Dansie v Wells [2009] QDC 317

1-1 [2009] QDC 317 DISTRICT COURT APPELLATE JURISDICTION JUDGE DEVEREAUX SC No 788 of 2009 DAVID DANSIE Respondent(Complainant) and TREVOR ROY WELLS Appellant(Defendant) BRISBANE ..DATE 05/10/2009 ORDER -- 1 of 6 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The appellant, Mr Wells, pleaded guilty and was sentenced on 6 March 2009 in the Maryborough Magistrates Court in respect of one count of indecent act pursuant to section 227 of the Criminal Code. He was sentenced to 12 months' imprisonment with a parole release date of the 6th of July 2009. He appeals against that sentence. The facts in relation to the matter were that a 26 year old woman was in some public female toilets at about 5.45 p.m. on 3 October 2007. She entered a cubicle. The appellant then entered the toilets and knelt down, pulled down his pants and exposed his penis. He asked her if she liked what she saw. He repeatedly asked her to come out of the cubicle. She refused, telling him she was going to ring the police and eventually she did so. The appellant then left and was seen by another person running from the ladies toilet carry a black motorcycle helmet. The appellant has a criminal history. It to a fifth page. He was born on 18 July 1956 and has a number of entries in his criminal history for indecent acts. On 9 August 2000 he was ordered to perform 240 hours community service by the Maryborough District Court for a charge of indecent acts. There were two further charges committed later in 2000 but which came before the District Court at Maryborough in April 2001. The appellant was sentenced to 12 month intensive correction orders for those charges. Those offences were clearly committed in breach of earlier community based orders. The intensive correction order itself was later breached and -- 2 of 6 -- 1-3 ORDER 1 10 20 30 40 50 60 the appellant was sentenced to imprisonment. He was sentenced to imprisonment for 15 months at the same time for more charges of indecency. There is another indecent act conviction recorded in the District Court at Bundaberg on the 8th of August 2005 and the appellant was sentenced to five months' imprisonment. The next day he was, in the Magistrates Court at Bundaberg, dealt with for sexual assault and an unlawful stalking charge and was sentenced to concurrent imprisonment. There is one more entry of a broadly similar type, so it seems, in the Hervey Bay Magistrates Court on 18 October 2006 where the appellant was convicted of wilful exposure to offend or embarrass. I have not read out all of the criminal history, but I have read out those ones just to demonstrate that given the appellant's criminal history and the facts as I have read them I could not conclude that a sentence of 12 months' imprisonment is manifestly excessive if other circumstances did not apply. In fact, at the time that the Magistrate was sentencing Mr Wells he was subject to another period of imprisonment. On 3 December 2008 in the Caboolture Magistrates Court he was sentenced for several offences including failing to appear. For that charge he was sentenced to four months' imprisonment. For the other charges he was sentenced to two months' imprisonment. The effect, pursuant to section 33 of the Bail Act, was that the four months had to be served cumulatively to the two months giving a total period of six months' imprisonment. -- 3 of 6 -- 1-4 ORDER 1 10 20 30 40 50 60 So, when Mr Wells came to be sentenced on the 6th of March 2009 for the charge of indecent act he was still subject to that sentence. The effect of section 33 of the Bail Act was that the sentence of 12 months imposed on him in March had to be cumulative. The Magistrate sentencing him was not aware of that. It is clear from a reading of the transcript that the learned Magistrate intended the appellant to serve 12 months from 6 March and to serve four months of it in actual custody, the remainder being on parole. The effect of section 33, the Bail Act, however is such that the total period would be 18 months not the 15 months that the learned Magistrate seems to have had in mind. In my view that sentence of 15 months was not a manifestly excessive one. The respondent concedes that it would be appropriate for me to adjust the 12 months sentence to nine months which would give effect to the learned Magistrate's intention. The appellant presents one other argument. It is that he was ready to proceed and plead guilty, in December 2008, to this charge. It was because of the misunderstandings of others about whether he could do so in the Magistrates Court that he did not come to be dealt with until 6 March 2009. So, he argues, had he been dealt with in December he would not have received overall any greater penalty. I do not accept that argument for two reasons. -- 4 of 6 -- 1-5 ORDER 1 10 20 30 40 50 60 First, it is not clear at all that had the Magistrate the power to impose concurrent sentences for this offence and the breach of the bail his Honour would have still imposed a total head sentence of 12 months. I think it much more likely the sentence would have been longer. Probably in the order of 15 months which the learned Magistrate had in mind in this case. The second reason why I do not accept the argument is that the 12 months' imprisonment for the present charge is an entirely appropriate one and there had to be a cumulative sentence for the failure to appear. If that was even only three months then that would give a total period of 15 months. So, I propose to allow the appeal to the extent of varying the learned Magistrate’s order by imposing a sentence of nine instead of 12 months for the single count of indecent act. I otherwise make no changes to the learned Magistrate's orders. The orders then will be: 1) Appeal allowed; 2) Sentence of the Magistrate imposed on 6 March 2009 varied from 12 months to nine months; and 3) Thirdly, in all other respects, the learned Magistrate's orders are unchanged. Is that tolerably clear? MS LITCHEN: It seems clear, your Honour. HIS HONOUR: Thank you. MS LITCHEN: Thank you. -- 5 of 6 -- 1-6 ORDER 1 10 20 30 40 50 60 HIS HONOUR: So, the effect of that is that your total period will be 15 from December 2008. You're on parole, I haven't done the maths exactly on when that finishes, but that will be made abundantly clear to you by Corrective Services. DEFENDANT: That should bring it back to about April----- MS LITCHEN: I don't know what the end date was. DEFENDANT: I think they had it as June, I think. MS LITCHEN: Mr Wells has a sentence calculation as part of his - June, the 2nd of June 2010, so that would take three months from that. HIS HONOUR: It should be the 2nd of March. Okay. Thank you both. DEFENDANT: Thank you. HIS HONOUR: Now, you can go, Mr Wells, thank you. DEFENDANT: Thank you. ----- -- 6 of 6 --