Sullivan v Queensland Police Service - [2020] QDC 220

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

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

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: [2020] QDC 220
Decision Date: 4 September 2020

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

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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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