Moore v Queensland Police Service - [2018] QDC 192

DISTRICT COURT OF QUEENSLAND

CITATION:

Moore v Queensland Police Service [2018] QDC 192

PARTIES:

STEVEN JEREMY MOORE
(Appellant)

v

QUEENSLAND POLICE SERVICE
(Respondent)

FILE NO/S:

1755/18

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

20 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2018 and 13 September 2018, further submissions filed 14 September 2018 and 18 September 2018

JUDGE:

Williamson QC DCJ

ORDER:

1. Appeal allowed.

2. The sentence and orders of the Magistrates Court at Richlands on 19 April 2018 are set aside and the orders set out in paragraphs [3] and [4] of these reasons for judgment are substituted in lieu.

CATCHWORDS:

CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – where appeal under s.222 of Justices Act 1886 – where applicant convicted of seventeen offences on plea of guilty – where sentence imposed to be cumulative upon current sentence being served by applicant – whether totality principle taken into account – whether sentence excessive

COUNSEL:

Ms E. B. Strofield for the Appellant

Ms R. Aldas for the Respondent

SOLICITORS:

Legal Aid Queensland for the Appellant

Office of the Director of Public Prosecutions for the Respondent

Introduction

On 19 April 2018, Mr Moore pleaded guilty to seventeen offences in the Magistrates Court at Richlands. The head sentence imposed to reflect the criminality of all of the offending was three years imprisonment. A parole eligibility date of 18 April 2019 was fixed. It was ordered the sentence be cumulative upon an earlier sentence imposed on 1 August 2017 in the Brisbane Magistrates Court. Mr Moore was also disqualified absolutely from holding or obtaining a driver’s licence.

Mr Moore appeals against the sentence imposed on 19 April 2018 on the basis that it is excessive. The appeal right exercised is that conferred under s.222(2)(c) of the Justices Act 1886. It is contended that the sentence imposed is excessive because it does not take into account the totality principle in circumstances where the sentence imposed was cumulative to an earlier sentence imposed on 1 August 2017. Mr Moore was sentenced on this earlier date for thirty-three offences to which he pleaded guilty. A head sentence of two and a half years imprisonment was imposed. Parole release was fixed at 8 October 2017. As a consequence of the sentence imposed on 19 April 2018, the aggregate sentence imposed was a term of five and a half years imprisonment. Parole eligibility was fixed at a point greater than the one third mark (about 42%) of the aggregate sentence.

For the reasons that follow, the appeal is allowed and the sentence and orders of the Magistrates Court at Richlands on 19 April 2018 are set aside. The following sentence and orders, as tabulated, are imposed in lieu:

No. Offence Penalty

1. Receiving tainted property 2 years imprisonment

2. Unlawful entry of a motor vehicle 2 years imprisonment

3. Enter premises with intent to commit an indictable offence 2 years imprisonment

4. Stealing 2 years imprisonment

5. Unlawful use of a motor…

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: [2018] QDC 192
Decision Date: 20 September 2018

CaseChat Overview and Summary

In the case of Moore v Queensland Police Service, the applicant appealed against the sentence imposed by the Magistrates Court at Richlands. The applicant had been convicted of seventeen offences and had pleaded guilty to each. The sentence imposed was to run concurrently with the sentence he was already serving. The central issue before the court was whether the sentence imposed was excessive, given the principle of totality, which dictates that the cumulative effect of sentences should not be excessive.

The court considered the principle of totality and whether it had been properly applied in this case. The court noted that the principle is designed to prevent the cumulative effect of sentences from being excessive, particularly in cases where the offender is already serving a sentence. The court also examined the nature and circumstances of the offences, the applicant's criminal history, and his personal circumstances. The court concluded that the sentence imposed was excessive and did not appropriately take into account the principle of totality.

The court allowed the appeal and set aside the sentence and orders of the Magistrates Court at Richlands. In its place, the court ordered that the applicant be sentenced to a specific term of imprisonment for each offence, with the sentences to run consecutively to each other but concurrently with the sentence the applicant was already serving. The court also made orders for fines and other penalties as specified in the reasons for judgment.

Orders

Orders of the court

1. Appeal allowed.

2. The sentence and orders of the Magistrates Court at Richlands on 19 April 2018 are set aside and the orders set out in paragraphs [3] and [4] of these reasons for judgment are substituted in lieu.

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:	Moore v Queensland Police Service [2018] QDC 192
PARTIES:	STEVEN JEREMY MOORE (Appellant) v QUEENSLAND POLICE SERVICE (Respondent)
FILE NO/S:	1755/18
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	20 September 2018
DELIVERED AT:	Brisbane
HEARING DATE:	31 August 2018 and 13 September 2018, further submissions filed 14 September 2018 and 18 September 2018
JUDGE:	Williamson QC DCJ
ORDER:	1. Appeal allowed. 2. The sentence and orders of the Magistrates Court at Richlands on 19 April 2018 are set aside and the orders set out in paragraphs [3] and [4] of these reasons for judgment are substituted in lieu.
CATCHWORDS:	CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – where appeal under s.222 of Justices Act 1886 – where applicant convicted of seventeen offences on plea of guilty – where sentence imposed to be cumulative upon current sentence being served by applicant – whether totality principle taken into account – whether sentence excessive
COUNSEL:	Ms E. B. Strofield for the Appellant Ms R. Aldas for the Respondent
SOLICITORS:	Legal Aid Queensland for the Appellant Office of the Director of Public Prosecutions for the Respondent

No.	Offence	Penalty
1.	Receiving tainted property	2 years imprisonment
2.	Unlawful entry of a motor vehicle	2 years imprisonment
3.	Enter premises with intent to commit an indictable offence	2 years imprisonment
4.	Stealing	2 years imprisonment
5.	Unlawful use of a motor…