B.S v QPS

Case [2019] QDC 197

DISTRICT COURT OF QUEENSLAND

CITATION:

B.S v QPS [2019] QDC 197

PARTIES:

B.S
(appellant)

v

QUEENSLAND POLICE SERVICE
(respondent)

FILE NO:

APPEAL NO: 88/19

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

27 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

6 September 2019

JUDGE:

Morzone QC DCJ

ORDER:

1.   Appeal allowed.

2.   The sentence and orders of the Magistrates Court made in Cairns on 15 May 2019 are set aside, and substituted with the following sentence:

a. For all charges the defendant is ordered to perform unpaid community service for 200 hours, and comply with the requirements set out in s 103(1) of the Penalties and Sentences Act 1992 (Qld).

b.   The appellant must report to an authorised Corrective Services Officer at CAIRNS by 5 pm on Monday 30 September 2019.

c.   No convictions are recorded.

CATCHWORDS:

CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - conviction – seven charges – Distribute prohibited visual recording – mode of hearing of appeal – error of law – witness credit – whether conviction unreasonable and unsupported – whether sentence manifestly excessive.

Legislation
Justices Act 1886 (Qld) ss 222, 223(1) & 227

Penalties and Sentences Act 1992 (Qld)

Cases

Adam P Brown Male Fashions Pty Ltd v Philip MorrisInc (1981) 148 CLR 170
Allesch v Maunz (2000) 203 CLR 172
Dwyer v Calco Timbers (2008) 234 CLR 124
Forrest v Commissioner of Police [2017] QCA 132
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499ΩKentwell v R (2014) 252 CLR 60
Norbis v Norbis (1986) 161 CLR 513
McDonald v Queensland Police Service [2017] QCA 255
Teelow v Commissioner of Police [2009] QCA 84
Warren v Coombes (1979) 142 CLR 531
White v Commissioner of Police [2014] QCA 121
COUNSEL:

J. Trevino for the Appellant
T. Watkins for the Respondent

SOLICITORS: Legal Aid Queensland for the Appellant
The Office of Director of Public Prosecutions for the respondent

  1. On 15 May 2019, the 43 year old appellant was convicted on his own pleas of guilty before his Honour Magistrate Pinder in the Cairns Magistrates Court to seven charges of distributing prohibited visual recordings contrary to s 227B of the Criminal Code, and sentenced to concurrent terms of six months’ imprisonment to be wholly suspended for an operational period of two years.

  1. The appellant now appeals his sentence.

  1. Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered.

Background

  1. The appellant and the complainant were in a domestic relationship for 8 years and had three children aged two, five and seven.  The appellant and the complainant separated in August 2018, when the complainant left the family home ostensibly to stay with her sister in Darwin.

  1. After August 2018, the complainant returned to stay with the appellant and their children on five or six occasions.  The last time the complainant stayed in Cairns with the appellant was 26 December 2018, before the…

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Details
AGLC
B.S v QPS [2019] QDC 197
Case
[2019] QDC 197
Decision Date

CaseChat Overview and Summary

In the case of B.S v QPS, the appellant, B.S., was appealing against a conviction and sentence imposed by the Magistrates Court in Cairns. The charges related to the distribution of prohibited visual recordings. The appeal was heard in the Court of Appeal, pursuant to section 222 of the Justices Act 1886, focusing on whether the conviction was unreasonable and unsupported, and if the sentence was manifestly excessive.

The legal issues in this case were whether there was an error of law that impacted the assessment of the witness's credibility and whether the conviction was unreasonable or unsupported. Additionally, the court examined if the sentence was manifestly excessive, considering the nature of the offences and the appellant's background. The court had to determine whether the evidence presented was sufficient to uphold the conviction and whether the sentence was disproportionate.

The Court of Appeal found that there was indeed an error of law concerning the assessment of the witness's credibility, which was pivotal in the conviction. The court concluded that the conviction was unreasonable and not supported by the evidence. Furthermore, the court determined that the sentence imposed was manifestly excessive given the circumstances and the appellant's background. Consequently, the appeal was allowed, and the sentence and orders of the Magistrates Court were set aside.

The court ordered that the appellant perform 200 hours of unpaid community service and comply with specific requirements under the Penalties and Sentences Act 1992 (Qld). The appellant was also required to report to an authorised Corrective Services Officer in Cairns by a specified date. Importantly, the court decided that no convictions should be recorded against the appellant.

Orders

Orders of the court

1. Appeal allowed.

2. The sentence and orders of the Magistrates Court made in Cairns on 15 May 2019 are set aside, and substituted with the following sentence:

a. For all charges the defendant is ordered to perform unpaid community service for 200 hours, and comply with the requirements set out in s 103(1) of the Penalties and Sentences Act 1992 (Qld).

b. The appellant must report to an authorised Corrective Services Officer at CAIRNS by 5 pm on Monday 30 September 2019.

c. No convictions are recorded.

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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