Ballini v Queensland Police Service

[2010] QDC 435

[2010] QDC 435

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE JONES

BRENDAN JOSEPH BALLINI	Appellant
and
QUEENSLAND POLICE SERVICE	Respondent

TOOWOOMBA

..DATE 25/10/2010

JUDGMENT

HIS HONOUR:  This is an appeal by Brendan Joseph Ballini against a sentence imposed in the Toowoomba Magistrates Court on 21 June 2010. The appellant was sentenced to a period of six months in prison with a Court-ordered parole release date fixed at six months.  The effect of that is that the appellant would have been required to serve the whole of that sentence.

The appellant's primary challenge to the sentence is that the term of imprisonment should have been ameliorated to reflect the appellant's plea of guilty to the charges at an early opportunity and thereby assisting in the administration of justice. It is said that the learned Magistrate has fallen into error because he failed to apply the principles identified in R v Kitson [2008] QCA 086 where the Court of Appeal noted that where a person pleads guilty and assists in the administration of justice and otherwise has relevant personal circumstances, a parole release date significantly beyond the mid-point of the head sentence would be very unusual and, where that process was to be departed from, appropriate detailed reasons ought to be given.

By reference to the submissions made on behalf of the appellant, apparently a number of similar appeals have been successful involving the same Magistrate. They include Rowe and the Queensland Police Service, QDC 327; Donald and the Queensland Police Service, number 18 of 2007; Knibbs [2008] QDC 288 and a decision of Duffy and Proudlock, number 29 of 2009.

It is submitted on behalf of the appellant that the sentencing process has miscarried and the sentence must be revisited.  In response, the respondent acknowledges that there has been an error of law revealed and, in the written submissions relied on by the respondent, it is noted that the sentence imposed did not comply with the two requirements identified by the Court of Appeal in Kitson. Of course, the decision of that Court being binding not only on this Court but also the Magistrates Court. 

The respondent concedes that the Magistrate did not comply with the first requirement set out in Kitson by failing to provide sufficient reasons for his decision to require the appellant to serve the full term.  It is also pointed out that the Magistrate erred in not allowing both parties to make submissions about the potential parole release date.  In conclusion, and I observe that this is in the written submissions of the respondent, it is noted that the parole release date fixed by the Magistrate was an unusual order and it failed to comply with the two requirements for making such an unusual order as per Kitson.  The sentence therefore involves an appellable error.  The sentence of the learned Magistrate should be varied to fix a parole release date which is reflective of the applicant's cooperation with the administration of justice.

Consistent with the approach of both parties, the terms of the orders that ought to be made in the circumstances are agreed and I should note that I agree with the sensible and helpful submissions made by both sides.  Accordingly, the orders will be that (1) the appeal is allowed and (2) the sentence below is to be varied to fix a parole release date of 27 August 2010.

I further order that the respondent is to pay the appellant's costs of and incidental to the appeal in accordance with the appropriate costs schedule in the Justices Act 1886.

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