Van Hese v Brown

[2015] QDC 92

DISTRICT COURT OF QUEENSLAND

CITATION:

Van Hese v Brown  [2015] QDC 92

PARTIES:

DREW VAN HESE

(Appellant)

and

SENIOR CONSTABLE LTJ BROWN

(Respondent)

FILE NO/S:

2036/14

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 May 2015

DELIVERED AT:

District Court at Mackay  

HEARING DATE:

27 March 2015

JUDGE:

Devereaux SC DCJ

ORDER:

Orders:

1.   The appeal against conviction is dismissed.

2.   The appeal against sentence is allowed.

3.   The orders of the learned Magistrate are varied so that the sentence imposed is:

a) 12 months imprisonment to be served as an intensive correction order pursuant to ss. 112 and 113 of the Penalties and Sentences Act 1992 on the conditions set out in s. 114(1) of the Penalties and Sentences Act 1992. Conviction recorded.

b) Order that the defendant pay compensation in the sum of $5,000 to the Registrar of the District Court at Brisbane within 12 months for transmission to the complainant. Under s. 36(1)(c) of the Penalties and Sentences Act 1992 it is directed that the Registrar give the particulars of the order to SPER for registration under s. 34 of the State Penalties Enforcement Act 1999.

CATCHWORDS:

APPEAL: Where the appellant was convicted of assault occasioning bodily harm in company – where prosecution case was that security surveillance video of the incident showed the appellant kicking the complainant and then being arrested – where prosecutor at trial did not play the video recording during the arresting officer’s evidence in chief – whether there was no case to answer – whether magistrate erred in allowing prosecution to re-open its case

Where the appellant was convicted of assault occasioning bodily harm in company and sentenced to 9 months imprisonment with parole release after 4 months – whether magistrate erred by sentencing on the basis that the appellant’s kick caused the complainant’s dental injuries – whether sentence was manifestly excessive

Legislation:
Penalties and Sentences Act 1992 (Qld)

Cases:

Case Stated by DPP (No2 of 1993) (1993) 70 A Crim R 323
Martelli v Police [2007] SASC 21R v CDR [1996] 1 Qd R 183
McDonald v Camerotto (1984) 36 SASR 66
R v Brown [1985] 2 Qd R 126.
R v Lude; R v Love [2007] QCA 319
R v Stewart, ex parte Attorney-General [1989] 1 Qd R 590

Tierney v O’Connor [1906] QWN 50
Youngberry v Heatherington; ex parte Heatherington [1977] Qd.R. 15

COUNSEL:

J R Hunter QC for the appellant

D Balic for the respondent

SOLICITORS:

Lawler Magill for the appellant
ODPP for the respondent

1. Drew Van Hese appeals against his conviction of one count assault occasioning bodily harm in company and against the sentence imposed upon conviction, 9 months imprisonment suspended after 4 months.

1. The grounds of appeal against conviction are that the learned magistrate erred in:

a)Allowing the prosecution to re-open its case after it had closed and part way through an application that there was no case to answer;

b)Refusing to accede to the defence submission…