Strong v Queensland Police Service - [2010] QDC 280

DISTRICT COURT OF QUEENSLAND

CITATION:

Strong v Queensland Police Service [2010] QDC 280

PARTIES:

BENJAMIN JAMES STRONG
(Appellant)

AND

QUEENSLAND POLICE SERVICE
(Respondent)

FILE NO/S:

Appeal No. 23/10

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court, Toowoomba

DELIVERED ON:

13 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

20 May 2010

JUDGE:

Reid DCJ

ORDER:

1.   Appeal allowed.

2.   In respect of the breach of the intensive correction order, order that the appellant be sentenced to imprisonment for a period of two months and 28 days.

3.   In respect of the offences of assault occasioning bodily harm and wilful damage, order that the appellant be sentenced to a period of six months imprisonment, cumulative to the period of imprisonment referred to in paragraph 2 hereof.

4.   In respect of the offence of driving whilst unlicensed, order that the appellant serve a period of two months imprisonment, to be served concurrently with the order for six months’ imprisonment referred to in paragraph 3 hereof.

5.   In respect of the offences of contravening a direction, driving an uninsured vehicle and driving an unregistered motor vehicle, order the magistrate’s orders be upheld

6.   In respect of the head sentence of eight months and 28 days, order a parole release date at one-half of that period, fixed at 27 July 2010.

CATCHWORDS:

APPEAL – Sentencing principles – erroneous decision by Magistrate –where parole release date set at the full term of the head sentence – setting a parole release date

COUNSEL:

R. Davies for Appellant

C. Winlaw for Respondent

SOLICITORS:

David Burns Lawyers for Appellant

Office of the Director of Public Prosecutions for the Respondent

Overview

In this matter Benjamin James Strong (“the appellant”) appeals against a sentence imposed by a magistrate at Toowoomba on 12 March 2010, he was given an effective head sentence of eight months and 28 days’ imprisonment, with a court ordered parole release date fixed at the full term.

The appellant accepts that he should have been committed to prison for the balance of the period of an intensive correction order of two months and 28 days, and also accepts the appropriateness of a sentence of six months in respect of various charges brought against him. He does not, therefore, contest the appropriateness of the total head sentence of eight months and 28 days imposed.

On 12 March 2010 the appellant was convicted before the learned magistrate of the following offences:

1. Breach of an intensive correction order, for which he was committed to prison for the balance of the term of the order, namely two months and 28 days.

2. Assault occasioning bodily harm and wilful damage for which he was sentenced to six months’ imprisonment, to be served cumulatively to the sentence for breach of the intensive correction order.

3. Driving a motor cycle whilst unlicensed, for which he received a period of two months’ imprisonment, to be served concurrently with the sentence for assault occasioning bodily harm and wilful damage.

4. Contravening lawful directions and driving an uninsured…

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: [2010] QDC 280
Decision Date: 13 July 2010

CaseChat Overview and Summary

The appellant, Strong, appealed against a decision of the Magistrates Court of Queensland, which had sentenced him to a term of imprisonment with parole release conditions. The respondent, the Queensland Police Service, sought to defend the original sentence. The crux of the appeal was the setting of the parole release date, which was established at the full term of the head sentence.

The legal issues in this appeal centred on the principles of sentencing and whether the Magistrate had erred in setting the parole release date. The appellant argued that the Magistrate's decision was incorrect as it did not provide for a parole release date at one-half of the head sentence. The respondent argued that the Magistrate's decision was correct and that the appellant's appeal should be dismissed.

The court found that the Magistrate had indeed erred in setting the parole release date. The Court of Appeal held that the principle of setting a parole release date at one-half of the head sentence was well-established in case law. The appeal was allowed, and the Court of Appeal ordered a new parole release date at one-half of the head sentence. The Court also varied the sentences for some of the offences, ordering the appellant to serve a total of ten months and 28 days in prison, with certain sentences to be served concurrently.

The final orders included the allowance of the appeal, the setting of a new parole release date, and the variation of the sentences for some of the offences. The Court ordered that the appellant serve a period of imprisonment for two months and 28 days for the breach of the intensive correction order, six months for the offences of assault occasioning bodily harm and wilful damage, and two months for the offence of driving whilst unlicensed, to be served concurrently with the six months’ imprisonment. The orders for the other offences were upheld.

Orders

Orders of the court

1. Appeal allowed.

2. In respect of the breach of the intensive correction order, order that the appellant be sentenced to imprisonment for a period of two months and 28 days.

3. In respect of the offences of assault occasioning bodily harm and wilful damage, order that the appellant be sentenced to a period of six months imprisonment, cumulative to the period of imprisonment referred to in paragraph 2 hereof.

4. In respect of the offence of driving whilst unlicensed, order that the appellant serve a period of two months imprisonment, to be served concurrently with the order for six months’ imprisonment referred to in paragraph 3 hereof.

5. In respect of the offences of contravening a direction, driving an uninsured vehicle and driving an unregistered motor vehicle, order the magistrate’s orders be upheld

6. In respect of the head sentence of eight months and 28 days, order a parole release date at one-half of that period, fixed at 27 July 2010.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Strong v Queensland Police Service [2010] QDC 280
PARTIES:	BENJAMIN JAMES STRONG (Appellant) AND QUEENSLAND POLICE SERVICE (Respondent)
FILE NO/S:	Appeal No. 23/10
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	District Court, Toowoomba
DELIVERED ON:	13 July 2010
DELIVERED AT:	Brisbane
HEARING DATE:	20 May 2010
JUDGE:	Reid DCJ
ORDER:	1. Appeal allowed. 2. In respect of the breach of the intensive correction order, order that the appellant be sentenced to imprisonment for a period of two months and 28 days. 3. In respect of the offences of assault occasioning bodily harm and wilful damage, order that the appellant be sentenced to a period of six months imprisonment, cumulative to the period of imprisonment referred to in paragraph 2 hereof. 4. In respect of the offence of driving whilst unlicensed, order that the appellant serve a period of two months imprisonment, to be served concurrently with the order for six months’ imprisonment referred to in paragraph 3 hereof. 5. In respect of the offences of contravening a direction, driving an uninsured vehicle and driving an unregistered motor vehicle, order the magistrate’s orders be upheld 6. In respect of the head sentence of eight months and 28 days, order a parole release date at one-half of that period, fixed at 27 July 2010.
CATCHWORDS:	APPEAL – Sentencing principles – erroneous decision by Magistrate –where parole release date set at the full term of the head sentence – setting a parole release date
COUNSEL:	R. Davies for Appellant C. Winlaw for Respondent
SOLICITORS:	David Burns Lawyers for Appellant Office of the Director of Public Prosecutions for the Respondent