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LDS v QRR

LDS v QRR

Case [2017] QDC 199 15 June 2017

Appeal

Sentencing

Manifestly Excessive Sentence

Cumulativity of Sentences

Criminal Law

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DISTRICT COURT OF QUEENSLAND

CITATION:

LDS v QRR [2017] QDC 199

PARTIES:

LDS

(appellant)

v

QRR

(respondent)

FILE NO/S:

D37 of 2017

DIVISION:

Appellate

PROCEEDING:

s222 Appeal

ORIGINATING COURT:

Coolangatta Magistrates Court

DELIVERED ON:

15 June 2017 (delivered ex-tempore)

DELIVERED AT:

Southport

HEARING DATE:

15 June 2017

JUDGE:

Muir DCJ

ORDER:

1.   The appeal is allowed

2.   The sentences imposed on 3 February 2017 are set aside and the following sentences imposed in lieu

a.   In relation to the charge of contravention of a domestic violence order on 8 October 2016, the defendant is sentenced to three months imprisonment

b.   In relation to the charge of contravention of a domestic violence order on 15 November 2016, the appellant is sentenced to six months imprisonment

c.   In relation to the charge of contravention of a domestic violence order on 16 November 2016, the appellant is sentenced to nine months imprisonment

d.   In relation to the charge of wilful damage on 16 November 2016, the appellant is sentenced to six months imprisonment

e.   In relation to the charge of common assault on 16 November 2016, the appellant is sentenced to three months imprisonment

3.   The defendant’s parole release date is fixed at 15 June 2017, and the 133 days spent in pre-sentence custody between 3 February 2017 and 15 June 2017 is declared to be time already served under this sentence

4.   The sentences are ordered to run concurrently

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where appellant pleaded guilty to three counts of contravening a domestic violence order, one count of wilful damage and one count of common assault – where the appellant was sentenced to a cumulative sentence totalling 18 months imprisonment with a parole release date after 6 months – where counsel for the prosecution and defence were not given an opportunity to be heard as to whether it is appropriate to order the sentences to run cumulatively – whether the Magistrate erred in not inviting submissions on the cumulative aspect of the sentence - whether the Magistrate erred by placing disproportionate weight on general community deterrence to the detriment of the appellant’s features in mitigation – whether the sentence was manifestly excessive.

Domestic and Family Violence Protection Act 2012 (Qld)
Justices Act 1886 s 222(2)(c), 225(1)
Penalties and Sentences Act 1992 (Qld) s 9

Chapman v Queensland Police Service [2016] QDC 141, cited
Gibuma v Queensland Police Service [2016] QDC 183, considered
House v R (1936) 55 CLR 499, followed
Hutchin v West [2015] ACTSC 55, cited
IFM v Queensland Police Service [2016] QDC 140, followed
JHL v Commissioner of Police [2016] QDC 346, considered
Lowe v The Queen (1984) 154 CLR 606, cited
Re Criminal Proceeds Confiscation Act 2002 (2004) 1 Qd R 40, cited
R v Cunningham [2005] QCA 321, followed
R v Fairbrother; ex parte Attorney-General [2005] QCA 105, considered
R…

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 LDS v QRR

Details

AGLC: LDS v QRR [2017] QDC 199
Case: [2017] QDC 199
Decision Date: 15 June 2017

CaseChat Overview and Summary

In the case of LDS v QRR, LDS appealed against the sentence imposed by the Magistrates Court, arguing that it was manifestly excessive and that the Magistrate erred in not inviting submissions on the cumulative aspect of the sentence and by placing disproportionate weight on general community deterrence. LDS pleaded guilty to three counts of contravening a domestic violence order, one count of wilful damage and one count of common assault, and was sentenced to a cumulative sentence totalling 18 months imprisonment with a parole release date after 6 months. The court was required to determine whether the Magistrate erred in not inviting submissions on the cumulative aspect of the sentence and by placing disproportionate weight on general community deterrence to the detriment of the appellant’s features in mitigation and whether the sentence was manifestly excessive.

The court found that the Magistrate did not invite submissions from counsel for the prosecution and defence on whether it was appropriate to order the sentences to run cumulatively, which was an error. The court also found that the Magistrate placed disproportionate weight on general community deterrence to the detriment of the appellant’s features in mitigation. The court found that the sentence was manifestly excessive and that the Magistrate failed to adequately consider the appellant’s features in mitigation. The court allowed the appeal and set aside the sentences imposed on 3 February 2017, imposing new sentences in their place. The new sentences are to run concurrently, with the appellant’s parole release date fixed at 15 June 2017, and the 133 days spent in pre-sentence custody between 3 February 2017 and 15 June 2017 is declared to be time already served under this sentence.

Orders

Orders of the court

1. The appeal is allowed

2. The sentences imposed on 3 February 2017 are set aside and the following sentences imposed in lieu

a. In relation to the charge of contravention of a domestic violence order on 8 October 2016, the defendant is sentenced to three months imprisonment

b. In relation to the charge of contravention of a domestic violence order on 15 November 2016, the appellant is sentenced to six months imprisonment

c. In relation to the charge of contravention of a domestic violence order on 16 November 2016, the appellant is sentenced to nine months imprisonment

d. In relation to the charge of wilful damage on 16 November 2016, the appellant is sentenced to six months imprisonment

e. In relation to the charge of common assault on 16 November 2016, the appellant is sentenced to three months imprisonment

3. The defendant’s parole release date is fixed at 15 June 2017, and the 133 days spent in pre-sentence custody between 3 February 2017 and 15 June 2017 is declared to be time already served under this sentence

4. The sentences are ordered to run concurrently

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

LDS v QRR [2017] QDC 199

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 16 of 16 shown

JHL v Commissioner of Police
[2016] QDC 346 Para 1

…JHL v Commissioner of Police [2016] QDC 346 was an appeal against an effective head sentence of 12 months’ imprisonment for three counts of contravening a domestic violence order and one count of common assault. That appeal was dismissed. The conduct in that matter related to the complainant sending threatening t…
Gibuma v Queensland Police Service
[2016] QDC 183 Para 1

…Before me today, I have been referred to Gibuma v Queensland Police Service [2016] QDC 183. On appeal, the appellant’s head sentence of three years’ imprisonment for one count of contravening a domestic violence order with lesser concurrent terms of 12 months’ imprisonment for a further contravention as well as t…
Chapman v Queensland Police Service
[2016] QDC 141 Para 1

…e the appropriate range as to demonstrate inconsistency and unfairness.[4] [4]See the summary of Judge Durward in Chapman v Queensland Police Service [2016] QDC 141 with reference to R v Morse (1979) 23 SASR 98, R v Lemass (1981) 5 A Crim R 230, R v McIntosh (1923) St R Qd 2708 and Lowe v The Queen (1984) 154 CLR…
IFM v Queensland Police Service
[2016] QDC 140 Para 1

…now to the issue of whether or not the sentence was manifestly excessive. As the court identified in the decision of IFM v Queensland Police Service [2016] QDC 140:…
Andrew Hutcheon v Timothy James West
[2015] ACTSC 55 Para 1

…ous and prevalent effects of such offending to the community at large. The learned Magistrate also quoted a portion of the decision of Hutchin v West [2015] ACTSC 55, which noted how such offences could sometimes occur due to the trust placed by the complainant in the appellant.…
Shambayati v Commissioner of Police
[2013] QCA 57

…[1999] QCA 125, followed R v Morse (1979) 23 SASR 98, cited R v Wood [1994] QCA 297, cited Shambayati v Commissioner of Police [2013] QCA 57, considered COUNSEL: T.G Zwoerner (sol) for the appellant E Brackin (legal officer) for the respondent SOLICITORS: Legal Aid for the appellant Department of Public Prosecu…
The Queen v Morse
[2009] NZCA 51 Para 1

…nconsistency and unfairness.[4] [4]See the summary of Judge Durward in Chapman v Queensland Police Service [2016] QDC 141 with reference to R v Morse (1979) 23 SASR 98, R v Lemass (1981) 5 A Crim R 230, R v McIntosh (1923) St R Qd 2708 and Lowe v The Queen (1984) 154 CLR 606.…
R v Lawley
[2007] QCA 243 Para 1

…cise of the discretion cannot be interfered with unless an error is apparent. As identified by Justice of Appeal Keane (as he then was) in R v Lawley [2007] QCA 243:…
R v King
[2006] QCA 466 Para 1

…xcessive, it is not manifestly so, when regard is had to authorities such as R v Fairbrother; ex parte Attorney-General [2005] QCA 105 and R v King [2006] QCA 466.…
R v Cunningham
[2005] QCA 321 Para 1

…I have considered the decision of R v Cunningham [2005] QCA 321, particularly the comments of Justice of Appeal Keane (as he then was) that:…
R v Fairbrother; ex parte Attorney-General
[2005] QCA 105 Para 1

…g the course of the sentence, his Honour quoted passages from the Queensland Court of Appeal decisions of R v Wood [1994] QCA 297 and R v Fairbrother [2005] QCA 105, which speak of the need to give credence to orders as well the insidious and prevalent effects of such offending to the community at large. The lear…
R v Moodie
[1999] QCA 125

…R v Lawley [2007] QCA 243, followed R v Lemass (1981) 5 A Crim R 230, cited R v McIntosh [1923] St R Qd 2708, cited R v Moodie [1999] QCA 125, followed R v Morse (1979) 23 SASR 98, cited R v Wood [1994] QCA 297, cited Shambayati v Commissioner of Police [2013] QCA 57, considered COUNSEL: T.G Zwoerner (sol) for t…
R v Wood
[1994] QCA 297 Para 1

…During the course of the sentence, his Honour quoted passages from the Queensland Court of Appeal decisions of R v Wood [1994] QCA 297 and R v Fairbrother [2005] QCA 105, which speak of the need to give credence to orders as well the insidious and prevalent effects of such offending to the community at large. The…
House v R
[1936] HCA 40 Para 1

…uld be determined is governed by established principles which are uncontroversial and set out by Justices Dixon, Evatt and McTiernan in the House v R (1936) 55 CLR 499.[5] [5](1936) 55 CLR 499 at pages 504 to 505.…
Lowe v R
[1984] HCA 46 Para 1

…[2016] QDC 141 with reference to R v Morse (1979) 23 SASR 98, R v Lemass (1981) 5 A Crim R 230, R v McIntosh (1923) St R Qd 2708 and Lowe v The Queen (1984) 154 CLR 606.…
[1981] AC 1038
[1981] AC 1038

…nd Court of Appeal in Re Criminal Proceeds Confiscation Act 2002 [2004] 1 Qd R 40 [10] and the comments of Lord Fraser in Forrest v Brighton Justices [1981] AC 1038 that: [10][2004] 1 Qd R 40 at [45].…

Legislation cited in this decision · 4

Justices Act 1886 (Qld)
222(2)(c), 225(1) 3 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
9 2 mentions (from Para 1)
Domestic and Family Violence Protection Act 2012 (Qld)
1 mention (from Para 1)
Re Criminal Proceeds Confiscation Act 2002
1 mention

CITATION:	LDS v QRR [2017] QDC 199
PARTIES:	LDS (appellant) v QRR (respondent)
FILE NO/S:	D37 of 2017
DIVISION:	Appellate
PROCEEDING:	s222 Appeal
ORIGINATING COURT:	Coolangatta Magistrates Court
DELIVERED ON:	15 June 2017 (delivered ex-tempore)
DELIVERED AT:	Southport
HEARING DATE:	15 June 2017
JUDGE:	Muir DCJ
ORDER:	1. The appeal is allowed 2. The sentences imposed on 3 February 2017 are set aside and the following sentences imposed in lieu a. In relation to the charge of contravention of a domestic violence order on 8 October 2016, the defendant is sentenced to three months imprisonment b. In relation to the charge of contravention of a domestic violence order on 15 November 2016, the appellant is sentenced to six months imprisonment c. In relation to the charge of contravention of a domestic violence order on 16 November 2016, the appellant is sentenced to nine months imprisonment d. In relation to the charge of wilful damage on 16 November 2016, the appellant is sentenced to six months imprisonment e. In relation to the charge of common assault on 16 November 2016, the appellant is sentenced to three months imprisonment 3. The defendant’s parole release date is fixed at 15 June 2017, and the 133 days spent in pre-sentence custody between 3 February 2017 and 15 June 2017 is declared to be time already served under this sentence 4. The sentences are ordered to run concurrently
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where appellant pleaded guilty to three counts of contravening a domestic violence order, one count of wilful damage and one count of common assault – where the appellant was sentenced to a cumulative sentence totalling 18 months imprisonment with a parole release date after 6 months – where counsel for the prosecution and defence were not given an opportunity to be heard as to whether it is appropriate to order the sentences to run cumulatively – whether the Magistrate erred in not inviting submissions on the cumulative aspect of the sentence - whether the Magistrate erred by placing disproportionate weight on general community deterrence to the detriment of the appellant’s features in mitigation – whether the sentence was manifestly excessive. Domestic and Family Violence Protection Act 2012 (Qld) Justices Act 1886 s 222(2)(c), 225(1) Penalties and Sentences Act 1992 (Qld) s 9 Chapman v Queensland Police Service [2016] QDC 141, cited Gibuma v Queensland Police Service [2016] QDC 183, considered House v R (1936) 55 CLR 499, followed Hutchin v West [2015] ACTSC 55, cited IFM v Queensland Police Service [2016] QDC 140, followed JHL v Commissioner of Police [2016] QDC 346, considered Lowe v The Queen (1984) 154 CLR 606, cited Re Criminal Proceeds Confiscation Act 2002 (2004) 1 Qd R 40, cited R v Cunningham [2005] QCA 321, followed R v Fairbrother; ex parte Attorney-General [2005] QCA 105, considered R…