Lucev v Queensland Police Service - [2012] QCA 207

SUPREME COURT OF QUEENSLAND

CITATION:

Lucev v Queensland Police Service [2012] QCA 207

PARTIES:

LUCEV, Bradley Jamie
(applicant)
v
QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

CA No 15 of 2012
DC No 439 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

14 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

10 April 2012

JUDGES:

Fraser and White JJA, Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal granted.
2. Appeal allowed.
3. Set aside the orders made in the District Court.

4. Order instead that the orders made in the Magistrates Court at Townsville on 11 July 2011 be varied by:

(a) fixing the applicant’s parole eligibility date as 16 September 2012 instead of 11 July 2013, and

(b) setting aside the orders for restitution and 12 days imprisonment in default made with respect to the burglary offence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where applicant pleaded guilty to four offences in the Magistrates Court and sentenced to two years imprisonment for burglary with parole eligibility fixed at 11 July 2013, and restitution of $652 to the complainant or 12 days imprisonment in default of payment served concurrently; two terms of six months imprisonment for two stealing offences; and one month imprisonment for obstructing police – where sentences to be served concurrently with each other and cumulatively with current sentence – where applicant appealed sentence to District Court on ground it was manifestly excessive – where applicant contended for a reduced sentence in the District Court and the respondent contended that the original sentence was not unreasonable – where the District Court judge allowed the appeal, set aside the sentence for burglary offence, re-sentenced the applicant to two years and six months imprisonment with parole eligibility fixed at 11 May 2012, and set aside the restitution order – where the District Court judge did not foreshadow any increase in sentence – where the applicant contended in the Court of Appeal that the District Court judge’s failure to give notice of a possible increase in sentence denied the applicant an opportunity to abandon the appeal and led to a substantial injustice – whether the District Court judge’s failure to give notice was a miscarriage of justice

Criminal Code 1889 (Qld), s 668E(3), s 669A
Justices Act 1886 (Qld), s 222, s 225, s 228A

Lacey v Attorney-General(Qld) (2011) 242 CLR 573; [2011] HCA 10, considered
Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, considered
R v Hardman[2001] QCA 15, considered
R v Judge Dodds [1990] 2 Qd R 80, considered
R v Kofoed[2005] QCA 438, considered
R v Walsh[2005] QCA 333, considered

COUNSEL:

F Richards for the applicant
B J Merrin…

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.

Keep reading for free

Create a free CaseChat account to read Lucev v Queensland Police Service and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] QCA 207
Decision Date: 14 August 2012

CaseChat Overview and Summary

In Lucev v Queensland Police Service, the applicant, who had been convicted in the Magistrates Court and sentenced to two years imprisonment for burglary, challenged the District Court's decision to increase his sentence. The applicant had previously pleaded guilty to four offences, including burglary, two counts of stealing, and obstructing police. The District Court judge, after allowing the appeal against the original sentence, re-sentenced the applicant to two years and six months imprisonment for the burglary offence, with a different parole eligibility date. The Court of Appeal considered whether the District Court judge's failure to give notice of a possible increase in sentence amounted to a miscarriage of justice.

The primary legal issue before the Court of Appeal was whether the District Court judge's failure to give notice of a possible increase in sentence constituted a miscarriage of justice, depriving the applicant of an opportunity to abandon the appeal and leading to substantial injustice. The Court had to determine whether this procedural irregularity resulted in a miscarriage of justice under the circumstances of this case.

The Court of Appeal held that the District Court judge's failure to give notice of a possible increase in sentence amounted to a miscarriage of justice. The Court found that the applicant had a reasonable expectation that the District Court judge would not increase the sentence, given that there was no such indication during the appeal hearing. This failure deprived the applicant of an opportunity to abandon the appeal and negotiate a plea with the Crown. The Court concluded that this procedural irregularity led to a substantial injustice, warranting the setting aside of the District Court's orders and the reinstatement of the original sentence imposed by the Magistrates Court.

The Court of Appeal granted the application for leave to appeal, allowed the appeal, and set aside the orders made in the District Court. Instead, the Court ordered that the orders made in the Magistrates Court be varied by fixing the applicant's parole eligibility date as 16 September 2012 and setting aside the orders for restitution and 12 days imprisonment in default made with respect to the burglary offence.

Orders

Orders of the court

1. Application for leave to appeal granted.

2. Appeal allowed.

3. Set aside the orders made in the District Court.

4. Order instead that the orders made in the Magistrates Court at Townsville on 11 July 2011 be varied by:

(a) fixing the applicant’s parole eligibility date as 16 September 2012 instead of 11 July 2013, and

(b) setting aside the orders for restitution and 12 days imprisonment in default made with respect to the burglary offence.

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:	Lucev v Queensland Police Service [2012] QCA 207
PARTIES:	LUCEV, Bradley Jamie (applicant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	CA No 15 of 2012 DC No 439 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	14 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	10 April 2012
JUDGES:	Fraser and White JJA, Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal granted. 2. Appeal allowed. 3. Set aside the orders made in the District Court. 4. Order instead that the orders made in the Magistrates Court at Townsville on 11 July 2011 be varied by: (a) fixing the applicant’s parole eligibility date as 16 September 2012 instead of 11 July 2013, and (b) setting aside the orders for restitution and 12 days imprisonment in default made with respect to the burglary offence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where applicant pleaded guilty to four offences in the Magistrates Court and sentenced to two years imprisonment for burglary with parole eligibility fixed at 11 July 2013, and restitution of $652 to the complainant or 12 days imprisonment in default of payment served concurrently; two terms of six months imprisonment for two stealing offences; and one month imprisonment for obstructing police – where sentences to be served concurrently with each other and cumulatively with current sentence – where applicant appealed sentence to District Court on ground it was manifestly excessive – where applicant contended for a reduced sentence in the District Court and the respondent contended that the original sentence was not unreasonable – where the District Court judge allowed the appeal, set aside the sentence for burglary offence, re-sentenced the applicant to two years and six months imprisonment with parole eligibility fixed at 11 May 2012, and set aside the restitution order – where the District Court judge did not foreshadow any increase in sentence – where the applicant contended in the Court of Appeal that the District Court judge’s failure to give notice of a possible increase in sentence denied the applicant an opportunity to abandon the appeal and led to a substantial injustice – whether the District Court judge’s failure to give notice was a miscarriage of justice Criminal Code 1889 (Qld), s 668E(3), s 669A Justices Act 1886 (Qld), s 222, s 225, s 228A Lacey v Attorney-General(Qld) (2011) 242 CLR 573; [2011] HCA 10, considered Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, considered R v Hardman[2001] QCA 15, considered R v Judge Dodds [1990] 2 Qd R 80, considered R v Kofoed[2005] QCA 438, considered R v Walsh[2005] QCA 333, considered
COUNSEL:	F Richards for the applicant B J Merrin…