R v Bramwell

[1995] QCA 622

[1995] QCA 622

COURT OF APPEAL
FITZGERALD P
DAVIES JA

DOWSETT J

CA No 351 of 1995
THE QUEEN
v.

FREDERICK JAMES BRAMWELL Applicant

BRISBANE
..DATE 01/11/95
311095 T10/JJD M/T COA95/334
THE PRESIDENT: This is an application for leave to appeal
against a sentence imposed in the District Court at Townsville
on 31 July 1995. The applicant was convicted on his own plea of
breaking and entering the canteen of the Palm Island Aboriginal
Council and therein stealing liquor on 27 November 1993 and the
sentence imposed by the Judge was to record a conviction and
sentence the applicant to 91 days imprisonment which was to date
from 1 May that year to the date upon which the applicant was
sentenced, His Honour adding that meant that when he adjourned,
the applicant would be released.
The applicant was 22 at the time of the offence and 23 when he
was sentenced, having been born on 14 August 1971 and his only
prior offence was the theft of alcohol from a club house on
6 February 1993, for which on 20 May 1993, he was ordered to
perform 100 hours community service. The applicant is an
Aborigine and apparently a resident on Palm Island.

The circumstances of the present offence are simply that the licensee of the Palm Island canteen came down from the premises and saw people rushing off in all directions with bottles of alcohol and cartons of beer. They then dropped them and ran and the applicant was one of these people and later acknowledged his involvement when spoken to by police.

It is perfectly plain from the approach adopted by the sentencing Judge that he did not intend to punish the applicant any further, as he had spent 91 days in custody, on remand and I infer and I think this is not disputed by the prosecution, that His Honour would not in other circumstances, have imposed a 311095 T10/JJD M/T COA95/334

custodial sentence. Indeed, it seems to be common ground before this Court and it is in accordance with my opinion that in the circumstances if the applicant had not been in prison prior to being sentenced, he would have received a community based order, which would have been appropriate.

His Honour simply sought not to impose any further punishment upon the applicant, but in doing so, in my opinion, he adopted a course which is capable of misinterpretation and was not the most suitable course in the circumstances. Accordingly, I would grant the application and allow the appeal and set aside the sentence imposed. In my opinion, the offence which the applicant committed would have been appropriately sentenced by the recording of a conviction and the imposition of a community based order.

However, in the circumstances in which the applicant came before His Honour, it would have been further appropriate for the Judge to go on to say that in view of the term of imprisonment which had been served, he did not intend to impose any further punishment. That is the course which I would follow. A conviction should be recorded, but no further punishment should be imposed.

DAVIES JA: I agree.

DOWSETT J: I also agree.

THE PRESIDENT: The orders of the Court are application granted, appeal allowed, set aside the orders imposed below and order 311095 T10/JJD M/T COA95/334

that a conviction be recorded, but there be no further

punishment.

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