Re Manning
[2015] QSC 59
•17 March 2015
SUPREME COURT OF QUEENSLAND
CITATION:
Re Manning [2015] QSC 59
PARTIES:
John Frederick MANNING
(Applicant)
v
Commissioner of Police(Respondent)
FILE NO/S:
SC No 4 of 2015
DIVISION:
Civil
PROCEEDING:
Bail Application
ORIGINATING COURT:
Supreme Court at Bundaberg
DELIVERED ON:
17 March 2015
DELIVERED AT:
Bundaberg
HEARING DATE:
16 March 2015
JUDGE:
Atkinson J
ORDER:
Bail refused
CATCHWORDS:
CRIMINAL LAW – PROCEDURE – BAIL – FURTHER APPLICATIONS – where the applicant had been convicted of a criminal offence – where the applicant had applied for bail pending appeal after conviction but before sentencing – where the applicant’s first application for bail was refused – where the applicant made a further application for bail pending appeal after sentencing – where the fact of the applicant having been sentenced was a relevant change in circumstances – where the change in circumstances reduced the likelihood of the applicant’s appeals being successful – whether the applicant had demonstrated exceptional circumstances.
COUNSEL:
The applicant appeared on his own behalf
G Cummings for the respondent
SOLICITORS:
The applicant appeared on his own behalf
Office of the Director of Public Prosecutions for the respondent
ATKINSON J: This is the decision on a bail application made by John Frederick Manning, who appeared in person. He is presently in custody, having been convicted by a jury after a trial in the District Court on the charge of unlawful stalking. That conviction was on 28 October 2014.
Mr Manning was remanded in custody by the trial Judge so that he could obtain pre-sentence reports prior to sentencing Mr Manning. Given the nature of Mr Manning’s offending, the evidence led at the trial and his previous criminal history, it was undoubtedly a very sensible move on behalf of the trial Judge to obtain that assistance prior to sentencing the applicant.
While on remand awaiting sentence, Mr Manning filed an appeal against his conviction. He also applied for bail pending the hearing of his appeal. That bail application was heard and dismissed on 15 January 2015 in the Supreme Court in Brisbane. Assuming for the purposes of the argument that the Supreme Court did have jurisdiction to grant bail after his conviction but before he was sentenced, the basis for the dismissal of that application was that no exceptional circumstances had been shown by the applicant.
Another application for bail has now been made by Mr Manning. There has been a change of circumstance in that now Mr Manning has been sentenced. When the District Court Judge sentenced Mr Manning on 6 February 2015, the pre-sentence reports had been received. They included a pre-sentence report by an experienced psychiatrist, Dr Rob Moyle. The report by Dr Moyle is very thorough and insightful into the applicant’s history. Of course, it does not constitute sentencing remarks, but it does recommend various treatments that Mr Manning might seek once he is released from prison and shows the necessity for such treatment.
When the trial Judge came to sentence the applicant, his Honour made factual findings, as is required, as to the basis on which the applicant had been convicted of unlawful stalking. He set out those findings in great detail. He also set out the detriment to the complainant who was affected by the stalking by the applicant. The learned sentencing Judge then referred to Dr Moyle’s report and how it served to provide some insights into the motivations for the offending as well as to the applicant’s future prospects.
Before dealing with that report in some detail, the learned sentencing Judge referred to the applicant’s lengthy criminal history. That criminal history is set out in broad terms in the sentencing remarks, but I have the advantage of having a copy of the criminal history. It shows that Mr Manning has committed offences commencing in 1982 and continuing in various forms. They include offences of driving a motor vehicle whilst under the influence of liquor or a drug; receiving; stealing; wilfully interfering with a telecommunications installation; breaching a probation order; breaking, entering and stealing; unauthorised dealing in shop goods; breach of an order under the Domestic and Family Violence Protection Act 1989 (Qld); wilful damage; an earlier count of unlawful stalking; using and threatening violence; and three counts of dangerous operation of a vehicle.
When Mr Manning came to be sentenced, the offending of unlawful stalking had been committed in breach of a suspended sentence which had been imposed on 27 June 2008 for the offences of unlawful stalking, using and threatening violence, and three counts of dangerous operation of a vehicle. That offending was serious and led to a sentence of imprisonment of three years, to be suspended after he had served 266 days’ imprisonment. A restraining order was issued up to and including 27 June 2013.
The learned sentencing Judge, as I have said, set out in some detail Dr Moyle’s report and what could be gained from an appreciation of it. His Honour then turned to the question of the period of suspended imprisonment and observed correctly that he was required to impose the whole of that period for the breach of the suspended sentence, unless it was unjust to do so. The sentencing Judge concluded that he was not satisfied that it would be unjust to order Mr Manning to serve the whole of the suspended imprisonment. He set out his reasons.
The sentencing Judge then observed that, when the applicant was released back into the community, it was desirable that that occurred under the supervision of a parole regime, which was best achieved by fixing a parole release date. Accordingly, he took the approach of requiring the applicant to serve the whole of the suspended imprisonment, being a period of two years and 99 days, and sentencing the applicant to serve 18 months’ imprisonment for the offence of unlawful stalking, of which he had been convicted by a jury on 28 October 2014. His Honour did not order that sentence to be served cumulatively, as he could have, but rather, concurrently. He then gave a fixed parole release date of 28 November 2015.
The effect of that sentence was that the applicant is, in fact, spending no more time in prison for the offence of unlawful stalking than he is for serving the whole of the suspended imprisonment. It would be difficult to argue that that was a manifestly excessive sentence. While the applicant’s situation has changed, it seems to me it has made it much more unlikely that he would be granted bail pending appeal. Bail pending appeal is only granted where there are exceptional circumstances. The cases set out what some of those exceptional circumstances might be, but none of those applies to this case. Mr Manning will not have served the whole of the sentence before his appeal can be heard and determined. He has not shown any reasonable prospects of success in either appealing his conviction nor in gaining leave and being successful in appealing his sentence. Accordingly, I am satisfied that he should not be granted bail pending appeal and I refuse bail.
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