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
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.
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
This is an appeal against sentence under s 222 of the Justices Act 1886 (Qld).
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].
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]
Those principles are consistent with the principles adopted by…
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- Case
- [2015] QDC 144
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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