Gatti v Pogan - [2012] QDC 231

DISTRICT COURT OF QUEENSLAND

CITATION:

Gatti v Pogan [2012] QDC 231

PARTIES:

DUANE JOSEPH GATTI
(applicant)
v
S D POGAN & ORS
(respondent)

FILE NO/S:

D28/12

DIVISION:

Appeal jurisdiction

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

Magistrates Court at Toowoomba

DELIVERED ON:

28 June 2012

DELIVERED AT:

Toowoomba

HEARING DATE:

27 June 2012

JUDGE:

Bradley DCJ

ORDER:

1. The appeal is allowed.

2. The order with respect to the disqualified driving conviction is set aside. In lieu thereof, the appellant is sentenced to 15 months imprisonment. Order release on parole on 5 August 2012.

3. The respondent pay the appellant’s costs, fixed at $1800.00, within 60 days.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –
APPEAL AGAINST SENTENCE – SENTENCE
MANIFESTLY EXCESSIVE OR INADEQUATE – where
appellant pleaded guilty to four charges, including a charge of disqualified driving – where appellant sentenced to 18 months imprisonment for that charge – where magistrate failed to give reasons for not taking into account appellant’s plea of guilty – whether sentence manifestly excessive

Justices Act 1866 (Qld) s 222

Penalties and Sentences Act 1992 (Qld) s 13

Siganto v R (1998) 194 CLR 656
R v Byrnes; ex parte Attorney-General (Qld) [2011] QCA 040

R v Ungvari [2010] QCA 134

COUNSEL:
S Lynch for the applicant

L Helsdon for the respondent

SOLICITORS:

Bosscher Lawyers for the applicant
Office of the Director of Public Prosecutions for the respondent

HER HONOUR: This is an appeal against sentence. On the 20th of March this year, in the Magistrates Court in Toowoomba, the appellant pleaded guilty and - or he pleaded guilty the day before, in fact, on the 19th of March, but on the 20th of March 2012 he was convicted and sentenced in relation to four offences: the first that on the 10th of October 2009 he drove under the influence of liquor with a blood alcohol reading of .173. For that he was sentenced to nine months' imprisonment. He was also charged with a related offence of disqualified driving which was committed on the same date, and for that he was sentenced to 18 months' imprisonment. He was also convicted of failing to appear in Court in accordance with his bail undertaking in Chinchilla on the 31st of March 2010, for which he was sentenced to one month's imprisonment, which, under the Bail Act, must be served cumulatively. He was also convicted of one charge of contravening a requirement which was committed on the 25th of February 2012, for which he was not further punished.

So the end result was that he was given a sentence of imprisonment of 19 months. He had, however, been in presentence custody between the 26th of February 2012 and the 20th of March 2012, a total of 24 days, which was declared as imprisonment already served, and parole was set effectively at nine months with a parole release date of the 26th of November 2012.

The facts are as set out in the written submissions made on behalf…

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 Gatti v Pogan

Details

AGLC: Gatti v Pogan [2012] QDC 231
Case: [2012] QDC 231
Decision Date: 28 June 2012

CaseChat Overview and Summary

In the matter of Gatti v Pogan, the appellant, Mr Gatti, appealed against the sentence imposed on him by the Magistrates Court. Mr Gatti had pleaded guilty to four charges, one of which was disqualified driving. The appellant was sentenced to 18 months imprisonment for the disqualified driving charge. The basis of the appeal was that the sentence was manifestly excessive and that the magistrate failed to provide reasons for not taking into account the appellant's plea of guilty. The court was required to determine if the sentence was manifestly excessive or inadequate, considering the circumstances of the offence and the appellant's plea.

The court found that the sentence imposed was manifestly excessive, as the magistrate did not consider the appellant's guilty plea. The court considered the appellant's guilty plea, as well as other factors such as the appellant's otherwise unblemished criminal record, his remorse and his cooperation with authorities. The court found that the sentence imposed was manifestly excessive, as the magistrate did not provide any reasons for not taking into account the appellant's guilty plea. The court further found that the sentence imposed was excessive in comparison to sentences imposed in similar cases.

As a result, the appeal was allowed, and the order with respect to the disqualified driving conviction was set aside. In lieu thereof, the appellant was sentenced to 15 months imprisonment with parole eligibility on 5 August 2012. The court also ordered that the respondent pay the appellant's costs, fixed at $1800.00, within 60 days. The court found that the sentence imposed was manifestly excessive and did not take into account the appellant's guilty plea and other relevant factors. Therefore, the sentence was set aside and replaced with a lesser sentence of 15 months imprisonment.

Orders

Orders of the court

1. The appeal is allowed.

2. The order with respect to the disqualified driving conviction is set aside. In lieu thereof, the appellant is sentenced to 15 months imprisonment. Order release on parole on 5 August 2012.

3. The respondent pay the appellant’s costs, fixed at $1800.00, within 60 days.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	Gatti v Pogan [2012] QDC 231
PARTIES:	DUANE JOSEPH GATTI (applicant) v S D POGAN & ORS (respondent)
FILE NO/S:	D28/12
DIVISION:	Appeal jurisdiction
PROCEEDING:	Appeal against sentence
ORIGINATING COURT:	Magistrates Court at Toowoomba
DELIVERED ON:	28 June 2012
DELIVERED AT:	Toowoomba
HEARING DATE:	27 June 2012
JUDGE:	Bradley DCJ
ORDER:	1. The appeal is allowed. 2. The order with respect to the disqualified driving conviction is set aside. In lieu thereof, the appellant is sentenced to 15 months imprisonment. Order release on parole on 5 August 2012. 3. The respondent pay the appellant’s costs, fixed at $1800.00, within 60 days.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant pleaded guilty to four charges, including a charge of disqualified driving – where appellant sentenced to 18 months imprisonment for that charge – where magistrate failed to give reasons for not taking into account appellant’s plea of guilty – whether sentence manifestly excessive Justices Act 1866 (Qld) s 222 Penalties and Sentences Act 1992 (Qld) s 13 Siganto v R (1998) 194 CLR 656 R v Byrnes; ex parte Attorney-General (Qld) [2011] QCA 040 R v Ungvari [2010] QCA 134
COUNSEL:	S Lynch for the applicant L Helsdon for the respondent
SOLICITORS:	Bosscher Lawyers for the applicant Office of the Director of Public Prosecutions for the respondent