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Gordon v Macarthur[2019] QDC 15

DISTRICT COURT OF QUEENSLAND

CITATION:

Gordon v Macarthur [2019] QDC 15

PARTIES:

JANE GORDON

(appellant)

v

CONSTABLE M. MACARTHUR

(respondent)

FILE NO/S:

Appeal 155/18

DIVISION:

Civil

PROCEEDING:

Appeal under s 222 Justices Act 1886 (Qld)

ORIGINATING COURT:

Southport Magistrates Court

DELIVERED ON:

15 February 2019

DELIVERED AT:

Southport District Court

HEARING DATE:

14 February 2019

JUDGE:

Muir DCJ

ORDER:

The appeal is dismissed

LEGISLATION:

District Court of Queensland Act 1967 (Qld), s 118

Justices Act 1886 (Qld), s 222, s 223, s 225

Penalties and Sentences Act 1992 (Qld), s 12

CATCHWORDS:

CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – where applicant was sentenced on a plea of guilty to two counts of fraud – where applicant appealed against sentence on the ground that sentence imposed was manifestly excessive because a conviction was recorded – whether the sentencing judge erred in exercising discretion to record a conviction under s 12 Penalties and Sentences Act 1992 (Qld)

Buse v Commissioner of Police [2018] QDC 90

Harris v R (1954) 90 CLR 652

House v The King (1936) 55 CLR 499

Matta v Australian Competition & Consumer Commission [2000] FCA 729

R v Bain [1997] QCA 035

R v Bowley [2016] QCA 254

R v Briese: ex-parte Attorney General [1997] QCA 010

R v Brown; Ex Parte Attorney-General [1994] 2 Qd R 182

R v Bryant [2005] QCA 19

R v Bulmer [2000] QCA 248

R v Cay, Gersch and Schell; Ex-parte A-G (Queensland) [2005] QCA 467

R v CBQ [2016] QCA 125

R v Clemments [2010] QCA 38

R v Condoleon (1993) 69 A Crim R 573

R v Docherty [2009] QCA 379

R v Fullalove (1993) 68 A Crim R 486

R v Goodger [2009] QCA 377

R v Lawley [2007] QCA 243

R v McConnell [2018] QCA 107

R v Miles [2006] QCA 556

R v Morse (1979) 23 SASR 98

R v Sanders [2007] QCA 165

R v Tout [2012] QCA 296

R v Tsiaras [1996] 1 VR 398

R v Verdins [2007] VSCA 102

R v Yarwood [2011] QCA 367

Teelow v Commissioner of Police [2009] 2 Qd R 489

COUNSEL:

Mr J McNab for the appellant

I Quinn (sol) for the respondent

SOLICITORS:

Kroesen & Co Lawyers for the appellant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    This is an appeal under s 222 of the Justices Act 1886 (Qld) (“the Act”) against the sentence imposed on the appellant by the learned Magistrate at the Southport Magistrates Court on 23 May 2018.  On that date, the appellant was convicted on her own pleas of guilty of two charges of fraud as an employee pursuant to s 408C(1)(d)(2)(b) of the Criminal Code.  At sentence, the Magistrate imposed one fine of $5,000 for the offences.[1] Convictions were recorded.
  1. [2]
    By her notice of appeal filed 18 June 2018, the appellant submits the recording of convictions against her “in all the circumstances” was manifestly excessive. Leave was given without objection at the hearing of the appeal to add a further ground that the Magistrate did not have proper regard to the provisions of s 12 of the Penalties and Sentences Act 1992 (Qld) (PSA).

Relevant Legal Principles

  1. [3]
    Section 222(1) of the Act founds the appellant’s right of appeal to the District Court. Subsection (2)(c) provides that if a defendant pleads guilty, then there may only be an appeal on the ground that the punishment or penalty was excessive or inadequate.
  1. [4]
    Section 223 states that such an appeal is by way of re-hearing on the original evidence on the record. Section 225 empowers a judge to confirm, set aside, or vary an appealed order, or make any other order considered just.
  1. [5]
    It follows that the crucial question on an appeal under s 222(2)(c) is whether upon a proper review of the original record, the sentence was excessive.
  1. [6]
    To demonstrate that a sentence is excessive, an appellant must do more than show that other offenders have received lesser sentences for similar conduct; or that the sentence is markedly different from sentences in other cases.[2] Recently in R v McConnell,[3] Fraser JA (with whom Sofronoff P and Philippides JA agreed), identified the real issue in that case to be whether the sentence was manifestly excessive.  In doing so, his Honour observed that it is not established unless the sentence is “unreasonable or plainly unjust” such as to justify the conclusion “that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”.[4] 
  1. [7]
    There is a breadth of sentencing discretion and an obligation on appeal courts to respect the role assigned to those who have the “difficult task of balancing competing considerations of deterrence, protection of the community, denunciation of crime and vindication of victims’ rights on the one hand, and rehabilitation and compassion on the other.”[5] The capacity of the Appeal Court to interfere with the exercise of such a discretion is quite limited.[6]
  1. [8]
    On appeal, it is not a sufficient basis for this court to intervene, that this court considers it might have taken a different course between the competing considerations which have to be weighed in the exercise of the discretion.[7] It must appear that some error has been made in exercising the discretion of the kind identified in House v The King.[8] If the Magistrate acted upon a wrong principle, if he allowed extraneous or irrelevant matters to guide or affect him, if he made a mistake about the facts, if he did not take into account some material consideration, then the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.[9] 
  1. [9]
    As King CJ observed in R v Morse:[10]

“To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender… I bear in mind that this Court should not interfere with the sentence simply because its members would have imposed a lower sentence themselves, but only when they are satisfied that, having regard to all relevant factors, the sentence imposed is beyond the acceptable scope of judicial discretion.” [Emphasis added]

The real issue for my determination

  1. [10]
    It follows from the above analysis that the real issue for my determination is whether the Magistrate erred in the exercise of the discretion conferred by s 12(1) of the PSA in recording a conviction such that it resulted in a sentence that is excessive in the circumstances of this case.

The hearing below

  1. [11]
    The appellant was between 56 and 57 at the time of the offending. She was 58 at the time of sentence. Her offending involved her stealing from her employer the Cole Group Pty Ltd trading as Air Control Services.
  1. [12]
    The appellant had no criminal history and some irrelevant traffic history. She previously offered and subsequently paid the outstanding restitution amount on the day of sentence.

The police prosecutor’s submissions

  1. [13]
    The appellant’s offending in relation to the first charge involved her accessing her employer’s internet banking facility to complete two transfers totalling $2,148, from the company’s bank accounts into her own personal bank account without authorisation. The appellant later repaid $1,200 of that back into the company’s bank account. In an initial interview with police the appellant claimed she had the permission of the company director to complete the first transfer, which she did not.
  1. [14]
    The second charge related to the appellant’s unauthorised use, on separate nine occasions, of a business debit card, for which she had been provided a unique pin number for personal expenses ranging from payments for petrol to a physiotherapy session, and payment for the service of her husband’s vehicle. The total of these nine transactions was $1,470.39. The appellant had repaid $910.28 of that amount. In an interview with police the appellant contended that she had the permission of the company director to use the card on a number of those occasions, which she did not.
  1. [15]
    The second charge is an amalgamation of what was initially particularised as nine individual charges. Charges 3 to 10 were subsequently discontinued by the police prosecutor.
  1. [16]
    The total quantum of the amount taken by the appellant from her employer between 15 September 2016 and 6 June 2017 was $3,618.39.
  1. [17]
    A victim impact statement written by one of the directors of Air Control, Mr Barnes, was tendered by police prosecutions. This statement outlined the repercussions of the appellant’s offending on the business as well as the personal lives of the directors. The statement referred to large sums of money that were not the subject of the charges before the Magistrate and the prosecutor quite properly submitted the court ought to place little weight on the reference to those matters that were not before the court. It was submitted that the appellant’s conduct had a significant impact on the company in a broader sense.
  1. [18]
    The police prosecutor submitted that a fine was insufficient punishment and that a period of community service was warranted. He emphasised that the charge of stealing as an employee was serious and that despite the fact that the appellant did not have a criminal history, it was a case where a conviction “could” be recorded. The thrust of the police prosecutor’s submission was that it was an appropriate matter to record a conviction considering the appellants age and that future employers were entitled to know about this type of offending. He submitted that it is not the role of the court to take that away from the employer.
  1. [19]
    The police prosecutor tendered without objection the material that he had been provided by defence counsel which included three references and two doctor’s reports. He did not make any submissions about the contents of the material.

Defence submissions

  1. [20]
    In mitigation of sentence the appellant’s solicitor referred to the plea of guilty being an early one and he also referred to full restitution being paid. He outlined the appellant’s personal circumstances to be that she been married for 36 years with two adult children and that until 2017 she had worked in various roles within the air-conditioning industry. He also referred to the appellant’s ongoing back injury which she was suffering from at the time of her offending.
  1. [21]
    The appellant’s solicitor relied on a letter from Dr Morrell a general practitioner based at Doctors at Coomera [exhibit 3] to support his submission. Dr Morrell’s stated the purpose of her letter was to provide information regarding the appellant’s medical problems in particular that the appellant had suffered severe chronic back pain [which from her notes was first reported in March 2016]. The letter referred to the appellant’s unsuccessful back surgery in May 2017.[11]  Relevantly Dr Morrell opined that the appellant:

“… had been requiring high doses of analgesics for a long period from Jan 2017 which included a cocktail of medication, Targin, Valium, Endone and Tramal. This combination of medication would have impaired her judgement and caused drowsiness as a result. This was approx. from Jan 2017 until recently where her last script of Tramal was in March this year 2018.”

  1. [22]
    Three letters tendered into evidence on the appellant’s behalf included one from her husband who described her behaviour on medication after her back surgery as “bizarre”. The references spoke highly of the appellant as a devoted wife, mother and grandmother. All three references described her offending to be out of character and observed the appellant to have been acting oddly and that there had been a negative change in her demeanour while using the prescribed pain medication.
  1. [23]
    The appellant’s solicitor submitted that it was a not matter that required the imposition of a custodial sentence and that a fine was appropriate. He emphasised that the appellant could not undertake community service due to her ongoing back condition.
  1. [24]
    In support of his submission that no conviction ought to be recorded, the appellant’s solicitor referred to s 12 of the PSA and emphasised that the appellant was a mature woman with a previous unblemished record who hoped to enter the workforce in the coming years if her health allowed her to do so. He argued that the non-recording of a conviction was appropriate because, as a mature woman, such a conviction would have a detrimental impact on her prospects of obtaining employment in the future.

The Magistrate’s reasons

  1. [25]
    After identifying that he had “very much taken into account” the appellant’s guilty plea, the learned Magistrate identified [wrongly] that each of the charges carried a maximum period of imprisonment of 14 years. The relevant aspects of his reasons are as follows:-

“It’s – in the good old days when people were sent to Australia for stealing a loaf of bread, you were hung for stealing from your employer.  It’s regarded as one of the more serious charges by the fact that it is a 14-year offence. The reason is because the employers are unable or it’s difficult for an employer to detect and recover sometimes from the nature of these sorts of offending.  I’ve very much taken into account the victim impact statement from Mr Barns for two reasons:  one is that it tends to confirm to me that you were not yourself.  You were not the person who he knew and trusted during the relevant period during which you clearly suffered from the impacts of your injuries.

Whether it was the operation or drugs, etcetera, these incidents were out of character for you, being a mature woman who has otherwise only a modest traffic history to your name.  It’s also clear that the company, Air Control Proprietary Limited, suffered severe problems because of problems with your work performance, but I’m not sentencing you for being a bad worker. That is a matter between employers and employees.  And while Mr Barns and the company have suffered some severe losses because of the way you did or didn’t perform your work, that doesn’t seem to me – that seems to be the obvious source of the distress which he details in the victim impact statement rather than the dip in cash flow due to these amounts of money having been out of the account for some time.

I also take into account that the restitution was paid, but I note that it’s paid only on the morning of your sentence.  Greater remorse could’ve been shown if it was paid earlier. It has the pattern of – this material – of someone who was struggling financially and dipped into the till, as it were.  The amounts are modest.  Some were repaid at the time.  They are all repaid now.  While they span a period of time, there are not that many discreet incidents.  It’s not appropriate that you perform community service, and I doubt that you need to be placed on probation.  This has clearly had an effect upon you and your family as well as the company.

In the circumstances, I’m satisfied that for an economic crime the appropriate penalty is an economic penalty.  It relation to charges 3 to 10, the prosecution having offered no evidence, that is dismissed and you’re discharged.  In relation to charges 1 and 2, I’ll impose one fine of $5,000 which I’ll refer to SPER for collection.  Mr Donnelly has quite correctly addressed most of his attention on the question of whether I should record a conviction or not.  It’s sometimes the case that people who are charged with offences of stealing from the till when they’re a 15 year old at McDonalds will get no conviction recorded. 

In these circumstances I have a period of conduct that extends from September 2016 to June 2017 involving approximately 10 transactions.  In those circumstances, and recognising that it will have a serious impact on you, that impact is something that, in effect, you brought upon yourself.  I think it’s very appropriate that employers know about the people who they are employing, and for that reason I will be recording a conviction.” [Emphasis added]

  1. [26]
    After the sentence was imposed and in an attempt to correct the Magistrate’s remarks about the late payment of restitution, the appellant’s solicitor sought to tender an email dated 27 March 2017 to show that there had been an offer of full restitution well prior to the date of the sentence. The Magistrate responded that “It wouldn’t make any difference….whether it was then or now. My point is merely that is wasn’t at the time of all this all coming out”.

Legal principles relevant to the discretion to record or not record a conviction

  1. [27]
    Whether or not to record a conviction is a matter of court discretion. The relevant factors that need to be taken into account are set out in s 12 of the PSA as follows:

12  Court to consider whether or not to record conviction

  1. (1)
    A court may exercise a discretion to record or not record a conviction as provided by this Act.
  1. (2)
    In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—
  1. (a)
    the nature of the offence; and
  1. (b)
    the offender’s character and age; and
  1. (c)
    the impact that recording a conviction will have on the offender’s—
  1. (i)
    economic or social wellbeing; or
  1. (ii)
    chances of finding employment.
  1. [28]
    In R v Brown; Ex Parte Attorney-General,[12] Macrossan CJ explained the correct approach to the exercise of the discretion conferred by s 12 as follows:[13]

“Where the recording of a conviction is not compelled by the sentencing legislation, all relevant circumstances must be taken into account by the sentencing court. The opening words of s 12(2) of the Act say so and then there follow certain specified matters which are not exhaustive of all relevant circumstances. In my opinion nothing justifies granting a general predominance to one of those specified features rather than to another. They must be kept in balance and none of them overlooked, although in a particular case one, rather than another, may have claim to greater weight.” [Emphasis added]

  1. [29]
    In R v Briese: Ex-parte Attorney General,[14] the court held that in exercising its discretion as to whether or not to record a conviction, the court must balance the public interest in having notice of a criminal history, against the interests of the offender and his or her prospects for rehabilitation. Relevantly, the court observed that:[15]

“It is therefore obvious that the effect of such an order is capable of considerable effect in the community. Persons who may have an interest in knowing the truth in such matters include potential employers, insurers, and various government departments including the Immigration Department... it is enough to note that the making of an order under s. 12 has considerable ramifications of a public nature, and courts need to be aware of this potential effect. In essence a provision of this kind gives an offender a right to conceal the truth, and it might be said, to lie about what has happened in a criminal court. On the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received.”

  1. [30]
    When considering the issue of the impact of a conviction on a person’s employment prospects, the Court of Appeal observed in R v Sanders[16] that a bare possibility that a conviction may affect an offender’s economic or social wellbeing or chances of finding employment is insufficient.[17]
  1. [31]
    In R v Cay, Gersch and Schell; Ex-parte A-G (Queensland)[18] de Jersey CJ relevantly observed:[19]

“Prudence dictates that where this issue is to arise, Counsel should properly inform the court of the offender’s interests in relation to employment, and his relevant educational qualifications and past work experience, etc, so that a conclusion may be drawn as to the fields of endeavour realistically open to him; and provide a proper foundation for any contention a conviction would foreclose or jeopardize a particular avenue of employment. Compare R v Fullalove (1993) 68 A Crim R 486, 492.”

  1. [32]
    Also in Cay, Gersch and Schell Keane JA (as his Honour then was) expressed the view (which de Jersey CJ did not demur from) that:[20]

“…the existence of a criminal record is, as a general rule, likely to impair a person's employment prospects, and the sound exercise of the discretion conferred by s 12 of the Act has never been said to require the identification of specific employment opportunities which will be lost to an offender if a conviction is recorded. While a specific employment opportunity or opportunities should usually be identified if the discretion is to be exercised in favour of an offender, it is not an essential requirement.[21] Such a strict requirement would not, in my respectful opinion, sit well with the discretionary nature of the decision to be made under s 12, nor with the express reference in s 12(2)(c) to ‘the impact that recording a conviction will have on the offender's chances of finding employment (emphasis added). In this latter regard, s 12(2)(c) does not refer to the offender's prospects of obtaining employment with a particular employer or even in a particular field of endeavour.” [Emphasis added]

Analysis of the parties submissions

  1. [33]
    In support of the appellant’s submission that the Magistrate did not have proper regard to s 12 of the PSA, it was argued that he misdirected himself when he stated that “It’s sometimes the case that people who are charged with offences of stealing from the till when they’re a 15 year old at McDonalds will get no conviction recorded”. I accept that this comment and the Magistrate’s comment at the outset that “It’s – in the good old days when people were sent to Australia for stealing a loaf of bread, you were hung for stealing from your employer” are not relevant to the exercise of the Magistrate’s discretion. But the question is whether these observations affected or infected the exercise of the discretion in a material way. In my view, for the reasons discussed below, such comments, whilst unnecessary, did not distract the Magistrate from turning his mind to the matters relevant to the exercise of his discretion in this case.
  1. [34]
    The appellant points to the Magistrate referring to the maximum penalty of the charges as 14 years imprisonment as an error. I accept that the correct maximum penalty for the offence is 12 years. But in my view this mistake did lead to an error in the exercise of the discretion. The point the Magistrate was making is that the offence is considered to be a serious one. In my view it did not otherwise affect the sentence, particularly given that the penalty imposed was a fine and not a period of imprisonment.
  1. [35]
    The appellant submits that the Magistrate placed excessive weight on the appellant’s overall offending conduct and insufficient weight to factors such as the appellant’s age, her lack of criminal history, her offer of restitution both at and prior to the sentence and her significant health issues which required strong pain medications which she was on at the time of the offending.
  1. [36]
    Whilst the offending conduct could hardly be described as sophisticated, it was carried out without detection for a considerable period of time, [around nine months from September 2016 until June 2017] and it involved approximately 10 transactions. It was carried out by a trusted employee on a trusting employer.
  1. [37]
    The appellant relies on Dr Morrell’s opinion that the combination of medication would have impacted the appellant’s judgment at the time of the offending. Quite generously in my view, the Magistrate accepted the medical evidence in this case. He expressly took into account that the medication and drugs the appellant was on at the time of her offending meant that the appellant was not herself and her offending was out of character.
  1. [38]
    It was not argued before the Magistrate that the evidence was sufficiently cogent to support a submission of a reduction in moral culpability such that general deterrence was more important. Although on appeal before me that argument was maintained.
  1. [39]
    In R v Tsiaras,[22] the Victorian Court of Appeal made a number of observations concerning the relevance of a serious psychiatric illness not amounting to insanity and its relevance at sentencing as follows:[23]

“Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways.  First, it may reduce the moral culpability of the offence, as distinct from the prisoners’ legal responsibility.  Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.  Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence.  The illness may have supervened since that time.  Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such.  Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.” [Emphasis added]

  1. [40]
    Later, the Victorian Court of Appeal in R v Verdins,[24] revisited these principles, specifically noting in relation to general deterrence at sentencing that:[25]

“32…

  1. Whether general deterrence should be moderated or limited as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.”
  1. [41]
    In R v CBQ[26] the Court of Appeal relevantly observed:[27]

“It may be accepted that, as a matter of principle, impaired mental functioning may reduce the moral culpability of offending conduct. Where that is so, the condition affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective.”[28] [Emphasis added]

  1. [42]
    It is uncontroversial that the evidence needs to show that the impaired mental functioning was relevant to the applicant offender.[29]  In R v Rix,[30]  Gotterson JA made the following observations which are apposite to the present circumstances:

[55] Secondly, and importantly, in instances in Queensland and comparable jurisdictions where an offender’s PTSD, suffered as a result of active military service, has been recognised on sentencing, what has attracted recognition has not been the mere fact of the condition or its origin, but rather the relevance to the offender’s culpability for the offending, the need for deterrence and the prospects of rehabilitation, that the condition itself or its symptoms or sequelae may have.” [Emphasis added]

  1. [43]
    In my view the medical evidence was relevant to the appellant’s personal circumstance and went some way to explaining her offending behaviour. But it did not go so far as to establish a direct link between the appellant’s offending such that her moral culpability for her conduct in this case was reduced. Further and relevantly the offending period started in September 2016. The evidence of Dr Morrell was that the high doses of analgesics were necessary from January 2017. Other evidence referred to the problem with medication after her operation. The appellant’s operation was in May 2017 – that is just prior to the end of the offending period. It follows the medical evidence of her use of medication did not cover the entire offending period.
  1. [44]
    In my view, whilst the Magistrate did not expressly state he was considering all of the factors in s 12(2) of the PSA, he clearly turned his mind to all of the relevant considerations in this section, after having heard submissions from both parties on the issue.
  1. [45]
    The Magistrate correctly referred to the nature of the offence [12(2)(a)] as a serious one given that these offences are difficult to detect by the very nature of the trust employers place in employees. He observed that the amount was modest and had been repaid. He also, in my respectful view, quite correctly observed that he was not sentencing the appellant for “being a bad worker” and distinguished as he ought to, the extraneous matters contained in the victim impact statement.
  1. [46]
    He also considered the appellant’s character and age [12(2)(b)]. He referred to her as a mature woman with a modest traffic record and accepted that the offending was out of character for her, and that she was “not herself”. The learned Magistrate described the offending as “it has the pattern of – this material – of someone who was struggling financially and dipped into the till, as it were”.
  1. [47]
    The Magistrate specifically stated that he accepted that the recording of a conviction would have an impact of the appellant’s economic or social wellbeing and chances of finding employment [12(2)(c)(i)and(ii)]. During the course of the hearing, the Magistrate was told that the appellant “hopes to enter the workforce in coming years if her health allows her to do so”. The evidence was that the appellant was still experiencing back pain and it was unclear if an epidural steroid injection would be able to relieve her symptoms. The Magistrate expressly accepted a conviction would have a serious impact on the appellant’s employment but considered that it was more appropriate that employers know about the people they are employing.
  1. [48]
    As Kiefel J (as her Honour then was) observed in Matta v Australian Competition & Consumer Commission,[31] where an offence is directly related to an offenders calling, the public, the authorities and potential employers, when evaluating the appellant’s suitability for future employment, are entitled to know of what is, after all, the truth of the matter. 
  1. [49]
    On appeal, the respondent conceded that in the present case it would have been open for the Magistrate in the exercise of his sentencing discretion to have imposed a fine without recording a conviction. But whether or not there was any error in the exercise of the sentencing discretion such as to justify this court in re-sentencing the appellant is a different question.
  1. [50]
    As the respondents submit, offences of fraud which include a breach of trust of stealing as a servant attract a wide range and penalties and frequently penalties of imprisonment for mature aged woman with no previous convictions who have demonstrated remorse.[32] I also accept that when regard is had to the decision of R v Bryant[33] which involved a 23 year old applicant who pleaded guilty by way of ex officio indictment to one count of stealing as servant [the amount involved being $3,920] who was sentenced to 19 months’ probation, 200 hours community service with a conviction recorded, the appellant’s’ sentence of a fine of $5,000 with a conviction recorded is within the sound exercise of the sentencing discretion. 

Conclusion

  1. [51]
    Upon the above analysis, in my view the Magistrate took into account all of the relevant factors as required under s 12 of the PSA. He gave appropriate weight to all of the material considerations in the appellant’s favour in undertaking the difficult balancing exercise of formulating an appropriate sentence. Whilst another Magistrate case may well have exercised the discretion under s 12 of the PSA differently in this case [to not record a conviction], the imposition of a conviction was not excessive.

Orders

  1. [52]
    It follows and I order that the appeal is dismissed.

Footnotes

[1]  The payment of which was referred to the State Penalties Enforcement Registry.

[2] Buse v Commissioner of Police [2018] QDC 90 at [12] per Farr SC DCJ with reference to R v Tout [2012] QCA 296 at [8] per Fraser JA.  

[3]  [2018] QCA 107.   

[4]  Ibid at [15], with reference to House v The King (1936) 55 CLR 444 at 504-555. 

[5] R v Lawley [2007] QCA 243 at [18].

[6] Harris v R (1954) 90 CLR 652 at pp 655 and 666, per Dickson CJ, Fullagar, Kitto and Taylor JJ.

[7] R v Lawley [2007] QCA 243 at [18].

[8]  (1936) 55 CLR 499 at 504-505. 

[9] Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4].

[10]  (1979) 23 SASR 98 at pp 99 and 100.

[11]  A letter dated 8 May 2018 from Dr Koshti an orthopaedic Spine Surgeon at Gold Coast Spine confirming the appellant’s back operation and the post operation difficulties was the second medical report tendered and relied upon at the sentence.

[12]  [1994] 2 Qd R 182 at 185.

[13]  Cited with approval in R v Sanders [2007] QCA 165 at [12].

[14]  [1998] 1 Qd R 487.

[15]  Ibid at p 491.

[16]  [2007] QCA 165 at [13]-[16].

[17]  With reference to the R v Bain [1997] QCA 035; R v Cay, Gersch and Schell; ex-parte A-G (Queensland) [2005] QCA 467 at [7] per de Jersey CJ.

[18]  [2005] QCA 467.

[19]  Ibid at [8].

[20] R v Cay, Gersch and Schell; Ex-parte A-G (Queensland) [2005] QCA 467 at [43].

[21]  See R v Condoleon (1993) 69 A Crim R 573 at 576; R v Fullalove (1993) 68 A Crim R 486 at 492 - 493.

[22]  [1996] 1 VR 398.

[23]  Ibid at p 3.

[24]  [2007] VSCA 102.

[25]  Ibid at [32]: see also R v Yarwood [2011] QCA 367 at [24]: R v Bowley [2016] QCA 254 at [34] (where P Lyons J followed the reformulation of principles in Verdins stating that they were the current relevant principles).

[26]  [2016] QCA 125 at [31].

[27]  Ibid at [31].

[28] R v Tsiaras [1996] 1 VR 398 at 400: R v Verdins [2007] VSCA 102: (2007) 16 VR 629 at [5], [32].

[29]  cf R v Goodger [2009] QCA 377 at 21.

[30]  [2014] QCA 278 at [55].

[31]  [2000] FCA 729 at [12] and [13].

[32] R v Clemments [2010] QCA 38, R v Bulmer [2000] QCA 248, R v Miles [2006] QCA 556 and R v Docherty [2009] QCA 379.

[33]   [2005] QCA 19.

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Editorial Notes

  • Published Case Name:

    Jane Gordon v Constable Macarthur

  • Shortened Case Name:

    Gordon v Macarthur

  • MNC:

    [2019] QDC 15

  • Court:

    QDC

  • Judge(s):

    Muir DCJ

  • Date:

    15 Feb 2019

Appeal Status

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