Morris v Spink[2009] QDC 71

HIS HONOUR: For reasons that may be found at [2008] QDC 270 and [2008] QDC 271, when an order for imprisonment ameliorated by an Intensive Correction Order was made in an appeal by Mr Morris under section 222 of the Justices Act, today was fixed for an appearance by him to review his performance under the order, which his past history indicated might be problematic.

Mr Morris has appeared today ably represented by Ms Vasta. He unexpectedly found himself facing a suggestion from Ms Overell, for the DPP, that the ICO should be vacated, supported by a Court Report dated yesterday.

There is no application under section 122 of the Penalties and Sentences Act. Ms Overell accepts, as I think she must, that the Court, in the circumstances, probably cannot act under that section. It would seem inappropriate to do so given that the whole point of the successful section 222 appeal was that a Magistrate had resorted to a short cut when an order was changed rather than follow correct processes. Ms Overell also submits that under section 126 the Court may be able to act.

The circumstances involve some unknowns. It's likely, but I don't think I should take it as formally established, that Mr Morris may be convicted in four weeks' time for an offence of unlicensed driving. Ms Vasta tells the Court that, while he was incarcerated, his licence expired and he overlooked renewing it and he tells me that he now has renewed his licence. But, as we are here today, it is not clear whether there has been any re-offending.

The Court Report speaks in general terms of failure to do community service but nominates no date so that the Court can safely know what the particulars are. The Court is told that on one occasion a half a day's work was done at the Palm Beach Swimming Pool by Mr Morris which appears not to have been recorded. That situation may bear looking into.

He has been a frustrating client for the author of the Court Report. I interpolate that the two of them may have failed to establish a good rapport. That is bound to be the case from time to time with these arrangements.

Although Mr Morris' performance has not satisfied that lady, it appears that he has taken the initiative himself to obtain assistance, for example, from Mr Michaels of the Burleigh Boxing Association and from Mirrakai. (See Ms Kortez' letter, Exhibit 3A). There is also material to indicate that he presented to a "Back in Control" group as recommended by a doctor and supported by Community Corrections, but was unable to attend because the group was full. The relevant Exhibit, Exhibit 2A, suggests there are possibilities of Mr Morris getting involved in another group very shortly. There are obviously possibilities of significant community service being done, now that the way seems clear for that. Mr Morris has been frustrated in obtaining medical support for the proposition that a back injury would preclude his doing work.

Given that there is no application under section 122 today, the Court ought not to act as if there were.

There is a strong suspicion that he has let himself and the system down by his performance to date on the intensive correction order but the situation, thanks to Ms Vasta's efforts, presents as less embarrassing for him than it would otherwise appear.

I propose to keep the matter under review and will make the following orders. Adjourn this mention for further consideration to the 24th April 2009 and an appearance in person is required by Mr Morris.

I direct that any application under section 122 of the Penalties and Sentences Act may be made returnable then and should be served no later than the 16th of April 2009. Service may be effected on Mr Morris by service at the Legal Aid Office and on any other party, for example, of any application by him, on the DPP.

Does that cover it?

MS OVERELL: Thank you, your Honour.

HIS HONOUR: There is positive news today but I hope on the 24th April there is even more, Mr Morris.