Bailey v Queensland Police Service - [2020] QDC 168

DISTRICT COURT OF QUEENSLAND

CITATION:

Bailey v Queensland Police Service [2020] QDC 168

PARTIES:

DIANE PHYLLIS BAILEY

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

11 of 2020

DIVISION:

Appellate

PROCEEDING:

Appeal under s 222 Justices Act 1886

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

7 April 2020 (delivered ex tempore)

DELIVERED AT:

Cairns

HEARING DATE:

7 April 2020

JUDGE:

Fantin DCJ

ORDER:

1.   Application for an extension of time for leave to appeal granted.

2.   Appeal dismissed.

3.   No order as to costs.

CATCHWORDS:

CRIMINAL LAW – APPEAL – PROCEDURE – POWER TO BRING APPEAL – POWERS OF COURT ON APPEAL – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the appellant’s notice of appeal was filed late – where the delay was caused by the late supply of a transcript of the Magistrates Court proceedings – where the respondent does not oppose the extension of time sought – whether it is in the interests of justice to grant the extension sought

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant pleaded guilty to driving under the influence of liquor and was fined $1,200 and disqualified from holding or obtaining a driver’s licence for 12 months – where the appellant had no prior criminal or traffic history – where the appellant appeals the sentence pursuant to section 222 Justices Act 1886 – whether the sentence imposed was manifestly excessive

Legislation
Justices Act 1886 s 222, s 224
Penalties and Sentences Act 1992 s 5, s 5A, s 9, s 48

Transport Operations (Road Use Management) Act 1995 s 79, s 79A, s 79B, s 86

Cases
Batty v Queensland Police Service [2019] QDC 51
R v Pham (2015) 256 CLR 550
Elliot v Queensland Police Service [2015] QDC 90
Hili v The Queen (2010) 242 CLR 520
House v The King (1936) 55 CLR 499
R v Jackson [2011] QCA 103
R v Lawley [2007] QCA 243
Schwarz v Queensland Police Service [2013] QDC 105
Queensland Police Service v McGowan [2008] QDC 49

SOLICITORS

The appellant appeared on her own behalf

The Office of the Director of Public Prosecutions for the respondent (T Watkins)

On 2 December 2019, the appellant pleaded guilty in the Magistrates Court at Cairns to driving under the influence of liquor or a drug under section 79(1) of the Transport Operations (Road Use Management) Act 1995 (Qld) (the ‘TORUM Act’). The offence occurred on 25 October 2019. The maximum penalty for that offence is 28 penalty units or nine months imprisonment.

By virtue of sections 5 and 5A of the Penalties and Sentences Act 1992 (Qld), a penalty unit at the relevant time was $133.45. Therefore, the maximum fine was $3,736.60. In addition, section 86(1) of the TORUM Act provides for an automatic period of disqualification from holding or obtaining a Queensland driver’s licence of six months. That disqualification period occurs automatically when a person is convicted of…

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: [2020] QDC 168
Decision Date: 7 April 2020 (delivered ex tempore)

CaseChat Overview and Summary

Bailey sought to appeal against his sentence for driving under the influence of liquor, which resulted in a fine of $1,200 and a 12-month disqualification from holding or obtaining a driver’s licence. Bailey, who had no prior criminal or traffic history, contended that the sentence was manifestly excessive and brought his appeal pursuant to section 222 of the Justices Act 1886. The appeal hinged on two primary issues: firstly, whether the court should grant an extension of time for the appellant to lodge his notice of appeal, which was filed late due to the late supply of a transcript of the Magistrates Court proceedings; and secondly, whether the sentence imposed was manifestly excessive. The respondent, Queensland Police Service, did not oppose the extension of time sought by Bailey.

The court found that the delay in lodging the notice of appeal was due to circumstances beyond Bailey's control, specifically the late supply of the transcript. Given that the respondent did not oppose the extension of time sought and considering the interests of justice, the court granted the extension. The court then turned to the question of whether the sentence was manifestly excessive. It considered the nature of the offence, the appellant's lack of a prior criminal or traffic history, and the penalty imposed. The court held that the sentence was not manifestly excessive, as it was within the range of penalties that could be imposed for such an offence.

Accordingly, the application for an extension of time for leave to appeal was granted, and the appeal was dismissed. No order was made as to costs. The court's decision emphasised the importance of timely filing of appeals while also recognising the need to consider the broader interests of justice in individual cases.

Orders

Orders of the court

1. Application for an extension of time for leave to appeal granted.

2. Appeal dismissed.

3. No order as to costs.

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:	Bailey v Queensland Police Service [2020] QDC 168
PARTIES:	DIANE PHYLLIS BAILEY (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	11 of 2020
DIVISION:	Appellate
PROCEEDING:	Appeal under s 222 Justices Act 1886
ORIGINATING COURT:	Magistrates Court, Cairns
DELIVERED ON:	7 April 2020 (delivered ex tempore)
DELIVERED AT:	Cairns
HEARING DATE:	7 April 2020
JUDGE:	Fantin DCJ
ORDER:	1. Application for an extension of time for leave to appeal granted. 2. Appeal dismissed. 3. No order as to costs.
CATCHWORDS:	CRIMINAL LAW – APPEAL – PROCEDURE – POWER TO BRING APPEAL – POWERS OF COURT ON APPEAL – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the appellant’s notice of appeal was filed late – where the delay was caused by the late supply of a transcript of the Magistrates Court proceedings – where the respondent does not oppose the extension of time sought – whether it is in the interests of justice to grant the extension sought CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant pleaded guilty to driving under the influence of liquor and was fined $1,200 and disqualified from holding or obtaining a driver’s licence for 12 months – where the appellant had no prior criminal or traffic history – where the appellant appeals the sentence pursuant to section 222 Justices Act 1886 – whether the sentence imposed was manifestly excessive Legislation Justices Act 1886 s 222, s 224 Penalties and Sentences Act 1992 s 5, s 5A, s 9, s 48 Transport Operations (Road Use Management) Act 1995 s 79, s 79A, s 79B, s 86 Cases Batty v Queensland Police Service [2019] QDC 51 R v Pham (2015) 256 CLR 550 Elliot v Queensland Police Service [2015] QDC 90 Hili v The Queen (2010) 242 CLR 520 House v The King (1936) 55 CLR 499 R v Jackson [2011] QCA 103 R v Lawley [2007] QCA 243 Schwarz v Queensland Police Service [2013] QDC 105 Queensland Police Service v McGowan [2008] QDC 49
SOLICITORS	The appellant appeared on her own behalf The Office of the Director of Public Prosecutions for the respondent (T Watkins)