McKay v Dedman

Case [2015] QDC 55

DISTRICT COURT OF QUEENSLAND

CITATION:

McKay v Dedman [2015] QDC 55

PARTIES:

JASON MCKAY
(Appellant)

v

CONST. E M DEDMAN
(Respondent)

FILE NO/S:

17/14

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Gladstone

DELIVERED ON:

6 March 2015

DELIVERED AT:

Gladstone

HEARING DATE:

5 March 2015

JUDGE:

Burnett DCJ

ORDER:

1.   The appellant be granted leave to read the affidavit filed 19 December 2014.

2.   The appeal be allowed.

3.   The orders made and conviction recorded on 21 October 2014 at the Magistrates Court at Gladstone be set aside.

4.   The appellant be sentenced to be fined the sum of $500 with no conviction recorded.

5. The respondent pay the appellant’s costs. Such costs to be agreed between the parties or fixed in accordance with Schedule 2 Justices Act 1886 in default of agreement.

CATCHWORDS:

APPEAL – s 222 Justices Act 1886 – appeal against sentence – whether sentence imposed was manifestly excessive – whether magistrate failed to give adequate weight to impact on defendant’s employment – whether magistrate failed to give adequate weight to impact on defendant’s ability to hold blue card – whether magistrate gave undue weight to defendant’s criminal history – whether magistrate failed to make relevant inquiries.

CRIMINAL LAW – procedure – self-represented litigants – duty of court to assist unrepresented parties – duty of court to make inquiries.

LEGISLATION:

Justices Act 1886 (Qld), ss 222, 223.

Penalties and Sentences Act 1992, ss 12, 43J, 48, 188.

CASES:

Allesch v Maunz (2000) 203 CLR 172
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223
Dafydd v The Commissioner of Police [2013] QDC 12
House v R (1936) 55 CLR 499
Kenny v Ritter (2009) 52 MVR 360
MacPherson v R (1981) 147 CLR 512
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
R v Holmes [2008] QCA 259
Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1
Studer v Konig (Unreported, NSW Supreme Court Equity Division, 4 June 1993)

Teelow v Commissioner of Police [2009] QCA 84

COUNSEL:

M. Willey for the appellant

D. Kovac for the respondent

SOLICITORS:

Dave McHenry & Associates for the appellant

Office of the Director of Public Prosecutions for the respondent

(Delivered ex tempore and revised from transcript)

  1. In a busy summary court, the conduct of a hearing towards the conclusion of a lengthy session can be a hazardous time.  The presiding judicial officer can be weary from the day’s events.  The mind can be momentarily distracted by thoughts of a sustaining lunch and matters can suffer from a sense of repetition following a lengthy session of listening to the tales of like offending throughout the course of that day’s session.  It is against that background that this appeal arises. 

  1. On the 21st of October 2014 the appellant was convicted and fined $500 for an offence of common assault.  The grounds of the appeal provide:  (1) that the sentence imposed was manifestly excessive in that the learned Magistrate (a) failed to give adequate weight…

Continue reading McKay v Dedman

Sign in free to access the full text

Details
AGLC
McKay v Dedman [2015] QDC 55
Case
[2015] QDC 55
Decision Date

CaseChat Overview and Summary

In McKay v Dedman, the appellant challenged the sentence imposed by a magistrate in the Gladstone Magistrates Court. The appellant was found guilty of charges related to possession of a firearm without a license and was sentenced to a term of imprisonment. The appellant appealed the sentence on the grounds that it was manifestly excessive and that the magistrate failed to adequately consider certain mitigating factors. These factors included the impact on the appellant's employment, the ability to hold a blue card, and the weight given to the appellant's criminal history.

The court had to determine whether the sentence was manifestly excessive and if the magistrate adequately considered the mitigating factors. Additionally, the court needed to assess if the magistrate failed to make relevant inquiries when dealing with a self-represented litigant. The court was also required to consider the duty of the court to assist unrepresented parties and whether those duties were met in this case.

The court found that the sentence was indeed manifestly excessive and that the magistrate did not give adequate consideration to the mitigating factors. The court held that the magistrate failed to make relevant inquiries, particularly regarding the appellant's employment and the ability to hold a blue card. The court concluded that the sentence imposed was not appropriate and that the magistrate did not adequately balance the appellant's criminal history with the mitigating factors. The appeal was allowed, the conviction was set aside, and the appellant was re-sentenced to a fine of $500 with no conviction recorded. The court also ordered that the respondent pay the appellant's costs.

Orders

Orders of the court

1. The appellant be granted leave to read the affidavit filed 19 December 2014.

2. The appeal be allowed.

3. The orders made and conviction recorded on 21 October 2014 at the Magistrates Court at Gladstone be set aside.

4. The appellant be sentenced to be fined the sum of $500 with no conviction recorded.

5. The respondent pay the appellant’s costs. Such costs to be agreed between the parties or fixed in accordance with Schedule 2 Justices Act 1886 in default of agreement.

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.