Re An Application for Bail by Taipaleti
[2013] QDC 331
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- Re An Application for Bail by Taipaleti[2013] QDC 331
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Re An Application for Bail by Taipaleti[2013] QDC 331
Re An Application for Bail by Taipaleti[2013] QDC 331
DISTRICT COURT OF QUEENSLAND
CITATION: | In the Matter of An Application for Bail by Vivian Singleton Tokieiki Taipaleti [2013] QDC 331 |
PARTIES: | Vivian Singleton Tokieiki Taipaleti (applicant) v Commissioner of Queensland Police (respondent) |
FILE NO/S: | BD 4809 / 13 |
DIVISION: | Civil |
PROCEEDING: | Appeals |
ORIGINATING COURT: | Beenleigh Magistrates Court |
DELIVERED ON: | 20 December 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 December 2013 |
JUDGE: | R S Jones DCJ |
ORDER: | 1. Application dismissed. |
CATCHWORDS: | APPEAL – Appeal from Magistrates Courts – Section 222 of Justices Act 1886 – Bail |
Bail Act 1980 Justices Act 1886 Ex parte Maher [1986] 1 Qd R 303 Hanson v Director of Public Prosecutions (2003) QCA 409 House v R (1936) 55 CLR 499 United Mexican States v Cabal [2001] 183 ALR 645 R v George (1999) QCA 459 R v Mathieson [2005] QCA 313 | |
COUNSEL: | J A Fraser for the applicant |
SOLICITORS: | Robert Bax & Associates for the applicant M P Le Grand, solicitor for Queensland Police Services |
- [1]I’m concerned here with an application for bail, with an appeal pending. The offence which was the subject of the sentence under appeal was one count of serious assault. As I understand it, there was also a related drunk and disorderly charge, but that’s irrelevant in this application. The applicant here was dealt with on 9 November 2013 for the offence of serious assault, and was sentenced to six months imprisonment, to be suspended after two months with an operational period of two years. The grounds of appeal are that the sentence was manifestly excessive, the learned magistrate placed too much weight on the defendant’s criminal history and the learned magistrate did not place sufficient weight on the defendant’s prospects of rehabilitation. Unfortunately, we don’t have the sentencing remarks, and have had to proceed in the absence of any such remarks or any transcript whatsoever. Accordingly, it is not possible to point to any specific error in the reasoning below.
- [2]It’s not in dispute that to succeed on an appeal against sentence, an error in the exercise of the sentencing discretion has to be revealed. As was stated in the very familiar case of House v R (1936) 55 CLR 499, at 505, “It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise a total discretion in substitution for his if it has the materials for so doing.” It has also been noted that it is not sufficient for the appellate court to consider that if they were dealing with the defendant, they might have imposed something different. As I said earlier, an actual error must be revealed. As was also said in House v R, “It is not enough that the judges comprising the appellate court consider that if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion.”
- [3]The facts involved in this matter are that the applicant was at the Springwood Hotel. The complainant was working at that hotel as a security officer. The situation was that the security officer was dealing with a person by the name of O'Brien who had been barred from entry to the hotel. The complainant was advising O'Brien of this when approached by the applicant who was, according to his counsel here today, heavily intoxicated at the time. The applicant challenged the complainant to a fight in the parking lot, effectively issuing the challenge that if he, that is, the applicant, won the fight, then the complainant would have to let O'Brien into the hotel. Not at all surprisingly, the complainant declined that challenge, and in response in an entirely unprovoked way, the applicant stepped towards the complainant, threw a number of punches, causing the complainant to fall to the ground. And the applicant continued to assault the complainant after he had, in fact, fallen to the ground. After that, he continued to yell abuse towards the complainant and other security staff.
- [4]The assault was clearly an unprovoked one by a person highly intoxicated by alcohol. It was an assault in a public place, and it was also an assault that was, to an extent, a prolonged one. Luckily for both the applicant here and the complainant, the complainant suffered only relatively minor injuries including a cut to his left elbow and bruising to the left arm. The applicant was identified by closed circuit TV footage, and on legal advice voluntarily attended the Springwood Police Station either wearing or with the clothing that he was wearing on the night. On legal advice, he declined to be interviewed. He was issued with a notice to appear, and he did indeed appear and was dealt with.
- [5]The applicant has an unenviable criminal history. It dates back to 2001, where he was dealt with in the Beenleigh Magistrates Court for one account of assault occasioning bodily harm. The defendant is now 30, and was 30 when he committed the subject offence. He was obviously a young man when this offence occurred, and it would appear to have been a relatively low level of offending, having regard to the sentence that no conviction be recorded, and a fine of $200. In October 2001, the applicant was again involved in one count of obstructing a police officer, and one count of assaulting a police officer. He was dealt with in the Beenleigh Magistrates Court in February 2002. Again, there must have been a relatively low level of violence involved and the applicant would have still been a very young man. And consistent with that, no conviction was recorded and the applicant was placed on a good behaviour bond. There was a similar entry which was dealt with in the Southport Magistrates Court in December 2002.
- [6]However, the applicant committed a serious offence, one of robbery with actual violence whilst armed and in company with the use of personal violence. That was dealt with on the 22nd of March 2005 in the Beenleigh District Court. The applicant was sentenced to six and a half years imprisonment. 390 days of presentence custody was declared to be time served, and he was required to serve a further 30 months before being eligible for post-prison community based release. Then, on the 23rd of October 2009, the applicant was dealt with in the Beenleigh Magistrates Court again, but having regard to the particular circumstances, a conviction was recorded but there was no further punishment. In April 2011, the applicant was dealt with in respect of an offence committed in January 2010. That was assault occasioning bodily harm whilst armed and in company. Again, a prison sentence was imposed. The last entry is that on 9 January 2010, he committed an offence of burglary with the intent of committing an indictable offence. He was dealt with in respect of that offending in the Southport District Court on 1 April 2011.
- [7]The submissions made on the applicant’s behalf obviously set out to expand further the grounds of appeal I’ve already articulated. In the written outline filed on behalf of the applicant, it was submitted as follows: “The applicant has reasonable prospects of success at the hearing of the appeal. The applicant will have served a significant portion, if not all, his sentence by the time the matter is listed for appeal. The applicant has always answered any previous grants of bail, and has never previously breached any conditions of bail. The applicant has employment and accommodation should he be granted bail. The applicant would be prepared to report to the police three times a week if granted bail.”
- [8]A number of affidavits have been filed. One, of course, by the applicant himself, and one by the sister-in-law of the applicant, and one by the employer of the applicant. The affidavit of the applicant and his sister reveal that he is part of a tightly-knit family, and that he is highly regarded by the family. And also, that he is actively involved in the day-to-day affairs of the family including making financial contributions and also physical contributions. The affidavit of Tracey Thorpe deposes to his work history and the fact that he is considered to be extremely hard working, reliable, polite and respectful. And it would appear that he would certainly have good prospects of being re-employed by that company upon release.
- [9]The relevant test in applications such as this is not that the applicant has reasonable prospects of success. What must be revealed is, in fact, strong grounds, as Mr Fraser of counsel for the applicant acknowledged I have been referred to a number of cases, but I need only refer to one in this context, and that is the case of Hanson v Director of Public Prosecutions (2003) QCA 409. The court there referred to a number of authorities and, in particular, the case of Ex parte Maher [1986] 1 Qd R 303. It was referred to as being a leading judgment which made clear a distinction between applications for bail by persons who have been convicted and applications by those who have not been convicted and, therefore, entitled to the presumption of innocence. Following reference to United Mexican States v Cabal [2001] 183 ALR 645 at 656 the Court of Appeal went on to identify that ordinarily in order for courts to grant bail pending an appeal two conditions must be satisfied. First, that the applicant must be able to demonstrate there are strong grounds for concluding that the appeal will be allowed. Second, the applicant must show that the sentence or at least a significant part of it will have been served before the appeal is determined. The second of those limbs is not in contest. It would appear – and the Crown concedes this – that by the time the matter is dealt with by way of appeal the two months of imprisonment would have been, if not totally served, then most substantially so.
- [10]To re-enforce the submissions made on behalf of the applicant, reference was made to, in particular, rehabilitation, as evidenced by a number of factors, including his employment, the regard in which he’s held by various people and it’s also pointed out that whilst he has an unenviable criminal history, the last serious offending occurred in January 2010, in effect four years ago.
- [11]Reference was also made in support of the application to the sentence imposed on a nephew of the applicant who was involved in an assault on another security guard at or about the same time. The sentence imposed on him after a plea was a $1500 fine. However, in my view the sentence imposed on the applicant cannot in any way be compared to that which would’ve been appropriate having regard to the nephew. From what I’ve been told the nephew was still only a relatively young man, 24, and in this context I note that the applicant is only six years older, but, more relevantly, he had only a very minor criminal history involving the sort of offences commonly described as street-type offences – obstructing police and things of that nature.
- [12]It was also identified that at the time of the sentencing submissions both the defence counsel and the police prosecutor were in agreement that an appropriate sentence would be three to six months head sentence, with either immediate suspension or an immediate parole release date. Clearly the sentencing magistrate did not agree.
- [13]The Crown has referred to two cases in particular in support of the basis that the sentence would be unlikely to be disturbed on appeal. Those two cases were R v George (1999) QCA 459 and R v Mathieson [2005] QCA 313. Both of those cases involved assaults on police officers. In George the defendant was sentenced to nine months with eligibility for parole after three months.
- [14]That involved a 25 year old defendant with no criminal history. The Court of Appeal there reduced the penalty, but only to the extent of reducing the head sentence from nine months to six months and by substituting a parole date to a suspended sentence after three months. In R v Mathieson, there the defendant was a 25 year old female offender with only one previous conviction, that of behaving in a disorderly manner. She was involved in the assault of two police officers. She was sentenced to 12 months imprisonment to be suspended after four months. The Court of Appeal reduced that sentence to six months to be suspended after two months.
- [15]It’s been pointed out that those cases dealt with police officers and it seemed to be accepted by the Crown that a real distinction does exist between a police officer and a security officer. To that extent, the submission accepted by the Crown was to the effect that the public might expect a higher level of protection for police officers and in assaults involving police officers the courts will impose harsher penalties. Accepting for the moment that such a distinction does exist, and I’m prepared to proceed on the basis that it does, it nonetheless, does not alter the fact that a security officer acting in that role at a hotel is a person who is vulnerable to exposure to violence. They are regularly required to deal with drunk and disorderly and often violent people.
- [16]On balance, I do not think that because the assault was on a security officer the sentence would be materially different, and the conclusion that I have reached, which I will indicate now – is that the application will be refused. In my view, having regard to the applicant’s criminal history and the nature of the offending, being an unprovoked and relatively prolonged assault in a public place, a head sentence of six months was very arguably within range. The real issue lies in whether or not the applicant ought to have been required to serve two months imprisonment. It was identified that he pleaded guilty at an early stage and cooperated in the administration of justice by attending the police station and taking with him or wearing the clothes he wore that night.
- [17]That assistance with the administration of justice is, of course, real and the usual discount for such assistance is a two-third discount for an early plea. That is what the court below did. It may well be that he attended the police station voluntarily with the clothes that he was wearing, but I think that has to be balanced by what prima facie appears to me to be a strong case against the defendant. On balance it strikes me that the sentence imposed was one that prima facie was within range and it follows that I do not consider that there are strong prospects for a successful appeal. To put it another way, the sentence is not so markedly different from other sentences imposed for such offences to conclude that there must have been some misapplication of principle. Accordingly, the application should be dismissed.