Whyte v Queensland Police Service - [2010] QDC 29

DISTRICT COURT OF QUEENSLAND

CITATION:

Whyte v Queensland Police Service [2010] QDC 29

PARTIES:

JUDITH HELEN WHYTE

(Appellant)

AND

QUEENSLAND POLICE SERVICE

(Respondent)

FILE NO/S:

D127/09

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Toowoomba

DELIVERED ON:

3 February 2010 (ex tempore)

DELIVERED AT:

Toowoomba

HEARING DATE:

3 February 2010

JUDGE:

Irwin DCJ

ORDER:

1. Appeal allowed.

2. Sentence at first instance varied, by fixing a parole release date as 3 February 2010.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – where the appellant was convicted on her plea of guilty on one count each of possessing dangerous drugs and failure to appear in accordance with an undertaking and two counts of failure to take reasonable care and precautions in respect of a syringe or needle – where the appellant was sentenced to imprisonment for a period of five months – where the sentencing magistrate ordered that the appellant be released on parole after serving four months imprisonment

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING AN ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – where the appellant’s parole release date was significantly past the halfway point of the sentence – whether the sentencing magistrate erred in not giving reasons for explaining the process underlying his decision to set the parole release date significantly past the halfway point

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING AN ERROR OF LAW – FAILURE TO GIVE PARTIES AN OPPORTUNITY TO BE HEARD – where the appellant’s parole release date was significantly past the halfway point of her head sentence – whether the sentencing magistrate erred in not giving the parties an opportunity to be heard in relation to this

Justices Act 1886 (Qld) s 222(1), s 225(1)

House v The King (1936) 55 CLR 504, applied

Hughes v Hopwood (1950) QWN 21, applied

Knibbs v R [2008] QDC 288, cited

R v Kitson [2008] QCA 086, applied

R v Leu; R v Togia [2008] QCA 201, applied

R v Maxfield [2002] 1 Qd R 417, cited

R v Myall [2008] QCA 202, cited

Whyte v State of Queensland [2008] QDC 256, cited

COUNSEL:

The appellant appeared on her own behalf

J.D. Millican for the respondent

SOLICITORS:

The appellant appeared on her own behalf

Director of Public Prosecutions (Qld) for the respondent

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE IRWIN

JUDITH HELEN WHYTE	Appellant
and
QUEENSLAND POLICE SERVICE	Respondent

TOOWOOMBA

..DATE 03/02/2010

JUDGMENT

HIS HONOUR: On 3 November 2009 at Toowoomba, the appellant pleaded guilty to one count each of possessing dangerous drugs, and failing to take reasonable care and precautions in respect…

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 Whyte 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: [2010] QDC 29
Decision Date: 3 February 2010 (ex tempore)

CaseChat Overview and Summary

The appellant, Whyte, was convicted on her plea of guilty to possessing dangerous drugs, failure to appear in accordance with an undertaking, and two counts of failure to take reasonable care and precautions in respect of a syringe or needle. She was sentenced to imprisonment for a period of five months. The sentencing magistrate ordered that the appellant be released on parole after serving four months of her sentence. The appellant sought to appeal against the sentence on the grounds that the magistrate erred in not giving reasons for explaining the process underlying his decision to set the parole release date significantly past the halfway point of the sentence, and that the magistrate did not give the parties an opportunity to be heard in relation to the parole release date.

The court was required to determine whether the sentencing magistrate erred in not giving reasons for setting the parole release date significantly past the halfway point of the sentence and whether the magistrate erred in not giving the parties an opportunity to be heard in relation to the parole release date. The court held that the magistrate had indeed erred in not giving reasons for his decision, as it was necessary for the appellant to understand the reasoning behind the decision and to be able to challenge it if necessary. The court also held that the magistrate had erred in not giving the parties an opportunity to be heard, as it is a fundamental principle of natural justice that all parties should have an opportunity to be heard before a decision is made that affects them.

The appeal was allowed, and the sentence at first instance was varied by fixing a parole release date as 3 February 2010. The court held that the sentencing magistrate had erred in not giving reasons for his decision and in not giving the parties an opportunity to be heard. The parole release date was fixed at the halfway point of the sentence, which was deemed to be a more appropriate date. The court emphasised the importance of giving reasons and providing an opportunity to be heard in all cases, particularly in cases involving parole release dates.

Orders

Orders of the court

1. Appeal allowed.

2. Sentence at first instance varied, by fixing a parole release date as 3 February 2010.

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:	Whyte v Queensland Police Service [2010] QDC 29
PARTIES:	JUDITH HELEN WHYTE (Appellant) AND QUEENSLAND POLICE SERVICE (Respondent)
FILE NO/S:	D127/09
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Toowoomba
DELIVERED ON:	3 February 2010 (ex tempore)
DELIVERED AT:	Toowoomba
HEARING DATE:	3 February 2010
JUDGE:	Irwin DCJ
ORDER:	1. Appeal allowed. 2. Sentence at first instance varied, by fixing a parole release date as 3 February 2010.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – where the appellant was convicted on her plea of guilty on one count each of possessing dangerous drugs and failure to appear in accordance with an undertaking and two counts of failure to take reasonable care and precautions in respect of a syringe or needle – where the appellant was sentenced to imprisonment for a period of five months – where the sentencing magistrate ordered that the appellant be released on parole after serving four months imprisonment APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING AN ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – where the appellant’s parole release date was significantly past the halfway point of the sentence – whether the sentencing magistrate erred in not giving reasons for explaining the process underlying his decision to set the parole release date significantly past the halfway point APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING AN ERROR OF LAW – FAILURE TO GIVE PARTIES AN OPPORTUNITY TO BE HEARD – where the appellant’s parole release date was significantly past the halfway point of her head sentence – whether the sentencing magistrate erred in not giving the parties an opportunity to be heard in relation to this Justices Act 1886 (Qld) s 222(1), s 225(1) House v The King (1936) 55 CLR 504, applied Hughes v Hopwood (1950) QWN 21, applied Knibbs v R [2008] QDC 288, cited R v Kitson [2008] QCA 086, applied R v Leu; R v Togia [2008] QCA 201, applied R v Maxfield [2002] 1 Qd R 417, cited R v Myall [2008] QCA 202, cited Whyte v State of Queensland [2008] QDC 256, cited
COUNSEL:	The appellant appeared on her own behalf J.D. Millican for the respondent
SOLICITORS:	The appellant appeared on her own behalf Director of Public Prosecutions (Qld) for the respondent