JRB v Bird

Case [2009] QDC 277

DISTRICT COURT OF QUEENSLAND

CITATION:

JRB v Bird [2009] QDC 277

PARTIES:

JRB

(Appellant)

AND

CHRISTOPHER ROGER BIRD

(Respondent)

FILE NO/S:

BD3409/2008

DIVISION:

Appellate

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

Magistrates Court, Caboolture

DELIVERED ON:

1 June 2009 (delivered extempore)

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2009

JUDGE:

Irwin DCJ

ORDER:

1.                The appeal is allowed.

2.                The sentence of the Magistrate is set aside and in lieu thereof the appellant is convicted and not further punished. A conviction is recorded.

3.                The respondent pay the appellant’s costs of and incidental to this appeal as agreed or to be assessed.

CATCHWORDS:

CRIMINAL LAW – Appeal Against Sentence – breach of a domestic violence order – whether the sentencing court acted on a wrong principle or did not take into account some material consideration – whether the sentence was manifestly excessive – sentence set aside

CRIMINAL LAW – Sentence – breach of a domestic violence order – third breach of the order within 7 months – third breach 8 days after being sentenced for the second breach – no threats or physical violence involved – no other criminal history – reconciliation with aggrieved and order revoked before sentencing.

Domestic and Family Violence Act 1989, s 80

District Court of Queensland Act 1967, s 222(2)(c), s 223(1), s 225(1), s 225(3)

Penalties and Sentences Act 1992, s 9(1), s 9(2), s 11, s 12(1), s 12(2), s 13(1)

R v Dullroy and Yates, ex parte Attorney-General (Qld) [2005] QCA 219, considered

R v Fairbrother, ex parte Attorney-General (Qld) [2005] QCA 105, considered

House v The King (1936) 55 CLR 499, applied

Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, considered

R v Melano, ex parte Attorney-General [1995] 2 Qd R 186, applied

R v Sittczenko, ex parte Cth DPP [2005] QCA 461, considered

R v Wood [1994] QCA 297, considered

COUNSEL:

S.A. Lynch for the appellant

M.J. Litchen for the respondent

SOLICITORS:

Quinn and Scattini Lawyers for the appellant

Director of Public Prosecutions (Qld) for the respondent

DISTRICT COURT

CIVIL JURISDICTION

JUDGE IRWIN

No 3409 of 2008

J.R.B Applicant

and
CHRISTOPHER ROGER BIRD Respondent

BRISBANE

..DATE 01/06/2009

ORDER

HIS HONOUR: On 21 November 2008 the appellant was convicted on a plea of guilty in the Caboolture Magistrates Court of one charge of breaching a domestic violence order also known as a protection order having been served with that order, contrary to section 80, sub-section 1, paragraph (b) of the Domestic and Family Violence Protection Act 1989. I will refer to it as the Act during the course of this decision.

The learned Magistrate sentenced the appellant to six months imprisonment with a parole release date fixed on 21 December 2008 after serving one month of that sentence.  The appeal is on the ground that the sentence is manifestly excessive in all the circumstances.  The appellant was granted bail on 12 December 2008 in the Caboolture Magistrates Court pending the appeal.  He had…

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Details
AGLC
JRB v Bird [2009] QDC 277
Case
[2009] QDC 277
Decision Date

CaseChat Overview and Summary

The case of JRB v Bird involved an appeal against a sentence imposed for breaching a domestic violence order. The respondent, JRB, had been found guilty of breaching the order on three occasions within a span of seven months. The appellant, Bird, argued that the sentence imposed was excessive and that the magistrate had erred in sentencing. The matter was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the sentencing court had acted on a wrong principle or failed to consider some material consideration. The appellant contended that the magistrate did not adequately consider the lack of physical violence or threats involved in the third breach, the appellant's absence of any other criminal history, and the reconciliation with the aggrieved party which led to the order being revoked before sentencing. The appellant further argued that the sentence was manifestly excessive.

The court considered the submissions made by the appellant and reviewed the sentencing remarks of the magistrate. The court found that the magistrate did not sufficiently weigh the absence of physical violence or threats, the appellant's clean criminal record, and the reconciliation with the aggrieved party, which all pointed towards a lesser penalty. The court determined that the sentence imposed was manifestly excessive, given the circumstances of the case. Consequently, the appeal was allowed, the sentence was set aside, and the appellant was convicted but not further punished. The court also ordered the respondent to pay the appellant's costs of and incidental to the appeal.

Orders

Orders of the court

1. The appeal is allowed.

2. The sentence of the Magistrate is set aside and in lieu thereof the appellant is convicted and not further punished. A conviction is recorded.

3. The respondent pay the appellant’s costs of and incidental to this appeal as agreed or to be assessed.

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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