Moss v Queensland Police Service

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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
  1. 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.

  1. 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…

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Details
Case
[2019] QDC 222
Decision Date

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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