Purcell v Bateup - [2009] QDC 430

DISTRICT COURT OF QUEENSLAND

CITATION:

Purcell v Bateup & Ors [2009] QDC 430

PARTIES:

MIRANDA ASHLEY PURCELL

(Applicant)

V

NICHOLAS JOHN BATEUP

(Respondent)

AND

SARAH JOSEPHINE MARTIN

(Respondent)

AND

KRISTEN THOMAS

(Respondent)

AND

CLAIRE ELIZABETH VALKOFF

(Respondent)

FILE NO/S:

782/2009

DIVISION:

Appellate

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

Magistrates Court at Richlands

DELIVERED ON:

24 August 2009 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2009

JUDGE:

Irwin DCJ

ORDER:

1.        Appeal allowed.

2. (a)    The sentence imposed on 6 March 2009 and associated orders are set aside.

(b)   The appellant is re‑sentenced as follows:

(i)        Convicted, and a conviction recorded, on all counts;

(ii) On the four charges of receiving stolen property, two charges of possession of dangerous drugs, and one charge each of possession of utensils and possession of tainted property, released under the supervision of an authorised corrective services officer for a period of three years under s 92(1)(a) of the Penalties and Sentences Act 1992 on the requirements under s 93(1) of that Act;

(iii)      On the three charges of contravening a direction, two charges of unauthorised dealing with shop goods, and one charge of failing to appear, not further punished;

(iv) On the charge of driving over the general but under the high alcohol limit, and the charge of unlicensed driving, one fine of $600 for both offences, and it is ordered that the proper officer of the court give, under s 34 of the State Penalties Enforcement Act, particulars of the fine to SPER for registration, and disqualified from holding or obtaining a licence for 6 months.

(c)    In relation to the charge of possession of tainted property, it is ordered that the appellant pay to the State a pecuniary penalty assessed in the sum of $41.55 forthwith, being the monies held by the prosecuting authority.

3.        No order as to costs.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERING – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant was convicted on her guilty plea of four charges of receiving stolen property – three counts of contravening a direction, two charges each of possession of dangerous drugs and unauthorised dealing with shop goods, and one charge each of possession of utensils, possession of tainted property, failure to appear, driving over the general but under the high alcohol limit and unlicensed driving – where in relation to the four charges of receiving, the two charges of possession of dangerous drugs and one charge each of possession of a utensil and possession of tainted property the appellant was sentenced to 4 months imprisonment and probation for 3 years under s 92(1)(b) of the Penalties and Sentences Act 1992 (Qld) – where in relation to the charge of failure to appear the appellant was sentenced to 16 days imprisonment cumulative – where it was declared that 15 days was time already served under the sentence – where the total effect of these sentences was that…

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 Purcell v Bateup

Details

AGLC: Purcell v Bateup [2009] QDC 430
Case: [2009] QDC 430
Decision Date: 24 August 2009 (ex tempore)

CaseChat Overview and Summary

The appellant, Purcell, appealed against the sentence imposed on her by the District Court of Queensland. Purcell was convicted on her guilty plea of multiple charges including receiving stolen property, possession of dangerous drugs, and driving-related offences. The District Court sentenced Purcell to four months imprisonment and probation for three years for some charges, and additional terms for others. Purcell argued that the sentence was manifestly excessive, considering her age, limited criminal history, and the influence of a more serious criminal offender.

The legal issues in this case centered on whether the sentence imposed was manifestly excessive or inadequate, and whether the court erred in sentencing Purcell to imprisonment for offences for which only a monetary penalty could be imposed, without considering her financial circumstances. The court had to decide if Purcell's sentence was disproportionate and if there was an error of principle in sentencing her to imprisonment for offences that carried only a monetary penalty.

The Court of Appeal found that the sentence imposed was manifestly excessive. The Court considered Purcell's age, limited criminal history, and the influence of a more serious offender, as well as her cooperation with the administration of justice and her compelling personal circumstances. The Court also found that it was an error of principle to sentence Purcell to imprisonment for offences for which only a monetary penalty could be imposed, and to fail to consider her financial circumstances. The Court set aside the original sentence and re-sentenced Purcell, ordering supervision for some charges, fines for others, and disqualification from holding or obtaining a licence for driving-related offences.

The final orders included setting aside the original sentence and re-sentencing Purcell with specific terms for supervision, fines, and disqualification from driving. The Court did not order costs.

Orders

Orders of the court

1. Appeal allowed.

2. (a) The sentence imposed on 6 March 2009 and associated orders are set aside.

(b) The appellant is re‑sentenced as follows:

(i) Convicted, and a conviction recorded, on all counts;

(ii) On the four charges of receiving stolen property, two charges of possession of dangerous drugs, and one charge each of possession of utensils and possession of tainted property, released under the supervision of an authorised corrective services officer for a period of three years under s 92(1)(a) of the Penalties and Sentences Act 1992 on the requirements under s 93(1) of that Act;

(iii) On the three charges of contravening a direction, two charges of unauthorised dealing with shop goods, and one charge of failing to appear, not further punished;

(iv) On the charge of driving over the general but under the high alcohol limit, and the charge of unlicensed driving, one fine of $600 for both offences, and it is ordered that the proper officer of the court give, under s 34 of the State Penalties Enforcement Act, particulars of the fine to SPER for registration, and disqualified from holding or obtaining a licence for 6 months.

(c) In relation to the charge of possession of tainted property, it is ordered that the appellant pay to the State a pecuniary penalty assessed in the sum of $41.55 forthwith, being the monies held by the prosecuting authority.

3. No order as to costs.

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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CITATION:	Purcell v Bateup & Ors [2009] QDC 430
PARTIES:	MIRANDA ASHLEY PURCELL (Applicant) V NICHOLAS JOHN BATEUP (Respondent) AND SARAH JOSEPHINE MARTIN (Respondent) AND KRISTEN THOMAS (Respondent) AND CLAIRE ELIZABETH VALKOFF (Respondent)
FILE NO/S:	782/2009
DIVISION:	Appellate
PROCEEDING:	Appeal against sentence
ORIGINATING COURT:	Magistrates Court at Richlands
DELIVERED ON:	24 August 2009 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 2009
JUDGE:	Irwin DCJ
ORDER:	1. Appeal allowed. 2. (a) The sentence imposed on 6 March 2009 and associated orders are set aside. (b) The appellant is re‑sentenced as follows: (i) Convicted, and a conviction recorded, on all counts; (ii) On the four charges of receiving stolen property, two charges of possession of dangerous drugs, and one charge each of possession of utensils and possession of tainted property, released under the supervision of an authorised corrective services officer for a period of three years under s 92(1)(a) of the Penalties and Sentences Act 1992 on the requirements under s 93(1) of that Act; (iii) On the three charges of contravening a direction, two charges of unauthorised dealing with shop goods, and one charge of failing to appear, not further punished; (iv) On the charge of driving over the general but under the high alcohol limit, and the charge of unlicensed driving, one fine of $600 for both offences, and it is ordered that the proper officer of the court give, under s 34 of the State Penalties Enforcement Act, particulars of the fine to SPER for registration, and disqualified from holding or obtaining a licence for 6 months. (c) In relation to the charge of possession of tainted property, it is ordered that the appellant pay to the State a pecuniary penalty assessed in the sum of $41.55 forthwith, being the monies held by the prosecuting authority. 3. No order as to costs.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERING – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant was convicted on her guilty plea of four charges of receiving stolen property – three counts of contravening a direction, two charges each of possession of dangerous drugs and unauthorised dealing with shop goods, and one charge each of possession of utensils, possession of tainted property, failure to appear, driving over the general but under the high alcohol limit and unlicensed driving – where in relation to the four charges of receiving, the two charges of possession of dangerous drugs and one charge each of possession of a utensil and possession of tainted property the appellant was sentenced to 4 months imprisonment and probation for 3 years under s 92(1)(b) of the Penalties and Sentences Act 1992 (Qld) – where in relation to the charge of failure to appear the appellant was sentenced to 16 days imprisonment cumulative – where it was declared that 15 days was time already served under the sentence – where the total effect of these sentences was that…