DYN v Queensland Police Service - [2020] QDC 47

DISTRICT COURT OF QUEENSLAND

CITATION:

DYN v Queensland Police Service [2020] QDC 47

PARTIES:

DYN
(appellant)

v

QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

Appeal No. 170 of 2019

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

27 March 2020

DELIVERED AT:

Cairns

HEARING DATE:

13 March 2020

JUDGE:

Morzone QC DCJ

ORDER:

1.   Appeal allowed.

2.   The sentence and orders of the Magistrates Court made in Cairns on 16 September 2019 are set aside, and substituted with the following sentence:

a)   For charge 1 - 12 months imprisonment;

b)     For charge 2 - 15 months imprisonment;

c)   The sentences for charges 1 and 2 will be served concurrently with each other, but cumulatively with the sentence imposed on 7 November 2018;

d)     Parole release date set at 27 March 2020.

CATCHWORDS:

CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - conviction – two count contravening a domestic violence order (aggravated offence) – reoffending on board ordered parole - parole eligibility date set – whether should be parole release date and whether miscalculation of date of hearing of appeal – error of law – whether sentence manifestly excessive – resentence.

Legislation

Justices Act 1886 (Qld) s 222, s 223(1) & 227
Corrective Services Act 2006 (Qld) s 178, s 209
Penalties & Sentences Act 1992 (Qld) s 9(1), s 160B

Cases

AB v R (1999) 198 CLR 111
Addo v Jacovos [2016] QDC 271
Allesch v Maunz (2000) 203 CLR 172
Dwyer v Calco Timbers (2008) 234 CLR 124
Forrest v Commissioner of Police [2017] QCA 132
Fox v Percy (2003) 214 CLR 118
House v. The King (1936) 55 CLR 499, 504 and 505
Kentwell v R (2014) 252 CLR 60
McDonald v Queensland Police Service [2017] QCA 255
Mill v The Queen [1988] 166 CLR 59
RJD v Queensland Police Service [2018] QDC 147
Teelow v Commissioner of Police [2009] QCA 84
The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 2006
Veen v The Queen (No. 2) (1988) 164 CLR 465
Warren v Coombes (1979) 142 CLR 531
White v Commissioner of Police [2014] QCA 121

COUNSEL:

J Sheridan for the appellant
S Shaw for the respondent

SOLICITORS:

Osborne Butler Lawyers for the appellant
Office of Director of Public Prosecutions for the respondent

On 16 September 2019 the appellant pleaded guilty to two charges of contravening a domestic violence order (aggravated offence) and was sentenced to 18 months and 12 months imprisonment respectively, to be served concurrently with each other, but cumulative on a term of imprisonment that he was already serving. A parole release date was set for 16 September 2020, but that was varied to a parole eligibility date when the sentence was reopened on 18 October 2019.

The aggrieved appellant now appeals the sentence.

The issues on appeal are whether that the sentence imposed was manifestly excessive because the learned magistrate erred by:

1. Placing too much weight on the appellant’s criminal history;

2. Failing to properly…

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 47
Decision Date: 27 March 2020

CaseChat Overview and Summary

In the case of DYN v Queensland Police Service, DYN appealed against his conviction and sentence for two counts of contravening a domestic violence order. The appeal was heard in the Queensland Court of Appeal. The underlying issue before the court was whether the sentence imposed by the Magistrates Court was manifestly excessive and whether there were errors in the calculation of the parole eligibility date. Additionally, the court needed to determine if the Magistrate erred in setting the parole eligibility date instead of the parole release date and whether there was a miscalculation of the date of the hearing of the appeal.

The court found that the sentence imposed by the Magistrates Court was manifestly excessive. The court also found that the Magistrate had set a parole eligibility date rather than a parole release date, and that the date of the hearing of the appeal was miscalculated. These findings were significant because they indicated that the court had not properly considered the appropriate parole conditions and timing, and that the appeal process was not handled correctly. The court held that these errors warranted the intervention of the appeal court.

Consequently, the appeal was allowed, and the sentence and orders of the Magistrates Court were set aside. The court substituted a new sentence, reducing the term of imprisonment and correcting the parole conditions. The new sentence required DYN to serve 12 months for the first charge and 15 months for the second charge, to be served concurrently with each other but cumulatively with the sentence imposed on 7 November 2018. The court also set the parole release date at 27 March 2020, ensuring that the parole conditions were correctly applied.

Orders

Orders of the court

1. Appeal allowed.

2. The sentence and orders of the Magistrates Court made in Cairns on 16 September 2019 are set aside, and substituted with the following sentence:

a) For charge 1 - 12 months imprisonment;

b) For charge 2 - 15 months imprisonment;

c) The sentences for charges 1 and 2 will be served concurrently with each other, but cumulatively with the sentence imposed on 7 November 2018;

d) Parole release date set at 27 March 2020.

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:	DYN v Queensland Police Service [2020] QDC 47
PARTIES:	DYN (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	Appeal No. 170 of 2019
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Cairns
DELIVERED ON:	27 March 2020
DELIVERED AT:	Cairns
HEARING DATE:	13 March 2020
JUDGE:	Morzone QC DCJ
ORDER:	1. Appeal allowed. 2. The sentence and orders of the Magistrates Court made in Cairns on 16 September 2019 are set aside, and substituted with the following sentence: a) For charge 1 - 12 months imprisonment; b) For charge 2 - 15 months imprisonment; c) The sentences for charges 1 and 2 will be served concurrently with each other, but cumulatively with the sentence imposed on 7 November 2018; d) Parole release date set at 27 March 2020.
CATCHWORDS:	CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - conviction – two count contravening a domestic violence order (aggravated offence) – reoffending on board ordered parole - parole eligibility date set – whether should be parole release date and whether miscalculation of date of hearing of appeal – error of law – whether sentence manifestly excessive – resentence. Legislation Justices Act 1886 (Qld) s 222, s 223(1) & 227 Corrective Services Act 2006 (Qld) s 178, s 209 Penalties & Sentences Act 1992 (Qld) s 9(1), s 160B Cases AB v R (1999) 198 CLR 111 Addo v Jacovos [2016] QDC 271 Allesch v Maunz (2000) 203 CLR 172 Dwyer v Calco Timbers (2008) 234 CLR 124 Forrest v Commissioner of Police [2017] QCA 132 Fox v Percy (2003) 214 CLR 118 House v. The King (1936) 55 CLR 499, 504 and 505 Kentwell v R (2014) 252 CLR 60 McDonald v Queensland Police Service [2017] QCA 255 Mill v The Queen [1988] 166 CLR 59 RJD v Queensland Police Service [2018] QDC 147 Teelow v Commissioner of Police [2009] QCA 84 The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 2006 Veen v The Queen (No. 2) (1988) 164 CLR 465 Warren v Coombes (1979) 142 CLR 531 White v Commissioner of Police [2014] QCA 121
COUNSEL:	J Sheridan for the appellant S Shaw for the respondent
SOLICITORS:	Osborne Butler Lawyers for the appellant Office of Director of Public Prosecutions for the respondent