DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant was sentenced to a 30 month term of imprisonment on 31 October 2007 for various property offences. As he had committed these offences on parole, his parole was automatically cancelled pursuant to s 209 of the Corrective Services Act 2006 (the “CSA”). His parole eligibility date was set at 31 August 2007.  Whilst so imprisoned he pleaded guilty on 15 November 2007 to a charge of giving or attempting to give a prohibited thing to a prisoner pursuant to s 128(1)(c) of the CSA.  The charge related to a cigarette and lighter.  Police gave evidence that there was a strong smell of marijuana but the appellant believed it to be a cigarette.  He was sentenced on that basis to two months imprisonment concurrent with his earlier sentence.  Obviously, it was the intention of the learned magistrate not to add to his actual term and to leave the eligibility date at 31 August 2008. 

2. [2]
   The learned magistrate indicated that he did not intend to change the eligibility date as a date had been set and so s 160B(2) of the Penalties and Sentences Act 1992 (the “PSA”) had been complied with.  It is common ground on this appeal that the learned magistrate fell into error in that respect, as he was required to set a new date.^[1]  However, following an order of the same magistrate on 4 March 2008, a new eligibility date was set at 10 January 2010.  The appellant was informed of the new date in March.  After applying to extend the time, an order was made to allow the appellant to appeal out of time.

3. [3]
   In the later written submissions on behalf of the appellant, a further ground of appeal was added viz that the sentence imposed was manifestly excessive. In view of the circumstances of this case, leave is granted to add that ground. Because the date has been changed, the appellant has been deprived from applying for release up to this point.^[2]

Magistrates errors

4. [4]
   The Crown concede that the learned magistrate fell into error in two respects:

1. not imposing a parole eligibility date pursuant to s 160B(2) of the PSA;

2. making the term of imprisonment concurrent rather than cumulative as required by s 156A(1)(b) of the PSA.

The respondent submits that the 2 months imprisonment is appropriate given the nature of the offence and the appellant’s antecedents. The maximum penalty is two years.  The respondent accepts that the eligibility date of 31 August 2008 should not be disturbed as due deference should be given to the views of the magistrate.^[3] Clearly the appellant was entitled to be heard on the adjourned occasion in March 2008.  Section 142(2) of the Justices Act 1886 recognises that right.  It would be a miscarriage of justice if a defendant is not given notice of a hearing and sentenced to a harsher penalty without submissions on his behalf.^[4]

Sentence manifestly excessive

5. [5]
   The end result of the change of the eligibility date is that the appellant will spend some further time in prison certainly until a decision is made. He has lost some 120 days theoretically because of the requirements of s 180(2)(c). He has been punished further to some extent. Because of the errors made by the magistrate, this court on appeal can look at the sentence afresh. In the written submissions ^[5] the appellant’s personal circumstances are referred to. They are as follows:

1. The appellant was 21 years of age at the time of the offence and is now 22 years of age having been born on 19 November 1985,

2. The appellant started using marijuana when he was 13 years of age but had breaks that substance abuse until he turned approximately 15 years of age when he became addicted to “speed”.  The offences on his criminal history were committed to support that addiction.

3. In approximately 2000 he became involved in a de facto relationship and has two children aged 4 years and 16 months.  Unfortunately, that relationship deteriorated after a few years due to the appellant’s substance abuse and he has never met his youngest child.

4. Since being sentenced in October 2007 the appellant has taken advantage of the opportunities made available to him in custody working towards re-building a positive law abiding life by:

• undertaking grade 10 studies in Mathematics and English
• completion of the 5 month “Pathways” course in July 2008 aimed at addressing re-offending and preventing substance abuse, and
• is half way through a 3 month course “Making Choices” targeted towards avoiding re-offending (he is currently doing this course and has 6 weeks until completion).

5. The appellant has no breaches while in custody since early October 2007 and has not returned any positive urine drug tests.

6. The appellant has clear plans for his future on his relates from custody and is motivated to get his life together so that he can establish regular contact with his children.  To achieve this he will:

• apply for a place in a formal substance abuse rehabilitation centre such as “Mirakai” to participate in a 6 months intensive substance abuse rehabilitation course (or other similar course)
• on completion of that course (or if not accepted into that course) he will live with his sister at Strathpine and continue with his community based rehabilitation
• complete the final year of his Glazier apprenticeship having already completed 3 years, and
• gain employment in the Glazier industry to support his family.

7. the facts not in dispute on sentence are that the appellant provided one lighter and one cigarette to a fellow inmate but in dispute is that there was cannabis sativa involved.

6. [6]
   Some of these matters were not before the learned magistrate, but in the circumstances of this case, leave is given to adduce fresh evidence. The cases referred to on behalf of the appellant ^[6] satisfy me that the sentence imposed was manifestly excessive, particularly given that it was required to be cumulative.^[7] In Salles case, the prisoner was in possession of a drill bit.  He was originally sentenced to 1 month in prison but on appeal was given a $200 good behaviour bond for 12 months. The appellant in the present case has cooperated in the administration of justice. His personal details point to significant efforts to rehabilitate himself.  In view of the practical consequences of the order made by the learned magistrate in changing the release eligibility date, the appellant should be punished no further.  That would give effect to the original intention of the learned magistrate. Also, he would be under supervision by the chief executive after his release during the balance of the period of imprisonment.  A good behaviour bond would be superfluous.  As no further term of imprisonment is to be imposed it is not necessary to set a new eligibility date.  It remains at 31 August 2008.

Orders

1. The Order for Commitment of Offender Where Punishment by Imprisonment dated 4 March 2008 is set aside.

2. The sentence imposed on 15 November 2007 whereby the appellant was sentenced to two months imprisonment is set aside.

3. A conviction is recorded for the offence under s 128(1)(c)of the CSA and the appellant is admonished