R v Porter - [2013] QCA 128

SUPREME COURT OF QUEENSLAND

CITATION:

R v Porter [2013] QCA 128

PARTIES:

R
v
PORTER, Troy Darren
(applicant)

FILE NO/S:

CA No 311 of 2012
CA No 340 of 2012
DC No 40 of 2012
DC No 133 of 2012
DC No 943 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application
Application for leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2013

JUDGES:

Holmes, Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In Appeal No 311 of 2012:

Refuse the application to adduce evidence.1.

Refuse the application for leave to appeal from the decision in the District Court dismissing the appeal from the magistrate.2.

In Appeal No 340 of 2012:

Refuse the application for leave to appeal against sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – OTHER MATTERS – where applicant convicted in Magistrates Court of breaching a non-contact order – where applicant unsuccessfully appealed decision of Magistrates Court to District Court, under s 222 of the Justices Act 1886 (Qld) – where applicant seeks leave, under s 118(1)(b) and s 118(3) of the District Court of Queensland Act 1967 (Qld), to appeal the District Court’s decision – whether leave to appeal against conviction should be granted – whether District Court: erred in refusing application to adduce further evidence; made material mistakes of fact; reached an unreasonable verdict; caused justice to miscarry; and/or made an error in law

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – where applicant seeks leave to adduce further evidence – where evidence available or known to counsel at trial – whether application to adduce further evidence should be granted

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – OTHER MATTERS – where conviction for breach of non-contact order activated a partly suspended sentence for three counts of indecent treatment of a child under 12 years – where Magistrate remitted breach of non-contact order, and partly suspended sentence, to District Court for sentencing – where District Court sentenced the applicant to six months for breach of non-contact order, and activated eight months of partly suspended sentence, to be served cumulatively – where District Court set parole eligibility at half-way mark – where applicant seeks leave, under s 118(1)(b) and s 118(3) of the District Court of Queensland Act 1967, to appeal against the sentence imposed by the District Court – whether leave to appeal against sentence should be granted – whether sentence manifestly excessive

Child Protection (Offender Reporting) Act 2004 (Qld)
Criminal Code 1899 (Qld), s 23, s 23(2), s 24, s 590AA, Ch 5
District Court of Queensland Act 1967 (Qld), s 118(1)(b), s 118(3)
Drugs Misuse Act 1986 (Qld)
Justices Act 1886 (Qld), s 222, s 223(1), s 223(2)
Penalties and Sentences Act 1992 (Qld), s 43A, s 43B, s 43C(5), s 43F, s…

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 Porter

Details

AGLC: R v Porter [2013] QCA 128
Case: [2013] QCA 128
Decision Date: 28 May 2013

CaseChat Overview and Summary

The applicant in this case, who was convicted in the Magistrates Court of breaching a non-contact order, sought leave to appeal the District Court’s decision to dismiss his appeal against the Magistrates Court's conviction. Additionally, he sought leave to appeal the sentence imposed by the District Court. The appeal against the conviction and sentence was heard in the Supreme Court of Queensland.

The applicant argued that the District Court had made several errors: it had wrongly refused his application to adduce further evidence, made material mistakes of fact, reached an unreasonable verdict, caused justice to miscarry, and/or made an error in law. The applicant also argued that the sentence imposed by the District Court was manifestly excessive. The court needed to determine whether these grounds provided sufficient justification for granting leave to appeal.

The Supreme Court held that the application to adduce further evidence should be refused as the evidence was available or known to counsel at the time of trial. The court also found that the District Court had not erred in refusing to adduce further evidence, nor had it made material mistakes of fact, reached an unreasonable verdict, caused justice to miscarry, or made an error in law. Additionally, the court did not find the sentence manifestly excessive. Consequently, the application for leave to appeal both the conviction and the sentence was refused.

The orders of the court were to refuse the application to adduce evidence, to refuse the application for leave to appeal from the decision in the District Court dismissing the appeal from the magistrate, and to refuse the application for leave to appeal against sentence.

Orders

Orders of the court

In Appeal No 311 of 2012:

Refuse the application to adduce evidence.1.

Refuse the application for leave to appeal from the decision in the District Court dismissing the appeal from the magistrate.2.

In Appeal No 340 of 2012:

Refuse the application for leave to appeal against sentence.

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 Porter [2013] QCA 128
PARTIES:	R v PORTER, Troy Darren (applicant)
FILE NO/S:	CA No 311 of 2012 CA No 340 of 2012 DC No 40 of 2012 DC No 133 of 2012 DC No 943 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application Application for leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	28 May 2013
DELIVERED AT:	Brisbane
HEARING DATE:	14 March 2013
JUDGES:	Holmes, Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	In Appeal No 311 of 2012: Refuse the application to adduce evidence.1. Refuse the application for leave to appeal from the decision in the District Court dismissing the appeal from the magistrate.2. In Appeal No 340 of 2012: Refuse the application for leave to appeal against sentence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – OTHER MATTERS – where applicant convicted in Magistrates Court of breaching a non-contact order – where applicant unsuccessfully appealed decision of Magistrates Court to District Court, under s 222 of the Justices Act 1886 (Qld) – where applicant seeks leave, under s 118(1)(b) and s 118(3) of the District Court of Queensland Act 1967 (Qld), to appeal the District Court’s decision – whether leave to appeal against conviction should be granted – whether District Court: erred in refusing application to adduce further evidence; made material mistakes of fact; reached an unreasonable verdict; caused justice to miscarry; and/or made an error in law CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – where applicant seeks leave to adduce further evidence – where evidence available or known to counsel at trial – whether application to adduce further evidence should be granted CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – OTHER MATTERS – where conviction for breach of non-contact order activated a partly suspended sentence for three counts of indecent treatment of a child under 12 years – where Magistrate remitted breach of non-contact order, and partly suspended sentence, to District Court for sentencing – where District Court sentenced the applicant to six months for breach of non-contact order, and activated eight months of partly suspended sentence, to be served cumulatively – where District Court set parole eligibility at half-way mark – where applicant seeks leave, under s 118(1)(b) and s 118(3) of the District Court of Queensland Act 1967, to appeal against the sentence imposed by the District Court – whether leave to appeal against sentence should be granted – whether sentence manifestly excessive Child Protection (Offender Reporting) Act 2004 (Qld) Criminal Code 1899 (Qld), s 23, s 23(2), s 24, s 590AA, Ch 5 District Court of Queensland Act 1967 (Qld), s 118(1)(b), s 118(3) Drugs Misuse Act 1986 (Qld) Justices Act 1886 (Qld), s 222, s 223(1), s 223(2) Penalties and Sentences Act 1992 (Qld), s 43A, s 43B, s 43C(5), s 43F, s…