Allen v Bradley [2010] QDC 84

1-1 [2010] QDC 84 DISTRICT COURT APPELLATE JURISDICTION JUDGE HARRISON No 2881 of 2009 BOLTON JAY ALLEN Appellant and MICHAEL LEE BRADLEY Respondent BRISBANE ..DATE 01/03/2010 JUDGMENT -- 1 of 5 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: In this matter the appellant Bolton Jay Allen was convicted in the Magistrates Court at Caboolture on the 7th of October 2009 of an offence of driving whilst disqualified, which also appeared to have certain circumstances of aggravation. He was sentenced to 12 months' imprisonment and the Magistrate fixed the parole eligibility date at eight months. Unfortunately, we do not have a transcript of those proceedings. Therefore, it is unclear as to just why the Magistrate fixed the period of 12 months and why he applied the non-eligibility date of eight months. Attempts have been made by the respondent to find out what happened in Court but, not surprisingly, the police prosecutor, who would have done many matters that day, has no particular recall of this case. At the outset I clarified with Mr Allen, who represents himself, whether or not he was seeking to appeal in relation to the head sentence or whether his appeal related more towards the non-eligibility period of eight months. He indicated that he did not take issue with the head sentence, but sought my intervention in relation to the eligibility period. It has been argued on behalf of the respondent by Ms Byrne[sic] that, if anything, the head sentence was quite generous. She has referred me to a number of decisions on -- 2 of 5 -- 1-3 JUDGMENT 1 10 20 30 40 50 60 appeal which would show that the appropriate range in a case like this could be somewhere between 12 months' imprisonment at least up to about 15 months' imprisonment. The maximum period of imprisonment for the offence under the legislation is 18 months. Here it seems to me that the head sentence imposed by the Magistrate was at the bottom end of the range, but nonetheless open to him. So I do not proposed, as suggested by the respondent, to interfere with the head sentence. The real difficulty here is the whole issue of why the Magistrate on a plea of guilty imposed a non-eligibility period of in excess of one half of the sentence. On the material available to me I do not believe that there is anything to justify doing that. I say that against the background of what is an atrocious criminal history. You conceded that yourself to me this morning, Mr Allen. There were alleged over a period of only two and a half years five convictions of disqualified driving. There were some years back before that. There are some offences of dangerous driving and some offences of unlawful use of a motor vehicle and it does appear as though, despite what you say about how you found responsibility in recent times, that you have to date have not had much regard to the orders that have been imposed by the courts. -- 3 of 5 -- 1-4 JUDGMENT 1 10 20 30 40 50 60 That history, in my opinion, would justify imposing an eligibility date at one half of the sentence and I repeat that despite your very poor record there was nothing placed before me to justify going any further than that. So in the circumstances, I would uphold the appeal. The head sentence of 12 months should stand and I order that you be eligible for parole after a period of six months. ... HIS HONOUR: I order that the parole release date in your case be six months from the date of the sentence. ... HIS HONOUR: And I order that the - time served, have we got the exact period? ... HIS HONOUR: In view of the discussions I've just had with Ms Byrne[sic] it's been established that you have now spent 172 days in custody in respect of this offence. I declare that 172 days custody be taken into account, is that the correct order? MS PRICE: Yes, your Honour. -- 4 of 5 -- 1-5 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: Be taken into account. ... HIS HONOUR: The effect of all that, Mr Allen, is - do you understand what's happened? You are now eligible to apply for parole after six months from the date of the sentence. I have already declared that the 172 days that you have already served be taken into account. So that means that your eligibility date will now be fast approaching and you can - sorry. ... HIS HONOUR: Did you hear what Ms Byrne[sic] just said? That your parole release date will be the 7th of April this year. APPELLANT: Yes, your Honour. HIS HONOUR: So the head sentence stands, but the eight months has been brought back to six months, that's the effect of what's happened here today. ... ----- -- 5 of 5 --