WAA v QPS - [2014] QDC 297

DISTRICT COURT OF QUEENSLAND

CITATION:

WAA v QPS [2014] QDC 297 (delivered ex tempore)

PARTIES:

WAA

(appellant)

v

Queensland Police Service

(respondent)

FILE NO:

Mount Isa 7/2014

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Mount Isa

DELIVERED ON:

28 October 2014

DELIVERED AT:

Mount Isa

HEARING DATE:

23 October 2014

JUDGE:

Kingham DCJ

ORDER:

Appeal against all sentences is dismissed.

CATCHWORDS:

CRIMINAL LAW - APPEAL AGAINST SENTENCE - SCOPE OF APPELLATE JURISDICTION - Section 222(2)(c) Justices Act 1886 (Qld) - whether an appeal against an exercise of discretion can only succeed if sentence is excessive - where concluded that scope of successful appeals against exercise of discretion is wider than manifestly excessive sentences alone - whether an appeal against an exercise of discretion can succeed on an error of law alone - where concluded that scope of successful appeals against exercise of discretion includes errors of law

CRIMIMAL LAW - DOMESTIC VIOLENCE - APPEAL AGAINST SENTENCE - APPEAL THAT SENTENCE WAS MANIFESTLY EXCESSIVE - where appellant argued that the learned Magistrate placed excessive weight on principle of deterrence - where appellant argued that learned Magistrate considered an irrelevant fact as an aggravating feature - where appellant argued that the learned Magistrate failed to have regard to the relative risk of harm if imprisonment was not imposed when he set the parole release date - where sentence found not to be manifestly excessive

COUNSEL:

D Castor for the appellant

D Orr for the respondent

SOLICITORS:

Aboriginal and Torres Strait Islander Legal Service for the appellant

Office of the Director of Public Prosecutions for the respondent

HER HONOUR: This is an appeal against sentences imposed by his Honour Magistrate Madsen in the Mount Isa Magistrates Court on the 27^th of May 2014. There are four relevant sentences involved or four offences. There’s one count of contravening a domestic violence order, one count of assault occasioning bodily harm whilst armed, and, on finding that there was a contravention of a probation order, the appellant was re-sentenced for two offences of contravening a domestic violence order on the 2^nd of August 2013. He was re-sentenced for nine months. And for a contravention on the 29^th of December 2012, he was sentenced to six months and a parole release date was fixed on the 22^nd of May 2014.

I should have observed that the sentences imposed for the contravention of the domestic violence order on the 22^nd of May 2014 was a term of 18 months, not 27 months as it appeared in the notice of appeal, and the sentence imposed for the assault occasioning bodily harm whilst armed was 27 months, not 18 months. I should also note there was an error in the notice of appeal when it was stated that the parole release date was the 22^nd of May 2015, something I’ve just repeated. In fact, the parole released date is the 22^nd of February 2015.

Before turning to the grounds of…

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.

Continue reading WAA v QPS

Details

AGLC: WAA v QPS [2014] QDC 297
Case: [2014] QDC 297
Decision Date: 28 October 2014

CaseChat Overview and Summary

The case before the court involved an appeal by the appellant against sentences imposed by the Magistrates Court. The appellant was convicted of various domestic violence-related offences and was sentenced to imprisonment terms. The appeal focused on the severity of the sentences, specifically whether they were manifestly excessive and whether there were errors in the exercise of discretion by the Magistrate.

The legal issues at hand were whether an appeal against the exercise of discretion in sentencing could only succeed if the sentence was manifestly excessive and whether such an appeal could succeed based on an error of law alone. The court was required to examine the scope of appellate jurisdiction under Section 222(2)(c) of the Justice Act 1886 (Qld). The appellant argued that the Magistrate had erred in various respects, including placing excessive weight on the principle of deterrence, considering an irrelevant fact as an aggravating feature, and failing to adequately consider the risk of harm if the appellant was not imprisoned when setting the parole release date.

The court concluded that the scope of successful appeals against the exercise of discretion is broader than just manifestly excessive sentences. It was determined that such appeals could also succeed if there was an error of law involved in the sentencing process. Despite the appellant's arguments regarding the weight given to deterrence and other alleged errors, the court found that the sentences were not manifestly excessive and that the appeal did not succeed on the grounds presented.

The appeal against all sentences was dismissed, and the original sentences imposed by the Magistrates Court were upheld.

Orders

Orders of the court

Appeal against all sentences is dismissed.

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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CITATION:	WAA v QPS [2014] QDC 297 (delivered ex tempore)
PARTIES:	WAA (appellant) v Queensland Police Service (respondent)
FILE NO:	Mount Isa 7/2014
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Mount Isa
DELIVERED ON:	28 October 2014
DELIVERED AT:	Mount Isa
HEARING DATE:	23 October 2014
JUDGE:	Kingham DCJ
ORDER:	Appeal against all sentences is dismissed.
CATCHWORDS:	CRIMINAL LAW - APPEAL AGAINST SENTENCE - SCOPE OF APPELLATE JURISDICTION - Section 222(2)(c) Justices Act 1886 (Qld) - whether an appeal against an exercise of discretion can only succeed if sentence is excessive - where concluded that scope of successful appeals against exercise of discretion is wider than manifestly excessive sentences alone - whether an appeal against an exercise of discretion can succeed on an error of law alone - where concluded that scope of successful appeals against exercise of discretion includes errors of law CRIMIMAL LAW - DOMESTIC VIOLENCE - APPEAL AGAINST SENTENCE - APPEAL THAT SENTENCE WAS MANIFESTLY EXCESSIVE - where appellant argued that the learned Magistrate placed excessive weight on principle of deterrence - where appellant argued that learned Magistrate considered an irrelevant fact as an aggravating feature - where appellant argued that the learned Magistrate failed to have regard to the relative risk of harm if imprisonment was not imposed when he set the parole release date - where sentence found not to be manifestly excessive
COUNSEL:	D Castor for the appellant D Orr for the respondent
SOLICITORS:	Aboriginal and Torres Strait Islander Legal Service for the appellant Office of the Director of Public Prosecutions for the respondent