R v Briese; ex parte Attorney-General - [1997] QCA 10

IN THE COURT OF APPEAL	[1997] QCA 010
SUPREME COURT OF QUEENSLAND

C.A. No. 390 of 1996

Brisbane

[A-G v. Briese]

THE QUEEN

BRETT RAYMOND BRIESE

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Thomas J Dowsett J White J

Judgment delivered 21 February 1997

Joint reasons for judgment, Thomas and White JJ; separate concurring reasons by Dowsett J.

APPEAL ALLOWED; CONVICTIONS TO BE RECORDED ON EACH COUNT

CATCHWORDS:CRIMINAL LAW - armed robbery - attempted stealing - no conviction recorded - Attorney-General's appeal against sentence - whether discretion to record conviction may be exercised independently of other sentencing orders - effect of decision not to record conviction - "criminal history" - "nature of the offence" - relevant criteria - Penalties & Sentences Act s.12.

Counsel:	Mr D. Bullock for the Appellant Mrs K. McGinness for the Respondent
Solicitors:	Queensland Director of Public Prosecutions for the Appellant Legal Aid Office (Qld) for the Respondent

Hearing Date: 20 November 1996

JOINT REASONS FOR JUDGMENT - THOMAS J AND WHITE J.

Judgment delivered 21 February 1997

The respondent, who pleaded guilty to two armed robberies and attempted stealing was ordered to undergo probation for three years, to serve 240 hours community service and to make $834 compensation. It was directed that no conviction be recorded. The object of this appeal by the Attorney-General is to reverse that part of the order directing that no conviction be recorded.

The respondent, who was nineteen years old, committed three offences over fifteen days, two of them comprising armed robberies in moderately serious circumstances. The circumstances of these offences and of his attempted stealing are contained in the reasons of Dowsett J.

For practical purposes the respondent may be taken to have had no previous convictions. Prior to committing these offences he had been an inmate at the "Mirikai" centre for treatment necessitated by abuse of illicit drugs.

On an appeal by the Attorney-General, the question is whether the sentences were outside the range of a proper sentencing discretion (R v. Milano ex parte Attorney-General [1995] 2 Qd.R. 186). Counsel for the Attorney-General does not submit that it was of itself unreasonable to impose non-custodial sentences, but contends that the added circumstance of the non-recording of any conviction renders the sentences as a whole unreasonable, and that that component of it ought to be set aside.

Nature of the Discretion under Section 12

Section 12 of the Penalties & Sentences Act gives the court "a discretion to record or not

record a conviction".
"12. Court to consider whether or not to record conviction. (1) A court may

exercise a discretion to record or not record a conviction as provided by this Act.

(2) In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including -

(a)the nature of the offence; and
(b)the offender's character and age; and
(c)the impact that recording a conviction will have on the offender's -

(i)economic or social wellbeing; or (ii)chances of finding…

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.

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Details

Case: [1997] QCA 10
Decision Date: 21/02/1997

CaseChat Overview and Summary

The appeal in this case was brought by the Attorney-General against a decision of Dowsett J in the District Court to not record convictions for two counts of armed robbery and one count of attempted stealing, committed by the respondent, Brett Raymond Briese. The respondent had been sentenced to probation for three years, 240 hours of community service, and ordered to pay compensation. The primary issue for the Court of Appeal was whether the trial judge's decision not to record a conviction fell outside the range of a proper sentencing discretion. The Court considered the relevant criteria under section 12 of the Penalties and Sentences Act, including the nature of the offence, the offender's character and age, and the impact of recording a conviction on the offender's economic or social wellbeing or chances of finding employment. The Court concluded that the nature and seriousness of the armed robberies justified recording a conviction. The appeal was allowed, and convictions were recorded on each count. The decision highlights the importance of considering the broader implications of not recording a conviction, including the potential risk to the public and the need for consistency in sentencing for serious offences.

Orders