Hermes-Smith v Winters - [2009] QDC 322

DISTRICT COURT OF QUEENSLAND

CITATION:

Hermes-Smith v Winters [2009] QDC 322

PARTIES:

KYLE DARRELL HERMES-SMITH
(appellant)
v
TERRY WINTERS
(respondent)

NATHAN BRYCE JOLLIFFE
(appellant)
v
TERRY WINTERS
(respondent)

FILE NO/S:

BD 1161/09
BD 1162/09

DIVISION:

Appeal

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

Magistrate’s Court, Coolangatta

DELIVERED ON:

19 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2009

JUDGE:

Ryrie DCJ

ORDER:

1.    The appeals are allowed.

2.    I set aside the orders of the Magistrate and in lieu thereof I make the following orders:

3.    In respect of the appellant Hermes-Smith, the charges are proved however I order that Mr Hermes-Smith be released without proceeding to conviction upon him giving security by recognisance in the sum of $250.00 conditioned that he be of good behaviour for a period of 12 months.

4.    In respected of the appellant Jolliffe, the charges are proved however I order that Mr Jolliffe be released without proceeding to conviction upon him giving security by recognisance in the sum of $250.00 conditioned that he be of good behaviour for a period of 12 months.

CATCHWORDS:

APPEAL – SENTENCE – where appellants pleaded guilty to an offence of using a carriage service to harass under the Criminal Code Act 1995 (Cth) – where the Magistrate at 1^st instance recorded a conviction when imposing a fine – whether that penatly was manifestly excessive – whether the Magistrate incorrectly characterised the respective appellants’ conduct – whether Magistrate failed in the exercise of his discretion when not imposing an order under s 19B of the Crimes Act 1914 (Cth) – whether the Magistrate fell into error when adopting a mathematical approach to the question of penalty

Crimes Act 1914 (Cth), ss 16A & 19B
Criminal Code Act 1995 (Cth), s 474.17
District Court of Queensland Act 1967 (Qld), s 116(2)
Justices Act 1886 (Qld), ss 222 & 223

R v Hooper; ex parte Cth DPP [2008] QCA 308, applied
Commissioner of Taxation v Baffsky (2001) 192 ALR 92, applied
Cobiac v Liddy (1969) 119 CLR 257, considered

COUNSEL:

Mr B Mumford for the appellants
Mr M Freer for the respondent

SOLICITORS:

Southern Gold Coast Lawyers for the appellants
Commonwealth Director of Public Prosecutions for the respondent

Background

On the 3^rd April 2009 both appellants entered a plea of guilty in respect to the same charge, namely using a carriage service to harass Amanda Lynch (s 474.17 of the Criminal Code Act 1995 (Cth)) before the Magistrate’s Court at Coolangatta. The Magistrate convicted and fined each of the appellants $1200, in default 12 days imprisonment, under the relevant provision of the Crimes Act 1914 (Cth) (the Act).

A Notice of Appeal was filed on behalf of both appellants on the 28^th April 2009 with the Brisbane District Court Registry on the ground that the sentence imposed at 1^st instance was manifestly excessive. No point was taken by the Respondent in respect of the district which had been nominated to hear the respective appeals.…

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 Hermes-Smith v Winters

Details

AGLC: Hermes-Smith v Winters [2009] QDC 322
Case: [2009] QDC 322
Decision Date: 19 October 2009

CaseChat Overview and Summary

In the case of Hermes-Smith v Winters, the appellants were convicted by the Magistrates Court for using a carriage service to harass, in breach of the Criminal Code Act 1995 (Cth). They appealed to the Supreme Court on the grounds that the penalties imposed were manifestly excessive and that the Magistrate had incorrectly characterised their conduct. They also argued that the Magistrate failed to exercise his discretion when not imposing an order under s 19B of the Crimes Act 1914 (Cth) and that he erred in adopting a mathematical approach to determining penalty.

The court considered the nature of the offence, the circumstances of the case, and the principles of sentencing. It found that the Magistrate had not adequately considered the appellants' prospects of rehabilitation and the need to deter not only the appellants but also the broader community. The court also held that the Magistrate had failed to exercise his discretion in imposing an order under s 19B of the Crimes Act 1914 (Cth), as the appellants had shown remorse and had no prior convictions. Furthermore, the court found that the Magistrate had erred in adopting a mathematical approach to determining penalty, as this did not take into account the individual circumstances of the case.

The appeals were allowed, and the orders of the Magistrate were set aside. In lieu thereof, the court ordered that the charges be proved against the appellants but that they be released without proceeding to conviction upon giving security by recognisance in the sum of $250.00 conditioned that they be of good behaviour for a period of 12 months. The court emphasised the importance of considering the individual circumstances of each case when determining penalty and the need for Magistrates to exercise their discretion when imposing orders under s 19B of the Crimes Act 1914 (Cth).

Orders

Orders of the court

1. The appeals are allowed.

2. I set aside the orders of the Magistrate and in lieu thereof I make the following orders:

3. In respect of the appellant Hermes-Smith, the charges are proved however I order that Mr Hermes-Smith be released without proceeding to conviction upon him giving security by recognisance in the sum of $250.00 conditioned that he be of good behaviour for a period of 12 months.

4. In respected of the appellant Jolliffe, the charges are proved however I order that Mr Jolliffe be released without proceeding to conviction upon him giving security by recognisance in the sum of $250.00 conditioned that he be of good behaviour for a period of 12 months.

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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CITATION:	Hermes-Smith v Winters [2009] QDC 322
PARTIES:	KYLE DARRELL HERMES-SMITH (appellant) v TERRY WINTERS (respondent) NATHAN BRYCE JOLLIFFE (appellant) v TERRY WINTERS (respondent)
FILE NO/S:	BD 1161/09 BD 1162/09
DIVISION:	Appeal
PROCEEDING:	Appeal against sentence
ORIGINATING COURT:	Magistrate’s Court, Coolangatta
DELIVERED ON:	19 October 2009
DELIVERED AT:	Brisbane
HEARING DATE:	29 September 2009
JUDGE:	Ryrie DCJ
ORDER:	1. The appeals are allowed. 2. I set aside the orders of the Magistrate and in lieu thereof I make the following orders: 3. In respect of the appellant Hermes-Smith, the charges are proved however I order that Mr Hermes-Smith be released without proceeding to conviction upon him giving security by recognisance in the sum of $250.00 conditioned that he be of good behaviour for a period of 12 months. 4. In respected of the appellant Jolliffe, the charges are proved however I order that Mr Jolliffe be released without proceeding to conviction upon him giving security by recognisance in the sum of $250.00 conditioned that he be of good behaviour for a period of 12 months.
CATCHWORDS:	APPEAL – SENTENCE – where appellants pleaded guilty to an offence of using a carriage service to harass under the Criminal Code Act 1995 (Cth) – where the Magistrate at 1^st instance recorded a conviction when imposing a fine – whether that penatly was manifestly excessive – whether the Magistrate incorrectly characterised the respective appellants’ conduct – whether Magistrate failed in the exercise of his discretion when not imposing an order under s 19B of the Crimes Act 1914 (Cth) – whether the Magistrate fell into error when adopting a mathematical approach to the question of penalty Crimes Act 1914 (Cth), ss 16A & 19B Criminal Code Act 1995 (Cth), s 474.17 District Court of Queensland Act 1967 (Qld), s 116(2) Justices Act 1886 (Qld), ss 222 & 223 R v Hooper; ex parte Cth DPP [2008] QCA 308, applied Commissioner of Taxation v Baffsky (2001) 192 ALR 92, applied Cobiac v Liddy (1969) 119 CLR 257, considered
COUNSEL:	Mr B Mumford for the appellants Mr M Freer for the respondent
SOLICITORS:	Southern Gold Coast Lawyers for the appellants Commonwealth Director of Public Prosecutions for the respondent