DISTRICT COURT OF QUEENSLAND
CITATION:
The Queen v Marshall [2013] QDC 127
PARTIES:
THE QUEEN
v
JESSICA LORRAINE MARSHALL
(appellant)FILE NO:
D14/2012
DIVISION:
Criminal
PROCEEDING:
Appeal
ORIGINATING COURT:
Gladstone
DELIVERED ON:
7 June 2013
DELIVERED AT:
Gladstone
HEARING DATE:
31 May 2013
JUDGE:
Smith DCJ
ORDER:
1. Appeal allowed.
2. Sentences are varied so the appellant is released on parole immediately.
3. Sentences otherwise confirmed.
4. Appellant is released on parole pursuant to s 200(1) of the Corrective Services Act 2006 (Q).
5. Appellant is required to report to Probation and Parole Office as required under the Act between 9am and 5pm today or on the next business day.
6. If the appellant fails to do so, she will be unlawfully at large.
7. Legal representatives have undertaken to inform the appellant of her obligations to report under s 160G(5) of the Penalties and Sentences Act 1992 (Q).
Pursuant to section 159A of the Penalties and Sentences Act 1992 (Q) it is declared that the Appellant has spent 4 days in pre-sentence custody. I declare this time to be imprisonment already served. The dates between which the Appellant was held in pre-sentence custody are 13 February 2012 and 17 February 2012. 8.
CATCHWORDS:
CRIMINAL LAW- Appeal against severity of sentence- Offences contrary to Drugs Misuse Act 1986 and Bail Act 1980- failure to refer to section 9(2)(a) and 13 of the Penalties and Sentences Act 1992 (Q)- failure to take into account pre-sentence custody
Bail Act 1980 (Q) s 29
Drugs Misuse Act 1986 (Q) ss. 9, 10
Justices Act 1886 (Q) ss 222, 223, 225.
COUNSEL:
Mr. D. Murray for the appellant
Ms. S. Hedge for the respondent
SOLICITORS:
Kenny and Partners for the appellant
Director of Public Prosecutions (Q) for the respondent
Introduction
This is an appeal against the severity of punishment imposed in the Gladstone Magistrates Court on 15 November 2012.
The appeal is pursuant to s 222 of the Justices Act 1886 (Q).
Section 222(2)(c) of the Justices Act provides that where the defendant pleads guilty then the person may only appeal on the sole ground that the fine, penalty, forfeiture or punishment was excessive.
Section 223(1) of the Justices Act provides that the appeal is by way of rehearing on the evidence given in the proceeding before the justices. There is also provision for the admission of fresh, additional or substituted evidence in certain circumstances.
Section 225(1) of the Justices Act provides that “on the hearing of an appeal, the judge may confirm, set aside or vary the appealed order…
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- AGLC
- The Queen v Marshall [2013] QDC 127
- Case
- [2013] QDC 127
- Decision Date
CaseChat Overview and Summary
The court examined whether the primary judge had appropriately considered the pre-sentence custody period as per statutory requirements. It was argued that the failure to explicitly refer to the relevant sections of the Penalties and Sentences Act constituted a significant error. The court also reviewed the relevant case law, including AB v R, Allesch v Maunz, and various other Queensland cases, to determine the correct approach to sentencing and the impact of pre-sentence custody. The court held that the primary judge's failure to explicitly acknowledge the pre-sentence custody period was a material error, as it did not align with legislative mandates.
The appeal was allowed on the grounds that the primary judge had not properly accounted for the time spent in pre-sentence custody. Consequently, the court varied the sentence to ensure the appellant was released on parole immediately. The sentences were otherwise confirmed, and the court ordered the appellant's immediate release on parole under section 200(1) of the Corrective Services Act 2006. The appellant was also required to report to the Probation and Parole Office within specified hours. It was declared that the 4 days spent in pre-sentence custody would be considered as time already served.
Orders
Orders of the court
1. Appeal allowed.
2. Sentences are varied so the appellant is released on parole immediately.
3. Sentences otherwise confirmed.
4. Appellant is released on parole pursuant to s 200(1) of the Corrective Services Act 2006 (Q).
5. Appellant is required to report to Probation and Parole Office as required under the Act between 9am and 5pm today or on the next business day.
6. If the appellant fails to do so, she will be unlawfully at large.
7. Legal representatives have undertaken to inform the appellant of her obligations to report under s 160G(5) of the Penalties and Sentences Act 1992 (Q).
Pursuant to section 159A of the Penalties and Sentences Act 1992 (Q) it is declared that the Appellant has spent 4 days in pre-sentence custody. I declare this time to be imprisonment already served. The dates between which the Appellant was held in pre-sentence custody are 13 February 2012 and 17 February 2012. 8.
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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