Queensland Police v Cheers

[2009] QDC 295

[2009] QDC 295

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE RICHARDS

No 109 of 2009

QUEENSLAND POLICE	Respondent/Plaintiff
and
DENNY STEWART CHEERS	Applicant/Defendant
IPSWICH ..DATE 07/09/2009
JUDGMENT

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HER HONOUR: This is Cheers and police.

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MR WALLIS: Thank you, your Honour. For the record, Wallis, initials C W, counsel appearing on behalf of the Crown, instructed by the Director of Public Prosecutions.
MS EVERTON-MOORE: If it pleases your Honour, Everton-Moore, initials K J, solicitor with Legal Aid Queensland. I appear on behalf of the appellant.

HER HONOUR: Thank you. You can sit down.	10
MR WALLIS: Thank you, your Honour.
HER HONOUR: The appellant was convicted in the Ipswich common assault, one charge of disqualified driving, and one
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charge of failing to drive without due care and attention. He was sentenced to 12 months' imprisonment on the common assaults, 10 months' imprisonment on the disqualified driving, and a conviction was recorded with no further penalty imposed on the failing to drive with due care and attention.
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A pre-sentence custody was declared of 121 days from the 16th of December 2008 to the 16th of April 2009.
It was conceded by the Crown at the hearing of this appeal
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that the pre-sentence custody was not able to be declared, and that the Magistrate erred in making such a declaration. As such, the sentencing process falls to be considered afresh.
It was submitted at appeal by both the Crown and the defence
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that it was necessarily for the learned Magistrate to have
regard to the fact that on the 29th of September 2008 the
appellant was sentenced in the District Court at Brisbane to
nine months' imprisonment, with a parole release date of the
15th of December 2008 for a breach of suspended sentence. 1-2 JUDGMENT 60

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That was imposed on the 28th of April 2006.

He was not released on that Court ordered parole because he
didn't obtain bail on these offences, and his full-time

discharge on that sentence was the 7th of December 2008.	10
Actually, that can't be right. In any event, he wasn't given that Court ordered parole on that date, and was in custody on both the parole and the offences at the date of sentence.
The offences themselves occurred on the 7th of April 2008, and	20
the 26th of March 2008, and the 23rd of April 2008. So it was
conceded that, had the appellant been sentenced for these
offences as well as the breach of suspended sentence in the
District Court in September 2008, he would have received a
global sentence of approximately 12 months' imprisonment,	30
taking into account the breach of suspended sentence and these current offences.
Her Honour accepted that submission and imposed 12 months'
imprisonment from the date of the sentence, which was April	40
2009, however - and declared the 121 days in custody. from the 29th of September 2008, with an early parole release date because of his plea of guilty.
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He has now been in custody for almost the full 12 months from that 29th of September 2008, and it's conceded by the Crown that he should be resentenced and effectively given a order for parole immediately. The question is how best to fashion a 1-3 JUDGMENT 60

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sentence which does recognise his plea of guilty, and that
fact that he's been in custody for a long time awaiting the

outcome of this appeal.

I've come to the view, after reviewing the materials, that it	10
is appropriate that he be released from custody today, and the
best way to fashion that result is to impose a sentence four
months and 22 days, which is 144 days, which would see his
full-time discharge date as today. I should indicate that is
not to reflect the true nature of the seriousness of the	20
common assaults, which were quite serious, particularly given his criminal history. But because of the difficulties with time that's not declarable in custody, it's necessary to impose a sentence of this nature.
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So the appeal is allowed. The sentences of 12 months' imprisonment, and 10 months' imprisonment, are set aside and instead the appellant is sentenced to four months' and 22 days' imprisonment. That's a total of 144 days.
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Otherwise the sentence is to remain. The parole eligibility date can be fixed as at today's date.
MR WALLIS: Thank you, your Honour.
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HER HONOUR: Hopefully, that will fix the sentence.
MS EVERTON-MOORE: Thank you, your Honour.

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HER HONOUR: Now, I'll indicate that we got a letter on Friday

indicating the Department of Child Safety was requesting that	1
they be advised-----
MR WALLIS: Yes, your Honour, I-----
HER HONOUR: -----when the appellant was to be released because they're concerned about the threats that he made.
MR WALLIS: I'll be advising them as soon as I get back to the
office.	10
HER HONOUR: All right.
MR WALLIS: They were to make contact with us if they needed any further information, but-----
HER HONOUR: All right. MR WALLIS: -----we didn't hear. HER HONOUR: Just let them know he's up at Woodford, so----- MR WALLIS: I will, your Honour, be----- HER HONOUR: -----you're probably pretty safe----- MR WALLIS: -----on guard. HER HONOUR: -----this afternoon, in any case. MR WALLIS: Thank you, your Honour.	20
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