Ingram v Jones

[1999] QCA 351

99.351

COURT OF APPEAL
McMURDO P
McPHERSON JA

CHESTERMAN J

CA No 48 of 1999
B W INGRAM
v.

GORDON ARNOLD JONES	Applicant
BRISBANE ..DATE 23/08/99
JUDGMENT
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THE PRESIDENT: This is an application for an extension of
time for leave to appeal from a decision of the District
Court in appellate jurisdiction under section 118 of the
District Court Act 1967.

The applicant was originally convicted of the offence of breach of the Bail Act 1980 under section 33(1) of that Act.

He was sentenced to two months imprisonment with a

recommendation for parole after one month. His appeal was

rejected in the District Court on 23 February 1999.

The first application is for an extension of time. On otherwise the application would have been within time. When the applicant's lawyers were informed that the appeal had been incorrectly commenced in mid-June 1999 this application was made.

3 March 1999 the applicant's solicitor mistakenly filed an
application for leave to appeal against sentence rather than
an application for leave to appeal under section 118 of the

In those circumstances, there being no fault on the part of the applicant, the application for an extension of time should be granted.

The next issue is whether leave to appeal should be given under section 118 of the District Court Act 1967. As the point is a short one it is convenient to deal with the leave

issue and the merits of the appeal together.

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The bail which was breached related to a charge of creating a disturbance pursuant to section 141 of the Transport Operations Act 1994, an offence punishable by a maximum of 20 penalty units and no term of imprisonment. The applicant was granted bail at the watch-house seemingly after signing an undertaking.

On a number of other occasions in his criminal history it seems he had been given watch-house bail and bail was forfeited. Counsel for the applicant and the respondent have made submissions as to the effect of the Bail Act to the effect that where an undertaking is signed for bail, bail may not be able to be forfeited and that is what seems to have occurred here.

The applicant was 51 years of age at the time of his sentence. He had a criminal history for street offences, some petty dishonesty in 1970 and 1971 and on-going street offences and traffic offences. In 1993 he breached a domestic violence order and a warrant was issued when he failed to appear in respect of that matter.

He was dealt with for that offence one month later and no charge was brought against him under the Bail Act. He has never been sentenced to a term of imprisonment. His criminal history seems consistent with the submission made at his sentence that he had an alcohol problem.

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The applicant pleaded guilty to this offence at the first opportunity. The applicant's lawyer informed the Magistrates Court that the applicant could not remember being asked to attend Court and suggested that this may be because he had consumed a lot of alcohol at the time of his being charged and granted watch-house bail. That submission, as I have noted, was consistent with the applicant's criminal history and indeed with the offence itself. The Court was urged to impose a community based order and no submission was made by the police prosecutor for a custodial sentence.

The learned District Court Judge in considering the appeal before him noted that the issue of the warrant in 1993 did not bring home to the applicant the importance of obeying a

bail requirement. However, the undisputed submission before
the learned Stipendiary Magistrate was that the applicant
was unaware that he was required to attend Court, but
accepted, by his pleading guilty, that he was required to do
so and had failed to appear.

His Honour noted that all that could be said by way of comparable sentences for breaches of the Bail Act was that punishments both of fines and imprisonment are routinely imposed in the Magistrates Court, and although there was much to support the submissions made by the appellant's counsel below, in the end His Honour was satisfied that the sentence imposed was not manifestly excessive although it may have been on the high side and not a penalty that the

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learned Judge would have imposed had he been sentencing in
the first instance.

His Honour's difficulty is shared by this Court. We have not been given a range of comparable sentences imposed in the Magistrates Court in a case such as this.

Section (9)(2)(a) of the Penalties and Sentences Act 1992 requires that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable.

The undisputed submission made on the applicant's behalf in the Magistrates Court was that the applicant could not remember being asked to attend Court. There is no evidence in this case that the undertaking was explained to the applicant, that he was told that he needed to attend Court and nor was the undertaking produced to the Court.

Despite his lengthy criminal history the applicant had never been sent to gaol before. When all these circumstances are considered, in my view, it must be said that the last resort of imprisonment was not one warranted in this case and the sentence imposed by the Magistrate was outside the exercise of a sound sentencing discretion. Consequently His Honour erred in not upholding the appeal below.

The applicant, I note, has spent four days in custody now whilst pursuing his rights on appeal. I would grant leave

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to appeal, allow the appeal and substitute for the sentence
imposed by the Magistrate a $500 fine which would adequately
bring home to the applicant and others the consequences of
his failing to meet bail. An important factor in this case
is that it seems the offence was one more of inadvertence
and recklessness rather than a deliberate contempt of the
Court.

I propose the following orders: the application for extension of time within which to appeal is granted; that the application for leave to appeal is granted, the appeal allowed and the sentence imposed in the Magistrates Court at Caboolture on 31 August 1998 is vacated and instead the following penalty is imposed, a conviction is recorded and the appellant is fined $500 with four months to pay, in default one month's imprisonment.

McPHERSON JA: I agree with the order proposed. The bail in the present case was granted not in form 2 of the regulations under the Bail Act, but in form 7. That form contains, first of all, an undertaking from the defendant in which he declares that he understands or acknowledges the nature and extent of his obligations under the conditions of bail.

They, if one looks a little higher up the form, include his appearance and surrendering into custody at a certain time, date and place. The form - that is form 7 - is then

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followed by the signature of the defendant and a further
endorsement which is in the following form:

"I have satisfied myself that the defendant understood the

nature and the extent of his obligation under the
conditions of bail and the consequences of failure to
comply with them."

It is then signed, or so the form provides, by a person who is required to give his title. An individual who has given an undertaking as to bail in form 7 is then supposed to be

supplied with a notice in form 8, which is a notice to
defendant and surety or sureties of his undertaking as to
bail, and it explains in paragraph 1 of form 8 that a
defendant who fails to appear is liable for penalties
ranging, it seems, from 40 penalty units to imprisonment for
two years.

At the hearing in respect of this charge it appears that the prosecution was not in a position to produce the undertaking as to bail; that is, the undertaking in form 7.

I would have thought that that would have made a prosecution of the case very difficult; but the applicant before us, who was the defendant or respondent to the proceedings below,

was advised to acknowledge that he had received the
undertaking in form 7.

Without that acknowledgment, I cannot really see that the prosecution could have succeeded; and, even with it, I have some difficulty in being satisfied that this is a case where the defendant was showing his contempt for the Court or was

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otherwise grossly in breach of his undertaking. It is a
possible explanation of what happened that he was, at the
time he gave the undertaking, not in a condition to
appreciate the significance of either form 7 or form 8 or
the undertakings that they contain.

At all events, the penalty imposed appears, when circumstances of this kind are taken into account, to be in excess of what one would perhaps expect, even allowing for the inconvenience and disruption that failures to appear of this kind do tend to cause to the rational and orderly disposition of Court business. For these reasons I agree with what the President has aid and the order she proposes.

CHESTERMAN J: I agree with what has been said by the

President and by Mr Justice McPherson.

THE PRESIDENT: The orders are as I have proposed.

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