Re Fuller[2010] QDC 210

DISTRICT COURT OF QUEENSLAND

HIS HONOUR: I have before me an application for bail pending the hearing of an appeal against sentence.  The sentence was imposed on about 28th of April 2010 when the applicant was sentenced to six month's imprisonment with a parole release date of 28 June 2010.

The earliest that an Appeal Court might hear an appeal in this matter, unless special arrangements were made, has been advised to me by Ms Price for the respondent to be late May 2010.  In the circumstances it seems that at least one half of the custodial sentence would be served before the appeal was heard.

The Court hearing an application for bail has a discretion.  There are authorities which assist Judges determining bail applications, and I have this morning been referred to R v Fuller [2008] QCA 303, and Hanson v DPP (Qld) [2003] QCA 409, each of which is a case where applications for bail were sought and considered after conviction.  Unlike the case before me, they were neither of them cases of a particularly short sentence.  Each of them followed and applied ex parte Maher [1986] 1 Qd R 303.

I have not been given a copy of that case this morning, but did recently read it and accept that it does show that in applications for bail like the one which occurred in that case, the discretion should take into account the fact that where there are long terms imposed to stay an order of imprisonment before deciding an appeal, tends to create the false impression that a jury verdict is a preliminary to a later decision by an Appeal Court.

From the United Mexican States v Cabal cited in the Hanson case at paragraph [10], their Honours referred to the decision of ex parte Maher and matters pointed out by Thomas J in the case, that to allow bail pending the hearing of an appeal after a person has been convicted and imprisoned makes the conviction appear contingent until confirmed, places the Court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail, encourages unmeritorious appeals, and undermines the respect for the judicial system in having a recently sentenced man walking free, and undermines the public interest in having convicted persons serve their sentences as soon as is practicable.  Those comments made by his Honour Justice Thomas, were made in the context of a long sentence imposed upon Mr Maher.

His Honour had referred in that case to the history of applications for bail pending appeal, and did observe that it required exceptional circumstances before bail would be granted pending appeal and that in England, or the United Kingdom, I forget which, such an exceptional circumstance was one where a short sentence would have been served or substantially served.

The reference to the English exception was not in any way qualified by the need to have shown strong prospects of success on appeal or indeed qualified in any way.  Neither of the cases of Hanson or R v Fuller deals specifically with whether there is a need to show strong prospects of success in every case, but particularly, in cases where a sentence will be substantially served.

In the application by Fuller, which I am to consider, it is difficult to determine that the prospects of success are strong or that there are strong grounds for concluding that the appeal will be allowed.  While my own view that there were other sentences such as an intensive correction order which might have been considered by the learned Magistrate is a matter I take into account, that does not persuade me that there are strong grounds for saying that the sentence was manifestly excessive.

However, I do take into account when considering my discretion, that there do seem to be some reasonable prospects of success of an appeal on the basis of sentence.  In this particular case, it seems that an intensive correction order was not specifically considered by the learned Acting Magistrate.  I am aware that there was a pre-sentence assessment which was favourable to the applicant.  That is Exhibit 3.  Ms Price for the respondent properly and helpfully provided to the applicant Exhibit 4 which is a Court report dated 12th of May 2010, which shows that in the opinion of that reporter, the respondent is suitable for community based orders.  And I have also the benefit of a submission not made to the learned Acting Magistrate, that in view of prior incarceration of the applicant and its failure to cause the applicant to avoid alcohol and his tendency to public nuisance as a result, it would have been appropriate to consider an alternative to imprisonment such as a community based order like an intensive correction order.

The prospects on appeal I say are reasonable also because there is additional evidence which was not before the learned Magistrate and which might be allowed by a District Court Judge, and that is evidence of a Mr Wester or Webster that the applicant was forcefully slapped by a person who had been exchanging obscenities with him before the applicant was seen to throw a punch at the unnamed person who slapped him.

If that were so, it may change the quality of the public nuisance from the kind which led the Magistrate to impose the maximum penalty for public nuisance of six month's imprisonment, and indeed to contemplate imposing one and a half times the maximum penalty of nine month's imprisonment. 

For these reasons and also having regard to the criminal history and the quality of the offence, I regard it as likely that the applicant will be able to be returned to imprisonment if his appeal is unsuccessful, and I am prepared in the circumstances to order bail pending appeal.

...

HIS HONOUR:  In addition to the standard conditions contained in the proposed undertaking to be offered by Mr Fuller, I order the further conditions that Mr Fuller reside at (withheld).  I further order that that residential condition may be changed with the written consent of an officer of the Office of the Director of Public Prosecutions.