Lee v Queensland Police Service - [2021] QDC 262

DISTRICT COURT OF QUEENSLAND

CITATION:

Lee v Queensland Police Service [2021] QDC 262

PARTIES:

MATTHEW OLIVER LEE

(appellant)

v
QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

1307/2021

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

28 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

11 October 2021

JUDGES:

Sheridan DCJ

ORDER:

1. The appeal be allowed.

2. The orders made in the Magistrates Court on 28 May 2021 be set aside.

3. The following orders will be substituted:

(a) For the charge on Summary Charge Sheet 207615/20, noting the consent of the appellant to such an order, the appellant be released under the supervision of an authorised corrective services officer for a period of 18 months, subject to the conditions set out in s 93 of the Penalties and Sentences Act 1992 (Qld), with the additional requirement that the appellant submit to medical, psychiatric or psychological treatment as directed;

(b) For each of the charges on Summary Charge Sheet 21254/21:

(i) The appellant be imprisoned for three months;

(ii) The terms of imprisonment to be served concurrently; and

(iii) The periods of imprisonment are suspended immediately and the operational period of the order is 18 months; which means that the appellant must not commit another offence within the operational period to avoid being dealt with under s 146A of the Penalties and Sentences Act 1992 (Qld);

(c) For the charge on Summary Charge Sheet 207615/20, the appellant be disqualified from holding or obtaining a driver’s licence for a period of two years;

(d) For the charges on Summary Charge Sheet 21254/21 of:

(i) Driving without a licence whilst disqualified by a court order under s 78(1) & (3)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) the appellant be disqualified from holding or obtaining a driver’s licence for a period of two years; and

(ii) Driving under the influence of liquor under s 79(1)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) pursuant to s 86 (1A) of the Transport Operations (Road Use Management) Act 1995 (Qld) the appellant be disqualified from holding or obtaining a driver’s licence for a period of twelve months;

(e) The periods of driving disqualifications imposed for the offences on 13 December 2020 of driving whilst disqualified and drink driving are cumulative and the periods of disqualification for driving whilst disqualified on 15 November and 13 December 2020 are concurrent; making the total period of disqualification three years; and

(f) Convictions are to be recorded on all charges.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where appellant pled guilty in the Magistrates Court to four charges under the Transport Operations (Road Use Management) Act 1995 (Qld) and the appellant was sentenced to an actual period in custody –where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) – where Magistrate did not invite the parties to make submissions for the imposition of the fine – where ground of appeal was…

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.

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Details

Case: [2021] QDC 262
Decision Date: 28 October 2021

CaseChat Overview and Summary

The appeal in Lee v Queensland Police Service was brought by the appellant, who had previously pleaded guilty to four charges under the Transport Operations (Road Use Management) Act 1995 (Qld). The original sentence imposed by the Magistrates Court included an actual period in custody. The appellant sought an appeal under section 222 of the Justices Act 1886 (Qld), arguing that the sentence was manifestly excessive. The appeal focused on whether the sentence was indeed manifestly excessive and if the Magistrate erred in not inviting submissions for the imposition of the fine.

The Court considered the grounds of appeal, particularly focusing on the excessiveness of the sentence and the procedural error of the Magistrate not inviting submissions for the imposition of the fine. It was noted that the Magistrate had the discretion to sentence afresh, and the court considered the appropriate penalties for the offences committed. The court emphasised the importance of balancing the deterrent effect of the sentence with the need for rehabilitation of the offender.

The appeal was allowed, and the original orders were set aside. In their place, the court substituted new orders that included a release under the supervision of an authorised corrective services officer for a period of 18 months for one charge, with additional requirements for medical treatment. For the other charges, the court imposed concurrent suspended sentences of three months imprisonment, suspended for 18 months, and various periods of driving disqualifications that were cumulative and concurrent in certain instances. The court also ensured that convictions were recorded on all charges.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders made in the Magistrates Court on 28 May 2021 be set aside.

3. The following orders will be substituted:

(a) For the charge on Summary Charge Sheet 207615/20, noting the consent of the appellant to such an order, the appellant be released under the supervision of an authorised corrective services officer for a period of 18 months, subject to the conditions set out in s 93 of the Penalties and Sentences Act 1992 (Qld), with the additional requirement that the appellant submit to medical, psychiatric or psychological treatment as directed;

(b) For each of the charges on Summary Charge Sheet 21254/21:

(i) The appellant be imprisoned for three months;

(ii) The terms of imprisonment to be served concurrently; and

(iii) The periods of imprisonment are suspended immediately and the operational period of the order is 18 months; which means that the appellant must not commit another offence within the operational period to avoid being dealt with under s 146A of the Penalties and Sentences Act 1992 (Qld);

(c) For the charge on Summary Charge Sheet 207615/20, the appellant be disqualified from holding or obtaining a driver’s licence for a period of two years;

(d) For the charges on Summary Charge Sheet 21254/21 of:

(i) Driving without a licence whilst disqualified by a court order under s 78(1) & (3)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) the appellant be disqualified from holding or obtaining a driver’s licence for a period of two years; and

(ii) Driving under the influence of liquor under s 79(1)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) pursuant to s 86 (1A) of the Transport Operations (Road Use Management) Act 1995 (Qld) the appellant be disqualified from holding or obtaining a driver’s licence for a period of twelve months;

(e) The periods of driving disqualifications imposed for the offences on 13 December 2020 of driving whilst disqualified and drink driving are cumulative and the periods of disqualification for driving whilst disqualified on 15 November and 13 December 2020 are concurrent; making the total period of disqualification three years; and

(f) Convictions are to be recorded on all charges.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lee v Queensland Police Service [2021] QDC 262
PARTIES:	MATTHEW OLIVER LEE (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	1307/2021
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	28 October 2021
DELIVERED AT:	Brisbane
HEARING DATE:	11 October 2021
JUDGES:	Sheridan DCJ
ORDER:	1. The appeal be allowed. 2. The orders made in the Magistrates Court on 28 May 2021 be set aside. 3. The following orders will be substituted: (a) For the charge on Summary Charge Sheet 207615/20, noting the consent of the appellant to such an order, the appellant be released under the supervision of an authorised corrective services officer for a period of 18 months, subject to the conditions set out in s 93 of the *Penalties and Sentences Act* 1992 (Qld), with the additional requirement that the appellant submit to medical, psychiatric or psychological treatment as directed; (b) For each of the charges on Summary Charge Sheet 21254/21: (i) The appellant be imprisoned for three months; (ii) The terms of imprisonment to be served concurrently; and (iii) The periods of imprisonment are suspended immediately and the operational period of the order is 18 months; which means that the appellant must not commit another offence within the operational period to avoid being dealt with under s 146A of the *Penalties and Sentences Act* 1992 (Qld); (c) For the charge on Summary Charge Sheet 207615/20, the appellant be disqualified from holding or obtaining a driver’s licence for a period of two years; (d) For the charges on Summary Charge Sheet 21254/21 of: (i) Driving without a licence whilst disqualified by a court order under s 78(1) & (3)(a) of the *Transport Operations (Road Use Management) Act* 1995 (Qld) the appellant be disqualified from holding or obtaining a driver’s licence for a period of two years; and (ii) Driving under the influence of liquor under s 79(1)(a) of the *Transport Operations (Road Use Management) Act* 1995 (Qld) pursuant to s 86 (1A) of the *Transport Operations (Road Use Management) Act* 1995 (Qld) the appellant be disqualified from holding or obtaining a driver’s licence for a period of twelve months; (e) The periods of driving disqualifications imposed for the offences on 13 December 2020 of driving whilst disqualified and drink driving are cumulative and the periods of disqualification for driving whilst disqualified on 15 November and 13 December 2020 are concurrent; making the total period of disqualification three years; and (f) Convictions are to be recorded on all charges.
CATCHWORDS:	MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where appellant pled guilty in the Magistrates Court to four charges under the Transport Operations (Road Use Management) Act 1995 (Qld) and the appellant was sentenced to an actual period in custody –where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) – where Magistrate did not invite the parties to make submissions for the imposition of the fine – where ground of appeal was…