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…

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 Morris v. Spink

Details

AGLC: Morris v Spink [2009] QDC 71
Case: [2009] QDC 71
Decision Date: 20 February 2009

CaseChat Overview and Summary

In Morris v Spink, the District Court was tasked with reviewing the performance of John Alexander Morris, who was subject to an Intensive Correction Order (ICO). Morris had previously appealed against a custodial sentence, which was replaced with the ICO under section 222 of the Justices Act. The court was presented with a suggestion by the Director of Public Prosecutions (DPP) to vacate the ICO, based on a court report that indicated Morris had not been compliant with the conditions of the order. However, the DPP did not file an application under section 122 of the Penalties and Sentences Act, which would have required a formal application to revoke or amend the ICO. Instead, the DPP suggested that the court could potentially act under section 126 of the same Act.

The court considered the circumstances of the case, including Morris's past history and the potential for re-offending, as well as his efforts to obtain assistance and his attendance at support groups. While Morris had not satisfied the author of the court report, he had taken steps to improve his situation and had not been formally charged with any new offences at the time of the hearing. The court decided to adjourn the matter and require Morris to appear in person at the next hearing on 24 April 2009. The court also directed that any application under section 122 of the Penalties and Sentences Act could be made returnable at that time, with service to be effected on Morris at the Legal Aid Office and on the DPP if Morris made an application.

The court's decision highlights the importance of following the correct processes when reviewing an ICO and the need for a formal application to revoke or amend the order. The court also emphasised the need for Morris to take responsibility for his actions and to improve his performance under the ICO. The final orders of the court included an adjournment of the matter and a direction for any application under section 122 to be made returnable at the next hearing, with service to be effected on Morris and the DPP.

Orders