Leafe v Idai

[2006] QDC 498

[2006] QDC 498

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE PACK

No D470 of 2005

CHARMAINE J LEAFE	Appellant
and
PHILLIP JOSEPH IDAI	Respondent
TOWNSVILLE ..DATE 09/02/2006
JUDGMENT

09022006 D.2 T2/DD M/T TSVDC1/2006 (Pack DCJ)

HIS HONOUR: This is an appeal by the Crown seeking an	1
increase in a fine. The respondent did not appear, nor was he
represented on appeal.
On the 4th of September 2005, the respondent was given a	10
requirement by a police officer to attend a drug diversion
program at Ingham on the 27th of September 2005. The facts
are that he did not attend because he forgot about it. He
attended on the following day but the centre was closed.	20
The night before he was required to attend, his pregnant wife
was admitted to the Townsville General Hospital. The
respondent and his family live in Ingham. On the day he was
supposed to attend, he was caring for his four children.	30
The respondent was unemployed. He was in receipt of $390 per
fortnight Newstart Allowance. On sentence, the learned
Magistrate specifically referred to the respondent's, "limited	40
financial circumstances with large family responsibilities".
The appellant complains that the Magistrate said inter alia to
the respondent on sentence, "You would have gone if you could
have".
50
What is suggested is that the Magistrate erred on the basis
that it was the respondent's case that he forgot and caring

for children played no part in the matter. I think a more
09022006 D.2 T2/DD M/T TSVDC1/2006 (Pack DCJ) 2 JUDGMENT 60

sensible interpretation is that the Magistrate meant to say	1
that she was satisfied the respondent would have complied with
the direction if he had remembered it on the basis he did
attend on the following day.

10

Any police officer or judicial office holder in North

Queensland soon learns that many persons of Aboriginal or

Islander genealogy are notoriously unreliable in terms of the

reliability of their memory.	20
The respondent was represented on sentence by a solicitor from
the Aboriginal Legal Service. As noted, he was given the
requirement some three and a-half weeks before and his wife's
hospitalisation may have diverted his attention.	30
He was, in reality, being punished for his forgetfulness. His
limited criminal history assumes no real relevance in that
situation. As I have said, he was fined $30. It is submitted	40
the fine should have been $150.
The fine was significant in terms of the respondent's capacity
to pay. The sentence, in my view, was not outside the
50
Magistrate's sentencing discretion. I am not satisfied the fine was manifestly inadequate. The appeal is dismissed.

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3 JUDGMENT 60