Anderson v Allison [2008] QDC 50

[2008] QDC 50 DISTRICT COURT CIVIL JURISDICTION JUDGE BRABAZON QC No 1400 of 2007 BRADLEY THOMAS ANDERSON Appellant and BRADLEY THOMAS ALLISON Respondent BRISBANE ..DATE 29/01/2008 ORDER -- 1 of 5 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal against an order for a term of imprisonment imposed by the learned Magistrate on 14 February 2007. He was dealing with a young man, then 18 years of age, who had got himself into several difficulties. He had four appearances already on his criminal history that say, with respect, to a public nuisance, unlawful possession of suspected stolen property, wilful damage to property and common assault. For all those things he had been made to pay fairly small fines. He then committed three drink driving offences. For the first he was given a fine of $600. For the second he was given community service of 100 hours. It was a breach of that order that was considered by the learned Magistrate in this case. Also, he was before the Magistrate for a third drink driving offence of driving under the influence. He saw a young man with a promising rugby league career who worked constantly at his job, but obviously got into trouble, particularly with too much alcohol after work hours. It became apparent that the community service order had to be abandoned because he had only done three hours work. It was admitted that there had been a breach of that order. The learned Magistrate also observed, according to the Court records, that he had paid none of his previous fines. The Magistrate also took a gloomy view of the young man because a day or so before this hearing he had come before the -- 2 of 5 -- 3 ORDER 1 10 20 30 40 50 60 Magistrate and told him that he had done 40 hours community service. That was a lie because he had done three hours and can hardly have been honestly mistaken about such a big difference. He also told the Magistrate that the reason he hadn't turned up in response to his bail commitment was because he was too lazy. It is very understandable that the learned Magistrate took a gloomy view of this young man's attitudes. His sentencing remarks are justified by that body of information which he held. It is true that having taken into account all the usual considerations, the learned Magistrate did not mention that this was a plea of guilty, but that is something that he could hardly have overlooked, that being the very nature of the proceeding before him. He then went on to impose cumulative sentences of four months, that is for the drink driving and for the breach of the bail condition. It is conceded here by the prosecutor that there was a legal mistake in that there was no need, on this occasion, to make that term of imprisonment cumulative. He also went ahead and re-sentenced the young man for the breach of the community service order and some other offences. In the result he imposed a cumulative term of four months imprisonment. The problem with that was is that one of the offences being dealt with was breaching the speed limit, for which imprisonment was not an available punishment. -- 3 of 5 -- 4 ORDER 1 10 20 30 40 50 60 Here, the prosecutor recognises that and says that there should be a separate fine for that offence. The effect of that, in practical terms, would be to increase his actual punishment by that fine which, according to the prosecutor, as I understand her submissions, should be at the very least $200. Therefore, the position contended for here by the prosecution is that the terms of four months imprisonment should be concurrent, giving an effective term of four months imprisonment, together with the fine I have just mentioned. The learned Magistrate allowed parole from the day of sentence so this young man has, in fact, served no time in prison. The order was that the parole release date be set on the day of the Court order, 14 February 2007. Here, it is conceded that a term of imprisonment was within range because of the factors that I have mentioned, despite his young age. However, it is suggested that a more appropriate option would be to have given him a term of one to two months and with the same parole arrangements. In my view there are a couple of things to be said about those submissions. First, it seems to me, it would be wrong to increase the effective sentence by adding a fine for the speeding offence which could not be dealt with by imprisonment. In my view the appropriate order there is that no further action be taken. -- 4 of 5 -- 5 ORDER 1 10 20 30 40 50 60 Secondly, I am influenced by the substantial fine that was imposed for breach of the community based order for community service, that is a fine of $600. That stands. It is, therefore, in the light of all those things, necessary to consider the effective term of four months imprisonment. Bearing in mind all the things that Magistrate had before him, it seems to me not really possible here to disturb that sentence. There were three drink driving offences within a short period of time. None of the fines had been paid and the young man's attitude towards the Court, and his offences, was not a good one. In my view the term of four months should stay. Therefore, these are the orders of the Court. Allow the appeal in part, vary the order of the 14th of February 2007 by: (a) The term of four months imprisonment for breach of the Bail Act is to be served concurrently with the other terms of imprisonment imposed on the 14th of February 2007; (b) Order that no further action be taken with respect to the offence of disobeying a speed limit. Now, any comments about the form of that order? It is effectively pretty much what you said before without the fine. All right then. Thank you for that. That is the order of the Court. ----- -- 5 of 5 --