Queensland Service Police v Hyde
[2012] QDC 250
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- Queensland Service Police v Hyde[2012] QDC 250
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Queensland Service Police v Hyde[2012] QDC 250
Queensland Service Police v Hyde[2012] QDC 250
[2012] QDC 250
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE BAULCH SC
No 678 of 2011
QUEENSLAND POLICE SERVICE | Appellant |
and | |
DAVID JOHN HYDE | Respondent |
TOWNSVILLE
DATE 12/06/2012
JUDGMENT
HIS HONOUR: The Respondent appeared in the Ayr Magistrates Court on the 11th of November 2011 charged with drug offences and two offences relating to breach of a probation order and breach of a wholly suspended sentence.
The prosecution appealed in respect of the sentence originally on the ground that it was a wholly inadequate sentence having regard in particular to the respondent's record of offending.
It emerged, on examination of the record, that there were some other irregularities concerning the matter. It is, on examination of the Court file and the Court record, quite difficult to determine what offences were being dealt with in respect of the drug offending because the Court file shows a larger number of offences than was mentioned in the appeal documents.
That is complicated by the fact that the respondent was not arraigned as a general indication was given that the matters would be dealt with as pleas of guilty but it is now impossible to determine which of the drug offences listed in the Court file were being dealt with and whether it was the intention of prosecution not to proceed with some of them.
I agree with what was said by Judge Durward SC in Brown v. Queensland Police Force [2011] QDC 301, as to the importance of arraignment and for that matter the administration of an allocutus in the case of hearings of this sort.
It's further pointed out this morning that the sentence to which the two breach offences related was a sentence that could not be imposed having regard to the provisions of section 92 of the Penalties and Sentences Act. There is no doubt that that submission is correct and the respondent concedes that the appeal would have to be allowed on that basis.
It seems to me to be appropriate to set aside all of the sentences imposed in the Magistrates Court at Ayr on the 11th of November last and to remit all of the offences to the Magistrates Court to be dealt with there according to law.
There's no need for me to make any direction about who should deal with them. There's no reason it couldn't go back before Mr Kennedy?
MR LOWRIE: No, your Honour. I don't believe there's - just to the Magistrates Court in Ayr would be fine in my submission.
HIS HONOUR: Yes. Well, the matters will be remitted to the Magistrates Court in Ayr to be dealt with according to law. Is there any other order required?
MS MCKINNON: Your Honour, perhaps if I could request a copy of the transcript of today's proceedings?
HIS HONOUR: Certainly.
MS MCKINNON: Thank you, your Honour.
HIS HONOUR: Yes.
MR LOWRIE: Your Honour‑‑‑‑‑
HIS HONOUR: I did have a preliminary view about the nature of the sentence but it doesn't seem to be appropriate to embark on consideration of whether the sentence was justified until one knows what charges were in fact being dealt with. It might have made a difference if the supply charge was one of the charges that was being considered.
MR LOWRIE: Your Honour may have said to set aside the sentences imposed in Ayr on the 11th of November.
HIS HONOUR: Is that the wrong date?
MR LOWRIE: That was the first date, your Honour, but sentences were actually, I think‑‑‑‑‑
HIS HONOUR: Oh, yes.
MR LOWRIE: ‑‑‑‑‑on the 23rd of - I don't know if that would make any difference but just to avoid any‑‑‑‑‑
HIS HONOUR: Yes.
MR LOWRIE: ‑‑‑‑‑potential confusion.
HIS HONOUR: Well, to avoid that confusion, which there probably would be, I set aside the sentences imposed in the Magistrates Court on the 23rd of November 2011 and remit all of the charges then before the Court to the Magistrates Court at Ayr to be dealt with according to law.