Clarke v Durre-Bauer[2005] QDC 254

[2005] QDC 254

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No 1320 of 2005

GLENN RYAN CLARKE Appellant

and

TAMMY DURRE-BAUERRespondent

HIS HONOUR:  The appellant, Glenn Ryan Clarke, is 28 years of age, or thereabouts, and has a serious criminal history. 

On the 16th of May 2000 he was sentenced to terms ranging up to six years and a declaration that he ought to have credit for pre-sentence custody of 375 days was made.  As things turned out, Mr Clarke served the whole of that sentence, being released into the community on the 6th of May this year.

His record in custody was regrettably not wholly creditable.  The day before his release the Magistrate granted bail pending determination of this appeal which is against the sentence imposed at Caboolture Magistrates Court on the 17th of March 2005 for an offence of possession of a prohibited thing in the correctional institution where he was.  The thing was a "shiv", a circular knife described as having a six centimetre blade. 

There was an administrative punishment imposed in the form of some detention under harsher conditions.  It is accepted that any penalty fixed by a court had to be cumulative upon the imprisonment that Mr Clarke was already subject to.  The sentence imposed was one of three months gaol which the Magistrate, as he had to do, ordered be cumulative.

It is the case that, looked at on its own, the three months sentence does not seem severe, but I think it has to be looked at in all of the circumstances which now include that the appellant has been released into the community.  The court has not heard how he is going and indeed that is probably irrelevant as Mr Van der Walt, who informed the Court that Mr Clarke is here today, has submitted.

The date of the offence was 23rd of December 2004 when the shiv was found in Mr Clarke's cell.  The sentence proceeding took a dramatic turn when the Police Prosecutor informed the Magistrate of the contents of a letter which was located on the 5th of January 2005 by the authorities in a search of Mr Clarke's cell.  It does not appear that the letter was sent by him to the addressee.  It was confirmed that he had written the document.  The Prosecutor described it as a document that "contained admissions".

The letter said inter alia, "Just got out of the detention unit for having a shiv.  I tried to use it on someone the other day but the kid-fucker was screaming too loud when I was jumping on his head trying to knock him out".  When confronted with the letter by police on the 26th of February 2005, Mr Clarke refused to answer any further questions - having to that point stated to police that he did not know anything about the shiv. 

Mr Van der Walt submits, in reliance on D [1995] QCA 329, in particular, in paragraphs 1 and 2 of the Court's "Conclusions" which I set out:

1.Subject to the qualifications which follow:

(a) a sentencing judge should take account of all the circumstances of the offence of which the person to be sentenced has been convicted, either on a plea of guilty or after a trial, whether those circumstances increase or decrease the culpability of the offender;

(b) common sense and fairness determine what acts, ommissions and matters constitute the offence and the attendant circumstances for sentencing purposes (cp. Merriman at p.593, R.v.T at p.455); and

(c) an act, omission, matter or circumstance within (b) which might itself technically constitute a separate offence is not, for that reason, necessarily excluded from consideration.

2. An act, ommission matter or circumstance which it would be permissible otherwise to take into account may not be taken ito account if the circumstances would then establish:

(a) a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted;

(b) a more serious offence than the offence of which the person to be sentenced has been convicted; or

(c) a "circumstance of aggravation" (Code, s. 1) of which the person to be sentenced has not been convicted; i.e., a circumstance which increases the maximum penalty to which that person is exposed. 

that there is a prospect here which cannot be ignored that the Magistrate took into account, as should not have happened, an offence related to attempted use of the shiv, as described in the letter.  The Magistrate's brief reasons make no reference to the letter, which played a most significant role in the Police Prosecutor's submissions. 

Mr Clarke's solicitor, Mr Burchill, said to the Magistrate, "There's certainly no evidence or any truth to what has been written in any letter and there's certainly no charges before the Court regarding that, your Honour.  I would submit that the plea should just be taken on its face that he had the shiv in his possession in his room."  Reference was made by Mr Burchill to the internal punishment in the detention unit. 

I share Mr Van der Walt's concern the Magistrate's reasons cover only half a page of double space typing and contain no reference to the letter and, in particular, they do not contain any disavowal of using it in the way that D indicates would be inappropriate. 

A mysterious feature of the circumstances concerns subsequent action apparently taken by the Magistrate under section 157 of the Penalties and Sentences Act 1992 to recommend post prison community based release in respect of the three month sentence after the serving of one month.

Mr Van der Walt submits - it appears a document made available by Mr Hungerford-Symes to do with reports on sentence management - that the section 157 issues arose from an inquiry of the Magisgtrates Court from Corrective Services.  The expectation was that some recommendation would have been made by the Magistrate, indeed, had to be made. 

Mr Van der Walt submits that the recommendation which was made some uncertain time before the 20th of April 2005 and communicated to prison authorities was not authorised, having regard to section 157(2) and the sentence imposed by the Magistrate being one of less than two years. 

On the other hand, sub-section (3) in referring to "the offender's period of imprisonment (as) more than two years" may refer to the existing sentence or to the new one.  It is not, I think, necessary to resolve this question today.  My inclination would be to accept Mr Hungerford-Symes approach. 

I think it is accepted.  Well, on that approach, the appellant faces one month custody.  The situation is an unsatisfactory one in which having been released from six years in custody just over three months ago Mr Clarke will be returned to custody for a month.

It is extremely difficult to see any benefit flowing from that.  The end result is, I think, that the Magistrate's sentencing discretion may well have miscarried because of reliance then placed on the letter.  In my opinion, the appeal should be allowed.  The three month sentence should remain but be ordered to be wholly suspended for an operational period of a year.

...

HIS HONOUR:  Yes, I will order the respondent to pay costs.

...

HIS HONOUR:  I will resile from what I said two minutes ago.  It is a feature of the history of this appeal that Mr Clarke failed to comply with the requirements of the Practice Direction for an outline of his argument.  The consequence was that by direction of mine the appeal came on for hearing in any event.  Contrary to my expectations when I gave that direction the appellant came up with a very respectable (indeed a very effective) legal argument, one of which the respondent had no notice until this morning.  As a policy matter, it has got to be a sound approach for the Court to demonstrate to appellants in section 222 appeals that there may be consequences if only by way of costs from not prosecuting their appeals according to the rules.  I will not make the costs order.