Geragotelis v Ruthenburg[2007] QDC 322

DISTRICT COURT OF QUEENSLAND

HIS HONOUR: Yes, all right, I am satisfied in the circumstances that it is appropriate to extend the time for appealing and in those circumstances I grant the application for an extension of time for filing a notice of appeal and I extend the time for filing of the notice of appeal until 18 October 2007.

HIS HONOUR: This is an appeal, following an extension of time allowed to the appellant for instituting the appeal, against a sentence imposed on her in the Magistrates Court at Southport for an offence of stealing.

She appeared in the Magistrates Court on 24 February 2006 charged with another person with stealing a dog kennel.

She was legally represented before the magistrate and the facts were put before the magistrate by the police Prosecutor.

The police Prosecutor also tendered a criminal history.

The solicitor appearing for the appellant then addressed the magistrate only in relation to the facts and also referred to the early plea of guilty.

Apart from that, nothing was put before the magistrate in relation to the appellant's personal circumstances, background, employment and likely future employment.

Of particular importance in the present circumstances is that neither the police Prosecutor nor the appellant's solicitor addressed the magistrate about whether she should record a conviction or not.

The criminal history presented to the magistrate contained the following entries: Maroochydore Magistrates Court, 1 November 2000, fraud - dishonestly gain benefit/advantage on 26 November 1999 and Police Powers and Responsibilities Act, contravene direction or requirement on 13 October 2000.  No convictions were recorded and a fine was imposed.

The next entry is also for the Maroochydore Magistrates Court on 19 March 2001, common assault, two charges on 10 November 2000.  No convictions were recorded and a fine was imposed.

The final entry was before the Southport Magistrates Court on 14 May 2003, stealing on 13 March 2003.  No conviction was recorded and a fine was imposed.  That was a case of shoplifting.

The appellant was born on 7 October 1983 and was therefore a juvenile when the first offence was committed.  For some reason she was dealt with in the Magistrates Court rather than the Childrens Court, but, nevertheless, because no conviction was recorded the magistrate dealing with the present offence committed by the appellant as an adult was not able to have regard to the fraud offence committed on 26 November 1999.

The magistrate did, in fact, have regard to that offence in her decision.

She took into account the following matters:  the plea of guilty, the fact that the offence was a fairly blatant stealing, the fact that the kennel was located at the appellant's address, the fact that the appellant had "some relevant previous for offences of dishonesty" and the fact that she did not "have a very serious history."

It is clear that the magistrate has taken into account the first offence of dishonesty on the appellant's criminal history and, for the reasons I have given, she should not have.

In that respect the sentencing discretion miscarried.

The present offence was committed on the 20 September 2005 at Bundall.

In disposing of the matter the magistrate said, "I'm going to convict and fine you $400.  In default of payment you will be ordered to serve 4 days’ imprisonment."

No conviction was recorded at that time and one would have thought that none was, in fact, recorded and that the provisions of section 12(3)(a) of the Penalties & Sentences Act applied.  That provides, "Except as otherwise expressly provided by this or any other Act a conviction without recording the conviction is taken not to be a conviction for any purpose."

However, as is apparent from the bench charge sheet, the magistrate at some stage in fact recorded a conviction.  That is apparent from a stamp on the bench charge sheet which states "Conviction recorded/not recorded" and the words "not recorded" have been crossed out.

The sentencing discretion clearly miscarried in relation to the recording of a conviction because the magistrate did not mention to the parties that she intended to do that and in fact it appears to have been, in effect, secretly recorded.  The fact that she intended to do that is not mentioned at all in the transcript.

Section 12(2) of the Penalties & Sentences Act is in the following terms:  "12(2) In considering whether or not to record a conviction a Court must have regard to all of the 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 well-being or (ii) chances of finding employment."

In the present case the magistrate did not apparently have regard to any of these matters and she should have.

It is not fair to a party to visit penal consequences on them without first giving them a chance to be heard.

The sentencing discretion, therefore, miscarried in this respect also.

In these circumstances it is open to me to exercise the discretion afresh.  In doing so I can have regard to what has happened to the appellant since 24 February 2006.

I can also have regard to her background and personal circumstances which were not placed before the magistrate and details of those are apparent from the material which has been filed by leave, without opposition, on the appeal.

Of particular significance is the following:  the appellant deposes that in or about March 2006 she commenced employment on a full-time basis as a senior property manager and real estate salesperson with Finance Group Australia Pty Ltd and Brilin Realty Pty Ltd. She obtained registration as a real estate salesperson pursuant to the provisions of the Property Agents and Motor Dealers Act 2000.

Her duties included selling properties, including travelling interstate, arranging the construction of properties, property management, including locating tenants for properties, liaising with tenants and collecting rental.

To carry out this work she must be licensed under the Property Agents and Motor Dealers Act as a real estate agent and property manager.

When she obtained this employment she was unaware that a conviction had, in fact, been recorded against her and that that fact would have adverse consequences upon her ability to continue to carry out that employment.

On 20 April 2007 she received a letter from the Department of Tourism, Fair Trading and Wine Industry Development advising her that her registration as a real estate salesperson was cancelled.  The letter was in part in the following terms:  "I'm writing in relation to your registration as a real estate salesperson number 3034018.  I wish to advise that this office has confirmed that you have been convicted of a serious offence under the Property Agents and Motor Dealers Act 2000.  Specifically, you were convicted on 24th February 2006 in the Southport Magistrates Court for stealing.  Under the Act an offence involving the use or threatened use of violence or an offence that involves fraud or dishonesty which carries a penalty of 3 or more years imprisonment is defined in Schedule 2 as a serious offence.  I wish to advise that under section 105 of the Act the registration certificate of a registered employee is cancelled if the employee is convicted of a serious offence."  And the appellant's certificate was cancelled.

Section 105(1) of the Property Agents and Motor Dealers Act 2000 provides that "The registration certificate of a registered employee is cancelled if the employee is convicted of a serious offence."

The dictionary in Schedule 2 defines "serious offence", so far as is relevant, as an offence involving fraud or dishonesty  punishable by 3 or more years' imprisonment.

The dictionary also defines conviction in the following terms:  "Conviction includes a plea of guilty or a finding of guilty by a Court, but does not include a plea of guilty or a finding of guilty by a Court if no conviction is recorded by the Court."  Clearly, "convicted" must have the same meaning.

So it is apparent then that the recording of a conviction in the present case has had serious consequences for the appellant.

The Court of Appeal in R v.Qualischefski, unreported, 12 August 1994 said "Where there is going to be an effect on the employment of the offender a sentencing Court will be reluctant to impose a conviction."

It is thus relevant that if the recording of a conviction will have a negative impact on employability that is clearly a relevant factor to take into account and I do.

I must also have regard to the developing criminal history of the appellant, except for the first entry on her criminal history.  She has been committing offences of one type or other at the rate of about one every second year.

So far she has had no conviction recorded in any case, but she should realise that should she continue to offend convictions may commence to be recorded.

In all of the circumstances I am not satisfied that a conviction should be recorded and, in fact, I am satisfied that one should not be recorded and I do not record one.

I will make these orders.  I allow the appeal and I set aside the decision of the magistrate to record a conviction for the offence of stealing of which the appellant was convicted on the 24 February 2006 in the Magistrates Court at Southport.  In lieu thereof I order that no conviction be recorded.

Now, costs?

MR REILLY:  No, it seems I'm precluded by section 232 subsection 4, your Honour.

HIS HONOUR:  What does that say?

MR REILLY:  "That no order as to costs may be made on the hearing or determination of an appeal in relation to an indictable offence dealt with summarily or any proceeding

preliminary or incidental to such a proceeding."

HIS HONOUR:  No costs?

MR REILLY:  Yes.

HIS HONOUR:  That's of the Justices Act, is it?

MR REILLY:  Yes, 232 subsection 4.

HIS HONOUR:  Yes, all right.  All right.

And I make no order for costs.

MR REILLY:  Thank you, your Honour.

HIS HONOUR:  Does that cover everything?

MR REILLY:  Thank you.

HIS HONOUR:  Ms Geary?

MS GEARY:  Yes, your Honour.

HIS HONOUR:  All right.