PMB v Kelly

[2014] QDC 301

DISTRICT COURT OF QUEENSLAND

CITATION:

PMB v Kelly [2014] QDC 301

PARTIES:

PMB
Appellant

and

CONSTABLE B. L. KELLY
Respondent

FILE NO:

No. D232 of 2014

PROCEEDING:

Appeal against sentence

DELIVERED ON:

11 December 2014

DELIVERED AT:

Southport

HEARING DATE:

 3 December 2014

JUDGE:

Judge C.F. Wall Q.C.

ORDER:

Appeal dismissed, except that a new parole release date will be fixed to take into account the 38 days in custody already served by the appellant. A parole release date of 30^th of January 2015 will be fixed, which takes into account 38 days pre-sentence custody.  Record that the appellant has been in pre-sentence custody for 38 days between 6^th of August and 12^th of September 2014, and declare that period of 38 days to be time already served under the sentence of 12 months.  

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – DOMESTIC VIOLENCE– where the appellant pleaded guilty to one charge of contravening a domestic violence order and was sentenced to 12 months imprisonment with release on parole fixed after serving one third of sentence – whether sentence manifestly excessive –  relevant considerations – serious assault on complainant – prior convictions for similar offences – subsequent similar offending – prevalence of domestic violence

Domestic and Family Violence Protection Act 2012, s 8
Justices Act 1886, s 47

R v Taylor [2000] QCA 311

R v James [2012] QCA 256
R v Allison [2003] QCA 125

COUNSEL:

Mr C. Rosser for the Appellant (direct brief)
Ms D. Darwen for the Respondent

SOLICITORS: 

Director of Public Prosecutions for the Respondent

HIS HONOUR:   This is an appeal against sentence.  On the 22^nd of August 2014 in the Magistrates Court at Southport the appellant pleaded guilty to a charge that on the 3^rd of August 2014 at Southport he contravened a domestic violence order made on the 21^st of May 2014 in the Magistrates Court at Southport.  A conviction was recorded and he was sentenced to 12 months imprisonment.  A parole release date of the 5^th of November 2014 was fixed and a declaration as to pre-sentence custody of 17 days between the 6^th and the 22^nd of August 2014 was made.  On the 12^th of September 2014 the appellant was released on bail pending the hearing of the appeal.  He had by then served a further 21 days of the sentence of 12 months.  A total of 38 days has been served so far.  The appellant contends that the sentence imposed by the magistrate was manifestly excessive. 

Counsel for the appellant, Mr Rosser, submitted to me that all of the facts stated by the prosecution to the magistrate were accepted and that he did not argue against a sentence of 12 months imprisonment, taking into account the facts and the history.  In fact, he said it was quite fair if a sentence of imprisonment was considered warranted.  In such a case, he submitted that taking into account…