Ryan v. Sivell

[2007] QDC 113

[2007] QDC 113

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE BRABAZON QC

No BD2443 of 2006

MATTHEW PATRICK RYAN	Appellant
and
DAVID ANDREW SIVELL	Respondent

BRISBANE

..DATE 14/05/2007

JUDGMENT

HIS HONOUR:  This is an appeal about a collection of sentences on a young man who is presently in prison.  That is to say, there is some little doubt about the actual correct term of imprisonment presently imposed upon him, but it seems to be in the range of 19 to 22 months, depending on the interpretation of an earlier order in the Magistrates Court.

In addition, it is agreed here that no matter what happens today, if an order of the Magistrates Court with respect to some wilful damage imposed on the 26th of July 2006 is not disturbed he will have to serve an extra 40 days because of that.  That is to say, the Magistrate ordered that he be sentenced to three months' imprisonment for the wilful damage and compensation of $2,088.49.  The appellant elected no time to pay and the Magistrate ordered 40 days' prison in default.

It is common ground here that if that order is not disturbed then the 40 days will have to be served cumulatively upon whatever order this Court does make today about the other matters.

That then leads to the overall impact on this young man of the other orders.  He is 24 years of age, 22 years at the time.  He committed a number of offences, some of which are connected to domestic violence with his partner.  He was sentenced for two offences of driving under the influence of liquor, three offences of disqualified driving, a breach of a domestic violence order in which, on the one day, he both punched his partner on the thigh leaving a bruise, and then came home later and after further argument set fire to her hair.

There is also an appeal about two months' imprisonment for possession of cannabis and I think it is fair to say that it is not really contested here that that was an excessive punishment.

Overall the prosecutor concedes that the present impact of the imprisonment, whether it be 19 or 22 months, is, as a matter of totality, too great, and that he should be subject to an order in which he serves 12 to 14 months' actual time in prison.

For him, Mr Forrest says that, as I understand him, about a year would be acceptable enough but that an immediate release order might be made today.

In my opinion, the just result is that he serve a year's imprisonment plus what seems to be inevitable, I am told,
40 more days.  He would then have an immediate release order at the end of the 12 months, and would have to serve the
40 days.  The result would be that he would leave prison a free man and not be subject to supervision.  Bearing in mind the collection of offences that seems to me to be the appropriate result.

These then are the formal orders:

1. allow the appeal against the orders of the Magistrates

   Court imposed on 1st November 2004, 4th October 2005, 2nd March 2006, 26th of July 2006 (with the exception of the wilful damage dealt with on 26th July 2006 resulting in a three month term of imprisonment and a compensation order)

2. with respect to the offences dealt with upon the 1st of

   November 2004, in each case six months' imprisonment;  with regard to the offences of the 4th of October 2005
   three offences, each six months' imprisonment  with regard to the order of 2nd March 2006 12 months'
   imprisonment;  with regard to the order of 26th July 2006 six months' imprisonment.  All those terms are to be served concurrently so that there is an effective term of 12 months' imprisonment. 

3. With respect to the possession of a dangerous drug dealt

   with on 26th of July 2006 also take no further action;

4. Fix a parole release date of 30th July 2007.

...

HIS HONOUR:  26th of July 2007. 

...

HIS HONOUR:  It means that the three months' imprisonment with seven days' prison in default is gone, for wilful damage.  That is the order and the compensation.  I said take no further action, that would leave the 40 days only, not plus seven.

...

HIS HONOUR:  The order would be with respect to the wilful damage dealt with on the 26th of July 2006 set aside the term of - I order that the term of three months' imprisonment be served concurrently with the present terms and leave untouched the compensation order.

...

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