R v Van Le

[2003] QCA 256

SUPREME COURT OF QUEENSLAND

CITATION:	R v Van Le [2003] QCA 256
PARTIES:	R v VAN LE, Heip (applicant)
FILE NO/S:	Appeal No 144 of 2003 DC No 567 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX	18 June 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	18 June 2003
JUDGES:	Davies and Williams JJA, and Atkinson J Separate reasons for judgment of each member of the Court; each concurring as to the order made
ORDER:	Application refused

CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant convicted on own plea of guilty to one count of attempted fraud with a circumstance of aggravation – where conviction was recorded – whether improper exercise of sentencing discretion to record a conviction

Penalties and Sentences Act 1992 (Qld), s 12

R v Bain

CA No 452 of 1996, 14 March 1997, cited considered

COUNSEL:	A Boe (solicitor) for the applicant S Bain for the respondent
SOLICITORS:	Boe & Callaghan for the applicant Director of Public Prosecutions (Queensland) for the respondent

ATKINSON J: The applicant, Hiep Van Le, filled out an

application for a home loan from the Westpac Bank on 29 May

2002. The application was for a home loan in the amount of	10
$140,000. On the application he nominated a false employer
and a false income of $580 a week gross. In fact, he was working at the time but that work was part time and for a different employer from the one nominated. The false
application was discovered when the loan manager attempted to	20
verify his employment.
Mr Le was 40 years old at the time of the offences and had no
prior criminal history. The solicitor who appeared for the
applicant on his sentence submitted that his client was told,	30
wrongly, that he did not have to have any role in the
documentation of the application. He knew that the
documentation was false but he was unwilling to identify the
person who had prepared it. His solicitor submitted that he
was in receipt of income which would have been sufficient to	40
repay the loan.
The learned sentencing judge convicted him on his own plea of guilty on one count of attempted fraud with a circumstance of aggravation. The maximum penalty was five years imprisonment.	50
His Honour fined the applicant $2,000 and gave him four months
to pay. Although the applicant's solicitor submitted that a
conviction ought not be recorded, his Honour did record a
conviction. He gave as his reasons for doing so that the loan

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was for a sum in excess of $100,000 and in the circumstances

must be regarded as a relatively serious matter. This relates

to the circumstance of aggravation under section 405C(2)(d)

that the value of the property exceeded $5,000. Here, the

value was $140,000, well in excess of the amount which, as a	10
circumstance of aggravation, serves to double the penalty.
The decision whether or not to record a conviction is part of
the sentencing discretion. Section 12 of the Penalties and
Sentences Act 1992 provides:	20
"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 the circumstances of the
case, including -
(a) the nature of the offence; and

(b) the offender's character and age; and

30

(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 - 40

(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 50

(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

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(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.

10

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; 20

the conviction for the offence must be recorded by the

second court."

The discretion, as Lee J. said in R v. Brown, ex parte

Attorney-General [1994] 2 Qd.R 182 at 193, is at large and the

30

considerations are not limited to the matters contained in
clauses (a), (b) and (c) of subsection (12)(2). It would
appear in this case that the learned sentencing judge
considered all the appropriate matters which were relevant to

the exercise of the discretion.

40

In another case, R v. Teo Nguy, the same sentencing judge considered those matters and determined in the exercise of his discretion not to impose a conviction. But in this case the learned sentencing judge was not satisfied that any effect on

50

the applicant's future prospects of employment would be

sufficient to permit him to exercise his discretion not to

record a conviction.

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It has been held by this Court that it is insufficient to

enliven the discretion not to record a conviction to simply

demonstrate a possibility that a conviction may affect an

offender's prospects of future employment: see R v. Bain,

CA No 452 of 1996, 14 March 1997.	10
In this case, the applicant has otherwise been an exemplary
citizen and has always been in work since he arrived in
Australia as a refugee in 1984. There seems to be no reason
to conclude, however, that there is more than a possibility	20
that a conviction may adversely affect his prospects of future employment given his history of steady employment and the type of employment he has undertaken.
It cannot, in my view, be said that the exercise of discretion	30
in this case to record a conviction was outside the proper
sentencing range or was an improper exercise of the
discretion. The recording of a conviction does not, in my
view, render the sentence manifestly excessive and the
application for leave to appeal should be refused.	40
DAVIES JA: I agree.
WILLIAMS JA: I agree.
DAVIES JA: The application is refused.	50

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