Greenwood v Tom - [2016] QDC 196

DISTRICT COURT OF QUEENSLAND

CITATION:

Greenwood v Tom [2016] QDC 196

PARTIES:

CONSTABLE ANDREW GREENWOOD
(appellant)
v
PATRICIA LEN TOM
(respondent)

FILE NO/S:

APPEAL NO: 2/2016

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Innisfail

DELIVERED ON:

5 August 2016

DELIVERED AT:

Cairns

HEARING DATE:

4 August 2016

JUDGE:

Morzone QC DCJ

ORDER:

1.   Appeal allowed.

2.   The sentence imposed by the Magistrates Court on 19 January 2016 is varied to the extent that a conviction will be recorded for the offence of serious assault on a public officer.

CATCHWORDS:

CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 (Qld) – sentence – serious assault – obstruct police – 240 hours Community Service Order imposed – whether sentence manifestly inadequate – concession of error of law by proceeding on the wrong maximum penalty of seven years rather than 14 years – appropriate sentence – residual discretion.

Legislation
Justices Act 1886 (Qld), s 222, s 223(1) & 227
Penalties and Sentences Act 1992 Qld), s 9

Cases

House v The King (1936) 55 CLR 499
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Norbis v Norbis (1986) 161 CLR 513
R v Jackson [2011] QCA 103
R v King [2008] QCA 1
Queensland Police Service v Terare [2014] QCA 260
Ross v Commissioner of Police [2015] QDC 315
Graham v Commissioner of Police [2015] QDC 103
R v Dowel; ex parte Attorney-General of Queensland [2013] QCA 8
R v Hopper, ex-parte Attorney-General [2015] 2 Qd R 56

COUNSEL:
A. Hilton (legal officer) for the appellant
J. Sheridan for the respondent

SOLICITORS: Office of the Director of Public Prosecutions for the appellant
Aboriginal and Torres Strait Islander Legal Service for the respondent

On 19 January 2016 the respondent was convicted on her plea of guilty in the Magistrates Court held in Innisfail, of one charge of serious assault of a public officer and obstruct police on 8 November 2016. The respondent was sentenced to 240 hours of community service with no conviction recorded.

The appellant now appeals the sentence on the ground that it was manifestly inadequate. At the outset of the hearing, the respondent’s counsel properly conceded that the magistrate erred in law by proceeding on the incorrect maximum penalty, which warranted a re-sentence.

Both parties provided outlines of argument and made further submissions on the hearing of the appeal which I have considered.

Background

The respondent was born on 17 May 1994. She was aged 21 years at the time of offending and is now aged 22 years.

She was the youngest of seven children and was born and raised in Cairns. Her father died in 2003 and her mother died in 2012.

The respondent graduated from school on completion of grade 12. She has completed a Certificate III in Warehouse Operation and completed a hospitality course in 2013. She worked as a waitress and in housekeeping until the end of 2013. She then moved to Bamaga and worked at the…

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 Greenwood v Tom

Details

AGLC: Greenwood v Tom [2016] QDC 196
Case: [2016] QDC 196
Decision Date: 5 August 2016

CaseChat Overview and Summary

Greenwood sought leave to appeal against the sentence imposed by the Magistrates Court on 19 January 2016. The applicant was charged with assault occasioning bodily harm, contrary to s 335(1)(a) of the Criminal Code 1899 (Qld) and resisting a police officer in execution of duty, contrary to s 390(1)(a) of the Criminal Code 1899 (Qld). Greenwood pleaded guilty to a single count of serious assault of a police officer. The Court found Greenwood guilty as charged and sentenced him to 240 hours of community service. Greenwood sought leave to appeal on the basis that the sentence was manifestly inadequate. The Crown conceded that the sentence was manifestly inadequate because the Court proceeded on the basis that the maximum penalty for the offence was seven years imprisonment, when the maximum penalty was in fact 14 years imprisonment. The Court held that the appeal should be allowed. The Crown conceded that the sentence was manifestly inadequate and the Court found that the sentence was manifestly inadequate, and that the appropriate sentence fell within the range of the maximum penalty. The Court considered the relevant sentencing principles and the need to ensure that the sentence reflected the seriousness of the offence. The Court exercised its residual discretion to vary the sentence.

Orders

Orders of the court

1. Appeal allowed.

2. The sentence imposed by the Magistrates Court on 19 January 2016 is varied to the extent that a conviction will be recorded for the offence of serious assault on a public officer.

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

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CITATION:	Greenwood v Tom [2016] QDC 196
PARTIES:	CONSTABLE ANDREW GREENWOOD (appellant) v PATRICIA LEN TOM (respondent)
FILE NO/S:	APPEAL NO: 2/2016
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Innisfail
DELIVERED ON:	5 August 2016
DELIVERED AT:	Cairns
HEARING DATE:	4 August 2016
JUDGE:	Morzone QC DCJ
ORDER:	1. Appeal allowed. 2. The sentence imposed by the Magistrates Court on 19 January 2016 is varied to the extent that a conviction will be recorded for the offence of serious assault on a public officer.
CATCHWORDS:	CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 (Qld) – sentence – serious assault – obstruct police – 240 hours Community Service Order imposed – whether sentence manifestly inadequate – concession of error of law by proceeding on the wrong maximum penalty of seven years rather than 14 years – appropriate sentence – residual discretion. Legislation Justices Act 1886 (Qld), s 222, s 223(1) & 227 Penalties and Sentences Act 1992 Qld), s 9 Cases House v The King (1936) 55 CLR 499 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Norbis v Norbis (1986) 161 CLR 513 R v Jackson [2011] QCA 103 R v King [2008] QCA 1 Queensland Police Service v Terare [2014] QCA 260 Ross v Commissioner of Police [2015] QDC 315 Graham v Commissioner of Police [2015] QDC 103 R v Dowel; ex parte Attorney-General of Queensland [2013] QCA 8 R v Hopper, ex-parte Attorney-General [2015] 2 Qd R 56
COUNSEL:	A. Hilton (legal officer) for the appellant J. Sheridan for the respondent
SOLICITORS:	Office of the Director of Public Prosecutions for the appellant Aboriginal and Torres Strait Islander Legal Service for the respondent