Kuskopf v The Commissioner of Police
[2014] QDC 269
•24 November 2014 ex tempore
DISTRICT COURT OF QUEENSLAND
CITATION: | Kuskopf v The Commissioner Of Police [2014] QDC 269 |
PARTIES: | TROY SHANE KUSKOPF (appellant) v THE COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 2933/14 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court |
DELIVERED ON: | 24 November 2014 ex tempore |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 November 2014 |
JUDGE: | Samios DCJ |
ORDER: | 1. Extend the time for the filing of the notice of appeal to 31/07/2014. 2. The appeal is allowed. 3. The conviction is set aside. 4. The matter is remitted to the Magistrates Court for hearing before another Magistrate. 5. No order as to costs. |
CATCHWORDS: | CRIMINAL LAW - APPEAL AND NEW TRIAL - CONVICTION - SENTENCE - where the Appellant allegedly became frustrated with the Complainant for holding up a drive through queue at a McDonalds Restaurant and assaulted the Complainant - where the appellant was convicted in the Magistrates Court for the offence of assault occasion bodily harm and sentenced to imprisonment for 2 years with parole eligibility after serving 8 months imprisonment - where the Appellant was absent from the proceedings before the learned Magistrate - whether the learned Magistrate made any errors in the conduct of the proceedings leading to the conviction and sentence of the Appellant Legislation Criminal Code (Qld) s 339(1) Justices Act 1886 (Qld) ss 142A(1), (5), s 147 Penalties and Sentences Act 1992 (Qld) s 160B |
COUNSEL: | Ms M Power for the appellant The respondent was not represented by Counsel |
SOLICITORS: | Legal Aid Queensland for the appellant Office of The Director of Public Prosecutions (Queensland) for the respondent |
HIS HONOUR: On the 9th of May 2014, in his absence, the Appellant was convicted of the offence of assault occasioning bodily harm. The offence was pursuant to section 339 subsection 1 of the Criminal Code. He was then sentenced on the 30th of May 2014 by the learned Magistrate, notice of his conviction having been given to him at his last – at his bail address. The learned Magistrate imposed a sentence of two years imprisonment with a parole eligibility date after serving eight months. The Appellant was not present or represented at sentence. A warrant issued on that date for the Appellant’s arrest. He was arrested on the 14th of June 2014 and remanded in custody. He also had other matters outstanding at the time of his arrest. When he was convicted, the learned Magistrate was given an outline of the circumstances of the offending by the Police Prosecutor. The offending allegedly occurred on the 26th of January 2011. It’s briefly described in the submission of the Respondent, that is, apparently, the Appellant became frustrated at the Complainant holding up a drive through queue at a McDonalds. He got out of his vehicle and punched – sorry – he punched the vehicle driven by the Complainant at some – at a red traffic light and then punched the Complainant. He pushed her onto the road and kicked and punched her a further time to the chest. He was identified by his car registration and a photo board identification.
Objectively, the offence was very serious, however, there is evidence before me to show that the Appellant apparently suffers considerable mental health issues. His appeal is on the grounds that the conviction was not according to law, the verdict was unreasonable and cannot be supported having regard to the evidence, and that the sentence is manifestly excessive. Not withstanding those grounds of appeal it is clear that the learned Magistrate made errors in the procedure adopted to reach the stage of imposing a sentence. Nevertheless, the Appellant is out of time with respect to his notice of appeal. Therefore, leave is required extending the time for the filing of his notice of appeal. The Respondent does not argue against the application for an extension of time to lodge the notice of appeal both against conviction and sentence. That is because, clearly, on the evidence available, the Appellant, because of his mental health issues, was not in a position to protect himself by lodging a notice of appeal in time. In addition, it is accepted that the learned Magistrate erred in that section 142A of the Justices Act was not the procedure to be adopted. That is because subsection 1 of section 142A provides for a procedure where the complaint is one of a simple offence or breach of duty. This was not a complaint of a simple offence. It was a complaint of an indictable offence. Therefore, the learned Magistrate could not deal with the matter on the basis of being given an outline of the facts by the learned Crown Prosecutor from the bar table. It will be noted that subsection 5 of section 142A – if that were the correct procedure to adopt – allows for information to be provided from the bar table, however, it could not, in this case, be followed for proceeding towards conviction of the Appellant.
In addition, the learned Magistrate did not comply with section 147 of the Justices Act. That provides that if at the time or place to which a hearing or further hearing is adjourned, either or both of the parties does not or do not appear personally or by lawyer, the Justices then present may proceed to such hearing or further hearing as if such party or parties were present, or if the Complainant does not appear the Justices may dismiss the complaint with or without costs. As can be seen, again, this required the learned Magistrate to actually hear the evidence from the witnesses who were present and available to give evidence. That is because the Appellant had appeared previously and this date for the hearing had been set down when he was present, and then he did not appear on the further date that had been set, but as section 147 says, quote “further hearing as if such party or parties were present”.
Here that meant the evidence had to be gone into. It always appears cumbersome to be put in that position, for a Magistrate, when a Defendant does not appear in these circumstances, however, it is the procedure to be followed. In addition, another error has occurred which I think should be put on the record. That is the learned Magistrate set a parole eligibility date. Clearly, in this case, his power was to fix a parole release date having set a sentence of two years imprisonment. Section 160B was the applicable section – the Penalties and Sentences Act was the applicable section. That involves a situation where a sentence is of three years or less, and not a serious violent offence or sexual offence. I’ve just paused here – then – it just caught my attention, Mr Spencer. Assault occasioning bodily harm is a serious violent offence, so would the learned Magistrate be correct in that respect? I was prepared to accept your submission that he may not have been correct. I think he has to declare it.
MR SPENCER: There has to be a finding. Like ‑ ‑ ‑
HIS HONOUR: That’s right. He did not declare it.
MR SPENCER: Yep.
HIS HONOUR: Yes. Anyway, having paused there I’m – I – it is still correct the proposition that a fixed parole release date had to be set rather than a parole eligibility date. I say that for the future if this matter is restored to the list and dealt with according to law. In addition, there should have been a presentence custody certificate provided by the Prosecution so that the learned Magistrate had before him the dates to be declared so that could be taken off the sentence for the future. There is also the argument about the sentence being excessive. Here I have to be careful because it is still a matter for the learned Magistrate. It is submitted by the Respondent today that the sentence was not excessive. I’m not going to rule on it. I am merely going to say that the Appellant’s mental health issues are a relevant consideration, and while, objectively, the sentence was very serious, that is, if somebody was watching this they would be horrified at what happened, but it may be that the learned Magistrate is dealing here with this Appellant being a person who is very ill. That is, mental health is a relevant mitigating factor.
Therefore, in all the circumstances, the orders I make is that I extend the time for the filing of the notice of appeal to the 31st of July 2014. The appeal is allowed. The conviction is set aside and the matter is remitted to the Magistrates Court for hearing before another Magistrate. What about the question of costs? What did your submission say about that Ms ‑ ‑ ‑
MS POWER: I made no submissions about costs, your Honour.
HIS HONOUR: You made no submission on that? You’re not seeking them?
MS POWER: No.
HIS HONOUR: No. All right. Should I say then, there’ll be no order as to costs.
MS POWER: Thank you, your Honour.
HIS HONOUR: Nothing else, Mr Spencer or Ms - Mrs Power?
MS POWER: Nothing, your Honour.
MR SPENCER: No, thank you, your Honour.
HIS HONOUR: Well, Thank you for your helpful submissions.
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