Bird v Hayes [2008] QDC 51

1 [2008] QDC 51 DISTRICT COURT APPELLATE JURISDICTION SENIOR JUDGE TRAFFORD-WALKER No 2249 of 2007 ALLAN DAVID BIRD Appellant and DAVID ANDREW HAYES Respondent BRISBANE ..DATE 17/01/2008 JUDGMENT -- 1 of 6 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: On the 16th of July of 2007 the appellant appeared in the Magistrates Court at Sandgate to be dealt with for breach of an intensive correction order, a breach of probation and numerous other offences. After pleading guilty he was sentenced to terms of imprisonment. The longest period of imprisonment was imposed for offences of assault and stealing. For these he was sentenced to two years and nine months. In addition to that he was sentenced for three offences of breach of probation by failure to appear. On each of those he was sentenced to one month cumulative with the two years and nine months. That meant that the total period of imprisonment was three years. Other sentences imposed that day were concurrent with that sentence. The Stipendiary Magistrate set his parole eligibility date at the 17th of January of 2009. This appeal is against the severity of the sentence although, when argued, the argument of the appellant was that his objection was as to the setting of the parole eligibility date at the 17th of January of 2009, his argument being that it should be set earlier. The appellant has a serious problem with alcohol. As a result of that he has been involved in criminal conduct for years. He has convictions for obscene language, behaving in a disorderly manner, wilful damage, stealing, assaulting police and other assaults. The most serious offence in his history was a conviction for attempted robbery in company. The circumstances of that offence are that on the 4th of March 2006 the appellant and another man went to the Bald Hills Tavern. There they entered a restricted area and attempted to steal alcohol. They -- 2 of 6 -- 3 JUDGMENT 1 10 20 30 40 50 60 were discovered and the appellant encouraged his co-offender to attack the bottle shop attendant which happened. Shortly after police arrived and arrested both offenders. The appellant pleaded guilty to that offence in the District Court on the 17th of March of 2007. He was sentenced to three years' imprisonment and his parole release date fixed at the 17th of March 2007. That was done because he had spent 276 days in custody in relation to the attempted robbery and other matters, so time that he'd spent in custody could not be declared. However, it was taken into consideration in the way I have indicated. This means, however, that the appellant has three years more that may be served for the offences of assault and stealing to which he pleaded guilty in the Sandgate Magistrates Court, circumstances of that offence are similar to the attempted robbery. The facts are that on the 13th of October of 2005 he went to the Bonnyview Tavern, Gympie Road, Bald Hills. There he took a quantity of alcohol. When challenged by the attendant he assaulted the attendant. Because this offence was committed while the appellant was on parole the sentence imposed must be cumulative, so in total in addition to the period he had spent in custody----- APPELLANT: Sorry, your Honour. HIS HONOUR: Just a moment 'til I finish, will you? APPELLANT: Yes. HIS HONOUR: So in addition to the period he had spent in custody before sentence on the 15th of March of 2007 the appellant may -- 3 of 6 -- 4 JUDGMENT 1 10 20 30 40 50 60 now be required to serve a very lengthy period in prison. The other consideration is that the appellant pleaded guilty to all the matters before the Sandgate Magistrate, and this meant that the prosecution did not have to lead evidence and go to the expense of prosecuting those matters. That being so some consideration should be given for his co-operation in the administration of justice, and in my view insufficient consideration has been given to that. Bearing all those factors in mind, it is my view that a parole eligibility date should be set at an earlier time and so I vary the order of the Magistrates Court to fix his parole eligibility date at the 16th of July of 2008. Now, did you want to say something? APPELLANT: Sorry, your Honour. No, that's okay, your Honour. I was just saying that the steal and the - when I did steal from the bottle shop that time it wasn't whilst I was on parole. I didn't steal whilst I was on parole or the assault while I was on parole. That was before my parole. HIS HONOUR: Yes. The upshot is that the offences have been made cumulative. APPELLANT: Yes, your Honour, yeah, but they were before my parole and the only charges that were on parole were the stealing from my own house and a wilful damage of my own house which wasn't even wrecked, my screen door, and yeah, they were the only charges on parole. And trespass on my own parole address. HIS HONOUR: Alright. But the upshot of it all is that the Magistrate has made----- APPELLANT: Yes, your Honour. HIS HONOUR: -----a period imposed cumulative----- APPELLANT: Yes, your Honour. HIS HONOUR: -----and set a parole eligibility date next year. APPELLANT: Yes, your Honour. HIS HONOUR: I've amended that to make the parole eligibility date this year. -- 4 of 6 -- 5 JUDGMENT 1 10 20 30 40 50 60 APPELLANT: Yes, your Honour. Thank you. HIS HONOUR: Alright. Anything further, Ms Rutherford? MS RUTHERFORD: No, your Honour. THE COURT ADJOURNED AT 9:39 A.M. THE COURT RESUMED AT 12:04 P.M. HIS HONOUR: I'm sorry to bring you back again, Ms Rutherford and Mr Bird. I did make an error when you tried to interrupt me - you may be seated. APPELLANT: Sorry, your Honour. HIS HONOUR: No no, you're absolutely correct that the offence of assault and stealing was not committed while you were on parole. APPELLANT: No, your Honour. HIS HONOUR: And the Magistrate imposed sentences, quite correctly, to run from the day that she imposed them. So from the date she imposed the sentence of three years she then made your parole eligibility date at 18 months from then. Now, in my view that didn't give sufficient allowance for your plea of guilty and co-operation with the administration of justice, and so I have set the parole eligibility date at the 16th of July this year. Right? That just explains that error that I made there, Ms Rutherford. MS RUTHERFORD: Certainly, your Honour. HIS HONOUR: Nothing further? APPELLANT: Yes, your Honour. HIS HONOUR: I beg your pardon? APPELLANT: Thank you, your Honour? HIS HONOUR: Alright. Nothing further then? MS RUTHERFORD: No, your Honour. HIS HONOUR: Alright. I'm sorry to have brought you back. APPELLANT: So eligible on the 16th of July, your Honour? HIS HONOUR: That's right. APPELLANT: Yep. Recommended by you? -- 5 of 6 -- 6 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: You're eligible to apply for parole from that date. APPELLANT: Thank you. THE COURT ADJOURNED AT 12:05 P.M. -- 6 of 6 --