Driessens v Qld Police Service

DISTRICT COURT OF QUEENSLAND

CITATION:

Driessens v Qld Police Service [2010] QDC 281

PARTIES:

MICHAEL WESLEY JOHN DRIESSENS
(Appellant)

AND

QUEENSLAND POLICE SERVICE
(Respondent)

FILE NO/S:

Appeal No. 21/10

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court, Toowoomba

DELIVERED ON:

13 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

21 May 2010

JUDGE:

Reid DCJ

ORDER:

1.   Appeal allowed.

2.   Order that the appellants sentence of nine months imprisonment for each offence be  subject to a parole release date fixed at half that period, namely 16 July 2010

CATCHWORDS:

APPEAL – Sentencing principles – erroneous decision by Magistrate – where parole release date set at the full term of head sentence – setting a parole release date

COUNSEL:

R. Davies for Appellant

C. Winlaw for Respondent

SOLICITORS:

David Burns Lawyers for Appellant

Office of the Director of Public Prosecutions for the Respondent

1. The appellant was convicted on 2 March 2010 on his pleas of guilty to one count of breaking, entering and stealing, seven offences of stealing and one of possession of tainted property. He was also dealt with for breach of a six months’ suspended sentences ordered on 14 April 2009 for possessing dangerous drugs with an operational period of 15 months.

1. The learned magistrate sentenced him to a period of nine month’s imprisonment on all offences, and activated the whole of the six months’ period of the suspended sentence, to be served concurrently with the nine months’ sentence.  Importantly, the magistrate ordered a parole release date of 1 December 2010, effectively the full term of the head sentence of nine months.

1. The appellant appeals on the basis that a parole release date of one-third to one-half of the sentence ought to have been imposed and that the magistrate failed to comply with the procedures referred to in R v Kitson [2008] QCA 86. That case makes clear that whilst a court retains a discretion, not relevantly fettered, to fix the relevant parole release date, it is very unusual to set a parole release date significantly beyond the midpoint of the head sentence and that if such an unusual order is to be made, the duty of the court is to give reasons explaining the process of reason underlying the decision. Further, it was said that because such a sentence would be unusual (and was not specifically sought or contemplated by either party in this case), it should not be imposed without the learned judge adverting to it and giving the parties an opportunity to be heard. In this regard, Fraser JA, with whom Fryberg and Lyons JJ agreed, said at paragraph 22:

“In re Hamilton; In re Forrest[1981] AC 1038 Lord Fraser of Tullybelton said, at 1045, that:

‘One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any, as he sees fit.’”

1. The respondent…