Fisher v Hansen[2009] QDC 175

[2009] QDC 175

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE DICK SC

No 16 of 2009

BRISBANE

DATE 15/06/2009

ORDER

HER HONOUR: This is an appeal against a sentence in respect of two sentences, both imposed in the Richlands Magistrates Court.  The first sentence was imposed on the 11th of December 2008, and was a sentence in respect of one count of wilful damage of a Corrective Services facility and one count of breach of a suspended sentence in respect of a sentence imposed in June 2008.  The second sentence was imposed on the 18th of March 2009 in respect of wilful damage of Corrective Services property.  That appeal was made orally here today. 

In relation to the sentence on the 11th of December 2008, it is my view that the Magistrate acted upon a wrong principle in failing to take into account two important principles of sentencing, one being totality, and the other is - the other being the fact that a crushing sentence should not be imposed.  He cumulated the sentences not only on the present sentence but on each other and I do not think that that was necessary nor do I think it was a proper exercise of his discretion. 

If he or she had applied the appropriate principles then in my view the sentence should have been, for the wilful damage, a sentence of six months cumulative on the present sentence.  There would be no argument that three months of the suspended sentence should be imposed but in my view that should have been activated immediately and be served concurrently with the sentence for the wilful damage. 

The second appeal comes about because the wrongful sentences imposed in December were then the basis of the sentences in March and the sentence in March was a three months cumulative sentence.  There can not be any argument that that was manifestly excessive or erroneous because that occurred shortly after the December sentence, but parole eligibility dates were affected because the magistrate added three months to the then existing parole eligibility date.  As I am about to change that parole eligibility date, the appeal on the December charges would be - although successful, would have no practical effect for the appellant unless I deal with the ones in March. 

So, my orders are as follows.  The appeals in respect of both sentences are allowed.  In respect - I will just go back a step.  The appellant has a relatively long history.  A lot of it is street offences.  He has some moderately serious property offences but really - and one serious offence of indecent treatment of a child along with a deprivation of liberty - but much of his present situation has been brought about by his behaviour in custody.  He has now been incarcerated since the 14th of April 2007 and is currently serving a total period of four years and two months and 13 days. 

Having said that, the appeals are allowed.  In respect of the offence the sentence imposed on the 11th of December 2008 the appeal is allowed to the extent that the six months cumulative and three months cumulative on that sentence will now be a sentence of six months cumulative for the wilful destruction and three months activation of the breach of the suspended sentence.  Those two sentences to be concurrent with each other.  The parole eligibility date in respect of those sentences is, according to my order, the 29th of February 2009, and the full time discharge date consequent on my order is the 30th of December 2010. 

In respect of the sentence imposed on the 18th of March 2009, I allow the appeal to the extent that I fix the new parole eligibility date as at the 29th of March 2009 and as a consequence of my order the full time discharge date is no longer the 20th of June 2011, it is in fact the 31st of March 2011. 

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