R v Adams[2006] QDC 197

[2006] QDC 197

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE ROBIN QC

THE QUEEN

v.

BRENTON KYLE ADAMS

MOUNT ISA

DATE 20/06/2006

SENTENCE

HIS HONOUR:  The Court is grateful to those operating the watch-house here in Mount Isa for their vigilance in detecting last evening that Mr Adams had already been convicted and punished in respect of count 1 on the indictment to which he pleaded guilty in this Court yesterday.  The charge was of assault occasioning bodily harm upon Colin Edward Namie on the 30th of March 2006.  Exhibit 8 tendered this morning by Mr Finch shows that before local Magistrate, Mr Manthey, apparently sitting as the Murri Court, on the 12th of May this year, Mr Adams pleaded guilty to an offence, "That on the 30th day of March 2006 at Mount Isa in the State of Queensland [he] unlawfully assaulted one Colin Edward Namie", and was punished for that and two driving offences by conviction and imposition of a fine of $1,600 in default 20 days' imprisonment, eight months being allowed to pay.  It is patent that the incident on the 30th of March 2006 is one and the same as that described to the Court yesterday in relation to count 1.

With the benefit of hindsight it can be said that the proper plea for Mr Adams to have entered was autrefois convict.  Mr Adams should not have been called on to plead to count 1 at all because he was facing double jeopardy.  It is open to the Court under section 188 of the Penalties and Sentences Act to reopen the sentence.  It is clear for the purposes of subsection (1)(a) that the Court imposed a sentence that was not in accordance with the law.  It was a sentence of five months' imprisonment.  For practical purposes it is assumed that because of a longer sentence of six months' imprisonment in respect of count 2, and also a slightly longer balance remaining of a suspended sentence which Mr Adams was ordered to serve, the setting aside of the order for five months' (concurrent) imprisonment on count 1 will not have any great practical effect.

I would like to take advantage of this opportunity to make an observation which I think was omitted yesterday to the effect that both the putative count 1 and count 2 seem to me to represent less serious offending than the assault on a barman in a local hotel which was the basis for the suspended sentence - originally one for nine months.  That consideration justifies, in my view, the imposition of a shorter sentence, in terms of months, for the repeat offence of assault occasioning bodily harm.  It is of some comfort to have Mr Manthey's view as to what was an appropriate way of dealing with the incident on the 30th of March 2006.  Of course it was presented to his Honour as common assault rather than AOBH, which I accept makes some difference.

It is not clear from section 188 that it is open to the Court to do anything about the plea and the conviction ordered to be recorded yesterday.  Coincidentally, this morning, reference was made in another matter to the Court of Appeal's decision in Mundraby [2004]QCA 493 and in particular the authorities McPherson JA discussed in paragraph [11] of his reasons.  It was not necessary there to explore the situation from the point of view of vacating a guilty plea once a sentence has been pronounced.  Here the sentence is set aside on the basis that it was not in accordance with the law.  Thus it may well be that Mr Adams has been returned to the status of someone in respect of whom sentencing has not taken place, who may, with the Court's leave, withdraw his guilty plea.  There could hardly be a stronger case for the Court granting leave to do that than this one of autrefois convict or double jeopardy.

I think the Court today should grasp the nettle and go that additional step.  Accordingly, I will vacate the plea of guilty made by Mr Adams yesterday and accepted by the Court.  It is most important that this young man's future not be inappropriately blighted by having on his criminal history a misleading reference to an inappropriate conviction.  In the hope that it may go some way to redress the situation, I will order that the Court's and all consequential records (which is intended to refer to criminal histories) be noted to show that there was no lawful conviction of the defendant in respect of the charge of assault occasioning bodily harm on the 30th of March 2006 on the 19th of June 2006 in this Court.

A further error relates to my omission to pronounce in Court an order, which I in fact noted in notebook 133 at page 118, to the effect that in relation to Mr Adams' breach of the probation order pronounced by Judge Forde on the 12th of October 2005, the Court found the breach of probation by reoffending proved, and ordered, by way of resentencing, that Mr Adams should be sentenced to two months' imprisonment.  That of course is concurrent with the other imprisonment ordered yesterday.