Myers v Tims

[2008] QDC 53

[2008] QDC 53

DISTRICT COURT
CIVIL JURISDICTION

JUDGE BRABAZON QC

No 2350 of 2007

GORDON LESLY MYERS	Appellant
and
DAVID JON TIMMS	Respondent
BRISBANE ..DATE 29/01/2008

ORDER
HIS HONOUR: This is an appeal about some sentences imposed on

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the 6th of August 2007. I have had the advantage of reading
the transcript of the proceedings before the learned

Magistrate and his remarks when sentencing Mr Myers.

A number of things are obvious from today's papers. First of	10
all, Mr Myers has an extensive criminal history in New South
Wales and the next thing is that the matters for which he was
convicted in Queensland and sentenced here were overall not in
a most serious category. There were offences of stealing,
which amounted to some petty thefts from people he was staying	20
with, the property was by and large recovered from the pawn brokers. Forgery and uttering, which sounds serious and is relatively serious, amounts to making a false statement to get a Queensland drivers licence.
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It is too late now for Mr Myers to say, as he wants to say, that he did not really commit an offence because he did not realise that in saying here that the question related only to
Queensland matters, but he had in fact been disqualified from
having a licence in New South Wales. So we must accept today	40
that he committed an offence. But while these matters are serious about licences and the like it is not the worst thing to have done.
I should say he earns his living as a truck driver and that	50

was important to him and he says that he had done some
expensive courses elsewhere to upgrade his skills as a driver.
The most serious offence here relates to a motor vehicle, 2 ORDER 60

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which he dishonestly got hold of while working in a garage and
then dishonestly sold it to someone for $3000. The vehicle
was recovered, but as I understand it the innocent purchaser

is out of pocket.

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And finally, he failed to appear in a Queensland Court and was
necessarily sentenced to a cumulative term of imprisonment
because the Bail Act says that is mandatory. He was given two
months for that, the Magistrate not believing his story about

being got bogged in the country.	20
The result was that apart from the two months on the bail offence he was to serve a year, 12 months in prison, because that was the head sentence relating to the motor vehicle.
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Bearing in mind his history that perhaps was not, indeed, an
excessive sentence, but the question of parole is in a
different category. There is now, of course, a power to fix parole for convictions of that kind. The learned Magistrate fixed parole at the 11th August this year, 2008.	40
The result was that the actual sentence imposed upon him was 14 months and because of that parole date he effectively had to serve all of that sentence. I should say that 54 days of presentence custody was declared as time already served, which	50

explains the total of 14 months. The result was, in effect,
that he was made to serve the whole of the Queensland sentence
before being released from prison. He was also disqualified 3 ORDER 60

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from holding a drivers licence for a period of 12 months.

In my view, all things considered, the learned Magistrate's
discretion must have miscarried with regard to that parole

date. He had pleaded guilty to all these offences and at	10
least some recognition should have been given for that but it was not.
It is a question now of fixing an appropriate period on
parole. He has already served almost eight months in prison.	20
It is a matter of judgment, I think, as to the appropriate adjustment of the fixed parole date. In my opinion it should be reduced by a period of four months, which would make the fixed parole release date 11th April 2008.
30
So the order of the Court will be - and I will listen to any comments about the appropriateness of this order - appeal allowed, set aside the parole release date of 11th August 2008, fix the parole release date at 11th April 2008.
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...

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4 ORDER 60