Morgan v Freidman - [2007] QDC 290

[2007] QDC 290

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE RAFTER SC

Appeal No 1548 of 2007

ANTHONY BERNARD MORGAN	Respondent (Plaintiff)
and
MICHAEL ANTHONY FREIDMAN	Appellant (Defendant)
BRISBANE ..DATE 11/07/2007
ORDER

11072007 T(2)2-6/AMS(BNE) M/T BRIS24 (Rafter DCJ)

HIS HONOUR:	1
Brisbane the appellant pleaded guilty to a charge that on 23
INTRODUCTION: On 8 May 2007 in the Magistrates Court of communication, namely an internet messaging application, with

intent to expose a person he believed was under 16 years of
age to indecent matter contrary to section 218A(1)(b) Criminal

Code.

On 9 May 2007 he was sentenced to 12 months' imprisonment. In

written reasons delivered at the time of sentence the learned

Magistrate said at page 11:

"I accept that the defendant would be at risk in a
correctional facility. For these reasons the
defendant is sentenced to a term of imprisonment of 12

months. The Court-fixed parole eligibility date is 9 30
May 2007."

The learned Magistrate stipulated that the appellant was required to attend the Capalaba office of the Parole Board within 48 hours. The learned Magistrate explained that

failure to report would mean that the appellant was unlawfully
at large and could be arrested without warrant. (See page 3

of the Magistrate's reasons)

The appellant's solicitor told the Magistrate that the order

has caused confusion at the Bar table because it would be
necessary for the appellant to apply for parole. As the
offence is one of a sexual nature, the Court cannot fix a
parole release date. (See section 160B Penalties and
11072007 T(2)2-6/AMS(BNE) M/T BRIS24 (Rafter DCJ)

ORDER

Sentences Act). The offence is one of a sexual nature. (See	1
R v. McGrath [2005] QCA 463. The Court can, as the Magistrate did, fix a parole eligibility date. (See section 160B Penalties and Sentences Act) However the appellant's release on parole is determined by the Parole Board.

Ms Cupina for the respondent accepts that when the sentence was pronounced, the Magistrate initially misapprehended the effect of the order. The direction to report within 48 hours

is a sufficient indication of that. The appellant has

remained in custody. Curiously he has not applied for parole,
and Ms Gilbert who appeared for him, was not able to explain

his reason for that.

The parties have not been able to place any information before

me as to precisely when the appellant can expect to be
released if he actually applies for parole. Ms Cupina for the
respondent told me that in the circumstances, any application
for parole would be considered quickly, but of course that

does not necessarily mean that the application would be

granted. Ms Gilbert for the appellant said that it could be
up to 120 days from the date of application to the date of

grant of parole.

An application was made to the Magistrate to reopen the

sentence pursuant to section 188 of the Penalties and
Sentences Act, but that application was refused.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Morgan v Freidman

Details

AGLC: Morgan v Freidman [2007] QDC 290
Case: [2007] QDC 290
Decision Date: 11/07/2007

CaseChat Overview and Summary

The appeal in this matter was brought by the appellant, Michael Anthony Freidman, against a sentence imposed by the Magistrates Court for engaging in internet chat room discourse with a covert police operative with intent to expose a person he believed was under 16 years of age to indecent matter. The primary legal issue before the court was whether the sentence imposed by the Magistrate was appropriate given the nature and circumstances of the offence. The court had to consider the principles of sentencing for such offences and whether the sentence met the objectives of denunciation, deterrence, and rehabilitation.

The court found that the Magistrate had initially misapprehended the effect of the sentence when setting the parole eligibility date. The court noted that while the Magistrate could fix a parole eligibility date, the actual release on parole is determined by the Parole Board. The court reviewed the applicable legal principles and relevant precedents, concluding that the sentence of 12 months imprisonment was within the applicable range. However, considering the appellant had already served 63 days in custody, the court deemed that period adequate. The court emphasised the need for supervision and rehabilitation, and thus decided to re-sentence the appellant to two months' imprisonment with the remainder to be served on probation for two years, subject to conditions including psychiatric treatment and regular reporting to a Corrective Services officer. The appellant consented to the terms of the probation order. The court set aside the original sentence and imposed the new sentence, ordering the appellant's immediate release on probation.

Orders