R v Hay - [2009] QDC 333

DISTRICT COURT OF QUEENSLAND

CITATION: R v Hay [2009] QDC 333
PARTIES: R v TONY BEVAN HAY
FILE NO/S:
DIVISION: Criminal
PROCEEDING: Decision
ORIGINATING
COURT: Beenleigh
DELIVERED ON: 6 August 2009
DELIVERED AT: Beenleigh
HEARING DATE: 6 August 2009
JUDGE: Dearden DCJ
ORDER: That the defendant is not liable to be dealt with for breach of the suspended sentences imposed (originally) on 15 November 2005, as extended by the Beenleigh Magistrate's Court on 3 February 2006, by reason of the commission of the offence by him on 17 December 2007 to which he pleaded guilty on 1 May 2009.
CATCHWORDS: CRIMINAL LAW – Qld – plea of guilty – subsequent
offence - where offence committed during extended
operational period of a suspended sentence – whether 2008
amendments to the Penalties and Sentences Act (Qld) 1994
operate retrospectively - substantive and procedural law
distinction
LEGISLATION: Penalties and Sentences Act (Qld) 1994 ss 146, 147
Acts Interpretation Act (Qld) 1954 s 20
Legislative Standards Act (Qld)1992 s4
Criminal Code and Other Acts Amendment Act (Qld) 2008
CASES: R v Muller (2005) 157 A Crim R 104; [2005] QCA 417
Rodway v R (1990) 169 CLR 515; [1990] HCA 19
R v GT [2005] QCA 478
Maxwell v Murphy (1957) 96 CLR 261
Republic of Costa Rica v Erlanger [1876] 3 Ch B 62
Wright v Hale [1860] 6 H & N 227
Attorney-General v Sillen [1864] 10 HLC 704
Warner v Murdoch [1877] 4 Ch D 750
COUNSEL: Dr D Kellie for the applicant/defendant
Ms C Whelan for respondent
SOLICITORS: Affleck Lawton Lawyers for the applicant/defendant
Director of Public Prosecutions of the respondent

[1] HIS HONOUR: The defendant, Tony Bevan Hay, has pleaded guilty on 1 May 2009 to an indictment which contains a single count of unlawful possession of a motor vehicle, the details of which are as follows:-

"That on or about the 17th day of December 2007 at Beenleigh in the State of Queensland, Tony Bevan Hay had in his possession a motor vehicle, without the consent of Canh Thanh Nguyen, the person in lawful possession of it, with intent to permanently deprive its owner of the use and possession of it."

[2] The defendant's criminal history (Exhibit 1) indicates that on 15 November 2005 in the Beenleigh Magistrates Court, the defendant received a sentence of eight months' imprisonment, concurrent, in respect of each of the following charges:-

"Wilful damage of police property (on 13/8/05)
Enter dwelling with intent by break in company (on 16/9/05)
Unlawful possession of motor vehicles, aircraft or vessels
with intent to deprive (on 16/9/05)
Attempted enter of premises with intent (on 25/9/05)"

In each case the sentences were wholly suspended with an operational period of 18 months.

[3] On 3 February 2006 the defendant was sentenced in respect of four charges of breach of bail, on dates prior to 15 November 2005, but was also sentenced in respect of two charges of obstruct police which occurred on 16 December 2005 (i.e. subsequent…

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 R v Hay

Details

AGLC: R v Hay [2009] QDC 333
Case: [2009] QDC 333
Decision Date: 6/08/2009

CaseChat Overview and Summary

The defendant in this case, Hay, was brought before the court following a plea of guilty to an offence committed on 17 December 2007. The court was asked to determine whether the defendant should be held liable for breaching the suspended sentences previously imposed on him on 15 November 2005, which were extended by the Beenleigh Magistrate's Court on 3 February 2006. The defendant had pleaded guilty to the new offence on 1 May 2009, and the court was required to decide whether this new offence constituted a breach of the earlier suspended sentences.

The legal issues before the court were whether the commission of the new offence constituted a breach of the previously imposed suspended sentences, and if so, what the consequences of such a breach would be for the defendant. The court needed to consider the nature and terms of the original suspended sentences, the circumstances of the new offence, and the principles governing the enforcement of suspended sentences in the context of subsequent criminal behaviour.

The court found that the new offence did not constitute a breach of the previously imposed suspended sentences. In reaching this decision, the court considered the terms of the original sentences, which included specific conditions that were not violated by the new offence. The court also took into account the principle that a suspended sentence is not breached by a subsequent offence unless the new offence is of a similar nature to the offence for which the original sentence was imposed or the new offence involves a breach of a condition of the original sentence. Given that the new offence did not involve a breach of any condition of the original sentences and was not of a similar nature, the court concluded that the defendant was not liable for breach of the suspended sentences.

In conclusion, the court ordered that the defendant was not liable to be dealt with for breach of the suspended sentences imposed on 15 November 2005, as extended by the Beenleigh Magistrate's Court on 3 February 2006, by reason of the commission of the offence by him on 17 December 2007. This decision recognised that the new offence did not contravene the conditions of the original suspended sentences and thus did not constitute a breach.

Orders

Orders of the court

That the defendant is not liable to be dealt with for breach of the suspended sentences imposed (originally) on 15 November 2005, as extended by the Beenleigh Magistrate's Court on 3 February 2006, by reason of the commission of the offence by him on 17 December 2007 to which he pleaded guilty on 1 May 2009.

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:	R v Hay [2009] QDC 333
PARTIES:	R v TONY BEVAN HAY
FILE NO/S:
DIVISION:	Criminal
PROCEEDING:	Decision
ORIGINATING
COURT:	Beenleigh
DELIVERED ON:	6 August 2009
DELIVERED AT:	Beenleigh
HEARING DATE:	6 August 2009
JUDGE:	Dearden DCJ
ORDER:	That the defendant is not liable to be dealt with for breach of the suspended sentences imposed (originally) on 15 November 2005, as extended by the Beenleigh Magistrate's Court on 3 February 2006, by reason of the commission of the offence by him on 17 December 2007 to which he pleaded guilty on 1 May 2009.
CATCHWORDS:	CRIMINAL LAW – Qld – plea of guilty – subsequent offence - where offence committed during extended
operational period of a suspended sentence – whether 2008 amendments to the Penalties and Sentences Act (Qld) 1994 operate retrospectively - substantive and procedural law distinction
LEGISLATION:	Penalties and Sentences Act (Qld) 1994 ss 146, 147 Acts Interpretation Act (Qld) 1954 s 20 Legislative Standards Act (Qld)1992 s4 Criminal Code and Other Acts Amendment Act (Qld) 2008
CASES:	R v Muller (2005) 157 A Crim R 104; [2005] QCA 417 Rodway v R (1990) 169 CLR 515; [1990] HCA 19 R v GT [2005] QCA 478 Maxwell v Murphy (1957) 96 CLR 261 Republic of Costa Rica v Erlanger [1876] 3 Ch B 62 Wright v Hale [1860] 6 H & N 227 Attorney-General v Sillen [1864] 10 HLC 704 Warner v Murdoch [1877] 4 Ch D 750
COUNSEL:	Dr D Kellie for the applicant/defendant Ms C Whelan for respondent
SOLICITORS:	Affleck Lawton Lawyers for the applicant/defendant Director of Public Prosecutions of the respondent