Today, Owens & Associates, instructing Mr. Braddon Hughes QC and Mr. Daniel Grippi, were successful in a section 222 appeal to the Southport District Court from the Coolangatta Magistrates Court.
Our client, at first instance in the Coolangatta Magistrates Court, not being represented by our office, was sentenced to a head sentence of 21 months imprisonment with a parole release date after serving 8 months in custody. This sentence related to an offence of assault occasioning bodily harm and wilful damage.
After a few weeks of being in custody, our office was contacted by a devastated family member to represent their relative. Our office promptly filed an appeal and applied for appeal bail in the District Court pending the appeal being heard. This was successful and our client only served 46 days of the sentence before being released.
Post our client’s release, we advised him to conduct several matters including re-gaining employment and attending a psychologist.
Our office and Counsel then filed our outline of submission coupled with 7 affidavits from various people to be adduced as evidence at the appeal to reflect his changes and efforts whilst on appeal bail.
This matter was heard today after several months and following oral argument, the appeal was allowed, the sentence was set aside, and our client was re-sentenced to 18 months imprisonment wholly suspended after the time already served (46 days).
This was an outstanding result which allowed our client to remain in the community, return to New South Wales where he resided (with no parole conditions as per the original order) and return to employment.
Whilst this was an outstanding result, this matter reminds us of how crucial getting proper representation at first instance is and how it can significantly change the outcome.
If our client received proper advice and guidance at first instance, the matter would have been more properly prepared with adequate material tendered to the Court. What this may have done is:
- Allowed for a stronger argument before the Magistrate and our client may have received a non-custodial sentence at first instance. This would have avoided 46 days in custody and the added expense of legal fees for an appeal; or
- If, being unable to convince a Magistrate, allowed for a stronger appeal.
What is meant by point 2 is that, on appeal, it is not a right to provide further material in support of mitigation. An appeal is not a “second go”, it is a review of the decision and whether there were any errors or issues with the first hearing.
If material was able to be gathered and could have been produced at a sentence at first instance, but was not, the starting point is that this material will not be allowed to be relied upon on appeal (of course there are some exceptions and occasions is can be adduced on appeal).
What this means is that most appeals are dealt on the basis of the material that was tendered at first instance before the Magistrate or Judge. Therefore, it is so important to put your best foot forward on the first go. Yes, sometimes Magistrates and Judges get it wrong and lawyers arguments are ignored, however, when you then appeal that decision, you want to ensure all material you want to rely upon was already tendered so you can rely on them on appeal.
If you feel uncomfortable with your current representation, do not have representation or feel you wish to review a finalised matter contact our office immediately for a free initial consultation.
Ph: 0477 007 224 (24hrs)
Email: Andrew@owensandassociates.com.au
- Obstructing police officer;
- Stealing;
- Possessing dangerous drugs;
- Possess utensils; and
- Breach of bail condition.
While the charges being finalised were certainly not on the more serious end of the scale, the circumstances surrounding the offences and the process of getting to this point, displays an important feature in engaging a lawyer - PREPARATION.
While advocacy is an essential and vital role to be played, it is the behind-the-scenes work that makes engaging a criminal lawyer so valuable. While there are certainly cases that, if the Prosecutions do not discontinue the charges, need to go to trial, a significant amount of matters can be resolved through negotiations. Avoiding the need for a trial through successful negotiations does four (4) main things:
1. Reduces and controls risk;
2. Reduces the time in which matters are before the Court;
3. Reduces your legal fees; and
4. Reduces your stress.
All these factors are important when it comes to you getting on with your life!
Our client was originally charged with the possession of drugs and possess utensil offences in September 2018, along with a burglary offence and unlawful use of a motor vehicle. She was linked to these offences through DNA and fingerprints. Our client was on parole at this time however, it was negotiated with the arresting officers that she be released on watch house bail given her age and the nature of the charges.
Our office made submissions to Police Prosecutions promptly seeking the withdrawal of the burglary and unlawful use offences relying on case authority.
In January 2019, our client, while still on parole (ending in February 2019) and on bail for the September 2018 offences, was charged with a serious assault of a police officer (under the Criminal Code ) and stealing.
Our client was held overnight and faced court the following morning. Our office was contacted and appeared in court having prepared a draft order to be presented to the court with appropriate conditions. Despite our client being in a "show cause" position and on parole, our office was able to convince the Magistrate to release our client on bail as per the conditions prepared.
Our office promptly made a submission to Police Prosecutions seeking the withdrawal of the serious assault offence and for it to be replaced with an obstruct police offence under the Police Powers and Responsibilities Act after body worn camera footage was obtained which contradicted the version outlined in the Police QP9.
Shortly later, our client was charge with a breach of bail offence (different to the one finalised above) for attending a location she was prohibited from attending. Our client was fortunate enough to be given a notice to appear for this offence.
Our office made a submission to Police Prosecutions seeking the withdrawal of the breach of bail offence.
Lastly, our client was charge with a breach of bail offence for being late to their curfew address by 30 minutes. Our client was fortunate enough to be given a notice to appear for this offence.
After some delay in responses from Police Prosecutions, all submissions were accepted and the following charges were withdrawn:
- Burglary and commit indictable offence;
- Unlawful use of motor vehicle;
- Breach of bail condition; and
- Serious assault police officer (replaced with obstruct police).
After the submissions were accepted, the matter was finalised as a sentence and the probation order was obtained.
This sentence was still an outstanding result on the final charge list due to our client being on parole at the time of committing the offence and a criminal history including prior breaches of probation and community service orders, and imprisonment for like offences.
Should you find yourself in the unfortunate position of being investigated or charged with an offence, ensure you call our office anytime, 24/7, on 0477 007 224.
