Erikson v Commissioner of Police [2012] QDC 388

1-1 The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Email: [email protected] [2012] QDC 388 DISTRICT COURT APPELLATE JURISDICTION JUDGE RAFTER SC No 1996 of 2012 Dennis Leslie ERIKSON Appellant and COMMISSIONER OF POLICE Respondent No 879 of 2012 THE QUEEN and DENNIS LESLIE ERIKSON Defendant BRISBANE ..DATE 16/11/2012 ..DAY 1 JUDGMENT -- 1 of 5 -- 1-2 JUDGMENT HIS HONOUR: There are two matters before the Court. The first is the appellant's appeal against sentence imposed in the Caboolture Magistrates Court on 21 May 2012 for committing a public nuisance offence. The appellant was sentenced by the Magistrate to three months' imprisonment suspended after he had served one month for an operational period of 18 months. It is common ground that the appeal should be allowed because the Magistrate proceeded to sentence deciding disputed facts adversely to the appellant without hearing evidence. The second matter is a breach of suspended sentence and breach of probation imposed in the Warwick District Court on 2 June 2011. The appellant is almost 67 years old. His criminal history consists of four counts of committing an indecent act in a public place. They are the offences that were dealt with in the Warwick District Court on 2 June 2011. In respect of counts 1, 2 and 3 he was sentenced to nine months' imprisonment wholly suspended for an operational period of two years. In respect of count 4 he was placed on probation for two years. Convictions were recorded. The appeal matter concerns an incident that occurred on the afternoon of Australia Day 2012 at the Bongaree Jetty. The appellant came to the attention of members of the public who observed his penis being exposed. The Magistrate proceeded to sentence the appellant on the incorrect basis that he was seen -- 2 of 5 -- 1-3 JUDGMENT by children to be masturbating. The appellant was clearly dressed in a manner that was likely to draw attention to himself. One witness described the appellant as being a person of short to average height with grey hair, wearing grey shorts and an orange work shirt and pink bra under his shirt that could easily be seen. That witness was told by children who appeared to be upset and disgusted, that they had seen the appellant's penis. The witness observed the appellant leaning over the jetty with his right leg raised on the railing. He was observed to have his right hand down the front of his pants. The Police were called. The appellant took part in an interview. He said that his penis became exposed accidentally and that was partly due to the worn out underwear that he had on. The appellant was released on bail following his appearance in the Magistrates Court. He had spent three nights in custody. It is submitted by Mr D Lynch for the appellant that the appropriate penalty for the public nuisance offence would be a fine in the vicinity of $300. Mr Lynch has placed before the Court a medical report that shows that the appellant has many health issues. He has restricted mobility, and he is taking a range of medication. I have also been provided with two court reports from the Caboolture Probation and Parole Service. I think there is -- 3 of 5 -- 1-4 JUDGMENT some merit in the submission of Ms Dennis for the respondent, that the appellant's compliance with the probation order has been somewhat perfunctory. As I have mentioned, it is common ground that the appeal against sentence should be allowed and that requires me to re-exercise the sentencing discretion. Ms Dennis for the Crown submits that the appellant should be sentenced to a short period of imprisonment. As I have said, Mr Lynch, on the other hand, contended that a fine in the vicinity of $300 should be imposed. Taking into account the nature of the offence; the fact that the appellant spent three nights in custody and the health issues that are revealed in the medical report, I am of the view that the appropriate penalty is a fine of $500 and in the circumstances a conviction should be recorded. As I have mentioned, the appellant committed the offence while on a probation order and during the operational period of a suspended sentence. It is agreed that those matters should be dealt with now. In the circumstances, I accept Mr Lynch's submission that the operational period should be extended. I intend to extend the operational period by 12 months. As to the breach of probation, I will find the breach proved and take no further action. Mr Lynch sought costs of the appeal and it is appropriate that an order be made. The maximum amount of costs that can be awarded is $1800, and I will make orders as required by -- 4 of 5 -- 1-5 JUDGMENT section 232 of the Justices Act 1896. The orders of the Court will be as follows. In respect of the appeal number 1996 of 2012 (1) appeal allowed; (2) set aside the sentence imposed in the Magistrates Court at Caboolture on 21 May 2012; (3) instead order that the defendant be fined $500; a conviction is recorded; (4) I direct that the Registrar provide particulars of the fine to the State Penalties Enforcement Registry for registration; (5) I order that the respondent pay the appellant's costs of the appeal fixed at $1800 to be paid to the Registrar of the District Court at Brisbane within three months for transmission to the solicitors for the appellant, Files Stibbe Lawyers. Insofar as the breach of suspended sentence imposed in the Warwick District Court on 2 June 2011 is concerned, I find that the defendant has been convicted of an offence punishable by imprisonment committed during the operational period of the suspended sentence, and I order that the operational period be extended by 12 months. Insofar as the breach of probation is concerned, I find the breach proved and no further action is taken. ----- -- 5 of 5 --