R v Hickey

[2020] QCA 206

[2020] QCA 206

COURT OF APPEAL

MORRISON JA
MULLINS JA
JACKSON J

CA No 21 of 2020
DC No 434 of 2019
DC No 639 of 2017

THE QUEEN

v

HICKEY, Simon John  Applicant

BRISBANE

MONDAY, 21 SEPTEMBER 2020

JUDGMENT

JACKSON J: This is an application for an extension of time for leave to appeal against sentence. On 8 August 2018, the applicant was convicted of using a carriage service to menace, harass or cause offence contrary to s 474.17 of the Criminal Code (Cth). On the first offence, count 1 on the indictment, he was sentenced to a period of imprisonment of six months. On the second offence, count 2, he was sentenced to a period of imprisonment of four months. Both terms of imprisonment were ordered to be served concurrently. Additionally, the applicant was ordered to be released forthwith upon giving security by way of recognizance in the sum of $500 that he would comply with a condition that he would be of good behaviour for a period of five years.

On 12 June 2019, within the period of good behaviour of five years, the applicant was convicted of the following offences: (a) on 18 January 2019, unlawful possession of weapons; (b) on 18 January 2019, possession of explosives without authority; (c) on 18 January 2019, two offences of possession of dangerous drugs; (d) on 18 January 2019 and 1 April 2019 two offences of possession of utensils or pipes; (e) on 18 January 2019, obtaining or dealing with another entity’s identification for the purpose of committing or facilitating the commission of an indictable offence; (f) between 19 January 2019 and 1 April 2019, breach of a restraining order; and (g) between 17 January 2019 and 1 April 2019, possession of implements that were being used or were to be used in relation to particular offences.

On 9 December 2019, the applicant came before the District Court at Beenleigh to be dealt with for the alleged breach of the condition of the recognizance release order that he be of good behaviour for a period of five years.  The following orders were made: (a) the recognizance release order made on 8 August 2019 was revoked; (b) the applicant was ordered to serve that part of each of the terms of imprisonment as previously sentenced that the applicant had not served at the time of his release, namely (1) six months for count 1; and (2) four months for count 2; (c) the terms of imprisonment were ordered to commence on 18 January 2020 as the applicant was serving other terms of imprisonment at the time of the breach proceedings;  and (d) the terms of imprisonment were ordered to be served concurrently.  Accordingly, the applicant’s full-time release date was 18 July 2020.

The application for extension of time within which to appeal was filed on 30 January 2020. Accordingly, the period of extension of time sought by the applicant is not long. However, in the circumstances, I would still not grant an extension for two reasons. First, the applicant’s proposed ground of appeal is that the orders made by the District Court on 9 December 2019 revoking the recognizance release order and ordering the applicant to serve the part of each of the terms of imprisonment previously fixed that he had not served, amounts to a second separate punishment to that imposed by the orders made by the District Court on 8 August 2018. The applicant wishes to contend that s 34 of the Human Rights Act 2019, which came into operation on 1 January 2020, prohibited the orders made on 9 December 2019 because they amount to punishment more than once for an offence in relation to which the applicant has already been finally convicted in accordance with law.

In my view, it is unnecessary to discuss the formidable and, most likely, insurmountable hurdles that such a ground of appeal would face.  They include that (a) the Human Rights Act 2019 expressly provides that it applies to all “Acts”, but the word “Act” is defined in the Acts Interpretation Act 1954 as limited to an act of the Queensland Parliament, whereas the orders of 9 December 2019 were made under the provisions of the Crimes Act 1914 (Cth), an Act of the Commonwealth Parliament; (b) the Human Rights Act 2019 expressly provides that it does not affect proceedings commenced or concluded before the commencement on 1 January 2020; (c) the power of the Supreme Court, where a question of interpretation of a statutory provision in accordance with the Human Rights Act 2019 arises, is limited to a declaration of invalidity, but does not in any way affect the validity of a statutory provision for which the declaration is made; and (d) if s 34, as a law of the State, purported to operate inconsistently with the sentencing provisions of the Crimes Act 1914 under which the orders of 9 December 2019 were made, as a law of the Commonwealth, a question would arise under s 109 of the Constitution.  It is enough to say that the applicant’s prospects of success are so minimal that an extension of time is not warranted.

Second, the circumstances in which this application are brought include that the applicant has already served the period of imprisonment under the orders made on 9 December 2019.  This is not a case where the grant of leave to appeal and eventual success on the appeal would affect a period of imprisonment which the applicant is serving.  In those circumstances, in my view, the application for leave to extend time should be dismissed.

MORRISON JA:  I agree.

MULLINS JA:  I agree.

MORRISON JA:  The order of the Court is that the application for leave to extend time is dismissed.  Thank you.