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
Hartwig v Cameron [2010] QDC 28
Queensland Police Service v Gregory [2010] QDC 388
R v McDougall & Collas [2006] QCA 365
re Fuller [2010] QDC 210
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
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.
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.
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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- AGLC
- Low v McMonagle [2011] QDC 109
- Case
- [2011] QDC 109
- Decision Date
CaseChat Overview and Summary
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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