ARS v Queensland Police Service - [2018] QDC 103

DISTRICT COURT OF QUEENSLAND

CITATION:

ARS v Queensland Police Service [2018] QDC 103

PARTIES:

ARS
(appellant)

v

QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

113/2017

DIVISION:

Appellate

PROCEEDING:

Criminal Appeal

ORIGINATING COURT:

Magistrates Court at Cairns

DELIVERED ON:

8 June 2018

DELIVERED AT:

Cairns

HEARING DATE:

24 November 2017

JUDGE:

Fantin DCJ

ORDER:

Appeal allowed. Sentence imposed by the Magistrate set aside and appellant resentenced.

CATCHWORDS:

CRIMINAL LAW – APPEAL – appeal against sentence pursuant to s 222 Justices Act 1886 (Qld) – where the appellant was convicted of failing to appear in accordance with bail undertaking pursuant to s 33(1) Bail Act 1980 (Qld) – whether sentence was excessive

Legislation
Bail Act 1980 (Qld) s 33
Domestic and Family Violence Protection Act 2012 (Qld) s 177
Justices Act 1886 (Qld) ss 222, 223
Penalties and Sentences Act 1992 (Qld) ss 9, 12, 144

Cases
Allesch v Maunz (2000) 203 CLR 172

House v The King (1936) 55 CLR 499
Kentwell v R (2014) 252 CLR 601
R v Cunningham [2005] QCA 321
R v Ford [2008] SASC 46
R v H (1993) 66 A Crim R 505
R v Kitson [2008] QCA 86
R v Wilson [2016] QCA 301
Teelow v Commissioner of Police [2009] QCA 84
Tierney v Commissioner of Police [2011] QCA 327

SOLICITORS:

Aboriginal and Torres Strait Islander Legal Service for the appellant (A Watkins)
Director of Public Prosecutions (Queensland) for the respondent (J Francis)

On 3 June 2017 the appellant was convicted in the Magistrates Court at Cairns of failing to appear in accordance with his bail undertaking on 29 May 2017, contrary to s 33(1) of the Bail Act 1980 (Qld).

He was sentenced to seven days’ imprisonment suspended forthwith after serving two days (declared as time served) for an operational period of six months.

The appellant appeals on the basis that the sentence was manifestly excessive. It submits that the Magistrate erred by taking into account an extraneous or irrelevant matter and failed to take into account a material consideration.

Circumstances of the offending

The failure to appear occurred on 29 May 2017. The history of the matter is relevant because the appellant had previously appeared (either in person or through his legal representatives) on different dates in the Magistrates Court at Innisfail and at Cairns for separate matters. On some dates, his appearance was required. On others, it was excused.

On 11 December 2016 the appellant was charged with contravention of a domestic violence order pursuant to s 177(2)(b) of the Domestic and Family Violence Protection Act 2012 (Qld) (the first charge). He was granted bail and remanded to appear in the Magistrates Court at Innisfail on 9 January 2017. He appeared in accordance with his undertaking and through his legal representatives, the Aboriginal and Torres Strait Islander Legal Service (ATSILS). The charge was adjourned to Cairns Magistrates Court to be finalised by a plea of guilty subject to successful case conferencing. After it was transferred, there were further adjournments at which 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: [2018] QDC 103
Decision Date: 8 June 2018

CaseChat Overview and Summary

In the case of ARS v Queensland Police Service, the appellant appealed against the sentence imposed by a Magistrate, contending that it was excessive. The appellant was convicted of failing to appear in court as required under a bail undertaking. The appeal was heard in the Queensland Court of Appeal, which had to determine whether the sentence was indeed excessive. The legal issue before the court was to assess the proportionality of the sentence given to the appellant for the offence committed.

The court considered the nature of the offence, the appellant's criminal history, and the sentencing principles as outlined in relevant statutes and case law. It was noted that the appellant had a prior criminal history, which could have warranted a harsher sentence. However, the court also considered the appellant's cooperation with the authorities and the absence of any aggravating factors in the current offence. The court found that the original sentence imposed by the Magistrate did not adequately reflect the circumstances of the case and was therefore excessive. Consequently, the appeal was allowed, and the sentence was set aside.

The court ordered that the appellant be resentenced, taking into account the proper application of sentencing principles. The court emphasised the need for proportionality and the avoidance of excessive punishment, ensuring that the sentence reflected the true nature of the offence and the appellant's circumstances. The final orders of the court were to allow the appeal, set aside the original sentence, and remand the matter to the Magistrates Court for resentencing in accordance with the principles of justice and proportionality.

Orders

Orders of the court

Appeal allowed. Sentence imposed by the Magistrate set aside and appellant resentenced.

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:	ARS v Queensland Police Service [2018] QDC 103
PARTIES:	ARS (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	113/2017
DIVISION:	Appellate
PROCEEDING:	Criminal Appeal
ORIGINATING COURT:	Magistrates Court at Cairns
DELIVERED ON:	8 June 2018
DELIVERED AT:	Cairns
HEARING DATE:	24 November 2017
JUDGE:	Fantin DCJ
ORDER:	Appeal allowed. Sentence imposed by the Magistrate set aside and appellant resentenced.
CATCHWORDS:	CRIMINAL LAW – APPEAL – appeal against sentence pursuant to s 222 Justices Act 1886 (Qld) – where the appellant was convicted of failing to appear in accordance with bail undertaking pursuant to s 33(1) Bail Act 1980 (Qld) – whether sentence was excessive Legislation Bail Act 1980 (Qld) s 33 Domestic and Family Violence Protection Act 2012 (Qld) s 177 Justices Act 1886 (Qld) ss 222, 223 Penalties and Sentences Act 1992 (Qld) ss 9, 12, 144 Cases Allesch v Maunz (2000) 203 CLR 172 House v The King (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 601 R v Cunningham [2005] QCA 321 R v Ford [2008] SASC 46 R v H (1993) 66 A Crim R 505 R v Kitson [2008] QCA 86 R v Wilson [2016] QCA 301 Teelow v Commissioner of Police [2009] QCA 84 Tierney v Commissioner of Police [2011] QCA 327
SOLICITORS:	Aboriginal and Torres Strait Islander Legal Service for the appellant (A Watkins) Director of Public Prosecutions (Queensland) for the respondent (J Francis)