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
