Commissioner of Police v Shane MacDonald [2012] QDC 157

QDC [2012] 157 DISTRICT COURT APPELLATE JURISDICTION JUDGE MCGILL No 1397 of 2012 COMMISSIONER OF POLICE Respondent/Complainant and SHANE MACDONALD Appellant/Defendant BRISBANE ..DATE 21/05/2012 JUDGMENT -- 1 of 11 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an application for bail in relation to a section 222 appeal which was filed on the 16th of April 2012. The applicant was convicted, on a plead guilty, on the 30th of March 2012 in the Magistrate's Court, of one count of entering a dwelling and committing an indictable offence and one count of possession of implements that have been used in relation to particular offences. On the former count he was sentenced to 18 months imprisonment, a parole release date was fixed six months after he went in to custody, having been arrested on the night of the offending which was the 16th of February 2012. The ground of appeal is the sentence was manifestly excessive. The applicant, as I say, has been in custody since the 16th of February and has now been in custody effectively for half of the six month period, which was fixed for the parole release date. -- 2 of 11 -- 3 JUDGMENT 1 10 20 30 40 50 60 At the present time, a transcript of the sentencing hearing and Magistrate's sentencing remarks is not available, and that makes it difficult to assess with any degree of accuracy the strength or otherwise of the appeal. What can be said, in a general way, is that the offending seems to have been a fairly low level burglary. The property was entered when it apparently was unoccupied, but while the appellant or the applicant was there, the occupiers of the property returned and he promptly left. However they heard him going and pursued him and were able to take him into custody and hold him until police arrived, and hence his arrest. He had taken two laptops, a mobile phone, an iPod and a ring. No particular value was given but it all sounds a fairly conventional and low level offence. There was nothing in the facts that I was told about which would suggest any particular aggravating circumstances. The appellant has some criminal history extending over a number of pages but it seems to have stopped in 2002, so this is the first offence for a period of about 10 years. He's now 34. It is a little disconcerting that he has suffered this return to some earlier form. But on the other hand, one would have expected that these were circumstances where it was particularly important to encourage prospects of rehabilitation in the hope that he might be prevented from continuing or reverting to the sort of life of crime that he had been leading earlier. That does not seem to have been -- 3 of 11 -- 4 JUDGMENT 1 10 20 30 40 50 60 manifested in the sentence which applied a conventional release after one third. The head sentence does not appear to be particularly severe, but it does occur to me that, in the circumstances, it would certainly have been unsurprising for a different approach to have been adopted. There were a number of relevant mitigating factors. But, again, it is difficult to know just what effect all this has in circumstances where there is no transcript available. I have been provided with authorities which indicate that the approach adopted in the Court of Appeal is that it is necessary to show that there are exceptional circumstances before bail would be granted pending an appeal. In Hansen v. DPP [2003] QCA 409, the Court of Appeal applied in relation to decisions on bail pending appeals to that Court, the approach adopted by the High Court of Australia in United Mexican States v. Cabal (2001) 183 ALR 645 at 656. It was said that ordinarily the Court will grant bail in criminal cases only if the applicant can demonstrate that there are strong grounds for concluding that the appeal will be allowed, and that the applicant can show that the sentence or at least the custodial part of it is likely to have been substantially served before the appeal is determined. One can readily understand why the High Court would adopt that approach and it is, I suppose, understandable that the Court of Appeal would adopt a similar approach. In any event, that -- 4 of 11 -- 5 JUDGMENT 1 10 20 30 40 50 60 is a matter for that Court. The Court in that case and in earlier cases, and I mention, in particular, the decision in ex parte Maher, which is reported in [1986] 1 QDR 303, listed various considerations which favour the Courts adopting a very strict and limited approach to the granting of bail pending an appeal. Most of, or many of those considerations seem to me not to apply, with the same degree of force at least, in relation to the granting of bail pending an appeal under section 222 of the Justices Act. It is commonplace, particularly in relation to appeals against sentence, the sentences imposed by Magistrates are typically relatively short, so that the second of those two considerations identified by the Court of Appeal is likely to apply particularly acutely in the case of appeals under section 222. There is the further difficulty that when the Court of Appeal is considering the strength of the appellant's or applicant's case, it is likely to have available, at least, the transcript of the sentencing remarks of the sentencing Judge and quite probably a good deal more information if the matter went to trial about the circumstances of the trial. Accordingly, that Court and, of course, the High Court on an application for further appeal, is likely to be in a much better position to be able to form some particular view in relation to the strength or otherwise of grounds for concluding that the appeal will be allowed. -- 5 of 11 -- 6 JUDGMENT 1 10 20 30 40 50 60 In circumstances where I do not even have a transcript of the sentencing remarks, where it appears to be beyond the resources of the State of Queensland to produce that in anything like a reasonable time after the notice of appeal is filed, then it seems to me that it is very difficult to say that the first of those two considerations should be applied as strictly in relation to an appeal under section 222 as would be appropriate when the Court of Appeal is considering an application for bail pending appeal to that Court, let alone when the High Court of Australia is considering a like application. R v. Maher also points out that the statutory discretion under the Bail Act is expressed in general terms, so that the two matters referred to in Hanson are principles which guide a Court in the exercise of a judicial discretion rather than preconditions for its exercise. It seems to me that those principles have to be applied bearing in mind the particular difficulties which confront a District Court Judge when dealing with application for bail relatively soon after the date of sentence, and particularly prior to the time when there's a transcript available of the sentencing hearing, so that the Judge is able to see just what reasons were given by the Magistrate for imposing the sentence that was imposed. Such reasons may well indicate that an appeal has little prospect, or at least not strong grounds for concluding that an appeal would be allowed. On the other hand, they may demonstrate that the Magistrate may well have -- 6 of 11 -- 7 JUDGMENT 1 10 20 30 40 50 60 been, or was very likely to have been, wrong. As I say, the Court of Appeal would have a transcript of the sentencing remarks of a sentencing Judge and be in a much better position to assess these matters. It seems to me, therefore, that if one applies the principles in Hanson in a way which takes into account the particular difficulties confronting a Judge hearing an application for bail in relation to an appeal under section 222, those difficulties and limitations must be taken into account in the exercise of the discretion in a principled way. The practical effect of that is that, I think, in this Court, the second consideration is likely to be of much greater significance in the typical case than the first consideration, though, of course, everything depends on the particular facts and circumstances of a particular application. In this particular application, I really can't say whether there were strong grounds for concluding that the appeal will be allowed. All I can say is that it looks to me as though the sentence did not have sufficient consideration for the important consideration of rehabilitation and the important purpose of rehabilitation. I think that that really ought to be sufficient so far as the first test is concerned in the context of an appeal under section 222. -- 7 of 11 -- 8 JUDGMENT 1 10 20 30 40 50 60 On the other hand, it is likely that the custodial part of the sentence will have been substantially served before the appeal is determined, and I think that is a matter of considerable significance. In those circumstances, I think it is appropriate, at least in the circumstances of this case, to grant bail pending the hearing of the appeal. Do you have a draft order? MR ZWOERNER: Your Honour, I - I do apologise - I do not. HIS HONOUR: All right, never mind. MR ZWOERNER: I did see another MacDonald on the law list for 9.30 in a different Court and didn’t - I completely take responsibility for rushing and I was going to prepare one this morning. HIS HONOUR: Yes, well never mind. I suppose it could - well I - I suppose it won't be precisely the same terms as the last one because - I'll just see because what - what will have to be - well, this talks about I'm - I'll have to let you have a look this, but it does talk about where he has to reside. MR ZWOERNER: Yes, your Honour. HIS HONOUR: Now this is a caravan park that----- MR ZWOERNER: It is. It's the Oxley Pine Caravan Park, your Honour. I have the address for it. It's on Boundary Road. HIS HONOUR: Yes. It's in your affidavit anyway----- MR ZWOERNER: It's - yes, it is. It's as per the affidavit. HIS HONOUR: -----and I can get it from there. The - otherwise, look, I think probably the simplest thing I'll pass this draft order down to you and you can have a look at it----- MR ZWOERNER: Thank you, your Honour. HIS HONOUR: -----and see whether you're happy with the terms of the draft. Now, I suppose you'd better show it to Mr La Grand as well. MR ZWOERNER: Of course. Thank you. MR LA GRAND: Your Honour, I've been handed one by my colleague. -- 8 of 11 -- 9 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: Oh, okay. MR LA GRAND: And----- HIS HONOUR: So you've got a copy of that order there? MR LA GRAND: Of that - of the previous order, yes. HIS HONOUR: All right. Well you can have a look at it and see if there's anything - any issue as to the form of the order. MR LA GRAND: Thank you, your Honour. MR ZWOERNER: I have no concerns with a similar order apart from condition three. I don’t know if it was specific to the last case, stating the applicant shall not contact directly or indirectly any Crown witnesses or any - nor attempt such contact. I'm not sure if there's any risk of that occurring. HIS HONOUR: I suppose it's likely to be of more significance in relation to an appeal against conviction - appeal against sentence. MR ZWOERNER: I would have thought so as well, yes. MR LA GRAND: Yes. I wouldn't be opposing the removal of that condition. HIS HONOUR: No, all right. Thank you. MR ZWOERNER: So a similar order as per this draft, but perhaps just minus condition three. HIS HONOUR: All right. Thank you. MR LA GRAND: Yes, your Honour, that's suitable to occur. HIS HONOUR: Yes, all right, thank you. MR ZWOERNER: Thank you, your Honour. HIS HONOUR: Well, what I'll do then is just blot it out. I don’t know about that first part but. -- 9 of 11 -- 10 JUDGMENT 1 10 20 30 40 50 60 I order that the applicant be admitted to bail upon his own undertaking, such undertaking being conditioned that the applicant appear and surrender himself to the custody of the District Court at Brisbane on such a dates and times as the District Court may determine, notice of which shall be given to him or to his solicitor by the Deputy Registrar Appeals for the District Court of Brisbane. And that the applicant not depart from the Court without leave of the Court and so often as leave is granted, return at the time appointed by the Court and again surrender himself to custody. And two, the applicant shall reside at the Oxley Pines Caravan Park, Boundary Road, Durack in the State of Queensland or such other address as approved in writing in advance by the Director of Public Prosecutions. So----- UNIDENTIFIED SPEAKER: Thank you. HIS HONOUR: -----I make that order in those terms. MR ZWOERNER: Thank you, your Honour. HIS HONOUR: All right. Well thank you. MR ZWOERNER: I should probably just note for the Court just in terms of notifying the Correctional Centre, I believe he's currently being held in the Brisbane Correctional Centre, though there was some - some talk with Sentence Management about him perhaps being moved to the Darling Downs Correctional Centre----- HIS HONOUR: [indistinct] -- 10 of 11 -- 11 1 10 20 30 40 50 60 MR ZWOERNER: -----either today or tomorrow. So perhaps if - if they could not be notified just as----- HIS HONOUR: Yes. Well look, I might get my associate to----- MR ZWOERNER: A matter of some urgency, just----- HIS HONOUR: Yes. I'll get my associate to----- MR ZWOERNER: -----to what - yes. I apologise, I believe it was - they may be moving him to Toowoomba, not to the Darling Downs. HIS HONOUR: Well----- MR ZWOERNER: But in any event it would make it quite difficult for him to return back to Oxley. HIS HONOUR: Well in any event we'll - we'll do what we can. MR ZWOERNER: Of course. I just----- HIS HONOUR: I appreciate that the Corrective Services Commission is something of a law unto itself in these matters so. MR ZWOERNER: Thank you, your Honour. HIS HONOUR: It wouldn’t surprise me if they take him up just to bring him back again. All right. Well, look, thank you gentlemen. ----- -- 11 of 11 --