Collins v Lancaster [2011] QDC 35

[2011] QDC 35 DISTRICT COURT APPELLATE JURISDICTION JUDGE SAMIOS No 2280 of 2010 MICHAEL TREVOR ROYCE COLLINS Appellant and MATTHEW GREGORY LANCASTER Respondent BRISBANE DATE 28/01/2011 -- 1 of 4 -- HIS HONOUR: The appellant was born on the 16th of October 1992. On the 8th of August 2010 at about 9.10 a.m. he was walking along Albert Street chanting, "I am a fucking penis." There were several families with young children nearby. The appellant was arrested and conveyed to the Brisbane City Police Beat at which time he agreed with the police that his behaviour was unacceptable. When transported to the watch-house he appeared to be moderately affected by alcohol. He was refused watch-house bail and appeared before the learned Magistrate on 9 August 2010, the next day. The learned Magistrate noted his youth. However, the learned Magistrate also noticed that the appellant had a criminal history consisting of seven previous convictions for public nuisance offences over a period of about six months. He had also on the 2nd of June 2010 been sentenced in the Magistrates Court to six months' probation for a number of offences. They were a public nuisance offence, a stealing offence, a burglary and commit an indictable offence and an unauthorised dealing with shop goods. The subject offence breached that probation order. He was not dealt with for the breach of that probation order. All the circumstances were put forward by the prosecution and the defence. The defence submitted that there be a fine or, if a suspended sentence were imposed, that it be no more than one month's imprisonment wholly suspended. -- 2 of 4 -- The prosecution submitted that a suspended sentence be a minimum having regard to his criminal history and the frequency of his appearances before the Court and the previous convictions for public nuisance offences. The learned Magistrate noted that the appellant had a bad history. Consequently, the learned Magistrate sentenced the appellant to two months' imprisonment to be suspended after seven days with an operational period of 12 months. The appellant did not serve the seven days in prison as he was granted bail pending this appeal. On the hearing of this appeal the respondent quite properly concedes that the sentence of actual imprisonment was excessive in the circumstances. I say that because notwithstanding the appellant's previous convictions he was 17 and the subject offence was at the lower end of the scale of public nuisance type offences. Also, to impose the short sharp form of imprisonment as a lesson would clearly not take into account the undesirability of doing so when it could expose the appellant to the harmful effects of prison for a very short time, with no other consequence being suffered if the term were longer. That is, a longer term may mark the criminality of the offending. In all these circumstances I've come to the view that this is a case which could have appropriately been dealt with by a wholly suspended sentence. I think a fine was inappropriate in all the circumstances and no other penalty being -- 3 of 4 -- appropriate the wholly suspended sentence ought to have been imposed. I therefore allow the appeal to the extent of in lieu of the sentence imposed by the learned Magistrate impose a sentence of one month imprisonment wholly suspended for a period of six months. -- 4 of 4 --