Evans v Graaff [2010] QDC 535

1 [2010] QDC 535 DISTRICT COURT APPELLATE JURISDICTION JUDGE HARRISON Appeal No 157 of 2010 PAUL EVANS Appellant and S F D DE GRAAFF (CONSTABLE) Respondent CAIRNS ..DATE 14/12/2010 JUDGMENT -- 1 of 3 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal by Paul Evans against sentence in respect of a penalty imposed by an Acting Magistrate in the Cairns Magistrates Court on the 28th of July 2010. He pleaded guilty to one charge of wilful damage, and he was fined the sum of $1,000 and ordered to pay restitution totalling $960. A conviction was also recorded. He pleaded guilty on the basis that the penalty was manifestly excessive and that the Magistrate failed to have sufficient consideration to his very limited income with him being on a disability support pension. It was submitted on behalf of the appellant that the matter was manifestly excessive because a fine of $1,000 on someone with his very limited means was a very substantial penalty such that it was not enough for me to conclude that the penalty was high but that it was manifestly excessive and that I could interfere. The respondent in its submissions has very fairly conceded that there is merit in the argument. It was also argued that the Magistrate failed to place sufficient weight on the plea of guilty in this case. The real problem as I see it in this matter is that the appellant has a very limited capacity to pay a fine of the size that was imposed. The circumstances were somewhat unusual and I note from the transcript that these offences occurred at a time when he himself was suffering very severe psychological problems and was in fact placed inside a -- 2 of 3 -- 3 JUDGMENT 1 10 20 30 40 50 60 facility at the relevant time. I was referred to the comments of Justice Williams in R v. Prentice [2003] QCA 34. The relevant passage appears in paragraph 6.3.2 of the written submissions forwarded on behalf of the appellant. I would agree that the penalty here is akin to the crushing one that was referred to in the relevant passage, and I would agree that the appellant because of his unique financial situation has little realistic chance of satisfying the order for restitution of $960 plus the substantial fine. The respondent has conceded in its submissions that a fine more in the region of about one-third of the restitution would have been more realistic, and I agree with that. In all the circumstances I find that the sentence is manifestly excessive, and I set aside the fine of $1,000 and in its place I order that the appellant pay a fine of $300 and that that matter be referred to the State Penalties Enforcement Register. In so far as the order for restitution and the recording of a conviction, I do not interfere with the orders made by the learned Magistrate. ----- -- 3 of 3 --