Bird v Hayes

[2008] QDC 51

[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
HIS HONOUR: On the 16th of July of 2007 the appellant appeared

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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	10
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	20
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	30
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	40
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	50

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
were discovered and the appellant encouraged his co-offender to 2 JUDGMENT 60

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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'	10
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	20
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,	30
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	40
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.	50

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 now be required to serve a very lengthy period in prison. The 3 JUDGMENT 60

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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	10
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	20
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	30
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	40
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.	50
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.
APPELLANT: Yes, your Honour. Thank you. 4 JUDGMENT 60

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HIS HONOUR: Alright. Anything further, Ms Rutherford?

MS RUTHERFORD: No, your Honour.

THE COURT ADJOURNED AT 9:39 A.M.

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THE COURT RESUMED AT 12:04 P.M.

HIS HONOUR: I'm sorry to bring you back again, Ms Rutherford and you may be seated.

APPELLANT: Sorry, your Honour.	20
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	30
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? HIS HONOUR: You're eligible to apply for parole from that date. APPELLANT: Thank you.	40
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THE COURT ADJOURNED AT 12:05 P.M.

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