Clarke v Durre-Bauer - [2005] QDC 254

[2005] QDC 254

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No 1320 of 2005

GLENN RYAN CLARKE	Appellant
and
TAMMY DURRE-BAUER	Respondent

BRISBANE

..DATE 15/08/2005

ORDER

Catchwords: Appeal from Magistrates Court to District Court under Justices Act 1880 s.222 against sentence of 3 months imprisonment for possession of a prohibited thing (a weapon) by a prisoner - sentence cumulative upon a six-year sentence which had nearly run its course, the whole of which was served in the event - appeal bail granted immediately before the appealed sentence commenced - likelihood that Magistrate wrongly took into account prejudicially untested assertions in a letter written by the appellant apparently describing a serious offence by use of the weapon on another occasion in circumstances in which appeal allowed to extent of wholly suspending the sentence - appellant denied costs - failure to file outline of argument required by Practice Direction.

HIS HONOUR: The appellant, Glenn Ryan Clarke, is 28 years of age, or thereabouts, and has a serious criminal history.

On the 16th of May 2000 he was sentenced to terms ranging up to six years and a declaration that he ought to have credit for pre-sentence custody of 375 days was made. As things turned out, Mr Clarke served the whole of that sentence, being released into the community on the 6th of May this year.

His record in custody was regrettably not wholly creditable. The day before his release the Magistrate granted bail pending determination of this appeal which is against the sentence imposed at Caboolture Magistrates Court on the 17th of March 2005 for an offence of possession of a prohibited thing in the correctional institution where he was. The thing was a "shiv", a circular knife described as having a six centimetre blade.

There was an administrative punishment imposed in the form of some detention under harsher conditions. It is accepted that any penalty fixed by a court had to be cumulative upon the imprisonment that Mr Clarke was already subject to. The sentence imposed was one of three months gaol which the Magistrate, as he had to do, ordered be cumulative.

It is the case that, looked at on its own, the three months sentence does not seem severe, but I think it has to be looked at in all of the circumstances which now include that the appellant has been released into the community. The court has not heard how he is going and indeed that is probably irrelevant as Mr Van der Walt, who informed the Court that Mr Clarke is here today, has submitted.

The date of the offence was 23rd of December 2004 when the shiv was found in Mr Clarke's cell. The sentence proceeding took a dramatic turn when the Police Prosecutor informed the Magistrate of the contents of a letter which was located on the 5th of January 2005 by the authorities in a search of Mr Clarke's cell. It does not appear that the letter was sent by him to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clarke v Durre-Bauer

Details

AGLC: Clarke v Durre-Bauer [2005] QDC 254
Case: [2005] QDC 254
Decision Date: 15/08/2005

CaseChat Overview and Summary

The case of Clarke v Durre-Bauer involved an appeal by Glenn Ryan Clarke against a sentence imposed by the Caboolture Magistrates Court for possession of a prohibited item, a shiv, in a correctional institution. The appeal was heard by Judge Robin QC in the District Court. Clarke, who had a substantial criminal history, was sentenced to three months imprisonment for the offence, which was to be served cumulatively with a six-year sentence that had nearly been completed. The appeal was brought under the Justices Act 1880, specifically section 222, which allows for an appeal from a Magistrates Court to a District Court against a sentence.

The primary legal issue before the court was whether the sentencing Magistrate had improperly considered a letter written by Clarke, which contained unverified assertions about another incident involving the shiv. The letter implied that Clarke had attempted to use the shiv on another individual, an offence for which he had not been charged. The court had to determine if this letter influenced the sentence in an inappropriate manner and whether the Magistrate's consideration of such untested assertions constituted an error in the sentencing process.

Judge Robin QC found that the Magistrate's sentencing discretion may have miscarried due to the inappropriate reliance on the contents of the letter. The court held that the three-month sentence should remain in place but be wholly suspended for an operational period of one year. The decision also noted that Clarke's failure to comply with the Practice Direction for an outline of his argument, which resulted in the appeal proceeding without the usual procedural steps, did not warrant an order for costs against Clarke. Instead, the court decided to forgo the imposition of costs as a policy matter to encourage compliance with procedural rules in future appeals.

Orders