Wi-Hikairo v Queensland Police Service
[2012] QDC 260
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- Wi-Hikairo v Queensland Police Service[2012] QDC 260
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Wi-Hikairo v Queensland Police Service[2012] QDC 260
Wi-Hikairo v Queensland Police Service[2012] QDC 260
[2012] QDC 260
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE EVERSON
Appeal No 76 of 2012
KELLY WI-HIKAIRO | Appellant |
and | |
QUEENSLAND POLICE SERVICE | Respondent |
CAIRNS
DATE 23/08/2012
JUDGMENT
HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act 1896 from a decision of the Magistrate sitting at Mareeba on 26 March 2012. On this date the defendant pleaded guilty to failing to appear in accordance with his undertaking pursuant to section 33(1) of the Bail Act 1980. Relevantly, he was granted bail on 24 August 2009 in respect of one count of entering a dwelling with intent, and one count of assault occasioning bodily harm.
He then returned to New Zealand in breach of his bail conditions without notice to anyone, and failed to appear at the Mareeba Magistrates Court for the committal hearing on 20 August 2010. On a date unknown he returned to Australia and was arrested in the same area on the 5th of February 2012 when police were investigating another matter. The Magistrate stated that he took into account the appellant's plea of guilty, but even so considered that the seriousness of the offending, and the fact that the appellant had one previous entry for like offending warranted a salutary custodial term.
The Magistrate imposed a sentence of imprisonment for four months, and imposed a parole release date after two months. It is submitted before me that the sentence imposed by the Magistrate was manifestly excessive. This submission is not opposed by the respondent.
The criminal history of the appellant which is Exhibit 1 before me discloses only one previous entry which records that on the 19th of January 2010 he was convicted in the Atherton Magistrates Court of failing to appear in accordance with his undertaking, and contravening a direction or requirement. Exhibit 2 before me, a presentence custody certificate, discloses that the Magistrate could have taken into account 50 days spent in custody in exercising his sentencing discretion, but that he did not.
The appellant has since served a further 33 days in custody in respect of the offending the subject of this appeal, meaning that at the present time 33 days is declarable and 83 days can be taken into account. In sentencing the defendant to imprisonment for four months and not having regard at all to the fact that 50 days could have been credited to the defendant pursuant to the principle discussed in R v. Fabre [2008] QCA 386 at [14], I am of the view that the Magistrate imposed a sentence which was manifestly excessive.
The offending, whilst showing a disregard for the administration of justice, was not sophisticated or particularly premeditated. It appears that the appellant returned to New Zealand to address grief issues arising from the death of both his parents, and then he returned to the area from which he had come. Had he intended to evade the authorities, it is unlikely that he would have been as foolish as to return to the place from which he had absconded.
In my view, the 33 days which are declarable are a sufficient penalty in the circumstances. I therefore allow the appeal and set aside the decision of the Magistrate at first instance. In lieu thereof, I sentence the appellant to imprisonment for 33 days. Anything arising out of that?
MR SHERIDAN: Do you have to just then make a formal declaration that - and I declare that he has already served‑‑‑‑‑
HIS HONOUR: All right. I thought it was implied, but I appreciate that. I declare that 33 days from 26 March 2012 to the 27 April 2012 inclusive spent in custody solely in relation to this offence is to be imprisonment already served under the sentence. I direct the Registrar to inform the Commission of this declaration.
MR SHERIDAN: Thank you, your Honour.
HIS HONOUR: Thank you for your assistance. Adjourn the Court please.