R v Graham

[2023] QCA 125

SUPREME COURT OF QUEENSLAND

CITATION:

R v Graham [2023] QCA 125

PARTIES:

R
v
GRAHAM, Paul Mathiou
(applicant)

FILE NO/S:

CA No 20 of 2023
DC No 775 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 18 January 2023 (Wooldridge KC DCJ)

DELIVERED ON:

13 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2023

JUDGES:

Mullins P and Bond JA and Kelly J

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to three counts of fraud – where a conviction was recorded pursuant s 12(1) of the Penalties and Sentences Act 1992 (Qld) (“the Act”) – where the applicant contends that the primary judge made a specific error by failing to have regard to the matters contained in s 12(2)(c) of the Act – whether the primary judge failed to take into account the impact that recording a conviction would have on the offender’s economic or social wellbeing or chances of finding employment

Penalties and Sentences Act 1992 (Qld), s 12(2)(c), s 12(3)(a)

Gardner Snr v DPP (Qld)[2009] QCA 29, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, applied
R v ZB[2021] QCA 9, considered

COUNSEL:

R J Clutterbuck for the applicant
M J Wilson for the respondent

SOLICITORS:

Turnbull Mylne for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. MULLINS P:  I agree with Kelly J.

2. BOND JA:  I agree with the reasons for judgment of Kelly J and with the order proposed by his Honour.

3. KELLY J: On 4 November 2022, the applicant pleaded guilty to three counts of fraud. He was sentenced to 100 hours of community service to be completed within 6 months and ordered to pay restitution in the sum of $5,144.97, the full amount of his ill-gotten gains. Convictions were recorded. He applies for leave to appeal against sentence on the ground that the primary judge made a specific error by failing to have regard to the matters contained in s 12(2)(c) of the Penalties and Sentences Act 1992 (Qld) (“the Act”).[1]

   [1]T 1-3 ll 10-26.

4. The relevant statutory provisions may be conveniently outlined as follows. Section 12(1) of the Act confers a discretion upon a sentencing judge to record or not to record a conviction. Section 12(2)(c) provides that in the exercise of that discretion, the court “must have regard to all circumstances of the case” including, relevantly, the impact that recording a conviction will have on the offender’s economic or social wellbeing or chances of finding employment. The purpose of recording an offender’s conviction is to make the fact of the conviction known to those who have a legitimate interest in knowing about it.[2] Section 12(3)(a) provides for the consequence of not recording a conviction, namely that “a conviction without…