Thiry v Stuart

[1995] QCA 509

IN THE COURT OF APPEAL  [1995] QCA 509

SUPREME COURT OF QUEENSLAND

Brisbane  C.A. No. 283 of 1995

[R v Stuart]

Before Macrossan C.J.

Fitzgerald P.

Mackenzie J.

G.P. THIRY

v.

COLIN LEE STUART

(Applicant)

REASONS FOR JUDGMENT OF THE COURT

Judgment delivered 17 November, 1995

The applicant was convicted on his own plea of guilty in the Magistrates Court, Innisfail, of an offence of stealing.  The way in which the matter was presented to the Magistrate was that the applicant who had recently arrived in Innisfail took the complainant's bag from the steps of a church where she had left it when she went to see another person nearby.  A resident saw the applicant remove the bag and contacted the police.  The applicant left the bag with the contents, including about $100 cash, intact in a place where it was easily found.  When he saw police patrolling the area he approached them and volunteered that he was the person responsible.  He said that he had taken the bag because he wanted to buy dinner and was apologetic.  The bag was restored to the owner before she realised it had been taken.

The Magistrate imposed a sentence of 30 days imprisonment.  The applicant was aged 20 years and had no previous convictions.  Having regard to the nature of the offence and the applicant's antecedents a non-custodial sentence was appropriate.  This Court announced at the end of the hearing of the application that the application would be granted, the appeal allowed and the recording of a conviction quashed.  The question of what final order would be made was reserved.  By the time the application was heard the applicant had served 9 days imprisonment, having been granted bail pending appeal.  He had also spent 2 days in custody on remand prior to appearing before the Magistrate.
           In R v Cornale [1993] 2 Qd.R. 294 McPherson and Pincus JJA held that s.668E(3) of the Criminal Code limited the power of the Court of Appeal on an appeal against sentence to substituting for the sentence under appeal a sentence that should have been passed in the circumstances that prevailed at the time of the original proceedings.  That this might lead to an unjust result in some cases was recognised by the Court of Appeal (Macrossan C.J., Davies J.A. and White J.) in Poulton v Welling (C.A. 473/94, unreported, 5.5.95).  Macrossan C.J. in dismissing the appeal, pointed out that in a case where the person had served the whole of the sentence originally imposed, the making of an order on the basis that some other sentence, even though one less severe, should have been imposed below would be unjust to the applicant.
In the present case the applicant has served only part of his sentence but should not have received a custodial sentence at all. The imposition now of a non-custodial sentence such as release on recognisance, probation or community service would because of the time in custody likewise operate unfairly upon him. Another option is an order under s.19(1)(a) of the Penalties and Sentences Act 1992. Such order can be made if no, or only a nominal punishment should be imposed on an offender (s.17). Before an order is made under s.19 the Court must have regard to the matters set out in paragraphs (a) to (d) of s.18. So far as the offender's age and character are concerned he was 20 years of age and had no previous convictions. So far as the nature of the offence is concerned it was an offence of stealing committed by picking up a bag left lying on external stairs of a building. So far as paragraph (c) is concerned the plea of guilty implies an admission that the applicant took the bag with the necessary intent but shortly afterwards he voluntarily abandoned possession without taking any of the contents. The explanation given for taking the bag was that he had intended to buy food. The offence is plainly less serious than it might have been if the applicant had retained the bag and taken the contents. The Court is also required under paragraph (d) to take into account anything else to which the Court considers it proper have regard. In this case the facts put before the Magistrate included that the applicant had voluntarily surrendered to the police, nominated himself as the person they were looking for in connection with the complaint, apologised and had spent 2 nights in the watchhouse prior to sentence.
The circumstances take the case out of the ordinary. It is apparent that the offence is at the very low end of the scale of seriousness. Most offences of stealing will not be appropriately dealt with under s.19(1). In this particular case, the offence and its surrounding circumstances, including the 2 days spent in custody, pre-sentence, are such that by the time the matter was heard by the Magistrate a nominal penalty was appropriate.
In our opinion an order that the applicant be released absolutely was warranted in law and should have been made by the Magistrate. The application for leave to appeal against sentence is granted. The appeal is allowed. The recording and the sentence imposed below are set aside. In lieu it is ordered that no conviction be recorded and the applicant be released absolutely under s. 19(1) of the Penalties and Sentences Act 1992.