Tavita v Queensland Police Services
[2009] QDC 213
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- Tavita v Queensland Police Services[2009] QDC 213
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Tavita v Queensland Police Services[2009] QDC 213
Tavita v Queensland Police Services[2009] QDC 213
[2009] QDC 213
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE ROBIN QC
No 1699 of 2009
FAATAMALII TOMMY TAVITA | Appellant |
and | |
QUEENSLAND POLICE SERVICES | Respondent |
BRISBANE
DATE 01/07/2009
ORDER
CATCHWORDS: | Justices Act 1886 s 222 - with parties' agreement, offender's sentence appeal determined on the return of his application for appeal bail, appeal allowed. |
HIS HONOUR: This is an appeal under section 222 of the Justices Act 1886 by Mr Tavita against a sentence imposed in the Western Districts Magistrates Court at Richlands on the 24th of June 2009 in respect of an offence of disqualified driving which was his second.
The sentence was one of four months' imprisonment suspended for an operational period of two years after two months being served. A two year disqualification from holding a driving licence was also imposed.
It is common ground at the Bar table that the sentence might be seen as excessive, Miss Litchen for the respondent in her fair submissions suggesting that a six months' Intensive Correction Order would have suited the case.
The matter comes before the Court today as an application for bail by the appellant. Miss Litchen conceded that bail ought to be granted. There has been discussion from the outset about the appeal proper being brought on today. From the Court's point of view, there may be difficulties about that, given the statutory periods of notice of an appeal hearing which the Justices Act requires. See s 223d(3). The Court took the view that as a means of bringing the matter before a Judge, a formal bail application ought to be made.
In the circumstances it would be a reproach to the whole system to accede to the bail application and require the parties to return again at some future date for the purposes of the appeal being heard. Now that the Court is appropriately seized of the matter, I think the appeal ought to be determined in a final way, given the parties' agreement.
Mr Christie's submissions, which were directed to the bail issue essentially, contain a great deal bearing on prospects of success of the appeal which is a relevant factor.
Some precedents for appeals such as the present are collected helpfully, including my decision in Noon v. Wilson [2006] QDC 168, also Appleton [2004] QDC 465, Peto [2005] QDC 141, McIvor v. Rourke [2007] QDC 095, Rogers v. Harding and Peel [2007] QDC 112 and Ebb v. Donaldson [2008] QDC 155.
A community-based order could not be made, in my view, without consent indicated by the appellant. Mr Christie hasn't had the opportunity to speak with him. In the circumstances, I form the judgment it's not necessary to go through the exercise which was pursued in a similar matter of Vickers in the Court last week of arranging Mr Tavita's attendance by video link from the Brisbane Correctional Centre where we understand he is.
At both ends of the Bar table there's satisfaction expressed with an outcome which would see Mr Tavita released immediately but this would be on conditions similar to those set by the Magistrate which see him in the community subject to a suspended sentence and, effectively, being his own parole officer.
The appeal is allowed. The order of the Magistrate at Western Districts Magistrates Court on the 24th June 2009 is varied by changing the date at which that four months' imprisonment ordered was suspended for two years from two months, as set by the Magistrate, to seven days.
It's declared that the appellant has already spent seven days in custody for which he's entitled to credit, being from the 24th of June 2009 until today.
...
HIS HONOUR (at 3pm): The Registry office's checking of matters after this section 222 appeal had been determined expeditiously revealed some aspects requiring quick attention if the Court's intention that the appellant be released from custody today is to come into effect.
The matter came before the Court as an application for bail to which there was no opposition. The respondent had indicated in Ms Litchen's helpful full submissions that not only was there no objection to bail but that the appeal against sentence ought to be allowed, a non-custodial outcome, being suitable. In the interests of efficiency the Court proceeded to deal with the appeal then and there by advancing the date at which the Magistrate's sentence should be suspended until today.
In that exercise there was overlooked that the appellant has 6 days of custody yet to run in respect of the other offence dealt with by the Magistrate of breach of a protection order under the Domestic and Family Violence Protection Act 1989. Section 80 is the relevant provision.
Mr Christie, appearing for the appellant, deserves no criticism for failing to draw the Court's attention to this other aspect, particularly in the written submissions, as the point of his application was to get bail for his client. It's not surprising that in circumstances where the appellant is serving 2 months actual incarceration for the disqualified driving offence that the incarceration for a much shorter period for the other matter was overlooked.
Ms Litchen, who's referred the Court to section 80 today, points out that the maximum penalty that the appellant faced for the section 80 breach was 40 penalty units or 1 year's imprisonment. The appellant has already had one breach and been placed on a recognisance of $400. The circumstances are presented as ones in which the protection order obtained by the appellant's wife is one of those which is kept handy, as it were, in case of need. The appellant has been breached for being in the family home where, strictly, he is not supposed to be.
It seems clear he's welcomed there by the family. An incident of minor proportions within the cohabitation was pointed to by Mr Christie as the apparent explanation for this breach that's come to the attention of the authorities. Let us hope that Mr Christie is right that the appellant's partner will take some steps if she wishes the family to be reunited without the appellant being under threat of a further breach of proceedings to have the order set aside. If she doesn't, and there's another breach, the maximum penalty faced by the penalty goes up to 2 years.
Mr Christie points to his client's employment as a security officer and urges on the Court an outcome which would not see a conviction recorded against his client. Ms Litchen seems sympathetic to that. By a somewhat narrow margin, having regard to the time spent in custody by reference to the breach offence, it's appropriate to impose no further punishment and to set aside the recording of a conviction inherent in the Magistrate's imposition of a 14 day sentence in respect of the breach. Although the Magistrate didn't expressly declare it I think that was necessarily concurrent.
Further, I think that it's a penalty which his Honour would never have contemplated imposing if the offence had been dealt with on its own. The circumstances are ones in which the appellant was going into custody for a term of two months and it seemed sensible and expedient to his Honour to mark the Court's disapproval of the conduct by pronouncing imprisonment which would involve no extra disadvantage by way of incarceration to Mr Tavita.
I accept that recording a conviction will involve disadvantage to him in the social and economic spheres, as Mr Christie submitted. The custody that's been served appears to be eight days, rather than seven which was the thought this morning. The date of 24th of June, which counsel insisted on, is taken from the transcript of the sentence proceedings.
That's a curiosity because the notice of appeal, filed in this Court, was filed the day before. It complains of the sentence on that date which gets some support from the Magistrates Court file in the form of a date stamp and the Magistrate's signature.
It is common ground, now, that the date of the Magistrate's order ought to be taken as the 23rd of June 2009, as set out in the Notice of Appeal. Although exemplary in that aspect it contains other mistakes, one of which I permitted to mislead me this morning. It describes the operational period for the suspended sentence as being two years when in truth it was two and a half years.
It describes the imprisonment ordered for "Breach of DVO" as 20 days' imprisonment when, in fact, it was 14. If it matters, it spells the appellant's surname in two different ways. This is what attempts at expedition can lead to. Nothing can be done about it. The licence disqualification pronounced by the Magistrate was three years, which was correctly set out in the notice of appeal. I have the impression that I had been told in Court this morning it was two years; that appears to be another in the catalogue of areas that we've, embarrassingly, unearthed.
...
HIS HONOUR: So now these are the orders: leave to both the applicant and respondent to read and file their written outlines of submissions; appeal allowed; the order of the Magistrate in the Western District Magistrates Court at Richland on 23rd of June 2009 is varied by changing the date at which the four months' imprisonment ordered for disqualified driving was suspended for two and a-half years from two months, as set by the Magistrate, to eight days; set aside the sentence for breach of protection order and having regard to the time spent in custody by reference to that breach offence, no punishment is opposed in respect of it. The recording of the conviction is set aside.
Declare eight days spent in custody from 23rd of June 2009 to the 1st of July 2009 as time for the which the appellant ought to have credit.
...