Jones v DeVries
[2006] QDC 238
•25 May 2006
DISTRICT COURT OF QUEENSLAND
CITATION:
Jones v DeVries & Ors [2006] QDC 238
PARTIES:
Christpher Michael Jones
Appellant
And
Roy DeVries & Ors.
Respondent
FILE NO/S:
3590 of 2005
DIVISION:
Appellate
PROCEEDING:
Section 222 Appeal
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
25 May 2006
DELIVERED AT:
Ipswich
HEARING DATE:
24 April 2006
JUDGE:
Richards DCJ
ORDER:
The appeal is allowed in relation to the breach of the Bail Act on 5 October 2004. The sentence is set aside to the extent that the term six weeks imprisonment is to be wholly suspended for a period of six months. The other sentences are to remain. The respondent is to pay the appellant’s costs to be assessed unless otherwise agreed.
CATCHWORDS:
Breach of bail Act – mental disability – allowance for plea of guilty and cooperation with police
COUNSEL:
Mr B P Ryan for the Appellant
Mr M Hungerford -Symes for the Crown
SOLICITORS:
Ryan & Bosscher Lawyers for the appellant
DPP for the Crown
On 24 August 2005, Mr Jones pleaded guilty and was sentenced in relation to the following offences:
1. Breach of s 33 of the Bail Act on 5 August 2004 - 6 weeks imprisonment;
2. Breach of s 33 of the Bail Act on 5 October 2004 - 6 weeks imprisonment in cumulative to the above 6 weeks;
3. Breach of Bail conditions, (section 29(1) of the Bail Act) on 18 June 2004 - 6 weeks imprisonment concurrent;
4. Breach of Bail conditions, (section 29(1) of the Bail Act) on 10 September 2004 - 6 weeks imprisonment concurrent;
5. Possession of property suspected of being stolen pursuant to section 25 of the Vagrants, Gaming & Other Offences Act on 21 April 2002 - convicted and fined $250;
6. Possession of utensil pursuant to Section 10 of the Drugs and Misuse Act on 21 April 2002 - convicted and fined $300;
7. Disorderly Behaviour, section 7 of the Vagrants, Gaming & Other Offences Act 27 November 2002 - convict and fined $75;
8. Obstruct police, section 444 of the Police, Powers and Responsibility Act on 27 November 2002 - convicted and fined $150.00;
9. Failing to properly dispose of a syringe pursuant to section 10 of the Drugs and Misuse Act on 22 June 2004 - convicted and fined $300;
10. Possession of tainted property, pursuant to Section 252 of the Criminal Proceedings Confiscation Act 2002 on 22 June 2004 - convicted and fined $300.00.
11. Possession of utensil pursuant to Section 10 of the Drugs and Misuse Act on 26 July 2004 - convicted and fined $300.
Mr Jones now appeals against the sentences for the breaches of bail and more particularly the cumulative sentences for breach of bail on the basis that the sentences were manifestly excessive.
Mr Jones has previous convictions for breaches of bail undertakings in total on five occasions:
On 2 November 2002, he was convicted of breach of bail undertaking and fined $400.
On 9 May 2003 a breach of bail undertaking convicted and fined $500.
On 28 November 2003, breach of bail undertaking on three occasions and convicted and fined a total of $1,000.
Aside from the breaches of the Bail Act, he had very little criminal history.
Submissions made on his behalf at sentence were:
that he had been badly injured 2-3 years prior to August 2005 and received a fractured skull and brain damage that affected his memory.
He left Queensland in August 2004 to help his grandmother in Victoria and then went to New South Wales and was detained for some time in prison.
He returned to Queensland with the intention of having his charges dealt with after he was established however the police picked him up before he had an opportunity to turn himself in.
He is living in a de facto relationship with a woman for whom he is the registered carer. She also has brain damage in that she has frontal lobe epilepsy and needs someone with her in case she has a seizure.
At the time of sentence he had spent 7 days in the watch house. He had never been in custody in Queensland before.
It was submitted that he was not aware that he had to go to court on 5 October and on 5 August he was confused about the court date.
In his sentencing remarks the learned magistrate did not make any detailed comment about these submissions other than to say that his memory problem should have alerted him to the fact that he should be more careful with his court dates and to write them down or have some other plan for insuring that he came to court when required. He does not, in his sentencing remarks, make any mention of the fact that it was an early plea of guilty or that he had come back to Queensland voluntarily knowing that there were warrants outstanding or that he was the full time carer for a disabled person.
The Crown submits that the learned magistrate should not have to detail all the factors that are taken into account however the lack of detail makes it difficult to judge whether all relevant submissions were considered. This was the first time that this man had been put into custody in this jurisdiction and it was therefore important to detail why the magistrate it was time for the person to be placed into custody. This was a plea of guilty in relation to all the breaches. The appellant suffers from a mental disability and the magistrate accepted that in his sentencing remarks when he said:
“despite the disadvantage that you have in relation to your memory …”
It was appropriate that the appellant serve a term of imprisonment given his history of breaches of bail. However, given that the appellant was looking after a disabled person, consideration should have been given as to whether a suspended period of imprisonment was appropriate before an actual term of imprisonment was imposed.
In my view taking into account the factors I have mentioned, a term of actual imprisonment is excessive in the circumstances. The magistrate did not give sufficient weight to the appellant’s plea of guilty, to his having voluntarily returned to Queensland or his responsibilities in relation to his de facto partner were not sufficiently taken into account. In my view a sentence which recognised those factors would have been more appropriate.
ORDER
The appeal is allowed in relation to the breach of the Bail Act on 5 October 2004. The sentence is set aside to the extent that the term six weeks imprisonment is to be wholly suspended for a period of six months. The other sentences are to remain. The respondent is to pay the appellant’s costs to be assessed unless otherwise agreed.
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