R v Muller

[2000] QCA 484

[2000] QCA 484

COURT OF APPEAL

PINCUS JA
WILLIAMS J
CULLINANE J

CA No 231 of 2000

THE QUEEN

v.

BELINDA RACHAEL MULLER  Applicant

BRISBANE

..DATE 23/11/2000

JUDGMENT

PINCUS JA:  The applicant was convicted after a trial of four offences of dishonesty in the District Court at Townsville.  The learned primary Judge made orders of performance of community service, probation and monetary compensation.  His Honour also recorded convictions.  The only complaint made by counsel for the applicant, Mr Chowdhury, is that he contends that convictions should not have been recorded.

The four offences involve two pieces of property, a television set and a video cassette recorder. Each of them was stolen and sold to another party on the representation that the applicant and co-offender, one Kendall, owned the property.  The applicant is 20 years of age and was aged 18 when she committed the offences.

In the outline, it is pointed out that there were a number of circumstances against recording a conviction, namely, the applicant's age, the absence of any previous criminal history and the fact that the offences were only moderately serious. These same points have been made by Mr Chowdhury in his oral argument.  I note that in the record it is said the applicant was molested as a child by her stepfather and that was put forward as a matter of mitigation below.

In his Honour's reasons for sentence he observed that the applicant and her co-offender had shown no remorse.  His Honour said in effect that they had attempted to mislead the jury with an unlikely tale and that her failure to plead guilty had occupied the Court's time for several days unnecessarily and at a cost to the community.  It seems clear that the Judge took into account that the applicant had gone to trial rather than pleading guilty.

The relevance of considerations of this sort was discussed in Siganto (1998) 73 ALJR 162 where it was said in effect that it is a serious error to treat a plea of not guilty as an aggravating circumstance but "a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial". Paragraphs [21] and [22].

If a sentencing Judge thinks that three years would be a proper sentence for a particular offence on a plea of guilty, and four years on a plea of not guilty, then it is permissible to reason that the offender receiving the heavier sentence has been deprived of the benefit of reduction in the sentence which would have been available had there been a plea of guilty; but it is not permissible to reason that the sentence is increased because of the plea of not guilty.

What the practical difference is between these two statements may not always be terribly clear.  But the remarks made by the learned primary Judge, Angel J in Siganto at paragraph [20], might possibly have been construed as implying that the plea of not guilty there was treated as an aggravating circumstance.  They were not so treated by the learned Justices in the High Court and I see no reason to hold that the Judge's remarks here had a different implication from those made by Angel J in Siganto.

It appears to me that, reading the Judge in this case as having said that the applicant having pointlessly insisted on a trial deprived her of what might otherwise have been lenient treatment, his Honour made no error.  Nor is it impermissible to take the absence of a plea of guilty into account when determining whether or not to record convictions.

It is pointed out on behalf of the respondent, and correctly, that there is no evidence to suggest that there was any particular disadvantage to the applicant in having a conviction recorded, in an economic sense or from the point of view of getting a job.  No doubt in the long run there might be such a disadvantage.

The question in the end, however, is whether the circumstances were such as to take the case beyond those in which it is permissible to record convictions.  Mr Chowdhury submits that the case is of that character.

The Judge had a discretion to exercise and, in the absence of his Honour having made any specific error, all the applicant can say is that the sentence is excessive and manifestly so.  Perhaps the case falls within that category where the Judge's discretion could not be said to be improperly exercised if convictions were recorded, or if they were not.  It must be kept in mind that we should not routinely sentence afresh but respect the primary Judge's discretion, unless the conclusion is drawn, not merely that the primary Judge might properly have been more lenient than he has been, but that the degree of severity exercised was positively an error.  It is my view, having given the matter thought and having had the advantage of the submissions of Mr Chowdhury today, that the sentence cannot be said to have been a mistaken one and I would dismiss the application.

WILLIAMS J:  I agree.

CULLINANE J:  I agree.

PINCUS JA:  The application is refused.

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