Sullivan v Queensland Police Service

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DISTRICT COURT OF QUEENSLAND

CITATION:

Sullivan v Queensland Police Service [2020] QDC 220

PARTIES:

TOM HENRY SULLIVAN

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO:

Appeal No. 104 of 2020

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

4 September 2020

DELIVERED AT:

Cairns

HEARING DATE:

21 August 2020

JUDGE:

Morzone QC DCJ

ORDER:

1.   Appeal allowed.

2.   The sentence and orders made by the Magistrates Court on 25 May 2020 are set aside and substituted with the following orders:

a.   The defendant is fined $250 to be paid by 4 September 2021. 

b.   Direct the Registrar to refer payment arrangements to the State Penalties Enforcement Registry.

CATCHWORDS:

CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - conviction – breach of bail condition – whether sentencing discretion otherwise miscarried resulting in a sentence that is too heavy and lies outside the permissible range – whether failure to have regard to the principle that imprisonment is a sentence of last resort and a sentence that allows the offender to stay in the community is preferable – whether court proceeded on an erroneous factual basis, namely, that the bail condition which the appellant had breached had been imposed by a court - sentence found manifestly excessive.

Legislation

Justices Act 1886 (Qld) ss 222, 223(1)
Penalties & Sentences Act 1992 (Qld) ss 9(1) & (2), 48, 144

Cases

Allesch v Maunz (2000) 203 CLR 172
ARS v Queensland Police Service [2018] QDC 103
Dwyer v Calco Timbers (2008) 234 CLR 124
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
Kentwell v R (2014) 252 CLR 60
Lovell v Lovell (1950) 81 CLR 513
R v Morse (1979) 23 SASR 98
Veen v The Queen (No. 2) (1988) 164 CLR 465
Warren v Coombes (1979) 142 CLR 531

COUNSEL:

C Tessmann for the appellant

N Crane for the respondent

SOLICITORS:

Aboriginal & Torres Strait Islander Legal Service for the appellant

The Office of the Director of Public Prosecutions for the respondent

  1. On 25 May 2020, the appellant was convicted in the Magistrates Court held in Cairns after pleading guilty to one charge of breaching a bail condition.  He was sentenced to one month imprisonment, partly suspended for an operational period of 12 months after serving two days in presentence custody in the watch house. 

  2. The appellant now appeals his sentence on the ground that it is manifestly excessive because:

    1.   The learned magistrate’s sentencing discretion otherwise miscarried resulting in a sentence that is too heavy and lies outside the permissible range.

    2.   The learned magistrate failed to have regard to the principle that imprisonment is a sentence of last resort and a sentence that allows the offender to stay in the community is preferable.

    3.   The learned magistrate proceeded on an erroneous factual basis, namely, that the bail condition which the appellant had breached had been imposed by a court.

  3. This appeal is by way of rehearing on the original evidence,…

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Details
Case
[2020] QDC 220
Decision Date

CaseChat Overview and Summary

Sullivan appealed against his conviction for breaching a bail condition, arguing that the sentencing discretion had miscarried, resulting in a sentence that was too heavy and outside the permissible range. The appeal centred on whether the sentencing court had failed to consider the principle that imprisonment should be a last resort and that a sentence allowing the offender to stay in the community was preferable. Additionally, the appeal questioned whether the sentencing court had proceeded on an erroneous factual basis, namely, that the bail condition breached had been imposed by a court. The court found that the sentence imposed was manifestly excessive.

The court identified several legal issues pertinent to the appeal. Firstly, it had to determine whether the sentencing discretion had miscarried, rendering the sentence too heavy and outside the permissible range. Secondly, the court had to consider whether the sentencing court had failed to take into account the principle that imprisonment is a last resort and that a sentence allowing the offender to remain in the community is preferable. Lastly, the court had to decide whether the sentencing court had erred by assuming that the bail condition breached had been imposed by a court, when in fact it had not.

In resolving these issues, the court noted that the original sentence was manifestly excessive and that the sentencing court had not properly considered the principle that imprisonment should be a last resort. The court found that the sentence had been imposed on an incorrect factual basis. Consequently, the appeal was allowed, and the original sentence was set aside. The court substituted a new sentence, fining the defendant $250 to be paid by a specified date and directing the Registrar to refer payment arrangements to the State Penalties Enforcement Registry.

Orders

Orders of the court

1. Appeal allowed.

2. The sentence and orders made by the Magistrates Court on 25 May 2020 are set aside and substituted with the following orders:

a. The defendant is fined $250 to be paid by 4 September 2021.

b. Direct the Registrar to refer payment arrangements to the State Penalties Enforcement Registry.

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

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