Vernmeulen v Tilke

[2007] QDC 295

[2007] QDC 295

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE FORDE

No 1138 of 2007

ANTHONY VERMEULEN	Applicant
and
JASON MARK TILKE	Respondent
BRISBANE ..DATE 20/08/2007
JUDGMENT

20082007 T03/JB(BNE) M/T BRIS25 (Forde DCJ)

HIS HONOUR: On the 2nd of April 2007 the Magistrate at	1
Caboolture imposed six months' imprisonment for breach of bail by the appellant, Anthony James Vanmeulen.
The appellant appeals against that decision on the grounds

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that it is manifestly excessive. The outline of argument by
the appellant is before me and it is submitted that comparing
other cases the decision cannot be justified. The appellant
asks that his sentence be reduced to somewhere between one and

three months because that is the normal range.

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The reasons for the appellant not appearing are referred to in
the transcript. Mr McMillan appeared for him and said at

page 4:

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"He instructs me that he really can't provide any
assistance other than he forgot on the day in the
question and he was very obviously very concerned about

being returned to custody for a lengthy period."

I agree that in the normal course of events that terms of one

to three months are appropriate. In the present case there is	40
a heavy onus upon the appellant to show that the Magistrate
erred in exercising his discretion, see House v. The King
(1936) 55 CLR 499 at 504, in that he acted upon some wrong
principle or took an irrelevant matter into account or did not
take into account some material consideration. The maximum	50

under the Bail Act of 1980 is two years' imprisonment or 40
penalty units.
20082007 T03/JB(BNE) M/T BRIS25 (Forde DCJ) 2 JUDGMENT 60

The appellant had been before the Court for breach of bail on	1
four previous occasions. In April 2006 the appellant appeared before this Court and was disqualified absolutely. He was released in or about October 2006 from prison and was then found driving whilst disqualified and this his appearance

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before the Court.

He in fact appeared on the 26th of November 2006, was granted bail to appear on the 3rd of January 2007, and he did appear, however on the 17th of January 2007 he failed to appear, which

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is the subject offence.

In April 2006 there was a head sentence of four years to serve
16 months and as the appellant had already served 258 days he

was released in October 2006.

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Where there has been a failure to appear on four other occasions for a similar offence, the length of period of imprisonment of one to three months is not, in my view, apposite taking into account the criminal history of the

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appellant, which would be described as a moderately serious
history. The Magistrate referred to that matter of the
criminal history and also the other failures to appear and the
provisions of section 92 of the Penalties and Sentences Act.

Submissions had been made to him and on the record there is

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nothing which would show that he has approached the matter on
any wrong principle.
20082007 T03/JB(BNE) M/T BRIS25 (Forde DCJ) 3 JUDGMENT 60

For those reasons, this appeal is dismissed. 1

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4 JUDGMENT 60