R v Adams

[2006] QDC 197

DISTRICT COURT
CRIMINAL JURISDICTION
JUDGE ROBIN QC
THE QUEEN
v.
BRENTON KYLE ADAMS
MOUNT ISA
..DATE 20/06/2006
SENTENCE
Catchwords assault occasioning bodily harm and sentencing the offender had already been punished for the same incident, charged as common assault in the "Murri Court" - sentence reopened under s188 of Penalties and Sentences Act and vacated - offender allowed to withdraw his guilty plea - proper plea was autrefois convict

WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.

HIS HONOUR: The Court is grateful to those operating the

watch-house here in Mount Isa for their vigilance in detecting
last evening that Mr Adams had already been convicted and
punished in respect of count 1 on the indictment to which he
pleaded guilty in this Court yesterday. The charge was of

assault occasioning bodily harm upon Colin Edward Namie on the 10
30th of March 2006. Exhibit 8 tendered this morning by Mr
Finch shows that before local Magistrate, Mr Manthey,
apparently sitting as the Murri Court, on the 12th of May this
year, Mr Adams pleaded guilty to an offence, "That on the 30th
day of March 2006 at Mount Isa in the State of Queensland [he] 20

unlawfully assaulted one Colin Edward Namie", and was punished for that and two driving offences by conviction and imposition of a fine of $1,600 in default 20 days' imprisonment, eight
months being allowed to pay. It is patent that the incident
on the 30th of March 2006 is one and the same as that 30
described to the Court yesterday in relation to count 1.

With the benefit of hindsight it can be said that the proper plea for Mr Adams to have entered was autrefois convict. Mr Adams should not have been called on to plead to count 1 at

40

all because he was facing double jeopardy. It is open to the Court under section 188 of the Penalties and Sentences Act to reopen the sentence. It is clear for the purposes of
subsection (1)(a) that the Court imposed a sentence that was
not in accordance with the law. It was a sentence of five 50
months' imprisonment. For practical purposes it is assumed
that because of a longer sentence of six months' imprisonment
in respect of count 2, and also a slightly longer balance

SENTENCE

2 60

remaining of a suspended sentence which Mr Adams was ordered

to serve, the setting aside of the order for five months'
(concurrent) imprisonment on count 1 will not have any great
practical effect.

I would like to take advantage of this opportunity to make an 10
observation which I think was omitted yesterday to the effect
that both the putative count 1 and count 2 seem to me to
represent less serious offending than the assault on a barman
in a local hotel which was the basis for the suspended
sentence - originally one for nine months. That consideration 20
justifies, in my view, the imposition of a shorter sentence,
in terms of months, for the repeat offence of assault
occasioning bodily harm. It is of some comfort to have Mr
Manthey's view as to what was an appropriate way of dealing
with the incident on the 30th of March 2006. Of course it was 30
presented to his Honour as common assault rather than AOBH,
which I accept makes some difference.
It is not clear from section 188 that it is open to the Court
to do anything about the plea and the conviction ordered to be 40

recorded yesterday. Coincidentally, this morning, reference was made in another matter to the Court of Appeal's decision in Mundraby [2004]QCA 493 and in particular the authorities
McPherson JA discussed in paragraph [11] of his reasons. It
was not necessary there to explore the situation from the 50
point of view of vacating a guilty plea once a sentence has
been pronounced. Here the sentence is set aside on the basis
that it was not in accordance with the law. Thus it may well

SENTENCE

3 60

be that Mr Adams has been returned to the status of someone in

respect of whom sentencing has not taken place, who may, with
the Court's leave, withdraw his guilty plea. There could
hardly be a stronger case for the Court granting leave to do
that than this one of autrefois convict or double jeopardy.

I think the Court today should grasp the nettle and go that
additional step. Accordingly, I will vacate the plea of
guilty made by Mr Adams yesterday and accepted by the Court.
It is most important that this young man's future not be

inappropriately blighted by having on his criminal history a 20
misleading reference to an inappropriate conviction. In the
hope that it may go some way to redress the situation, I will

order that the Court's and all consequential records (which is intended to refer to criminal histories) be noted to show that there was no lawful conviction of the defendant in respect of

30
the charge of assault occasioning bodily harm on the 30th of
March 2006 on the 19th of June 2006 in this Court.
A further error relates to my omission to pronounce in Court
an order, which I in fact noted in notebook 133 at page 118, 40
to the effect that in relation to Mr Adams' breach of the
probation order pronounced by Judge Forde on the 12th of
October 2005, the Court found the breach of probation by
reoffending proved, and ordered, by way of resentencing, that
Mr Adams should be sentenced to two months' imprisonment. 50

That of course is concurrent with the other imprisonment ordered yesterday.-----

SENTENCE

4 60

In the case of The Queen v. Brenton Kyle Adams, the defendant was charged with assault occasioning bodily harm against Colin Edward Namie on March 30, 2006, and was sentenced in the District Court of Mount Isa. The case arose from an incident where Adams had already been convicted and punished for the same offence by a local magistrate sitting as the Murri Court. The court was required to address the issue of whether the sentence could be reopened and vacated under section 188 of the Penalties and Sentences Act and whether the defendant could withdraw his guilty plea.

The court found that the sentence was not in accordance with the law as Adams had already been punished for the same incident, which amounted to double jeopardy. The court decided to vacate the sentence and allow Adams to withdraw his guilty plea, noting that his criminal history should not be misleadingly affected by this inappropriate conviction. The court also noted that it had found Adams in breach of a previous probation order and ordered him to serve two months' imprisonment concurrently with the other sentences.

The final orders of the court were to vacate the guilty plea entered by Adams, to vacate the sentence of five months' imprisonment, and to note in all records that there was no lawful conviction of Adams for the assault occasioning bodily harm on March 30, 2006. The court also ordered Adams to serve two months' imprisonment for breaching his probation order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

assault occasioning bodily harm upon Colin Edward Namie on the	10
30th of March 2006. Exhibit 8 tendered this morning by Mr
Finch shows that before local Magistrate, Mr Manthey,
apparently sitting as the Murri Court, on the 12th of May this
year, Mr Adams pleaded guilty to an offence, "That on the 30th
day of March 2006 at Mount Isa in the State of Queensland [he]	20
unlawfully assaulted one Colin Edward Namie", and was punished for that and two driving offences by conviction and imposition of a fine of $1,600 in default 20 days' imprisonment, eight
months being allowed to pay. It is patent that the incident
on the 30th of March 2006 is one and the same as that	30
described to the Court yesterday in relation to count 1.
With the benefit of hindsight it can be said that the proper plea for Mr Adams to have entered was autrefois convict. Mr Adams should not have been called on to plead to count 1 at	40
all because he was facing double jeopardy. It is open to the Court under section 188 of the Penalties and Sentences Act to reopen the sentence. It is clear for the purposes of
subsection (1)(a) that the Court imposed a sentence that was
not in accordance with the law. It was a sentence of five	50
months' imprisonment. For practical purposes it is assumed that because of a longer sentence of six months' imprisonment in respect of count 2, and also a slightly longer balance

I would like to take advantage of this opportunity to make an	10
observation which I think was omitted yesterday to the effect
that both the putative count 1 and count 2 seem to me to
represent less serious offending than the assault on a barman
in a local hotel which was the basis for the suspended
sentence - originally one for nine months. That consideration	20
justifies, in my view, the imposition of a shorter sentence,
in terms of months, for the repeat offence of assault
occasioning bodily harm. It is of some comfort to have Mr
Manthey's view as to what was an appropriate way of dealing
with the incident on the 30th of March 2006. Of course it was	30
presented to his Honour as common assault rather than AOBH, which I accept makes some difference.
It is not clear from section 188 that it is open to the Court
to do anything about the plea and the conviction ordered to be	40
recorded yesterday. Coincidentally, this morning, reference was made in another matter to the Court of Appeal's decision in Mundraby [2004]QCA 493 and in particular the authorities
McPherson JA discussed in paragraph [11] of his reasons. It
was not necessary there to explore the situation from the	50
point of view of vacating a guilty plea once a sentence has been pronounced. Here the sentence is set aside on the basis that it was not in accordance with the law. Thus it may well

inappropriately blighted by having on his criminal history a	20
misleading reference to an inappropriate conviction. In the
hope that it may go some way to redress the situation, I will
order that the Court's and all consequential records (which is intended to refer to criminal histories) be noted to show that there was no lawful conviction of the defendant in respect of	30
the charge of assault occasioning bodily harm on the 30th of March 2006 on the 19th of June 2006 in this Court.
A further error relates to my omission to pronounce in Court
an order, which I in fact noted in notebook 133 at page 118,	40
to the effect that in relation to Mr Adams' breach of the
probation order pronounced by Judge Forde on the 12th of
October 2005, the Court found the breach of probation by
reoffending proved, and ordered, by way of resentencing, that
Mr Adams should be sentenced to two months' imprisonment.	50
That of course is concurrent with the other imprisonment ordered yesterday.-----