Vaevae v Queensland Police Service - [2018] QDC 66

DISTRICT COURT OF QUEENSLAND

CITATION:

Vaevae v Queensland Police Service [2018] QDC 66

PARTIES:

BRYCE VAEVAE
(appellant)

v

THE QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

APPEAL NO: 51/18

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

13 April 2018

DELIVERED AT:

Cairns

HEARING DATE:

5 April 2018

JUDGE:

Morzone QC DCJ

ORDERS:

1.   The appeal against sentence is allowed.

2.   The sentence of the Magistrates Court imposed on 23 March 2018 is varied as follows:

(a)   For the offence of dangerous operation of a vehicle, committed on 18 December 2017 – substitute 14 months’ imprisonment in lieu 18 months of imprisonment;

(b)   For each of the two offences of entering a dwelling and commit indictable offence, both committed on 15 January 2018 - substitute a term of 14 months’ imprisonment in lieu of 18 months of imprisonment;

(c)    All terms of imprisonment to be served concurrently;

(d)   That 78 days spent in pre-sentence custody from 15 January 2018 to 3 April 2018 inclusive are declared to be time served already under the sentence. The Registrar is directed to inform the Commission of that declaration;

(e)   The court ordered parole order setting the parole release date of 15 May 2018 is discharged;

(f)     The terms of imprisonment be partly suspended after the defendant serves 78 days’ imprisonment, for an operational period of 18 months.

3.   Otherwise all the orders made by the Magistrates’ Court on 23 March 2018 are affirmed including the orders for disqualification.

CATCHWORDS:

CRIMINAL LAW – APPEAL - pursuant to s 222 Justices Act 1886 - conviction on own plea of 14 offences - dangerous operation of a motor, vehicle; enter dwelling and commit indictable offence, burglary and commit indictable offences; unlawfully using a motor vehicle and stealing – appeal against sentence – mode of hearing of appeal – whether sentence manifestly excessive - whether magistrate mistook the facts – whether erroneous consideration of offending aggravated by breach of bail – imprisonment as last resort, youthful offender & mitigation - re-sentence.

Legislation
Justices Act 1886 (Qld) ss 222, 223(1) & 227.
Penalties and Sentences Act 1992 (Qld), s9.

Cases

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Allesch v Maunz (2000) 203 CLR 172
Dwyer v Calco Timbers (2008) 234 CLR 124
Forrest v Commissioner of Police [2017] QCA 132
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
Kentwell v R (2014) 252 CLR 60
Norbis v Norbis (1986) 161 CLR 513

R v Broadbridge [1994] QCA 278
R v Dance [2009] QCA 371

Teelow v Commissioner of Police [2009] QCA 84
Warren v Coombes (1979) 142 CLR 531
White v Commissioner of Police [2014] QCA 121

COUNSEL:
J Trevino for the Appellant
E Coker for the Respondent

SOLICITORS: Legal Aid Queensland for the appellant
The Office of Director of Public Prosecutions for the respondent

[1] The appellant appeals against the sentence imposed by the Magistrates Court to an effective 18…

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.

Keep reading for free

Create a free CaseChat account to read Vaevae v Queensland Police Service and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] QDC 66
Decision Date: 13 April 2018

CaseChat Overview and Summary

The defendant, Vaevae, appealed against his sentence after being convicted on his own plea of fourteen offences, including dangerous operation of a motor vehicle, entering a dwelling and committing indictable offences, and unlawfully using a motor vehicle and stealing. The appeal was heard in the Queensland Court of Appeal under the provisions of section 222 of the Justices Act 1886. The primary legal issues before the court were whether the sentence was manifestly excessive, whether the magistrate had misconstrued the facts, and whether the court had erroneously considered the defendant's breach of bail as an aggravating factor. The court was also required to consider the principles of imprisonment as a last resort, the defendant's age, and the mitigating factors.

The court found that the sentence was manifestly excessive and that the magistrate had misconstrued the facts in several instances. The court also found that the consideration of the defendant's breach of bail as an aggravating factor was erroneous. The court emphasised the principle that imprisonment should be a last resort, especially for youthful offenders, and considered the mitigating factors presented by the defendant's counsel. The court held that the sentence imposed was disproportionate to the offending and that it had not adequately taken into account the defendant's age and the mitigating factors. The court concluded that the appeal against sentence should be allowed and varied the sentence accordingly.

The court varied the sentence by substituting 14 months' imprisonment for each of the offences, to be served concurrently, with 78 days spent in pre-sentence custody to be counted as time already served. The court also discharged the parole release date and ordered the terms of imprisonment to be partly suspended after the defendant serves 78 days' imprisonment, for an operational period of 18 months. The court affirmed all other orders made by the Magistrates' Court.

Orders

Orders of the court

1. The appeal against sentence is allowed.

2. The sentence of the Magistrates Court imposed on 23 March 2018 is varied as follows:

(a) For the offence of dangerous operation of a vehicle, committed on 18 December 2017 – substitute 14 months’ imprisonment in lieu 18 months of imprisonment;

(b) For each of the two offences of entering a dwelling and commit indictable offence, both committed on 15 January 2018 - substitute a term of 14 months’ imprisonment in lieu of 18 months of imprisonment;

(d) That 78 days spent in pre-sentence custody from 15 January 2018 to 3 April 2018 inclusive are declared to be time served already under the sentence. The Registrar is directed to inform the Commission of that declaration;

(e) The court ordered parole order setting the parole release date of 15 May 2018 is discharged;

(f) The terms of imprisonment be partly suspended after the defendant serves 78 days’ imprisonment, for an operational period of 18 months.

3. Otherwise all the orders made by the Magistrates’ Court on 23 March 2018 are affirmed including the orders for disqualification.

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

Full text does not contain this section.

CITATION:	Vaevae v Queensland Police Service [2018] QDC 66
PARTIES:	BRYCE VAEVAE (appellant) v THE QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	APPEAL NO: 51/18
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Cairns
DELIVERED ON:	13 April 2018
DELIVERED AT:	Cairns
HEARING DATE:	5 April 2018
JUDGE:	Morzone QC DCJ
ORDERS:	1. The appeal against sentence is allowed. 2. The sentence of the Magistrates Court imposed on 23 March 2018 is varied as follows: (a) For the offence of dangerous operation of a vehicle, committed on 18 December 2017 – substitute 14 months’ imprisonment in lieu 18 months of imprisonment; (b) For each of the two offences of entering a dwelling and commit indictable offence, both committed on 15 January 2018 - substitute a term of 14 months’ imprisonment in lieu of 18 months of imprisonment; (c) All terms of imprisonment to be served concurrently; (d) That 78 days spent in pre-sentence custody from 15 January 2018 to 3 April 2018 inclusive are declared to be time served already under the sentence. The Registrar is directed to inform the Commission of that declaration; (e) The court ordered parole order setting the parole release date of 15 May 2018 is discharged; (f) The terms of imprisonment be partly suspended after the defendant serves 78 days’ imprisonment, for an operational period of 18 months. 3. Otherwise all the orders made by the Magistrates’ Court on 23 March 2018 are affirmed including the orders for disqualification.
CATCHWORDS:	CRIMINAL LAW – APPEAL - pursuant to s 222 Justices Act 1886 - conviction on own plea of 14 offences - dangerous operation of a motor, vehicle; enter dwelling and commit indictable offence, burglary and commit indictable offences; unlawfully using a motor vehicle and stealing – appeal against sentence – mode of hearing of appeal – whether sentence manifestly excessive - whether magistrate mistook the facts – whether erroneous consideration of offending aggravated by breach of bail – imprisonment as last resort, youthful offender & mitigation - re-sentence. Legislation Justices Act 1886 (Qld) ss 222, 223(1) & 227. Penalties and Sentences Act 1992 (Qld), s9. Cases Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Allesch v Maunz (2000) 203 CLR 172 Dwyer v Calco Timbers (2008) 234 CLR 124 Forrest v Commissioner of Police [2017] QCA 132 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 60 Norbis v Norbis (1986) 161 CLR 513 R v Broadbridge [1994] QCA 278 R v Dance [2009] QCA 371 Teelow v Commissioner of Police [2009] QCA 84 Warren v Coombes (1979) 142 CLR 531 White v Commissioner of Police [2014] QCA 121
COUNSEL:	J Trevino for the Appellant E Coker for the Respondent
SOLICITORS:	Legal Aid Queensland for the appellant The Office of Director of Public Prosecutions for the respondent