TZL v QPS

[2015] QDC 171

DISTRICT COURT OF QUEENSLAND

CITATION:

TZL v QPS [2015] QDC 171

PARTIES:

TZL

(appellant)

v

Commissioner of Police

(respondent)

FILE NO:

BD-481/15

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

3 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

26 June 2015

JUDGE:

Kingham DCJ

ORDER:

1. Appeal allowed.

2. Vary the sentence imposed on 6 January 2015 but only to reduce the term of imprisonment imposed from 10 months to 6 months.

3. Vary the pre-sentence custody declaration to declare the 11 days spent in custody from 27 December 2014 until 6 January 2015 as time served on the sentence.

CATCHWORDS:

CRIMINAL LAW - APPEAL AGAINST SENTENCE - ERROR IN PRE-SENTENCE CUSTODY DECLARATION - where learned Magistrate incorrectly stated the dates for pre-sentence custody and did not declare that as time served on the sentence or order otherwise – where process to correct such error by re-opening sentence – where found sentence would not be disturbed on that ground alone

CRIMINAL LAW - APPEAL AGAINST SENTENCE - ERROR OF LAW - GUILTY PLEA - where learned Magistrate failed to state how plea of guilty taken into account - whether there is an obligation to state that the plea has been taken into account and how - where found that learned Magistrate erred in this regard

CRIMINAL LAW - APPEAL AGAINST SENTENCE - ERROR OF LAW - MISUNDERSTANDING OR MISSTATEMENT OF FACTS - where learned Magistrate sentenced on the basis that the appellant had sent an indecent image or images of other women to the aggrieved – where that was not the factual basis asserted or pleaded to
CRIMINAL LAW - APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – Where offending breached limited contact orders – where paucity of information about the nature and extent of the breaches – where too much weight placed on an extensive history of prior offending and that offence occurred in breach of a probation order – where sentence found to be manifestly excessive

SOLICITORS:

N. Larsen, Legal Aid Queensland for the appellant

P. Price, Office of the Director of Public Prosecutions for the respondent

1. This is an appeal against sentence imposed on the Appellant for contravention of a Domestic Violence order. On 6 January 2015 at Southport Magistrates Court, he was sentenced to 10 months imprisonment, 9 days were declared as pre-sentence custody and he was released to parole on the day of sentence.

1. The principles that apply on an appeal against the exercise of discretion are well-established.  It is not enough that I might have taken a different course had I been the sentencing Judge.  There must be some error at first instance: for example the Judge at first instance acted on a wrong principle; allowed extraneous or irrelevant matters to guide or affect the sentence; mistook the facts or did not take into account some material consideration.  Sometimes, error will not be manifest except by the result which is, on the facts, unreasonable or plainly unjust.[1] 

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