Morris v Spink

[2008] QDC 271

[2008] QDC 271

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No 3041 of 2008

JOEL ALEXANDER MORRIS	Appellant
and
REBEKAH MAREE SPINK	Respondent

BRISBANE

..DATE 21/11/2008

JUDGMENT

CATCHWORDS

Whether sentence appeal under s 222 of the Justices Act 1886 allowed and orders about parole in respect of imprisonment were set aside—whether an intensive correction order could be made retrospectively—whether new orders for imprisonment for balance of original term appropriate

HIS HONOUR:  The reasons published to the parties earlier today for the Court's views reflect a considerable amount of common ground between the parties.  After consideration of the reasons, the representatives have raised some concern as to whether an intensive correction order can be made with retrospective effect or as part of imprisonment ordered by a Magistrate on the 18th of August last year which the learned Magistrate sought to ameliorate by orders about parole, which in the circumstances have been adjudged inappropriate.  I can see no reason in principle why an intensive correction order ameliorating the imprisonment ordered by the Magistrate (which imprisonment ought to stand, in effect) cannot now be made as the best way of giving effect to her views and intentions in the circumstances.  The practical working out of such arrangements would be that the appellant escaped the obligations of the intensive correction order for the first few months, but at the cost of being without his liberty.

There hasn't been time to consider the issue in depth, and in the circumstances the efficient course seems to be to defer to the lawyers’ shared approach and pronounce new sentences today which will have the appearance of being light.  The justification for that, of course, is the amount of custody that the appellant has experienced.  The result is that he will have new sentences pronounced effective from today corresponding in duration with the balance of the Magistrate's sentences.

The orders are:

1. Extend the time for filing the appeal against sentence.

1. Allow the appeal.

1. Vacate the Magistrate's orders of the 18th of August 2008 and the 30th of September 2008.

4. In lieu thereof, in light of the appellant's being in custody by reason of the offences for 104 days from the 8th of August 2008 to today, he be sentenced to a single term of 169 days' imprisonment in respect of the five receiving offences. 

1. The Court makes no order other than recording of convictions in respect of the other offences.

6. The appellant having consented, make an intensive correction order requiring the defendant to report to the nearest Community Corrections office for the purposes of it by the close of business on the first business day following his release from custody, and containing a condition that he appear in person at a mention for review of his performance under the order at the District Court Brisbane on the 20th of February 2009.

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