Brett v. Commissioner of Police

[2007] QDC 279

DISTRICT COURT OF QUEENSLAND

CITATION:

Brett v Commissioner of Police [2007] QDC 279

PARTIES:

STEVEN JAMES BRETT

(Appellant)

V

COMMISSIONER OF POLICE

(Respondent)

FILE NO/S:

17 of 2007

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrate’s Court at Southport

DELIVERED ON:

20 September 2007

DELIVERED AT:

Beenleigh

HEARING DATE:

20 September 2007

JUDGE:

Dearden DCJ

ORDER:

Appeal against sentence granted

CATCHWORDS:

APPEAL AGAINST SENTENCE – where the appellant was convicted of five separate charges of fraud – where the appellant was sentenced to 2 months’ imprisonment on each charge to be served cumulatively upon a 4 month sentence imposed for similar offences – where the appellant was resentenced and given a parole release date after 16 months – where the appellant was resentenced in his absence –  whether there had been a breach of natural justice and whether the sentence imposed was manifestly excessive

Penalties and Sentences Act 1992 (Qld) s 160G

Corrective Services Act 2006 (Qld) s 200

COUNSEL:

Mr H. Fong for the appellant

Ms S. Farnden for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions for the respondent

HIS HONOUR:  This is an appeal on the matter of Steven James Brett (also known as Steven Leslie Harrison) and Matika Shelton.  The appeal is in respect of a sentence imposed by the learned Magistrate at Southport, initially on 17 November 2006, but subsequently reopened on 12 January 2007 and resentenced.

The matter relates to five separate charges of fraud which occurred on various dates in March and April of 2006.  Some charges were between dates, and some charges were on specific dates.  On each of those charges, the learned Magistrate, who was dealing with the appellant, then unrepresented, sentenced the appellant to two months' to be served cumulatively upon a four month sentence imposed in the Magistrates Court at Southport for similar offences, which occurred during similar time frame, and that sentence took place on 6 July 2006.

The difficulty arose as a result of a letter which was received from the Department of Corrective Services.  The learned Magistrate then proceeded to resentence the appellant on 12 January 2007.  It appears that the learned Magistrate was, or may have been, misinformed about the appellant's status at the time that he was sentenced on 17 November 2006.  In particular, it appears that the appellant, at that time, had had his parole suspended, but not then revoked.

The effect of the Magistrate's order on 12 January 2007 was quite dramatic in that the new parole release date was 8 March 2008.  It is conceded by the prosecution (appropriately in my view) that the Magistrate fell into error, firstly by proceeding to deal with the appellant in his absence on 12 January 2007 (an examination of the transcript appears to reveal that, although steps had been taken to have the appellant produced to the Magistrates Court on that date, a failure in the system of transporting the appellant, who was then a prisoner, meant that he was not actually produced to the Court).

The Magistrate, however, proceeded to hear the matter, and, of course, the consequences of the Magistrate reopening the sentence and setting a fresh parole release date were quite severe for the appellant.  That is clearly, of course, a breach of natural justice with significant detrimental consequences, and the learned Magistrate should not have proceeded in those circumstances.

In any event, it is also conceded by the prosecution that the effective sentence imposed by the learned Magistrate on 12 January 2007 was manifestly excessive.  Counsel who appears for the appellant on this appeal, Mr Fong, very fairly concedes that there were matters in the way that the proceedings were brought back before the learned Magistrate on 12 January 2007 which may have contributed to the error which occurred.

In all of the circumstances, then, the appeal is granted.  It seems, on the submissions made by both counsel, that the neatest way of dealing with the appeal, in a way that reflects an appropriate outcome, is this:-

1. I order that the sentence of the learned Magistrate originally imposed on 17 November 2006 remain to this extent, in that, on each of the five counts of fraud, the appellant be convicted and sentenced to two months' imprisonment (concurrent as between each of those five offences), but cumulative on the sentence of four months imposed in the Magistrates Court at Southport on 6 July 2006 (in respect of one charge of receiving, one charge of forgery, one charge of uttering, and one charge of fraud), but that that two months cumulative on the four months imposed on 6th July 2006 be in total served concurrently with the activated suspended sentence imposed by the District Court at Southport on 8 September 2006 (16 months).

1. I vary the order of the learned Magistrate from 17 November 2006 in respect of restitution for each of the five charges, to the extent of ordering that, in default of payment of the restitution, the recovery of the restitution be referred to the Registrar of the State Penalties Enforcement Registry.

1. I set aside the order of the learned Magistrate from 12 January 2007 and fix a parole release date of today, 20 September 2007.

1. In respect of that order, I accept the undertaking of Mr Fong, who appears for the appellant, that he will have communicated to his client the effective provisions of section 160G of the Penalties and Sentences Act (the obligation to report between 9 a.m. and 5 p.m. on the parole release date, or on the next business day) and section 200 of the Corrective Services Act (the specific obligations of a parole order).

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