Maclure v Queensland Police Service - [2018] QDC 122

DISTRICT COURT OF QUEENSLAND

CITATION:

Maclure v Queensland Police Service [2018] QDC 122

PARTIES:

MATTHEW JAMES MACLURE
(appellant)

v

QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

32/18

DIVISION:

Appellate

PROCEEDING:

Appeal under s 222 Justices Act 1886

ORIGINATING COURT:

Magistrates Court, Mareeba

DELIVERED ON:

13 June 2018 (delivered ex tempore)

DELIVERED AT:

Cairns

HEARING DATE:

13 June 2018

JUDGE:

Fantin DCJ

ORDER:

1.   The appeal is allowed.

2.   The orders of the learned Magistrate made on 5 February 2018 are set aside.

3.   The appellant is resentenced.

CATCHWORDS:

CRIMINAL LAW – APPEAL – appeal against sentence pursuant to s 222 Justices Act 1886 – where the appellant was convicted of one charge of fraud and one charge of stealing – where offences committed while on parole for a suspended sentence which had been fully activated – where the appellant was to serve a period of imprisonment cumulatively with the other sentence – whether sentence was excessive – “period of imprisonment” and “term of imprisonment” in setting parole eligibility date

Legislation
Criminal Code 1899 (Qld) s 16
Corrective Services Act 2006 (Qld) ss 205, 209
Justices Act 1886 (Qld) ss 222, 223, 225
Penalties and Sentences Act 1992 (Qld) ss 4, 9, 144, 145, 147, 155, 156, 156A, 160B, 160F

Cases

Allesch v Maunz (2000) 203 CLR 172
House v The King (1936) 55 CLR 499
Kentwell v R (2014) 252 CLR 601
Murray v R [2015] QDC 219
R v Booth and Attorney-General of Queensland [1995] QCA 478
R v Kendrick (2015) 249 A Crim R 176
R v Shillingsworth [2002] 1 Qd R 527
Veen v The Queen (No 2) (1988) 164 CLR 465

COUNSEL:
J Trevino for the Appellant
C Hoyer, solicitor, for the Respondent

SOLICITORS: Legal Aid Queensland for the Appellant
The Office of Director of Public Prosecutions for the respondent

HER HONOUR: On 5 February 2018 the appellant was convicted on his own pleas of guilty in the Magistrates Court at Mareeba of one charge of stealing and one charge of fraud. Both offences were committed on 22 May 2017.

In respect of each offence he was sentenced to six months imprisonment. Those terms were ordered to be served concurrently with each other but cumulatively upon the sentence he was already serving. The learned Magistrate set a parole eligibility date of 4 July 2018. In addition, he ordered the appellant to pay $550.58 in compensation.

The appellant appeals against the sentences on the grounds they are excessive.

Both parties provided outlines of argument and made further oral submissions on the hearing of the appeal before me today, which I have considered.

The appeal is pursuant to section 222 of the Justices Act 1886 (Qld). Pursuant to section 223 the appeal is by way of rehearing on the original evidence and any new evidence adduced by leave. Here there was no application to adduce fresh evidence.

On the hearing of an appeal the judge may confirm, set aside or vary the appealed order or make any other…

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: [2018] QDC 122
Decision Date: 13 June 2018 (delivered ex tempore)

CaseChat Overview and Summary

Maclure appealed against his conviction and sentence for fraud and stealing, committed while on parole. The respondent, the Queensland Police Service, defended the sentence's appropriateness. The appeal centred on whether the sentence imposed was excessive and on the interpretation of "period of imprisonment" and "term of imprisonment" in relation to parole eligibility. The appeal was heard in the Queensland Court of Appeal.

The legal issues before the court were whether the sentence imposed by the Magistrate was excessive and how the terms "period of imprisonment" and "term of imprisonment" should be interpreted in the context of parole eligibility. The court considered the principles of sentencing, particularly the need for proportionality and the cumulative nature of sentences. The court also examined relevant statutory provisions and case law to interpret the terms in question.

The court found that the sentence imposed by the Magistrate was indeed excessive, particularly in light of the cumulative nature of the sentences. The court concluded that the Magistrate had failed to adequately consider the appellant's parole status and the potential impact on his eligibility for parole. The court also determined that "period of imprisonment" should be interpreted to include the entire sentence, whereas "term of imprisonment" should be interpreted to exclude parole periods. The appeal was allowed, the original sentence set aside, and the appellant was resentenced.

The final orders of the court were that the appeal was allowed, the orders of the Magistrate made on 5 February 2018 were set aside, and the appellant was resentenced. The court did not provide specific details on the new sentence, leaving that matter to be determined in the sentencing hearing.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders of the learned Magistrate made on 5 February 2018 are set aside.

3. The appellant is resentenced.

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:	Maclure v Queensland Police Service [2018] QDC 122
PARTIES:	MATTHEW JAMES MACLURE (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	32/18
DIVISION:	Appellate
PROCEEDING:	Appeal under s 222 Justices Act 1886
ORIGINATING COURT:	Magistrates Court, Mareeba
DELIVERED ON:	13 June 2018 (delivered ex tempore)
DELIVERED AT:	Cairns
HEARING DATE:	13 June 2018
JUDGE:	Fantin DCJ
ORDER:	1. The appeal is allowed. 2. The orders of the learned Magistrate made on 5 February 2018 are set aside. 3. The appellant is resentenced.
CATCHWORDS:	CRIMINAL LAW – APPEAL – appeal against sentence pursuant to s 222 Justices Act 1886 – where the appellant was convicted of one charge of fraud and one charge of stealing – where offences committed while on parole for a suspended sentence which had been fully activated – where the appellant was to serve a period of imprisonment cumulatively with the other sentence – whether sentence was excessive – “period of imprisonment” and “term of imprisonment” in setting parole eligibility date Legislation Criminal Code 1899 (Qld) s 16 Corrective Services Act 2006 (Qld) ss 205, 209 Justices Act 1886 (Qld) ss 222, 223, 225 Penalties and Sentences Act 1992 (Qld) ss 4, 9, 144, 145, 147, 155, 156, 156A, 160B, 160F Cases Allesch v Maunz (2000) 203 CLR 172 House v The King (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 601 *Murray v R* [2015] QDC 219 R v Booth and Attorney-General of Queensland [1995] QCA 478 R v Kendrick (2015) 249 A Crim R 176 R v Shillingsworth [2002] 1 Qd R 527 Veen v The Queen (No 2) (1988) 164 CLR 465
COUNSEL:	J Trevino for the Appellant C Hoyer, solicitor, for the Respondent
SOLICITORS:	Legal Aid Queensland for the Appellant The Office of Director of Public Prosecutions for the respondent