R v. McCullock

[2008] QCA 334

SUPREME COURT OF QUEENSLAND

CITATION:

R v McCullock [2008] QCA 334

PARTIES:

R
v
McCULLOCK, Jason Craig
(applicant/appellant)

FILE NO/S:

CA No 245 of 2008
DC No 6 of 2008
DC No 10 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maryborough

DELIVERED EX TEMPORE ON:

24 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2008

JUDGES:

McMurdo P, Fraser JA and McMeekin J
Judgment of the Court

ORDER:

1.    Application for leave to appeal against sentence granted

2.    Appeal allowed

3.    The sentence imposed in the District Court on 1 September 2008 is set aside

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JURISDICTION – GENERALLY – where material was unclear as to how applicant came before the District Court – compliance with ss 143 and s 238 of the Juvenile Justice Act 1992 (Qld) not demonstrated – respondent concedes these irregularities warrant granting of leave to appeal and allowing appeal

COUNSEL:

The applicant/appellant appeared on his own behalf
G J Cummings for the respondent
D C Shepherd amicus curiae

SOLICITORS:

The applicant/appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
Legal Aid Queensland amicus curiae

THE PRESIDENT:  The difficulty is that the transcript and material before the primary court and this court do not explain how the matter properly came before the District Court Judge.  They do not establish compliance with s 238(1) and s 143 of the Juvenile Justice Act 1992 (Qld). Further, the record suggests that the Chief Executive under the Juvenile Justice Act may not have wished to proceed with this matter.

Mr Cummings, who appears for the respondent, has very fairly pointed out some of these matters to us and properly concedes that the apparent irregularities warrant the granting of the application for leave to appeal against sentence and the allowing of the appeal.

The orders therefore are, and I am authorised by my colleagues to make these orders on their behalf, that the application for leave to appeal against sentence is granted, the appeal allowed and the sentence imposed in the District Court on the 1st of September 2008 is set aside.

Mr Shepherd, who assisted the Court amicus curiae in this matter, has indicated that he will, through his office and with the assistance of Mr Cummings, ascertain whether there is any outstanding warrant or proceeding in respect of breach proceedings in this matter with a view to sorting the matter out and ensuring that the present release date of 29 October 2008 on Mr McCullock's 12 months sentence remains effective.