Commissioner of Police v MacDonald [2012] QDC 162

QDC [2012] 162 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 ..DAY 1 -- 1 of 7 -- 1-2 1 10 20 30 40 50 60 HIS HONOUR: Yes, all right. Now, well, it's appeal number 1397 of 2012. Yes? MR ZWOERNER: Thank you, good morning, your Honour. If it pleases the Court my name is Zwoerner, spelt Z-W-O-E-R-N-E-R, initials T G, solicitor with the Legal Aid office appearing for Mr Shane MacDonald in this application. HIS HONOUR: Yes. All right. Thank you. Mr La Grand, you appear for the respondent again? MR LA GRAND: Yes, your Honour. HIS HONOUR: Whoever that respondent may be. Okay. Yes, Mr Zwoerner. MR ZWOERNER: Thank you, your Honour. Does your Honour have a copy of the outline of argument that was filed on the 17th of May? HIS HONOUR: If it was filed on the 17th of May I probably should. Yes, I do. I'm afraid I haven't read it----- MR ZWOERNER: That's----- HIS HONOUR: I - this is, from my point of view, the beginning of the first day of a criminal sittings----- MR ZWOERNER: I see. HIS HONOUR: -----it's always a bit chaotic on the first day, I'm afraid, and one of the things I don't ever get the time to do is to read stuff like this----- MR ZWOERNER: I can assure you the outline isn't too long, so----- HIS HONOUR: Good. MR ZWOERNER: -----and I will address issues of it----- HIS HONOUR: You've read the material involved and----- MR ZWOERNER: First of all if I could read the application for bail which is dated the 17th of May 2012. Also a copy of the notice of appeal against sentence which is dated the 12th of April 2012 and also the affidavit of myself Thomas Grice Zwoerner which was affirmed and filed on the 17th of May 2012. HIS HONOUR: Yes. MR ZWOERNER: And----- HIS HONOUR: All right. Now, that's all your material? MR ZWOERNER: That's the material that I seek to rely on, thank you. HIS HONOUR: Yes. Took a while to file the - I suppose it -- 2 of 7 -- 1-3 1 10 20 30 40 50 60 didn't take that long to file the application. The - a month and a half. Mr La Grand do you have material? MR LA GRAND: Yes, your Honour. HIS HONOUR: Yes. MR LA GRAND: Your Honour, I seek leave to file and read written submissions on behalf of the respondent. I'll also hand up three decisions that have been referred to. Two of them have been referred to in my friend's submissions as well. They are the Hansen and DPP, the Crown and Fuller and the Crown against Bonn. MR ZWOERNER: Thank you, your Honour. I should also note that my outline relies on the additional case of ex parte Maher. I've provided a copy of that to your associate. HIS HONOUR: Yes, thank you. I've got that now. MR ZWOERNER: Thank you. HIS HONOUR: All right. Well, I better have a look at this material. Was there any presentence custody in this one? MR ZWOERNER: I don't - I don't have a report but yes, he has - you mean - you mean custody declared at the time of sentence? HIS HONOUR: Yes. Well, had he been imprisoned prior to custody----- MR ZWOERNER: He has, your Honour, yes. I believe there were 43 days in presentence custody. HIS HONOUR: Okay. MR ZWOERNER: Since the 16th of February this year. HIS HONOUR: I see. So he was arrested on the day of the offence. MR ZWOERNER: Yes, your Honour. HIS HONOUR: Pleaded guilty on the 30th of March and was sentenced to 18 months head sentence. Yes, that makes sense. -- 3 of 7 -- 21052012 D.1 T(1)10ADJ/(IPS) BRIS02 (McGill DCJ) 1-4 1 10 20 30 40 50 60 HIS HONOUR: Mr La Grand, are you aware of any authorities from the Court of Appeal dealing with the approach that should be taken by this Court in relation to an application for bail pending an appeal under section 222? MR LA GRAND: So - so your Honour's question is if the - if the approach taken is - is different to under section 222? HIS HONOUR: Well, the position is simply that you've referred to decisions of the Court of Appeal which have adopted decision - the approach taken by the High Court of Australia in relation to appeals to it, and that's a matter for that Court, but it does not - there - there isn't a case which I've seen this morning which talks about whether that same approach is to be adopted in the - is to be adopted in the same way when dealing with an appeal under section 222. MR LA GRAND: Your - your Honour, I - I don’t have----- HIS HONOUR: Do you see what I'm getting at? MR LA GRAND: -----I don’t have authorities on that point. HIS HONOUR: No. I must say what concerns me a little about the matter is simply that the issue about - of a person's sentence being served wholly or substantially prior to the time when the appeal can be heard is likely to impact particularly acutely on the sort of sentence which is likely to be subject to appeal to a Magistrate under section 222 simply because in practice most sentences of imprisonment imposed by Magistrates are relatively short - much - probably much shorter than the average sentence of imprisonment imposed by a trial Judge----- MR LA GRAND: Yes. HIS HONOUR: -----whether in this Court or the Supreme Court. So the other thing that I note is that in that decision of Maher, to which I was referred, the point seems to be made that the discretion - the statutory discretion is conferred in general terms, so that although there may be guiding principles, it's not as though the statute requires the - to step or two stage test that is referred to, for example, in Hansen. MR LA GRAND: Yes. HIS HONOUR: So that it's a - it's a principle about how - how a general discretion should be exercised rather than a statutory precondition be exercised at the discretion. MR LA GRAND: ?-- Yes. -- 4 of 7 -- 21052012 D.1 T(1)11/MJB(IPS) BRIS02 (McGill DCJ) 1-5 1 10 20 30 40 50 60 HIS HONOUR: It also occurs to me that when one looks at a number of the considerations which are referred to in the Court of Appeal judgments as to why it is appropriate for bail pending an appeal to be an exceptional - an exceptional remedy or an exceptional event. That - they talk about considerations which really don't apply to a - a quick plea of guilty in the Magistrates Court. MR LA GRAND: Yes. HIS HONOUR: I mean, there's talk about the respect for the jury verdict and so on, of course it doesn't apply in this situation. I - there are some consideration I suppose but it is a bit worrying that somebody could serve a sentence effectively of six months imprisonment prior to the time when there is really any practical opportunity to have an appeal. I seems - the other thing is the sentence does seem a bit harsh for somebody who hadn't offended, it's the first offence for a period of ten years, although he had a bad history it was a while ago, it's not a recent history. MR LA GRAND: Yes, that's accepted. HIS HONOUR: But it was only 18 months and otherwise it's a straightforward one-third - release after one-third. Still, it is worrying that for practical purposes he will have served the six months before, there's an opportunity to hear the appeal. I must say that is certainly a relevant consideration and I must say it's in - in dealing with an appeal for a Magistrate, it's probably a consideration which I think is perhaps of greater significance, relative significance, than the consideration of the strong grounds for concluding that the appeal will be allowed. Still, it's worrying, it would have been nice to have had a case which deals specifically with it as a 222 appeal. However, I don't know that there's much point what we actually do on the 16th of February 2012, can you tell me about that? MR LA GRAND: The - from the - the actual facts of the offend? HIS HONOUR: The actual - what were the facts of the case yes, back to the offending, yes, I'll hear about that one. MR LA GRAND: Your Honour, in short compass, there were three female occupants of the house returned to their home at about 8 o'clock that night. One noticed that there was a pile of clothes and other personal belongings on her bed and - and gathered from that, or concluded from that that there was someone else in the house. One of the occupants then heard a noise at the rear of the house and exited into her back yard to find the applicant walking away, he was wearing dark clothing and carrying a backpack and a laptop bag both belonging to occupants of the house. -- 5 of 7 -- 21052012 D.1 T(1)11/MJB(IPS) BRIS02 (McGill DCJ) 1-6 1 10 20 30 40 50 60 The occupants - one of the female occupants pursued the applicant who dropped the laptop case but continued to run away carrying the backpack; he was eventually apprehended by one of the occupants and held until police arrived. He refused to be interviewed and had stolen two laptop computers, a mobile phone, an iPod, and a silver ring from the premises. The----- HIS HONOUR: The value of what, a couple of thousand dollars? MR LA GRAND: There wasn't a value given from the police brief, so I'm unable to advise the Court. HIS HONOUR: No, all right. I suppose it wasn't actually taken, it was only a technical stealing. And what - how did he get in? MR LA GRAND: It wasn't clear from my reading of the----- HIS HONOUR: Doesn't that appear? MR LA GRAND: -----the Court brief----- HIS HONOUR: No, all right. MR LA GRAND: -----unfortunately, your Honour. But he's also charged with an offence of possession of implements used, that was a screwdriver, gloves and a torch. He was charged on the basis that had been used for burglary of the dwelling. HIS HONOUR: Yes. MR LA GRAND: However, there was no circumstance of aggravation of having broken into the premises. HIS HONOUR: No. Yes, all right. Is there anything else you wanted to say? MR LA GRAND: Your Honour, just the - whilst acknowledging it, he has had a long period of non-offending. The respondent's submission is ultimately that the offending is nonetheless serious in the sense - and made more serious perhaps by the fact that he was actually disturbed by the occupants of the house. And on the - on the authorities - well, the authority of Vaughan's case could reasonably have expected a period of imprisonment of three years, however notwithstanding he received a period of 18 months and perhaps without having had the benefit of reading the transcript or understanding what was said in the applicant's favour at that sentence hearing, perhaps it was appropriate given his long hiatus of offending of 10 years. -- 6 of 7 -- 21052012 D.1 T(1)13/ABD(IPS) BRIS03 (McGill DCJ) 1-7 1 10 20 30 40 50 60 I understand your Honour's point, it places this Court in an unenviable position given that - the indication from the Registry that the appeal was not likely to be heard before a time when he will have served the custody part of his sentence. However the respondent's ultimate submission is that because the offending is serious and because he was likely to have received - or could have received more than 18 months on the basis of that authority, the appeal is, at least on it's face, not on strong grounds. HIS HONOUR: Yes. MR LA GRAND: Unless there's anything specific, your Honour, those are my submissions. HIS HONOUR: Yes, all right. Thank you, Mr La Grand. TAKE IN JUDGMENT -- 7 of 7 --