Kent v Arley [2007] ACTSC 66

3. The only real discussion that occurred then between counsel and the learned Magistrate was in relation to reparation orders. There was no submission made at all in relation to a potential disposition which was to exercise the discretion.

4. It has long been a feature of ACT law now found in s 17 of the Crimes (Sentencing) Act 2005, which allows a sentencer to find an offender guilty of an offence, but to deal with the offender in a manner which does not require the recording of a conviction. That can be done after the Court considers the offender's character, antecedents, age, health, medical condition, seriousness of the offence and any extenuating circumstances in which the offence was committed. This is a case which, on its face, was suitable for the exercise of that discretion.

5. The learned Magistrate was not taken to that and was not given the benefit of any submissions in relation to that, which is unusual and does seem to me to amount to a basis for this Court to intervene. I note that the Crown in its submissions did not demur from that proposition. It seems to me, therefore, that there was an error not on the part of the Magistrate. The learned Magistrate was lead into a position where the sentence she imposed can be subject to appellate review, because she was not taken to the section or given any submissions or material that would allow her to enliven her discretion to not impose a conviction.

6. The justification does not impose a conviction which is a disposition in which the Crown acknowledges in its written submissions would be appropriate in this case. Essentially, it seems to me to go to the appellant's character, antecedents, age and general situation. These offences occurred when the appellant was a young woman who had recently arrived in Australia, a woman of otherwise good character. She has put herself through university here, obtained a graduate qualification in psychology and intends to move into that important area of work and is otherwise a person of high character.

7. The offence itself was charged by the Crown as minor theft and that is significant because the facts of this offence would well have justified a higher level of charge, but did not. I must regard that, although this was an offence committed by an employee, it is at the lower end of the scale.

8. I am very mindful, and I was taken in the evidence today that the appellant is a person who is not an Australian citizen and is in the process of applying for permanent residency. I note that generally in relation to extenuating circumstances, I am reminded that the Court of Appeal here has been taken on a number of occasions to decisions of other State courts of appeal which we have endorsed that says that cannot be the balancing factor. A sentencing judge or magistrate would err if they exercise this discretion purely in order to avoid what would otherwise be the inevitable consequence of migration offences. Generally speaking, that is in the context of a much higher range offences than here.

9. It seems to me that regardless of the appellant's immigration circumstances, she is a person really for whom the section was designed. It is, in a sense, Parliament's clear indication that young people sometimes make a mistake and the community says, in a sense, people are entitled to one mistake, and to put that problem behind them and not record a conviction, and the appellant, it seems to me, is a person who otherwise presents as a person who is going to go on and make something of her life and be a valuable member of this community, as a citizen, as a permanent resident, engaging in worthwhile activities.

10. Regardless of her immigration status, she is a person who was clearly eligible to have this discretion exercised in her favour. The learned Magistrate was led into error by not being provided with any submissions or any material pointing her to why that discretion ought to be exercised, and it seems appropriate on this appeal which is now only against a sentence and, in circumstances where reparation has been acknowledged and will be paid, to exercise the discretion and set aside the conviction.

11. Therefore, the conviction is set aside and in lieu therefore, it will be recorded that pursuant to s 17 of the Crimes (Sentencing) Act, that no conviction is recorded.

12. Even though I have ordered that no conviction be recorded, the appellant should be aware that this offence will remain on the police database and should she re-offend it will be on her criminal record, but I expect never to see the appellant again in court.

13. The reparation order will remain. I did indicate that that had been acknowledged and that in fact is a factor to take into account in exercising the discretion. So that the only difference in the sentencing is that the conviction is set aside.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.**

Solicitor for the appellant: Romano Satsia Kordis - Legal

Solicitor for the respondent: ACT Director of Public Prosecutions