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- Unreported Judgment
Graham v Commissioner of Police QDC 103
DISTRICT COURT OF QUEENSLAND
Graham v Commissioner of Police  QDC 103
KYMBERLEE JANE GRAHAM
COMMISSIONER OF POLICE
Appeal No 15 of 2015
Magistrates Court at Emerald
30 March 2015 ex tempore
30 March 2015
APPEAL – s 222 Justices Act 1886 – whether time should be extended under s 224 Justices Act 1886 – factors relevant to exercise of discretion.
APPEAL – s 222 Justices Act 1886 – appeal against sentence – whether sentence imposed was manifestly excessive – where appellant convicted and sentenced ex parte.
Criminal Code, s 340.
Justices Act 1886, ss 142A, 222, 224.
De Wet v R  NSWCCA 23
Guy v McLoughlin & Anor  QDC 17
R v Carkeet  QCA 143
R v Jackson  QCA 103
R v King  QCA 1
R v Tait  QCA 304
Solicitors for the appellant
Solicitors for the respondent
McGowran Lawyers for the appellant
Office of the Director of Public Prosecutions for the respondent
- HIS HONOUR: On the 20th of November 2014, the applicant was convicted of an offence of assault pursuant to s 340(2AA) of the Criminal Code. At the time, she was sentenced to four months’ imprisonment to be suspended for three years after serving two months concurrent. On that occasion, she was dealt with in her absence pursuant to s 142A of the Justices Act 1886.
- She now wishes to appeal against that sentence and has lodged a notice of appeal in which she contends two grounds: first, that the sentence was manifestly excessive in all the circumstances and, secondly, that the learned magistrate erred at law by convicting and sentencing her on an ex parte basis (a) for a crime (b) to imprisonment (c) when she had not entered a plea to the charge and (d) when she was absent from court and thereby (e) unrepresented.
- The appeal is one under s 222 of the Justices Act 1886 and as that section provides by subsection (1) must be commenced within one month of the relevant order. However, the court does have the power to extend time pursuant to s 224(1)(a). Before proceeding to consider the application/appeal it is appropriate to dispose of one issue. The applicant was convicted in her absence by the learned magistrate relying upon his powers under s 142A of the Justices Act 1886. It is now accepted that for any rehearing of an order made in such circumstances a strict non-enlargeable two month time limit applies: see Guy v McLoughlin & Anor  QDC 17.
- The applicant was in jail on remand in respect of other matters from three days following the conviction of the subject offences until she lodged her notice of appeal and/or application to extend time. She therefore says she had no knowledge of the sentence of 20 November. In any event, her application for rehearing pursuant to s 142A of the Justices Act 1886 has been foreclosed by her delay in making her application within two months, that is, by the 19th of January 2015. There is no scope for an enlargement in respect of such a rehearing: Guy v McLoughlin.
- There was initially some debate about whether or not the prosecution could have proceeded and the court in turn had jurisdiction pursuant to s 142A to proceed because of the nature of the assault. It was contended that as a serious assault the learned magistrate had no jurisdiction to proceed ex parte – a matter I note that was addressed in the grounds of appeal. However, the offence is one that was deemed a simple offence within the meaning of s 4 of the Justices Act 1886, it being an offence punishable on summary conviction before a Magistrates Court. In this case, the offence was one under s 340(2AA) Criminal Code and the election to proceed in respect of that offence vested in the prosecution. They were within their rights to require the matter to proceed before a magistrate as it did and the court correctly adjourned the matter when it first came on as it was required to pursuant to s 142A(4). The court having adjourned the matter it had the jurisdiction to convict as it ultimately did. It follows that the applicant appellant has no right for a rehearing in respect of the conviction.
- That leaves only the matter which remains upon the notice of appeal that being the first ground in respect of the question of whether or not the sentence was manifestly excessive. The principles relevant to an extension of time have been addressed elsewhere and touched upon by the Court of Appeal perhaps most recently in R v Carkeet  QCA 143, where, adopting the observations of an earlier Court of Appeal in R v Tait  QCA 304 at , it accepted a statement by that court in these terms:
[T]he Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. That may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant's appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay, it being much easier to excuse a short than a long delay.
- That invites a consideration of whether the substantive remaining ground of appeal has any prospects as a viable one, that is, that the sentence was excessive in the sense of unreasonable. The principles concerning excessive sentences have recently been discussed by the Court of Appeal in R v Jackson  QCA 103 where, at , Chesterman JA observed:
The cases do suggest that the [applicant in that case had been] punished severely. That, however, does not dispose of the application. To succeed the applicant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no one “right” penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of fact or law.
- To similar effect, the Court of Criminal Appeal of New South Wales recently considered the concept of manifest excess in De Wet v R  NSWCCA 23. There, Harrison J with Hoeben CJ at CL and Hulme J agreeing said at :
In order to succeed under this ground the applicant must demonstrate that the sentence of 9 years with a non-parole period of 6 years was “unreasonable or plainly unjust“: Markarian v R  HCA 25 ; (2005) 228 CLR 357. It is not enough to show that the sentencing judge could have taken a different course or that the appellate judges would have done so: House v R  HCA 40 ; (1936) 55 CLR 499 at 504–505.
His Honour went on at  to state:
Appellate intervention on a ground that a sentence is “manifestly excessive” is not justified simply because the result arrived at is markedly different from other sentences that have been imposed in other cases. Intervention is warranted where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle even though it is not apparent from the sentencing judge’s statement of reasons, or where the sentence imposed is so far outside the range available that there must have been error: Hili v R  HCA 45 at  citing Dinsdale v R (2000) 175 ALR 315. In Hili at 303, the High Court said:
A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that the range is the correct range, nor that the upper or lower limits to the range are the correct upper and lower limits.
- It’s to be noted that De Wet (supra) is an authority from the New South Wales Court of Criminal Appeal but the authorities cited by the court are all from the High Court and therefore binding on all courts in Australia.
- Here, the material facts as stated by the magistrate were these: when the matter came back before him on the 20th of November, that is, after it having been adjourned from the initial hearing in early November, the exchange between the court and the prosecutor was as follows:
BENCH: Yes. Now, this involved – can you just remind me what the facts were?
SGT O'GEAN: Yes, your Honour. This is – defendant uncooperative with ambulance staff using her right arm, swung it towards the victim and hit him in the right side of his face. This action caused the victim’s glasses to come off his face and fall on the floor. This was 11.30 am on the 26th of September 2014. Police went to a domestic, took up with a male and a female. Due to injuries sustained from the incident Kimberley Graham was conveyed to the hospital by ambulance. One of the paramedics was David Cliff. David Cliff sought medical attention by the off-duty officer at the hospital. The victim then attended his local doctor the following day in relation to his injuries. He suffered bruising and swelling to his face and required two days off work.
- They were the facts that were largely before his Honour on that occasion and his decision followed. In his decision, his Honour stated:
All right. Now, I dealt with this matter ex parte on the previous occasion and I was of the view that an assault of an emergency services worker is so serious and that it required the imposition of a sentence of imprisonment. A notice to show cause was served upon the defendant on or about the 7th of November.
The matter was adjourned to 20 November today for her to appear and make submissions in relation to a sentence of imprisonment. She has not appeared. Therefore, she has not only shown no remorse whatsoever – well, she’s shown no remorse whatsoever. Accordingly, I will not be giving any discount for a plea of guilty. In respect of the sentence that I announced on the last occasion that being one of four months’ imprisonment I order that it be suspended after the defendant has served two months imprisonment for an operational period of three years with a conviction recorded. The warrant of commitment is to issue in two months.
- It seems apparent to me that there had been an earlier hearing and that no doubt other material had been included in the earlier hearing. That other material included her prior criminal history which informed the view that prison was a likely sentence and accordingly that a s 142A(6) Justices Act 1886 adjournment and notice was necessary. Her prior history is not good and with a history of other like offending. I think from the transcript the only fair reading of it is that the learned magistrate was informed of the earlier criminal history in deciding to adjourn to permit the applicant to be heard in respect of why she ought not be sentenced to a term of imprisonment that being his initial impression having regard to all the circumstances of the case.
- Notwithstanding the absence of such an assumption his sentence would in any event, in my view, appear to be one that was reasonable. In making that observation I’m conscious of the view taken by other courts, in particular those identified in R v King  QCA 1, where the Chief Justice in considering an offence of a like kind made the observation at 3:
One begins with the proposition that those who treat a police officer in this way should ordinarily expect to be imprisoned, meaning actual imprisonment. Police officers carry out duties which are usually onerous and often dangerous.
- Those comments, in my view, apply equally to other emergency service personnel such as ambulance staff. In that decision, the Chief Justice, with whom Keane and Holmes JJ agreed, were considering an appeal against sentence involving an assault upon a police officer wherein the applicant there spat at the police officer occasioning concern about the passing of communicable disease. Although the court there allowed the appeal to reduce the sentence it did so upon the premise that there the applicant was sentenced to six months’ imprisonment for the assault which had an implicit sentence of nine months having regard to the discount allowed for the early plea. His Honour there examined comparative authorities each of which involved sentences of imprisonment for various periods with actual imprisonment forming part of the sentence. The sentencing ranges ranged from six months to nine months with four months to three months suspended respectively.
- In any event it seems, in having regard to those circumstances, that it could not be said that the sentence imposed by the sentencing magistrate in this instance was unreasonable irrespective of whether or not he had notice of the defendant’s prior criminal history. Given the test to be applied it could not be contended, in my view, that the sentence was unreasonable or plainly unjust. It is not to the point that this court may have imposed a different penalty. The fact remains the penalty imposed fell within the permissible range and it follows that on that basis the prospects of the appeal are such that it is not one which is, in my view, viable. Although the delay in bringing the application is short and is explained, the viability of the appeal tells against it. It follows, in my view, that the application ought be dismissed. I dismiss the application.
- Published Case Name:
Graham v Commissioner of Police
- Shortened Case Name:
Graham v Commissioner of Police
 QDC 103
30 Mar 2015