Penhaligon v Queensland Police Service - [2020] QDC 289

DISTRICT COURT OF QUEENSLAND

CITATION:

Penhaligon v QPS [2020] QDC 289

PARTIES:

NATHAN JOHN PENHALIGON

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO:
Appeal No: 137/20

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Beenleigh

DELIVERED ON:

13 November 2020

DELIVERED AT:

Cairns

HEARING DATE:

4 November 2020

JUDGE:

Morzone QC DCJ

ORDER:

1.   Allow the application for extension of time for filing the notice of appeal until 21 August 2020.

2.   Appeal allowed.

3.   The respective bench charge sheets are amended in respect of charges 19, 24, 25, 26, 27, 28, 29 and 31 for the offence of failing to appear in accordance with an undertaking to reflect the dates of the required appearance and the operative undertaking relied upon in the Schedule of Facts tendered at the sentence.

4.   The sentence and orders of the Magistrates Court made in Beenleigh Magistrate on 24 June 2019 are varied in respect of Charges 19, 24, 25, 26, 27, 28, 29 and 31 of Failing to Appear in Accordance with an Undertaking, by substituting the following sentences:

(a)      Charge 19 - 1 week imprisonment,

(b)      Charge 24 - 1 week imprisonment,

(c)      Charge 25 - 1 week imprisonment,

(d)      Charge 26 - 1 week imprisonment,

(e)      Charge 27 - 1 week imprisonment,

(f)      Charge 28 - 1 week imprisonment,

(g)      Charge 29 - 1 week imprisonment, and

(h)      Charge 31 - 1 week imprisonment.

5.   I otherwise confirm the decision of the sentences magistrate including the cumulative effect of the sentences.

6.   I direct the registrar to substitute the respondent on the court file, being ‘Beenleigh Magistrates Court’ for Queensland Police Service.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – appeal pursuant to s 222 Justices Act 1886 – 8x failure to appear in accordance with undertaking – multiple new offending and resentence for offences subject of breached of intensive correction order – legislated mandatory cumulative sentence required by s 33(4) of the Bail Act 1980 (Qld) – totality principle – whether overall sentence manifestly excessive.

LEGISLATION:

Bail Act 1980 (Qld) s 33(4)

Justices Act 1886 (Qld) ss 222, 223(1), 224(1)(a) & 227

Penalties and Sentences Act 1992 (Qld) s 9

CASES:

Allesch v Maunz (2000) 203 CLR 172

Fox v Percy (2003) 214 CLR 118

House v The King (1936) 55 CLR 499

Kentwell v R (2014) 252 CLR 60

Lovell v Lovell (1950) 81 CLR 513

Mill v The Queen [1988] 166 CLR 59

R v Margaritis; Ex parte Attorney-General (Qld) [2014] QCA 219

R v Morse (1979) 23 SASR 98

R v Tait [1999] 2 Qd R 667

R v Yarwood [2011] QCA 367

The Queen v Crofts [1999] 1 Qd R 386

The Queen v Kendrick [2015] QCA 27.

White v Commissioner of Police [2014] QCA 12

COUNSEL:
Self-represented Appellant

C Georgouras for the Respondent

SOLICITORS:
The Office of the Director of Public Prosecutions for the Respondent

Introduction

The appellant applies for an extension of time to appeal against the sentence imposed on 24 June 2019…

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: [2020] QDC 289
Decision Date: 13 November 2020

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent, Queensland Police Service, against a sentence imposed by the Beenleigh Magistrates Court. The appellant, Mr Penhaligon, had been found guilty of multiple charges, including failing to appear in court as required, and other related offences. The primary legal issue was whether the cumulative sentence imposed by the Magistrates Court, which included a legislated mandatory cumulative sentence, was manifestly excessive. This involved considerations under the Bail Act 1980 and the principles surrounding the totality of sentencing.

The court examined the sentences imposed on Mr Penhaligon for his multiple offences, particularly focusing on the cumulative sentence mandated by statute. It was noted that the Magistrates Court had imposed a total of eight weeks imprisonment for the charges of failing to appear in court, with each charge attracting a one-week imprisonment term. The court considered whether this sentence was excessive when viewed in totality. It was held that while the statutory requirement for cumulative sentencing was strict, the totality principle must also be respected, ensuring that the overall sentence did not become manifestly excessive. The court found that the original sentence, while harsh, did not reach the level of manifest excessiveness.

Consequently, the court allowed the appeal, varying the sentences for the charges of failing to appear in accordance with an undertaking. It substituted each of these sentences with a term of one week imprisonment, ensuring that the overall sentence remained within the bounds of what was reasonable and just. The court also made amendments to the bench charge sheets to reflect the correct dates of the required appearances and the specific undertakings breached. The decision of the Magistrates Court was otherwise confirmed, and the respondent was directed to be substituted as Queensland Police Service in the court file.

Orders

Orders of the court

1. Allow the application for extension of time for filing the notice of appeal until 21 August 2020.

2. Appeal allowed.

3. The respective bench charge sheets are amended in respect of charges 19, 24, 25, 26, 27, 28, 29 and 31 for the offence of failing to appear in accordance with an undertaking to reflect the dates of the required appearance and the operative undertaking relied upon in the Schedule of Facts tendered at the sentence.

4. The sentence and orders of the Magistrates Court made in Beenleigh Magistrate on 24 June 2019 are varied in respect of Charges 19, 24, 25, 26, 27, 28, 29 and 31 of Failing to Appear in Accordance with an Undertaking, by substituting the following sentences:

(a) Charge 19 - 1 week imprisonment,

(b) Charge 24 - 1 week imprisonment,

(d) Charge 26 - 1 week imprisonment,

(e) Charge 27 - 1 week imprisonment,

(f) Charge 28 - 1 week imprisonment,

(g) Charge 29 - 1 week imprisonment, and

(h) Charge 31 - 1 week imprisonment.

5. I otherwise confirm the decision of the sentences magistrate including the cumulative effect of the sentences.

6. I direct the registrar to substitute the respondent on the court file, being ‘Beenleigh Magistrates Court’ for Queensland Police Service.

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:	Penhaligon v QPS [2020] QDC 289
PARTIES:	NATHAN JOHN PENHALIGON (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO:	Appeal No: 137/20
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Beenleigh
DELIVERED ON:	13 November 2020
DELIVERED AT:	Cairns
HEARING DATE:	4 November 2020
JUDGE:	Morzone QC DCJ
ORDER:	1. Allow the application for extension of time for filing the notice of appeal until 21 August 2020. 2. Appeal allowed. 3. The respective bench charge sheets are amended in respect of charges 19, 24, 25, 26, 27, 28, 29 and 31 for the offence of failing to appear in accordance with an undertaking to reflect the dates of the required appearance and the operative undertaking relied upon in the Schedule of Facts tendered at the sentence. 4. The sentence and orders of the Magistrates Court made in Beenleigh Magistrate on 24 June 2019 are varied in respect of Charges 19, 24, 25, 26, 27, 28, 29 and 31 of Failing to Appear in Accordance with an Undertaking, by substituting the following sentences: (a) Charge 19 - 1 week imprisonment, (b) Charge 24 - 1 week imprisonment, (c) Charge 25 - 1 week imprisonment, (d) Charge 26 - 1 week imprisonment, (e) Charge 27 - 1 week imprisonment, (f) Charge 28 - 1 week imprisonment, (g) Charge 29 - 1 week imprisonment, and (h) Charge 31 - 1 week imprisonment. 5. I otherwise confirm the decision of the sentences magistrate including the cumulative effect of the sentences. 6. I direct the registrar to substitute the respondent on the court file, being ‘Beenleigh Magistrates Court’ for Queensland Police Service.
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – appeal pursuant to s 222 Justices Act 1886 – 8x failure to appear in accordance with undertaking – multiple new offending and resentence for offences subject of breached of intensive correction order – legislated mandatory cumulative sentence required by s 33(4) of the Bail Act 1980 (Qld) – totality principle – whether overall sentence manifestly excessive.
LEGISLATION:	Bail Act 1980 (Qld) s 33(4) Justices Act 1886 (Qld) ss 222, 223(1), 224(1)(a) & 227 Penalties and Sentences Act 1992 (Qld) s 9
CASES:	Allesch v Maunz (2000) 203 CLR 172 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 60 Lovell v Lovell (1950) 81 CLR 513 Mill v The Queen [1988] 166 CLR 59 R v Margaritis; Ex parte Attorney-General (Qld) [2014] QCA 219 R v Morse (1979) 23 SASR 98 R v Tait [1999] 2 Qd R 667 R v Yarwood [2011] QCA 367 The Queen v Crofts [1999] 1 Qd R 386 The Queen v Kendrick [2015] QCA 27. White v Commissioner of Police [2014] QCA 12
COUNSEL:	Self-represented Appellant C Georgouras for the Respondent
SOLICITORS:	The Office of the Director of Public Prosecutions for the Respondent