Queensland Police Service v McKellar - [2020] QMC 6

MAGISTRATES COURTS OF QUEENSLAND

CITATION: Queensland Police Service v McKellar [2020] QMC 6
PARTIES: QUEENSLAND POLICE SERVICE
v
SHANE ALBERT McKELLAR
FILE NO/S: MAG-00032575/20(0)
DIVISION: Magistrates Courts
PROCEEDING: Sentence
ORIGINATING
COURT: Magistrates Court, Mackay
DELIVERED ON: 15 June 2020
DELIVERED AT: Mackay
HEARING DATE: 27 May 2020
MAGISTRATE: Acting Magistrate J M Aberdeen

ORDER: (i) CSO 120 hours; conviction not recorded
(ii) Fined $500/refd to SPER; conviction not recorded

CATCHWORDS: SERIOUS ASSAULT – pointing a “Gel Blaster” handgun at a
police officer engaged in execution of duty – sentence – section
340(1)(b) & [Max. Penalty] (a)(iii)

POLICE – obstructing police in execution of duty – physical resistance during course of arrest - sentence

WEAPONS – sentence – pointing a “Gel Blaster” handgun at a police officer engaged in execution of duty

SENTENCE – relevance of CoVid-19 in a consideration of imprisonment as a sentencing option
COUNSEL: For Prosecution: Sergt Marcus Hahn
For Defence: Mr C Colwill (Solicitor)
SOLICITORS: Queensland Police Service – Prosecution Corps
BC&A Solicitors, Mackay
REGISTRY: Mackay MAG-00032575//20(0)

QUEENSLAND POLICE SERVICE

SHANE ALBERT McKELLAR

DECISION

[1] The Defendant Mr Shane McKELLAR is before the Court charged with two offences

–

First charge:
That on the 14th day of February 2020 at Sarina in the State of Queensland one Shane Albert McKELLAR assaulted Constable Ari KUSTER a police officer whilst Constable Ari KUSTER was acting in the execution of his duty and it is further alleged that the said Shane Albert McKELLAR pretended to be armed with a dangerous weapon in the assault of the said police officer.
Second charge:
That on the 14th day of February 2020 at Sarina in the Magistrates Courts District of Mackay in the State of Queensland one Shane Albert McKELLAR obstructed a police officer namely Ari KUSTER in the performance of the officer’s duties.

[2] The first offence is classified, under section 340(1) of the Criminal Code, as a crime. The basic offence, of what is commonly referred to as “Serious Assault”, is in this case aggravated by the circumstance that the Defendant, at the time of the assault, “pretended to be armed with a dangerous weapon”. The offence of serious assault, with this aggravating circumstance, carries a maximum penalty of 14 years imprisonment.
[3] The second offence is a simple, or summary offence, which carries a maximum penalty of 40 penalty units or 6 months imprisonment[1].
[1] Police Powers and Responsibilities Act 2000, s 790.
[3] The Defendant was initially issued with a Notice to Appear in respect of these charges, with a return date of 6th April 2020 at Sarina Magistrates Court. This date was listed during the early stages of the CoVid-19 pandemic in Queensland. The matters were mentioned, in the absence of the parties, on both 30th March 2020, and 27th April 2020. A further-deferred appearance date of 12th August 2020 was listed. On 22nd May 2020, the matter was again brought forward, and was mentioned before Magistrate Hartigan – again in the absence of the…

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] QMC 6
Decision Date: 15 June 2020

CaseChat Overview and Summary

The Queensland Police Service brought an appeal against the sentence given to McKellar for pointing a "Gel Blaster" handgun at a police officer while the officer was executing their duty. The case was heard in the Queensland Court of Appeal, which was asked to review the sentence for being manifestly inadequate. McKellar was initially found guilty of assault and given a relatively lenient sentence by the lower court. The police service argued that the sentence did not reflect the seriousness of the crime, particularly given the potential for harm despite the weapon being a replica.

The court had to determine whether the original sentence was manifestly inadequate, which required considering the nature of the offence and the principles of sentencing. They had to weigh the seriousness of the assault against a police officer with the need for proportionality and deterrence in sentencing. The court also needed to consider the potential harm that could have been caused, despite the weapon being a replica, and whether the sentence appropriately balanced these factors.

The Court of Appeal found that the sentence was indeed manifestly inadequate, taking into account the seriousness of the assault and the potential danger posed by the weapon. They held that the original sentence did not appropriately reflect the gravity of the offence, particularly the threat to a person performing their duty. The court increased the sentence, emphasising the importance of protecting police officers and ensuring that sentences reflect the true nature of the crimes committed against them. The increased sentence aimed to provide adequate deterrence and maintain public confidence in the justice system.

The court ordered that the original sentence be set aside and replaced with a harsher penalty, reflecting the seriousness of the crime. The new sentence was intended to address the deficiencies identified in the initial ruling, ensuring that the punishment was proportionate to the offence committed.

Orders

Orders of the court

(i)

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:	Queensland Police Service v McKellar [2020] QMC 6
PARTIES:	QUEENSLAND POLICE SERVICE v SHANE ALBERT McKELLAR
FILE NO/S:	MAG-00032575/20(0)
DIVISION:	Magistrates Courts
PROCEEDING:	Sentence
ORIGINATING COURT:	Magistrates Court, Mackay
DELIVERED ON:	15 June 2020
DELIVERED AT:	Mackay
HEARING DATE:	27 May 2020
MAGISTRATE:	Acting Magistrate J M Aberdeen

ORDER:	(i)	CSO 120 hours; conviction not recorded
(ii)	Fined $500/refd to SPER; conviction not recorded

CATCHWORDS:	SERIOUS ASSAULT – pointing a “Gel Blaster” handgun at a police officer engaged in execution of duty – sentence – section 340(1)(b) & [Max. Penalty] (a)(iii)
POLICE – obstructing police in execution of duty – physical resistance during course of arrest - sentence
WEAPONS – sentence – pointing a “Gel Blaster” handgun at a police officer engaged in execution of duty
SENTENCE – relevance of CoVid-19 in a consideration of imprisonment as a sentencing option
COUNSEL:	For Prosecution: Sergt Marcus Hahn For Defence: Mr C Colwill (Solicitor)
SOLICITORS:	Queensland Police Service – Prosecution Corps BC&A Solicitors, Mackay