CHN v Queensland Police Service

DISTRICT COURT OF QUEENSLAND

CITATION:

 CHN v Queensland Police Service [2023] QDC 158

PARTIES:

CHN

(Appellant)

v
QUEENSLAND POLICE SERVICE

(Respondent)

FILE NO/S:

[Redacted]

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Richlands Magistrates Court

DELIVERED ON:

28 February 2023

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2023

JUDGES:

Dearden DCJ

ORDER:

1.   Appeal granted.

2.   Set aside the sentence of a fine of $1,800 with convictions recorded in respect of possession of a dangerous drug and two charges of possession of utensils imposed at the Richlands Magistrates Court on 22 July 2022.

3.   Substitute a global fine of $500 in respect of all three charges with no convictions recorded.

4.   Order the respondent pay the appellant’s costs of this appeal fixed at $1,800.

CATCHWORDS:

CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – appellant sentenced on drug offences - where the appellant was fined $1,800 with convictions recorded – where the charges were subject of a ss 651 & 652 Criminal Code committal application to join the appellants matters in the District Court – where the learned magistrate concluded that the charges were unrelated and sentenced the appellant ex parte - whether the sentence was manifestly excessive

COUNSEL:

A Edwards for the appellant
L Maleckas for the respondent

SOLICITORS:

Hannay Lawyers for the appellant
Office of the Director of Public Prosecutions for the respondent

Introduction

1. This is an appeal by the appellant CHN in respect of the sentence imposed at the Richlands Magistrates Court on 22 July 2022, in respect of the following matters:

   (1)possessing dangerous drugs;

   (2)possess utensils or pipes, etc, that had been used; and

   (3)possess utensils or pipes, etc, for use. 

2. The matter was dealt with ex parte.  The defendant was fined $1,800 with convictions recorded and all property related to the offences being forfeited to the Crown.

   Grounds of Appeal. 

3. The ground of appeal in the notice of appeal filed 2 August 2022 was as follows:

   In the circumstances, the sentence imposed was manifestly excessive.

4. In the appellant’s outline of appeal, the appellant identifies two further grounds of appeal which are: 

   (a)the magistrate erred in proceeding to sentence the appellant ex parte when the relevant paperwork for the matter to be transferred to the District Court had been filed two days earlier; and

   (b)the magistrate erred in declining to reopen or rehear the proceedings (exhibit 1, [1]).

5. It is common ground between the appellant and the respondent Commissioner of Police, that the appeal should be granted, the sentences imposed by the learned magistrates at Richlands Magistrates Court on 22 July 2022 be set aside and that in lieu, the appellant be sentenced to a global sentence of a fine of $500 with no conviction recorded. 

6. The respondent does not oppose an order for costs fixed in respect of costs that are permitted pursuant to the Justices Act.

   Background. 

7. The background to this matter is that on 9 September 2022, the appellant’s residence was searched, and police located…