SPJ v Queensland Police Service - [2015] QDC 217

DISTRICT COURT OF QUEENSLAND

CITATION:	SPJ v Queensland Police Service [2015] QDC 217
PARTIES:	SPJ (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	16/15
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Beenleigh
DELIVERED ON:	Orders delivered ex tempore on 26 August 2015 Reasons delivered 11 September 2015
DELIVERED AT:	Beenleigh
HEARING DATE:	26 August 2015
JUDGE:	Dearden DCJ
ORDER:	1. Appeal granted and the sentences imposed on the juvenile criminal offences, the adult criminal offences, and the disqualifications imposed on the adult unlicenced drive offences are set aside 2. The appellant is resentenced as follows: · On the juvenile charge of enter premises and commit indictable offence and the two juvenile charges of unlawful use of a motor vehicle: single probation order of 12 months (no conviction recorded) · On the adult charge of stealing and the adult charge of receiving tainted property: single prison/ probation order of 91 days imprisonment and 3 years probation (with special conditions) · On each of the five adult charges of burglary: 18 months imprisonment, suspended after 91 days, with an operational period of 3 years · On each of the three adult charges of unlawful use of a motor vehicle: 12 months imprisonment, suspended after 91 days, with an operational period of 3 years · On the adult charge of attempted unlawful use of a motor vehicle: 9 months imprisonment, suspended after 91 days, with an operational period of 3 years · On the adult charge of breach of bail condition: convicted and not further punished · On each of the two adult charges of driving without a licence: disqualified from holding or obtaining a driver licence for 3 months · All sentences are to be served concurrently · With respect to all prison sentences (including the prison/ probation sentence), the period between 27 May 2015 and 26 August 2015 (a total of 91 days) declared time served 3. No order as to costs
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE –where the appellant submitted that sentencing discretion miscarried – where the sentence imposed by the learned magistrate was manifestly excessive – where the magistrate erred in sentencing the defendant under the Penalties and Sentences Act 1992 instead of the Youth Justice Act 1992 – where the magistrate erred in imposing cumulative probation orders on the juvenile offences – where the magistrate erred in in imposing identical sentences for each adult criminal offence – where the magistrate erred in imposing cumulative disqualification periods for the adult traffic offences
LEGISLATION:	Drugs Misuse Act 1986 (Qld) Justices Act 1886 (Qld) Penalties and Sentences Act 1992 (Qld) Transport Operations (Road Use Management) Act 1995 Youth Justice Act 1992 (Qld)
CASES:	George v Queensland Police Service [2015] QDC 163 Griffiths v R (1989) 167 CLR 372 Pearce v The Queen (1998) 194 CLR 610 R v Bowditch [2014] QCA 157
R v MBQ; ex parte Attorney-General (Qld) [2012] QCA 202

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: [2015] QDC 217
Decision Date: 11 September 2015

CaseChat Overview and Summary

The appeal was brought by the appellant against the sentences imposed by the Magistrates Court of Queensland. The appellant was convicted of multiple offences, including juvenile and adult criminal offences, and unlicenced driving offences. The appellant contested the severity of the sentences and argued that the magistrate had erred in various aspects of the sentencing process, including using the wrong legislative framework, imposing cumulative probation orders, and applying identical sentences for different adult offences. The court was required to determine whether the sentences were manifestly excessive or inadequate, and if the magistrate had exercised the sentencing discretion improperly.

The court found that the sentences imposed by the magistrate were indeed manifestly excessive and that the magistrate had exercised the sentencing discretion incorrectly. The court identified several errors in the sentencing process. Firstly, the magistrate had erred by sentencing the appellant under the Penalties and Sentences Act 1992 instead of the Youth Justice Act 1992 for the juvenile offences. Secondly, the imposition of cumulative probation orders for the juvenile offences was deemed inappropriate. Thirdly, the magistrate had erred by imposing identical sentences for each of the adult criminal offences, without considering the individual circumstances of each offence. Lastly, the court found that the cumulative disqualification periods for the adult unlicenced driving offences were excessive. The court held that these errors warranted interference with the original sentences.

The court granted the appeal and set aside the sentences imposed by the magistrate. The appellant was resentenced with specific orders for each category of offences. The juvenile offences were subject to a single probation order of 12 months, with no conviction recorded. The adult criminal offences received a combination of imprisonment and probation sentences, with specific conditions attached. The adult unlicenced driving offences resulted in disqualification periods of 3 months for each offence. All sentences were ordered to be served concurrently, and the period between 27 May 2015 and 26 August 2015 was declared as time served for all prison sentences. No order was made regarding costs.

Orders

Orders of the court

1. Appeal granted and the sentences imposed on the juvenile criminal offences, the adult criminal offences, and the disqualifications imposed on the adult unlicenced drive offences are set aside

2. The appellant is resentenced as follows:

· On the juvenile charge of enter premises and commit indictable offence and the two juvenile charges of unlawful use of a motor vehicle: single probation order of 12 months (no conviction recorded)

· On the adult charge of stealing and the adult charge of receiving tainted property: single prison/ probation order of 91 days imprisonment and 3 years probation (with special conditions)

· On each of the five adult charges of burglary: 18 months imprisonment, suspended after 91 days, with an operational period of 3 years

· On each of the three adult charges of unlawful use of a motor vehicle: 12 months imprisonment, suspended after 91 days, with an operational period of 3 years

· On the adult charge of attempted unlawful use of a motor vehicle: 9 months imprisonment, suspended after 91 days, with an operational period of 3 years

· On the adult charge of breach of bail condition: convicted and not further punished

· On each of the two adult charges of driving without a licence: disqualified from holding or obtaining a driver licence for 3 months

· All sentences are to be served concurrently

· With respect to all prison sentences (including the prison/ probation sentence), the period between 27 May 2015 and 26 August 2015 (a total of 91 days) declared time served

3. No order as to costs

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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