Oakley v Bubb

[2008] QDC 168

[2008] QDC 168

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE SAMIOS

No 45 of 2008

BENJAMIN FRANCIS GRAEME OAKLEY	Appellant
and
JAMES BUBB	Respondent
BRISBANE ..DATE 28/04/2008

ORDER
HIS HONOUR: This is an appeal against the decision of the

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learned Magistrate who, on the 24th of December 2007, imposed

a penalty upon the appellant for a breach of the Bail Act.

The penalty was two months' imprisonment, wholly suspended for

12 months. The breach of the Bail Act was a breach of a	10
condition that the appellant not have contact, directly or indirectly, with a person by the name Joshua Gross.
The ground of appeal is that the penalty imposed by the
learned Magistrate is manifestly excessive. On the face of	20
it, it does not appear that the learned Magistrate had any
substantial criminal history as part of the personal
circumstances of the appellant. What I have been told of it
today, I would say it was not a substantial or significant
criminal history. I would say it was minor in all the	30
circumstances.
The appellant was born on the 7th of August 1987. He was
charged with three serious offences; two offences of doing
grievous bodily harm and one offence of robbery with violence.	40
He was admitted to bail for these on the 29th of September 2007 on that condition that I have mentioned.
It is accepted that Mr Richards of counsel, who appears and
appeared on behalf of the appellant, reminded him of the non-	50

contact condition. That should be seemed to be just a
circumstance in the context of all the circumstances. That
is, it should not be given more weight than it deserves.
However, the appellant frankly admits that on or about the 7th 2 ORDER 60

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of December 2007 he was contacted by a friend who wanted him to attend a fishing trip. He subsequently found out that Mr Gross was also attending the fishing trip. He agrees that he
could have dissociated himself from Mr Gross but did not do so

because he had been told that he was a suicide risk and that	10
he had been a life long friend and he could not turn his back on him.
He says on oath that he did not discuss the circumstances of
the charges at all. It is accepted that the information	20
conveyed to the Court by the Prosecution confirmed the suicide risk issue. The contact between the appellant and Mr Gross came to light when the police processed photographs from Mr Gross's camera showing them together on the relevant date.
30
The appellant, again, also frankly admits that he lied to the
police when spoken to by them on the 17th of December 2007, in that he falsely denied seeing him. When seen by the police on the 22nd of December 2007 the appellant voluntarily
participated in a record of interview and admitted the	40
relevant facts.
Mr Richards submits that the learned Magistrate has erred in
the exercise of his discretion in this case, particularly
because he seems to have placed too much weight on his having	50
reminded the appellant of the non-contact condition and also
failing to give weight to the suicide risk issue which seemed
to have been accepted by the Prosecution as genuine.

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The learned Crown Prosecutor, Ms Rutherford, reminds me that
the words of the learned Magistrate that the appellant
continued to fraternise with Mr Gross are not an indication of
some continuing and deliberate contact in the face of the

condition but rather, merely, stating the fact that there had	10
been contact in breach of the condition.
Further, that the sentence imposed by the learned Magistrate,
in any event, was at the lower end of the range. This is a
difficult matter because, as the learned Crown Prosecutor, Ms	20
Rutherford, submitted, the seriousness of these charges should not be overlooked. They were serious charges and the appellant had been granted bail.
Also, in the context of this matter it should not be	30
overlooked that the appellant, when spoken to by the police on
the 17th of December 2007, falsely denied having seen Mr
Gross. Further, the grant of bail is a serious issue, is a
serious matter and unless penalties are appropriate that are
imposed then people may not respect and observe bail	40
conditions.
However, on the other hand, the appellant pleaded guilty. I
accept that on his part he was remorse in the end, although,
one might say he was caught out but I still bear in mind his	50

age and he was therefore young and immature. He was 20 years of age and he was unable to deal with the suicide risk to his friend. I also bear in mind that the suicide risk was 4 ORDER 60

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accepted as genuine by the Prosecution.

In these circumstances I have come to the view that the
balancing exercise that the learned Magistrate undertook has

miscarried and that the imposition of two months'	10
imprisonment, even though it was wholly suspended for an operational period of 12 months, was excessive in the circumstances.
Bearing in mind the appellant's criminal history and the	20
circumstances in general, I have come to the view for this offence he ought to have been fined $500 and given time to pay with a default period of imprisonment if he failed to pay the fine within the due time.
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Therefore, I allow the appeal. I set aside the orders that the Magistrate made on the 24th of December 2007. I fine the appellant $500.
I will find out from Mr Richards how much time he needs to pay	40
a fine of $500.
MR RICHARDS: I'd ask for three months, your Honour. He's an apprentice.
HIS HONOUR: Three months to pay, in default 30 days'
imprisonment.	50
Anything further? MR RICHARDS: No, nothing further, your Honour.

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