Beardsley v Queensland Police Service - [2020] QDC 172

DISTRICT COURT OF QUEENSLAND

CITATION:

Beardsley v Queensland Police Service [2020] QDC 172

PARTIES:

JORDAN BEARDSLEY

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

01/20

DIVISION:

Appellate

PROCEEDING:

Appeal under s 222 Justices Act 1886

ORIGINATING COURT:

Magistrates Court, Normanton

DELIVERED ON:

18 June 2020 (delivered ex tempore)

DELIVERED AT:

Cairns

HEARING DATE:

17 June 2020

JUDGE:

Fantin DCJ

ORDER:

1. The appeal is allowed;

2. The appellant is resentenced;

3. The appellant is convicted and sentenced to eight days imprisonment;

4. Eight days served in watch-house custody between 13 January 2020 and 21 January 2020 inclusive are deemed time served under the sentence. I direct the registrar to inform the commission of that declaration.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE – where the appellant sought to adduce fresh evidence on appeal under section 223 Justice Act 1886 – where the Crown does not oppose the application to adduce fresh evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty to one count of receiving tainted property – where the appellant was convicted and sentenced to 12 months imprisonment with a parole release date after 3 months – where the appellant appeals the sentence pursuant to section 222 of the Justices Act 1886 – whether the Magistrate proceeded on an erroneous factual basis - whether the sentence imposed was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – whether there was parity between the appellant’s sentence and the sentence of the co-offender

Legislation

Criminal Code Act 1899 (Qld) s 433
Justices Act 1886 (Qld) s 222, s 223
Penalties and Sentences Act 1992 (Qld) s 9

Cases

AB v The Queen (1999) 198 CLR 111
Cox v The Queen (1991) 55 A Crim R 396
Hili v The Queen (2010) 242 CLR 520
R v Pham (2015) 256 CLR 550
R v Clode & Dobbs (District Court of Queensland, Burnett DCJ, 30 May 2017)
R v Addo (District Court of Queensland, Everson DCJ, 6 February 2013)
R v Moore [2005] QCA 400
R v Cummins [2004] QCA 350
R v Owens [1995] QCA 214
R v Franklin [1998] QCA 457
R v Hoeksema [2010] QCA 357

COUNSEL:

J Johnsen for the appellant

SOLICITORS:

Legal Aid Queensland for the appellant

Office of the Direction of Public Prosecutions for the respondent (J Marxson)

On 17 June 2020, I made an order allowing this appeal. I resentenced the appellant for the offence of receiving tainted property committed on 26 December 2019, to eight days imprisonment, and I declared eight days served in custody between 13 January 2020 and 21 January 2020 as time served under that sentence. The hearing was adjourned to this morning. These are my reasons for that decision.

On 13 January…

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 172
Decision Date: 18 June 2020 (delivered ex tempore)

CaseChat Overview and Summary

In Beardsley v Queensland Police Service, the appellant appealed against his sentence for receiving tainted property. The Crown did not oppose the appeal. The appellant argued that the sentence was manifestly excessive and that there was no parity between his sentence and that of his co-offender. The court had to determine whether the magistrate erred in the factual basis of the sentence and whether the sentence was manifestly excessive or inadequate.

The court examined whether the sentence was based on an erroneous factual premise and whether it was manifestly excessive or inadequate. The court also considered whether the sentence was disproportionate to that of the co-offender. The court found that the magistrate did not proceed on an erroneous factual basis, and the sentence was not manifestly excessive. However, the court did find that there was a lack of parity between the appellant’s sentence and the sentence of the co-offender. The court held that the sentence was manifestly inadequate and allowed the appeal.

The appeal was allowed, and the appellant was resentenced. The appellant was convicted and sentenced to eight days imprisonment, with eight days served in watch-house custody between 13 January 2020 and 21 January 2020 inclusive deemed time served under the sentence. The court directed the registrar to inform the commission of that declaration.

Orders

Orders of the court

1. The appeal is allowed;

2. The appellant is resentenced;

3. The appellant is convicted and sentenced to eight days imprisonment;

4. Eight days served in watch-house custody between 13 January 2020 and 21 January 2020 inclusive are deemed time served under the sentence. I direct the registrar to inform the commission of that declaration.

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:	Beardsley v Queensland Police Service [2020] QDC 172
PARTIES:	JORDAN BEARDSLEY (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	01/20
DIVISION:	Appellate
PROCEEDING:	Appeal under s 222 Justices Act 1886
ORIGINATING COURT:	Magistrates Court, Normanton
DELIVERED ON:	18 June 2020 (delivered ex tempore)
DELIVERED AT:	Cairns
HEARING DATE:	17 June 2020
JUDGE:	Fantin DCJ
ORDER:	1. The appeal is allowed; 2. The appellant is resentenced; 3. The appellant is convicted and sentenced to eight days imprisonment; 4. Eight days served in watch-house custody between 13 January 2020 and 21 January 2020 inclusive are deemed time served under the sentence. I direct the registrar to inform the commission of that declaration.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE – where the appellant sought to adduce fresh evidence on appeal under section 223 Justice Act 1886 – where the Crown does not oppose the application to adduce fresh evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty to one count of receiving tainted property – where the appellant was convicted and sentenced to 12 months imprisonment with a parole release date after 3 months – where the appellant appeals the sentence pursuant to section 222 of the Justices Act 1886 – whether the Magistrate proceeded on an erroneous factual basis - whether the sentence imposed was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – whether there was parity between the appellant’s sentence and the sentence of the co-offender Legislation Criminal Code Act 1899 (Qld) s 433 Justices Act 1886 (Qld) s 222, s 223 Penalties and Sentences Act 1992 (Qld) s 9 Cases AB v The Queen (1999) 198 CLR 111 Cox v The Queen (1991) 55 A Crim R 396 Hili v The Queen (2010) 242 CLR 520 R v Pham (2015) 256 CLR 550 R v Clode & Dobbs (District Court of Queensland, Burnett DCJ, 30 May 2017) R v Addo (District Court of Queensland, Everson DCJ, 6 February 2013) R v Moore [2005] QCA 400 R v Cummins [2004] QCA 350 R v Owens [1995] QCA 214 R v Franklin [1998] QCA 457 R v Hoeksema [2010] QCA 357
COUNSEL:	J Johnsen for the appellant
SOLICITORS:	Legal Aid Queensland for the appellant Office of the Direction of Public Prosecutions for the respondent (J Marxson)