Todd v Combo

[2008] QDC 54

[2008] QDC 54

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE BRABAZON QC

No 3247 of 2007

STEPHEN CRAIG TODD	Appellants
DAVID THOMAS MILBURN CHRISTOPHER GEOFFREY LAWSON KELLIE ANNE BARRON PAUL ANDREW ALGIE
and
RORY GENE COMBO	Respondent
BRISBANE ..DATE 23/01/2008

ORDER
HIS HONOUR: This is an application by the Prosecution for an

1

extension of time to appeal against the order made in the

Magistrates Court.

That order was made on the 26th of September last year. The

Justices' Act allows a month for an appeal to be filed. That	10
time passed because of a mistake in the office of the Director
of Public Prosecutions. It seems that an officer had been
responsible for the matter but left and there was an
inefficient handover to the new officer who became responsible
for it, and the matter was not attended to during that time.	20
Then, when it was realised that it had to be filed, that was done on the 13th of November 2007 but because of another mistake it was not served on Mr Combo for another six weeks.
The result has been a two and a-half weeks' delay in filing	30
the appropriate application, and a further six weeks delay in serving it. There may have been some slight delay in locating him but not much because he was always at a notified address.
The delay has be taken into context of the order in the	40
Magistrates Court. He was sentenced there for a collection of
traffic offences, especially drink driving, to 17 months'
imprisonment. The complaint that the Prosecution wishes to
make is that the learned Magistrate was wrong in immediately
giving him parole, which was done.	50

So, when he left the Court he became subject to 17 months of supervised parole. Four months has now passed so that 14 months of the parole remains. It was necessary to take into 2 ORDER 60

1

the basic reason why he was before the Court. He was a 28
year old man when he came to the Magistrates Court; of
aboriginal background and with a substantial criminal history
relating to use of motor vehicles and some offences of

dishonesty. He had served terms of imprisonment and in	10
particular he was sentenced to six years' imprisonment with a recommendation for parole after two years, for dangerous driving causing death, committed in early 1999.
He had other convictions after that and before the immediate	20
ones which bring us here. He was convicted of drink-driving again and his driver's licence was disqualified.
Four different occasions led to his being before the
Magistrates Court this time and he was disqualified during	30
that period. He was charged with a total of 12 offences
before the Magistrates Court on this occasion arising out of
those four different events. In particular, they involved his
being under the influence of liquor to a substantial extent.
The highest was .209 per cent blood alcohol concentration. On	40
one occasion he was speeding at 116 kilometres an hour in a 60 kilometre zone.
On a separate occasion, additionally, he was found sitting in
the driver's seat of a car with a fairly high BAC reading.	50

The Magistrate also had to consider a minor stealing charge of
his failing to pay $40 for some fuel.
Because of the time of the offences he had to be given a term 3 ORDER 60

1

of imprisonment. That was a mandatory consequence of the
drink-driving legislation. The learned Magistrate took into
account a number of things which are summarised in the
Prosecutor's submission here. I should say a transcript is

not immediately available and I have not read it. She	10
referred to the fact that there had been serious offending
over a protracted period of time; that a period of
imprisonment was the only appropriate penalty; that he had
abstained from alcohol, presumably since the offences; that he
had support systems in place which seemed to refer to the fact	20
the was taking advantage of counselling and seeing a health
worker; that he had a serious medical condition, such that the consumption of alcohol was potentially life-threatening. I am told by his counsel here that he certainly suffers from
diabetes and there may be another medical condition that the	30
learned Magistrate was referring to. And finally, she
referred to the fact, in a shorthand way, that if he offended again he would be immediately returned to prison. He has not been returned to prison and as far as we know, and his
instructions to his counsel are that he has not re-offended	40
during the four months or so that has now passed.
I should also record that on his instructions to his counsel
he is seeing his general practitioner who is composing a plan
whereby he might get specialist treatment, especially for his	50

diabetes. It seems that there is some delay because of the
need to attend as a public patient.
Otherwise, there is no particular identified prejudice caused 4 ORDER 60

1

by the passing of time. There is, of course, the prejudice of the kind relied upon by his counsel here. That is to say that he has been before the Court and given a sentence which does
not require him to actually go to prison, and if there is an

appeal he will be subject to a second occasion in which	10
imprisonment is possible or likely, and I accept there is a prejudice of that kind in all such cases like this.
The Prosecution says here that the 17 month head sentence was
appropriate, but that it was quite inappropriate to release	20
the man without serving some period of imprisonment; at least, the submission says, serving one third of that 17 months.
I mention that because it is accepted here that one of the
matters which should be taken into account is the prospect of	30
the appeal being successful. In the limited time that I have had, it seems true to say that the dominant authority remains that of the Court of Appeal in R v Tate [1999] 2 QR 667-668.
There it was observed that a Court would often find it
appropriate to make some provision assessment of the strength	40
of the applicant's appeal and take that into account in
deciding whether it is a fit case with a granting of the
extension which is sought. There has to be identified some
good reason to account for the delay and has to be
consideration overall whether it is in the interest of justice	50

to grant the extension.
It is submitted here, for Mr Combo, that the lengthy head 5 ORDER 60

1

sentence imposed was the sound exercise of sentencing
discretion and that the learned Magistrate referred to all

relevant matters in deciding to grant parole immediately.

As a matter of impression it does seem that the granting of	10
parole was an unusual result bearing in mind Mr Combo's
history of similar offences and the collection of new
offences. It seems surprising that he was not made to serve
an actual period of imprisonment. It is true that his
personal circumstances, including any ill health, have to be	20
taking into account, but for today's purposes, it seems adequate to say that an appeal, if allowed, would have real prospects of success.
In the absence of any particular identifiable prejudice, and I	30
hasten to say that while a disturbance of the plans made by his general practitioner may be of some inconvenience, I do not think they amount to any real prejudice, the discretion here should be exercised in favour of the applicant; that is
to say there should be an extension of time to enable the	40
appeal to proceed. After all, all this Court is doing today is considering that issue and not finding whether or not he should now be sent to prison.
So there will be an order that:	50

1.    The time for filing the notice of appeal be extended to 13th November 2007.

6 ORDER 60

...

HIS HONOUR: The appeal would be heard on blank date.

...	10
HIS HONOUR: So it will be directed that the appeal be heard on, if that be so, whatever that date is.
...	20

-----

30

40

50

7 ORDER 60