Green v Casson

[2004] QDC 518

[2004] QDC 518

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No 2543 of 2004

JESSICA MAREE GREEN	Appellant
and
JACQUELIN WIMFRED CASSON	Respondent

BRISBANE

..DATE 15/11/2004

ORDER

CATCHWORDS:  Appeal to District Court from Magistrate under
s 222 of the Justices Act 1886 - sentence of 5 months imprisonment suspended after 5 weeks for minor stealing set aside and replaced by fine - criminal history of appellant as a juvenile wrongly placed before magistrate - no information before magistrate as to satisfactory progress on a current probation order, which was helpful to appellant in dealing with some personal issues.

HIS HONOUR:  The Court is grateful to Miss McCormack for the

understanding attitude being displayed on her side of the

record.  It is an appeal against sentence by an 18 year old

woman who pleaded guilty to stealing five DVDs, the value of

which I am told was $68.  On the face of things, it is curious

that she wasn't charged with a regulatory offence rather than

with the stealing.  If she had been, imprisonment would not

have been an option.  The sentence imposed by the magistrate

at Brisbane on the 17th of July this year was one of five

months' imprisonment suspended after five weeks being served

for an operational period of 15 months.

Miss McCormack accepts that the reason for the magistrate's

acting in that way is that he was aware of matters in the

appellant's criminal history, including a matter of

unauthorised dealing with shop goods dealt with at Ipswich

Children's Court in January 2001, and more seriously, that in

the Ipswich District Court in 2002 for breach of an immediate

release order to do with offences of violence.  Detention of

15 months had been imposed.

Those matters ought not to have been brought to the attention

of the magistrate, having regard to the extremely strong

policy in our criminal justice system of allowing criminal

offenders to start with a clean slate, so to speak, when they

turn 17.

It is accepted by Miss McCormack that but for those matters,

the magistrate would not have sentenced the appellant to gaol

for these relatively minor matters.  She has, in fact, served

five days in custody, and most likely in the watch-house,

before she was dealt with in Court.

It is common ground that an appropriate sentence would have

been a community based order.  Given the appellant is not here

to consent to one, it is more suitable to proceed by way of a

fine which she will be able to convert to community service by

a fine option order if so advised.

She is presently on probation ordered by the District Court.

The circumstances of the magistrate having dealt with this

matter on a Saturday seem to have led to difficulties in the

way of pursuing the ordinary course of inquiring into how the

current probation the offender was subject to was working out. 

The Court hears today that it is proceeding reasonably

satisfactory and, perhaps, more significantly, that the

appellant has issues in her life which make her continuance on

probation highly advisable and certainly preferable to

incarceration.

As I say, she is not here to consent to a community based

order today, but she can get her fine converted to community

service if need be.

The appeal is allowed.  The sentence imposed by the magistrate

of imprisonment is set aside, and in lieu thereof the offender

will be fined the sum of $100 in default two months'

imprisonment, two months allowed to pay.

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