McCarthy v Campbell

[2014] QDC 108

DISTRICT COURT OF QUEENSLAND

CITATION:

McCarthy v Campbell [2014] QDC 108

PARTIES:

SENIOR CONSTABLE DAVID McCARTHY
(appellant)

v

LORNE JAMES CAMPBELL
(respondent)

FILE NO:

S191/13

DIVISION:

Appellate

PROCEEDING:

Section 222 Appeal

ORIGINATING COURT:

District Court Maroochydore

DELIVERED ON:

16 May 2014

DELIVERED AT:

Maroochydore

HEARING DATE:

28 March 2014, supplementary submissions received up to 5 May 2014

JUDGE:

Robertson DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE –SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE : where respondent pleaded guilty to one count of possessing tainted property on 14 May 2013; where conviction of the offence resulted in respondent breaching a suspended sentence made in the same court on 11 March 2013; where respondent was ordered to serve the sentence of 3 months imposed for the breaching offence cumulatively upon the wholly activated suspended sentence with a parole release date set for 13 November 2013; whether sentence imposed was inadequate; whether Magistrate erred by impermissibly conflating what are two separate sentencing functions.

Legislation:

Criminal Proceeds Confiscation Act 2002

Justices Act 1886

Penalties and Sentences Act 1992

Cases:

Bugmy v The Queen [2013] HCA 37

House v The King (1936) 55 CLR 499

Popa v Austin [2004] QCA 227

R v Baker [2011] QCA 104

R v Newman [2008] QCA 147

R v Norden [2009] QCA 42

COUNSEL:

Mr G Cummings for the Appellant

Ms J Sharp for the Respondent

SOLICITORS:

Office of the Director of Public Prosecutions for the Appellant

Brisbane Criminal Lawyers for the Respondent

Introduction

1. This is an appeal by the prosecution against a sentence imposed in the Maroochydore Magistrates Court by her Honour Magistrate Callaghan on 13 November 2013. On that day the respondent pleaded guilty to one count of possessing tainted property on 14 May 2013. This is an offence created by s 252(1) of the Criminal Proceeds Confiscation Act 2002.  The offence carries a maximum penalty of 100 penalty units or two years imprisonment.

1. As a result of his conviction for the offence the respondent breached a suspended sentence made in the same court on 11 March 2013.  On that day, he was sentenced for a number of offences, including an offence of the same nature committed on 8 June 2012, for which he received a three month term of imprisonment, wholly suspended for a period of nine months.  It follows that the breaching offence was committed just a few days over two months into the operational period of the suspended sentence.

The law

1. The appeal is pursuant to s 222(1) of the Justices Act 1886, and, by virtue of s 223(1) is to be by way of rehearing on the evidence before the magistrate.  However, pursuant to s 222(2) (c) if (as is the case here) the defendant pleads guilty, the sole permissible ground of appeal is that the penalty imposed was inadequate.  It is unlike an appeal against conviction, and it follows that on appeal, it is a rehearing in a technical sense of a review of the record below.

1. It…