Cases Archives - Gatenby Criminal Law

26 May

Case Summary – Reasonable apprehension of bias

The High Court handed down an important decision on reasonable apprehension of bias in the matter of QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15. Apprehended apprehension of bias is said to arise where “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345. Facts QFM was a citizen of Burkinsa Faso. He was sentenced to a term of 10 years imprisonment for a …

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30 Jun

Pre-sentence custody declaration – Case Note

The Queen v Whitely [2021] QSC 154 relates to recent amendments which affect the Court’s ability to make a pre-sentence custody declaration where there is shared pre-sentence custody. Her Honour, Justice Bowskill, articulates the proper construction of section 159A(3B) of the Penalties and Sentences Act 1992. The reasoning of Her Honour has subsequently been adopted by His Honour Justice Henry in the decision of R v Stewart [2021] QSC 187. See our Case Note. Pre-sentence custody declarations Where a person is remanded in custody the Court must take into account the time the person has spent in custody awaiting trial or …

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13 Jun

Case Note – Convictions in Child Exploitation Sentences.

In R v ZB [2021] QCA 9, the Court of Appeal, was required to consider an appeal against the recording of a conviction for an offence of possession of child exploitation material. Ultimately the Court found in favour of the Applicant, determining that the consequences of a recorded conviction would adversely affect the offender and the community. FACTS The applicant pleaded guilty to one charge of the possession of child exploitation material. police located 98 images depicting child exploitation material, 51 of which were still accessible. About one half of the images were in category one images. The Applicant participated in an electronic record …

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10 Mar

Case Note – When disability is not a mitigatory factor.

The Court of Appeal in R v Newman (a pseudonym) [2021] QCA 13, considered whether a defendant’s personal circumstances, including a disability, operates as a mitigating or aggravating factor or has no substantial influence at all. Ultimately the Court held that the relationship between the disability and the offending was of such a nature as to show that the offender is likely to reoffend, and entitled the Applicant to no reduction in sentence. FACTS In March 2018, when the Applicant was 14 years old, he went to Kmart at Wynnum Plaza after school. He loitered there for some time, watching school-aged …

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14 Dec

Recording of Conviction – DV

MB v Queensland Police Service [2020] QDC 325 is an interesting decision that deals with the issue of whether or not the Defendant should be allowed to adduce fresh evidence in his DV appeal. The Magistrate at first instance, recorded a conviction. On appeal, in respect of the recorded DV conviction, the Applicant sought to adduce new evidence from his employer. The DV offending was particularised as being between 27 April 2020 and 29 August 2020. The appellant was sentenced to two years’ probation and ordered to pay compensation in the sum of $611.70. Convictions were recorded on all counts. He …

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18 Aug

Possession of a Weapon in a Public Place – Mandatory minimum penalties.

On 30 April 2012, the then Premier of Queensland, Campbell Newman revealed a crack down on weapons offences. His government introduced mandatory minimum penalties for weapons charges. Importantly section 50 of the Weapons Act 1990 was amended to include mandatory minimum sentences for possession of various classes of weapons in a public place. Consequently this regime has seen sentences which have appeared unjust. Queensland Courts have sought to remedy the unfairness by imposing probation orders, particularly for young, first time offenders. There have been conflicting interpretations in both the Magistrates and District Court on this issue. That is to say, does the …

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30 Apr

COMMUNICATION WITH THE COURT

The decision of Legal Services Commissioner v Trost [2019] QCAT 357, is a concise summary of the law surrounding unilateral communication with the Court. The President of QCAT, Justice Daubney was called upon to decide whether three emails sent by Mr Trost were matters of substance and whether the act of cc’ing the opponent into the correspondence resolved any non-compliance. Background By way of background, the solicitor was acting for a defendant in proceedings in the Supreme Court of New South Wales. An application for security of costs came on for hearing before Harrison AsJ in the Court on 29 March …

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31 Oct

Queensland Police Service V Harley Joe Barbaro [2019] QMC 1

Following a two day hearing in the Southport Magistrates Court, Harley Barbaro was found not guilty of Habitually Consorting contrary to section 77B of the Criminal Code of Queensland. The not guilty verdict highlighted a number of errors in the approach of the Queensland Police towards consorting notices. Facts of the case On the 23 July 2017 Detective Sergeant Toni Lewis hand delivered to the defendant, a document titled “Official Warning for Consorting under section 53 BAC of the Police Powers and Responsibilities Act 2000.” Below that official warning were the photographs names and dates of birth of fifteen persons, three of …

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