W v QPS

[2013] QDC 87

DISTRICT COURT OF QUEENSLAND

CITATION:

W v QPS [2013] QDC 87

PARTIES:

W
(Appellant)

and

Queensland Police Service
(Respondent)

FILE NO/S:

D3/2013

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Mackay Magistrates Court

DELIVERED ON:

2 May 2013

DELIVERED AT:

Emerald District Court

HEARING DATE:

26 April 2013

JUDGE:

Smith DCJ

ORDER:

1.   Order below confirmed

2.   Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW- Appeal against severity of sentence- assault occasioning bodily harm and breach of protection order

Domestic Violence and Family Protection Act 1989 (Q)

Justices Act 1886 (Q) ss 222, 223, 225

Penalties and Sentences Act 1992 (Q) ss 9, 13

CCR v QPS [2010] QDC 486

Earl v Heron [2011] QDC 183

House v The King (1936) 55 CLR 499

Mbuzi v Torcetti [2008] QCA 231

R v Roach [2009] QCA 360

R v Taylor [2000] QCA 311

Stevenson v Yasso [2006] QCA 40

COUNSEL:

M. Doyle for the Appellant

R. Hood for the Respondent

SOLICITORS:

ATSILS Mackay for the Appellant

Director of Public Prosecutions Qld for the Respondent

1. This is an appeal pursuant to s 222 of the Justices Act 1886 (Q).

1. The appeal is against the severity of penalty imposed in the Mackay Magistrates Court on 2 January 2013. 

1. The Appellant pleaded guilty to one charge of breach of protection order; one charge of assault occasioning bodily harm, and one charge of possessing a dangerous drug.

1. The Appellant was sentenced to three months imprisonment on the breach of protection order; nine months imprisonment with respect to the assault occasioning bodily harm charge, and was fined $400 for possessing the dangerous drug (no conviction was recorded on this charge).

1. The Appellant’s parole release date was ordered as at 1 April 2013, which means that three months actual custody was imposed.

1. The Appellant appeals on a number of grounds as follows:

(a)        The Magistrate erred in his application of Earl v Heron [2011] QDC 183;

(b)        The Magistrate gave excessive weight to the Appellant’s [criminal] history and the need for deterrence;

(c) The Magistrate did not state on the record that he had specifically reduced the sentence pursuant to s 13 of the Penalties and Sentences Act 1992;

(d)        The Magistrate did not consider the imposition of a suspended sentence, an Intensive Correction Order or an immediate parole release date;

(e)        The Magistrate did not give adequate consideration to the Appellant’s age, employment and surrounding circumstances of the case;

(f)        The correct sentence should be in line with R v Taylor [2000] QCA 311.

1. Section 222 of the Justices Act permits a person who feels aggrieved as a defendant to appeal to the District Court.

1. Section 223(1) provides that an appeal under s 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the Justices.

1. Section 225(1) provides “on the hearing of an appeal, the Judge may confirm, set aside or vary the appealed order or make any other order in the matter the Judge considers just.”

1. In Stevenson v Yasso