Smith v Russell

[2010] QDC 363

[2010] QDC 363

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE SAMIOS
No 1522 of 2010

SEAMUS MATTHEW SMITH	Appellant
and
GARRY GEOFFREY RUSSELL	Respondent
BRISBANE ..DATE 25/08/2010 ORDER

1-1

HIS HONOUR: This is an appeal against a sentence imposed by

imprisonment with the parole release date set as at 9 August	10
2010.
The offence for which the appellant was convicted and
sentenced was that on 6th day of May 2010 at Gympie in the
Magistrates Court District of Gympie in the State of	20
Queensland he without reasonable cause failed to surrender into custody at the Gympie Magistrates Court in accordance with his undertaking entered into on 6 May 2010 at Gympie
Magistrates Court and was apprehended under a warrant issued
pursuant to section 28A of the Bail Act 1980.	30
On the hearing before the learned Magistrate, the appellant
did not dispute that he had failed to surrender into custody
as required. However, he told the learned Magistrate that it
was unintentional. He also told the learned Magistrate that	40
he had been working seven days a week, 12 hours a day, and he misplaced his notice to appear paper and he had been working so flat out that he had lost the date in his mind.
The learned Magistrate then considered and declared that a	50
However, the learned Crown Prosecutor brought to the learned

1

the learned Magistrate at Wynnum on 13 May 2010.

The sentence imposed by the learned Magistrate was that for
the offence the appellant be sentenced to six months'

fine of $800, in default 16 days, would be appropriate. number of previous convictions for breaches of the Bail Act. 1-2 ORDER 60

1

That was correct.

As far as the appellant's criminal history would reveal, he
failed to appear and was in breach of the Bail Act on 7 July

2005. For that he was convicted and fined $300, in default	10
five days' imprisonment, and allowed three months to pay. He also breached a bail condition on 10 May 2009 for which he was fined $100, in default of imprisonment nil, and time to pay was not specified.
20
Then comes the important entry clearly relied upon by the
learned Magistrate in sentencing the appellant on this
occasion. That is an entry in the Wynnum Magistrates Court of 27 January 2010. It is for four charges. The dates are 2 and 3 January 2010 and 9 and 10 January 2010.	30
I pause here to say that the appellant was unrepresented
on this occasion before the Wynnum Magistrates Court on
27 January 2010. He was also unrepresented on the hearing
before the learned Magistrate on 13 May 2010 when the current	40
penalty was imposed.
Returning to the two months' imprisonment imposed on
27 January 2010, that was for the four charges.
Unfortunately, as the appellant was unrepresented on 13 May	50

2010, it placed the learned Magistrate at a disadvantage, in
my opinion.
Clearly, the learned Magistrate considered it was serious that 1-3 ORDER 60

1

the appellant would breach his bail obligations again two

months after his release from that previous order imposed on 27 January 2010. The learned Magistrate said that that told the learned Magistrate that the appellant had learnt nothing from the two months that he had spent in prison. He said,	10
"It's obvious that that was not a sufficient deterrent to get you to comply with your bail." The disadvantage, though, on this occasion on 13 May 2010 is that the learned Magistrate did not have the benefit of all the facts.
20
As they appear now on the hearing of this appeal, the
appellant on 6 May 2010 was breached in circumstances where his residential requirement had been altered from Gympie to Brisbane and the reporting condition had not at the same time
been altered.	30
I infer these facts were not made known either to the learned
Magistrate on 27 January 2010 because the learned Magistrate
on that occasion considered imprisonment appropriate, whereas
the circumstances that are now apparent are that the appellant	40
could have, as a formality, had the reporting condition changed along with the residential requirement.
It is clear that the four occasions he breached the Bail Act
are consistent with the Saturday and Sunday that he was	50

required to report on two weekends in a row when he was
financially unable to attend Gympie.
As I said, these facts were not put before the learned 1-4 ORDER 60

1

Magistrate, I infer, neither on 27 January 2010, and even if

they were put on that date, they were not on 13 May 2010 when the learned Magistrate may have taken a different view of the further offending by the appellant. Similarly, the fact that the appellant was not legally represented, in my opinion, it	10
also shows that he was not able to articulate fully the circumstances behind the current offending.
He said it was unintentional but I think he was unable to
articulate that it was a case of inadvertence rather than a	20
blatant contempt of the Court. He also did not put to the
learned Magistrate, as is now available to me on the hearing
of this appeal, that the police apprehended him under the
warrant at his place of work. It was not as if he had taken
flight and the resources of the State were put to	30
extraordinary lengths to apprehend him.
These are all relevant considerations that, as I said, the
learned Magistrate did not have the benefit of and may explain
why the learned Magistrate took the view he did in imposing	40
six months' imprisonment with parole release after about a half.
No-one has submitted that that also is an error in that the
learned Magistrate arguably ought to have allowed the	50

appellant a parole release date after about a third of the
head sentence.
I have therefore, despite the submissions made about the 1-5 ORDER 60

1

exercise of discretion, come to the view that this is a case
where the learned Magistrate did not have the facts fully
presented to him as he was entitled to have and now that they
are available, it would be an injustice to the appellant not

to correct the error that has come about by the lack of	10
information and proper consideration of that information.
I appreciate, as the learned Prosecutor appearing today,
Ms Trafford-Walker, has submitted, the appellant has a poor
traffic record but I think on balance, in all the	20
circumstances, the fact that the learned Magistrate was at a disadvantage on the sentence for the failing to appear is more pertinent to the outcome of this appeal.
In those circumstances, I allow the appeal and I set aside the	30
order of the Magistrate made on 13 May 2010 sentencing the appellant to six months' imprisonment with parole release date fixed at 9 August 2010.
In lieu thereof I sentence to the appellant to a fine of	40
$1200. I allow the appellant four months to pay the fine. In default, the appellant is sentenced to two months' imprisonment.
...	50

-----

1-6 ORDER 60