S222 Appeal Round-Up

District Court Criminal Appeal Decisions

August 2016 – August 2017

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Topics which will be discussed • Mandatory Sentences • Contravention of Domestic Violence

Orders • Fines v Infringement Notices • Discretion to Disqualify from Driving

Mandatory Sentencing

Police Powers and Responsibilities Act 2000 (Qld) 754 Offence for driver of motor vehicle to fail to stop motor vehicle This section applies if, in the exercise of a power under an Act, a police officer using a police service motor vehicle gives the driver of another motor vehicle a direction to stop the motor vehicle the driver is driving. The driver of the motor vehicle must stop the motor vehicle as soon as reasonably practicable if a reasonable person would stop the motor vehicle in the circumstances. Minimum penalty—50 penalty units or 50 days imprisonment served wholly in a corrective services facility. Maximum penalty—200 penalty units or 3 years Imprisonment.

Penalties and Sentences Act 1992 (Qld) 91 Making of an order If a court convicts an offender of an offence punishable by imprisonment or a regulatory offence, the court may— (a) whether or not it records a conviction—make for the offender a probation order mentioned in section 92(1)(a); or (b) if it records a conviction—make for the offender a probation order mentioned in section 92(1)(b). 101 Making of an order If a court convicts an offender of an offence punishable by imprisonment or a regulatory offence, the court may make a community service order for the offender if the court is satisfied that the offender is a suitable person to perform community service under the order. 180A Meaning of certain sentence provisions A provision of an Act that provides to the effect that the maximum penalty for an offence may be a fine or imprisonment means that the sentencing court may order the offender— (a) to pay a fine; or (b) to be imprisoned; or (c) to pay a fine and also to be imprisoned.

Commission of Police Service v Magistrate Spencer & Ors [2013] QSC 202 • At the time of this decision, the legislation provided for a minimum 50

penalty units or 50 days imprisonment. But no “served wholly in a correctional facility”

• It was held that s754 PPRA did not exclude PSA 91 and 101 and therefore community based orders are allowed

• At [17]: However, there appears to be no reason grounded in statute or principle why a period of probation ought be regarded as a lesser penalty than a fine. They are inherently different forms of penalty and their relative harshness will vary subjectively, depending on their duration or amount and on the individual circumstances of the offender. Further, the fact that probation arises as a sentencing alternative to imprisonment, whereas a fine is a sentencing option even for offences that are not punishable with imprisonment, suggests as a matter of principle that probation should not be regarded as a lesser sentencing option than a fine.

Forbes v Jingle [2014] QDC 204 Explanatory Memorandum Criminal Law (Criminal Organisations Disruption) Amendment Bill 2013, schedule 2, clause 64: …The clause requires the minimum imposition of either the minimum fine or minimum sentence of imprisonment and excludes other sentencing options, for example a good behaviour order, probation, or a suspended sentence. Per Harrison DCJ : Clearly, the offence is one to which s 180A of the PSA applies. Therefore, on its ordinary meaning, s 754 as amended still appears to me to be an offence punishable by imprisonment for the purposes of s 91 of the PSA. It follows, therefore, that the learned Magistrate had the power to make a probation order under s 92(1)(b) of the PSA. There are numerous ways in which the legislation could have been expressed so that the options of probation and/or good behaviour bonds were unequivocally excluded, but no attempt was made to do so. … The wording of the section is not ambiguous or obscure and it is not, therefore, necessary to consider the extrinsic material.

After Forbes • Sbresni v Commissioner of Police [2016]

QDC 18 • Skinner v The Commissioner of Police

[2016] QDC 138 • R v Ham & Anor [2016] QDC 255

(Weapons Act offences)

Doig v The Commission of Police [2016] QDC 320 Two difficulties in Spencer: 1. It is not enough to say that because an offender is punished by imprisonment a

probation order is open if a specified minimum penalty is provided for 2. It requires the court to assess the punitive strength of different orders which

suggests that there be a hierarchy of sentences “But in my opinion the provisions of s754 do not require or allow a court to decide whether in a particular case, an order of probation or community service is ‘not less than’ a fine of 50 penalty units.” “The range of sentences available to a court under s754 is limited to a fine or imprisonment or both not less than the minimum and not greater than the maximum. If this leads to a conclusion which seems unreasonable in a particular case, or which compels the imposition of a fine inconsistent with the capacity of a defendant to pay, that is the result of the legislation.”

A preference for Forbes or Doig? • Experiences?

A preference for Forbes or Doig? • Penalties and Sentences Act 1992 (Qld) [as well as 91 and 101]

- s9(1) and (2)(a) - s13 - s48

• Uittenbosch v Department of Corrective Services [2005] QCA 300

• Acts Interpretation Act 1954 (Qld) – s14A – s14B

Keep an eye out for a good ‘vehicle’ to resolve this issue

Contravention of Domestic Violence Order • Maximum penalty was increased on 22

October 2015 • Penalties and Sentences Act 1992 (Qld)

– ss 9(2A) and (3): Primary sentencing considerations where imprisonment is not a last resort

– s 9(10) previous convictions

EAV v Commissioner of Police [2016] QDC 237 • 3 months imprisonment wholly suspended for 12 months • There was a heated argument, the appellant stumbled and bumped the

complainant who then slapped him. The appellant then grabbed the complainant, threw her on the bed and placed his weight on top of her and restrained her. The argument continued until police arrived.

• DVO made July 2015, breached 27 October 2015, sentenced for that in November 2015 ($500 fine) and committed this on 20 November 2015 (9 days later).

• Sentence was manifestly excessive due to – Mutual cross-orders – The initial violence was the complainant slapping the appellant – Violence in response was a relatively low level (although nonetheless unacceptable) – The appellant had received medical care and undertaken Anglicare Living Without Violence Program

and expressed remorse. • “I consider, in those circumstances, that the learned magistrate’s failure to

consider, albeit for a second domestic violence order breach, committed relatively soon after the first breach, the other alternatives, which obviously in this circumstance would be a community based order.”

• Re-sentenced to 18 months probation and 100 hours CSO with NCR

LJS v Sweeney [2017] QDC 18 • 3 years imprisonment PRD after 12 months • Lengthy and relevant history • 1st offence: Aggrieved woke to find appellant in her house, argued

and the appellant punched the aggrieved, took her phone and $30. • 2nd offence: Aggrieved and appellant visiting the appellant’s mother.

Aggrieved went to leave and appellant grabbed her by the arm, she attempted to pull away and he pushed her head into the fence and kicked her in the back.

• Discusses comparable decisions: IMF V Queensland Police Service [2016] QDC 140 (15 months for punching her jaw, grabbing by the throat, kicking her body, dragging her to a park and continued to hit her – and had a relevant history)

• Sentence reduced to 2 years imprisonment, PRD after 8 months

CDX v Queensland Police Service [2017] QDC 96 • 6 months imprisonment, PRD after 2 months • Involved threatening messages and then taking the child out

of school • On appeal CNFP – (as RIC since sentence and should have

been wholly suspended) • “For my part, I cannot see that the facts and circumstances

giving rise to an application for a DVO would be irrelevant to a consideration of an appropriate sentence to be imposed for a breach of that same order, particularly in circumstances in which the breach had occurred within two weeks of the order having been made”.

NAS v Queensland Police Service [2017] QDC 173 • 15 months imprisonment, wholly suspended after serving 2 months for an operational

period of 3 years. • Appellant was from PNG and on a visa. He and the complainant had a 5 month old

child together. There was an argument and he threw an apple which struck the wall near where she was standing with the baby. The appellant struck her with a broomstick across the back and grabbed her by the hair as she attempted the leave, and hit her numerous times to the back of the head.

• Appellant made full admissions and had no history • Reduced to 9 months imprisonment, suspended after 2 months served* • *Appellant had served 3 weeks then granted bail but the visa was revoked, so only 9-

10 days was remaining to be served. • In relation to the time served: “I reiterate that but for that fact, a wholly suspended

sentence could have been imposed.”

LDS v QRR [2017] QDC 199 • 3 x Contravening Domestic Violence Order • 1 x Wilful Damage and 1 x Common Assault • Sentenced to cumulative orders = 18 months PRD at 6

months • Most serious was pushed in the back causing bruising and a

minor laceration • “[the magistrate’s] discretion may have been overwhelmed by

community denunciation, which of course is an important and relevant factor. Such a factor needs to be balanced against the appellant’s actual conduct…”

• Resentenced to a head sentence of 9 months imprisonment

Fines v Infringement Notices

Ballard v Commissioner of Police [2017] QDC 174 • $471 fine contravene direction or requirement of police, GBB for other offending • “For contravening a direction or requirement – the infringement amount for that

offence is $471. They can give you a ticket for that. That is the fine for that offence…” • In the appeal – referred to Condon v Munsie [2015] QDC 148: State Penalties Enforcement Act 1999 (Qld) 16 Effect of this part on prosecution (2) This part does not— (b) limit or otherwise affect the penalty that may be imposed by a court for an offence.” • That is, that the legislative intent is to make clear that the exercise of the judicial

discretion as to fixing a penalty on sentence, is not in any way fettered or constrained, by any reference that may be made to the provisions in SPEA, allowing or providing for penalty infringement notices.

• CNFP

Discretion to disqualify

Discretion to Disqualify Penalties and Sentences Act 1992 (Qld) 187(1) Disqualification from holding Queensland driver Licence - Convicted of an offence in connection with or arising out of the

operation of a motor vehicle - Is satisfied having regard to the nature of the offence and the

interests of justice - May, in addition to any sentence, disqualify an offender absolutely or

for a period

• Healey v The Commissioner of Police [2016] QDC 192 • Hughes v Commissioner of Police [2016] QDC 325 • Purcell v Commissioner of Police [2016] QDC 342

Any Questions?

222 Appeal Process • 28 days to Appeal • Take LAQ App and Complete Notice of

Appeal (Form 27) • Solicitor can sign Form 27 if they have

instructions • Appeal Bail