Hippisley v Commissioner of Police

[2010] QDC 226

[2010] QDC 226

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE KOPPENOL
No 67 of 2010

ALLAN JOHN HIPPISLEY	Appellant
and
COMMISSIONER OF POLICE	Respondent
IPSWICH ..DATE 19/04/2010 ORDER

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HIS HONOUR: This is an application for bail pending appeal.

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The applicant was convicted on his own plea of guilty on the 9th of April 2010 in the Magistrates Court. He was sentenced to six month's imprisonment for the offence of common assault, and concurrent terms of one month for wilful damage and for driving without due care and attention.	10
The notice of appeal asserts that the sentence of imprisonment imposed was manifestly excessive.
The test in determining whether bail pending an appeal should	20
be granted is set out by the Court of Appeal in Hanson v The Director of Public Prosecutions [2003] QCA 409. At paragraph
7 the Court said that:
"The history of decisions in the High Court show that ordinarily that Court	30
will grant bail in criminal cases only if two conditions are satisfied. First, the applicant must demonstrate that there are strong grounds for concluding that the appeal will be allowed. Second, the applicant must show that the sentence, or all events the custodial part of it, is likely to have been substantially served before the appeal is determined.”
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During argument, I referred to a decision of the Court of
appeal of R v King [2008] QCA 1. In that case, a young man in
north Queensland who was heavily intoxicated assaulted a
police officer by spitting blood and saliva at him, some of
which entered the officer's mouth. The sentencing Judge, who	50

was me, sentenced the offender to six months imprisonment and ordered that it be suspended after he had served four months. On appeal, the Court of Appeal reduced the sentence, such that the defendant was required to serve two months in actual 1-2 ORDER 60

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custody.

In my opinion, whilst any offence of assault should be
regarded as serious, and especially any case of assault by a

man against a woman, the facts of the King case illustrate	10
that in this case there are strong grounds for concluding that the appeal will be allowed at least to some extent.
Secondly, as is now clear, it will be at least another two
weeks, and perhaps three, before this appeal can be heard by a	20
Judge of this Court. At that stage the applicant will have served four weeks of his eight week period in custody. In my view, that constitutes his having then substantially served the custodial part of his sentence.
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In that event, the two preconditions espoused in Hanson have been made out, and therefore I am prepared to grant the applicant bail pending his appeal.
Now on what terms should bail be granted, Mr Kissick?	40
MR KISSICK: There haven't been conditions prior, although he's now, of course, subject to the risk of return to prison. So perhaps the conditions should include a residential condition, and that would be-----	50

HIS HONOUR: The grant of bail will be subject to two
conditions: One, that the appellant continue to reside at-----
MR KISSICK: Number 9 Yalumba Street, Kingston----- 1-3 ORDER 60

HIS HONOUR: Number 9 Yalumba Street, Kingston-----

MR KISSICK: -----4114.	10
HIS HONOUR: -----4114. Now, what about a reporting condition?
MR KISSICK: Well, he hasn't previously been on reporting.	20
So, he's in full-time work, and lives locally, so - but if your Honour required that, obviously it could be - it could be made.
HIS HONOUR: Should I require a reporting condition, Ms	30
Christopherson?
MS CHRISTOPHERSON: I would be asking that your Honour did
require a - a reporting condition. The situation has changed
now in that not only does he have the dealing of the matter	40
hanging over his head, but he also has a period of imprisonment that's been ordered hanging over his head. So I would certainly ask that he report so that the police can keep track of him, at least.
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HIS HONOUR: And that the appellant report to the-----

MR KISSICK: Officer-in-charge of Logan, I think, is probably the----- 1-4 ORDER 60

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HIS HONOUR: -----officer-in-charge of Logan police once a week-----

MR KISSICK: Perhaps Friday - would Friday?	10
HIS HONOUR: Friday, Mr-----
MR KISSICK: Friday between 8.00 a.m. and 8.00 p.m. perhaps?
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HIS HONOUR: Once per week, namely between 8.00 a.m. and 8.00 p.m. each Friday. And it's also subject to the normal condition that if he were to change his residential address he should give immediate notice to the officer-in-charge of police-----	30
MR KISSICK: Yes.
HIS HONOUR: -----at the Logan district.
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MS CHRISTOPHERSON: Your Honour, I would also ask for a non- contact order in relation to the matter, with - with either his wife or with his child.
HIS HONOUR: Mr Kissick?	50
MR KISSICK: Well, I don't know what the current situation is
so far as the child and he having contact is concerned?

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MS CHRISTOPHERSON: As of last week, I was of the impression that they weren't in contact with one another, your Honour. That will - that will - from my discussions with Allan Hippisley junior last week, they certainly weren't in contact following this incident.	10
MR KISSICK: It's never been an issue in the past. I don't really know-----
HIS HONOUR: I'm a bit reluctant to do that because you never	20
know what has occurred between the people.
MS CHRISTOPHERSON: Well, it - it-----
HIS HONOUR: I know that he's currently in custody, but she	30
may have visited him. You know, I've seen - and I'm sure most people in this room have too – some remarkable turnarounds in human relationships. On the one hand you see people fighting, and then the next they're together again. I'm sure the police officers have when they attend domestic incidents.	40
MS CHRISTOPHERSON: Well, your Honour, at the - at the very least I would submit that this has come as a result of really retribution for a domestic violence order-----
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HIS HONOUR: Yes, but these-----

MS CHRISTOPHERSON: -----and that-----
HIS HONOUR: It may well have. 1-6 ORDER 60

MS CHRISTOPHERSON: -----he should at least be prevented from having contact with Sharon Hippisley, the wife.

10

MR KISSICK: He's never been on that bail throughout the entire proceedings of the matter. It - the bail now is really to secure him being around in case his appeal's unsuccessful.

HIS HONOUR: Yes. Now, I decline to make any further orders	20
with respect to bail. Thank you both.
MR KISSICK: Thank you, your Honour.
MS CHRISTOPHERSON: Thank you, your Honour. That's my final	30
matter. If I may be-----
HIS HONOUR: Thank you.
MS CHRISTOPHERSON: -----excused.	40
HIS HONOUR: Good afternoon.
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