Morris v. Spink

[2009] QDC 71

[2009] QDC 71

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD3041 of 2008

JOHN ALEXANDER MORRIS	Applicant
and
REBEKAH MAREE SPINK	Respondent

BRISBANE

..DATE 20/02/2009

ORDER

CATCHWORDS: Penalties and Sentences Act 1992, s122 - on a court ordered review of offender's performance under an intensive correction order no action should be taken to revoke or amend the order without a formal application in that regard.

HIS HONOUR: For reasons that may be found at [2008] QDC 270

and [2008] QDC 271, when an order for imprisonment ameliorated

by an Intensive Correction Order was made in an appeal by

Mr Morris under section 222 of the Justices Act, today was

fixed for an appearance by him to review his performance under

the order, which his past history indicated might be

problematic.

Mr Morris has appeared today ably represented by Ms Vasta.

He unexpectedly found himself facing a suggestion from

Ms Overell, for the DPP, that the ICO should be vacated,

supported by a Court Report dated yesterday.

There is no application under section 122 of the Penalties and

Sentences Act.  Ms Overell accepts, as I think she must,

that the Court, in the circumstances, probably cannot act

under that section.  It would seem inappropriate to do so

given that the whole point of the successful section 222

appeal was that a Magistrate had resorted to a short cut when

an order was changed rather than follow correct processes.

Ms Overell also submits that under section 126 the Court may

be able to act.

The circumstances involve some unknowns.  It's likely, but I

don't think I should take it as formally established, that

Mr Morris may be convicted in four weeks' time for an offence

of unlicensed driving.  Ms Vasta tells the Court that, while

he was incarcerated, his licence expired and he overlooked

renewing it and he tells me that he now has renewed his

licence.  But, as we are here today, it is not clear whether

there has been any re-offending.

The Court Report speaks in general terms of failure to do

community service but nominates no date so that the Court can

safely know what the particulars are.  The Court is told that

on one occasion a half a day's work was done at the Palm Beach

Swimming Pool by Mr Morris which appears not to have been

recorded.  That situation may bear looking into.

He has been a frustrating client for the author of the Court

Report.  I interpolate that the two of them may have failed to

establish a good rapport.  That is bound to be the case from

time to time with these arrangements.

Although Mr Morris' performance has not satisfied that lady,

it appears that he has taken the initiative himself to obtain

assistance, for example, from Mr Michaels of the Burleigh

Boxing Association and from Mirrakai. (See Ms Kortez' letter,

Exhibit 3A).  There is also material to indicate that he

presented to a "Back in Control" group as recommended by a

doctor and supported by Community Corrections, but was unable

to attend because the group was full.  The relevant Exhibit,

Exhibit 2A, suggests there are possibilities of Mr Morris

getting involved in another group very shortly.  There are

obviously possibilities of significant community service being

done, now that the way seems clear for that.  Mr Morris has

been frustrated in obtaining medical support for the

proposition that a back injury would preclude his doing work.

Given that there is no application under section 122 today,

the Court ought not to act as if there were.

There is a strong suspicion that he has let himself and the

system down by his performance to date on the intensive

correction order but the situation, thanks to Ms Vasta's

efforts, presents as less embarrassing for him than it would

otherwise appear.

I propose to keep the matter under review and will make the

following orders.  Adjourn this mention for further

consideration to the 24th April 2009 and an appearance in

person is required by Mr Morris.

I direct that any application under section 122 of the

Penalties and Sentences Act may be made returnable then and

should be served no later than the 16th of April 2009.

Service may be effected on Mr Morris by service at the Legal

Aid Office and on any other party, for example, of any

application by him, on the DPP.

Does that cover it?

MS OVERELL:  Thank you, your Honour.

HIS HONOUR:   There is positive news today but I hope on the

24th April there is even more, Mr Morris.

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