R v Drower and Dyson

[1997] QCA 124

COURT OF APPEAL

[1997] QCA 124

DAVIES JA
WILLIAMS J
MACKENZIE J

CA No 28 of 1997 CA No 31 of 1997

WILLIAMS
v.
CHANTAL LEANNE DROWER

KENNETH STEWART DYSON Applicants

BRISBANE
..DATE 18/04/97
180497 T5/FLC14 M/T COA68/97
DAVIES JA: These are applications for leave to appeal against
sentences imposed for stealing and false pretences in the case
of Dyson and receiving and false pretences in the case of
Drower. Each pleaded guilty to two offences in relation to the
theft from Target stores and the return for refund on 30
November 1996 of four bottles of perfume and a power board. The
refund was $192.60.

Dyson pleaded guilty to stealing and false pretences and Drower to receiving and false pretences in relation to the incident. Each also pleaded guilty to two offences in relation to theft from Target and return for refund on 19 December of a bottle of perfume and an electric toothbrush. The refund in that case was $134. Again Dyson pleaded guilty to stealing and false pretences and Drower to receiving and false pretences.

Dyson pleaded guilty also to the offences of stealing and false pretences in relation to the theft of two bottles of perfume from Target on 2 December last and other thefts on 19 December of a Christmas stocking, a teddy bear and a box of five perfumes. Miss Drower was Mr Dyson's girlfriend. Each pleaded guilty on 8 January this year. Drower was convicted and sentenced to 12 months probation and 150 hours community service. Dyson was sentenced to 12 months probation and 200 hours community service.

In each case orders for compensation prescribed by the Magistrate as restitution were made and convictions were recorded. Sentences of imprisonment were ordered in default of payment of compensation. Drower was at the time an employee of 180497 T5/FLC14 M/T COA68/97

Target at one of the stores from which some of the goods were stolen but it was not suggested that her employment was directly related to the theft from that store.

Neither applicant seriously contends that the sentences of probation or community service were outside the appropriate range or that orders for compensation should not have been made.

The contention in each case was that a conviction should not have been recorded. The Magistrate described the offences as clearly thought out and, to some extent, in respect of the joint offences that was so. He may also have been correct in discounting the evidence of remorse at least on the part of Dyson as it appears that he was caught red-handed on 19 December. Nevertheless each, when first interviewed, said they were sorry for what they had done.

In my view however the learned Magistrate failed to have sufficient regard to the age of each of the applicants, the fact that neither had any previous criminal history and on the contrary that each appears previously to have been of good character. Dyson was 17, having been born on 13 September 1979, and Drower is 18, having been born on 8 September 1978 and neither has any previous convictions of any kind. Moreover references were tendered on behalf of Drower which were disregarded by the Magistrate when there does not seem to me to have been any basis for doing so. She has also commenced studies at the University of Queensland Gatton College and hopes to be a park ranger. It can be said generally, although not specifically, that each of the applicants may be affected in their future employment prospects by the recording of a 180497 T5/FLC14 M/T COA68/97

conviction against them but, more important in this case are the factors to which I have referred of age, previous good character and the nature of the offences which though intentional were, having regard to the circumstances, not so serious as to require the recording of a conviction.

I would therefore grant the application in each case and allow the appeal only to the extent in each case of setting aside the orders made for the recording of conviction.

WILLIAMS J: I agree.

MACKENZIE J: I agree.

DAVIES JA: The orders are as I have indicated.

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