The Queen v Bain[1997] QCA 35

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 452 of 1996

Brisbane

[R. v. Bain]

THE QUEEN

v.

TINA ANN BAIN

(Applicant)

Fitzgerald P

Davies JA

Fryberg J

Judgment delivered 14 March 1997

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 14 March 1997

On 4 October 1996, the applicant was convicted in the District Court of 11 offences of dishonesty committed between 1 March and 22 April 1996.  For all offences, convictions were recorded and she was sentenced to three years' probation and 100 hours community service.  She was ordered to pay $278 as compensation.  The present appeal is against the order recording convictions only.

The charges can be divided into five groups.  First, she went with two others to a residence at Deception Bay and stole an amplifier, a tuner and two tape decks.  The property was recovered by police, but none of the accused could remember the address from which they had stolen it, so the owner remained unknown and unrecompensed.

The second group comprised one count of breaking and entering with intent, and another of stealing.  With two co‑accused, the applicant broke and entered the home of a Mr McKenna, and stole a video recorder.  It was not recovered.

The third group comprised one count of breaking and entering with intent, one count of stealing and one count of false pretences.  The applicant and the two co­‑accused returned to Mr McKenna's home a few days later, again broke in and stole a micro wave oven and an air rifle.  They pawned the oven for $60 by pretending to own it.  The rifle and the oven were recovered and returned to their owner.

The fourth group comprised one conviction for breaking and entering, one conviction for stealing and one conviction for attempted false pretences.  The applicant, her three co‑accused and a juvenile broke into the home of a Mrs March (where the juvenile had previously resided) and stole a video recorder, some stereo equipment, a mobile telephone and battery charger, an answering machine, a doona, a television set, a shaver, a telephone index book, some money and a badge.  The applicant and her co‑accused were caught red‑handed by the police attempting to sell the television set to a pawnbroker.  They were arrested and were subsequently granted bail.  All of the property except for the video recorder and $15 in cash was returned to the owner.

The last group of charges comprised one conviction for receiving and another for false pretences.  A few days after their release on bail, one of the applicant's co‑accused received 13 stolen compact discs which he apparently shared with her.  She pawned two of them for $10.  The discs were all recovered, two from the pawnbrokers and the remainder from the applicant's home when police raided it.

In the course of the raid, the police discovered marijuana and a pipe in the applicant's possession.  She was convicted on two counts in respect of those things in the Magistrates Court on 24 June 1996, when she was fined $480, a fine converted to 60 hours of community service, and no conviction was recorded.  She served the community service satisfactorily.

The learned District Court judge sentenced all four offenders at the one time.  He took into account the fact that the applicant was aged 18 years at the time of the offences, had no previous convictions and had pleaded guilty and made admissions.  He specifically considered the question of recording convictions and decided to do so in respect of the applicant and one other offender.  He was informed that the applicant was currently receiving Job Search Allowance and had made application to undertake a TAFE course in child care.  He was also told that she was pregnant, the baby being due in April 1997; and that the pregnancy might result in her application for the TAFE course being put "on hold".

Before us, the applicant, who was unrepresented, argued that a recorded conviction would prevent, or lessen her chance of, acceptance for the TAFE course or for a course run by the Lorraine Martin Academy in hospitality and tourism.  She submitted that it had always been her intention to undertake these courses, but that this had not adequately been put to the judge.  This was not a case where further evidence would have been admissible.  However, in the very unusual circumstances of this case, the Crown consented to a proposal for the Senior Deputy Registrar (Appeals) to enquire whether a criminal conviction would be an impediment to entry to either course, and for the Court to act upon the outcome of the inquiry.  That inquiry has been made and the Senior Deputy Registrar (Appeals) has reported that a criminal conviction would not be an impediment to gaining entry to a Lorraine Martin College course or a TAFE course.

The main factors to be considered in the exercise of the discretion to record or not record a conviction under s.12 of the Penalties and Sentences Act 1992 are those set out in s.12(2):^[1]

"12.(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."

Although the learned District Court judge did not spell out any detailed reasons for his decision to record convictions, it is apparent that on the material before him, only the applicant's age and previous unblemished recorded favoured not recording convictions.  The nature and number of offences, and the fact that two of them were committed while the applicant was on bail for the others, favoured the recording of a conviction.  There was (and is) no evidence that recording a conviction would have any impact on her economic or social wellbeing or her chances of finding employment. A bare possibility that a conviction may affect her prospects is insufficient.^[2]

In these circumstances, the applicant has not shown that the judge's discretion miscarried in any way.  Consequently, the application should be dismissed.