Ford v QPS; Ford v QPS - [2014] QDC 205

DISTRICT COURT OF QUEENSLAND

CITATION:

Ford v QPS; Ford v QPS [2014] QDC 205

PARTIES:

Isaac William Ford
(Appellant)

and

Queensland Police Service
(Respondent)

Tyrone John Ford
(Appellant)

And

Queensland Police Service
(Respondent)

FILE NO/S:

Townsville 40 of 2014 and 41 of 2014

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Townsville

DELIVERED ON:

17 September 2014

DELIVERED AT:

Bowen

HEARING DATE:

19 May 2014

JUDGE:

Durward SC DCJ

ORDERS:

Isaac William Ford

1    Appeal allowed

2    Hearing adjourned for sentence on a date to be fixed

3    Bail enlarged

Tyrone John Ford

1    Appeal allowed

2    Hearing adjourned for sentence on a date to be fixed

3    Bail enlarged

CATCHWORDS:
LEGISLATION:
CASES:

CRIMINAL LAW – APPEALS AGAINST SENTENCE – APPEALS BY CONVICTED PERSONS – MANIFESTLY EXCESSIVE GROUNDS – appellants convicted on pleas of guilty of AOBH in company – verbal exchange deteriorated into a physical exchange – punches – no weapon or kicking – relatively minor injury to complainant – each complainant with minor criminal history and employment and good antecedents – Magistrate assumed incorrect facts and required correction in course of proceedings including sentencing – failure to consider or properly consider sentence options other than actual imprisonment – fettering of discretion – error in exercise of sentencing discretion – sentences each manifestly excessive.

Sections 222 and 225 Justices Act 1881

Lude & Love [2007] QCA 319; R v Wilkins ex parte A-G (Qld) [2008] QCA 272; House v The King (1936) 55 CLR 499, at 504-505; and Hughes v Hopwood (1950) QWN 21; R v Morse (1979) 23 SASR 98; R v Lemass (1981) 5A Crim R 230; Lowe v The Queen (1984) 154 CLR 606; R v McIntosh [1923] St. R. Qd. 278; R v C [1996] QCA 234; R v Hamilton [2000] QCA 286; R v Daw [2006] QCA 386; R v Wharley [2007] QCA 295; R v Riley [2007] QCA 391; R v Hilton [2009] QCA 12; R v Yanner & Yanner; ex parte AG (1999) 109A CrimR 109; [1999] QCA 515; Police v Henry (unreported MAG-175575/13 17 February 2014)

COUNSEL:

AW Collins of counsel for the Appellant
Ms C Licastro for the Respondent

SOLICITORS:

Connolly Suthers for the Appellant
Office of the Director of Public Prosecutions for the Respondent

[1] These appeals were filed pursuant to Section 222 of the Justices Act 1881 (“the Act”). They were heard together. I reserved my decision.

History

[2] Isaac William Ford was convicted on a plea of guilty on 11 February 2014 in the Magistrates Court at Townsville of an offence of assault occasioning bodily harm in company and sentenced to a nine month term of imprisonment with a parole release date of 10 April 2014. Hence the term of actual custody was two months.

[3] Tyrone John Ford was convicted on a plea of guilty on the same date of the same offence and sentenced to a nine month term of imprisonment with…

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: [2014] QDC 205
Decision Date: 17 September 2014

CaseChat Overview and Summary

In the case of Ford v QPS, the appellants, Isaac William Ford and Tyrone John Ford, sought an appeal against their sentences for assault occasioning bodily harm in company. Each had pleaded guilty to their respective charges. The incident involved a verbal altercation that escalated into a physical confrontation where punches were exchanged, but no weapons or kicking occurred, resulting in relatively minor injuries to the complainant. Both appellants had minor criminal histories and otherwise good antecedents, including employment.

The primary legal issues before the court were whether the sentences imposed by the Magistrate were manifestly excessive and whether there was an error in the exercise of the sentencing discretion. The court needed to determine if the Magistrate had correctly identified the facts and if the sentencing options were properly considered, including the possibility of alternatives to imprisonment.

The court found that the Magistrate had erred in several respects. The facts assumed by the Magistrate were incorrect and required correction during the proceedings. Furthermore, the court identified that the Magistrate failed to consider or adequately consider sentence options other than imprisonment, which amounted to a fettering of discretion. The court concluded that the sentences imposed were manifestly excessive due to these errors. The appeal was allowed, the sentences were quashed, and the matter was adjourned for resentencing. Additionally, the court enlarged the bail for both appellants.

Orders

Orders of the court

Isaac William Ford

1 Appeal allowed

2 Hearing adjourned for sentence on a date to be fixed

3 Bail enlarged

Tyrone John Ford

1 Appeal allowed

2 Hearing adjourned for sentence on a date to be fixed

3 Bail enlarged

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:	Ford v QPS; Ford v QPS [2014] QDC 205
PARTIES:	Isaac William Ford (Appellant) and Queensland Police Service (Respondent) Tyrone John Ford (Appellant) And Queensland Police Service (Respondent)
FILE NO/S:	Townsville 40 of 2014 and 41 of 2014
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Townsville
DELIVERED ON:	17 September 2014
DELIVERED AT:	Bowen
HEARING DATE:	19 May 2014
JUDGE:	Durward SC DCJ
ORDERS:	Isaac William Ford 1 Appeal allowed 2 Hearing adjourned for sentence on a date to be fixed 3 Bail enlarged Tyrone John Ford 1 Appeal allowed 2 Hearing adjourned for sentence on a date to be fixed 3 Bail enlarged
CATCHWORDS: LEGISLATION: CASES:	CRIMINAL LAW – APPEALS AGAINST SENTENCE – APPEALS BY CONVICTED PERSONS – MANIFESTLY EXCESSIVE GROUNDS – appellants convicted on pleas of guilty of AOBH in company – verbal exchange deteriorated into a physical exchange – punches – no weapon or kicking – relatively minor injury to complainant – each complainant with minor criminal history and employment and good antecedents – Magistrate assumed incorrect facts and required correction in course of proceedings including sentencing – failure to consider or properly consider sentence options other than actual imprisonment – fettering of discretion – error in exercise of sentencing discretion – sentences each manifestly excessive. Sections 222 and 225 Justices Act 1881 Lude & Love [2007] QCA 319; R v Wilkins ex parte A-G (Qld) [2008] QCA 272; House v The King (1936) 55 CLR 499, at 504-505; and Hughes v Hopwood (1950) QWN 21; R v Morse (1979) 23 SASR 98; R v Lemass (1981) 5A Crim R 230; Lowe v The Queen (1984) 154 CLR 606; R v McIntosh [1923] St. R. Qd. 278; R v C [1996] QCA 234; R v Hamilton [2000] QCA 286; R v Daw [2006] QCA 386; R v Wharley [2007] QCA 295; R v Riley [2007] QCA 391; R v Hilton [2009] QCA 12; R v Yanner & Yanner; ex parte AG (1999) 109A CrimR 109; [1999] QCA 515; Police v Henry (unreported MAG-175575/13 17 February 2014)
COUNSEL:	AW Collins of counsel for the Appellant Ms C Licastro for the Respondent
SOLICITORS:	Connolly Suthers for the Appellant Office of the Director of Public Prosecutions for the Respondent