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
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.
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.
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.’”
The respondent…
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- Case
- [2010] QDC 281
- Decision Date
CaseChat Overview and Summary
The primary issue for the court to address was whether the magistrate had erred in setting the parole release date at the end of the full term of the sentence. The appellant contended that the sentencing decision was incorrect, and that the parole release date should have been set at half the term of the sentence. The court had to consider the relevant sentencing principles and legal precedents to determine if the magistrate had made an error in assessing the parole release date.
The court found that the magistrate had indeed erred in setting the parole release date at the end of the full term of the sentence. The court noted that the sentencing principles required that the parole release date be set at half the term of the sentence. Given this error, the appeal was allowed and the sentence was ordered to be modified. The appellant's sentence of nine months imprisonment was upheld, but the parole release date was fixed at half that period, namely 16 July 2010.
Orders
Orders of the court
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
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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