JKT v QPS - [2014] QDC 298

DISTRICT COURT OF QUEENSLAND

CITATION:

JKT v QPS [2014] QDC 298 (delivered ex tempore)

PARTIES:

JKT

(appellant)

v

Queensland Police Service

(respondent)

FILE NO:

Mount Isa 4/2014

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Mount Isa

DELIVERED ON:

21 October 2014

DELIVERED AT:

Mount Isa

HEARING DATE:

20 October 2014

JUDGE:

Kingham DCJ

ORDER:

1. Appeal allowed.

2. Appellant re-sentenced for assault occasioning bodily harm to 6 months imprisonment.

3. Parole release date for all three sentences fixed at 21 October 2014.

4. Pre-sentence custody of 7 days declared on all three sentences.

CATCHWORDS:

CRIMINAL LAW - APPEAL AGAINST SENTENCE - SCOPE OF APPELLATE JURISDICTION - Section 222(2)(c) Justices Act 1886 (Qld) - whether an appeal against an exercise of discretion can only succeed if sentence is excessive - where concluded that scope of successful appeals against exercise of discretion is wider than manifestly excessive sentences alone - whether an appeal against an exercise of discretion can succeed on an error of law alone - where concluded that scope of successful appeals against exercise of discretion includes errors of law

CRIMINAL LAW - APPEAL AGAINST SENTENCE - ERROR OF LAW - GUILTY PLEA - where learned Magistrate failed to state how plea of guilty taken into account - whether there is an obligation to state that the plea has been taken into account and how - where found that learned Magistrate erred in this regard

CRIMINAL LAW - APPEAL AGAINST SENTENCE - ERROR OF LAW - VIOLENT OFFENCE - Penalties and Sentences Act 1992 (Qld) Section 9(3)(a) - where learned Magistrate did not refer to risk to the community if custodial sentence not imposed - where learned Magistrate erred by using imprisonment as a starting point for the sentence

CRIMINAL LAW - APPEAL AGAINST SENTENCE - PROSPECTS OF REHABILITATION - where learned Magistrate considered a court report regarding the appellant's performance on a probation order - where learned Magistrate did not err by concluding that a community based order was not open

CRIMINAL LAW - APPEAL AGAINST SENTENCE - ERROR OF LAW - MISUNDERSTANDING OR MISSTATEMENT OF FACTS - where incident occurred while 200 people on street - where only appellant and complainant involved in incident - where learned Magistrate erred by proceeding on an incorrect factual basis

COUNSEL:

D Castor for the appellant

D Orr for the respondent

SOLICITORS:

Aboriginal and Torres Strait Islander Legal Service for the appellant

Office of the Director of Public Prosecutions for the respondent

HER HONOUR: This is an appeal against sentences imposed by Magistrate Mr Ross Mack at Doomadgee Magistrates Court on the 10^th of April 2014. On that occasion, he sentenced the appellant for a number of offences, but it is only the sentences in relation to assault occasioning bodily harm, common assault and public nuisance that are under appeal.

The offence of common assault involved the first complainant. That involved a slap to the right side of her face. It caused her to fall off her…

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 JKT v QPS

Details

AGLC: JKT v QPS [2014] QDC 298
Case: [2014] QDC 298
Decision Date: 21 October 2014

CaseChat Overview and Summary

In the case of JKT v QPS, the appellant appealed against his sentence for assault occasioning bodily harm, as well as for two other offences. The Queensland Court of Appeal was tasked with reviewing the legal issues presented in this appeal. The primary legal issue before the court was the scope of its appellate jurisdiction regarding appeals against sentences, specifically whether such appeals can only succeed if the sentence is manifestly excessive, and whether they can succeed based on errors of law alone. The court also examined whether the magistrate erred in failing to adequately consider the appellant's guilty plea, in not referring to the risk to the community if a non-custodial sentence was imposed, and in misunderstanding or misstating the facts of the case.

The Court of Appeal found that the scope of successful appeals against the exercise of sentencing discretion is broader than merely manifestly excessive sentences. It can include cases where there has been an error of law. The court held that the magistrate did indeed err in not stating how the guilty plea was taken into account and by not referring to the risk to the community if a non-custodial sentence was imposed. Furthermore, the magistrate erred by starting the sentencing process with imprisonment as the default option and by proceeding on an incorrect factual basis regarding the number of people present during the incident. The court did not find fault with the magistrate's consideration of the appellant's prospects of rehabilitation.

The Court of Appeal allowed the appeal, re-sentenced the appellant for the assault occasioning bodily harm to six months imprisonment, and fixed the parole release date for all three sentences at 21 October 2014. The court also declared that the appellant's pre-sentence custody of seven days would apply to all three sentences. This decision underscores the importance of adherence to legal principles in sentencing and the appellate court's role in ensuring these principles are upheld.

Orders

Orders of the court

1. Appeal allowed.

2. Appellant re-sentenced for assault occasioning bodily harm to 6 months imprisonment.

3. Parole release date for all three sentences fixed at 21 October 2014.

4. Pre-sentence custody of 7 days declared on all three sentences.

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:	JKT v QPS [2014] QDC 298 (delivered ex tempore)
PARTIES:	JKT (appellant) v Queensland Police Service (respondent)
FILE NO:	Mount Isa 4/2014
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Mount Isa
DELIVERED ON:	21 October 2014
DELIVERED AT:	Mount Isa
HEARING DATE:	20 October 2014
JUDGE:	Kingham DCJ
ORDER:	1. Appeal allowed. 2. Appellant re-sentenced for assault occasioning bodily harm to 6 months imprisonment. 3. Parole release date for all three sentences fixed at 21 October 2014. 4. Pre-sentence custody of 7 days declared on all three sentences.
CATCHWORDS:	CRIMINAL LAW - APPEAL AGAINST SENTENCE - SCOPE OF APPELLATE JURISDICTION - Section 222(2)(c) Justices Act 1886 (Qld) - whether an appeal against an exercise of discretion can only succeed if sentence is excessive - where concluded that scope of successful appeals against exercise of discretion is wider than manifestly excessive sentences alone - whether an appeal against an exercise of discretion can succeed on an error of law alone - where concluded that scope of successful appeals against exercise of discretion includes errors of law CRIMINAL LAW - APPEAL AGAINST SENTENCE - ERROR OF LAW - GUILTY PLEA - where learned Magistrate failed to state how plea of guilty taken into account - whether there is an obligation to state that the plea has been taken into account and how - where found that learned Magistrate erred in this regard CRIMINAL LAW - APPEAL AGAINST SENTENCE - ERROR OF LAW - VIOLENT OFFENCE - Penalties and Sentences Act 1992 (Qld) Section 9(3)(a) - where learned Magistrate did not refer to risk to the community if custodial sentence not imposed - where learned Magistrate erred by using imprisonment as a starting point for the sentence CRIMINAL LAW - APPEAL AGAINST SENTENCE - PROSPECTS OF REHABILITATION - where learned Magistrate considered a court report regarding the appellant's performance on a probation order - where learned Magistrate did not err by concluding that a community based order was not open CRIMINAL LAW - APPEAL AGAINST SENTENCE - ERROR OF LAW - MISUNDERSTANDING OR MISSTATEMENT OF FACTS - where incident occurred while 200 people on street - where only appellant and complainant involved in incident - where learned Magistrate erred by proceeding on an incorrect factual basis
COUNSEL:	D Castor for the appellant D Orr for the respondent
SOLICITORS:	Aboriginal and Torres Strait Islander Legal Service for the appellant Office of the Director of Public Prosecutions for the respondent