R v Graham

This case was an unsuccessful application for leave to appeal against sentence. The sole ground of appeal was that the sentencing judge failed to consider s 12(2)(c) Penalties and Sentences Act 1992 when deciding whether to record a conviction. Justice Kelly (with whom Mullins P and Bond JA agreed) referred with approval to the observations of Sofronoff P in R v ZB [2021] QCA 9 and held that the sentencing judge had properly considered s 12(2)(c) Penalties and Sentences Act 1992. Notwithstanding the significant consequences for the applicant if convictions were recorded the Court of Appeal held that there was no House v The King error. Leave to appeal against sentence was refused.

Mullins P, Bond JA and Kelly J

13 June 2023

Background

The applicant entered a plea of guilty to three counts of fraud contrary to s 408C(1)(e) Criminal Code 1899.[3]. He had provided services to a design and construction company (the “company”). [6]. Pursuant to his arrangement with the company he issued invoices payable to his own company and payable to his company’s subcontractors. [6]. It became apparent that the applicant had forged invoices payable to his company’s contractors over a period of 12 months. [7]. He dishonestly caused a detriment of $5,144.97. [7]. The applicant was sentenced to 100 hours of unpaid community service and ordered to make restitution. [3]. Convictions were recorded. [3]. The applicant sought leave to appeal against sentence on the basis that, when deciding whether or not to record convictions, the sentencing judge failed to have regard to s 12(2)(c) Penalties and Sentences Act 1992 which provides as follows:

“12Court to consider whether or not to record a conviction

…

(2)In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—

…

(c)the impact that recording a conviction will have on the offender’s—

(i)economic or social wellbeing; or

(ii)chances of finding employment.”

Whether there was a failure to have regard to s 12(2)(c) Penalties and Sentences Act 1992

Justice Kelly (with whom Mullins P and Bond JA agreed) approved the observations of Sofronoff P in R v ZB [2021] QCA 9. [5]. A sentencing judge must consider the potential benefits and detriments to the community in deciding whether to record a conviction. [5]. The question is whether the public interest is better served by not placing the obstacles created by a recorded conviction in the path of an offender towards rehabilitation. [5]. The sentencing judge had made specific reference to s 12(2)(c) Penalties and Sentences Act 1992 but decided that it was appropriate to record convictions. [15]. The sentencing judge considered and took into account the consequences of recording convictions with reference to the personal circumstances of the applicant including his ability to be the holder of a statutory licence and a company director. [15]. No specific error could be demonstrated. [15].

Disposition

Leave to appeal was refused. [1]–[2], [16].

D Kerr