MAR v Queensland Police Service

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DISTRICT COURT OF QUEENSLAND

CITATION:

MAR v Queensland Police Service [2015] QDC 144

PARTIES:

MAR
(appellant)

v

QUEENSLAND POLICE SERVICE
(respondent)

FILE NO:

D 263/14

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

5 June 2015

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

15 May 2015

JUDGE:

Butler SC, DCJ

ORDER:

Appeal against sentence allowed.1.          

The application to adduce fresh evidence is allowed.2.          

The sentence is varied by (a) substituting a period of 18 months imprisonment in lieu of two years imprisonment on the charge of contravening a domestic violence order on 21 June 2014 and (b) substituting a parole release date of 5 June 2015 in lieu of the parole eligibility date of 27 February 2015. 3.          

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL – appeal against sentence – whether sentence excessive

COUNSEL:

J McInnes for the appellant

D M Darwen for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions for the respondent

  1. The appellant was sentenced on 25 September 2014, on his own plea, in relation to two groups of offences.  The first group occurred on 6 May 2014 near the Gold Coast Hospital and involved dangerous operation of a vehicle and related offending.  The other offences occurred later in May/June 2014 and involved breaching domestic violence prohibition orders.  The most serious breach involved his punching and choking his partner. 

  1. The appellant received a head sentence of two years’ imprisonment with 90 days of presentence custody taken into account.  A parole eligibility date was set five months from the date of sentence.

The principles that apply upon appeal

  1. This is an appeal against sentence under s 222 of the Justices Act 1886 (Qld).

  1. The court of appeal in White v The Commissioner of Police[1] conveniently summarises the principles that are applicable in dealing with an appeal under s 222 of the Justices Act 1886:

    “The appeal brought by the applicant to the District Court under s 222 of the Justices Act was an appeal by way of re-hearing, as provided for in s 223 of that Act. On such an appeal the District Court judge was required to make his own determination of relevant facts and issues from the evidence, giving due deference in attaching a good deal of weight to the Magistrate’s view.”

    [1][2014] QCA 121 at [6].

  2. The Court later in the judgment continued as follows:

    “In the appeal to the District Court, s 223 of the Justices Act provides for a re-hearing on the evidence given at trial, and any new evidence produced by leave. That is a re-hearing, in the technical sense consisting of a review of the record of the proceedings below it, rather than a completely fresh hearing. To succeed on such an appeal an appellant must establish some legal factual or discretionary error.”[2]

  3. Those principles are consistent with the principles adopted by…

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Details
Case
[2015] QDC 144
Decision Date

CaseChat Overview and Summary

The appellant, MAR, appealed against his sentence imposed by the Magistrates Court of Queensland, arguing that it was manifestly excessive. The primary contention was that the learned Magistrate failed to adequately consider the appellant's mental health condition as a mitigating factor. The appellant committed multiple offences, including dangerous driving and contravening a domestic violence order, in a highly dangerous and public manner outside Gold Coast University Hospital. The court was tasked with determining whether the sentence was indeed excessive, particularly in light of the appellant's mental health condition which was not fully considered at the original sentencing.

The court examined whether the sentence was manifestly excessive, focusing on the Magistrate's failure to sufficiently consider the appellant's mental health condition. The court also reviewed the distinction between a timely and early plea, and whether the Magistrate erred in not considering a comparable sentence from another court. The court found that while the plea was acknowledged, there was no substantive error in this regard. Moreover, the court held that the failure to consider another court’s sentence did not amount to an error of law.

The court allowed the appeal against the sentence, accepting the application to adduce fresh evidence in the form of a psychological report. The appellant’s mental health condition was deemed significant, and the court found that had this evidence been available at the original sentencing, it might have led to a different outcome. Consequently, the court varied the sentence, reducing the imprisonment term on the charge of contravening a domestic violence order and setting a new parole release date. The court's reasoning was grounded in the necessity to appropriately weigh the appellant's mental health condition as a mitigating factor, which was inadequately considered initially.

Orders

Orders of the court

Appeal against sentence allowed.1.

The application to adduce fresh evidence is allowed.2.

The sentence is varied by (a) substituting a period of 18 months imprisonment in lieu of two years imprisonment on the charge of contravening a domestic violence order on 21 June 2014 and (b) substituting a parole release date of 5 June 2015 in lieu of the parole eligibility date of 27 February 2015. 3.

Background

Background to the litigation

It follows that under s 160B(2) the sentencing court was required to set a parole release date. Failure to do so amounted to an error in the exercise of the sentencing discretion. The facts The offence of dangerous driving which occurred on 7 May 2014 was outlined by the learned Magistrate in the following terms:"The first offence in time was the dangerous operation of a motor vehicle. On that occasion you had had a violent altercation with your girlfriend. You took her car keys off her. You went to her car in the car park of the hospital. You did burn-outs underneath the hospital, circled around, spun the wheels, accelerated at speed toward the gate. You crashed through the boom gate at the entrance. That boom gate then flew outwards.Your driving was obviously dangerous because of the location and your speed, and because you caused the boom gate to fly outwards. Because a pedestrian had just walked past there adjacent to the pedestrian crossing, and thankfully, through sheer good luck and not good management on your part, no one was then injured.You then turned left over the pedestrian crossing onto the street at high speed and you were seen to then turn into Olsen Avenue. You were heard by multiple witnesses to rev the motor. You were seen screeching your tyres. On Olsen Avenue you swerved in and out of heavy traffic at high speed.Then you turned left into Parklands Drive at high speed. Still you accelerated. You were seen to spin your tyres, making a loud screeching sound. You lost control. You swerved to the right and crossed over two lanes. You mounted the middle island, into the path of oncoming traffic. You then collided into a street light pole, and that pole landed in the path of oncoming traffic. Several motorists had to swerve to avoid that pole. You were then observed trying to correct the steering, to accelerate, and swerve out again toward the oncoming traffic. Your vehicle came to rest on the middle island.” Those facts, as outlined by his Honour, were not an issue. The offences unfolded outside the Gold Coast University Hospital at 5.30 pm on a Wednesday with heavy traffic and pedestrians in the general vicinity. After leaving the car the appellant acted in a belligerent and abusive way, causing traffic to stop resulting in the public nuisance charge. The most serious of the charges of contravention of a domestic violence order was described by his Honour as follows:"On the 9th of May a protection order was made naming the aggrieved, … , as the person to be protected. She was the owner of the motor vehicle that you used in the dangerous driving. On the 21st of June you were still subject to that order and its conditions. There was the mandatory condition that you were to be of good behaviour towards her and not commit any act of domestic violence at all, and one of the conditions included that you were not to go within 100 metres of her residence.The aggrieved reported that you had been threatening to commit suicide; that you got upset over a text message; that you tackled her onto the bed; punched her on the right-hand side of her bottom. That you lay on top of her. She screamed. You then hit her in the head, and she stated that she may have lost consciousness for about a second or so.She tried to push you off her. You then used your forearm against her throat, and used your right hand to cover her mouth while your left forearm was used against her throat. You blocked her nose. She found it very difficult to breathe. Her injuries included a purple bruise to the neck; scratches and bruises to the forearms.”…“You finally got off her and said that you were going to kill yourself. You hit your head and headbutted the bed end. You then called your mother and said, ‘I can’t live without her so I’ll kill myself.’ You then got a knife in the kitchen and cut your own forearm and self-harmed. That too is domestic violence.”

Evidence

Evidence Before The Court

Those principles are consistent with the principles adopted by the Court of Appeal in Teelow v The Commissioner of Police[3] as applying to appeals against the excise of discretion.[4] In Teelow the Court of Appeal was considering an appeal to the District Court against sentence. [3][2009] QCA 84. [4]Applying House v R (1936) 55 CLR 499 at [504] – [505]. Application to lead new evidence The applicant applied to adduce on the appeal new evidence in the form of a psychological report by Mr P Perros dated 10 April 2015. Evidence not called at the trial may be adduced on appeal only if the court is satisfied there are special grounds shown: s 223(2). The Court of Appeal in Pavlovic v Commissioner of Police[5] held that there must be a good reason identified to justify a departure from the requirement that an appeal is by way of rehearing. The Court adopted as a guide the three considerations identified by Gibbs CJ in Gallagher v R.[6][5][2006] QCA 134.[6](1986) 160 CLR 392. Relevant to the first of these considerations, counsel for the appellant conceded that psychological evidence could have been led at the sentence below. Given the significance of the appellant’s psychological condition to the exercise of the sentencing discretion, the availability of a comprehensive psychological report has particular significance. Counsel submitted that the mental condition of the appellant was central to the grounds of appeal and the psychologist’s report enlarged on the information available at sentence. I am satisfied that one of the considerations identified by Gibbs CJ is established. If the psychological report was available to the sentencing court, a different sentencing outcome might reasonably have resulted. Special grounds have been made out. The ground of appeal is that the sentence is manifestly excessive. In support of that ground the appellant submits the learned Magistrate erred in that firstly, he failed to apply the sentencing principles in relation to offenders with mental health issues, secondly, he described as “timely” what in fact was an “early” plea and finally, he failed to have regard to the District Court “comparable” sentence decision of RMR v Sinclair.[7] [7][2012] QDC 204 It is not apparent what significance the appellant places on any distinction between a timely plea and an early plea. It is apparent that the learned Magistrate set a parole date at one-third of the head sentence, thus suggesting he gave full effect to the early plea of guilty. Accordingly, the allegation of error in this regard lacks substance. Failure to have regard to the sentence of another court could not of itself amount to an error of the type referred to in House v R (1936) 55 CLR 499. Sentences of other courts only constitute a guide in so far as their facts are comparable. The submission regarding RMR v Sinclair is unhelpful as it fails to direct attention to the relevant considerations to be taken into account upon this appeal. The appellant’s primary submission is that the learned Magistrate failed to sufficiently take into account as a mitigating factor the mental condition of the appellant at the time of his offending.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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