Fisher v Hansen

[2009] QDC 175

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE DICK SC

No 16 of 2009

ALAN MARK FISHER	Appellant
and
NEIL ANTHONY HANSEN	Respondent
BRISBANE ..DATE 15/06/2009
ORDER

1-1

HER HONOUR: This is an appeal against a sentence in respect	1
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

1-2 ORDER 60

March and the sentence in March was a three months cumulative	1
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 practical effect for the appellant unless I deal with the ones in March.
to change that parole eligibility date, the appeal on the

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

1-3 ORDER 60

sentence. Those two sentences to be concurrent with each	1
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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50

1-4 ORDER 60

In the case of Fisher v Hansen, the appellant, Alan Mark Fisher, appealed against two sentences imposed by the Richlands Magistrates Court. The first sentence was handed down on 11 December 2008, for one count of wilful damage to a Corrective Services facility and one count of breach of a suspended sentence from June 2008. The second sentence was imposed on 18 March 2009 for wilful damage to Corrective Services property. The appeal was heard by Judge Dick SC in the District Court's appellate jurisdiction. The appellant argued that the Magistrate erred in sentencing by not considering the principles of totality and proportionality.

The legal issues before the court were whether the Magistrate applied the correct sentencing principles and whether the sentences were manifestly excessive or erroneous. The court had to determine if the cumulative sentencing was appropriate and if the parole eligibility dates were correctly calculated. The appeal was made on the basis that the Magistrate did not consider the totality of the sentences and the need to avoid a crushing sentence. The appellant also argued that the sentences imposed in December 2008 had an impact on the March 2009 sentence, leading to an incorrect parole eligibility date.

Judge Dick SC allowed both appeals, finding that the Magistrate had indeed applied a wrong principle in sentencing. The court held that the Magistrate should have imposed a six-month cumulative sentence for the wilful damage, served concurrently with the three-month activation of the suspended sentence. The parole eligibility date was set at 29 February 2009, and the full time discharge date was set at 30 December 2010. For the March 2009 sentence, the parole eligibility date was fixed at 29 March 2009, resulting in a full time discharge date of 31 March 2011. The court's decision addressed the errors in the original sentencing and corrected the parole eligibility dates accordingly.

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