Exit Distraction Free Reading Mode
- Unreported Judgment
Williams v Director of Public Prosecutions QDC 204
DISTRICT COURT OF QUEENSLAND
Williams & Hughes, Re an Application for Bail  QDC 204
CRAIG RONALD HUGHES
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS
402 of 2016
403 of 2016
Application for Bail
28 July 2016 (ex tempore)
28 July 2016
The applications for bail are dismissed.
CRIMINAL LAW – PROCEDURE – BAIL – before sentence – whether granting bail following conviction is justified – where defendants pleaded guilty to serious criminal offences – whether there are exceptional circumstances.
Criminal Code Act 1899
Penalties and Sentences Act 1992, 13A
Ex parte Maher  1Qd R 303.
R v Boyd  QCA 8.
R v Fitzgerald  QCA 241.
R v Wentt  QCA 613.
S Thompson for the applicant Williams
P Bodisco for the applicant Hughes
N McGhee for the respondent
Buckland Allen Criminal Lawyers for the applicant Williams
City Legal Solicitors for the applicant Hughes
Director of Public Prosecutions (Queensland)for the respondent
- These are applications for bail in respect of two defendants who pleaded guilty to serious offences before me yesterday. It was requested that the sentencing hearing be adjourned to 14 October 2016 to enable the preparation of a psychological or psychiatric assessment in respect of each defendant. The offending in question involved what might be colloquially termed a home invasion. The applicant Hughes pleaded guilty to burglary and assault occasioning bodily harm while armed in company, and the applicant Williams pleaded guilty to burglary and common assault.
- The relevant factual matrix is that on the evening of 8 March 2015, the applicant Williams and her then partner, the complainant, were arguing and she threatened to text a friend, whom she said was a bikie, to “come and get him”. She left the complainant’s residence and returned four hours later with two men, including the applicant Hughes. She went upstairs and talked to the complainant and indicated that were people outside. She then proceeded to let them in. They pushed her out of the way and approached the complainant as he was backing away with a Samurai sword.
- Home invasions are serious offences and are viewed that way by the courts. The offending comes within section 419 of the Criminal Code Act 1899, which provides a maximum penalty of the imprisonment of life. In R v Wentt  QCA 613, Thomas J observed:
“Offences of this character, which threaten the safety of persons in their own home, are commonly regarded as sufficiently serious to demand custodial sentences, even in the case of persons of previous good character.”
These observations were noted in R v Fitzgerald  QCA 241, and in R v Boyd  QCA 8.
- As the Full Court observed in ex parte Maher  1Qd R 303,.for either of the defendants to be granted bail, they need to show exceptional circumstances. In Maher Thomas J observed (at 310) that there was a public interest in ensuring that bail was only granted in limited circumstances following conviction and noted the difference between this circumstance and an application for bail prior to conviction, where the defendant, “is still clothed with the presumption of innocence”. In particular, he proceeded to examine the categories of circumstances which may justify the grant of an application for bail following conviction. He observed (at 312) that such a circumstance included cases where “…an appellant may inevitably be required to serve an unacceptable portion of his sentence before his appeal can be heard.”
- The same consideration lies at the core of each application for bail before me. Of course, this is not a situation where there is an appeal. Rather, it is submitted that each defendant will be required to serve actual jail time pending the sentencing hearing, in circumstances where the ultimate sentence may not require it.
- Turning to the circumstances relating to the applicant Hughes. He was born on the 25th of February 1975. He is therefore 41 years of age. He has a brief, but not irrelevant criminal history. It contains two entries, one for unlawful possession of weapons, which saw him fined $300 without a conviction recorded in the Brisbane Magistrates Court on 18 December 2012, and an entry for breach of a bail condition, which resulted in no conviction being recorded, and him not being further punished, by the Southport Magistrates Court on 4 September 2015.
- It is submitted on his behalf that he suffers from mental health issues which have caused him to attend a psychologist on 5 July 2016. There are notable mitigating features that will apply in the exercise of the court’s sentencing discretion, which include that he has cooperated with authorities in the resolution of the charges arising out of this incident pursuant to section 13A of the Penalties and Sentences Act 1992. It is also submitted that the complainant, in defending himself with a Samurai sword, inflicted a life threatening puncture wound to the torso of Mr Hughes, which required a week and a half of hospitalisation.
- Turning to the applicant Williams. I have before me an affidavit sworn by her which was filed in court earlier today. Relevantly, she deposed that her relationship with the complainant “was one of domestic violence, which included physical and emotional abuse” and that “as a result of this abuse, I suffer from anxiety and depression”. Ms Thompson, who appears on behalf of Ms Williams, submits that these issues potentially not only reduce the moral culpability of Ms Williams, but also potentially make any time required to be served in prison harder. Ms Thompson frankly concedes that the material does not enable the court to reach any conclusion in this regard, and distinguishes the observations in Maher which I referred to above on the basis that Maher dealt with an application for bail pending appeal, when all the relevant facts, including the facts pertaining to the defendant, were known. Here, the relevant facts, particularly relating features of mitigation pertaining to the particular personal circumstances of Ms Williams are not yet known and a sentence where she may not have to serve actual jail time may be open, depending on the precise mitigatory facts which emerge. In this regard, Ms Thompson submits that a psychiatric or psychological report will be of particular significance, and that this has not yet been obtained.
- I note the submission of Mr McGhee, the prosecutor, that the culpability of Ms Williams is considered less than Mr Hughes, and that is reflected in the plea to a slightly less serious charge. However, the fact remains that both defendants have pleaded guilty to serious offences which ordinarily call for jail time to be actually served. Both defendants are not youthful, and have criminal histories. I should state that in the case of Ms Williams, she has a two page criminal history which includes an entry for serious assault, as well as numerous entries for breaching bail.
- Having regard to the observations of Thomas J in Maher above, the correct test is not that a sentence where a defendant may not have to serve actual jail time is possibly open, rather the test is relevantly expressed in the context of an appeal as one where an appellant may inevitably be required to serve an unacceptable portion of his sentence before this appeal can be heard. This is a different emphasis. When the different emphasis in respect of the appropriate test to apply is coupled with the fact that it is the standard procedure in Queensland that defendants are sentenced upon either a jury verdict or a plea of guilty, it is not a satisfactory scenario that defendants facing sentences for serious criminal activity should be released into the community because there is a prospect of obtaining a favourable psychiatric or psychological report which may point to certain mitigating circumstances.
- Such a scenario does not accord with public policy considerations which include, in my view, a community expectation that people who are either found guilty or plead guilty to serious criminal offences will not be at liberty while mitigatory material is prepared.
- When I consider the seriousness of the offending, coupled with the ages and antecedents of the defendants, together with the types of penalties which are generally imposed for offending of this type by mature people, I am of the view that it has not been demonstrated that exceptional circumstances arise on the facts before me. I therefore dismiss the applications for bail.
- Published Case Name:
Williams & Hughes, Re an Application for Bail
- Shortened Case Name:
Williams v Director of Public Prosecutions
 QDC 204
28 Jul 2016