[2024] QCA 107

COURT OF APPEAL

BOWSKILL CJ
BOND JA
BROWN AJA

CA No 288 of 2022
DC No 2916 of 2020
DC No 2918 of 2020
DC No  3079 of 2020
DC No 3353 of 2020

PALMER, Stuart William	Applicant

v

COMMISSIONER OF POLICE	Respondent

BRISBANE

WEDNESDAY, 5 JUNE 2024

JUDGMENT

BOWSKILL CJ:  Justice Bond will deliver his reasons first.
BOND JA:  The applicant represents himself and seeks an extension of time for bringing an application for leave to appeal under s 118(3) of the District Court of Queensland Act 1967 from four decisions made by a judge of the District Court.
Unfortunately, the application filed by the applicant does not express any intelligible ground on which the application should be granted.
The first three decisions made by the primary judge concern three separate appeals (numbers 2916/20, 3079/20, and 3353/20) all of which purported to be appeals pursuant to s 222 of the Justices Act 1886 against orders made by a Magistrate refusing applications for bail.
The primary judge dismissed each appeal because he found that s 222 did not confer jurisdiction on the District Court to consider an appeal from a refusal of bail by a Magistrate.  Section 222 confers an appeal right in respect of “an order made ... in a summary way on a complaint for an offence or breach of duty.”  An order refusing bail is not such an order.  The primary judge was plainly right to reach the conclusion that he had no jurisdiction to hear an appeal from such an order.  Any appeal from the primary judge’s decisions would be futile.  Insofar as the application before this Court relates to those decisions, it must be refused.
The fourth decision made by the primary judge concerned appeal 2918/20, which was an appeal against a sentence imposed in the Magistrates Court at Sandgate on 30 September 2020.
Before the Magistrate, the applicant had pleaded guilty in respect of 11 charges as follows:
(a)	Receiving tainted property (namely, a debit MasterCard) on a date unknown between 26 January 2020 and 29 January 2020;
(b)	Fraud on 28 January 2020 (namely, that he dishonestly applied the debit MasterCard to his own use in two transactions totalling $196.96);
(c)	Receiving tainted property (namely, a wallet containing credit cards) on 3 February 2020;
(d)	Eight charges of fraud on 3 February 2020 (which involved dishonest use of the credit cards the subject of the receiving charge for obtaining groceries, alcohol, tobacco products, pharmaceutical products in transactions totalling $532.41).
The applicant had only recently been released from serving 15 years of a 17-year custodial sentence for attempted murder.  He represented himself before the Magistrate.  The prosecution tendered a criminal history and a pre‑sentence custody certificate.  The prosecution suggested that the certificate showed the applicant had served 171 days declarable time, and submitted that the applicant had “probably served his time”.  The prosecution advised the Magistrate that no restitution was formally sought in relation to any of the fraud charges.
For his part, the applicant referred to a report by a Dr Foxcroft, which the Magistrate had an opportunity to read.  (I observe that that report diagnosed the applicant as suffering from a significant PTSD and secondary polysubstance abuse disorder following an incident at a youth detention centre in 1990: see R v Palmer [2023] QCA 118 at [9].)  The applicant drew the Magistrate’s attention to the circumstances of his abuse as a younger person dealt with in that report.  The applicant asked the Magistrate “Does your Honour have to hand the Daryl Dealehr material which sets out chronology of what I’ve been up to in the last 17 years in jail?”.  The Magistrate said that he had not, but remarked “I don’t think that will help me today, given that where – given where we’re at now”.  The applicant did not make any response.  In particular, he neither made a complaint, nor did he seek an adjournment to have an opportunity to put that material before the Magistrate.  The applicant told the Magistrate that he took full responsibility for his mistake.  He said he offered restitution, to which the Magistrate responded that none had been sought.
The Magistrate sentenced the appellant to 171 days imprisonment, and declared 171 days pre‑sentence custody as time served.  His sentencing remarks were to this effect:
“I’ve taken into account today all of those matters that have been placed before me by the prosecutor and from you on your own behalf.  Of course your pleas of guilty, mostly early, the previous criminal history that you have, your personal circumstances, and learnt about those.  I’m not going to reiterate them in open court, but there is that diagnosis from Dr Foxcroft, who has seen you in very recent times, the remorse that you have expressed, not only by your plea of guilty, but otherwise today.  In all of those circumstances, whilst a sentence of imprisonment is appropriate for these matters, you have served 171 days, which is adequate given the totality of this offending.  Indeed, whilst there may have been, very likely were, losses, at least to the relevant banks, they are not huge and they were not sought as restitution.  In relation to each of the matters that you’ve pleaded guilty to today, you’re convicted and sentenced to 171 days imprisonment.  I declare the time already served in accordance with the pre‑sentence custody certificate, so at least so far as these matters are all now concerned, you have done your time.”
The applicant appealed his sentence.  The grounds of appeal before the primary judge were set out in the notice of appeal dated 14 October 2020, as follows:
“(a)	[The Magistrate] erred in not implementing reduction due to early plea 11 March 2020 and 18 March 2020 respectively, and;
(b)	Manifestly excessive sentence given the circumstances of said criminality.”
The primary judge heard the appeal on 16 April 2021.  The primary judge had previously received written submissions from both the applicant and the respondent.  At the hearing, the applicant was called, but there was no appearance.  The transcript of the hearing records the primary judge observing that the applicant had appeared before him on 8 April 2021, that he had been told the appeal was to be heard on 16 April 2021, and the applicant had assured the judge personally that he would be present, assuming he was granted bail.  The primary judge told him that if he was not granted bail, a video link would be set up.  The primary judge ascertained that he had been granted bail.  Accordingly, the primary judge proceeded to determine the appeal without receiving oral submissions from the applicant.
In an ex tempore judgment given on 16 April 2021, the primary judge considered and rejected each of the grounds of appeal.  He also considered and rejected the possibility that by proceeding without adjourning to enable reception of the foreshadowed “Daryl Dealehr material”, the Magistrate had failed to accord the applicant procedural fairness.  The primary judge then turned to the question of manifest excess, adverting to the matters to which I have earlier referred and finding:
“The point is this, that a sentence which required the service of 171 days cannot, in my view, and consistent with the submissions of the respondent, be said to be manifestly excessive.  If anything, in my view, the appellant had a favour done by the Magistrate by not, for example, imposing a head sentence which was then suspended and which, given his history of offending whilst incarcerated, may have raised the possibility of breaching the suspended sentence.  It be can accepted that a lesser sentence might have been imposed, but one can readily understand why the Magistrate took the view she did.  He had served 171 days, and regardless of what sentence she imposed, that fact would not change.
In all of the circumstances, given the significant number of offences and the legitimate approach taken by the Magistrate, I consider the sentence cannot be shown to be manifestly excessive.  As I’ve already recorded, I do not consider that there has been an error in the failure to adjourn.  And in those circumstances, my order is that the appeal numbered 2918 of 20 is dismissed.  I should also note that Mr Palmer has not attended to prosecute the appeal, and I had made orders abridging the time for service of the notice, which I considered to be in the interest of justice at the time.”
The applicant now seeks an extension of time within which to seek leave to appeal from the primary judge dismissing his appeal against sentence.  In R v Tait [1999] 2 Qd R 667; [1998] QCA 304, this Court suggested that the Court should examine whether there is good reason to account for the delay, and also the broader question, whether it is in the interest of justice to grant the extension.  As the application for extension of time is to allow an application which seeks leave to appeal, reference should also be had to McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, and to Commissioner of Police v Antoniolli [2021] QCA 237, where the considerations relevant to a grant of leave are examined.
In the present case, the principal considerations which are relevant to the exercise of the Court’s discretion are:
(a)	The length of the extension of time sought and the explanation for the delay;
(b)	Whether an appeal is necessary to correct a substantial injustice to the applicant; and
(c)	Whether there is a reasonable argument that there is an error to be corrected on appeal.
As to these considerations, I note first that the primary judge’s reasons were published on 16 April 2021, and the application for an extension of time was not filed until 1 December 2022, almost 20 months later.  The applicant has not placed any evidence before the Court explaining the delay.  He submitted from the bar table that it was to do with his criminal record, the timing of the circumstances of being released and re‑incarcerated, and the difficulties he had with communications with the Court.  That is not an adequate explanation for the extent of the delay.
The lack of evidence just mentioned is not necessarily fatal to the present application.  The discretion to be exercised must then turn to the broader questions informing whether it is in the interest of justice to grant the extension, did the primary judge err when he proceeded to hear the appeal in the absence of the applicant?  If he did, does it matter?  Was the applicant denied an opportunity to present a reasonable argument in favour of the appeal?  An apparently strong case on either of these questions might go a long way towards persuading the Court to grant leave.
The primary judge did make one error.  As to this, I observe:
(a)	Section 224 of the Justices Act empowers a District Court judge on the application of a party, or on the judge’s own initiative, and amongst other things, to “make orders and give directions about service of any notice and about any procedure” (s 224 (1)(b)) and to “adjourn the appeal for the time decided by the judge” (s 224(1)(d)).
(b)	However, s 224(3) imposes a constraint on the exercise of powers on the judge’s own initiative when it provides:
“If a District Court judge is exercising a power under this section on the judge’s own initiative, then, if the parties are not before the court, the judge must direct the parties to attend the court.”
(c)	Section 229(3) of the Justices Act provides:
“Also, if the appellant fails to appear on a day the appeal is to be heard, the judge may strike out the appeal on proof that notice of the hearing informing the appellant the appeal may be struck out if the appellant fails to appear was sent to the appellant’s address for service at least 10 days before the date of the hearing.”
(d)	Although the primary judge knew that on 8 April 2021 the applicant had been given notice of the hearing on 16 April 2021, there was no proof before the primary judge that the applicant had been given the notice referred to in s 229(3) within time.  Indeed, it seems clear that he had not.  Accordingly, the primary judge had no power to make an order striking out the appeal.
(e)	On his own initiative, the primary judge did purport to make an order abridging the time within which the notice could be sent, but he did that without providing notice to the applicant that he was considering making an order abridging time, and obviously without hearing from the applicant as to whether such an order should be made.  Accordingly, his error was that he failed to accord the applicant procedural fairness in relation to the abridgment of time and he acted on his own initiative without complying with s 224(3).  An abridgment order made in such circumstances could not operate validly to confer power to strike out pursuant to s 229(3) of the Justices Act.
(f)	However, the primary judge does not purport to exercise power to strike out the appeal.  Rather, he decided it on its merits.  Accordingly, I consider this error was not material.
Putting the abridgment error to one side, was it an error to proceed to consider the merits of the appeal in the absence of an appearance by or on behalf of the applicant?  The primary judge had the benefit of two written submissions from the applicant (filed 13 November 2020 and 7 December 2020) and one from the respondent (filed 15 February 2021).  Further, the primary judge recorded that the applicant was notified of the appeal in Court before the primary judge on 8 April 2021, and that the applicant told the primary judge that he would be present.  The applicant failed to appear and the judge proceeded to determine the appeal on the merits, despite his absence.  Pursuant to s 224A of the Justices Act 1886, the applicant had a right to be present on the hearing of the appeal.  In some circumstances, denial of that right might constitute appealable error.  But the right is not absolute.  In the first place, an appeal can take place and lead to a District Court passing its sentence even though the appellant is not present: s 224A(4).  But, second, the right could hardly be regarded as having been denied if an applicant, having notice of the time and place where he could exercise the right, simply chose not to do so.  The applicant has not placed any evidence before the Court explaining why he was not present at the appointed hearing date, of which he had notice.  In any event, if circumstances beyond the applicant’s control had, in fact, prevented him from being present on the appointed date, then he could have made an application to the primary judge to exercise power pursuant to s 224 to set aside the order which he had made and to hear his appeal.  But the applicant did not do that.  I am not persuaded that the primary judge erred in proceeding to consider the merits of the appeal despite the applicant’s failure to appear.
But even if there had been some error in so proceeding, it is relevant on an application like the present to consider the question whether the error mattered.  The applicant has not persuaded me that there is a reasonable argument of sentencing error by the Magistrate, or appellate error by the primary judge, in disposing of the merits of the appeal.  At the hearing today:
(a)	He first addressed the question whether there was some specific error in relation to the way in which the Magistrate dealt with the question of his guilty pleas.  There was a confused submission that he should have been sentenced by the Magistrate at an earlier time.  That is not a basis to challenge the sentence which was given.  That then changed into an argument that he should have been given greater discount by reference to the fact of the guilty pleas.  There was no basis for argument of specific error because the Magistrate had specifically taken into account the guilty pleas.  Nor was there any basis to infer error because the sentence was manifestly excessive.
(b)	So far as the primary judge’s actual decision was concerned, the applicant’s principal complaint was that he was not allowed to appear.  I have dealt with that point already.  His second point was that the primary judge failed to identify the error which was made by the Magistrate.  There is no merit in that complaint.  His third complaint, advanced for the first time orally on appeal, was a contention that the primary judge was biased against him.  That argument was not advanced in his application and it is not appropriate to deal with it.
The result is that I would make the following order:
The application for an extension of the time within which to bring an application for leave to appeal from the orders made by the primary judge in District Court appeals 2916/20, 2918/20, 3079/20, and 3353/20, must be refused.
BOWSKILL CJ:  I agree with the reasons and the order proposed by Justice Bond.
BROWN AJA:  I also agree with the reasons and the order proposed by Justice Bond.
BOWSKILL CJ:  So the order of the Court is that the application for an extension of time within which to bring an application for leave to appeal from the orders made by the primary judge in District Court appeals numbered 2916 of 20, 2918 of 20, 3079 of 20 and 3353 of 20, are refused.
Thank you.  Adjourn the Court.