Brown v Commonwealth Director of Public Prosecutions

[2010] QDC 76

DISTRICT COURT OF QUEENSLAND

CITATION:

Brown v Commonwealth Director of Public Prosecutions  [2010] QDC 76

PARTIES:

NATHAN MICHAEL BROWN
v.

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

FILE NO/S:

70/09

DIVISION:

Appellate

PROCEEDING:

Appeal against release date.

ORIGINATING COURT:

Magistrates Court, Beenleigh.

DELIVERED ON:

4 February 2010

DELIVERED AT:

Beenleigh

HEARING DATE:

4 February 2010

JUDGE:

Dearden DCJ

ORDER:

Appeal allowed. Defendant to enter into a recognisance release in the amount of $3,000 to be of good behaviour for a period of three years after serving 92 days' imprisonment.

CATCHWORDS:

Appeal –  where learned  Magistrate fell into error in considering that his discretion was fettered on the appropriate release date.

LEGISLATION:

Criminal Code Act 1995 (Cth)

COUNSEL: 

S.L. Kissick for the appellant
J.P. Williams for the respondent   

SOLICITORS: 

Shane Elliott, Quinn and Scattini Lawyers for the appellant
J Williams, Commonwealth Director of Public Prosecutions for the respondent.

HIS HONOUR:  The appellant, Nathan Michael Brown, was sentenced in the Beenleigh Magistrates Court on 5 June 2009 in respect of four charges pursuant to section 135.2(1) of the Commonwealth Criminal Code.  The appellant pleaded guilty and was convicted and sentenced to nine months' imprisonment to be released after serving five months upon entering into a recognisance in the amount of $5,000 to be of good behaviour for a period of three years.

The nub of the appeal is the issue as to the learned Magistrate considering himself to be bound by the recent Court of Appeal decisions which spoke about a 60 to 66 per cent non-parole period or recognisance release order as being the norm.  It is common ground at both ends of the Bar table that the Magistrate in his sentencing remarks stating, "You must serve 66 per cent or two-thirds of that, basically," fell into error in considering himself bound to impose an order with a release at that point in the sentence.  To that extent, the Magistrate, in my view, was wrong, and unduly fettered his discretion in respect of the imposition of a non-parole or recognisance release date.

There is, however, no dispute as to the appropriate level of the head sentence.  The amount involved in this matter was an amount of $32,453.67, and just under 10 per cent ($3,170.66) had been repaid by way of withholdings at the time of the sentence.  It was an extensive period (72 fortnights) over which the fraud on the Commonwealth extended.  It was, in my view, clear that some period in actual custody should be served in respect of the sentence.  The appellant has now served, in rough terms, a period of some three months in custody before being granted bail.  In precise terms, that is a period of 92 days.

Given my conclusion that the Magistrate fell into error in considering that his discretion was fettered on the appropriate release date, the orders which flow are as follows:

1.  Appeal allowed;

2.  Order that the defendant enter into a recognisance release in the amount of $3,000 to be of good behaviour for a period of three years after serving 92 days' imprisonment;

For practical purposes, I declare the period between 10 June and 4 September 2009, a total of 92 days, as time served in respect of the sentence (see Exhibit 1).

It remains then only for the appellant, whom I am advised is in fact present in Court, to enter a fresh recognisance release in relation to the 92 days' imprisonment and the good behaviour period of three years to follow (backdated to the original date of sentence which was 5 June 2009).  That, I am told, can be achieved shortly after Court.

Now, there's nothing else arising out of that?

MR WILLIAMS:  Your Honour, I think your Honour declared the period of - I think your Honour referred to 10 June 2009 when it should be 5 June 2009 until the 4th of September 2009.  That's‑‑‑‑‑

HIS HONOUR:  Sorry, yes.

MR WILLIAMS:  ‑‑‑‑‑that gives the period of 92 days.

…
HIS HONOUR:  The declaration should be 5 June 2009 until 4 September 2009, a total of 92 days.  I'll have my Associate correct that error.

…

HIS HONOUR: In respect of the issue of costs, Mr Kissick seeks costs fixed (pursuant to the provisions of the relevant Justices Act Regulation) at $1800. Mr Williams appropriately, in my view, concedes that costs would normally follow the event.

Accordingly, I order that the Commonwealth Director of Public Prosecutions pay the appellant's costs fixed at $1,800.

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