

The other charge is brought under section 32(2) of the Pawn Brokers Act 1984 complaining that Mr Toman, "a licensed Pawn-Broker, failed to enter a fair and reasonable description of every article pawned in a transaction, namely, a quantity of jewellery".

The period of the charges was "between the first day of January 2004, and the 26th day of August 2004". The parties having agreed that it was appropriate to proceed by way of a single fine, the Magistrate made the following brief remarks:

"Well, it seems to me that a conviction should be recorded given the nature of the legislation that requires you comply with this particular requirement. There were compelling reasons why there should be accurate records kept and you should be well aware of what those compelling reasons are given the nature of the property with which you are dealing. In all the circumstances, one penalty is imposed in respect of the two offences and convictions are recorded, and you are fined a sum of $800, default - two months' imprisonment. You are allowed one month to pay. Thank you, and good morning."

I would observe that the default imprisonment ordered seems draconian and totally out of line with the scale of equivalents which is conventionally adhered to these days. The gravamen of the argument before the Magistrate was whether or not a conviction should be recorded.

The explanation of his Honour's comments is the popular understanding that businesses such as the appellant's are much resorted to by persons dealing in stolen property. That is the explanation for the legislative provisions which were admittedly breached - and not on single occasions, it is clear, but on numerous ones.

Mr Hungerford-Symes has made it clear there's not the slightest suggestion that Mr Toman was actively involved in any dishonest or suspicious conduct. He has no criminal history. The Prosecutor resiled from his tendering on the sentence of a criminal history which was not only very old, as was stated, but turned…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Meehan v Toman

Details

AGLC: Meehan v Toman [2005] QDC 434
Case: [2005] QDC 434
Decision Date: 05/12/2005

CaseChat Overview and Summary

In the case of Meehan v Toman, the appellant, Mr Vladimir Toman, appealed against the recording of his conviction by a Magistrate, who had found him guilty of two charges under the Second-hand Dealers and Collectors Act 1984 and the Pawn Brokers Act 1984. The Magistrate imposed a penalty of $800 and recorded the convictions, with a default imprisonment of two months if the fine was not paid within one month. Mr Toman argued that the Magistrate was required to accept his unchallengeable submissions under section 132C of the Evidence Act 1977 and that the Magistrate had discriminated against him by not considering his age and lack of criminal history. The District Court was required to determine whether the Magistrate correctly exercised his discretion in recording the convictions, and whether there was any discrimination against the appellant.

The District Court found that the Magistrate was not obliged to accept unchallenged submissions under section 132C of the Evidence Act 1977, and that there was no evidence of discrimination against the appellant. The court noted that the offences were first instances of regulatory type offending involving nothing dishonest or sinister. The court found that the Magistrate had not overlooked any relevant factors and that the need for general deterrence was important. The District Court dismissed the appeal, and no costs were sought by either party.

Orders