R v Mickelo

[1995] QCA 129

COURT OF APPEAL

[1995] QCA 129

MACROSSAN CJ FITZGERALD P BYRNE J

CA No 74 of 1995
THE QUEEN
v.

GARNETT ALLAN MICKELO Applicant

BRISBANE
..DATE 22/03/95
THE CHIEF JUSTICE: The applicant applies for an extension of
time to appeal against sentence, saying that he gave certain
instructions to welfare officers or social workers engaged
within the service of the Aboriginal and Torres Strait
Islanders Corporation. These instructions were not followed,
although the material filed shows that the applicant was given
some indications that his instructions were, in fact, being
carried out. The result was that he was 27 days late, it is
calculated, in getting his application in. The extension of
time application is not resisted by counsel appearing for the
Crown because it is conceded that the order which the
Magistrate made below was beyond power.

The applicant is a prisoner serving a life sentence for murder at the Sir David Longlands Correctional Centre at Wacol. On the date in question he disobeyed an order of a correctional officer to remove some plastic across an inspection window to his cell. When the order was insisted upon, the applicant removed that piece of material but then threw a cup of urine over the correctional officer. The applicant was charged with assault and the sentence that was imposed was one of 12 months imprisonment. A certain non-parole order was made at the same time.

The difficulty in the case in sustaining the order is that the charge was dealt with under section 343 of the Criminal Code and that provides that in cases of unlawful assault, which was what this was, the offender is liable on summary conviction to a term of imprisonment of six months. Accordingly, it is accepted that the order should not have been made in the form in which it was made.

On the other hand, it should be added that the applicant has been convicted of a number of offences since his conviction for murder in October 1981. The circumstances too were serious, involving an aggravated breach of discipline and a most reprehensible assault upon a correctional officer. It is not seriously contended that the maximum penalty should not have been imposed. In the circumstances it seems appropriate to order that time for application for leave to appeal against sentence be extended to the necessary extent and the appeal granted and, in lieu of the order made below, it be ordered that the applicant be sentenced to a term of six months imprisonment. No further order appears to me to be necessary.

THE PRESIDENT: I agree.

BYRNE J: I agree.

THE CHIEF JUSTICE: That will be the order of the Court.

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