Lane v Schmidt

[2005] QDC 370

[2005] QDC 370

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No BD1415 of 2005

MARYANNE ROSE LANE	Appellant
and
TROY EDWIN SCHMIDT	Respondent

BRISBANE

..DATE 07/11/2005

ORDER

CATCHWORDS: Justices Act 1886 s 222 - appeal to District Court from Magistrate's resentencing appellant to partly suspended imprisonment for breach of probation (by failure to report) - Magistrate unaware of considerations which had led to the probation order's being made - respondent conceded the appeal - small fine ordered, rather than one month's imprisonment to be declared already served - appellant's desire not to have imprisonment in his criminal history respected.

HIS HONOUR: This is an unusual appeal under s.222 of the Justices Act 1886 in that it is against what a Magistrate sitting in Inala determined to do in breach proceedings which became before him on the 1st of April this year, in respect of a probation order made in Beenleigh.

There is very little guidance available about the approach that ought to be taken in such appeals, given the rarity of them.

The appellant was a 19 year old, representing herself.  Her father was at Court on the day to support her, and, indeed, took up the Magistrate's invitation to address the Court.  The Magistrate was informed of the steps the appellant was taking, for example, by participating in a Naltrexone program to deal with her difficulties with heroin. 

Her counsel engaged in the appeal, Mr Power, has indicated she has many other issues in her life, which it is unnecessary for the Court to go into at the moment.  Her situation commands some sympathy.

The Magistrate, on the 1st of April this year, was deprived of the benefit of the full detail of what had gone on in the Beenleigh Magistrates Court on the 2nd of August 2004, when an 18 month probation order with conviction recorded had been pronounced in respect of three drug offences on the 16th of April 2004. 

That came on top of earlier appearances for drug matters in the same Court on the 27th of November 2003, when a $200 fine was imposed without conviction, and the 30th of January 2004, when a fine of $900 was imposed without conviction.

The situation on the 2nd of August 2004 is that the Magistrate took some trouble to look more imaginatively at the appellant's situation, and resorted to probation as a means of assisting her, rather than pursue the less imaginative approach of imposing fines of increasing amount. 

From some points of view, the appellant was unlucky to be before the Court.  She was apprehended when she made a telephone call to a drug supplier whose mobile phone was at the time in the possession of police.  She turned up with $100 at an arranged appointment where, of course, she met police.  She was convicted of being in deemed possession of heroin which, as I understand it, she never got, and of possession of the $100 which, in the circumstances, was tainted.  She was also found with a syringe.

For the purposes of the probation order, she reported initially and then two days later as required.  She missed the third appointment which was set for the 10th of August 2004 but turned up unannounced on the following day.  She was given an instruction to report a week later and failed to do so.  This time she telephoned the following day to say she had forgotten.  Instructed to report on the next day, she failed to do it.  She then failed to report, as directed by letter, on the 15th of September 2004 and the 23rd of September 2004.  A home visit revealed that she no longer resided at her address.  One of her problems, the Court understands from Mr Power, is that she is a homeless person.

She has been convicted of further offending.

The Magistrate's intentions for the probation order, as it happens, were being served by steps the appellant was taking independently.  It might have been wiser if she had sought to do that more cooperatively with the probation authorities who obviously became determined to breach her.  On the 1st of April the Magistrate in the circumstances mentioned construed the probation order as a last chance given to the appellant whereas, on investigation, it appears more of a first chance to get her life in order.  His Honour's response was stern.  He sentenced the appellant to four months' imprisonment suspended for an operational period of 18 months after she had served one month.  She has served that time in custody.

Mr Power representing her interests resists the easy solution which suggests itself, given Mr Hungerford-Symes' agreement that the appeal ought to be allowed, of a sentence of one month's imprisonment.  He has frankly told the Court the appellant faces other charges and, for obvious reasons, prefers not to have a sentence of imprisonment appearing on her criminal history.  If there was any lesson she could learn from one month's incarceration, then presumably she has learnt it.
Mr Power's suggestion to the Court is that a fine be imposed.  Mr Hungerford-Symes agrees but given the fact of a month spent in custody the expected level of fine, which would be $1,000 or more, should be ameliorated.  He expressed some concern that the appellant should not be burdened with a financial obligation.  The $200 suggested by Mr Power is modest and it seems to me that that is an appropriate outcome of resentencing in the changed context in which the District Court has to deal with it.

It seems to be common ground at the Bar Table that once the Magistrate on the 1st of April determined to resentence that put an end to the probation order in such a way that it cannot be revived by this Court without the appellant's being here in person to consent to what would be a new probation order.

(Mr Power informed the Court of the likelihood that in the pending matters a further probation order may be the outcome.)

...

HIS HONOUR: The appeal is allowed.  The Magistrate's orders on resentence on 1 April 2005 are set aside, but not the finding of breach.  The orders set aside are replaced by a fine of $200, in default four days imprisonment.  Two months are allowed to pay, as sought by Mr Power.

-----