Abberton v Commissioner for Police - [2014] QDC 253

DISTRICT COURT OF QUEENSLAND

CITATION:

Abberton v Commissioner for Police [2014] QDC 253

PARTIES:

JAMES PATRICK ABBERTON

(appellant)

v

COMMISSIONER FOR POLICE

(respondent)

FILE NO/S:

1517/2014

DIVISION:

Appeal

ORIGINATING COURT:

Magistrates Court Roma

DELIVERED ON:

7 November 2014

DELIVERED AT:

Ipswich

HEARING DATE:

3 and 29 October 2014

JUDGE:

Bradley DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant pleaded guilty to one count of driving a motor vehicle under the influence of liquor and another of driving a motor vehicle without due care and attention – where the appellant was sentenced to three months imprisonment and was disqualified from holding or obtaining a driver’s licence for 30 months – whether sentence was manifestly excessive

CRIMINAL LAW – APPEAL AGAINST SENTENCE – where the appellant argued that the solicitor retained at the sentence hearing failed to submit the appellant’s material instructions – whether this failure amounted to a substantial miscarriage of justice

Justices Act 1886 (Qld), s 222, 223

Penalties and Sentences Act 1992 (Qld) s 11(b)

R v Barbaro; R v Zirilli [2014] HCA 2

R v Bedeau [2009] QCA 43

R v Edwards (1996) 90 A Crim R 510

COUNSEL:

J-P Mould of Counsel for the appellant

W Cloake, Solicitor for respondent

SOLICITORS:

No solicitors for the appellant

Office of Queensland Director of Public Prosecutions for the respondent

Background

On 23 April 2014 the appellant pleaded guilty in the Magistrates Court at Roma to two offences, the first of driving a motor vehicle whilst under the influence of liquor at Surat on 23 December 2013 and the second of driving his motor vehicle in the car park of the Royal Hotel, Burrowes Street, Surat without due care and attention on the same date.

For each offence the appellant was sentenced to three months imprisonment with a parole release date of the 22 May 2014 (after one month in prison) and he was disqualified from holding or obtaining a driver’s licence for 30 months. Convictions were recorded. The appellant was released on appeal bail after serving seven days in prison.

Facts

The facts placed before the Magistrate by the police prosecutor regarding the offending were as follows. The appellant had been drinking at the Royal Hotel at Surat for some time and was being served by a barmaid. He conceded that he may have been innocently flirting with the barmaid and he was confronted by the barmaid’s boyfriend and another man. The appellant left the hotel and approached his car which was parked in an undercover area in front of the hotel accommodation units. He was followed by the two men. The boyfriend moved away from the vehicle and stood in the main gravel driveway area whilst his friend argued with the appellant. While the argument was still ongoing, the appellant reversed his car out of the car park into the main driveway area where the boyfriend was standing. The area was dimly lit and the vehicle struck the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] QDC 253
Decision Date: 7 November 2014

CaseChat Overview and Summary

The case of Abberton v Commissioner for Police involved the appellant who pleaded guilty to driving under the influence of liquor and driving without due care and attention. He was sentenced to three months imprisonment and disqualified from holding or obtaining a driver’s licence for 30 months. The appellant contested the sentence, arguing it was manifestly excessive and that there was a substantial miscarriage of justice due to the solicitor's failure to submit his instructions at the sentencing hearing. The appeal was heard by the court which had to determine the validity of the appellant's claims.

The central legal issues were whether the sentence imposed was manifestly excessive and whether the failure of the solicitor to present the appellant's instructions resulted in a substantial miscarriage of justice. The court had to weigh the severity of the appellant's actions against the principle of proportionality in sentencing, and assess whether the solicitor's failure materially impacted the sentence. The court considered the nature of the offences, the appellant's criminal history, and the mitigating factors that might have been presented if the instructions were properly submitted.

The court found that the sentence was not manifestly excessive, taking into account the seriousness of the offences and the need for general deterrence. The court also concluded that the failure of the solicitor to submit the appellant's instructions did not amount to a substantial miscarriage of justice as the outcome would likely have been the same regardless. The court noted that the appellant had not demonstrated how the unpresented instructions would have altered the sentence. Therefore, the appeal was dismissed, and the original sentence was upheld.

The final orders of the court were to dismiss the appellant's appeal, affirming the sentence of three months imprisonment and the disqualification from holding or obtaining a driver’s licence for 30 months.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Abberton v Commissioner for Police [2014] QDC 253
PARTIES:	JAMES PATRICK ABBERTON (appellant) v COMMISSIONER FOR POLICE (respondent)
FILE NO/S:	1517/2014
DIVISION:	Appeal
ORIGINATING COURT:	Magistrates Court Roma
DELIVERED ON:	7 November 2014
DELIVERED AT:	Ipswich
HEARING DATE:	3 and 29 October 2014
JUDGE:	Bradley DCJ
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant pleaded guilty to one count of driving a motor vehicle under the influence of liquor and another of driving a motor vehicle without due care and attention – where the appellant was sentenced to three months imprisonment and was disqualified from holding or obtaining a driver’s licence for 30 months – whether sentence was manifestly excessive CRIMINAL LAW – APPEAL AGAINST SENTENCE – where the appellant argued that the solicitor retained at the sentence hearing failed to submit the appellant’s material instructions – whether this failure amounted to a substantial miscarriage of justice Justices Act 1886 (Qld), s 222, 223 Penalties and Sentences Act 1992 (Qld) s 11(b) R v Barbaro; R v Zirilli [2014] HCA 2 R v Bedeau [2009] QCA 43 R v Edwards (1996) 90 A Crim R 510
COUNSEL:	J-P Mould of Counsel for the appellant W Cloake, Solicitor for respondent
SOLICITORS:	No solicitors for the appellant Office of Queensland Director of Public Prosecutions for the respondent