Mathieson v Queensland Police Service - [2023] QDC 117

DISTRICT COURT OF QUEENSLAND

CITATION:

Mathieson v Queensland Police Service [2023] QDC 117

PARTIES:

KEITH LEWIS MATHIESON
v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO:
APPEAL NO:12/23

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Mareeba

DELIVERED ON:

16 June 2023 (orders made on 6 June 2023)

DELIVERED AT:

Cairns

HEARING DATE:

6 June 2023

JUDGE:

Morzone KC DCJ

ORDER:

1.   Appeal allowed.

2.   The sentence and orders of the Magistrates Court made in Mareeba on 8 February 2023 are set aside, and substituted with the following:

(a)     The defendant will pay compensation in the sum of $86.40 to be paid within 12 months to the Registrar of the District Court at Cairns by transmission by the Registrar to the complainant.

(b)     I direct the Registrar to refer payment arrangements to the State Penalties and Enforcement Registry.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – ERROR OF LAW - review pursuant to s 222 Justices Act 1886 - conviction – sentence manifestly excessive – criminal history.

LEGISLATION:

Justices Act 1886 (Qld) s 222, s 223(1) & 227

CASES:

AB v R (1999) 198 CLR 111
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Allesch v Maunz (2000) 203 CLR 172

Dinsdale v The Queen (2000) 202 CLR 321

Dwyer v Calco Timbers (2008) 234 CLR 124

Forrest v Commissioner of Police [2017] QCA 132

Fox v Percy (2003) 214 CLR 118

Gronow v Gronow (1979) 144 CLR 519.

House v The King (1936) 55 CLR 499
Kentwell v R (2014) 252 CLR 60

Lovell v Lovell (1950) 81 CLR 513

Lowe v The Queen (1984) 154 CLR 606.

McDonald v Queensland Police Service [2017] QCA 255
Norbis v Norbis (1986) 161 CLR 513

R v Lomass (1981) 5 A Crim R 230

R v Matauaina [2011] QCA 344

R v McIntosh [1923] St R Qd 278
R v Morse (1979) 23 SASR 98

R v Perini; ex parte A-G (Qld) (No 2) [2011] QCA 384

Teelow v Commissioner of Police [2009] QCA 84

Veen v The Queen (No. 2) (1988) 164 CLR 465

Warren v Coombes (1979) 142 CLR 531

White v Commissioner of Police [2014] QCA 121

SOLICITORS:
Aboriginal and Torres Strait Legal Service for the Appellant.

The Office of Director of Public Prosecutions for the respondent.

Summary

On 8 February 2023, the appellant was convicted on his own plea of guilty in the Magistrates Court held in Mareeba, of one charge of stealing some crumbed fish from a store freezer and he was sentenced to two months’ imprisonment wholly suspended for an operational period of nine months and ordered to pay compensation to the value of the goods in the sum of $28.80.
The appellant now appeals his sentence on the grounds that it is manifestly excessive because:
1.the sentencing magistrate erred by not acknowledging that a sentence of imprisonment is a sentence of last resort; and
2.the sentencing magistrate did not deal with the matter by way of imposing…

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: [2023] QDC 117
Decision Date: 16 June 2023 (orders made on 6 June 2023)

CaseChat Overview and Summary

In the matter of Mathieson versus the Queensland Police Service, the Court of Appeal was tasked with reviewing the sentence imposed by the Magistrates Court. Mathieson had been convicted and sentenced for a criminal offence, with the appellant contesting the sentence as manifestly excessive. The appeal was brought pursuant to section 222 of the Justices Act 1886, and focused on whether the original sentence was unjust in the context of the appellant's criminal history. The appeal raised issues concerning the proportionality of the sentence, and the discretion exercised by the original sentencing court.

The court considered the criteria for assessing whether a sentence was manifestly excessive, which includes the gravity of the offence, the appellant’s criminal history, and the principles of proportionality and deterrence. The court examined whether the Magistrates Court had appropriately exercised its discretion and whether the sentence imposed was disproportionate to the offence committed. It was also necessary to consider the appellant's criminal history to determine if this warranted a harsher sentence. The Court of Appeal assessed the Magistrates Court's approach to sentencing and the factors it had taken into account, such as the appellant's previous convictions and the circumstances of the offence.

Having considered the appeal, the Court of Appeal found that the sentence imposed was indeed manifestly excessive. The Court determined that the Magistrates Court had not adequately considered the proportionality of the sentence in light of the appellant's criminal history and the nature of the offence. The Court of Appeal set aside the original sentence and substituted a new sentence, which included an order for the appellant to pay compensation to the complainant and directions regarding the payment arrangements. This decision highlighted the importance of proportionality and the proper exercise of judicial discretion in sentencing.

Orders

Orders of the court

1. Appeal allowed.

2. The sentence and orders of the Magistrates Court made in Mareeba on 8 February 2023 are set aside, and substituted with the following:

(a) The defendant will pay compensation in the sum of $86.40 to be paid within 12 months to the Registrar of the District Court at Cairns by transmission by the Registrar to the complainant.

(b) I direct the Registrar to refer payment arrangements to the State Penalties and Enforcement Registry.

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:	Mathieson v Queensland Police Service [2023] QDC 117
PARTIES:	KEITH LEWIS MATHIESON v QUEENSLAND POLICE SERVICE (respondent)
FILE NO:	APPEAL NO:12/23
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Mareeba
DELIVERED ON:	16 June 2023 (orders made on 6 June 2023)
DELIVERED AT:	Cairns
HEARING DATE:	6 June 2023
JUDGE:	Morzone KC DCJ
ORDER:	1. Appeal allowed. 2. The sentence and orders of the Magistrates Court made in Mareeba on 8 February 2023 are set aside, and substituted with the following: (a) The defendant will pay compensation in the sum of $86.40 to be paid within 12 months to the Registrar of the District Court at Cairns by transmission by the Registrar to the complainant. (b) I direct the Registrar to refer payment arrangements to the State Penalties and Enforcement Registry.
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – ERROR OF LAW - review pursuant to s 222 Justices Act 1886 - conviction – sentence manifestly excessive – criminal history.
LEGISLATION:	Justices Act 1886 (Qld) s 222, s 223(1) & 227
CASES:	AB v R (1999) 198 CLR 111 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Allesch v Maunz (2000) 203 CLR 172 Dinsdale v The Queen (2000) 202 CLR 321 Dwyer v Calco Timbers (2008) 234 CLR 124 Forrest v Commissioner of Police [2017] QCA 132 Fox v Percy (2003) 214 CLR 118 Gronow v Gronow (1979) 144 CLR 519. House v The King (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 60 Lovell v Lovell (1950) 81 CLR 513 Lowe v The Queen (1984) 154 CLR 606. McDonald v Queensland Police Service [2017] QCA 255 Norbis v Norbis (1986) 161 CLR 513 R v Lomass (1981) 5 A Crim R 230 R v Matauaina [2011] QCA 344 R v McIntosh [1923] St R Qd 278 R v Morse (1979) 23 SASR 98 R v Perini; ex parte A-G (Qld) (No 2) [2011] QCA 384 Teelow v Commissioner of Police [2009] QCA 84 Veen v The Queen (No. 2) (1988) 164 CLR 465 Warren v Coombes (1979) 142 CLR 531 White v Commissioner of Police [2014] QCA 121
SOLICITORS:	Aboriginal and Torres Strait Legal Service for the Appellant. The Office of Director of Public Prosecutions for the respondent.