Budsworth v McNab
[2003] QDC 173
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Budsworth v McNab[2003] QDC 173
Budsworth v McNab[2003] QDC 173
DISTRICT COURT | No 126 of 2003 |
APPELLATE JURISDICTION
JUDGE FORDE
RICHARD ROBERT BUDSWORTH | Appellant |
and
BJ MCNAB | Respondent |
BRISBANE
DATE 02/06/2003
JUDGMENT
HIS HONOUR: This is an appeal by Richard Robert Budsworth against the sentence imposed upon him in the Magistrates Court at Redcliffe on the 2nd of January 2003.
The appellant was born on the 12th of June 1979 and has a considerable criminal history involving dishonesty and other property related matters. The offences for which he was dealt with on that occasion included attempted entering premises and possession of housebreaking implements. As appears from the reasons of the learned Acting Magistrate:
“In relation to each of the charges before the Court you will be convicted and sentenced to a term of imprisonment for six months from this date. I order those sentences be served cumulatively with any other sentence that you are currently serving.”
There seems to be some understanding by Corrective Services that the six months in relation to each of these offences are cumulative on each other and cumulative on the suspended sentence ordered by the Acting Magistrate of nine months imprisonment. That related to a suspended sentence which had been ordered on the 3rd of December 2002 for stealing. It was suspended for two years.
On this appeal it has been conceded that the six months ordered in relation to each of the subject offences should be concurrent. That concession accords with the provisions of section 155 of the Penalties and Sentences Act 1992 that unless otherwise ordered such terms are to be concurrent. There is no indication by the learned Magistrate that contradicts the provisions of section 155, so that this appeal really is limited to two bases, that is whether it was unjust for the whole of the term to be imposed of nine months cumulative on the six and whether ordering restitution of $1,500 in the circumstances, knowing that the appellant was to be potentially imprisoned for 15 months, was just, particularly given that two months cumulative was to be imposed in breach of that order for restitution.
The respondent submits that the case of The Queen v. Anderson (1995) 1 Queensland Report 49 can be distinguished. In that case the amount of restitution ordered totalled almost $5,000, the offender was sentenced to custody and was given no time to pay. It was said that it was inevitable that the cumulative default period of imprisonment would have to be served.
Although it cannot be said that it is inevitable in the present case, it is likely that someone who is sentenced to that term of imprisonment would have difficulty finding $1,500 when released. There was no material put before the learned Magistrate which could provide any comfort for the Magistrate to determine that that sum could be paid upon release. On the material it would seem likely that the default would occur unless upon release the appellant was able to get some work. No such material was put before the learned Magistrate that that was available, there was no other material put before him to show it would be unjust to make an order under section 147.
Those matters lean towards the finding that the imposition of the restitution and the necessary two months cumulative implicit in any failure to pay makes the order in some ways indefensible.
The factors which a Court ought to take into account in making restitution orders should be that it is not to set up a person to breach but rather to, within their means, show some contrition by paying for damage caused or consistent with an attitude of remorse to attempt to make payments, but Courts are loathe to set up offenders to breach the orders and then to automatically be subject to a cumulative sentence. There was not sufficient material before the learned Magistrate to avoid that likelihood.
In relation to the nine months, no further material has been put before me about the unjust aspect, nor was the appellant forthcoming in providing that material at his hearing. There is an onus placed upon the appellant to show it is unjust to invoke the term and in the circumstances one would be loathe to interfere with the order, particularly given the criminal history which was before the Court in that instance.
I am satisfied that looking at the totality of this sentence that it is an erroneous order to make in the circumstances and excessive in a manifest way. The appeal is allowed. The order for six months in relation to the offences of attempted enter premises and possession of housebreaking implements are to be served concurrently but cumulative on the nine months. The order for restitution is deleted.