R v Partridge

[1993] QCA 57

[1993] QCA 057

COURT OF APPEAL

MACROSSAN CJ
PINCUS JA

DERRINGTON J

CA No 358 of 1992
THE QUEEN
v.
FRANCIS MICHAEL WILLIAM PARTRIDGE
BRISBANE
..DATE 22/02/93

THE CHIEF JUSTICE: In this case the applicant, for extension of time, was outside the prescribed time limit by some significant amount. He was convicted on 25 September and his application for leave to appeal and for extension of them was not received until, I think it is correct to say, late December of last year.

However, there do seem some special circumstances in this case. The Court tends to insist on special circumstances being shown before it will extend time. He does offer an explanation. there is evidence of his being psychologically, including emotionally, very disturbed, and there is significant support for that claim.

Once he became aware, as he suggests, from other decisions of the Court, that a custodial sentence was not inevitable for armed robbery, he did, through his advisers, act expeditiously. There will be, if time is extended, one question for consideration, namely whether the learned sentencing judge appreciated that a non-custodial sentence was not necessarily outside his discretion, but I will say no more on he merits.

In my view, in this case an order should be made for the extension of time.

PINCUS JA: I agree.

DERRINGTON J: I agree.

MR CUTHBERT: Your Honours, there is one matter. After the notice
of application was lodged, an application was made to His
Honour, Mr Justice Williams, for bail pending an appeal. It was
heard late December after the others had been filed. That
application was not successful. I point out to the Court that
effectively now the applicant has already served five months,
that is, from 23 September to 23 February tomorrow, that is five

months of the sentence, and I ask this Court to grant him bail

pending the appeal.

PINCUS JA: What happened before Mr Justice Williams?

MR CUTHBERT: It was refused, Your Honour.

2

PINCUS JA: On what ground?

MR CUTHBERT: In response to Mr Justice Pincus, I am instructed that Mr Nyst’s recollection is that Mr Justice Williams refused bail because he was not satisfied that the nature of the appeal was such that it would inevitably succeed. I point out to the Court a substantial ground of the appeal that I have already mentioned in which event this court would be in the position of having to impose the sentence that it thought proper in the circumstances. I point out also to the Court and I am instructed that while the appeal is pending, the parole process is put on hold. Nothing to be done there. So it is a cry from the heart, as it were, to this Court, having considered the material that I put before it this morning, and the trial - the sentencing Judge’s remarks - that it is unlikely, most unlikely, that this young man would ever re-offend, that he is not a danger to the community. He is a young man with a previous unblemished record who had involved himself in voluntary community work for a period of time. Without attempting to argue all the merits of the sentence itself, I submit it is a proper case in which this Court could grant bail.

THE CHIEF JUSTICE: Yes. Mr Cuthbert, although there is an undoubted discretion, of course, for this Court to grant bail, it tends to prefer not to in circumstances like this because rather more careful consideration of the current circumstances can be given in Chamber. Now, there is no reason why a further application cannot be made to a Judge in Chamber on fuller material and no doubt one of the things there for investigation will be his current psychological state, but the next Chamber Judge will appreciate that at least the application has been given leave to appeal and he can take that into account with every other relevant circumstance, but the Court I is not disposed to grant bail.

3

There is no formality required in the order beyond the fact that we have indicated that time is to be extended.

BRISBANE

... DATE

JUDGMENT