DISTRICT COURT OF QUEENSLAND
CITATION: PMB v Kelly [2014] QDC 301 PARTIES: PMB
Appellantand
CONSTABLE B. L. KELLY
RespondentFILE 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 30th 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 6th of August and 12th 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 47COUNSEL: Mr C. Rosser for the Appellant (direct brief)
Ms D. Darwen for the RespondentSOLICITORS: Director of Public Prosecutions for the Respondent
HIS HONOUR: This is an appeal against sentence. On the 22nd of August 2014 in the Magistrates Court at Southport the appellant pleaded guilty to a charge that on the 3rd of August 2014 at Southport he contravened a domestic violence order made on the 21st 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 5th of November 2014 was fixed and a declaration as to pre-sentence custody of 17 days between the 6th and the 22nd of August 2014 was made. On the 12th 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…
Continue reading PMB v Kelly
Sign in free to access the full text
- AGLC
- PMB v Kelly [2014] QDC 301
- Case
- [2014] QDC 301
- Decision Date
CaseChat Overview and Summary
The court examined the appellant's prior convictions for similar offences and noted the prevalence and seriousness of domestic violence. It held that the sentence was not manifestly excessive, as the crime involved a serious assault on the complainant and the appellant had a history of similar offending. The court also considered the appellant's pre-sentence custody, acknowledging that he had already served 38 days in custody before the sentencing hearing. This period of pre-sentence custody was declared to be time already served under the sentence.
The appeal was dismissed, but the court ordered a new parole release date to be fixed, taking into account the 38 days in custody already served by the appellant. The new parole release date was set for 30th of January 2015, which incorporated the 38 days of pre-sentence custody between 6th of August and 12th of September 2014. The court recorded that the appellant had been in pre-sentence custody for 38 days and declared that period to be time already served under the 12-month sentence.
Orders
Orders of the court
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 30th 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 6th of August and 12th of September 2014, and declare that period of 38 days to be time already served under the sentence of 12 months.
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.