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Addo v Senior Constable Jacovos

Addo v Senior Constable Jacovos

Case [2016] QDC 271 4 November 2016

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DISTRICT COURT OF QUEENSLAND

CITATION:

Addo v Senior Constable Jacovos [2016] QDC 271

PARTIES:

RONALD PETER ADDO
(appellant)

v

SENIOR CONSTABLE JACOVOS
(respondent)

FILE NO.:

APPEAL NO. 129/16

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

4 November 2016

DELIVERED AT:

Cairns

HEARING DATE:

28 October 2016

JUDGE:

Morzone QC DCJ

ORDERS:

1.     Appeal allowed.

2.     Set aside the sentence and orders made in the Magistrates Court on 5 July 2016 and in lieu order as follows:

a.    For the offence of obstruct police - the appellant is sentenced to 3 months’ imprisonment;

b.    For the offence of serious assault police – the appellant is sentenced to 12 months’ imprisonment;

c.     Those periods of imprisonment are to be served concurrently with each other, but cumulatively upon the term of imprisonment imposed on 14 August 2013;

d.    A parole release date is fixed at 19 December 2016.

CATCHWORDS:

CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 (Qld) – conviction – Serious Assault Police – mode of hearing of appeal – error of law – whether sentence manifestly excessive –whether sentences requires to be served cumulatively or concurrently – whether parole eligibility date or release date applicable – totality principle.

Legislation
Justices Act 1886 (Qld), ss 222 & 223
Penalties and Sentences Act 1992 (Qld), ss 156A, 160A, 160B & 160
Corrective Services Act 2006 (Qld), ss 201, 202, 209, 214 & 215

Cases

White v Commissioner of Police [2014] QCA 121

House v The King (1936) 55 CLR 499

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Norbis v Norbis (1986) 161 CLR 513

AB v R (1999) 198 CLR 111

R v Conway [2005] QCA 194
R v Brown [2013] QCA 185
Veen v The Queen [No.2] (1988) 164 CLR 465

R v Murray [2014] QCA 250

R v Shillingsworth [2002] 1 Qd R 527

R v Smith [2015] 1 Qd R 323; [2013] QCA 397
Mill v The Queen, [1988] 166 CLR 59
The Queen v Crofts [1999] 1 Qd R 386

The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 2006
The Queen v Kendrick [2015] QCA 27

The Queen v Baker [2011] QCA 104

COUNSEL:
M. Dalton for the appellant
B. Mantan for the respondent

SOLICITORS: Cutherbertson & Co. Lawyers for the appellant
The Office of Director of Public Prosecutions for the respondent

On 5 July 2016 the appellant was convicted, after a summary trial in the Magistrates Court held at Cairns, of serious assault police committed on 10 January 2016. He otherwise pleaded guilty to an offence of obstruct police committed on 10 January 2016.

The appellant was sentenced to 3 months’ imprisonment for obstruct police and 18 months’ imprisonment for serious assault police to be served concurrently with each other, but cumulatively upon an existing sentence, to commence on 28 November 2016. A parole eligibility date was fixed at 28 May 2017.

The appellant now appeals his sentence.

Both parties…

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.

Continue reading Addo v Senior Constable Jacovos

Details

AGLC: Addo v Senior Constable Jacovos [2016] QDC 271
Case: [2016] QDC 271
Decision Date: 4 November 2016

CaseChat Overview and Summary

The appellant, Addo, appealed against his conviction and sentence in the Magistrates Court, which had found him guilty of obstructing police and seriously assaulting police. The appeal was heard in the District Court of Queensland, presided over by Judge Murphy. The appeal was based on the argument that the sentence was manifestly excessive, that the sentences should have been ordered to be served concurrently rather than cumulatively, and that the parole eligibility date was not properly applied.

The legal issues before the court were whether the sentence was manifestly excessive, whether the sentences should have been ordered to be served concurrently rather than cumulatively, and whether the parole eligibility date was correctly applied. The court had to consider the totality principle, which requires that the overall punishment should not be disproportionate to the crimes committed. The appellant argued that the sentence was manifestly excessive, and that the sentences should have been ordered to be served concurrently rather than cumulatively. The court also had to consider whether the parole eligibility date was correctly applied.

The court found that the sentence was manifestly excessive and that the sentences should have been ordered to be served concurrently rather than cumulatively. The court found that the totality principle was not properly applied, and that the appellant's sentence was disproportionate to the crimes committed. The court found that the sentences should have been ordered to be served concurrently rather than cumulatively, and that the parole eligibility date was not properly applied. The court allowed the appeal and set aside the sentence and orders made in the Magistrates Court. In lieu, the court ordered that the appellant be sentenced to 3 months’ imprisonment for the offence of obstruct police, 12 months’ imprisonment for the offence of serious assault police, that those periods of imprisonment be served concurrently with each other, but cumulatively upon the term of imprisonment imposed on 14 August 2013, and that a parole release date be fixed at 19 December 2016.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the sentence and orders made in the Magistrates Court on 5 July 2016 and in lieu order as follows:

a. For the offence of obstruct police - the appellant is sentenced to 3 months’ imprisonment;

b. For the offence of serious assault police – the appellant is sentenced to 12 months’ imprisonment;

c. Those periods of imprisonment are to be served concurrently with each other, but cumulatively upon the term of imprisonment imposed on 14 August 2013;

d. A parole release date is fixed at 19 December 2016.

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.

Citations

AGLC Citation

Addo v Senior Constable Jacovos [2016] QDC 271

Most Recent Citation

DYN v Queensland Police Service [2020] QDC 47

Cases citing this decision · 3 of 3 shown

Robinson v Commissioner of Police
[2023] QDC 93 Para 6

…nt appellant also had a court ordered parole order cancelled during what the respondent says was his period of imprisonment, see [9] (c) above). [9][2016] QDC 271. [10]At [58]-[59] [11]Exhibit (b) to Ms Nash’s affidavit Hall…
DYN v Queensland Police Service
[2020] QDC 47 Para 1

…e learned magistrate had rightly set a parole release date in the first instance, only to be lead into error on the reopening. [7] Cf. Addo v Jacovos [2016] QDC 271 at [56] – [58].…
Roma Transport Services Pty Ltd v Radial Drilling Pty Ltd
[2016] QMC 25

…at 504-505 [15] : [15] Cited by the District Court in appeals under section 222 Justices Act 1886 , for example Addo v Senior Constable Jacovos [2016] QDC 271.…

View all 3 citing cases →

Cases cited in this decision · 17 of 17 shown

R v Kendrick
[2015] QCA 27 Para 1

…scretion.[36] [36] The Queen v Baker [2011] QCA 104 at [47] Atkinson J (with whom the President and Lyons J agreed), affirmed by The Queen v Kendrick [2015] QCA 27 at [54].…
R v Murray
[2014] QCA 250 Para 1

…t does not mean that sentences ought be necessarily higher or proportionally increased.[22] [21] Criminal Law Amendment Act 2012. [22] R v Murray [2014] QCA 250 at [16] per Fraser JA.…
R v Margaritis; Ex parte
[2014] QCA 219

…[37] [2014] QCA 219, per Muir JA (PD McMurdo J and P Lyons J agreed).…
R v Benson
[2014] QCA 188 Para 1

…R v Benson [2014] QCA 188 involved an offence of serious assault police causing bodily harm. The 42 year old applicant punched a police officer to his left eye, tried to choke him, gouged his eyeball and bit his leg. The officer suffered injuries including a bite mark to the upper left thigh (no break to the skin…
White v Commissioner of Police
[2014] QCA 121 Para 1

…uments advanced. It is a review of the record of the proceedings below, rather than a completely fresh hearing.[4] [4] White v Commissioner of Police [2014] QCA 121 at [8] per Morrison JA (Muir JA & Atkinson J agreed).…
R v Smith
[2013] QCA 397 Para 1

…lled when the magistrate re-sentenced the appellant on 5 July 2016 for the offences subject of this appeal.[29] [29] Cf. R v Smith [2015] 1 Qd R 323; [2013] QCA 397.…
R v Brown
[2013] QCA 185 Para 1

…unting for totality. It is submitted that the appropriate starting point was 12 months’ imprisonment.[9] [9] R v Conway [2005] QCA 194; R v Brown [2013] QCA 185.…
R v Baker
[2011] QCA 104 Para 1

…determine whether a total sentence is just and appropriate bespeaks an error in the exercise of the sentencing discretion.[36] [36] The Queen v Baker [2011] QCA 104 at [47] Atkinson J (with whom the President and Lyons J agreed), affirmed by The Queen v Kendrick [2015] QCA 27 at [54].…
R v Conway
[2005] QCA 194 Para 1

…ice offence prior to discounting for totality. It is submitted that the appropriate starting point was 12 months’ imprisonment.[9] [9] R v Conway [2005] QCA 194; R v Brown [2013] QCA 185.…
AB v The Queen
[1999] HCA 46

…936) 55 CLR 499 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Norbis v Norbis (1986) 161 CLR 513 AB v R (1999) 198 CLR 111 R v Conway [2005] QCA 194 R v Brown [2013] QCA 185 Veen v The Queen [No.2] (1988) 164 CLR 465 R v Murray [2014] QCA 250 R v Shillingsworth [2002] 1 Qd R 527 R v Smith…
Mill v The Queen
[1988] HCA 70

…v Murray [2014] QCA 250 R v Shillingsworth [2002] 1 Qd R 527 R v Smith [2015] 1 Qd R 323; [2013] QCA 397 Mill v The Queen , [1988] 166 CLR 59 The Queen v Crofts [1999] 1 Qd R 386 The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 2006 The Queen v Kendrick [2015] QCA 27 The Queen v Baker [2011] Q…
Veen v The Queen (No 2)
[1988] HCA 14 Para 1

…uch weight as to lead the imposition of a penalty which is disproportionate to the gravity of the instant offence.[11] [10] Veen v The Queen [No.2] (1988) 164 CLR 465 at 472. [11] Veen No. 2 at p 477.…
Norbis v Norbis
[1986] HCA 17 Para 1

…House v The King (1936) 55 CLR 499 at 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-178; Norbis v Norbis (1986) 161 CLR 513 at 517-519.…
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc
[1981] HCA 39 Para 1

…be shown that the discretion miscarried.[7] [7] House v The King (1936) 55 CLR 499 at 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-178; Norbis v Norbis (1986) 161 CLR 513 at 517-519.…
House v R
[1936] HCA 40 Para 1

…discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.[7] [7] House v The King (1936) 55 CLR 499 at 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-178; Norbis v Norbis (1986) 161 CLR 513 at 517-519.…
[2014] QCA 2006
[2014] QCA 2006

…397 Mill v The Queen , [1988] 166 CLR 59 The Queen v Crofts [1999] 1 Qd R 386 The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 2006 The Queen v Kendrick [2015] QCA 27 The Queen v Baker [2011] QCA 104 COUNSEL: M. Dalton for the appellant B. Mantan for the respondent SOLICITORS: Cutherbertson & Co. L…
House v The King
63 WN 176 Para 1

…way in which the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.[7] [7] House v The King (1936) 55 CLR 499 at 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-178; Norbis v Norbis (1986) 161 CLR 513 at 51…

Legislation cited in this decision · 5

Corrective Services Act 2006 (Qld)
200(a)(i), 201, 202, 209, 214 6 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
156A, 160A, 160B 4 mentions
Justices Act 1886 (Qld)
222 2 mentions (from Para 1)
Corrective Services Act 2000 (Qld)
1 mention
Criminal Law Amendment Act 2012 (Qld)
1 mention (from Para 1)

CITATION:	Addo v Senior Constable Jacovos [2016] QDC 271
PARTIES:	RONALD PETER ADDO (appellant) v SENIOR CONSTABLE JACOVOS (respondent)
FILE NO.:	APPEAL NO. 129/16
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Cairns
DELIVERED ON:	4 November 2016
DELIVERED AT:	Cairns
HEARING DATE:	28 October 2016
JUDGE:	Morzone QC DCJ
ORDERS:	1. Appeal allowed. 2. Set aside the sentence and orders made in the Magistrates Court on 5 July 2016 and in lieu order as follows: a. For the offence of obstruct police - the appellant is sentenced to 3 months’ imprisonment; b. For the offence of serious assault police – the appellant is sentenced to 12 months’ imprisonment; c. Those periods of imprisonment are to be served concurrently with each other, but cumulatively upon the term of imprisonment imposed on 14 August 2013; d. A parole release date is fixed at 19 December 2016.