Motteram v Toohey - [2010] QDC 180

[2010] QDC 180

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE RAFTER SC
No 3692 of 2009

JOSEPH STUART MOTTERAM	Appellant
and
JOSEPH PETER TOOHEY	Respondent
BRISBANE ..DATE 14/04/2010 ORDER

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HIS HONOUR: I need to give reasons for allowing the appeal, which is what I propose to do, but before I do that, having indicated that I intend to make a probation order, I will explain the requirements of probation to Mr Motteram to ascertain whether or not he would consent to such an order and, depending on that, I will then give my reasons and pronounce the formal orders.

Joseph Stuart Motteram, what I propose to do is set aside the These are the standard conditions of a probation order so I'll ask you to listen very carefully and after I've read them out I'll ask you whether or not you understand the requirements of probation and whether or not you consent to being placed on probation.

sentence of imprisonment that was imposed in the Magistrates
Court and substitute an order of probation for two years.
These are the conditions.

1.    You must not commit another offence during the period of the order, which will be two years.
2.    You must report to an authorised corrective services officer at Brisbane within 48 hours.
3.    You must report to, and receive visits from, an authorised corrective services officer as directed by the officer.

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4. You must take part in counselling and satisfactorily attend other programs as directed by the authorised corrective services officer during the period of the order.

5.    You must notify an authorised corrective services officer of every change of your place of residence or employment within two business days after the change happens.
6.    You must not leave or stay out of Queensland without the permission of an authorised corrective services officer.
7.    You must comply with every reasonable direction of an authorised corrective services officer.

There will also be a special requirement, namely;

8. That you submit to medical, psychiatric or psychological treatment as directed by the authorised corrective services officer.

The purpose of the probation order is to enable you to be to do under section 97 of the Penalties and Sentences Act 1992 in respect of all three offences. So if you breach any of the requirements of the probation order you can be resentenced for all of the offences. Also, you must understand that the probation order can be amended or revoked on application by you or the authorised corrective services officer or the Director of Public Prosecutions.

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ORDER

supervised in the community by a probation officer. You will
have the support and assistance of a probation officer.
However, if you breach any of the requirements of probation,
including by reoffending or not reporting as directed, you can
be punished for that and that can lead to you being
resentenced for these offences for which the probation order
is being made.

Joseph Stuart Motteram, do you understand the requirements of probation?

DEFENDANT:…

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.

Continue reading Motteram v Toohey

Details

AGLC: Motteram v Toohey [2010] QDC 180
Case: [2010] QDC 180
Decision Date: 14/04/2010

CaseChat Overview and Summary

Joseph Stuart Motteram appealed against the sentence imposed by the Magistrate at the Brisbane Magistrates Court. The appellant pleaded guilty to one count of assault occasioning harm and two counts of wilful damage. The Magistrate sentenced the appellant to imprisonment for 12 months but ordered an immediate release on parole. The Magistrate also ordered that convictions be recorded and restitution be paid to the complainants. The appellant argued that the Magistrate imposed the sentence on an incorrect factual basis, that the sentence was manifestly excessive, and that the Magistrate failed to consider the appellant's psychiatric treatment and mitigating factors adequately.

The legal issues in this case included whether the Magistrate imposed a global sentence, which is considered plainly erroneous, and whether the sentence was manifestly excessive or based on incorrect facts. The court had to consider the appellant's psychiatric history and treatment, as well as mitigating factors such as his age, lack of criminal history, and plea of guilty. The court also had to determine whether convictions should be recorded and whether the restitution orders were correctly endorsed on the appropriate files.

The District Court found that the Magistrate imposed a global sentence, which was plainly erroneous. The court noted that it is necessary to impose a sentence of imprisonment for each offence when a sentence of imprisonment is being imposed. The court also found that the Magistrate imposed sentence on an incorrect factual basis as she believed the appellant kicked the complainant twice, which was not the case. The court accepted that the sentence was manifestly excessive and that the Magistrate failed to give sufficient weight to the mitigating factors. The court decided that convictions should not be recorded in respect of any of the offences and that a community-based order, such as probation, was appropriate. The court set aside the sentence of imprisonment and the order recording convictions and instead ordered that the appellant be placed on probation for two years with certain conditions, including compliance with psychiatric treatment as directed by an authorised corrective services officer.

The final orders were that the appeal be allowed, the sentence of imprisonment and the order recording convictions be set aside, convictions not be recorded, and the appellant be placed on probation for two years with the specified conditions. The court also directed that a copy of the psychiatric report be sent to the Probation and Parole Office.

Orders