Burns v Queensland Police Service [2010] QDC 463

[2010] QDC 463 DISTRICT COURT APPELLATE JURISDICTION JUDGE SAMIOS No D76 of 2010 EDWARD ROBERT WAYNE BURNS Appellant and QUEENSLAND POLICE SERVICE Respondent TOOWOOMBA DATE 24/11/2010 JUDGMENT -- 1 of 4 -- 2 HIS HONOUR: This is an appeal against the learned Magistrate's sentence imposed on 20 August 2010 in the Toowoomba Magistrates Court. The appellant, who was born on 14 October 1991, appeals on the ground that the sentence passed by the learned Magistrate was manifestly excessive. The sentence imposed by the learned Magistrate was that the intensive correction order imposed on the appellant on 30 April 2010 be revoked and that he be sentenced to the unexpired portion of the order from the date of the offence the appellant committed on the 18th of May 2010. That is, he was sentenced to the unexpired portion, being from the 18th of May 2010 to the 29th of January 2011. The intensive correction order made on 30 April 2010 was for a period of nine months. The learned Magistrate though, when it came to fixing a parole release date, as the sentence was less than three years, fixed the 28th of January 2011 as the parole release date. He gave no reasons for setting a date that was more than halfway into the sentence and gave no opportunity to the representatives of the appellant and the respondent to make submissions about that aspect of the matter. It is clear the learned Magistrate erred in the approach he took. There's no complaint about requiring the appellant to serve the unexpired portion of the intensive correction order as a term of imprisonment. The complaint rather is that he was given no apparent benefit for his plea of guilty and no -- 2 of 4 -- 3 reasons were given for selecting a date more than halfway in the sentence. The learned Magistrate has often mistook this aspect of the law. The authorities are available. The notes on R v Kitson [2008] QCA 086, relied upon by the appellant today, are to be found in paragraph 101035B.1 of the Carter's Criminal Law of Queensland, which I assume is available to the learned Magistrate. There the notes say the Court of Appeal considered a sentence of nine months' imprisonment with a parole release date set after three-quarters of the sentence had been served. The sentence was imposed after a plea of guilty by the accused. Fraser JA, with whom Fryberg and Lyons JJ agreed, noted that where an accused had a claim upon the discretion that a parole release date be set after serving less than half of the head sentence in view of the plea of guilty, a parole release date which is significantly beyond the mid-point of the head sentence is very unusual. If such an unusual order was made, the duty to give reasons requires that the sentencing remarks explain the process of reasoning underlying it. Where such a decision is being contemplated by the sentencing Judge, the parties should be given an opportunity to be heard. The full text of the case is available. Mr Lynch, who appears on behalf of the appellant today, offered me a copy. I have considered the decision before and I have considered this type of ground of appeal before, coming from the learned Magistrate. It must stop. The learned Magistrate must cease -- 3 of 4 -- 4 making these orders. The effect is to impose an order that is not according to law but also incurs considerable stress and strain on those who are not given the benefit of these orders as they should be made, and costs are incurred. I allow the appeal. I confirm the learned Magistrate's revoking the intensive correction order pursuant to section 127(1) of the Penalties and Sentences Act and I confirm his committal of the appellant to prison for the portion of the term of imprisonment to which the offender was sentenced that was unexpired on the date the relevant offence against section 123(1) was committed. However, as to the parole release date, I vacate that order made by the learned Magistrate and I order that the appellant be sentenced to a parole release date of the 25th of November 2010, which is tomorrow. ----- -- 4 of 4 --