Stewart v Alveras

[2010] QDC 508

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE EVERSON
Appeal No 209 of 2010
JASPER STEWART Appellant
and

ALVERAS, CONSTABLE Respondent

RE: AN APPLICATION FOR BAIL BY JASPER STEWART

CAIRNS

..DATE 26/11/2010

JUDGMENT
HIS HONOUR: This is an application for bail in circumstances

where the appellant was convicted in the Cairns Magistrates Court on 17 November 2010 on her own pleas of guilty to one charge of assault occasioning bodily harm, one count of
committing a public nuisance, and one count of obstructing a

police officer.	10
In respect of the count of assault occasioning bodily harm she
was sentenced to imprisonment for six months, suspended after
serving two months for an operational period of 18 months.
She was not punished in relation to the other counts. She	20
appeals against the sentence on the grounds that it was manifestly excessive. The application for bail is not opposed by the prosecution.
The relevant considerations before me were set out by his	30
Honour Thomas J, in ex parte Maher [1986] 1 QdR 303 at 310. The position in respect of granting bail pending an appeal was summarised in the recent Court of Appeal decisions of R v. Martens [2009] QCA 139 at paragraph 19 in the following terms:
40

"In Hansen v Director of Public Prosecutions (Queensland)
this Court confirmed principles established in ex parte
Maher that bail pending appeal against conviction should
only be granted in exceptional circumstances. The
judgments in ex parte Maher and Hansen made clear that
the prospect of success on appeal is an obviously
important matter when determining whether or not such
exceptional circumstances exist. Another important

matter is whether the sentence, or in all events a 50
custodial part of it, is likely to have been
substantially served before the appeal is determined."

In respect of the second of the crucial integers referred to above, it is undoubtedly the case that should the appeal be listed in the ordinary course of events in this Court, the

JUDGMENT

custodial part of the sentence will have been served by the

time the appeal is determined.

In order to overcome this difficulty, I offered the parties

the opportunity of arguing the substantive appeal before me	10
today. However, they both declined the invitation, principally because they wished to obtain a transcript of the sentence proceeding below in order to determine whether or not the sentencing discretion has arguably miscarried.
20
In respect of the first integer, Mr Murray candidly concedes
that the appeal is arguable, but declines to emphasise any
extraordinary prospects of success from his perspective.
Having regard to relevant decisions, such as R v Barry [2007]
QCA 48, and also recent statements of the Court of Appeal	30
concerning punishment for offenders who spit on police officers, I have some reservations as to whether the first integer is established.
However, the fact remains that, unlike offenders in	40
comparative cases, the defendant before me is still very
young, and does not have a relevant criminal history. It could be argued that a community-based order, or a wholly suspended sentence, is within range in the event that the sentencing discretion has miscarried in the Court below.	50

In all of the circumstances therefore, I am prepared to grant the appellant bail on the following agreed terms:- the appellant be admitted to bail on her own undertaking in

JUDGMENT

respect of the charge that on the 28th day of April 2010 at assaulted Desmond Clifford Schloss, and thereby did him bodily harm.

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20
30
40
50

4 JUDGMENT 60

In the case of Jasper Stewart v Alveras, Constable, the appellant, Jasper Stewart, had appealed against her sentence for assault occasioning bodily harm, public nuisance, and obstructing a police officer. The appeal was centred on the argument that the sentence was manifestly excessive, particularly the custodial part of the sentence which was suspended after two months. The prosecution did not oppose the bail application. The court was tasked with determining whether bail should be granted pending the outcome of the appeal, considering the principles established in ex parte Maher and Hansen, as well as recent Court of Appeal decisions.

The court considered the prospects of success on appeal and whether the custodial part of the sentence would have been served by the time the appeal was determined. The court noted that the custodial part of the sentence would likely be served before the appeal was determined, and offered the parties the chance to argue the appeal before the court. However, both parties declined the offer, preferring to obtain a transcript of the sentencing proceeding below to assess whether the sentencing discretion had miscarried. The court also considered the age of the appellant and her lack of a criminal history, which could support a community-based order or a wholly suspended sentence if the sentencing discretion had miscarried.

The court concluded that, despite some reservations about the prospects of success on appeal, the exceptional circumstances justified granting bail. The court was swayed by the appellant's youth and lack of a criminal history, as well as the arguable nature of the appeal. The court granted the appellant bail on her own undertaking for the charge of assault occasioning bodily harm, with agreed terms to be met.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

matter is whether the sentence, or in all events a	50
custodial part of it, is likely to have been substantially served before the appeal is determined."