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, 144Cases
Allesch v Maunz (2000) 203 CLR 172House 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…
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- Case
- [2018] QDC 103
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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