R v Marsh

[1993] QCA 322

IN THE COURT OF APPEAL [1993] QCA 322

SUPREME COURT OF QUEENSLAND

C.A. No. 157 of 1993

Brisbane
[R. v. Marsh]

BETWEEN:

THE QUEEN

v.
KAMI RICHELLE MARSH

(Applicant)

The President
Mr. Justice Ambrose

Justice White

Judgment delivered 03/9/1993
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST THE RECORDING OF A CONVICTION GRANTED. APPEAL ALLOWED. THE RECORDING OF THE CONVICTION IS SET ASIDE.

Counsel:	Mr. G. Long for the applicant Mr. P. Callaghan for the respondent
Solicitors:	Legal Aid Office for the applicant Director of Prosecutions for the respondent
Hearing Date:	19/08/1993

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 157 of 1993

Brisbane
Before The President
[R. v. Marsh]

BETWEEN:

THE QUEEN

v.

KAMI RICHELLE MARSH

(Applicant)

JUDGMENT OF THE COURT

Judgment delivered 03/09/1993

The applicant pleaded guilty to eight charges of receiving

and false pretences before the District Court on 30 April 1993 and asked that a further 34 matters be taken into account in accordance with s.189 of the Penalties and Sentences Act 1992. The offences were committed between 9 June 1992 to 23 September 1992. The applicant had her 18th birthday during that period.

On 21 occasions over that time the applicant returned goods to Coles Myers Ltd. stores. Those goods had previously been stolen by a co-offender from the Myers stores. Most of these transactions occurred at the Pacific Fair branch of the store. The company was prepared to give a refund in the absence of a receipt, and it was due to the fact that the applicant used her own name in the refund transaction that led to her apprehension.

The records of the company reveal payments to her in the total amount of $2,294.80. The applicant shared the proceeds with several accomplices.

She co-operated with the police and has no previous convictions. She was sentenced to three years probation, subject to the usual statutory conditions, and also on the conditions that she perform 200 hours of community service and make restitution in the sum of $2,294. That part of the sentence is not sought to be appealed from. The sentencing judge did not record a conviction against the applicant in open court and no submissions were made in relation to the recording, or otherwise, of any conviction by either the prosecution or defence counsel. The sentencing judge had recorded a conviction on the court papers without further reference to the prosecutor or to the applicant's counsel. The applicant seeks to appeal from the recording of a conviction.
In view of the failure of the sentencing judge to hear the parties on the question of recording a conviction his discretion necessarily miscarried and it is appropriate for this Court to consider whether a conviction should be recorded, R. v. Connell, C.A. No. 56 of 1993.

The scheme relating to the recording of a conviction is set out in s.12 of the Penalties and Sentences Act ("the Act"), which provides:-

"12.(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 employment.

(3) Except as otherwise expressly provided by this or

another Act -

(a)  a conviction without recording the conviction is taken not to be a conviction for any purpose; and

(b) the conviction must not be entered in any records except -

(i) in the records of the court before which

the offender was convicted; and

(ii) in the offender's criminal history but only

for the purposes of subsection (4)(b).

(4) A conviction without the recording of a conviction -

(a)  does not stop a court from making any other order that it may make under this or another Act because of the conviction; and

(b)  has the same result as if a conviction had been recorded for the purposes of -

(i) appeals against sentence; and
(ii) proceedings for variation or contravention

of sentence; and

(iii)proceedings against the offender for a
subsequent offence; and

(iv) subsequent proceedings against the offender

for the same offence.

(5) If the offender is convicted of a subsequent offence, the court sentencing the offender may disregard a conviction that was ordered not to be recorded but which, under subsection (3)(b)(ii), is entered in the offender's criminal history.

(6) If -

(a) a court -

(i) convicts an offender of an offence; and
(ii) does not record a conviction; and

(iii)makes a probation order or community

service order for the offender; and

(b)  the offender is subsequently dealt with by a court for the same offence in any way in which it could deal with the offender if the offender had just been convicted by or before it of the offence;

the conviction for the offence must be recorded by the
second court."

A conviction is defined by s.4 of the Act as "a finding of guilt, or the acceptance of a plea of guilty, by a court". By s.90 a court may make a probation order whether or not it records a conviction.

The Act establishes a new regime from that which previously prevailed with respect to the recording of a conviction, R. v. Andrew Justin Brown, C.A. No. 167 of 1993, judgment delivered 4 August 1993. The matters set out in s.12(2) of the Act, to which a sentencing court may have regard, are not exhaustive. Other matters may operate upon the exercise of the discretion. In this case, the applicant hopes to enrol in a course to study child care and thereby obtain employment. At the time of sentencing, the applicant had been unemployed for some time but had just obtained a part-time job of a limited kind at a video store. The applicant, through her counsel, expressed a positive intention to make restitution. At the time of committing the offences the applicant was sharing accommodation with a group of girls, some of whom were involved in these offences. From what was put to the sentencing judge, it seems plain that she responded to peer group pressure.

The offences, although numerous, must be seen as one episode in her life. It is likely that the recording of a conviction for dishonesty will have a major impact upon her capacity to find employment, particularly in the field to which she is attracted. Her youth and previously unblemished record and her willingness to make restitution make it appropriate that no conviction be recorded against her.

For these reasons leave to appeal against the recording of a conviction is allowed and the recording of the conviction is set aside.