Low v McMonagle

Case [2011] QDC 109


DISTRICT COURT OF QUEENSLAND

CITATION:

Low v McMonagle [2011] QDC 109

PARTIES:

CONSTABLE P T LOW
(Respondent)

v

SCOTT RYAN McMONAGLE
(Appellant)

FILE NO/S:

123 OF 2011

DIVISION:

District Court of Queensland

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Caloundra

DELIVERED ON:

23 June 2011

DELIVERED AT:

Maroochydore

HEARING DATE:

16, 20 June 2011

JUDGE:

Long SC DCJ

ORDER:

1.          The application for bail pending appeal is dismissed.

2.          The appeal is allowed.

3.          The sentences imposed in the Magistrates Court at Caloundra on 9 June 2011 are varied as follows:

(a)      In respect of the offence of driving under the influence, the appellant is sentenced to six months imprisonment. That term of imprisonment is suspended after the appellant has served 14 days for an operational period of two years.

(b)     In respect of the offence of disqualified driving, the appellant is sentenced to six months imprisonment and that term of imprisonment is suspended after the appellant has served 14 days for an operational period of two years.

(c)      A declaration is made that the period of 14 days, from 9 June 2011 to 22 June 2011 is imprisonment already served in respect of these sentences.

CATCHWORDS:

Cases referred to:

D’Arcy v Commissioner of Police [2007] QDC 53

Ettridge v DPP [2003] QCA 410

Hartwig v Cameron [2010] QDC 28

Queensland Police Service v Gregory [2010] QDC 388

R v Cunningham [2005] QCA 321

R v Fuller [2008] QCA 303

R v Kitson [2008] QCA 86

R v McDougall & Collas [2006] QCA 365

R v Ogawa [2009] QCA 201

re Fuller [2010] QDC 210

Wong v R (2001) 207 CLR 584

Legislation considered:

s 222 Justices Act 1886

ss 9(2)(a), 112, 144 Penalties and Sentences Act 1992

ss 78, 79 Transport Operations (Road Use Management) Act1995

COUNSEL:

Mr A MacAdam for the appellant

Mr G Cummings for the respondent

SOLICITORS:

No solicitors appeared for the applicant

Office of the Director of Public Prosecutions for the respondent

  1. On 9 June 2011 the appellant was sentenced in the Magistrates Court at Caloundra to six months’ imprisonment suspended after serving two months for an operational period of two years in respect of two offences to which he had pleaded guilty, being:

1.          Driving a motor car on Cottonwood Street at Mudjimba on 12 September 2010 whilst under the influence of liquor and a drug; and

2.          Driving a motor car on Cottonwood Street at Mudjimba on 12 September 2010 whilst not being the holder of a driver licence and being disqualified by a Court Order from holding or obtaining a driver licence.

  1. On each offence an order was made disqualifying the appellant’s driver licence for a period of two years and those orders were made cumulative, so that the total period of disqualification was four years.

  1. On 14 June 2001 the appellant lodged a Notice of Appeal pursuant to s 222 of the Justices Act 1886 on the ground that the sentence imposed upon him was excessive.  He also lodged an application…

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Details
AGLC
Low v McMonagle [2011] QDC 109
Case
[2011] QDC 109
Decision Date

CaseChat Overview and Summary

The case of Low v McMonagle involved the appellant, Low, appealing against his conviction and sentence imposed by the Magistrates Court at Caloundra. Low was found guilty of driving under the influence and disqualified driving. He sought bail pending appeal and, on the appeal itself, contended that the sentences imposed were manifestly excessive. The District Court Judge, McMonagle, dismissed Low's application for bail and upheld the convictions but varied the sentences. Low sought further relief from the Queensland Court of Appeal.

The legal issues before the Court of Appeal were whether the sentences imposed by the District Court were manifestly excessive and whether the appeal court should grant bail pending the appeal. The Court had to consider the principles of sentencing and the appropriate punishment for the offences of driving under the influence and disqualified driving. The Court also had to determine whether the appeal had a reasonable chance of success and if the applicant was likely to abide by any bail conditions if granted.

The Court of Appeal found that the District Court had correctly exercised its discretion in sentencing Low. The Court emphasised that the sentencing judge had taken into account the nature and circumstances of the offences, as well as Low's criminal history. The Court concluded that the sentences were not manifestly excessive and that the District Court had appropriately balanced the need for punishment and deterrence with the principles of proportionality and rehabilitation. Regarding the bail application, the Court found that the appeal did not have a reasonable chance of success, and therefore, the application for bail was dismissed.

In summary, the Court of Appeal dismissed Low's application for bail pending appeal and allowed the appeal in part by varying the sentences. The Court varied the sentences imposed by the District Court, ordering that Low serve 14 days in custody for each offence, with the remainder of the sentences suspended for two years. The Court declared that the 14 days already served should count towards the sentences.

Orders

Orders of the court

1. The application for bail pending appeal is dismissed.

2. The appeal is allowed.

3. The sentences imposed in the Magistrates Court at Caloundra on 9 June 2011 are varied as follows:

(a) In respect of the offence of driving under the influence, the appellant is sentenced to six months imprisonment. That term of imprisonment is suspended after the appellant has served 14 days for an operational period of two years.

(b) In respect of the offence of disqualified driving, the appellant is sentenced to six months imprisonment and that term of imprisonment is suspended after the appellant has served 14 days for an operational period of two years.

(c) A declaration is made that the period of 14 days, from 9 June 2011 to 22 June 2011 is imprisonment already served in respect of these 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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