Martin & Guild v Duffy

[1995] QCA 602

COURT OF APPEAL

[1995] QCA 602

FITZGERALD P
DAVIES JA
THOMAS J

CA No 410 of 1995

J M MARTIN and
D J GUILD

v.

BRENDON JOHN DUFFY  Applicant

BRISBANE

..DATE 06/12/95

JUDGMENT

THE PRESIDENT:   This is an application for leave to appeal against a sentence imposed in the Magistrates Court at Brisbane on 4 October 1995.

The applicant was charged with a breach of probation in relation to a stealing offence for which he had earlier been placed on probation and sentenced to one month's imprisonment.  He was however admitted to bail nine days later after commencing this proceeding in this Court.

The stealing offence occurred on 4 January 1993 when the applicant was seen to walk to a T-shirt rack at the rear of a shop in Gympie and later seen on leaving the store to have a large bulge in the front of his clothing.

A member of the staff asked him to show what was under his clothing and he refused.  Whilst waiting for the police he replaced a T-shirt on a rack and later made full admissions to police.  As I was said he was convicted and placed on probation for six months. 

However, he did not report as required by his probation but moved to Victoria to see his father and then to South Australia.  He is 21 years old and has no criminal history of any present relevance.  This was his first conviction. 

The respondent submitted that, quite correctly, the applicant made no attempts to comply with the directions of his probation officer or to moderate his behaviour and a short sharp term of imprisonment was within the Magistrate's discretion. 

Acknowledging however that the applicant has already had such a term of imprisonment in the nine days that he has served the applicant relied upon the following circumstances.  He is a young man, 19 at the time of the offence and 21 years old now, slightly retarded with a drinking problem and no understanding of the value of money.  When he went to Victoria to see his father he was reluctant to come back to Brisbane because his step-father had sexually abused him when he was younger, that he was in full-time employment when he was sentenced in the Magistrates Court, that there was a significant delay in bringing this matter on for breach action, that he had not committed any offences of dishonesty since this offence which was not in itself particularly serious.

The applicant submitted that while a small fine should have been imposed or a good behaviour bond would have been appropriate, the sentence in the present circumstances which should be imposed is that of the nine days' imprisonment which he has already served.

In my opinion a sentence of imprisonment should not have been imposed in the first place but in view of what has already occurred I would allow the application and the appeal, set aside the sentence imposed below and in lieu substitute a sentence of imprisonment for nine days.

DAVIES J:  I agree.

THOMAS J:  I acknowledge the difficulty confronting a Stipendiary Magistrate who has an offender before him who has shown no respect at all for the previous sentence imposed.  However, because of the special circumstances attending this particular applicant, I think that special moderation was called for in dealing with his failure to respond to probation.

I agree with the order proposed by the President.

THE PRESIDENT:  The order is application granted, sentence imposed below set aside and in lieu substitute a sentence of imprisonment for nine days.

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