Pearce v Mitchall

[1997] QCA 348

COURT OF APPEAL

[1997] QCA 348

McPHERSON JA
WILLIAMS J

BYRNE J

CA No 163 of 1997
G PEARCE
v.

ADAM JOSEPH MITCHALL Applicant

BRISBANE
..DATE 15/07/97
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McPHERSON JA: The applicant went to the casino on 13 March 1997
and lost a sum of money by gambling. The man next to him
dropped a wallet out of his pocket. The applicant picked up the
wallet and took it to the toilet, where he removed the money
that was in it, and then, considerately, returned the wallet to
the place where he had found it before leaving the casino. He
had in fact been filmed by video camera engaging in these
activities. He was located and interviewed on 10 April 1997,
when he admitted to taking the wallet. He claimed to have
succumbed to momentary temptation because of his gambling
losses.

He was at the time of sentencing a man of 26 years of age with no prior convictions, married with two children, and currently studying to pass year 12 at a TAFE college. The sentence imposed by the Magistrate was a fine of $200 with four months to pay, in default imprisonment for four days. He was also ordered to pay restitution in the sum of $250 which was the amount of money taken from the wallet, but with no time to pay and in default six weeks imprisonment.

On the appeal, as it originally stood, the Crown accepted that an order in that form had the effect of a sentence of imprisonment for six weeks if, as was the case, the applicant could not pay at once when the order was made. The amount has in fact since been paid, so to an extent the application for leave to appeal on that basis is academic. However, the applicant did serve some days in custody, so that in another way the sentence is probably before us for review. The Crown is also prepared to concede that the case is one in which a 150797 T10/RZB12 M/T COA147/97

conviction should not have been recorded. The maximum sentence available on summary conviction for stealing an amount of this kind is, we are told, two years.

The Magistrate considered whether a conviction should be recorded and decided that it should be. It has been submitted that in doing so he was really aiming to ensure that the restitution order could effectively be made. Whether that is so or not, the case is one where it is accepted by the Crown that the Magistrate ought not to have recorded a conviction. That, I need hardly add, is not sufficient to bind us but, having read the reasons of the majority in Briese appeal (No. 390 of 1996), I am disposed to think that the Crown's concession in this case is well founded. I should not perhaps be taken as agreeing that, on the particular facts of Briese, the non-recording of a conviction was appropriate; but this is a case of a very different kind, being as I said an instance of stealing a small amount, committed by a man with no prior convictions and with the argument in his favour that it was a lapse into momentary temptation.

So in the result, I think that the application for leave to appeal against the recording of the conviction should be granted, and that we should allow the appeal by setting aside the recording of that conviction. The fine that was imposed, or the order that the applicant pay a fine of $200, is not intended to be disturbed by the order which I have proposed.

WILLIAMS J: The facts relating to this matter have been fully set out by the learned presiding Judge. Counsel who appeared 150797 T11/JAP/23 M/T COA 147/97

for the applicant before the Magistrate asked for time to pay both the fine and the amount ordered to be paid by way of restitution.

The police prosecutor did not raise any objection to that. The Magistrate allowed time to pay the fine but no time to pay the restitution. The reasons that he gave would appear to indicate that the Magistrate considered that because the stolen money had been spent the applicant should have to repay it immediately.

In my view, particularly where time to pay a fine is granted, time to pay restitution should also be granted, albeit the time allowed be very short; otherwise the effect of refusing time to pay is to make the default period of imprisonment servable immediately.

In my view, for there to be a proper exercise of discretion, some time should be given in circumstances such as existed here.

I agree with all that has been said by the learned Presiding

Judge in relation to the other matters.

BYRNE J: The case was one in which, having regard to the circumstances which section 12 of the Penalties & Sentences Act 1992 makes material, the conviction ought not to have been recorded.

The Magistrate, however, took the view that orders needed to be fashioned which would ensure that the $250 restitution was paid.

In particular, it seems he was anxious that an order be made

150797 T11/JAP/23 M/T COA 147/97
pursuant to section 36(2) of the Act that the applicant be
imprisoned if he failed to comply with the order for restitution
made pursuant to section 35(1)(a). By section 36(3) such an
order may only be made if the Court records a conviction.

It is not, in my opinion, appropriate to order that a conviction be recorded for the sole purpose of enhancing the prospects of compliance with an order for restitution.

No submission to the contrary was advanced by the respondent. Indeed, no attempt was made to uphold the Magistrate's reasoning or orders.

I agree that the reasoning of the Court in Briese leads to the conclusion that the conviction ought not to be recorded.

The appeal should be allowed.

McPHERSON JA: The order is that the application is granted and the appeal allowed to the extent of removing the order that a conviction be recorded.

Perhaps, we should also order that the addition of the default imprisonment penalty in this case should also be removed although it appears to be academic if, as we have been told, the compensation has been paid. The order will be as I have stated it.

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