Rogers v Harding and Peel - [2007] QDC 112

DISTRICT COURT OF QUEENSLAND

CITATION: Rogers v Harding and Peel [2007] QDC 112
PARTIES: SEAN CAMERON ROGERS
Appellant
V
SENIOR CONSTABLE B HARDING
First Respondent
And
CONSTABLE V PEEL
Second Respondent
FILE NO/S: Toowoomba Appeal no 6/2006
DIVISION: Appellate
PROCEEDING: Appeal under s 222, Justices Act 1886
ORIGINATING
COURT: Magistrates Court of Queensland, Toowoomba
DELIVERED ON: 19 June 2007
DELIVERED AT: Brisbane
HEARING DATE: 14, 15 and 19 June 2007
JUDGE: Alan Wilson SC, DCJ
ORDER: Appeal allowed
CATCHWORDS: APPEAL – APPEAL AGAINST SENTENCE –
SENTENCING PRINCIPLES – young offender driving
while disqualified – no previous court appearances before
sentence - sentenced to four months imprisonment – whether
sentencing discretion miscarried – whether unusual for
custodial sentence to be imposed for first offence
Penalties and Sentences Act 1992
Cases considered:
McIvor v Rourke [2007] QDC 095
Noon v Wilson [2006] QDC 168
Petrilli v Buchanan [2006] QDC 192
COUNSEL: N Bouchier, Solicitor, for appellant
M Pollock, Solicitor, for respondents
SOLICITORS: Ryan and Bosscher for appellant
Director of Public Prosecutions for respondents

This appeal was heard in Toowoomba on 14 and 15 June 2007 and allowed to the extent that a sentence previously imposed on 13 March 2007 was, it was indicated to the parties, one which would be varied. I promised to deliver reasons for that decision, and these are those reasons. The matter was adjourned also for reasons to do with s 160(H) of the Penalties and Sentences Act 1992. Today (19 June 2007) the final orders containing the sentence, consequent upon the success of the appeal, are to be made.
The appeal is against two sentences imposed upon the appellant in the Toowoomba Magistrates Court on 13 March 2007. On that day Mr Rogers pleaded guilty to two counts of driving a motor vehicle while disqualified and on those counts he was sentenced to four months’ imprisonment. He also pleaded guilty to offences under the Bail Act for which he was sentenced to one month’s imprisonment, to be served concurrently. He was also disqualified from driving for two years.
He was born on 1 January 1988 and was aged 19 when sentenced. He had previous convictions, as a minor, for unlicensed driving and other motor vehicle offences in December 2002 and March 2004. On 31 August 2006 his driving licence was suspended for an accumulation of demerit points. He was disqualified on 19 October 2006 in the Ayr Magistrates Court from holding or obtaining a drivers licence for six months after, pleading guilty to a charge of unlicensed driving.
Just over two months after that disqualification, on the afternoon of 27 December 2006, he was found driving a motor vehicle at Toowoomba. He frankly admitted he was disqualified and was given a notice to appear in court at a later date. A fortnight later he was again intercepted, on the evening of 11 January 2007, driving in Ruthven Street, Toowoomba. He, again, admitted he was disqualified and was once more issued with a notice to appear. On 30…

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 Rogers v Harding and Peel

Details

AGLC: Rogers v Harding and Peel [2007] QDC 112
Case: [2007] QDC 112
Decision Date: 19/06/2007

CaseChat Overview and Summary

The case of Rogers v Harding and Peel involves an appeal against sentence, where the defendant, Rogers, was sentenced to four months imprisonment for driving while disqualified. Rogers, a young offender, had no previous court appearances before this sentence. The appeal challenged the appropriateness of the sentence, arguing that the sentencing discretion had miscarried, and that the sentence was unusual for the offence of driving while disqualified.

The primary legal issue before the court was whether the sentence imposed was appropriate in the circumstances of the case. The court was required to consider the principles of sentencing, particularly in relation to young offenders, and whether the sentence was disproportionate given the nature of the offence and the offender's background. The court also needed to evaluate if the sentence was unusually harsh in comparison to other cases involving similar offences.

The court found that the sentence was indeed disproportionate and had miscarried the sentencing discretion. The court considered the defendant's age, lack of previous court appearances, and the nature of the offence, which did not involve any harm or risk to others. The court held that a sentence of four months imprisonment was unusually harsh and did not align with the principles of sentencing for first-time offenders. Consequently, the appeal was allowed, and the sentence was set aside.

Orders

Orders of the court

Appeal allowed

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:	Rogers v Harding and Peel [2007] QDC 112
PARTIES:	SEAN CAMERON ROGERS
Appellant V
SENIOR CONSTABLE B HARDING
First Respondent And
CONSTABLE V PEEL
Second Respondent
FILE NO/S:	Toowoomba Appeal no 6/2006
DIVISION:	Appellate
PROCEEDING:	Appeal under s 222, Justices Act 1886
ORIGINATING COURT:	Magistrates Court of Queensland, Toowoomba
DELIVERED ON:	19 June 2007
DELIVERED AT:	Brisbane
HEARING DATE:	14, 15 and 19 June 2007
JUDGE:	Alan Wilson SC, DCJ
ORDER:	Appeal allowed
CATCHWORDS:	APPEAL – APPEAL AGAINST SENTENCE – SENTENCING PRINCIPLES – young offender driving while disqualified – no previous court appearances before sentence - sentenced to four months imprisonment – whether sentencing discretion miscarried – whether unusual for custodial sentence to be imposed for first offence
Penalties and Sentences Act 1992
Cases considered: McIvor v Rourke [2007] QDC 095 Noon v Wilson [2006] QDC 168 Petrilli v Buchanan [2006] QDC 192
COUNSEL:	N Bouchier, Solicitor, for appellant M Pollock, Solicitor, for respondents
SOLICITORS:	Ryan and Bosscher for appellant Director of Public Prosecutions for respondents