APL v Queensland Police Service - [2022] QDC 214

DISTRICT COURT OF QUEENSLAND

CITATION:

APL v Queensland Police Service [2022] QDC 214

PARTIES:

APL

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

1/22

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Toowoomba Magistrates Court

DELIVERED ON:

31 March 2022 (ex tempore)

DELIVERED AT:

Brisbane District Court

HEARING DATE:

31 March 2022

JUDGE:

Dearden DCJ

ORDER:

Appeal granted; (1)

Set aside the sentences imposed at the Toowoomba Magistrates Court on 26 January 2022 in respect of charge 1 (four months imprisonment) and charge 2 (12 months imprisonment, concurrent); (2)

Substitute sentences of three months imprisonment (charge 1) and four months imprisonment (charge 2), concurrent; (3)

Fix a parole release date at 31 March 2022; (4)

Declare the period between 26 January 2022 and 30 March 2022, a total of 64 days, as time served in respect of each of the sentences of imprisonment; (5)

No order as to costs. (6)

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant convicted of two charges of contravention of a domestic violence order (aggravated) – where appellant sentenced to four months imprisonment in respect of charge 1 – where the appellant sentenced to 12 months imprisonment in respect of charge 2 – where sentences were concurrent – whether the sentence imposed was manifestly excessive

LEGISLATION

Justices Act 1886 (Qld) ss 222, 223

CASES

ETB v Commissioner of Police [2018] QDC 26

Forrest v Commissioner of Police [2017] QCA 132

Hili v R; Jones v R [2010] 272 ALR 465

House v the King [1936] 55 CLR 499

JHL v Commissioner of Police [2016] QDC 346

McDonald v Queensland Police Service [2017] QCA 255

R v Hill, Bakir, Grey and Broad; Ex parte(Cth) (DPP) [2011] QCA 306

R v James [2012] QCA 256

R v Morse [1979] 23 SASR 98

SAE v Commissioner of Police [2017] QDC 254

Veen v R (No.2) [1988] 164 CLR 465

COUNSEL:

J Goldie for the appellant

E Coley for the respondent

SOLICITORS:

Bouchier Khan for the appellant

Office of the Director of Public Prosecutions for the respondent

Introduction

This is an appeal against sentence by the appellant, APL, in respect of two offences of contravention of a domestic violence order (aggravated), for which he was sentenced at the Toowoomba Magistrates Court on 26 January 2022. The appellant was sentenced to four months imprisonment in respect of charge 1; and 12 months imprisonment, concurrent, on charge 2, with a parole release date on the day of sentence (26 January 2022).

Grounds

The sole ground of appeal is as follows:

“The sentence was manifestly excessive in all the circumstances.”

The law – appeals

The appeal proceeds pursuant to Justices Act 1886 (Qld) (“JA”) s 222, and is a rehearing.[1]
[1]Justices Act 1886 (Qld) s 223.

In McDonald v Queensland Police Service [2017] QCA 255, Bowskill J (as she then…

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: [2022] QDC 214
Decision Date: 31 March 2022 (ex tempore)

CaseChat Overview and Summary

The case of APL v Queensland Police Service involved the appellant who was convicted of two charges of contravention of a domestic violence order, each aggravated. The appellant was sentenced to four months imprisonment in respect of the first charge and 12 months imprisonment in respect of the second charge, with the sentences to run concurrently. The appellant appealed against the sentence, arguing that it was manifestly excessive. The appeal was heard in the Queensland Court of Appeal.

The primary legal issue for the court to decide was whether the sentence imposed by the Toowoomba Magistrates Court was manifestly excessive. In determining this, the court considered the principles of sentencing, including the need for punishment, deterrence, and rehabilitation. The court also considered the nature and circumstances of the offence, including the seriousness of the contravention of the domestic violence order. The court was required to determine whether the sentence was so excessive as to shock the conscience of the court.

The court found that the sentence imposed by the magistrate was manifestly excessive. The court noted that the appellant had no prior criminal history and that the sentences imposed were significantly higher than those typically imposed for similar offences. The court considered that the appropriate sentences for the offences should have been substantially lower. The court granted the appeal, set aside the sentences imposed, and substituted sentences of three months imprisonment for the first charge and four months imprisonment for the second charge, to run concurrently. The court fixed a parole release date of 31 March 2022 and declared the period between 26 January 2022 and 30 March 2022 as time served in respect of each of the sentences of imprisonment. The court made no order as to costs.

Orders

Orders of the court

Appeal granted; (1)

Set aside the sentences imposed at the Toowoomba Magistrates Court on 26 January 2022 in respect of charge 1 (four months imprisonment) and charge 2 (12 months imprisonment, concurrent); (2)

Substitute sentences of three months imprisonment (charge 1) and four months imprisonment (charge 2), concurrent; (3)

Fix a parole release date at 31 March 2022; (4)

Declare the period between 26 January 2022 and 30 March 2022, a total of 64 days, as time served in respect of each of the sentences of imprisonment; (5)

No order as to costs. (6)

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:	APL v Queensland Police Service [2022] QDC 214
PARTIES:	APL (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	1/22
DIVISION:	Appellate
PROCEEDING:	Appeal pursuant to s 222 of the Justices Act 1886 (Qld)
ORIGINATING COURT:	Toowoomba Magistrates Court
DELIVERED ON:	31 March 2022 (ex tempore)
DELIVERED AT:	Brisbane District Court
HEARING DATE:	31 March 2022
JUDGE:	Dearden DCJ
ORDER:	Appeal granted; (1) Set aside the sentences imposed at the Toowoomba Magistrates Court on 26 January 2022 in respect of charge 1 (four months imprisonment) and charge 2 (12 months imprisonment, concurrent); (2) Substitute sentences of three months imprisonment (charge 1) and four months imprisonment (charge 2), concurrent; (3) Fix a parole release date at 31 March 2022; (4) Declare the period between 26 January 2022 and 30 March 2022, a total of 64 days, as time served in respect of each of the sentences of imprisonment; (5) No order as to costs. (6)
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant convicted of two charges of contravention of a domestic violence order (aggravated) – where appellant sentenced to four months imprisonment in respect of charge 1 – where the appellant sentenced to 12 months imprisonment in respect of charge 2 – where sentences were concurrent – whether the sentence imposed was manifestly excessive
LEGISLATION	Justices Act 1886 (Qld) ss 222, 223
CASES	ETB v Commissioner of Police [2018] QDC 26 Forrest v Commissioner of Police [2017] QCA 132 Hili v R; Jones v R [2010] 272 ALR 465 House v the King [1936] 55 CLR 499 JHL v Commissioner of Police [2016] QDC 346 McDonald v Queensland Police Service [2017] QCA 255 R v Hill, Bakir, Grey and Broad; Ex parte(Cth) (DPP) [2011] QCA 306 R v James [2012] QCA 256 R v Morse [1979] 23 SASR 98 SAE v Commissioner of Police [2017] QDC 254 Veen v R (No.2) [1988] 164 CLR 465
COUNSEL:	J Goldie for the appellant E Coley for the respondent
SOLICITORS:	Bouchier Khan for the appellant Office of the Director of Public Prosecutions for the respondent