Moss v Queensland Police Service - [2019] QDC 222

DISTRICT COURT OF QUEENSLAND

CITATION:

Moss v Queensland Police Service [2019] QDC 222

PARTIES:

JAMEY CARL PETER MOSS
(appellant)

v

QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

APPEAL NO: 47/19

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Mareeba

DELIVERED ON:

8 November 2019

DELIVERED AT:

Cairns

HEARING DATE:

8 August 2019

JUDGE:

Morzone QC DCJ

ORDER:

1.   Appeal against conviction is dismissed;

2.   Appeal against sentence is allowed;

3.   The sentence and orders of the Magistrates Court made in Mareeba on 21 February 2019 are set aside;

4. A pre-sentence report be prepared pursuant to s 344 of the Corrective Services Act 2006 (Qld) in respect of the appellant, including an assessment of his mental health in the form of a psychiatric and/or a psychological assessment for the purposes of sentencing him for the offence; and assessment of any impact on the appellant’s and his capacity to serve actual custody in a correctional centre.

5.   I will hear further from the parties to fix the date for the re-sentencing hearing.

CATCHWORDS:

CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - conviction – offence of serious assault public officer performing function causing bodily harm – mode of hearing of appeal – error of law – witness credit – whether conviction unreasonable and unsupported – whether comparative seriousness of the offending misconstrued - absence of evidence of the appellant’s mental state at the time of the offending and at sentence - sentence manifestly excessive.

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

Penalties and Sentences Act 1992 (Qld), s 9(3)(a)(j)

Cases

Allesch v Maunz (2000) 203 CLR 172
Chidiac v R (1991) 171 CLR 432
Devries v Australian National Railways Commission (1993) 177 CLR 472
Dwyer v Calco Timbers (2008) 234 CLR 124
Dyers v The Queen (2002) 210 CLR 285
Forrest v Commissioner of Police [2017] QCA 132
Fox v Percy (2003) 214 CLR 118
Gallo v Dawson (1990) 93 ALR 479
Hainaut v Department of Transport and Main Roads [2017] QDC 207
Hainaut v Queensland Police Service [2017] QDC 208
House v The King (1936) 55 CLR 499
Kentwell v R (2014) 252 CLR 60
Kioa v West (1985) 159 CLR 550
McDonald v Queensland Police Service [2017] QCA 255
Neil v Nott (1994) 121 ALR 148
R v Yarwood [2011] QCA 367
R v Verdins (2007) 16 VR 269
SZTQL v Minister for Immigration and Border Protection and Another (No 2) (2015) 150 ALD 456
Warren v Coombes (1979) 142 CLR 531
White v Commissioner of Police [2014] QCA 121
Whitehorn v R (1983) 152 CLR 657

SOLICITORS: Appellant self-represented
The Office of Director of Public Prosecutions for the respondent

The appellant who feels aggrieved by, and now appeals against, his conviction and sentence for the offence of serious assault on a public officer performing function causing bodily harm.

Both parties provided outlines of argument (including those of appellant’s former counsel), and made further submissions on the hearing of the appeal, which I have…

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: [2019] QDC 222
Decision Date: 8 November 2019

CaseChat Overview and Summary

In the case of Moss v Queensland Police Service, the appellant, Moss, appealed against his conviction and sentence for serious assault causing bodily harm to a police officer. The case was heard by the Court of Appeal in Queensland. The primary issue before the court was whether the conviction was unreasonable and unsupported due to an error of law in assessing the credibility of witnesses. Additionally, the court had to determine if the comparative seriousness of the offence was misconstrued and if the sentence was manifestly excessive.

The court found that while the appeal against the conviction was dismissed as there was no error of law, the appeal against the sentence was allowed. The court held that the sentence was manifestly excessive, particularly considering the absence of evidence regarding the appellant’s mental state at the time of the offence and at the time of sentencing. The court concluded that the absence of such evidence meant the sentence did not adequately reflect the circumstances of the case, including the appellant's mental health status and its impact on his capacity to serve a sentence in a correctional centre.

In light of these findings, the court set aside the sentence and orders of the Magistrates Court and ordered a pre-sentence report to be prepared, which includes an assessment of the appellant's mental health. The court will hear further submissions from the parties to determine the date for the re-sentencing hearing.

Orders

Orders of the court

1. Appeal against conviction is dismissed;

2. Appeal against sentence is allowed;

3. The sentence and orders of the Magistrates Court made in Mareeba on 21 February 2019 are set aside;

4. A pre-sentence report be prepared pursuant to s 344 of the Corrective Services Act 2006 (Qld) in respect of the appellant, including an assessment of his mental health in the form of a psychiatric and/or a psychological assessment for the purposes of sentencing him for the offence; and assessment of any impact on the appellant’s and his capacity to serve actual custody in a correctional centre.

5. I will hear further from the parties to fix the date for the re-sentencing hearing.

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:	Moss v Queensland Police Service [2019] QDC 222
PARTIES:	JAMEY CARL PETER MOSS (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	APPEAL NO: 47/19
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Mareeba
DELIVERED ON:	8 November 2019
DELIVERED AT:	Cairns
HEARING DATE:	8 August 2019
JUDGE:	Morzone QC DCJ
ORDER:	1. Appeal against conviction is dismissed; 2. Appeal against sentence is allowed; 3. The sentence and orders of the Magistrates Court made in Mareeba on 21 February 2019 are set aside; 4. A pre-sentence report be prepared pursuant to s 344 of the Corrective Services Act 2006 (Qld) in respect of the appellant, including an assessment of his mental health in the form of a psychiatric and/or a psychological assessment for the purposes of sentencing him for the offence; and assessment of any impact on the appellant’s and his capacity to serve actual custody in a correctional centre. 5. I will hear further from the parties to fix the date for the re-sentencing hearing.
CATCHWORDS:	CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - conviction – offence of serious assault public officer performing function causing bodily harm – mode of hearing of appeal – error of law – witness credit – whether conviction unreasonable and unsupported – whether comparative seriousness of the offending misconstrued - absence of evidence of the appellant’s mental state at the time of the offending and at sentence - sentence manifestly excessive. Legislation Justices Act 1886 (Qld) ss 222, 223(1) & 227 Penalties and Sentences Act 1992 (Qld), s 9(3)(a)(j) Cases Allesch v Maunz (2000) 203 CLR 172 Chidiac v R (1991) 171 CLR 432 Devries v Australian National Railways Commission (1993) 177 CLR 472 Dwyer v Calco Timbers (2008) 234 CLR 124 Dyers v The Queen (2002) 210 CLR 285 Forrest v Commissioner of Police [2017] QCA 132 Fox v Percy (2003) 214 CLR 118 Gallo v Dawson (1990) 93 ALR 479 Hainaut v Department of Transport and Main Roads [2017] QDC 207 Hainaut v Queensland Police Service [2017] QDC 208 House v The King (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 60 Kioa v West (1985) 159 CLR 550 McDonald v Queensland Police Service [2017] QCA 255 Neil v Nott (1994) 121 ALR 148 R v Yarwood [2011] QCA 367 R v Verdins (2007) 16 VR 269 SZTQL v Minister for Immigration and Border Protection and Another (No 2) (2015) 150 ALD 456 Warren v Coombes (1979) 142 CLR 531 White v Commissioner of Police [2014] QCA 121 Whitehorn v R (1983) 152 CLR 657
SOLICITORS:	Appellant self-represented The Office of Director of Public Prosecutions for the respondent