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Hartwig v Cameron

Hartwig v Cameron

Case [2010] QDC 28 2 February 2010

Appeal

Sentencing

Failure to Give Reasons for Decision

Failure to Give Parties an Opportunity to be Heard

Failure to Take Plea of Guilty into Account

Criminal Law

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DISTRICT COURT OF QUEENSLAND

CITATION:

Hartwig v Cameron [2010] QDC 28

PARTIES:

JOHN PHILLIP HARTWIG

(Appellant)

AND

SENIOR CONSTABLE T.A. CAMERON

(Respondent)

FILE NO/S:

D86/09

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Toowoomba

DELIVERED ON:

2 February 2010 (ex tempore)

DELIVERED AT:

Toowoomba

HEARING DATE:

2 February 2010

JUDGE:

Irwin DCJ

ORDER:

1. Appeal allowed.

2. Sentence at first instance varied, by fixing a parole release date as 24 February 2010.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – where the appellant was convicted on his plea of guilty of one count each of driving under the influence of liquor and driving without a driver licence while disqualified by a court order, using a motor vehicle with registration plates issued to another vehicle and driving an uninsured vehicle and two counts each of using a vehicle with registration plates recorded as cancelled and of driving an unregistered vehicle – where the appellant was sentenced to a total period of imprisonment of 15 months for driving under the influence of liquor and driving without a driver licence while disqualified by a court order – where the sentencing magistrate ordered the appellant be released on parole after serving nine months imprisonment

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – where the appellant’s parole release date was significantly past the half way point of his head sentence – whether the sentencing magistrate erred in not giving reasons explaining the process underlying his decision to set the parole release date significantly past the halfway point

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE PARTIES AN OPPORTUNITY TO BE HEARD – where the appellant’s parole release date was significantly past the halfway point of the head sentence – whether the sentencing magistrate erred in not giving the parties an opportunity to be heard in relation to this

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO TAKE THAT PLEA OF GUILTY INTO ACCOUNT – where the appellant’s parole release date was significantly past the halfway point of the head sentence – whether the sentencing magistrate erred in not stating he took the appellant’s plea of guilty into account

Justices Act 1886 (Qld) s 222(1), s 225(1)

Penalties and Sentences Act 1992 (Qld) s 13

House v The King (1936) 55 CLR 504, applied

Hughes v Hopwood (1950) QWN 21, applied

Knibbs v R [2008] QDC 288, cited

R v…

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 Hartwig v Cameron

Details

AGLC: Hartwig v Cameron [2010] QDC 28
Case: [2010] QDC 28
Decision Date: 2 February 2010 (ex tempore)

CaseChat Overview and Summary

The case of Hartwig v Cameron was heard by the court of appeal, where the appellant contested the decision made by the sentencing magistrate. The appellant had pleaded guilty to multiple driving offenses, including driving under the influence, driving without a valid license, using a vehicle with cancelled registration plates, and driving an uninsured vehicle. The court sentenced the appellant to a total imprisonment term of 15 months, with parole release set after nine months, which was significantly past the halfway point of the head sentence.

The legal issues in this case centered on whether the sentencing magistrate had erred in setting the parole release date without providing reasons, not allowing the parties an opportunity to be heard, and not stating that the appellant's plea of guilty was taken into account. The appellant argued that these omissions constituted errors of law, warranting an appeal against the sentence.

The court found that the sentencing magistrate's failure to provide reasons for setting the parole release date, not giving the parties an opportunity to be heard, and not acknowledging the appellant's plea of guilty constituted errors of law. These errors affected the fairness and integrity of the sentencing process. Consequently, the appeal was allowed, and the sentence was varied to fix the parole release date as 24 February 2010.

Orders

Orders of the court

1. Appeal allowed.

2. Sentence at first instance varied, by fixing a parole release date as 24 February 2010.

Background

Background to the litigation

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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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Citations

AGLC Citation

Hartwig v Cameron [2010] QDC 28

Most Recent Citation

Bandman v Commissioner of Police [2010] QDC 107

Cases citing this decision · 3 of 3 shown

Low v McMonagle
[2011] QDC 109 Para 1

…In recognition of this possibility, the respondent has provided two decisions in respect of appeals decided in this Court, being Hartwig v Cameron [2010] QDC 28 and Queensland Police Service v Gregory [2010] QDC 388 and maintains the submission that the sentence imposed below was appropriate and should be reimpo…
Johnson v Commissioner of Police
[2011] QDC 18 Para 1

…ate at least around the midpoint of the head sentence. [3] Whyte v State of Queensland [2008] QDC 256; Knibbs v R [2008] QDC 288; Hartwig v Cameron [2010] QDC 28; Whyte v Queensland Police Service [2010] QDC 29; Bandman v Commissioner of Police [2010] QDC 107…
Bandman v Commissioner of Police
[2010] QDC 107 Para 1

…of imprisonment would have ordinarily been imposed. [2] Whyte v State of Queensland [2008] QDC 256; Knibbs v R [2008] QDC 288; Hartwig v Cameron [2010] QDC 28; Whyte v Queensland Police Service [2010] QDC 29.…

View all 3 citing cases →

Cases cited in this decision · 10 of 10 shown

Knibbs v R
[2008] QDC 288

…CLR 504, applied Hughes v Hopwood (1950) QWN 21, applied Knibbs v R [2008] QDC 288, cited R v Kitson [2008] QCA 086, applied R v Leu and Togra [2008] QCA 201, applied R v Maxfield [2002] 1 Qd R 417, cited R v McQuire and Porter (2000) 110 A Crim R 348, cited R v Myall [2008] QCA 202, cited R v Ryan [2008] QCA 134…
Whyte v State of Queensland
[2008] QDC 256

…Siganto v R (1996) 194 CLR 656, applied Whyte v State of Queensland [2008] QDC 256, cited COUNSEL: S.E. Lynch for the appellant J.D. Millican for the respondent SOLICITORS: Ryan & Bosscher Lawyers for the appellant Director of Public Prosecutions (Qld) for the respondent…
R v Leu; R v Togia
[2008] QCA 201

…QDC 288, cited R v Kitson [2008] QCA 086, applied R v Leu and Togra [2008] QCA 201, applied R v Maxfield [2002] 1 Qd R 417, cited R v McQuire and Porter (2000) 110 A Crim R 348, cited R v Myall [2008] QCA 202, cited R v Ryan [2008] QCA 134, applied Siganto v R (1996) 194 CLR 656, applied Whyte v State of Queensla…
R v Mayall
[2008] QCA 202

…ted R v McQuire and Porter (2000) 110 A Crim R 348, cited R v Myall [2008] QCA 202, cited R v Ryan [2008] QCA 134, applied Siganto v R (1996) 194 CLR 656, applied Whyte v State of Queensland [2008] QDC 256, cited COUNSEL: S.E. Lynch for the appellant J.D. Millican for the respondent SOLICITORS: Ryan & Bosscher La…
R v. Ryan
[2008] QCA 134

…0) 110 A Crim R 348, cited R v Myall [2008] QCA 202, cited R v Ryan [2008] QCA 134, applied Siganto v R (1996) 194 CLR 656, applied Whyte v State of Queensland [2008] QDC 256, cited COUNSEL: S.E. Lynch for the appellant J.D. Millican for the respondent SOLICITORS: Ryan & Bosscher Lawyers for the appellant Directo…
House v R
[1936] HCA 40

…225(1) Penalties and Sentences Act 1992 (Qld) s 13 House v The King (1936) 55 CLR 504, applied Hughes v Hopwood (1950) QWN 21, applied Knibbs v R [2008] QDC 288, cited R v Kitson [2008] QCA 086, applied R v Leu and Togra [2008] QCA 201, applied R v Maxfield [2002] 1 Qd R 417, cited R v McQuire and Porter (2000) 110…
A CrimR78 establishes, and R v Woods
[2004] QCA 2004

…As R v Taylor and Napatali ex parte A-G (Qld) [1999] 106A CrimR78 establishes, and R v Woods [2004] QCA 2004 re-affirms the necessity to take a plea of guilty into account and state that it has been done, and how it has been done is an essential part of the transparency of the sentencing process. If a plea of guil…
The learned Magistrate has often mistook this aspect of the law. The authorities are available. The notes on R v Kitson
[2008] QCA 086

…(1950) QWN 21, applied Knibbs v R [2008] QDC 288, cited R v Kitson [2008] QCA 086, applied R v Leu and Togra [2008] QCA 201, applied R v Maxfield [2002] 1 Qd R 417, cited R v McQuire and Porter (2000) 110 A Crim R 348, cited R v Myall [2008] QCA 202, cited R v Ryan [2008] QCA 134, applied Siganto v R (1996) 194…
QCA 2002. In R v Leu; R v Togia
[2008] QCA 2001

…In R v Leu; R v Togia [2008] QCA 2001, it was held that in circumstances where there was an unusual order deferring eligibility for parole for six months beyond the midpoint, and this was not contemplated in the submission of any party, it should not have been made without the sentencing Judge adverting to it and…
House v The King
63 WN 176

…Qld) s 222(1), s 225(1) Penalties and Sentences Act 1992 (Qld) s 13 House v The King (1936) 55 CLR 504, applied Hughes v Hopwood (1950) QWN 21, applied Knibbs v R [2008] QDC 288, cited R v Kitson [2008] QCA 086, applied R v Leu and Togra [2008] QCA 201, applied R v Maxfield [2002] 1 Qd R 417, cited R v McQuire and Porter…

Legislation cited in this decision · 3

Justices Act 1886 (Qld)
222(1) 2 mentions
Penalties and Sentences Act 1992 (Qld)
13 1 mention
Sentences Act 1992 (Qld)
1 mention

CITATION:	Hartwig v Cameron [2010] QDC 28
PARTIES:	JOHN PHILLIP HARTWIG (Appellant) AND SENIOR CONSTABLE T.A. CAMERON (Respondent)
FILE NO/S:	D86/09
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Toowoomba
DELIVERED ON:	2 February 2010 (ex tempore)
DELIVERED AT:	Toowoomba
HEARING DATE:	2 February 2010
JUDGE:	Irwin DCJ
ORDER:	1. Appeal allowed. 2. Sentence at first instance varied, by fixing a parole release date as 24 February 2010.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – where the appellant was convicted on his plea of guilty of one count each of driving under the influence of liquor and driving without a driver licence while disqualified by a court order, using a motor vehicle with registration plates issued to another vehicle and driving an uninsured vehicle and two counts each of using a vehicle with registration plates recorded as cancelled and of driving an unregistered vehicle – where the appellant was sentenced to a total period of imprisonment of 15 months for driving under the influence of liquor and driving without a driver licence while disqualified by a court order – where the sentencing magistrate ordered the appellant be released on parole after serving nine months imprisonment APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – where the appellant’s parole release date was significantly past the half way point of his head sentence – whether the sentencing magistrate erred in not giving reasons explaining the process underlying his decision to set the parole release date significantly past the halfway point APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE PARTIES AN OPPORTUNITY TO BE HEARD – where the appellant’s parole release date was significantly past the halfway point of the head sentence – whether the sentencing magistrate erred in not giving the parties an opportunity to be heard in relation to this APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO TAKE THAT PLEA OF GUILTY INTO ACCOUNT – where the appellant’s parole release date was significantly past the halfway point of the head sentence – whether the sentencing magistrate erred in not stating he took the appellant’s plea of guilty into account Justices Act 1886 (Qld) s 222(1), s 225(1) Penalties and Sentences Act 1992 (Qld) s 13 House v The King (1936) 55 CLR 504, applied Hughes v Hopwood (1950) QWN 21, applied Knibbs v R [2008] QDC 288, cited R v…