Stewart v Alveras[2010] QDC 508

[2010] QDC 508

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE EVERSON

Appeal No 209 of 2010

RE: AN APPLICATION FOR BAIL BY JASPER STEWART

CAIRNS

DATE 26/11/2010

JUDGMENT

HIS HONOUR:  This is an application for bail in circumstances where the appellant was convicted in the Cairns Magistrates Court on 17 November 2010 on her own pleas of guilty to one charge of assault occasioning bodily harm, one count of committing a public nuisance, and one count of obstructing a police officer.

In respect of the count of assault occasioning bodily harm she was sentenced to imprisonment for six months, suspended after serving two months for an operational period of 18 months.  She was not punished in relation to the other counts. She appeals against the sentence on the grounds that it was manifestly excessive.  The application for bail is not opposed by the prosecution.

The relevant considerations before me were set out by his Honour Thomas J, in ex parte Maher [1986] 1 QdR 303 at 310.  The position in respect of granting bail pending an appeal was summarised in the recent Court of Appeal decisions of R v. Martens [2009] QCA 139 at paragraph 19 in the following terms:

"In Hansen v Director of Public Prosecutions (Queensland) this Court confirmed principles established in ex parte Maher that bail pending appeal against conviction should only be granted in exceptional circumstances.  The judgments in ex parte Maher and Hansen made clear that the prospect of success on appeal is an obviously important matter when determining whether or not such exceptional circumstances exist.  Another important matter is whether the sentence, or in all events a custodial part of it, is likely to have been substantially served before the appeal is determined."

In respect of the second of the crucial integers referred to above, it is undoubtedly the case that should the appeal be listed in the ordinary course of events in this Court, the custodial part of the sentence will have been served by the time the appeal is determined.

In order to overcome this difficulty, I offered the parties the opportunity of arguing the substantive appeal before me today.  However, they both declined the invitation, principally because they wished to obtain a transcript of the sentence proceeding below in order to determine whether or not the sentencing discretion has arguably miscarried.

In respect of the first integer, Mr Murray candidly concedes that the appeal is arguable, but declines to emphasise any extraordinary prospects of success from his perspective.  Having regard to relevant decisions, such as R v Barry [2007] QCA 48, and also recent statements of the Court of Appeal concerning punishment for offenders who spit on police officers, I have some reservations as to whether the first integer is established.

However, the fact remains that, unlike offenders in comparative cases, the defendant before me is still very young, and does not have a relevant criminal history.  It could be argued that a community-based order, or a wholly suspended sentence, is within range in the event that the sentencing discretion has miscarried in the Court below.

In all of the circumstances therefore, I am prepared to grant the appellant bail on the following agreed terms:- the appellant be admitted to bail on her own undertaking in respect of the charge that on the 28th day of April 2010 at Cairns City in the State of Queensland she unlawfully assaulted Desmond Clifford Schloss, and thereby did him bodily harm.