Currey v The Crown [2012] QDC 385

1 The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Email: [email protected] . [2012] QDC 385 DISTRICT COURT APPELLATE JURISDICTION JUDGE KOPPENOL No D59 of 2012 JAMIE LEE CURREY Appellant and THE CROWN Respondent TOOWOOMBA ..DATE 18/10/2012 JUDGMENT -- 1 of 5 -- 2 JUDGMENT HIS HONOUR: This is an appeal from a decision of a Magistrate made on July 17, 2012. On that occasion the defendant was charged with unlawfully taking away shop goods. She pleaded guilty. The item which was taken away was a small bottle of strawberry milk which the appellant placed down the front of her pants. It was valued at $1.71. On that occasion, the solicitor acting for the defendant said to the Magistrate that he imagined that there may be a SPER issue involved and also said, "Yes, she [the defendant] nods that she's got a SPER debt." After a discussion the Magistrate said that: "She's got a total outstanding SPER debt of $2,208.41; two lots of it. Never paid a red cent of any fines she's ever received since 2007. She's had probation before. She's had community service before." Because the Magistrate mentioned the particular outstanding SPER debt, it was open to the solicitor for the defendant, if he so chose, to have sought instructions from his client (the appellant) as to the correctness of that figure or to have asked the Magistrate for a printout of the SPER debt. That was not done. Obviously, the learned Magistrate was concerned as to the amount of the SPER debt and whether or not there'd been any repayment. That was a relevant consideration for the Magistrate. Given that the solicitor for the defendant did not make any submission at the time as to the SPER debt or contest the amount of that debt, I do not see that any error was committed by the Magistrate on that occasion. -- 2 of 5 -- 3 JUDGMENT Perhaps it needs to be said that if a Magistrate has access to the SPER material, full details of that should be provided to the prosecution and the defence so that any submissions may be made about the figures that are shown in the SPER material. The Magistrate, based upon his perception of the SPER material, decided to impose community service rather than fining the defendant. I think in the circumstances, and given that the appellant was legally represented at the time, he was entitled to do that. The Magistrate placed the defendant on a community service order of 40 hours and granted her three months to complete the community service. Forty hours is the minimum community service in a case such as the present. The submission by Mr West of counsel that because of the conversion table in section 69(2) of the Penalties and Sentences Act (which relates to fine option orders) and the maximum fine for the unauthorised dealing with shop goods offence is $600, then the minimum community service should have been 30 hours is a conclusion which is not required by the Penalties and Sentences Act to be applied to the minimum period of community service in a case such as the present. However, in ordering that the community service be completed within three months, in my opinion the Magistrate erred. The relevant provision of the Penalties and Sentences Act is section 103(2)(b). That requires the community service to be -- 3 of 5 -- 4 JUDGMENT completed within 12 months, unless "another time is allowed by the Court." Mr Anderson of counsel for the Director of Public Prosecutions submitted that another time would permit there to be a shorter period, rather than the 12 months minimum. Whilst that may well be an arguable proposition, the use of the term "allowed", in my view, is indicative of a Parliamentary intention to grant permission or to enable the possibility to occur. That to me implies the granting of a benefit to the defendant, namely, to enable the minimum time for the performance of the community service to be enlarged rather than a detriment as would be expected to result from a shorter period of time, such as the three months which was referred to by the Magistrate. There is no authority which deals squarely with this particular point, however, based upon an analysis of the language used by Parliament, that is the view which in my view is the preferable one. In the result, this appeal will be allowed in part, and the order of the Magistrate varied such that the defendant will have 12 months rather than the three months which was ordered to complete the period of community service. In all other respects the appeal is dismissed. MR WEST: Your Honour, in that we succeeded on one point, your Honour, I'd ask for costs. HIS HONOUR: Mr Anderson? MR ANDERSON: Your Honour, in my submission the point, and I put this in my written submissions, the point that is being succeeded upon would have been more appropriately dealt with, in my submission, by reopening the sentence under section 188 -- 4 of 5 -- 5 JUDGMENT and drawing that to his Honour's attention and dealing with it there, rather than bringing the matter to an appeal Court troubling the District Court with the point rather than the Magistrates Court. Because the legislation allows for dealing with it in that way, in my submission, to award costs on this simple point when so other many grounds failed would be to encourage points which could more appropriately be dealt with in the Magistrates Court to be brought to this Court so that an order of costs can be made. HIS HONOUR: Yes. MR ANDERSON: In my submission, for that reason it would be appropriate to simply not order costs in this case. HIS HONOUR: Thank you. Mr West? MR WEST: Against that, your Honour, this is an important question on the interpretation of a statute, one which was entirely appropriate to be brought before a District Court Judge for a definitive ruling. HIS HONOUR: Thank you. Because the appellant succeeded on one point, but failed on others, there will be no order as to costs. Thank you, gentlemen. ----- -- 5 of 5 --