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Hess v McKeown

Hess v McKeown

Case [2009] QDC 302 14 August 2009

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DISTRICT COURT OF QUEENSLAND

CITATION:

Hess v McKeown [2009] QDC 302

PARTIES:

WAYNE RICHARD HESS

(Appellant)

AND

ALISHA JANE McKEOWN

(Respondent)

FILE NO/S:

581/2009

DIVISION:

Appellate

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

Magistrates Court at Richlands

DELIVERED ON:

14 August 2009 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

13 August 2009

JUDGE:

Irwin DCJ

ORDER:

1.     Appeal allowed.

2.     The sentences imposed by the Richlands Magistrates Court on 18 February 2009 are set aside.

3.     The orders made by the Richlands Magistrates Court on 18 February 2009 activating the whole of the 12 months suspended sentences imposed on 12 March 2008 and the six month suspended sentences in respect of which the operational period was extended on that date, are set aside.

4.     It is ordered that nine months each of the two 12 months suspended sentences imposed on 12 March 2008 be activated from 18 February 2009.

5.     No action is taken in relation to the breaches of the three 6 month suspended sentences in respect of which the operational period was extended on 12 March 2008 because on the authority of R v Muller (2006) 2 Qd R 126 the court has no power to deal with the appellant for a breach of a suspended sentence as a consequence of the offences committed during the extended operational period.

6.     (a)     On the charge of common assault the appellant is sentenced to imprisonment for a term of 6 months, from 18 February 2009.

(b)    On the charge of assault police the appellant is sentenced to imprisonment for a term of 4 months, from 18 February 2009.

(c)     On each of the charges of obstruct police the appellant is sentenced to imprisonment for a term of 1 month, from 18 February 2009.

(d)    On the charge of public nuisance the appellant is sentenced to imprisonment for a term of 1 month, from 18 February 2009.

(e)     On the charge of failing to provide a specimen of breath the appellant is sentenced to imprisonment for a term of 1 month, from 18 February 2009.

7.     It is ordered that all sentences be served concurrently and that a conviction is recorded in respect of each charge.

8.     The parole release date of 17 November 2009 is set aside.

9.     It is ordered that the parole release date be 14 August 2009.

10.     (a)     Between 16 November 2008 and 18 February 2009 the appellant was held in pre sentence custody;

(b)    The term that the appellant was held in pre sentence custody was 94 days;

(c)     It is declared that no time is taken to be imprisonment already served under the sentence.

11.    No order as to costs.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant was convicted on his guilty plea of two charges of obstruct police and of one charge each of common assault, assault police, public nuisance and failing to provide…

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 Hess v McKeown

Details

AGLC: Hess v McKeown [2009] QDC 302
Case: [2009] QDC 302
Decision Date: 14 August 2009 (ex tempore)

CaseChat Overview and Summary

Hess appealed against the sentence imposed by the Richlands Magistrates Court following his conviction on multiple charges including obstructing police, assault, public nuisance, and failing to provide a specimen of breath. The primary contention was the sentence's fairness and proportionality, given that Hess was already serving time under activated suspended sentences for previous offences. Hess argued that the cumulative effect of the sentences was manifestly excessive, especially considering his efforts at rehabilitation, early plea of guilty, and family circumstances.

The legal issues in the case revolved around whether the activation of suspended sentences for breaches occurring during their extended operational period was permissible under the Penalties and Sentences Act 1992 (Qld). Additionally, the court examined whether the failure to explicitly state that Hess's early plea of guilty was taken into account constituted a significant error. The court also considered whether the sentencing magistrate's failure to clearly explain how pre-sentence custody was factored into the sentence constituted a discernible error of principle. Lastly, the court addressed whether the magistrate's decision to set Hess's parole release date significantly past the halfway point of his head sentence required more reasoned explanation.

The court found that while Hess's overall sentence was manifestly excessive, the failure to consider his early plea of guilty and the unclear treatment of his pre-sentence custody did not constitute a discernible error of principle warranting re-exercise of the sentencing discretion. The court held that it had no jurisdiction to activate suspended sentences for breaches occurring during their extended operational period. Consequently, the appeal was allowed, and the sentences were adjusted to ensure fairness. The revised sentences were to be served concurrently, with the parole release date appropriately adjusted. Hess's pre-sentence custody was not to be counted as time already served under the sentence.

Orders

Orders of the court

1. Appeal allowed.

2. The sentences imposed by the Richlands Magistrates Court on 18 February 2009 are set aside.

3. The orders made by the Richlands Magistrates Court on 18 February 2009 activating the whole of the 12 months suspended sentences imposed on 12 March 2008 and the six month suspended sentences in respect of which the operational period was extended on that date, are set aside.

4. It is ordered that nine months each of the two 12 months suspended sentences imposed on 12 March 2008 be activated from 18 February 2009.

5. No action is taken in relation to the breaches of the three 6 month suspended sentences in respect of which the operational period was extended on 12 March 2008 because on the authority of R v Muller (2006) 2 Qd R 126 the court has no power to deal with the appellant for a breach of a suspended sentence as a consequence of the offences committed during the extended operational period.

6. (a) On the charge of common assault the appellant is sentenced to imprisonment for a term of 6 months, from 18 February 2009.

(b) On the charge of assault police the appellant is sentenced to imprisonment for a term of 4 months, from 18 February 2009.

(c) On each of the charges of obstruct police the appellant is sentenced to imprisonment for a term of 1 month, from 18 February 2009.

(d) On the charge of public nuisance the appellant is sentenced to imprisonment for a term of 1 month, from 18 February 2009.

(e) On the charge of failing to provide a specimen of breath the appellant is sentenced to imprisonment for a term of 1 month, from 18 February 2009.

7. It is ordered that all sentences be served concurrently and that a conviction is recorded in respect of each charge.

8. The parole release date of 17 November 2009 is set aside.

9. It is ordered that the parole release date be 14 August 2009.

10. (a) Between 16 November 2008 and 18 February 2009 the appellant was held in pre sentence custody;

(b) The term that the appellant was held in pre sentence custody was 94 days;

11. No order as to costs.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Hess v McKeown [2009] QDC 302

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Cases cited in this decision · 16 of 16 shown

R v Newman
[2008] QCA 147

…pplied R v Newson [2008] QCA 147, cited R v Sittczenko, ex parte Cth DPP [2005] QCA 461, cited COUNSEL: H. Posner for the appellant M.J. Litchen for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions (Qld) for the respondent…
R v Kitson
[2008] QCA 86

…cussed R v Kitson [2008] QCA 86, applied R v Mallon [1997] QCA 058, applied R v Melano, ex parte Attorney-General [1995] 2 Qd R 186, applied R v Mladenovic, ex parte Attorney-General [2006] QCA 176, cited R v Muller [2006] 2 Qd R 126, applied R v Newson [2008] QCA 147, cited R v Sittczenko, ex parte Cth DPP [200…
R v Norton
[2007] QCA 320

…ilty and personal circumstances, a parole release date, which is significantly beyond the midpoint of the head sentence is very unusualcf R v. Norton [2007] QCA 320, per Douglas J; So much was not in contention in this application. If such an unusual order is to be made, in my opinion the duty to give reasons req…
R v McDougall and Collas
[2006] QCA 365 Para 5

…ing of course, as has been confirmed by decisions of this Court in cases such as R v. Cunningham [2005] QCA 321 at [5], and R v. McDougall and Collas [2006] QCA 365 at [19]." As the Court concluded in that case at paragraph 24, for these reasons, my view is that the sentence imposed by the learned sentencing Judg…
Parry v Mayfield Holdings (Qld) Pty Ltd
[2006] QDC 250

…ngs (Qld) Pty Ltd [2006] QDC 250, cited R v Dullroy and Yates, ex parte Attorney-General (Qld) [2005] QCA 219, cited R v Hess [2002] QCA 184, discussed R v Kitson [2008] QCA 86, applied R v Mallon [1997] QCA 058, applied R v Melano, ex parte Attorney-General [1995] 2 Qd R 186, applied R v Mladenovic, ex parte Att…
R v Mladenovic; ex parte Attorney-General
[2006] QCA 176

…Attorney-General [2006] QCA 176, cited R v Muller [2006] 2 Qd R 126, applied R v Newson [2008] QCA 147, cited R v Sittczenko, ex parte Cth DPP [2005] QCA 461, cited COUNSEL: H. Posner for the appellant M.J. Litchen for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecuti…
R v Sittczenko; ex parte
[2005] QCA 461

…ex parte Cth DPP [2005] QCA 461, cited COUNSEL: H. Posner for the appellant M.J. Litchen for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions (Qld) for the respondent…
R v Cunningham
[2005] QCA 321 Para 5

…ph 23, the Court states, "The rule applies to sentencing of course, as has been confirmed by decisions of this Court in cases such as R v. Cunningham [2005] QCA 321 at [5], and R v. McDougall and Collas [2006] QCA 365 at [19]." As the Court concluded in that case at paragraph 24, for these reasons, my view is tha…
R v Dullroy and Yates; ex parte
[2005] QCA 219

…ney-General (Qld) [2005] QCA 219, cited R v Hess [2002] QCA 184, discussed R v Kitson [2008] QCA 86, applied R v Mallon [1997] QCA 058, applied R v Melano, ex parte Attorney-General [1995] 2 Qd R 186, applied R v Mladenovic, ex parte Attorney-General [2006] QCA 176, cited R v Muller [2006] 2 Qd R 126, applied R v…
Markarian v The Queen
[2005] HCA 25

…ied Markarian v R (2005) 228 CLR 357, cited Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, cited R v Dullroy and Yates, ex parte Attorney-General (Qld) [2005] QCA 219, cited R v Hess [2002] QCA 184, discussed R v Kitson [2008] QCA 86, applied R v Mallon [1997] QCA 058, applied R v Melano, ex parte Attorney-G…
R v Hess
[2002] QCA 184

…9, cited R v Hess [2002] QCA 184, discussed R v Kitson [2008] QCA 86, applied R v Mallon [1997] QCA 058, applied R v Melano, ex parte Attorney-General [1995] 2 Qd R 186, applied R v Mladenovic, ex parte Attorney-General [2006] QCA 176, cited R v Muller [2006] 2 Qd R 126, applied R v Newson [2008] QCA 147, cited R…
House v R
[1936] HCA 40

…House v The King (1936) 55 CLR 499, applied Markarian v R (2005) 228 CLR 357, cited Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, cited R v Dullroy and Yates, ex parte Attorney-General (Qld) [2005] QCA 219, cited R v Hess [2002] QCA 184, discussed R v Kitson [2008] QCA 86, applied R v Mallon [1997] QCA 05…
The Queen v Mallon
[1997] QCA 058

…pplied R v Mallon [1997] QCA 058, applied R v Melano, ex parte Attorney-General [1995] 2 Qd R 186, applied R v Mladenovic, ex parte Attorney-General [2006] QCA 176, cited R v Muller [2006] 2 Qd R 126, applied R v Newson [2008] QCA 147, cited R v Sittczenko, ex parte Cth DPP [2005] QCA 461, cited COUNSEL: H. Posne…
[1997] QCA 439
[1997] QCA 439

…from Kitson, because it was not a case which involved the consequences of breaching previous orders of the Court, and on the authority of R v. Waters [1997] QCA 439, the activation of a suspended sentence does not amount to an order that is imposed at the time of activation. It is submitted that the activated sen…
House v The King
63 WN 176

…B), s 160, s 160A House v The King (1936) 55 CLR 499, applied Markarian v R (2005) 228 CLR 357, cited Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, cited R v Dullroy and Yates, ex parte Attorney-General (Qld) [2005] QCA 219, cited R v Hess [2002] QCA 184, discussed R v Kitson [2008] QCA 86, applied R v Mallon [1…
[1981] AC 1038
[1981] AC 1038

…As was said, commencing at paragraph 22, "In re Hamilton, in re Forrest [1981] AC 1038, Lord Fraser of Tullybelton said at 1045 that, "One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that h…

Legislation cited in this decision · 5

Justices Act 1886 (Qld)
222(1) 2 mentions
Penalties and Sentences Act 1992 (Qld)
13(3) 2 mentions
Police Powers and Responsibilities Act 2000 (Qld)
1 mention
Summary Offences Act 1995 (NT)
1 mention
Transport Operations (Road Use Management) Act 1995 (Qld)
1 mention

CITATION:	Hess v McKeown [2009] QDC 302
PARTIES:	WAYNE RICHARD HESS (Appellant) AND ALISHA JANE McKEOWN (Respondent)
FILE NO/S:	581/2009
DIVISION:	Appellate
PROCEEDING:	Appeal against sentence
ORIGINATING COURT:	Magistrates Court at Richlands
DELIVERED ON:	14 August 2009 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	13 August 2009
JUDGE:	Irwin DCJ
ORDER:	1. Appeal allowed. 2. The sentences imposed by the Richlands Magistrates Court on 18 February 2009 are set aside. 3. The orders made by the Richlands Magistrates Court on 18 February 2009 activating the whole of the 12 months suspended sentences imposed on 12 March 2008 and the six month suspended sentences in respect of which the operational period was extended on that date, are set aside. 4. It is ordered that nine months each of the two 12 months suspended sentences imposed on 12 March 2008 be activated from 18 February 2009. 5. No action is taken in relation to the breaches of the three 6 month suspended sentences in respect of which the operational period was extended on 12 March 2008 because on the authority of R v Muller (2006) 2 Qd R 126 the court has no power to deal with the appellant for a breach of a suspended sentence as a consequence of the offences committed during the extended operational period. 6. (a) On the charge of common assault the appellant is sentenced to imprisonment for a term of 6 months, from 18 February 2009. (b) On the charge of assault police the appellant is sentenced to imprisonment for a term of 4 months, from 18 February 2009. (c) On each of the charges of obstruct police the appellant is sentenced to imprisonment for a term of 1 month, from 18 February 2009. (d) On the charge of public nuisance the appellant is sentenced to imprisonment for a term of 1 month, from 18 February 2009. (e) On the charge of failing to provide a specimen of breath the appellant is sentenced to imprisonment for a term of 1 month, from 18 February 2009. 7. It is ordered that all sentences be served concurrently and that a conviction is recorded in respect of each charge. 8. The parole release date of 17 November 2009 is set aside. 9. It is ordered that the parole release date be 14 August 2009. 10. (a) Between 16 November 2008 and 18 February 2009 the appellant was held in pre sentence custody; (b) The term that the appellant was held in pre sentence custody was 94 days; (c) It is declared that no time is taken to be imprisonment already served under the sentence. 11. No order as to costs.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant was convicted on his guilty plea of two charges of obstruct police and of one charge each of common assault, assault police, public nuisance and failing to provide…