Ryan v Queensland Police Service - [2021] QDC 206

DISTRICT COURT OF QUEENSLAND

CITATION:

Ryan v Queensland Police Service [2021] QDC 206

PARTIES:

ROBERT PERRY RYAN

(Appellant)

v

QUEENSLAND POLICE SERVICE

(Respondent)

FILE NO:
44 of 2021

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Townsville

DELIVERED ON:

6 September 2021

DELIVERED AT:

Townsville

HEARING DATE:

18 August 2021

JUDGE:

Coker DCJ

ORDER:

1.   Appeal against sentence in respect of charges 2 and 3 of Bench Charge Sheet numbered 8302 of 2020 is allowed;

2.   The sentences of 12 months and 18 months respectively, are discharged and substituted with the following:

a.   In respect of Charge 3 of Bench Charge Sheet numbered 8302 of 2020, 9 months imprisonment;

b.   In respect of Charge 2 of Bench Charge Sheet numbered 8302 of 2020, 2 months imprisonment to be served concurrent with the head sentence.

3.   Parole Release Date fixed at 18 August 2021;

4.   Sentences otherwise imposed on 9 March 2021 are subject to the new Parole Release Date but otherwise remain undisturbed

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – Section 222 Justices Act 1886 - whether sentence was manifestly excessive – where the learned Magistrate imposed a sentence higher than what the prosecution and defence submitted – where the learned Magistrate only advised that he thought the defence submission was, ‘well short’ – whether the learned Magistrate failed to afford the appellant procedural fairness – whether the learned Magistrate failed to fully consider matters in mitigation and the steps taken towards rehabilitation.

LEGISLATION:

Penalties and Sentences Act (Qld)

CASES:

Dinsdale v the Queen [2000] HCA 54; [2000] 202 CLR 321

House v The King (1936) 55 CLR 499

Lowe v The Queen (1984) 154 CLR 606

Nant v Maskell [1997] QCA 295

R v Cunningham [2005] QCA 321

R v French [2004] QCA 263

R v Ikin [2007] QCA 224

R v Lomass (1981) 5 A Crim R 230

R v Macintosh [1923] St R Qd 278

R v Moodie [1999] QCA 125; CA No 439 of 1998, 14 April 1999.

R v Morse (1979) 23 SASR 98

R v Nagy [2003] QCA 175

Rongo v Commissioner of Police [2017] QDC 258

Ross v Commissioner of Police [2018] QDC 99

COUNSEL:
R Malcomson for the Appellant

T Hancock for the Respondent

SOLICITORS:
Legal Aid Queensland for the Appellant

The Office of the Director of Public Prosecutions for the Respondent

Introduction

On the 18^th of August 2021 this appeal proceeded before me and at the conclusion of submissions, I indicated what the orders were to be and that reasons would follow. These are those reasons.
On the 9th of March 2021, Robert Perry Ryan, whom I shall refer to as the appellant, appeared before the Magistrates Court in Townsville and pleaded guilty to 10 charges contained within various bench charge sheets. He was sentenced in relation to the matters to which he entered a plea of guilty.
In particular, charges 2 and 3 contained within bench charge sheet 8302 of 2020 were the subject of…

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: [2021] QDC 206
Decision Date: 6 September 2021

CaseChat Overview and Summary

In the case of Ryan v Queensland Police Service, the appellant, Ryan, appealed against the sentence imposed by the Magistrates Court of Queensland. The dispute involved the severity of the sentence for two charges, specifically those detailed in Charges 2 and 3 of the Bench Charge Sheet numbered 8302 of 2020. The Court of Appeal was tasked with determining whether the sentence was manifestly excessive, considering the submissions from both the prosecution and the defence.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the learned Magistrate was manifestly excessive. Additionally, the Court examined whether the Magistrate had failed to afford the appellant procedural fairness by not fully considering the defence submissions and the appellant's steps towards rehabilitation. The Court also considered whether the Magistrate had properly weighed the matters in mitigation.

In addressing these issues, the Court of Appeal found that the sentence imposed by the Magistrate was indeed manifestly excessive. The learned Magistrate had acknowledged that the defence submission was well short of what was appropriate, yet did not adequately consider the mitigating factors presented. The Court determined that this failure to fully consider the mitigation and steps towards rehabilitation amounted to a failure to afford procedural fairness. Consequently, the appeal against the sentence was allowed, and the original sentences were substituted with a new sentence of 9 months imprisonment for Charge 3 and 2 months imprisonment, to be served concurrently with the head sentence. The new Parole Release Date was set at 18 August 2021, while the rest of the sentences remained undisturbed.

Orders

Orders of the court

1. Appeal against sentence in respect of charges 2 and 3 of Bench Charge Sheet numbered 8302 of 2020 is allowed;

2. The sentences of 12 months and 18 months respectively, are discharged and substituted with the following:

a. In respect of Charge 3 of Bench Charge Sheet numbered 8302 of 2020, 9 months imprisonment;

b. In respect of Charge 2 of Bench Charge Sheet numbered 8302 of 2020, 2 months imprisonment to be served concurrent with the head sentence.

3. Parole Release Date fixed at 18 August 2021;

4. Sentences otherwise imposed on 9 March 2021 are subject to the new Parole Release Date but otherwise remain undisturbed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ryan v Queensland Police Service [2021] QDC 206
PARTIES:	ROBERT PERRY RYAN (Appellant) v QUEENSLAND POLICE SERVICE (Respondent)
FILE NO:	44 of 2021
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Townsville
DELIVERED ON:	6 September 2021
DELIVERED AT:	Townsville
HEARING DATE:	18 August 2021
JUDGE:	Coker DCJ
ORDER:	1. Appeal against sentence in respect of charges 2 and 3 of Bench Charge Sheet numbered 8302 of 2020 is allowed; 2. The sentences of 12 months and 18 months respectively, are discharged and substituted with the following: a. In respect of Charge 3 of Bench Charge Sheet numbered 8302 of 2020, 9 months imprisonment; b. In respect of Charge 2 of Bench Charge Sheet numbered 8302 of 2020, 2 months imprisonment to be served concurrent with the head sentence. 3. Parole Release Date fixed at 18 August 2021; 4. Sentences otherwise imposed on 9 March 2021 are subject to the new Parole Release Date but otherwise remain undisturbed
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – Section 222 Justices Act 1886 - whether sentence was manifestly excessive – where the learned Magistrate imposed a sentence higher than what the prosecution and defence submitted – where the learned Magistrate only advised that he thought the defence submission was, ‘well short’ – whether the learned Magistrate failed to afford the appellant procedural fairness – whether the learned Magistrate failed to fully consider matters in mitigation and the steps taken towards rehabilitation.
LEGISLATION:	Penalties and Sentences Act (Qld)
CASES:	Dinsdale v the Queen [2000] HCA 54; [2000] 202 CLR 321 House v The King (1936) 55 CLR 499 Lowe v The Queen (1984) 154 CLR 606 Nant v Maskell [1997] QCA 295 R v Cunningham [2005] QCA 321 R v French [2004] QCA 263 R v Ikin [2007] QCA 224 R v Lomass (1981) 5 A Crim R 230 R v Macintosh [1923] St R Qd 278 R v Moodie [1999] QCA 125; CA No 439 of 1998, 14 April 1999. R v Morse (1979) 23 SASR 98 R v Nagy [2003] QCA 175 Rongo v Commissioner of Police [2017] QDC 258 Ross v Commissioner of Police [2018] QDC 99
COUNSEL:	R Malcomson for the Appellant T Hancock for the Respondent
SOLICITORS:	Legal Aid Queensland for the Appellant The Office of the Director of Public Prosecutions for the Respondent