Re Stutz v Morrow [2000] QPEC 1

The Police Prosecutor informed the Magistrate that the informant in relation to these matters is a loss prevention officer employed by Woolworths at Runaway Bay. The informant reported to Police that the appellant had attended on eighteen occasions at various Woolworths and Target stores in the Brisbane area to return items in return for credit vouchers. The products returned by the appellant were health tablets. No receipt was produced by the appellant on any of these four occasions but because the value of the tablets on each occasion was only $18.70 no requirement was made for the appellant to state a reason for her returning the tablets.

In relation to the charges before the Magistrate on 5 July, 1999 the prosecutor stated that the appellant had attended the Woolworths store at Runaway Bay on 23 May 1998. On that occasion the appellant returned a quantity of health tablets valued at $18.70 and used her drivers licence as identification. She then completed the refund slip with her details and was issued a credit voucher of $18.70.

The solicitor for the appellant in the court below informed the Magistrate that the charges before the Court represented only two of some thirty-eight charges that had been brought against the appellant and to which she had pleaded guilty. Six charges were dealt with at the Beenleigh Magistrates Court where the appellant was placed on a good behaviour bond on her recognisance of $1,000.00. Thirty of the charges were dealt with at the Brisbane Magistrates Court where the appellant was fined $750.00. The charges before Mr Owens, S.M. were the last of the matters to come before the Magistrates Courts.

The Magistrate, understandably, asked why the charges had been dealt with at different courts. He was informed by the appellant's solicitor that the appellant had originally been charged with fraud and stealing and that all matters had been committed to the District Court at Brisbane. The Director of Public Prosecutions Office had subsequently substituted the summary charges for the indictable offences and as a result of that decision the appellant was dealt with in the Magistrates Court at Beenleigh, Brisbane and Southport.

Mr Owens, S.M. expressed concern that pleas of not guilty had been entered on an earlier occasion by the appellant and the matter had been set down for trial. This was obviously a matter to which the Stipendiary Magistrate was entitled to have regard as the pleas of guilty to the two charges were notified to the court only on the day of sentence which had originally been set aside as the trial date. The solicitor who appeared for the appellant in the Magistrates Court gave conflicting and quite unsatisfactory explanations as to why pleas of not guilty had originally been entered.

In mitigation it was submitted on behalf of the appellant in the court below that the offences occurred in a relatively short period of time between 4 April and 23 May, 1998. The appellant at the time was in a relationship with a man by the name of Hutchinson. It was submitted that Hutchinson would supply the appellant with the health tablets and drive her to various shops around Brisbane and the Gold Coast.

The appellant began co-habitating with Hutchinson in September of 1997 and within a few months became aware that Hutchinson was addicted to heroin. The relationship deteriorated with Hutchinson stealing from the appellant and becoming violent towards her. In October 1997 the appellant obtained a domestic violence order against Hutchinson. However, shortly thereafter the appellant foolishly returned to live with Hutchinson.

It was submitted that the appellant was suffering from a disease known as Scheuermann's Disease which is a degenerative spinal disease. Hutchinson would drive the appellant from the Pain Clinic at the Royal Brisbane Hospital to various stores around Brisbane in order to exchange quantities of health tablets for credit vouchers. He told the appellant that he had no identification and it was submitted on her behalf that at first she believed that the health tablets had been obtained legitimately. The appellant soon became suspicious but because the couple was under a lot of financial pressure and because the appellant feared Hutchinson, she continued to return the tablets to the various stores. Eventually the appellant ended the relationship with Hutchinson some two months after committing the offences.

The appellant's solicitor informed the Stipendiary Magistrate that the appellant was 37 years of age and 36 at the time the offences were committed. She was a single woman on the disability pension because of her Scheuermann's Disease. The Magistrate was told the appellant was unable to work but was hopeful that a cure may be found for the disease which would enable her to work again. Prior to her illness the appellant had a solid work history having worked for thirteen years overseas in the hospitality and tourism industry. She had also worked up until 1997 in Port Douglas and at holiday resorts around Queensland.

The appellant's solicitor asked the Magistrate to take into account that the appellant's criminal history was not long and that there were no like offences on the criminal history. In fact the criminal history contained entries in respect of obscene language (in 1979), possession of a prohibited plant (in 1980) and a seat belt offence (in 1998) which resulted in the granting of a five option order. That order was subsequently breached. The Magistrate was asked to take into account that the appellant had co-operated with the authorities to the extent that she arranged to meet with Police on at least two occasions to enable notices to be served upon her to appear in relation to the summary charges. The Magistrate was also asked to take into account the sentences imposed at the Magistrates Courts at Beenleigh and Brisbane which related to a significantly greater number of charges.

The appellant's solicitor requested that no conviction be recorded having regard to the appellant's previous work history in the hospitality industry and her hope to be able to return to that industry, should her health permit.

Finally, the Magistrate was asked to take into account the fact that the appellant had pleaded guilty to the charges before him.

The Stipendiary Magistrate in response to the last submission stated:-

"I have to take that into account, but I have already let it be known she is not entitled to a lesser penalty for early or a timely plea".

The Stipendiary Magistrate then stated as follows:-

"You are convicted of these two offences and a combined fine of $500.00 is imposed for the two offences. In addition to that, you are ordered to pay $18.70 restitution. If you fail to pay these monies you are liable to be jailed for seventeen days. Three months is allowed to pay these monies".

Before me it was submitted by counsel for the appellant that the offences before the Stipendiary Magistrate in Southport on this occasion were `clear-up offences'. The appellant was sentenced by Miss Tynan, S.M. in the Brisbane Magistrates Court on 25 May 1999 in relation to fifteen charges of imposition and thirteen charges of tainted property. These offences occurred between 14 April 1998 and 13 May 1998 during which time she attended Woolworths and Target stores on some twelve occasions in relation to returning health tablets to obtain credit. The appellant was apprehended by Police in relation to all matters, including the matters before the Southport Magistrates Court on 22 December 1998. In the Brisbane Magistrates Court Miss Tynan, S.M. ordered that the appellant pay by way of compensation a total of $674.94. Her Worship took into account that the offences had occurred over a very short time span (six weeks) and also took into account the nature of the relationship the appellant had had with Hutchinson. In addition to the compensation a fine of $750.00 was imposed. No conviction was recorded.

As I have earlier indicated, the Magistrate at the Beenleigh Magistrates Court who dealt with six charges placed the appellant on a good behaviour bond and ordered that no conviction be recorded.

Counsel for the appellant informed me that the appellant also appeared in the District Court in Brisbane before His Honour Judge Healy, Q.C. on 18 June 1999. The appellant pleaded guilty on that occasion to one count of receiving a television set; which offence occurred on 9 March 1998, and one count of fraud in relation to that television set which occurred on the same day. The offences occurred while the appellant was proceeding to the Pain Clinic at the Royal Brisbane Hospital when Hutchinson instructed her to stop their vehicle to allow him to alight from it, and to drive around the block a couple of times and then return to pick him up. When the appellant did return, Hutchinson was carrying a stolen television set which he then asked the appellant to pawn because he had no identification. Judge Healy placed the appellant on a good behaviour bond and ordered that no conviction be recorded.

It is submitted on behalf of the appellant that because convictions were not recorded before the Magistrates at Brisbane and Beenleigh and before Judge Healy in the Brisbane District Court, convictions should not have been recorded with respect to the matters dealt with at the Southport Magistrates Court. It is further submitted on behalf of the appellant that the fine of $500.00 imposed in respect of two offences heard at Southport is manifestly excessive having regard to the penalties previously imposed.

In Thompson v The Queen (1992) 8 WAR 387 at 394 the full court of the Supreme Court of Western Australia (Malcolm C.J, Pidgeon and Owen JJ) stated that:-

"The sentencing process is not a mathematical exercise. It is not a `score card' on which points are marked for and against an offender resulting in a mathematic calculation which will dictate the result. Rather, the exercise requires the judge to take into account all of the relevant considerations and to impose a sentence which, according to law, is fair to the offender and which serves the interests of justice. It is neither possible nor appropriate for a sentencing judge to approach the sentencing exercise on any basis which is more precise than that. What must appear is that appropriate considerations have been taken into account and given appropriate weighting in the proper exercise of discretion".

In my opinion these observations should be borne in mind by all those involved in the sentencing process.

Although the lateness of the pleas of guilty was not satisfactorily explained to the Stipendiary Magistrate, the appellant nevertheless was entitled to some credit for her pleas of guilty in recognition of her display of remorse. See Thompson v The Queen (1992) 8 WAR 387 at 394. Even a plea of guilty made without remorse is a mitigating circumstance: Johnson (unreported) Court of Criminal Appeal, Western Australia, Library No. 920112, 5 March 1992 , cited in Doyle 1994 71 A CRIM R360 at 364 per Seaman J.

In Schrimpf v Svik unreported decision of the Supreme Court of the Northern Territory 41/95 (23 April 1996) Kearney J considered the proper effect to be given to a plea of guilty in the sentencing process. His Honour stated:-

"It is the practice in most jurisdictions to give a greater discount for an early guilty plea. However, that court sentencing practice does not carry as a corollary that a person who pleads guilty `late in the day' is necessarily debarred by his lateness from any mitigation of his sentence, attributable to that late plea; cf. R v Winchester (1992) 58A CRIN R 345, but see R v Shannon (1979) 21 SASR 242, R v Morton [1986] VicRp 82; (1986) VR 863 and R v Harris & Simmonds [1992] SASC 3624; (1992) 59 SASR 300........

"In general, and as the law presently stands, a sentencing court in this jurisdiction should generally take into account as a mitigating factor the fact that the offender pleaded guilty, provided it accepts the plea as evidence of remorse. See R v Jabaltjari (1989) 64 NTR 1, the Tasmanian case of R v Dowie (1989) 42A CRIN R 234 at 251 per Wright J, stressing that when it comes to remorse `actions (such as pleading guilty) speak louder than words'; and R v Holder (1983) 3 NSWLR 245 at 258, per Street L.J. The extent to which the plea of guilty will mitigate a sentence depends on the facts and circumstances of the particular case".

I do not understand the law in Queensland on this point to differ in any way from the principles expressed by Kearney J. Accordingly, in my opinion, the appellant was entitled to have her plea of guilty regarded as a mitigating factor if the plea indicated some degree of genuine remorse on her part. The material, in my view, demonstrates sufficiently clearly that the plea was a reflection of remorse on the appellant's part. It should therefore have received some weight as a mitigating factor.

The main factors to be considered in the exercise of the discretion to record or not record a conviction are set out in s.12 (2) of the Penalties and Sentences Act 1992. They include -

(c) The impact that recording a conviction will have on the offender -

It has been held by the Court of Appeal of the Supreme Court of Queensland (Fitzgerald P, Davies J A, and Fryberg J) that it is insufficient to enliven the discretion not to record a conviction by simply demonstrating a bare possibility that a conviction may effect an offender's prospects: The Queen v Tina Ann Bain CA No 452 of 1996, 14 March 1997.

In this case, it has been argued with some justification on behalf of the respondent that the submissions on behalf of the appellant in the court below would have at best raised a mere possibility of the appellant at some unknown stage in the future being well enough to return to the work force.

I accept the submission on behalf of the respondent in that regard. However, in my opinion, it was a relevant factor to be considered by the Stipendiary Magistrate that no conviction had been ordered to be recorded by his magisterial colleagues in Brisbane and Beenleigh in respect of a substantially greater number of like offences.

I am further satisfied that it is appropriate that due recognition be given to the spirit of the Order made by Judge Healy on 18 June 1999 and that it would not, in the circumstances, be appropriate to order that a conviction be recorded in respect of these offences.

It was submitted by counsel for the appellant that the fine in respect of these two matters should be in the order of $200.00, together with compensation of $18.70. Having regard to the penalty imposed by way of fine by Miss Tynan, S.M. in the Brisbane Magistrates Court in respect of a far greater number of like offences, I am prepared to accept this submission.

I therefore allow the appeal and vary the Order of the Stipendiary Magistrate at Southport by ordering that no conviction is to be recorded and by reducing the fine of $500.00 to one of $200.00. The orders for compensation and for the time allowed for the payment of the fine and compensation are to stand. The default period of imprisonment is to be reduced from seventeen days to seven days. The respondent is to pay the appellant's costs of this appeal to be taxed. I direct that the respondent is to pay the amount of the costs as so taxed within thirty days of such taxation to the Registrar of the District Court of Southport, to be paid over by him to the appellant.