Tavita v Queensland Police Services

[2009] QDC 213

[2009] QDC 213

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE ROBIN QC

No 1699 of 2009

FAATAMALII TOMMY TAVITA	Appellant
and
QUEENSLAND POLICE SERVICES	Respondent
BRISBANE ..DATE 01/07/2009
ORDER

CATCHWORDS: Justices Act 1886 s 222 - with parties' agreement, offender's sentence appeal determined on the return of his application for appeal bail, appeal allowed.

1-1

HIS HONOUR: This is an appeal under section 222 of the

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Justices Act 1886 by Mr Tavita against a sentence imposed in the Western Districts Magistrates Court at Richlands on the 24th of June 2009 in respect of an offence of disqualified driving which was his second.

10

The sentence was one of four months' imprisonment suspended for an operational period of two years after two months being served. A two year disqualification from holding a driving licence was also imposed.

20

It is common ground at the Bar table that the sentence might be seen as excessive, Miss Litchen for the respondent in her fair submissions suggesting that a six months' Intensive

Correction Order would have suited the case.

30

The matter comes before the Court today as an application for bail by the appellant. Miss Litchen conceded that bail ought to be granted. There has been discussion from the outset

about the appeal proper being brought on today. From the

Court's point of view, there may be difficulties about that,	40
given the statutory periods of notice of an appeal hearing which the Justices Act requires. See s 223d(3). The Court took the view that as a means of bringing the matter before a Judge, a formal bail application ought to be made.
50
In the circumstances it would be a reproach to the whole system to accede to the bail application and require the parties to return again at some future date for the purposes

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of the appeal being heard. Now that the Court is

1

appropriately seized of the matter, I think the appeal ought

to be determined in a final way, given the parties' agreement.

Mr Christie's submissions, which were directed to the bail

issue essentially, contain a great deal bearing on prospects	10
of success of the appeal which is a relevant factor.
Some precedents for appeals such as the present are collected helpfully, including my decision in Noon v. Wilson [2006] QDC 168, also Appleton [2004] QDC 465, Peto [2005] QDC 141, McIvor	20
v. Rourke [2007] QDC 095, Rogers v. Harding and Peel [2007] QDC 112 and Ebb v. Donaldson [2008] QDC 155.
A community-based order could not be made, in my view, without
consent indicated by the appellant. Mr Christie hasn't had	30
the opportunity to speak with him. In the circumstances, I
form the judgment it's not necessary to go through the
exercise which was pursued in a similar matter of Vickers in
the Court last week of arranging Mr Tavita's attendance by
video link from the Brisbane Correctional Centre where we	40
understand he is.
At both ends of the Bar table there's satisfaction expressed
with an outcome which would see Mr Tavita released immediately
but this would be on conditions similar to those set by the	50
Magistrate which see him in the community subject to a
suspended sentence and, effectively, being his own parole
officer.

1-3 ORDER 60

The appeal is allowed. The order of the Magistrate at Western Districts Magistrates Court on the 24th June 2009 is varied by changing the date at which that four months' imprisonment

ordered was suspended for two years from two months, as set by

the Magistrate, to seven days.	10
It's declared that the appellant has already spent seven days in custody for which he's entitled to credit, being from the 24th of June 2009 until today.
20
...
HIS HONOUR (at 3pm): The Registry office's checking of
matters after this section 222 appeal had been determined
expeditiously revealed some aspects requiring quick attention	30
if the Court's intention that the appellant be released from custody today is to come into effect.
The matter came before the Court as an application for bail to
which there was no opposition. The respondent had indicated	40
in Ms Litchen's helpful full submissions that not only was
there no objection to bail but that the appeal against
sentence ought to be allowed, a non-custodial outcome, being
suitable. In the interests of efficiency the Court proceeded
to deal with the appeal then and there by advancing the date	50

at which the Magistrate's sentence should be suspended until
today.
01072009 D.1 T(3)04/SLI(BNE) M/T BRIS11 (Robin DCJ) 1-4 ORDER 60

1

In that exercise there was overlooked that the appellant has 6
days of custody yet to run in respect of the other offence
dealt with by the Magistrate of breach of a protection order
under the Domestic and Family Violence Protection Act 1989.

Section 80 is the relevant provision.	10
Mr Christie, appearing for the appellant, deserves no
criticism for failing to draw the Court's attention to this
other aspect, particularly in the written submissions, as the
point of his application was to get bail for his client. It's	20
not surprising that in circumstances where the appellant is serving 2 months actual incarceration for the disqualified driving offence that the incarceration for a much shorter period for the other matter was overlooked.
30
Ms Litchen, who's referred the Court to section 80 today,
points out that the maximum penalty that the appellant faced
for the section 80 breach was 40 penalty units or 1 year's
imprisonment. The appellant has already had one breach and
been placed on a recognisance of $400. The circumstances are	40
presented as ones in which the protection order obtained by
the appellant's wife is one of those which is kept handy, as
it were, in case of need. The appellant has been breached for
being in the family home where, strictly, he is not supposed
to be.	50

It seems clear he's welcomed there by the family. An incident of minor proportions within the cohabitation was pointed to by 01072009 D.1 T(3)04/SLI(BNE) M/T BRIS11 (Robin DCJ) 1-5 ORDER 60

1

Mr Christie as the apparent explanation for this breach that's come to the attention of the authorities. Let us hope that Mr Christie is right that the appellant's partner will take some
steps if she wishes the family to be reunited without the

appellant being under threat of a further breach of	10
proceedings to have the order set aside. If she doesn't, and there's another breach, the maximum penalty faced by the penalty goes up to 2 years.
Mr Christie points to his client's employment as a security	20
officer and urges on the Court an outcome which would not see
a conviction recorded against his client. Ms Litchen seems
sympathetic to that. By a somewhat narrow margin, having
regard to the time spent in custody by reference to the breach
offence, it's appropriate to impose no further punishment and	30
to set aside the recording of a conviction inherent in the breach. Although the Magistrate didn't expressly declare it I think that was necessarily concurrent.
40
Further, I think that it's a penalty which his Honour would
never have contemplated imposing if the offence had been dealt
with on its own. The circumstances are ones in which the
appellant was going into custody for a term of two months and
it seemed sensible and expedient to his Honour to mark the	50

Court's disapproval of the conduct by pronouncing imprisonment
which would involve no extra disadvantage by way of
incarceration to Mr Tavita.
01072009 D.1 T(3)04/SLI(BNE) M/T BRIS11 (Robin DCJ) 1-6 ORDER 60

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I accept that recording a conviction will involve disadvantage
to him in the social and economic spheres, as Mr Christie
submitted. The custody that's been served appears to be eight

days, rather than seven which was the thought this morning.	10
The date of 24th of June, which counsel insisted on, is taken from the transcript of the sentence proceedings.
That's a curiosity because the notice of appeal, filed in this
Court, was filed the day before. It complains of the sentence	20
on that date which gets some support from the Magistrates signature.
It is common ground, now, that the date of the Magistrate's	30
order ought to be taken as the 23rd of June 2009, as set out
in the Notice of Appeal. Although exemplary in that aspect it
contains other mistakes, one of which I permitted to mislead
me this morning. It describes the operational period for the
suspended sentence as being two years when in truth it was two	40
and a half years.
It describes the imprisonment ordered for "Breach of DVO" as
20 days' imprisonment when, in fact, it was 14. If it
matters, it spells the appellant's surname in two different	50

ways. This is what attempts at expedition can lead to.
Nothing can be done about it. The licence disqualification
pronounced by the Magistrate was three years, which was
01072009 D.1 T(3)04/SLI(BNE) M/T BRIS11 (Robin DCJ) 1-7 ORDER 60

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correctly set out in the notice of appeal. I have the
impression that I had been told in Court this morning it was
two years; that appears to be another in the catalogue of

areas that we've, embarrassingly, unearthed.

10

...

HIS HONOUR: So now these are the orders: leave to both the
applicant and respondent to read and file their written

outlines of submissions; appeal allowed; the order of the	20
Magistrate in the Western District Magistrates Court at
Richland on 23rd of June 2009 is varied by changing the date
at which the four months' imprisonment ordered for
disqualified driving was suspended for two and a-half years
from two months, as set by the Magistrate, to eight days; set	30
aside the sentence for breach of protection order and having regard to the time spent in custody by reference to that breach offence, no punishment is opposed in respect of it. The recording of the conviction is set aside.
40
Declare eight days spent in custody from 23rd of June 2009 to the 1st of July 2009 as time for the which the appellant ought to have credit.
...	50

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