Hohn v Commissioner of Police

[2008] QDC 58

[2008] QDC 58

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE FORDE

Appeal No 14 of 2007

CANDICE ANN HOHN	Appellant
and
COMMISSIONER OF POLICE	Respondent
TOOWOOMBA ..DATE 13/02/2008

JUDGMENT
HIS HONOUR: This is an appeal against a decision of the
Magistrate, Toowoomba which was given on the 13th of June
2007.

The appellant entered pleas of guilty to possessing cannabis sativa 5.4 grams and possessing a water pipe used in connection with smoking a dangerous drug and failing to take care of a hypodermic syringe and needle. She was given a head sentence of four months for the first offence and one month each for the other offences, to be served concurrently, and a parole release date was set at 12th October 2007.

There was new evidence put before me by way of an affidavit from Mr Bouchier explaining attempts to get legal aid so this matter could properly be prepared. The learned Magistrate seemed to take the view that the delay was due to the fault of the appellant and her co-accused and regarded it not as a timely plea. In making that assessment he was wrong.

The co-accused received a similar sentence but he had a much more serious criminal history. The appellant has an extensive drug-taking history, but the Crown has conceded that some four months' actual imprisonment is excessive. I note that there was no criminal history since 2004. The Crown submits that a community-based order and probation are appropriate with the recognition, of course, that the appellant has spent some eight days in custody.

Because of the criminal history of the appellant and in particular trafficking offences where she received one year's imprisonment to be served by way of an intensive correctional order and other drug offences for which she received three to five months' imprisonment on another occasion, a term of imprisonment is justified. She had had the benefit of an intensive correctional order but not since 2001, and she has also had the benefit of probation. A new approach is called for. 2 JUDGMENT

If a suspended sentence is given, the appellant will have to realise that if she breaches the law and commits an offence in the next 12 months which attracts a period of imprisonment, then she will go to prison for two months. I also propose, subject to her consent, to place her on 100 hours' community service.

Your client is in Court, Mr Lynch?
MR LYNCH: She is, your Honour, and my instructing solicitor has taken her through the requirements of a community service order.
HIS HONOUR: All right.
MR LYNCH: I can indicate that she has instructed that she consents to the making of one of those orders.
HIS HONOUR: All right.
The orders will be:

1.    The orders of the Magistrate on the 13th of June 2007 are set aside save for the forfeiting of the utensils to the Crown.

2.    On the possession of a dangerous drug, two months' imprisonment, wholly suspended, with an operational period of 12 months.

3.    On possessing utensil or pipe and failing to take reasonable care and precautions in relation to the

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syringe, 100 hours' unpaid community service on the
terms set out in section 103 of the Penalties and
Sentences Act.

4.    She is to report to the supervising officer in Toowoomba within 24 hours.

Now, Ms Hohn, you heard that, did you?

PRISONER: Yes.

HIS HONOUR: You realise if you commit an offence in the next

12 months you will be likely to go to prison for two months?

PRISONER: I do, your Honour.

HIS HONOUR: I suggest that you take advantage of and do the community service. It is not optional. If you do not do it, you will come back before me or another Judge and you will be likely to serve a short term of imprisonment. Do you understand?

PRISONER: I do.

HIS HONOUR: I suggest also you get some further treatment.
Anything further, Mr Lynch?
MR LYNCH: Your Honour, just in terms of the order, I note that a presentence certificate was annexed or exhibited to Mr Alsbury's submissions. I am wondering if then the order should be couched in terms of two months, suspended after eight days, and declare-----
HIS HONOUR: I have taken that into account in making the order.

MR LYNCH: Okay. 4

JUDGMENT HIS HONOUR: I do not have to make a declaration so the way it is she has got two months. You talked me out of four.

MR LYNCH: I thought that it had to be declared, that is all.
HIS HONOUR: Yes. It does not have to be in the sense that I have taken it into account.

MR LYNCH: Thank you.

...

HIS HONOUR: In view of the new evidence, it was a new ball game. The Magistrate did not have the advantage of that. He made an error based upon lack of information. New evidence has been placed before me.

MR LYNCH: What was the new evidence, sorry, your Honour?
HIS HONOUR: The affidavit of Mr Bouchier about why the delay occurred.
MR LYNCH: Sure. Okay.
HIS HONOUR: No order as to costs.
MR LYNCH: Sure.
HIS HONOUR: Anything further?

MR POLLOCK: No, thank you, your Honour.

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