Campbell v Matthews & Miller

[2005] QDC 433

[2005] QDC 433

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No BD3363 of 2005

LEIGH MATTHEW CAMPBELL  Appellant

and

TANYA MATTHEWS and TODD ANTHONY MILLER            Respondents

BRISBANE

..DATE 05/12/2005

ORDER

CATCHWORDS: Appeal from Magistrate to District Court under s.222 of the Justices Act 1886 - six month sentence for opportunistic stealing of a credit card and seven complete frauds and one attempted fraud by use of it - significant prior criminal history meant sentence was not out of range - whether finalization of appeal would lead to reinstatement of conditional release date after 4 months.

HIS HONOUR:  This appeal need not have come on today, but on a Registrar's reference on the 7th of November, I determined that it should, so that at an early enough time in the appellant's six month sentence imposed by a Magistrate at Southport on the 19th of August this year, he would have the appeal determined and if it was successful, derive some benefit from it.

Mr Campbell was not there on the 7th of November, but a solicitor, Ms Gilbert, was.  She informed the Court as
Mr Hungerford-Symes reminds me, that Mr Campbell would not be eligible for Legal Aid.  He had made the determination that time was elapsing at such a rate that he ought to withdraw his appeal.  This he never got round to doing.

Unsurprisingly, today, which I fixed for hearing of the appeal, whether or not he had complied with the practice direction requirement of an outline of argument to be filed, he has decided to run the appeal, rather than withdraw it.  Anyone would do the same.

He has been brought here from custody, but there proved to be nothing in his complaint that he had received only four days notice of the hearing, instead of the 10 to which he was entitled.  He has acknowledged his signature on a receipt dated the 21st of November 2005 in respect of the advice of today's hearing.

He pled guilty before the Magistrate to seven counts of fraud, one of attempted fraud and one of stealing.  He and his then female partner stole a credit card opportunistically when another customer in business premises left his wallet unattended on a desk.

The card was taken and used to obtain goods on seven occasions, occasioning such concern within the credit card company, that steps were put in train to look into the matter.  That accounts for one attempted fraud.  A good deal of the property obtained was recovered after the complainant's own efforts resulted in apprehension of the offenders and confessions forthcoming from them.

Compensation in the amount of $773 was sought which the Magistrate declined to order in view of the fact that
Mr Campbell had no ability to pay it.  It is uncertain how that figure relates to the total of the goods gained by the dishonest use of the credit card.  No total was given for that.  It was a mystery there.

The co-offender, on what Mr Campbell tells the Court today, on a false assertion that she was two months pregnant, was admitted to probation and returned to New South Wales.

In that State Mr Campbell has a lengthy traffic history, which has led to him serving various periods in custody, the longest of which he says was two months.  There was a longer period of eight months in custody in Victoria, in respect of offences of violence and a property matter.  Mr Campbell tells me he has never actually served a sentence until the current one, his other time in custody being on remand.  That led to suspended sentences being imposed in Victoria, to which Mr Campbell was subject at the time of the offending on the 18th of August 2005, which was indeed just one day before the appearance in the Magistrates Court.

It remains to be seen whether the Victorian authorities pursue matters under the suspended sentence, because
Mr Hungerford-Symes says that is an adverse feature of matters from Mr Campbell's point of view.  He is young, only 21.

He tells the Court he is particularly anxious to have his liberty so he can honour a son who died sometime ago in New South Wales one Boxing Day.  His expectation has been being able to do that, because he has a conditional release date of 18th of December 2005 notified to him.

His latest advice is that that conditional release date is no longer applicable because he has a pending Court date which is understood to be today.  Resolution of this appeal,
Mr Hungerford-Symes says, should lead to reinstatement of the conditional release date which occurs at the customary
two-thirds point of a sentence.

There is no reason to think that once the appeal is disposed of Mr Campbell will not obtain the benefit of it and I would invite him to pursue matters if he cannot confirm that he will.

I have been in two minds about formalising what he says is his expectation and doing that by varying the sentence, so that it is suspended for a lengthy operational period at the
two-thirds mark.

However, on reflection, it seems to me that would be inappropriate tinkering with the sentence.   Mr Hungerford-Symes, in my opinion, is correct in his submission that although the sentence would look harsh if imposed on a first offender, Mr Campbell's criminal history embarrasses him severely, so that he cannot complain it is out of range.

The only other matter he faces appears to be warrants from New South Wales, attributable to his participation, the extent of which he has described to the Court, in the Macquarie Fields riots in New South Wales.  He says advice to him is that his role was so minor that his extradition is not likely to be pursued by the New South Wales authorities.

In the circumstances, the appeal should be dismissed, but for what it is worth, I would like to have drawn to the authorities' attention that the Court makes the order on the assumption that the state of affairs in relation to reinstatement of the conditional release date is as indicated already.  It would have been inappropriate in the circumstances for the respondent to take up the opportunity I offered on the 7th of November to make a section 229 application returnable today.  The invitation was given on the basis that Mr Campbell would not be here wishing to pursue the appeal.

Mr Hungerford-Symes, although advising the Court of the existence of the application, did not seek to pursue it.  As I said, this appeal has been determined not on any technicality, but on its merits.  I hope you make it back to Sydney, Mr Campbell.

APPELLANT:  Thank you.

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