McDermott v Jones

[1992] QCA 260

COURT OF APPEAL [1992] QCA 260

FITZGERALD P
DAVIES JA

LEE J

CA No 142 of 1992

JOHN THOMAS McDERMOTT

v.

BRUCE McGREGOR JONES

(Applicant)

BRISBANE

..DATE 15/7/92

JUDGMENT

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JUDGMENT

LEE J: The applicant seeks leave to appeal against the

sentence of three months' imprisonment imposed on 27 April

1992 by the Magistrates Court at Gladstone following his

conviction for unlawful assault upon a child care officer.

The applicant's foster son was taken into custody in relation

to a number of charges of break and enter. These charges were

initially set for hearing on 5 February 1992. The applicant

was advised by police that he was required to appear in Court with his son on that date. As the Stipendiary Magistrate was absent at that time, the matters were adjourned to 7 February 1992 by two lay Justices of the Peace after the applicant made

it clear that he had already lost 12 hours work that day and

that he could not lose work on 6 February but had a rostered

day off on Friday, 7 February 1992, and he wished to appear in

Court.

However, at the request of the Department of Family Services,

the charges were nevertheless brought forward for hearing on 6

February 1992 to avoid the applicant's son being held in

custody at the watch-house for more than 24 hours. The
applicant was not told of this new arrangement. He attended
work that day from 5.45 a.m. to 5.30 p.m. and at about 8 p.m.
visited the watch-house when his adopted son told him he had

been dealt with that day earlier on and sentenced to 6 months'

imprisonment at Westbrook.

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The applicant's wife had been told of the earlier hearing and

had appeared in Court on 6 February but, as indicated, the

applicant was at work and knew nothing of the proceedings. A

police officer told the applicant that his son would be

leaving next morning, 7 February 1992, for Westbrook.

On the way home the applicant met the complainant and asked

him who had organised the son's Court appearances one day

early without telling him about it. The complainant told him that as his son was an Aboriginal he could not be kept in the

watch-house for more than 24 hours and the matter was out of

his hands.

The applicant became agitated and upset. He swore at the

complainant and spat at him in the face, throat and shirt, and

then went home. It was a degrading form of assault. Next

morning he attempted to apologise to the complainant, who

turned away from him. He expressed shame and remorse and

attempted on several other occasions to contact the
complainant to apologise, without success. He, in fact,
conveyed his thoughts to the manager of the section where the

complainant worked.

The applicant ultimately pleaded guilty before the Stipendiary

Magistrate and was unrepresented. The Stipendiary Magistrate said that spitting on an officer was a cowardly and despicable thing to do, and a previous case of a similar nature had come

before him. Hence, the applicant should not be treated

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differently to anyone else.

It appear that the complainant had been assigned by the

Department of Family Services to assist the applicant's family

for about a year prior to this offence, and the applicant felt

he had been let down when the matter was brought forward early

without his knowledge. However, this could not justify his

conduct, and it is not submitted on his behalf that it did.

The applicant has no previous convictions. He is 50 years of

age. He and his wife have adopted and fostered three

Aboriginal children and have three children of their own.

They have a concern for the welfare of Aboriginal people. He

is a tireless community and youth worker and is involved with

church activities. Several very good references have given

indications of the respect held for him in the community, and

show that this assault was completely out of character.

He has suffered various problems with his own family over the

previous year. He has shown remorse from the next day and is

thoroughly ashamed of himself.

There is no dispute about the facts. Counsel for the

respondent, in the outline, referred to a decision of Gabriel
v. Campbell, but it appears that case is a far more serious
one and counsel for the respondent did not rely upon it before

us.

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It seems to me, in all of the circumstances of the case, that

it is appropriate for a community service order to be imposed.

Mr Collins, do you have the consent of the applicant to a specified number of hours or was it just a general consent?

MR COLLINS: General, as I understand it, Your Honour.

LEE J: Yes, do you have any doubt, Mr Collins, that your instructions are wide enough to consent to a community service order of 100 hours?

MR COLLINS: No, I have no basis upon which I could -----

LEE J: All right, thank you.

THE PRESIDENT: Well, you need to accept the responsibility for it, not the Court, Mr Collins. Is there any doubt about it, not that you have no basis for it, because you don't know one way or the other. Is it clear that the Court can, in accordance with the Act, impose this order, because of the instructions which you hold?

MR COLLINS: Your Honour, I believe that I would - well, I should inform the Court that I would like to obtain further instructions on that aspect in this particular instance. I don't believe there will be any difficulty.

THE PRESIDENT: Well, we will carry on with the next matter, in which I think you are also involved.

MR COLLINS: Yes, Your Honour.

THE PRESIDENT: And then probably adjourn briefly at the end
of that, and during that period would you please make sure
instructions are precise and clear so that this matter can be

resolved.

MR COLLINS: Yes, Your Honour.

THE PRESIDENT: Subject to that, it is intended to impose a community service order of 100 hours for the reasons given by Mr Justice Lee. We'll adjourn this matter then and carry on with the next matter.

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MR COLLINS: I should indicate, if I may at this stage, in respect to that other matter that -----

THE PRESIDENT: We're now speaking of -----

MR COLLINS: That's the matter of Jones, Your Honour.

THE PRESIDENT: Jones and McDermott, yes.

MR COLLINS: Yes, Your Honour, that the 100 hours' community service, there is no difficulty with respect to the agreeability of -----

THE PRESIDENT: He consents to it?

MR COLLINS: He consents to that particular period of time,

Your Honour.

THE PRESIDENT: Yes, thank you.

LEE J: Well, the order of the Court will be that leave to

appeal is granted. The sentence is set aside and the Court
orders that instead of passing sentence upon him, the
applicant be required to perform unpaid community service in
accordance with the Act for 100 hours. The following are the
requirements of the community service order: that the offender
report in person to the Community Correctional Officer at

Gladstone within 24 hours of the making of this order; that he

perform in a satisfactory manner the number of hours specified

in the order such community services as the community

correctional officer or supervisor directs at such times as
any community correctional officer or supervisor directs; that

the offender while performing that service comply with every

reasonable direction of a supervisor; that the offender advise

the community correctional officer of every change in his

place of residence within 48 hours of that change.

Now, Mr Byrne, do you submit any other conditions should be imposed?

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MR BYRNE: No, Your Honour.

LEE J: Thank you. Well, that should be the order of the

Court, in my opinion.

THE PRESIDENT: Yes, I agree.

DAVIES JA: I agree.

THE PRESIDENT: The order of the Court in the matter of

McDermott and Jones will be as indicated by Mr Justice Lee.

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