Timms v Chief Executive, Queensland Corrective Services

[2024] QDC 83

DISTRICT COURT OF QUEENSLAND

CITATION:

Timms v Chief Executive, Queensland Corrective Services [2024] QDC 83

PARTIES:

ANDREW TIMMS

(appellant)

v
CHIEF EXECUTIVE, QUEENSLAND CORRECTIVE SERVICES

(respondent)

FILE NO/S:

3664/23

DIVISION:

Appellate

PROCEEDING:

Appeal

DELIVERED ON:

13 May 2024 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2024

JUDGES:

Farr SC DCJ

ORDER:

1.   Appeal allowed.

2.   Sentence imposed by the Magistrates Court is set aside.

3.   The defendant is re-sentenced and is fined the amount of $500.00 to be paid within 28 days.

4.   In default refer the matter to the State Penalties Enforcement Registry.

CATCHWORDS:

CRIMINAL LAW – APPEAL – Justices Act 1886 – section 222 – appeal against sentence – where the appellant was sentenced for contravention of a probation order – where the appellant was sentenced to two months imprisonment, wholly suspended for a period of 12 months – where the maximum penalty is a fine of 10 penalty units - whether the sentence was outside the jurisdiction of the Court – whether the sentence was unlawful

LEGISLATION:

Justices Act 1886 (Qld)

Penalties and Sentences Act 1992 (Qld)

COUNSEL:

J Pruden (solicitor) for the applicant

J Villanueva (legal officer) for the respondent

SOLICITORS:

Clarity Law for the applicant

Chief Executive, Queensland Corrective Services for the respondent

Introduction & background

1. This is an appeal against sentence, pursuant to s. 222 of the Justices Act 1886 (Qld). The appellant was dealt with on 11 December 2023 for contravention of a probation order. For that charge, he was sentenced to two months imprisonment, wholly suspended for a period of 12 months. Contravention of the probation order related to him being convicted on two counts of contravening a domestic violence order, aggravated offence on each occasion and one count of common assault, for which he was dealt with on 20 July last year and fined $800. The probation order in question was imposed on 27 April 2023, and it related also to a domestic violence matter.

   Grounds of appeal

2. The maximum penalty for breaching a community-based order, pursuant to s. 123 of the Penalties and Sentences Act 1992 (Qld) is a fine of 10 penalty units. A submission was made to the Magistrate, I should say, to that effect. I infer from the way in which the submission was made and the response of his Honour that he did not understand the submission and took the view that it was really a submission as to what should be the appropriate outcome. It was put to his Honour:

   So I am submitting that the Court has the option of imposing up to 10 penalty units for the breach itself.  So the Court could impose – quite impose – quite a substantial fine, if it was minded too. 

3. His Honour responded:

   I am looking at terms of imprisonment, Mr Pruden, so just be mindful.  You would need to focus your submissions around whether he should or should not be going to jail today. 

4. So it seems that the Magistrate misunderstood the submission that was made.  It, perhaps, could have been made in clearer terms but, nevertheless, the Magistrate ought to have been aware of the maximum penalty for the offence.  There is no doubt that the Magistrate intended to sentence insofar as the breach is concerned because he made specific reference to the probation order continuing.  So the sentence which was imposed was a sentence outside the jurisdiction of the Court and unlawful.  For that reason, the appeal must succeed, and there is no opposition to it.

   Consideration

5. As I have indicated during the course of submissions though, this is a matter that is tailor-made to have been brought back on before the Magistrate, pursuant to s. 188 of the Penalties and Sentences Act 1992 (Qld) for a re-opening, which would have resulted in a fine being imposed because that was really the only option that was available. Not adopting that course really just takes up time of this Court when other matters could have been dealt with instead.

6. But it is appropriate that, now that the matter is before me, to finalise the matter today.  It seems to me that the breach of the probation order being by way of the commission of further offences is of some significance.  A fact which was properly recognised by the Magistrate.  I have been provided with a court report from the Probation and Parole Service that is dated 8 May 2024, which has indicated that the appellant has, in recent times since he appeared in the Magistrates Court, engaged well with the program and seems to have exhibited a change in attitude, and that is commendable. 

7. But insofar as the breach is concerned, it still seems to me that an order of a fine of some amount is the appropriate order in the circumstances, although I will reduce what I otherwise would have considered to be appropriate by virtue of his good behaviour since. 

   Orders

   1.   Appeal allowed.

   2.   Sentence imposed by the Magistrates Court is set aside.

   3.   The defendant is re-sentenced and is fined the amount of $500.00 to be paid within 28 days.

   4.   In default refer the matter to the State Penalties Enforcement Registry.