DISTRICT COURT OF QUEENSLAND
CITATION:
Nielson v Radcliffe (Constable) [2016] QDC 213
PARTIES:
TYE JADE NIELSON
(appellant)
v
QUEENSLAND POLICE SERVICE
(respondent)FILE NO/S:
APPEAL NO: 109/16
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court, Mareeba
DELIVERED ON:
10 August 2016
DELIVERED EX TEMPORE AT:
CairnsHEARING DATE:
10 August 2016
JUDGE:
Morzone QC DCJ
ORDER:
1. Appeal allowed.
2. The orders made by the Magistrates Court 10 June 2016 are set aside to a limited extent as follows:
a. In relation to charge 8 of failing to appear, in lieu of one month of imprisonment to be served cumulatively, the appellant will be convicted but not further punished.
b. In respect of charge 2 of dangerous operation of a motor vehicle while adversely affected by an intoxicating substance, the sentence will be varied to the extent that, in lieu of setting a parole release date, that term and the concurrent term of imprisonment for charge 3 of driving under the influence of liquor will be partly suspended after the appellant serves four months with an operational period under this order of three years.
c. Declare that 102 days spent in custody from 29 April 2016 to 9 August 2016 inclusive in relation to the offending is to be imprisonment already served under the sentence. The Registrar is directed to inform the Commission of this declaration.
CATCHWORDS:
CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 (Qld) – conviction – dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance, together with other related and unrelated offences – mode of hearing of appeal – error of law – whether sentence manifestly excessive.
Legislation
Justices Act 1886 (Qld), s 222, s 223 & 227
Penalties and Sentences Act 1992 (Qld), ss 9 & 13
Transport Operations (Road Use Management) Act 1995 (Qld), s 90CCases
House v the King (1936) 55 CLR 499
The Queen v Mallon [1997] QCA 058
White v Commissioner of Police [2014] QCA 121
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-178
Norbis v Norbis (1986) 161 CLR 513
The Queen v Jackson [2011] QCA 103
The Queen v Conquest & Attorney-General of Queensland [1995] QCA 567
The Queen v Tabakovic [2005] QCA 90
Santillan v the Queensland Police Service [2008] QDC 33
The Queen v Simpson [2001] QCA 109
The Queen v Smith [2004] QCA 126
The Queen v Isaac [2001] QCA 95
The Queen v Coake [1999] QCA 012SOLICITORS: S. Morris of Arnell & Cooper Lawyers for the appellant
A. Dunkerton of the Office of Director of Public Prosecutions for the respondent
On 10 June 2016, the appellant was convicted after on his own plea of guilty in the Magistrates Court held in Mareeba, of dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance, together with other related and unrelated offences. For the offence of dangerous operation of a motor vehicle whilst adversely affected by an…
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- AGLC
- Nielson v Radcliffe (Constable) [2016] QDC 213
- Case
- [2016] QDC 213
- Decision Date
CaseChat Overview and Summary
The primary issue for the court to determine was whether the sentence imposed was manifestly excessive and whether there was any error of law in the conduct of the appeal. The court examined the nature and circumstances of the offences, the appellant's criminal history, and the sentence imposed. The court also considered the appellant's argument that the mode of hearing the appeal was improper.
The court found that the sentence was manifestly excessive in respect of the charge of dangerous operation of a motor vehicle while adversely affected by an intoxicating substance and the related charge of driving under the influence of liquor. The court set aside the orders made by the Magistrates Court and varied the sentence to reflect a partly suspended term after the appellant had served four months. The court also declared that the 102 days spent in custody were to be considered as imprisonment already served under the sentence.
The court allowed the appeal in part, set aside the orders made by the Magistrates Court, and directed the Registrar to inform the Commission of the declaration. The court did not disturb the conviction for failing to appear but ordered that the appellant would not be further punished for that offence.
Orders
Orders of the court
1. Appeal allowed.
2. The orders made by the Magistrates Court 10 June 2016 are set aside to a limited extent as follows:
a. In relation to charge 8 of failing to appear, in lieu of one month of imprisonment to be served cumulatively, the appellant will be convicted but not further punished.
b. In respect of charge 2 of dangerous operation of a motor vehicle while adversely affected by an intoxicating substance, the sentence will be varied to the extent that, in lieu of setting a parole release date, that term and the concurrent term of imprisonment for charge 3 of driving under the influence of liquor will be partly suspended after the appellant serves four months with an operational period under this order of three years.
c. Declare that 102 days spent in custody from 29 April 2016 to 9 August 2016 inclusive in relation to the offending is to be imprisonment already served under the sentence. The Registrar is directed to inform the Commission of this declaration.
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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