Hall v Queenland Police Service
[2012] QDC 389
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- Hall v Queenland Police Service[2012] QDC 389
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Hall v Queenland Police Service[2012] QDC 389
Hall v Queenland Police Service[2012] QDC 389
[2012] QDC 389
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE BAULCH SC
Appeal No 342 of 2012
OLIVER WILLIAM ROBERT HALL Appellate
and
QUEENSLAND POLICE SERVICE Respondent
TOWNSVILLE
DATE 28/11/2012
JUDGMENT
HIS HONOUR: This is the matter of Oliver Robert William Hall and the Queensland Police Service. The appellant seeks an extension of time within which to appeal against a sentence imposed on him in the Magistrates Court at Townsville on the 25th of July 2011. On that day he was dealt with in respect of a number of offences. The outcome may be summarised as follows:
- (1)An offence of fraud for which he was sentenced to four months' imprisonment, wholly suspended, with an operational period of 18 months.
- (2)Failing to appear, he was sentenced to three days' imprisonment and three days of presentence custody was declared.
- (3)Breach of probation where the breach was found proved and he was fined $350 and had his probation continued.
- (4)Breach of a community service order where the breach was found to be proved and 50 hours community service was ordered.
- (5)A disqualified driving, that is driving whilst disqualified by a Court order, he was sentenced to one months' imprisonment wholly suspended with an operational period of 12 months.
The extension of time is sought in respect of the fifth matter only. The notice of appeal and the application for extension of time were filed on the 17th of October 2012, almost 14 months out of time.
It is curious that the application was made after the sentence has expired, but counsel tells me consideration to appealing was given when the appellant was charged with a further offence which could render him liable to breach proceedings in respect of the suspended sentence.
It became clear during the course of the hearing that the further offence is an offence of driving whilst disqualified by a Court order, said to have occurred on the 31st of July 2012, which would be after the expiry of the operational period of the disqualified driving sentence and it seems that the purpose of this appeal is to attempt to make the appellant's record less imposing when he appears on the subsequent drive while disqualified charge.
Of the relevant considerations identified in The Queen v. Tait [1999] 2 Qd. R. 667, and The Queen v. Mundy [2011] QCA 7, two have been the subject of argument before me. First, is there a good reason to account for the delay and second, what prospects of success does the appeal have.
The explanation for the very significant delay is found in the appellant's affidavit filed on the 19th of November 2012, where he says at paragraph 9 to 11 and I quote:
"Immediately following the sentence, I spoke with my lawyer, Mr Hinds, he told me that he thought the sentences I received were some of the 'better outcomes' that could have been imposed. Mr Hinds also told me that I could pursue an appeal and better outcomes, however, there was no guarantee that I would be successful. There was no further conversation with respect to any appeal.
- Short - after I received a letter from Hinds Lawyers dated 25 July 2012" I assume that must have been 2011, "among other things, Mr Hinds started under this letter, 'It is our opinion that the outcome imposed is not manifestly excessive, however, you have the right to appeal, which is to be lodged within 28 days of the outcome being imposed by the presiding Magistrate.'
- I did not appeal against a sentence within 28 days after the sentence was imposed upon me or at any time thereafter until my notice of appeal was filed on 17 October 2012 as I had received legal advice to the effect that the sentence was not manifestly excessive."
The appellant now contends that that advice given to him was erroneous as there were prospects of success for an appeal. Further, I note that the advice, particularly that advice, contained in the first paragraph set out above, was qualified and did not rule out success in an appeal. It was frankly conceded by counsel for the appellant that the need for an appeal was not apparent until the later charge was preferred.
As was said by Keane JA as he then was in The Queen v. DAQ [2008] QCA 75 and I quote, "Delay in making an application is relevant to the exercise of the discretionary power to grant extension of time because delay detracts from the public interest in the finality of litigation. Indeed it is the public interest in this regard that affords the raison d'etre of statutory time limits on appeals."
It was conceded that there is no prejudice to the respondent by the delay. It remains to consider whether the alleged erroneous advice was arguably erroneous and sufficiently explains the appellant's delay.
The appellant, for a 19 year old, has a quite appalling history. I mention these matters by way of example.
First, on the 12th of January 2012 he was convicted of two counts of unlicensed driving, the offence dates said to have been the same, both on the 19th of November 2010, and fined and disqualified.
Second, on the 22nd of March 2011, he was convicted of unlicensed driving, the offence date being the 18th of January 2011, and again fined and disqualified. The subject conviction relates to an offence on the 26th of May 2011, some two months after the imposition of the disqualification.
The appellant was dealt with in the Magistrates Court at Townsville on the 16th of November 2010 for a very large number of property offences, no conviction was recorded and probation and community service ordered.
On the 19th of October 2011, he was dealt with for breach of a fine option order.
On the 12th of January 2010, the community service order was revoked and a fine was imposed. The appellant alleges that the Magistrate was wrong in failing to consider alternatives to employment saying that a fine or probation was within the appropriate range of penalties.
It is true that the Magistrate did not, when sentencing, spell out the reasons for imposing imprisonment, wholly suspended rather than an alternative sentence. He was dealing with multiple offences and, in my view, it would be quite unreasonable to say that he was wrong merely because there was not a discussion of alternate punishments in respect of each of the offences being dealt with. He expressed his overall view of providing an incentive to improved behaviour simply, in language which one would think the appellant would have well understood.
I was referred to cases which support the proposition that probation can be an appropriate punishment for driving whilst disqualified by Court order. I do not disagree with that proposition but it obscures rather than illuminates the real question here which is, whether a suspended term of imprisonment is within the range of appropriate sentences. In my opinion it cannot be argued that such a sentence was not within the proper range of sentence. The appellant had been before the Court on numerous occasions without the punishments imposed having any discernible effect on his behaviour.
I am of the view that the appeal has no prospects of success. It follows the advice given was not erroneous, that being the only explanation for the delay, there is no good reason shown to account for the delay. The application for extension of time is dismissed. It seems to me to follow that the substantive appeal should be dismissed as well.
Mr Turner?
MR TURNER: Your Honour, I have no further requests for any orders. I'm not particularly sure if the last order can be made but in any event the appeal itself is no longer on foot.
HIS HONOUR: Well, if I don't dismiss it it'll come again. And why would it come back again if an application for an extension of time has been refused?
MR TURNER: That's so, your Honour.
HIS HONOUR: Do you want to say anything about that Mr Hollebone?
MR HOLLEBONE: I can't take the matter further, your Honour.
HIS HONOUR: Yes. Well, the application for extension of time is dismissed and the substantive appeal is dismissed.
Is there any other order sought?
MR TURNER: No, your Honour.
HIS HONOUR: Very well. Thank you.