Meehan v Toman[2005] QDC 434

[2005] QDC 434

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No BD682 of 2005

BRISBANE

DATE 05/12/2005

ORDER

HIS HONOUR:  The appellant, Mr Toman, on the 10th of February 2005, pleaded guilty before a Magistrate to two charges.  One was brought under the Second-hand Dealers and Collectors Act 1984, in respect of a transaction relating to the acquisition of second-hand goods, namely, a quantity of jewellery, Mr Toman failed to forthwith enter in the Register of Transactions, the particulars. 

The other charge is brought under section 32(2) of the Pawn Brokers Act 1984 complaining that Mr Toman, "a licensed Pawn-Broker, failed to enter a fair and reasonable description of every article pawned in a transaction, namely, a quantity of jewellery". 

The period of the charges was "between the first day of January 2004, and the 26th day of August 2004".  The parties having agreed that it was appropriate to proceed by way of a single fine, the Magistrate made the following brief remarks:

"Well, it seems to me that a conviction should be recorded given the nature of the legislation that requires you comply with this particular requirement. There were compelling reasons why there should be accurate records kept and you should be well aware of what those compelling reasons are given the nature of the property with which you are dealing.  In all the circumstances, one penalty is imposed in respect of the two offences and convictions are recorded, and you are fined a sum of $800, default - two months' imprisonment.  You are allowed one month to pay.  Thank you, and good morning."

I would observe that the default imprisonment ordered seems draconian and totally out of line with the scale of equivalents which is conventionally adhered to these days.  The gravamen of the argument before the Magistrate was whether or not a conviction should be recorded. 

The explanation of his Honour's comments is the popular understanding that businesses such as the appellant's are much resorted to by persons dealing in stolen property.  That is the explanation for the legislative provisions which were admittedly breached - and not on single occasions, it is clear, but on numerous ones.

Mr Hungerford-Symes has made it clear there's not the slightest suggestion that Mr Toman was actively involved in any dishonest or suspicious conduct.  He has no criminal history.  The Prosecutor resiled from his tendering on the sentence of a criminal history which was not only very old, as was stated, but turned out to relate to someone whose name was spelt differently and who had a different date of birth.  Mr Toman is 58. 

Ms Ollenberg appearing for him asserted that he was taking responsibility for the deficiencies in recording of his staff, that:

"Most of the items up to 95 per cent are placed on public view and are readily identifiable, and are cross-referenced in the Register by serial numbers". 

It was stated and confirmed by the Prosecutor that audits subsequent to the one which unearthed the offences had revealed nothing untoward - supporting Mr Toman's assertion to the Magistrate that staff had been retrained.

In my opinion, Mr Eberhardt appearing for the appellant took too much from section 132C(2) and (3) of the Evidence Act in asserting that the Magistrate was bound and that this Court is bound to accept submissions of the kind that Ms Ollenberg made. 

In my opinion, those provisions permit the Court to accept unchallenged sentencing submissions without obliging the Court to do so. 

There is a subtle sting in the tail of the submission for the appellant, given the Prosecutor's unchallenged submission that "The defendant admitted that police had previously given him detailed instructions as to the prescribed manner of keeping records", which Mr Hungerford-Symes points to as allegedly showing such instructions being given before the period of the offences. 

It is not known, of course, what was the factual basis on which the Magistrate acted because he said nothing about it.  I do not think that this Court can proceed on the basis that he ought to have accepted everything that was placed before him. 

In this case, for example, I would not find myself persuaded that 95 per cent of the appellant's record keeping was beyond criticism or indeed that staff rather than he should be blamed for the instances of inadequate records.

Ms Ollenberg's submissions were presented in very general terms.  No acknowledgment of slipping up by identified staff members, confessing to it, was presented.  I do not accept the submission I took Mr Eberhardt to make that in a sentence appeal under section 222 of the Justices Act this Court may impose the sentence it considers appropriate, effectively ignoring what the Magistrate ordered.

If the sentence is within the proper range then this Court ought not to interfere any more than the Court of Appeal would in an appeal from a Judge's sentence, in my opinion.  While the matter was stood down, a search was made for authorities that might bear on this important question.  Mr Hunderford-Symes unearthed Couchy v. Birchley [2005] QDC 334, and made particular reference to paragraph [27].  That matter was not directly to the point, being a successful appeal against convictions. 

I was also referred to Duncalfe v. Cross [2005] QDC 091, in which the following appears at paragraph 9:  "This Court's power in an appeal of this kind is set out in section 225 of the Justices Act 1886.  The discretion is considered anew but subject to the settled principles."  I am not surprised that Mr Eberhardt submitted that there may be a contradiction in that pithy summary.  It seems that, following amendments to the legislation, the statutory reference should now be to section 223. 

Duncalfe was an unsuccessful appeal against the recording of a conviction; that is the central matter in this appeal, Mr Eberhardt having abandoned the aspect which complains of the quantum of fines which were fixed at two-thirds of the maximum available to the Magistrate at the time.  It might be noted that imprisonment of three months could have been ordered.  That is perhaps the explanation for the default imprisonment order noted above. 

Appeals against the exercise of a sentencing Court's discretion in relation to recording or not recording of a conviction under section 12 of the Penalties and Sentences Act are fairly common but not often successful. 

Mr Eberhardt pointed to R v. Brown, ex parte Attorney-General (1994) 2 Queensland Reports 182, in particular to statements of Macrossan CJ at 185 and Lee J at 193 to the effect that there is no room for any discrimination against mature age offenders such as the appellant.  Those expressions of principle meant that the Attorney-General failed in his appeal in which he had sought the recording of a conviction against a mature age offender convicted of dangerous driving causing death. 

The majority in the Court of Appeal emphasised that the factors listed in section 12(2) of the Penalties and Sentences Act are all important, that in principle, none is entitled to be accorded particular weight to the disadvantage of others - but of course it was accepted that in particular circumstances some factors rather than others may be significant. 

The other such appeal was by a youthful first offender, it is Bain CA 452 of 1996, BC9700800.  Despite her youth, the applicant there failed because it was "not shown that the Judge's discretion miscarried".  I think there is room for a good deal of dissatisfaction being felt by offenders who experience the recording of convictions when they become aware of circumstances similar or worse in which other offenders escape that embarrassment, but I also consider that it all comes down to whether it can be shown that a discretion miscarried. 

There was no particular material placed before the Magistrate to support the non-recording of a conviction.  It seemed to be accepted that the conviction would not prevent Mr Toman continuing to possess any relevant licences or authorities to authorise the conduct of his business. 

As the proprietor of a business it would not seem that he was in need of gaining employment.  No particular projects he had in mind such as overseas travel were pointed to.  It came down to the offences being first instances of regulatory type offending involving nothing dishonest or sinister or, perhaps, deliberate or systematic. 

I think, to an extent, it was being suggested that first offenders, in particular mature age first offenders with unblemished records, can expect not to have convictions recorded.  I do not think that is the approach of the courts, notwithstanding Brown, I think that Mr Toman lacks the claim to sympathy which youthful first offenders sometimes get. 

I may have made a different judgment if sitting at first instance.  I am totally unpersuaded that the Magistrate went wrong.  The need for general deterrence in this context is, I am inclined to think, important.  I am not persuaded that the Magistrate overlooked anything that was relevant. 

Accordingly, I dismiss the appeal.  I was informed that counsel had agreed that, whatever the outcome, no costs would be sought.