Pevitt v Power

[2010] QDC 185

[2010] QDC 185

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE CLARE SC
No 926 of 2010

ANDREA LESLIE PEVITT	Appellant
and
RICHARD JAMES POWER	Respondent
BRISBANE ..DATE 28/04/2010 JUDGMENT

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HER HONOUR: Ms Pevitt pleaded guilty to three summary

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offences on the 25th of March 2101. The Magistrate sentenced
her to three months' imprisonment to be followed by 12 months'
probation. She immediately appealed against the severity of
the sentence and applied for bail pending appeal. A second

Magistrate refused bail. That was on the 26th of March. The	10
matter came before me as another application for bail. The application was filed on the 22nd of April.
The principal argument for bail was that an appeal would not
be heard until all or at least most of the term of	20
imprisonment had been served. The whole point of the appeal was to contest the custody component of her sentence, and it was argued that a failure to grant bail now would deny Ms
Pevitt of any prospects of real relief. On the other hand,
early release on bail was also likely, in a practical sense,	30
to determine the outcome of the appeal for detention because Courts are generally reluctant to return offenders to custody where the unexpired term of imprisonment is very short.
The interests of justice are better served by a determination	40
of the appeal on its merits. To that end, Ms Cristaldi for
the Crown quickly obtained a transcript of the original
sentence proceedings and Mr Coburn entered an appearance this
afternoon on behalf of Ms Pevitt. He had argued her case
before the Magistrate.	50

The convictions in question concern two drug offences and a
charge of obstructing police. All offences arose out of
Ms Pevitt's use of heroin. A police search of her home found 1-2 JUDGMENT 60

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scales and a mobile telephone in her bag, both had been used
to obtain the heroin. She was also in possession of three
spoons used to administer the drug. No actual drug was found
but Ms Pevitt was thought to be hiding a plastic bag in her

vagina. She had acted as if to conceal it. Nothing was	10
ultimately found on her. At sentence, Mr Coburn told the
Magistrate that Ms Pevitt had pretended to hide a bag of drugs
to annoy the police. This was said to be the basis of the obstruction charge. Surprisingly, the prosecution did not challenge the credibility of the claim.	20
Ms Pevitt has a significant criminal record. The five pages
date back to 1999. The entries reflect her drug addiction and
comprise property offences, minor drug convictions and serial
breaches of community-based orders and suspended sentence.	30
Ms Pevitt’s first term of imprisonment was 18 months,
suspended, in respect of burglary and other charges. In 2005 she was sentenced to prison and probation and in 2007 she was released on an immediate parole order.	40
She has had three previous convictions for obstructing police.
Those offences were committed in 2001, 2005 and 2007. The
present offence of obstructing police, as ultimately described
to the Magistrate, falls to the lower end of that kind of	50

offence.
Ms Pevitt's last conviction of substance was for stalking in 1-3 JUDGMENT 60

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2007.

She is now 28 years old and it has been conceded on her behalf
that a term of imprisonment was within range for the offences

in light of her history. The submission, however, is that	10
actual custody was an excessive response to the level of
offending and the absence of any commercial element, together
with her rehabilitative progress. Ms Pevitt told the
Magistrate that she had become determined to change her life
after the birth of her child in September of 2008.	20
The criminal history tends to support her commitment. These
offences were committed in September of 2009. Ms Pevitt said
that at that time she had relapsed back to heroin after
learning that her sister had been diagnosed with cancer for	30
the third time.
The offences of September 2009, as I have said, were low level
offences. Their gravity really rested in the consequences
likely to follow Ms Pevitt's further involvement with drugs	40
and her level of resistance to the deterrent effect of previous sentences.
The six months on bail after her arrest, however, resulted in
no further incident. There does not seem to have been any	50
further offending between her arrest and her sentence. Again,
that reinforces the claims of changes to her life and
reinforces the prospects for her further rehabilitation.

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It is that matter of rehabilitative progress that persuades me
that the totality of the sentence in this case was excessive.
Too much weight was placed upon the criminal record as against
the level of offending and the reduced risk of reoffending.

Three months of actual custody was unwarranted. Ms Pevitt has	10
spent just over a month in prison. That is enough. The community’s interests are now best served by the supervision and support offered by the probation order.
The appeal is allowed.	20
I set aside the term of imprisonment and in its place order that Ms Pevitt be imprisoned for a period of 33 days.
If a declaration needs to be made, I declare that the period	30
from the 25th of March 2010 until today, the 28th of April 2010, has been time served under the sentence.
The probation order of 12 months that his Honour imposed is
affirmed.	40

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