McLeod v Queensland Police Service

[2009] QDC 20

[2009] QDC 20

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE BOTTING

(Bundaberg) Appeal No 57 of 2008

DOUGLAS JAMES McLEOD	Appellant
and
QUEENSLAND POLICE SERVICE	Respondent
HERVEY BAY ..DATE 27/01/2009
JUDGMENT

1-1

HIS HONOUR: This is an appeal against a decision of an Acting

1

Magistrate made on the 14th of July 2008. The decision was
made following a trial, in respect of one matter at least,

which was before his Honour. That hearing was resolved on a factual basis against the appellant who then, of course, had to be sentenced. There were a number of matters for which the	10
appellant was called upon to be sentenced then that day, and the matters were further complicated because these were breaches of community based orders, as I understand it.
Counsel has prepared an outline of the submissions which have	20
been made today and whilst there are criticisms that can be
made of the proceedings, essentially, at the end of the day,
the primary submission of counsel for the appellant is that
his Honour has erred in setting the parole release date. The
parole release date actually stipulated by his Honour was well	30
past the 50 per cent mark. As Mr MacKenzie has submitted,
whilst such a course is not prohibited by the legislation, it
is, I think, unusual to say the least for such a course to be
taken. If such a course is to be adopted by a sentencing
Judge or Magistrate, it would seem to me to be incumbent upon	40
such Judge or Magistrate to give reasons, so that the accused
and an Appeal Court might understand why that decision had
been made - that is, the decision to set the parole release
date past the 50 per cent mark. It may well be, as Mr
MacKenzie has submitted, that in fact the error in this case	50
has arisen, not because of a conscious decision to have the
parole release date at a point past the 50 per cent mark, but
simply as a result of a miscalculation by his Honour.

1-2 JUDGMENT 60

Be that as it may, there is, of course, force in the
submissions made by the appellant and indeed Ms Cupina who
appears on behalf of the respondents, accepts the force of the
submissions made by the appellant's counsel. In those

circumstances, it seems to me that I should allow the appeal.	10
It seems to me that I should confirm the orders made below,
other than the order by which the parole release date was set,
and I order that in lieu of the parole release date which was
set, there be substituted for it the 7th of February 2009.
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1-3 JUDGMENT 60