Chivers v Garlati [1997] QCA 47

1 [1997] QCA 047 COURT OF APPEAL MACROSSAN CJ DAVIES JA McPHERSON JA CA No 496 of 1996 W P CHIVERS and ETTORE GARLATI Applicant BRISBANE ..DATE 25/02/97 JUDGMENT -- 1 of 7 -- 2 McPHERSON JA: The applicant pleaded guilty to a single charge of stealing and was sentenced in the Magistrates Court by being fined $450 with 14 days to pay, in default 12 days imprisonment, and also being ordered to pay compensation in the sum of $150, in default 15 days imprisonment. The Magistrate ordered that a conviction be recorded; and it is in respect of that aspect only of the decision that this application for leave to appeal against sentence is brought before us. The circumstances of the offence are briefly as follows. The applicant was one of those at a casino in Cairns at about 2 o'clock in the morning of 21 July 1996. He had gone to the casino with a sum of $50 and had lost that money in the course of his gaming activities. He saw a handbag on the floor beside a gaming table, opened it, and took out the sum of $150 in respect of which he was later charged. His explanation was that he needed a sum of money of about $60 in order to pay a fine for failing to wear a safety helmet while riding a push bike. Having lost the $50 that he had, he then helped himself to the money in the handbag in order to make good his loss and so pay the fine. According to what was said, he was in an intoxicated state at the time he stole the money. The personal circumstances of the applicant are that he is an Italian national, who was in Australia at the time in the character of a tourist. He has, according to the account given by his counsel at the Magistrates Court hearing, no previous convictions and what, it may be accepted, is a good work record. -- 2 of 7 -- 250297 D.1 T12/mmb M/T COA26/97 JUDGMENT 3 He is 28 years of age, and it was suggested on his behalf that the recording of a conviction might in some way have an effect on his employment or employability in Italy. No evidence or other material capable of supporting that conclusion was presented to the Magistrate. The only other matter that was urged against the recording of a conviction was a suggestion that the applicant might wish to return to Australia and that a conviction might affect his chances of being admitted as an immigrant in the future. In dealing with these questions in the course of the sentencing remarks, the Magistrate said that he took account of the applicant's early plea and of his remorse at the situation he now found himself in. He then referred to section 12 of the Penalties and Sentences Act, remarking that that gave him the power to record or not to record a conviction. Having also in the course of those remarks mentioned some of the factors that are relevant under that section, he went on to add some remarks (which I must say I have found a little difficult to comprehend) about the impact of a conviction and its relationship to immigration into Australia. It is possible, perhaps, on one view of those remarks, to form an impression that perhaps the Magistrate was inclined to treat the factor of possible immigration by the applicant as a matter that went against him; but, after reading the observations in question on more than one occasion, I have come to the conclusion that it would not be correct to construe them as in any way suggesting an intention to discriminate against the -- 3 of 7 -- 250297 D.1 T12/mmb M/T COA26/97 JUDGMENT 4 applicant on the basis that he was not a national but someone from another country who might be thinking of immigrating to Australia. Putting those matters to one side, the question that is then left with us is whether we should interfere with an order made by the Magistrate in the exercise of a discretion conferred by the statute to record or not to record a conviction in this case. Section 12(2) mentions as considerations to be borne in mind that the impact of recording a conviction will or may have an effect on the offender's economic or social well-being, or his chances of finding employment. There was, as I think I have already said, nothing substantial here to suggest that the applicant would have been affected in that way as a result of recording a conviction. So far as other matters are concerned, section 12(2) requires the Court to have regard to circumstances such as the offender's character and age. There was nothing, in my view, in the offender's character or age in this case which would have required the Magistrate in a proper exercise of his discretion to decline to record a conviction. When all these matters are considered, we are left, I think, with the bare fact that the Magistrate in exercising his discretion considered the case to be one in which a conviction ought properly to be recorded; and that there is nothing before -- 4 of 7 -- 250297 D.1 T12/mmb M/T COA26/97 JUDGMENT 5 us to show that in arriving at that conclusion he exercised his discretion wrongly or took into account impermissible factors or left out of account factors that ought to have been considered. That being so, I can see no reason or basis on which this Court could intervene to interfere with the discretion that has been exercised. I should also add that, in the course of the written outlines presented on behalf of the Crown in this case, there is a concession to the effect that normally an offence of stealing this amount of money where the offender has no previous criminal history would not result in a conviction, which I take to mean would not result in the recording of a conviction. While it is always helpful to this Court to see the Crown making concessions rather than opposing an application for leave to appeal simply for the sake of making opposition to it, we are, of course, not bound by the concession made. Without some clearer indication based on decisions of this Court that the concession accurately reflects the practice in exercising the discretion under section 12, I would not, without more, be prepared to act on it in this or any other future case. The matter is one where the Magistrate in the court below has reached a conclusion and we have not been given any clear reason for saying that what he did and said demonstrates that he exercised his discretion wrongly in the particular respect that is now relied on. I would therefore refuse the application for leave to appeal. -- 5 of 7 -- 250297 D.1 T12/mmb M/T COA26/97 JUDGMENT 6 THE CHIEF JUSTICE: In considering this appeal my attention was attracted by the fact that this was a case of stealing a fairly modest sum of money by a first offender. Also in the record there are some indications that the disposition of the matter may have been determined for the Magistrate by the fact that attempts to re-enter the country should not be facilitated. However, taking into account the full width of the submissions that were made below, the circumstance of the offence and the remarks of the Magistrate read as a whole and against that background, I am not prepared to dissent from the view that the matter should be dealt with on the basis that it lay within the Magistrate's discretion. I agree that the application should be refused. DAVIES JA: There were no special age factors in this case (either of youth or of advanced age combined with otherwise a blameless life) that were likely to affect the economic or social well-being of the applicant or his chances of finding employment which would not affect almost anyone else charged with an offence and the nature of the offence here could not be described as trivial. The question in this case is not whether the learned sentencing Magistrate could have made an order under section 12 not to record a conviction. There were, in my view, no matters in this case which required him to exercise his discretion in that way and I would, for the reasons I have mentioned, and also for those referred to by Mr Justice McPherson, also refuse the -- 6 of 7 -- 250297 D.1 T12/mmb M/T COA26/97 JUDGMENT 7 application. THE CHIEF JUSTICE: The application is refused. ----- -- 7 of 7 --