Strickland v Shepherd

[1997] QCA 27

COURT OF APPEAL

[1997] QCA 027

FITZGERALD P
DAVIES JA

McPHERSON JA

CA No 483 of 1996
NICHOLAS MARK STRICKLAND
v.

DARREN MICHAEL SHEPHERD Applicant

BRISBANE
..DATE 05/02/97
JUDGMENT
050297 T3/DR M/T COA7/97
THE PRESIDENT: This is an application for leave to appeal
against an order made in the Magistrates Court at Brisbane on 21
October 1996. On 31 October 1995 the applicant was convicted in
the Magistrates Court of dangerous driving and unlawful use of a
motor vehicle on 21 June 1992.

He was sentenced to imprisonment for three months in respect of the offence of dangerous driving and to imprisonment for nine months in respect of the unlawful use of the motor vehicle and the sentences were ordered to be cumulative but were suspended for an operational period of three years. I do not think it is necessary to discuss the circumstances of those offences. It is not suggested that the sentences were other than appropriate or that there was anything particularly significant about the conduct which constituted the offences.

Approximately one year later on 20 October 1996 the applicant was convicted of offences of possessing .1 gram of cannabis sativa and a pipe used to smoke that material and fined $550 in default imprisonment for 24 days. Because of those offences during the operational period of the suspended terms of imprisonment to which the applicant had been sentenced in respect of the offences committed on 21 June 1992, he was resentenced for those latter offences on 21 October 1996 and ordered to serve the full period of 12 months imprisonment.

It is against that order that the present application for leave to appeal is brought.

The applicant was born on 17 August 1972 and is aged 24 years. His record is not unblemished. On 15 October 1991 he was

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convicted of assault occasioning bodily harm whilst in company
and placed on probation for two years and ordered to perform 200
hours community service. On 15 November 1991 he was convicted

of stealing and placed on probation for 12 months.

He also had some minor offences in the period between
31 October 1995 and 21 October 1996. He has been in custody
since the latter date and hence has served something in excess
of three months imprisonment.

The submission for the applicant is that the offences which caused him to be resentenced for the offences which he had committed on 21 June 1992 were not serious and occurred almost one year after he had been sentenced on 31 October 1995. Accordingly, it was submitted that only part of the suspended sentence should have been activated. The submission was made that the period already served was appropriate for that purpose.

The prosecution has frankly conceded the substance of the

applicant's argument which I am satisfied is correct.

In the circumstances, I would grant the application for leave to appeal, allow the appeal, set aside the order made in the Magistrates Court on 21 October 1996 and in lieu, substitute an order that the applicant serve a period of imprisonment from that date to today.

The result is that he should be released.

DAVIES JA: I agree.

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McPHERSON: I agree.

THE PRESIDENT: The orders will be as I have indicated.

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