Queensland Police Service v Adams
[2012] QDC 164
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- Queensland Police Service v Adams[2012] QDC 164
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Queensland Police Service v Adams[2012] QDC 164
Queensland Police Service v Adams[2012] QDC 164
QDC [2012] 164
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE DEVEREAUX SC
No 16 of 2012
QUEENSLAND POLICE SERVICE | Applicant |
and | |
CHRISTOPHER PAUL ADAMS | Respondent |
ROCKHAMPTON
DATE 19/04/2012
JUDGMENT
HIS HONOUR: The respondent to this application, Adams, was sentenced on 1 February 2012 at the Woorabinda Magistrates Court to three months' imprisonment with an immediate parole release date for a charge of driving while disqualified as a repeat offender. The applicant filed a notice of appeal on the ground that this sentence is manifestly inadequate in all the circumstances. The notice was not filed until 2 March 2012 so it was one day out of time.
On 12 March 2012, a notice of application for extension of time for filing the notice of appeal was filed, and it's that application that I have to decide today. The ground for the application is, "I posted the notice of appeal to the Registry by express post. However, was advised that the notice did not arrive until 2 March 2012, which was one day late. It is submitted that it was a short delay and no prejudice was suffered by the respondent." Ms King appears for the applicant, and I've had the benefit of her outline of submissions.
She relies on the affidavit of Ms Kennedy, a legal officer with the Queensland Police. The affidavit includes the following evidence: that on 23 February 2012, Ms Kennedy received a request to consider instituting an appeal against the sentence decision; the transcript was not available, but it was expected to be available on an urgent basis; the transcript was still not available on 29 February 2012; Ms Kennedy sought instructions from the Deputy Commissioner (Regional Operations), and was instructed to file a notice of appeal on behalf of the Queensland Police Service; she prepared one and sent it by express post on 29 February 2012.
I should have mentioned that Ms Kennedy obviously works in Brisbane. She expected that the result would be that the notice of appeal would arrive one day later; namely the 1st of March, which is the end of the one month period provided for in subs. 222(1) of the Justices Act 1886.
Ms Kennedy deposes that on 6 March 2012 she was contacted by the Registry in Rockhampton advising her that the notice of appeal wasn't received until 2 March 2010 and so was one day out of time.
The proposed appeal is brought pursuant to section 222 of the Justices Act. The application for an extension of time is, as I understand it, made under section 224 which includes the following: for an appeal a District Court Judge may on the application of a party or the Judge's own initiative extend the time for filing a notice of appeal.
Ms King had in her outline given me some more background to the case and the following is taken from the outline. The respondent entered a plea of guilty and was sentenced by her Honour, Magistrate Hennessy, for the one charge.
He had been intercepted by police on 16 January 2012 while driving. Police couldn’t perform the relevant licence checks at the time, but upon returning to the police station police conducted checks which revealed that on 30 September 2011 the respondent had been disqualified from holding or obtaining a driver's licence until 21 June 2012.
This was the respondent's fifth disqualified driving offence since October 2009. I'm advised that before the Magistrate, the Prosecution's submission was that he should be sentenced to a period of actual custody.
I pause to note that this is not a case where the period of imprisonment was mandatorily part of the sentence. The maximum penalty was 18 months imprisonment but there was no provision requiring that the sentence include a period of imprisonment.
When police located the respondent after discovering his disqualified status he apparently said that he did not recall the sentence that had been imposed on him on 30 September 2011. He was issued with a notice to appear.
I accept that the delay was brief and that there is an explanation for it. I am not completely persuaded that it's a satisfactory explanation for a number of reasons. The first is, I infer that no action was taken by the prosecution and by the proposed appellant until 23 February which was when Ms Kennedy says she received the request to consider instituting the appeal.
That was more than three weeks after the decision. There were ways to file a notice of appeal with more certainty that posting the notice from Brisbane even though express post. It would not really have taken much effort to have an appeal filed on time. So the delay is very short. I'm not entirely satisfied it's reasonably explained.
Ms King submits, and I accept, that the delay was unexpected. That is Ms Kennedy thought that the notice would arrive at Rockhampton in one day.
It is also submitted that the appellant has a strong case and that in all the circumstances it is in the interests of justice to grant the extension. Also, the applicant argues that no prejudice is caused to the respondent as a result of the delay.
These submissions are based on the considerations referred to in R v William Peter Tate (1998) QCA 304 which Ms King has referred me to. At paragraph 4 in the joint reasons of the Court it was said a Court would examine whether there's a good reason shown to account for the delay and would consider overall whether it's in the interests of justice to grant the extension.
That might involve some assessment of whether the appeal is viable. That can't always be done very well and this is an example of a case where I have not all the material available to me to do a proper assessment of the viability of the appeal.
Other factors include the prejudice to the respondent. In Tate the Court commented that in criminal appeals this is not often a live issue. Other matters are the length of the delay.
This is an appeal by a Prosecutor against the sentence. The sentence was one of imprisonment but with immediate parole. The obvious object of the appeal is to achieve a sentence of actual incarceration.
In those circumstances it seems to me that a very relevant consideration is the potential prejudice to the respondent. In R v Gordon ex parte Commonwealth DPP (2009) QCA 209 Keane JA referred to a submission on behalf of the DPP that the delay in that case, which was only six days, would not have caused the respondent any prejudice.
Keane JA said that that submission, "does not recognise the very real prejudice to the respondent which arises in every case where the Court is asked to exercise its discretion to allow a prosecuting authority a further opportunity to seek to visit criminal punishment upon an individual or those already been punished by the processes of the administration of criminal justice. If the extension of time sought by the DPP were to be granted the respondent would be confronted again with the prospect of actual imprisonment."
His Honour referred to the decision in R v Ku ex parte Attorney-General of Queensland (2008) 181 A Crim R 58.Keane JA said that in that case the Court affirmed, "That it will exercise its discretion to grant the Attorney-General an extension of time to appeal to expose an individual to this kind of double jeopardy only in exceptional circumstances."
I don't have before me a transcript of the submissions made before the learned Magistrate, nor her Honour's sentencing remarks. On its face I see some force in the argument that the appeal has merit or some prospect of success. The respondent was not sentenced to imprisonment actually and he obviously has a serious traffic history. He was driving while disqualified.
On the other hand the sentence was one of imprisonment but no doubt there were reasons expressed by the Magistrate for fixing parole release immediately. It hasn't been argued by Ms King that there is some other factual or legal error in the sentencing exercise, although I was told by Ms King that the argument would be that excessive weight was put on a particular personal feature, or a matter personal to the respondent. As I said, I can't really do more to assess whether the appeal has prospects of success, but I am confident to say that it doesn't give rise to some fundamental matter of principle.
In the end, considering the principles in Tate, informed by the remarks of Keane JA in Gordon, I am not satisfied that a proper exercise of judicial discretion allows for an extension of time.
The sentence is one of imprisonment albeit with immediate parole. The appeal is targeted at actual imprisonment. It's fully a case where a person, having pleaded guilty and been dealt with and continued at liberty, would have his liberty put in jeopardy a second time. Without assigning blame, particularly to Ms Kennedy, it seems to me that if action was to be taken to appeal that decision it should have been taken much more promptly. The application is dismissed.