R v Bain - [1997] QCA 35

IN THE COURT OF APPEAL	[1997] QCA 035
SUPREME COURT OF QUEENSLAND

C.A. No. 452 of 1996

Brisbane

[R. v. Bain]

THE QUEEN

TINA ANN BAIN

(Applicant)

Fitzgerald P

Davies JA

Fryberg J

Judgment delivered 14 March 1997

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

CATCHWORDS:CRIMINAL LAW - SENTENCE - Recording of a conviction - s.12(2) Penalties and Sentences Act 1992 (Qld) - Impact on economic and social wellbeing - Bare possibility of impact insufficient - Barrett v Jensen, unreported, CA 158 of 1995, 20 June 1995 followed.

Counsel:	Applicant appeared on her own behalf Mrs L Clare for the respondent
Solicitors:	Applicant appeared on her own behalf Queensland Director of Public Prosecutions for the respondent

Hearing Date: 6 February 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 14 March 1997

On 4 October 1996, the applicant was convicted in the District Court of 11 offences of dishonesty committed between 1 March and 22 April 1996. For all offences, convictions were recorded and she was sentenced to three years' probation and 100 hours community service. She was ordered to pay $278 as compensation. The present appeal is against the order recording convictions only.

The charges can be divided into five groups. First, she went with two others to a residence at Deception Bay and stole an amplifier, a tuner and two tape decks. The property was recovered by police, but none of the accused could remember the address from which they had stolen it, so the owner remained unknown and unrecompensed.

The second group comprised one count of breaking and entering with intent, and another of stealing. With two co-accused, the applicant broke and entered the home of a Mr McKenna, and stole a video recorder. It was not recovered.

The third group comprised one count of breaking and entering with intent, one count of stealing and one count of false pretences. The applicant and the two co-accused returned to Mr McKenna's home a few days later, again broke in and stole a micro wave oven and an air rifle. They pawned the oven for $60 by pretending to own it. The rifle and the oven were recovered and returned to their owner.

The fourth group comprised one conviction for breaking and entering, one conviction for stealing and one conviction for attempted false pretences. The applicant, her three co-accused and a juvenile broke into the home of a Mrs March (where the juvenile had previously resided) and stole a video recorder, some stereo equipment, a mobile telephone and battery charger, an answering machine, a doona, a television set, a shaver, a telephone index book, some money and a badge. The applicant and her co-accused were caught red-handed by the police attempting to sell the television set to a pawnbroker. They were arrested and were subsequently granted bail. All of the property except for the video recorder and $15 in cash was returned to the owner.

The last group of charges comprised one…

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 R v Bain

Details

AGLC: R v Bain [1997] QCA 35
Case: [1997] QCA 35
Decision Date: 14/03/1997

CaseChat Overview and Summary

The case of R v Bain, brought before the Supreme Court of Queensland, involved the applicant Tina Ann Bain appealing against the decision of the District Court to record convictions for 11 offences of dishonesty. The offences were committed between March and April 1996 and resulted in a sentence of three years' probation, 100 hours of community service, and compensation payment. The appeal focused solely on the order recording convictions. The offences ranged from stealing to breaking and entering, with varying degrees of recovery of stolen property. The District Court judge decided to record convictions for the applicant and one other offender, taking into account the applicant’s age, lack of prior convictions, guilty plea, and admissions.

The legal issue before the Court of Appeal was whether the District Court judge misapplied his discretion in recording the applicant’s convictions under section 12(2) of the Penalties and Sentences Act 1992. The key considerations included the nature of the offence, the offender's character and age, and the potential impact on the offender’s economic or social wellbeing and employment prospects. The applicant argued that the recorded convictions would impede her chances of enrolling in a TAFE course or a course at the Lorraine Martin Academy. The Court examined the submissions and noted that while the applicant's age and clean record favoured not recording convictions, the seriousness of the offences and the fact that some were committed while she was on bail suggested otherwise. Additionally, there was no evidence that recording the convictions would negatively impact her economic or social wellbeing or employment opportunities.

The Court found that the District Court judge had considered the relevant factors and exercised his discretion appropriately. The mere possibility of an impact on the applicant’s future prospects was insufficient to warrant a different outcome. The inquiry made by the Senior Deputy Registrar (Appeals) confirmed that a criminal conviction would not be a barrier to the applicant’s enrolment in the specified courses. Therefore, the application for leave to appeal against the sentence was dismissed, affirming the District Court’s decision to record the convictions.

Orders