GAF v QPS - [2008] QCA 190

SUPREME COURT OF QUEENSLAND

CITATION:

GAF v QPS [2008] QCA 190

PARTIES:

GAF
(appellant/applicant)
v
QUEENSLAND POLICE SERVICE
(respondent/respondent)

FILE NO/S:

CA No 325 of 2007
DC No 339 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

18 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

11 July 2008

JUDGES:

Keane and Fraser JJA and Lyons J
Separate reasons for judgment of each member of the Court,

each concurring as to the order made

ORDER:

Application for leave to appeal refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – applicant pleaded guilty to the charge of unlawfully and indecently dealing with a child under the age of 16 years – Magistrate dealt with matter summarily and imposed a sentence of 15 months imprisonment suspended after four months with an operational period of three years – District Court appeal dismissed – sentence not manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – OTHER MATTERS – offence carried a maximum penalty of 14 years – maximum penalty the Magistrate could impose summarily was three years – where District Court Judge rejected that the Magistrate erred in not reducing the sentence to reflect that the maximum penalty that could be imposed was three years – the penalty to be imposed should not be a function of the maximum penalty available to a Magistrate

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – OTHER MATTERS – in determining the penalty a Magistrate can rely on comparable authorities which are appeals from the District Court

Criminal Code 1899 (Qld), s 552B(1)(h), s 552D(1), s 552F s 552H(1)(a)
District Court Act 1967, s 118(3)
Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 9(2)(b), s 9(5)

R v Pham [1996] QCA 3, cited
Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, cited

COUNSEL:

No appearance for the appellant/applicant
M J Copley for the respondent/respondent

SOLICITORS:

No appearance for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent/respondent

E JA: KEANI have had the advantage of reading the reasons for judgment of Lyons J. I agree with the order proposed by Lyons J for the reasons given by her Honour.

FRASER JA: I agree with the reasons of Lyons J and the order proposed by her Honour.

LYONS J: On 1 August 2007 the applicant pleaded guilty in the Townsville Magistrates Court to a charge that on 14 December 2006 he unlawfully and indecently dealt with a child under the age of 16 years. The complainant was his 14-year-old niece who had been…

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.

Continue reading GAF v QPS

Details

AGLC: GAF v QPS [2008] QCA 190
Case: [2008] QCA 190
Decision Date: 18 July 2008

CaseChat Overview and Summary

The applicant, GAF, was convicted in the Magistrates Court of unlawfully and indecently dealing with a child under the age of 16 years. The Magistrate imposed a sentence of 15 months imprisonment, suspended after four months with an operational period of three years. GAF appealed to the District Court seeking a reduction in sentence, which was dismissed. GAF now seeks leave to appeal to a higher court.

The primary legal issue in this case was whether the sentence imposed by the Magistrate was manifestly excessive. The applicant argued that the maximum penalty the Magistrate could impose summarily was three years, and that the sentence should reflect this limitation. The court had to consider whether the penalty should be a function of the maximum penalty available to a Magistrate and whether the Magistrate could rely on comparable authorities in determining the penalty.

The District Court found that the sentence was not manifestly excessive and rejected the argument that the Magistrate erred in not reducing the sentence to reflect the maximum penalty available to them. The court held that the penalty to be imposed should not be a function of the maximum penalty available to a Magistrate and that the Magistrate can rely on comparable authorities in determining the penalty. The appeal was dismissed.

The higher court refused the application for leave to appeal, confirming the decision of the District Court. The court found that the sentence imposed by the Magistrate was not manifestly excessive and that the District Court's decision was correct. The court held that the penalty to be imposed should not be a function of the maximum penalty available to a Magistrate and that the Magistrate can rely on comparable authorities in determining the penalty. The appeal was dismissed and the sentence remains as imposed by the Magistrate.

Orders

Orders of the court

Application for leave to appeal refused

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:	GAF v QPS [2008] QCA 190
PARTIES:	GAF (appellant/applicant) v QUEENSLAND POLICE SERVICE (respondent/respondent)
FILE NO/S:	CA No 325 of 2007 DC No 339 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	18 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	11 July 2008
JUDGES:	Keane and Fraser JJA and Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – applicant pleaded guilty to the charge of unlawfully and indecently dealing with a child under the age of 16 years – Magistrate dealt with matter summarily and imposed a sentence of 15 months imprisonment suspended after four months with an operational period of three years – District Court appeal dismissed – sentence not manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – OTHER MATTERS – offence carried a maximum penalty of 14 years – maximum penalty the Magistrate could impose summarily was three years – where District Court Judge rejected that the Magistrate erred in not reducing the sentence to reflect that the maximum penalty that could be imposed was three years – the penalty to be imposed should not be a function of the maximum penalty available to a Magistrate CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – OTHER MATTERS – in determining the penalty a Magistrate can rely on comparable authorities which are appeals from the District Court Criminal Code 1899 (Qld), s 552B(1)(h), s 552D(1), s 552F s 552H(1)(a) District Court Act 1967, s 118(3) Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 9(2)(b), s 9(5) R v Pham [1996] QCA 3, cited Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, cited
COUNSEL:	No appearance for the appellant/applicant M J Copley for the respondent/respondent
SOLICITORS:	No appearance for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent/respondent