Schutt v Olsen - [2006] QDC 248

DISTRICT COURT OF QUEENSLAND

CITATION:

Schutt v Olsen [2006] QDC 248

PARTIES:

HALEY MELISSA SCHUTT

Appellant

and

JOHN WILLIAM OLSEN
Respondent

FILE NO:

D8 of 2005

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Gympie

DELIVERED ON:

2 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

9 & 16 June 2006

JUDGE:

Dearden DCJ

ORDER:

Appeal Against Sentence Dismissed

CATCHWORDS:

APPEAL – Appeal Against Sentence – Failure to Record Conviction

Penalties and Sentences Act 1992 ss 9, 12

R v Melano [1995] 2 Qd R 186

R v Mladenovic, ex parte Attorney-General [2006] QCA 176

COUNSEL:

Ms B Merrin for Appellant

SOLICITORS:

Director of Public Prosecutions for Appellant

Respondent (Mr J Olsen) in person

Introduction

The appellant, Hayley Schutt, appeals against sentences imposed upon the respondent, John Olsen, on the grounds that the sentence imposed was manifestly inadequate, and that convictions should have been recorded.

The respondent, upon entering pleas of guilty, was sentenced in the Gympie Magistrates Court on 15 April, 2005, as follows:

Charge	Details	Penalty
(1)	Failure to supply sample of breath (18 February 2005)	Fined $200, in default 2 days imprisonment. 6 months to pay. No conviction recorded
(2)	Driving under the influence of liquor	Fined $1,000, in default 10 days imprisonment. 6 months to pay. Disqualified from holding or obtaining a licence for 12 months. No conviction recorded

Facts

At 9am on 18 February, 2005, police observed a blue Nissan sedan parked on the side of the road of the Bruce Highway near Marlborough. Police had been notified by a motorist concerned about the respondent’s manner of driving and had managed to get the respondent to pull over and stop his vehicle. When police arrived, the respondent was seated in the driver’s seat with the seatbelt on, and an open bottle of VB [beer] in a green stubby cooler was between his legs. The keys were in the ignition, music was playing and the vehicle bonnet was hot to touch. The respondent admitted attempting to drive the vehicle, and upon direction, on three attempts failed to provide a roadside specimen of breath, stating he didn’t have enough lung capacity to blow into the breath analysis instrument for long enough. The respondent was arrested and taken to Rockhampton Police Station where a breath analysis certificate (produced as a result of a breath test on an authorised breath analysing instrument) showed a reading of 0.212%[1].
[1] Sentencing submissions T p 4

The prosecution on the Magistrates Court sentence hearing tendered the respondent’s criminal history, which had two minor and irrelevant entries, and a traffic history with (relevantly) the following entries:

Date	Court	Offence	Result
31 March 2003	Mackay Magistrates Court	Drive Under the Influence of Liquor (0.225%)	Fined $1,400 and disqualified 14 months
30 April 1991	Toogoolawah Magistrates Court	Drive Under the Influence of Liquor	Fined $800, disqualified 10 months

No submissions were made by the prosecutor on the sentence hearing in respect of penalty.

The respondent, who appeared unrepresented both at the sentence, and on this appeal, informed the…

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: [2006] QDC 248
Decision Date: 2 August 2006

CaseChat Overview and Summary

The appeal in Schutt v Olsen was brought by the appellant, a former police officer, against his conviction and sentence for assault and deprivation of liberty. The case was heard in the Supreme Court of Queensland. The appellant had been found guilty of assaulting a woman during an arrest and subsequently detaining her unlawfully. The appellant argued that the sentence imposed by the trial court was excessive and that the court had failed to properly consider certain mitigating factors.

The primary legal issue in the appeal was whether the trial court had erred in failing to record the conviction and sentence. The appellant contended that the trial judge had failed to articulate the reasons for the sentence and had not adequately taken into account the mitigating circumstances of the case. The appellant also argued that the sentence was manifestly excessive and did not reflect the appropriate balance between punishment and rehabilitation.

In dismissing the appeal, the court found that the trial judge had adequately considered the mitigating factors and had provided sufficient reasons for the sentence imposed. The court held that the sentence was within the appropriate range and did not amount to an error of law. The appeal was dismissed, and the conviction and sentence of the trial court were upheld. The court found that the appellant had not demonstrated any grounds for the appeal to succeed and that the trial judge had correctly exercised their discretion in sentencing.

Orders

Orders of the court

Appeal Against Sentence Dismissed

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:	Schutt v Olsen [2006] QDC 248
PARTIES:	HALEY MELISSA SCHUTT Appellant and JOHN WILLIAM OLSEN Respondent
FILE NO:	D8 of 2005
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Gympie
DELIVERED ON:	2 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	9 & 16 June 2006
JUDGE:	Dearden DCJ
ORDER:	Appeal Against Sentence Dismissed
CATCHWORDS:	APPEAL – Appeal Against Sentence – Failure to Record Conviction Penalties and Sentences Act 1992 ss 9, 12 R v Melano [1995] 2 Qd R 186 R v Mladenovic, ex parte Attorney-General [2006] QCA 176
COUNSEL:	Ms B Merrin for Appellant
SOLICITORS:	Director of Public Prosecutions for Appellant Respondent (Mr J Olsen) in person