Storey v Arnold

[2005] QDC 253

[2005] QDC 253

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 594 of 2005

DEAN ELLIOT WILLIAM STOREY

Appellant

and

SIMON ARNOLD

and

MARC NEWTON

First Respondent

Second Respondent

BRISBANE

..DATE 15/08/2005

ORDER

Catchwords: Appeal to District Court from Magistrate - Justices Act 1886 s.222 - sentences of 1 month each for breach of bail by failure to appear in September 2001 and December 2004 - transcript unavailable - no order sentence be cumulative, but that was effect of Bail Act - Magistrate had appellant's minor Queensland criminal history, apparently not the more serious NSW history - appellant obtained appeal bail after 35 days - sentence for earlier offence held excessive - reduced to 5 days in the circumstances.

HIS HONOUR:  Mr Storey appeals against the combined effect of two sentences of one month's imprisonment imposed by a Magistrate in Brisbane on the 25th of January 2005.

He obtained appeal bail from the Chief Magistrate after serving 35 days.  Unfortunately there is no transcript of proceedings in the Magistrates Court available.  It has been necessary to proceed on what the QP9s reveal.

The Magistrate's endorsements on both Bench Charge Sheets are in similar terms, and I quote:

"Guilty.
 Defendant is convicted.
 A conviction is recorded.
 The defendant is sentenced to one month imprisonment."

There is an additional penultimate sentence in respect of the bail offence constituted by failing to appear on the 12th of September 2001 in the following terms:

"I am satisfied that imprisonment is the only suitable
 penalty."

There is no endorsement by the Magistrate to that effect in respect of the second offence in time - constituted by a failure to appear on the 7th of December 2004.

One would infer that the Magistrate who imposed both sentences on the same occasion was aware that the effect would be cumulative, but there's no statement from him available to show that.  In the circumstances it is perhaps unusual that there is no reference to the sentences' being cumulative in the Magistrate's endorsements.
In the Magistrates Court file, which has been transmitted to this Court, is a copy of the appellant's Queensland criminal history which was limited to a single appearance on the 13th of August 2001 in respect of a series of minor property offences all committed on the 12th of August 2001.  The sentence in each instance was one month's imprisonment.  The criminal history specifies "concurrent" more than once - which perhaps underlines the omission to record "cumulative" on 25 January 2005, albeit that may be seen as an otiose step on this occasion, given the ordinary rules about bail offences.

Mr Hungerford-Symes, in his helpful written outline of argument, submits that "at a cursory glance the sentence imposed may appear high".

The submission goes on to say that on closer inspection it can be seen as within the exercise of a sound sentencing discretion:

"The respondent notes that the appellant has a Queensland criminal history and a lengthy New South Wales criminal history."

Although it is difficult to be confident about the full implications of the latter, it does qualify as lengthy.  It is totally mysterious whether or not that history was before the Magistrate on the 25th of January this year.

The New South Wales history, tendered in the appeal, suggests

that Mr Storey has committed offences while on bail but I am

not sure whether it shows any concerning history of

punishments for bail offences in that State.  It would seem

most likely that the New South Wales history was not before

the Magistrate from its absence from the file.  It certainly

includes more dramatic material than the Queensland history. 

The Court has an affidavit of Mr Kolbe, duty solicitor, who assisted the appellant on the 25th of January, giving his reasons for thinking that the New South Wales history was not before the Magistrate.

I do consider that the sentence - or the combined sentence - was high and indeed to the extent that it may be and should be interfered with on this appeal.

Although Ms Gilbert, appearing for the appellant, was somewhat diffident about placing reliance on the case of Ingram v Gordon Arnold Jones CA 48 of 1999, which has come to light as one of the collection of authorities apparently handed to the Chief Magistrate on the appeal bail application, I think it is pertinent.

I say that, notwithstanding that it plainly involves an offender who had apparently never been sent to jail before "despite his lengthy criminal history" to quote the President of the Court of Appeal.

The Court of Appeal had some sympathy for Mr Jones' profession of some confusion about having been asked to attend Court.  There was no evidence available that is that the implications of his bail undertaking were explained to him, nor, indeed, was the undertaking produced to the Court.

The President said:

"When all these circumstances are considered, in my view it must be said that the last resort of imprisonment was not one warranted in this case and the sentence imposed by the Magistrate was outside the exercise of a sound sentencing discretion.

Consequently His Honour [in the District Court] erred in not upholding the appeal below.  The applicant, I note, has spent four days in custody now whilst pursuing his rights on appeal. 

I would grant leave to appeal, allow the appeal, and substitute for the sentence imposed by the Magistrate a $500 fine which would adequately bring home to the applicant and others the consequence of his failing to meet bail.

An important factor in this case is that it seems the offence was one more of inadvertence and recklessness rather than a deliberate contempt of Court."

An extension of time for appeal was granted by the Court of Appeal.

Ms Gilbert has not wished to suggest that Mr Storey can claim the same ignorance in light of his New South Wales criminal history.  I think she is right, that on the theory that the Magistrate did not have it before him, the sentences look particularly heavy, especially imprisonment for the first offence in 2001.

The appellant suggested to the police when apprehended that on the first occasion there was a medical reason for his non-attendance and that he could produce a report.  Unfortunately for him, he never did so.

In relation to the second, he surmised that he may have been fruit picking.

He reveals an inappropriate attitude to the responsibilities of the privilege of bail, which will undoubtedly see him facing greater trouble in the future should he find himself on bail and offend in a similar way.

Ms Gilbert accepts that the contents of the New South Wales history now that they are before the Court can be taken into account.  This is a sentencing procedure de novo.

I think the Magistrate ought to have distinguished between the earlier offence and the later one, regarding the latter as more serious, coming, as it did, on top of the original one.  It was punished in condign fashion.  I think the other was punished excessively.

I would allow the appeal in respect only of the sentence imposed on 25th of January 2005 for failure to appear on the 12th of September 2001, and replace that with what seems the convenient sentence in the circumstances:  a sentence of five days imprisonment.  I select that on the basis that the time has already been spent in custody.

Ms Gilbert made no application for costs.

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