Neale v State of Queensland

[2006] QDC 246

DISTRICT COURT OF QUEENSLAND

CITATION:

Neale v State Of Queensland [2006] QDC 246

PARTIES:

Anthony James Neal

(Appellant)

v

State of Queensland

(Respondent)

FILE NO/S:

BD 1483 of 2006

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates’ Court

DELIVERED ON:

22.06.06

DELIVERED AT:

Brisbane

HEARING DATE:

22.06.06

JUDGE:

Forde DCJ

ORDER:

1. Leave to extend the time to appeal granted.

2. Appeal allowed.

3. The order of 10 August 2005 is varied whereby the fine, order of $540.00, is revoked.

CATCHWORDS:

APPEAL – double punishment for the same offence –

COUNSEL:

Self Representation for the Appellant

Mr Hungerford-Symes

SOLICITORS:

Self Representation for the Appellant

Office of the Director of Public Prosecutions for the Respondent

DISTRICT COURT

CIVIL JURISDICTION

JUDGE FORDE

No BD1483 of 2006

ANTHONY JAMES NEALE	Applicant
and
STATE OF QUEENSLAND	Respondent

BRISBANE

..DATE 22/06/2006

ORDER

HIS HONOUR:  This is an application to extend time to appeal against an order of a learned Magistrate in Brisbane of the 10th of August 2005.  On that occasion, she dealt with breaches of community service relating to a complaint issued in Cairns in April 1992, relating to an assault on a female and unlawful use of a motor vehicle.  At the same time, the learned Magistrate dealt with an assault on a female and unlawful use of a motor vehicle.

Those offences and those relating to the breach of the community service order and probation were the same offences.  On the 11th of December 1991 in a Gympie Magistrates Court the present applicant was given 96 hours community service and 12 months probation in relation to those offences.

The complaints which were issued in the Cairns Magistrates Court dealt with those offences.  The appellant absconded from Cairns and was never dealt with for those offences.  He did, however, appear in Brisbane to try to clear up these matters and was arrested.  He came on his own volition from New South Wales with a view to clearing up his past.

He does not dispute that he committed those offences but when he appeared in August 2005 he thought that he was not the same person that would have been capable of those offences and felt aggrieved at that stage.  I have read the transcript before the learned Magistrate and have heard the submissions of the appellant, who appears in person today.  If the application is granted to extend time the appeal can proceed.
The first hurdle for the appellant is that he must get leave to proceed.  The application for leave was dated the 22nd of June 2006 and the order was made on the 10th of August 2005.  However, the appellant tells me this morning that he has attempted to find out the details of these orders.

I must say, having looked at the file this morning and it did not become clear obviously to the Crown until this morning, that he has been doubly punished for the same offences.  There would have obviously been problems for him trying to track down exactly what offences he was facing, given that the learned Magistrate dealt with the breaches for the community based orders and then fined him for that and then re-sentenced him for the same offences.

The appellant, as I understand it, thought that the fines imposed were not exorbitant given the nature of the offences but seems to be of the view that how could he continue to be punished at this point, given his exemplary character since.  He has forwarded the details of how he has assisted people in his own life since that time, that is since August 2005 and also how he has assisted police, particularly on one occasion when a police officer was being assaulted.

Those matters may have been relevant before the learned Magistrate but the fresh evidence is not admissible here, as it relates to events some of which occurred after August 2005 and really a Court, at this time, does not have the power to re-sentence based upon exemplary conduct since.
However, because of the erroneous approach by the learned Magistrate, I feel compelled to grant leave to extend the time in which to appeal.  The appeal is allowed.  The order of the 10th of August 2005 is varied whereby the fine, order of $540 is revoked.

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