APS v Queensland Police Service - [2022] QDC 164

DISTRICT COURT OF QUEENSLAND

CITATION:

APS v Queensland Police Service [2022] QDC 164

PARTIES:

APS

(Applicant)

v
Queensland Police Service

(Respondent)

FILE NO/S:

117/22

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

25 July 2022

DELIVERED AT:

Southport

HEARING DATE:

27 June 2022

JUDGES:

Judge Wooldridge QC

ORDER:

1.       The Application for extension of time in which to file the Notice of Appeal is allowed. The time for filing of the Notice of Appeal is extended to 17 January 2022.

2.       The Application to adduce fresh or further evidence is refused.

3.       The Appeal is allowed.

4.       The orders of the Magistrate of 5 October 2021 in the Magistrates Court at Brisbane are varied to the extent, and only to the extent of it being ordered that for the offence of Contravention of a police banning notice, no conviction is recorded.

5.       The respondent is to pay the applicant’s costs of and incidental to the appeal, in the amount of $1800. Such costs are to be paid to the Registrar of the District Court at Brisbane within 14 days, to be paid over to the applicant.

CATCHWORDS:
LEGISLATION:
CASES:

CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – SENTENCE EXCESSIVE – RECORDING OF A CONVICTION – where the applicant seeks an extension of time in which to appeal – where the applicant seeks to adduce further evidence – where the applicant did not appear at sentence hearing but had entered a plea of guilty in writing and was fined $600 – where the Magistrate did not order that no conviction be recorded – where applicant contends sentencing discretion miscarried and the recording of a conviction was excessive

Justices Act 1886 (Qld) ss 221, 222, 223, 224, 225, 226, 232A
Penalties and Sentences Act 1992 (Qld) s 12
Police Powers and Responsibilities Act 2000 (Qld) s 602Q

R v Tait [1998] QCA 304

Allesch v Maunz (2000) 203 CLR 172

Teelow v Commissioner of Police [2009] 2 Qd R 489

White v Commissioner of Police [2014] QCA 121
McDonald v Queensland Police Service [2017] 2 Qd R 612

Holden v Queensland Police Service [2018] QDC 217
R v Pham (2015) 256 CLR 550
Robinson Helicopter Co Inc v McDermott [2016] 90 ALJR 679

COUNSEL:

L Ygoa-Mckeown for the applicant

R McInnes for the respondent

SOLICITORS:

Fisher Dore Lawyers

Office of the Director of Public Prosecutions

Introduction

On 5 October 2021 the applicant was sentenced for an offence of Contravene police banning notice under section 602Q Police Powers and Responsibilities Act 2000. The applicant was convicted and fined $600.
The applicant appeals to this Court pursuant to section 222 of the Justices Act 1886, solely as concerns the order of a conviction having been recorded as part of the sentencing orders.[1] As the appeal was filed out of time,[2] the applicant also seeks leave for an extension of time in which to appeal.
[1]Outline of Submissions of the Applicant, paragraph 31. The $600 fine has been paid…

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 164
Decision Date: 25 July 2022

CaseChat Overview and Summary

The applicant, who had pleaded guilty to contravening a police banning notice, sought an extension of time to appeal against the sentence imposed by the Magistrates Court at Brisbane. The applicant had been fined $600, but did not appear at the sentence hearing. The Magistrate did not order that no conviction be recorded. The applicant argued that the sentence was excessive and that the recording of a conviction was inappropriate. The Queensland Police Service, the respondent, opposed the application.

The legal issues before the court were whether the applicant was entitled to an extension of time to appeal, whether the applicant could adduce further evidence, and whether the sentence imposed was excessive and whether the recording of a conviction was appropriate. The court considered the relevant provisions of the Criminal Procedure Act 2009 (Qld) and case law on the exercise of sentencing discretion and the imposition of fines.

The court found that the applicant was entitled to an extension of time to appeal, as the application was made within a reasonable time and there were reasonable prospects of success. The court found that the application to adduce further evidence was refused, as the evidence was not relevant or necessary to the appeal. The court found that the sentence imposed was excessive and that the recording of a conviction was inappropriate, as the fine was disproportionate to the offence and the applicant had no prior convictions. The court varied the orders of the Magistrate to order that no conviction be recorded for the offence.

The court allowed the appeal and ordered that for the offence of contravention of a police banning notice, no conviction is recorded. The respondent was ordered to pay the applicant's costs of and incidental to the appeal, in the amount of $1800.

Orders

Orders of the court

1. The Application for extension of time in which to file the Notice of Appeal is allowed. The time for filing of the Notice of Appeal is extended to 17 January 2022.

2. The Application to adduce fresh or further evidence is refused.

3. The Appeal is allowed.

4. The orders of the Magistrate of 5 October 2021 in the Magistrates Court at Brisbane are varied to the extent, and only to the extent of it being ordered that for the offence of Contravention of a police banning notice, no conviction is recorded.

5. The respondent is to pay the applicant’s costs of and incidental to the appeal, in the amount of $1800. Such costs are to be paid to the Registrar of the District Court at Brisbane within 14 days, to be paid over to the applicant.

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:	APS v Queensland Police Service [2022] QDC 164
PARTIES:	APS (Applicant) v Queensland Police Service (Respondent)
FILE NO/S:	117/22
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Brisbane
DELIVERED ON:	25 July 2022
DELIVERED AT:	Southport
HEARING DATE:	27 June 2022
JUDGES:	Judge Wooldridge QC
ORDER:	1. The Application for extension of time in which to file the Notice of Appeal is allowed. The time for filing of the Notice of Appeal is extended to 17 January 2022. 2. The Application to adduce fresh or further evidence is refused. 3. The Appeal is allowed. 4. The orders of the Magistrate of 5 October 2021 in the Magistrates Court at Brisbane are varied to the extent, and only to the extent of it being ordered that for the offence of Contravention of a police banning notice, no conviction is recorded. 5. The respondent is to pay the applicant’s costs of and incidental to the appeal, in the amount of $1800. Such costs are to be paid to the Registrar of the District Court at Brisbane within 14 days, to be paid over to the applicant.
CATCHWORDS: LEGISLATION: CASES:	CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – SENTENCE EXCESSIVE – RECORDING OF A CONVICTION – where the applicant seeks an extension of time in which to appeal – where the applicant seeks to adduce further evidence – where the applicant did not appear at sentence hearing but had entered a plea of guilty in writing and was fined $600 – where the Magistrate did not order that no conviction be recorded – where applicant contends sentencing discretion miscarried and the recording of a conviction was excessive Justices Act 1886 (Qld) ss 221, 222, 223, 224, 225, 226, 232A Penalties and Sentences Act 1992 (Qld) s 12 Police Powers and Responsibilities Act 2000 (Qld) s 602Q R v Tait [1998] QCA 304 Allesch v Maunz (2000) 203 CLR 172 Teelow v Commissioner of Police [2009] 2 Qd R 489 White v Commissioner of Police [2014] QCA 121 McDonald v Queensland Police Service [2017] 2 Qd R 612 Holden v Queensland Police Service [2018] QDC 217 R v Pham (2015) 256 CLR 550 Robinson Helicopter Co Inc v McDermott [2016] 90 ALJR 679
COUNSEL:	L Ygoa-Mckeown for the applicant R McInnes for the respondent
SOLICITORS:	Fisher Dore Lawyers Office of the Director of Public Prosecutions