SH v Queensland Police Service - [2019] QDC 247

DISTRICT COURT OF QUEENSLAND

CITATION:

SH v Queensland Police Service [2019] QDC 247

PARTIES:

SH
(applicant)

v

QUEENSLAND POLICE SERVICE
(respondent)

FILE NO:

322/19

DIVISION:

Crime

PROCEEDING:

222 Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

2 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

29 November 2019

JUDGE:

CLARE SC DCJ

ORDER:

1.    The Appeal is allowed.

2.    The recording of a conviction is set aside.

3     The sentence imposed on 14 January 2019 is otherwise affirmed.

4     The respondent is to pay the appellant $1,800 by way of costs.

CATCHWORDS:

APPEAL AGAINST SENTENCE –ERRORS OF FACT – SENTENCE EXCESSIVE – RECORDING OF A CONVICTION – where the appellant was convicted upon his plea of guilty to a contravention of a protection order – where the issue was the recording of a conviction – where the Magistrate misapprehended material facts – where no violence was alleged – where the appellant was middle aged with no history of domestic violence – where the appellant had a long record of community service – where a conviction would risk his continued employment – whether his history of seeking help for alcoholism and anxiety was a mitigating or aggravating factor

Penalties and Sentences Act 1992
Domestic and Family violence Protection Act 2012

COUNSEL:

J Feely for the appellant
K McFarlane for the respondent

SOLICITORS:

Fuller & White Solicitors for the appellant
Office of the Director of Public Prosecutions for the respondent

The appellant pleaded guilty to one charge of contravening a domestic violence protection order. He was fined $750 and a conviction was recorded. This is an appeal against the severity of the sentence, specifically the recording of the conviction.

The circumstances of the offending are very unusual. There was no allegation of harm of any kind caused by the appellant, either at the time of the contravention or any time earlier. The gravamen was the contravention of a police instruction to leave the home and stay away. The appellant had returned to recover a work laptop.

Her Honour indicated this was a flagrant breach by a man with untreated domestic violence issues. The record demonstrates a misunderstanding about material circumstances of the offence and the appellant’s antecedents. The exercise of the sentencing discretion miscarried and ought to be considered afresh.

At sentence, a brief statement of the facts was set out by the prosecutor, with some expansion by the defence. The court also had an earlier report recording the appellant’s version of his relationship with the aggrieved ten months prior to the offence, as well as a body of character references. The prosecution did not take issue with any of those things.

Antecedents

The appellant was a middle aged man with a minor criminal history. There were two entries for personal drug use: one 25 years ago and the other five years ago. In 2015, he contravened a direction and obstructed a police officer.

A bundle of references spoke highly of the appellant’s character, his contribution to the community, his dedication to…

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: [2019] QDC 247
Decision Date: 2 December 2019

CaseChat Overview and Summary

The appellant in this case was convicted on a plea of guilty to a contravention of a protection order. He appealed against his sentence, arguing that the recording of the conviction was improper. The Queensland Police Service, the respondent, defended the conviction. The appeal was heard in the District Court of Queensland.

The primary issue before the court was whether the Magistrate had correctly considered all relevant facts when imposing the sentence. The appellant argued that the Magistrate had misapprehended the facts, leading to an excessive sentence. The court needed to determine if the Magistrate's oversight constituted a significant error of fact that warranted setting aside the conviction. Additionally, the court considered the mitigating factors presented by the appellant, such as his age, lack of a history of domestic violence, extensive community service, and the potential impact of the conviction on his employment. The appellant also presented his history of seeking help for alcoholism and anxiety, arguing it should be viewed as a mitigating factor rather than an aggravating one.

The court found that the Magistrate had indeed misapprehended material facts, particularly the lack of any allegation of violence. The appellant's age, history of community service, and the potential impact on his employment were significant mitigating factors. The court concluded that these factors warranted setting aside the recording of the conviction. However, the court affirmed the sentence otherwise, finding it appropriate in the circumstances. The court also ordered the respondent to pay the appellant $1,800 in costs.

The court allowed the appeal, setting aside the recording of the conviction while affirming the rest of the sentence. The respondent was ordered to pay the appellant $1,800 in costs.

Orders

Orders of the court

1. The Appeal is allowed.

2. The recording of a conviction is set aside.

3 The sentence imposed on 14 January 2019 is otherwise affirmed.

4 The respondent is to pay the appellant $1,800 by way of costs.

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:	SH v Queensland Police Service [2019] QDC 247
PARTIES:	SH (applicant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO:	322/19
DIVISION:	Crime
PROCEEDING:	222 Appeal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	2 December 2019
DELIVERED AT:	Brisbane
HEARING DATE:	29 November 2019
JUDGE:	CLARE SC DCJ
ORDER:	1. The Appeal is allowed. 2. The recording of a conviction is set aside. 3 The sentence imposed on 14 January 2019 is otherwise affirmed. 4 The respondent is to pay the appellant $1,800 by way of costs.
CATCHWORDS:	APPEAL AGAINST SENTENCE –ERRORS OF FACT – SENTENCE EXCESSIVE – RECORDING OF A CONVICTION – where the appellant was convicted upon his plea of guilty to a contravention of a protection order – where the issue was the recording of a conviction – where the Magistrate misapprehended material facts – where no violence was alleged – where the appellant was middle aged with no history of domestic violence – where the appellant had a long record of community service – where a conviction would risk his continued employment – whether his history of seeking help for alcoholism and anxiety was a mitigating or aggravating factor Penalties and Sentences Act 1992 Domestic and Family violence Protection Act 2012
COUNSEL:	J Feely for the appellant K McFarlane for the respondent
SOLICITORS:	Fuller & White Solicitors for the appellant Office of the Director of Public Prosecutions for the respondent