Hammond v Ralley

DISTRICT COURT OF QUEENSLAND

CITATION:

Hammond v Ralley [2014] QDC 263

PARTIES:

JASON LEIGH HAMMOND
(appellant)

v

CONSTABLE M RALLEY
(respondent)

FILE NO/S:

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Emerald Magistrates Court

DELIVERED ON:

26 November 2014

DELIVERED AT:

Emerald

HEARING DATE:

26 November 2014

JUDGE:

Smith DCJA

ORDER:

1.   The appeal is allowed.

2.   The sentence imposed in the Magistrates Court is varied in that the fine and disqualification period imposed are set aside and in lieu thereof the Appellant is fined the sum of $900 and is disqualified from holding or obtaining a driver licence for the period of six months.

CATCHWORDS:

CRIMINAL LAW- SENTENCE- APPEAL- Whether errors below- whether the sentence was excessive

Evidence Act 1977 (Q s 132C

Justices Act 1886 (Q) ss 222, 223 and 225

Transport Operations (Road Use Management) Act 1995 (Q) ss 79, 79B, 86

AB v R (1999) 198 CLR 111

House v R (1936) 55 CLR 449

Teelow v Commissioner of Police [2009] 2 Qd R 489

COUNSEL:

Mr R. Peters solicitor for the Appellant

Ms C. Whelan counsel for the Respondent 

SOLICITORS:

Anne Murray and Co solicitors for the Appellant

Director of Public Prosecutions (Q) for the Respondent

Introduction

1. This is an appeal pursuant to s 222 of the Justices Act1886 (Q) (“JA”). The appeal is against a penalty imposed in the Emerald Magistrates Court on 21 October 2014.

1. Section 222(2)(c) of the JA provides that where the defendant pleads guilty, then the person may only appeal on the sole ground that the fine, penalty, forfeiture or punishment was excessive or inadequate.

1. Section 223(1) of the JA provides that the appeal is to be by way of rehearing on the evidence given in the proceeding before the justices.

1. Section 225(1) of the JA provides that:

“On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.”

1. In Teelow v Commissioner of Police [2009] 2 Qd R 489 Muir JA held at [4]:

“It is a normal attribute of an appeal by way of rehearing that ‘the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error ...’”

1. Further the principles contained in House v R (1936) 55 CLR 449 at 504 apply namely:

“It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance.”  

Background

1. The appellant pleaded guilty to one charge of driving a motor vehicle on Pilot Farm Road, Emerald on 17 September 2014 whilst he was over the…