Niceforo v Fanning[2005] QDC 256

[2005] QDC 256

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No 263 of 2005

RAYMOND NICEFOROAppellant

and

KEITH GRAHAM FANNINGRespondent

CATCHWORDS: Appeal from Magistrate to District Court under Justices Act 1886 s 222 - no appeal against conviction after a trial of assault occasioning bodily harm in a road rage incident - sentence of 9 months imprisonment suspended after 3 months set aside - sentence of 6 months imprisonment to be served by intensive correction order pronounced - offender had served 11 days in custody before obtaining appeal bail - sentence miscarried when offender (self-represented) was not informed of the risk he faced of imprisonment and failed to present adequate submissions, in particular to mention a medical condition relevant to whether he should be imprisoned - evidence about health condition received on appeal - costs  refused

HIS HONOUR:  This is an appeal by Mr Niceforo who was convicted by a Magistrate after a trial of assault occasioning bodily harm.  It was an incident of road rage which, as a matter of history, was brought to an end when two police officers on patrol observed Mr Niceforo assaulting the complainant, Mr Green.

The Magistrate said it was: "unimaginable where it might have led to had the police officers not been able to be present and remove the defendant from the complainant."

The defendant/appellant is by profession and actual occupation, a truck driver.  It seems that both he and the complainant had business in the area of QUT at Kelvin Grove on the day in question.  Mr Niceforo had been effecting a delivery there and Mr Green had dropped a lady off so she could attend her work there.

Some difference of opinion occurred on the road when Mr Niceforo (being allowed to get on to the road by persons controlling traffic) came in on a rising stretch in front of Mr Green, who overtook him.  According to Mr Niceforo, he was "given the finger" by Mr Green on that occasion and according to Mr Green at the next stop Mr Niceforo's heavy truck complete with bull bar nudged his rear.

Mr Niceforo's version of that is that Mr Green rolled backed. Some distance further on, Mr Green pulled his vehicle over to the side and he says found some scratches on the rear bumper which he surmised had been made by the bull bar.  He flagged Mr Niceforo down, obviously wanting to have a conversation with him.  The reason may have been no more than concern to get details of persons etc, for purposes advising the insurers of any damage. 

The differences in the accounts of the protagonists become extreme from that point on.

Mr Niceforo asserted that Mr Green apparently had threatened to kill him for what he had done;  Mr Green denies anything along those lines.  He launched a physical attack on Mr Green, he says calculated to get confirmation that any threat was at an end.

Police, as I have noted, observed the incident and pulled Mr Niceforo off.  Mr Green suffered minor injuries; he took himself to the doctor but there was no treatment needed.  Clearly enough, bodily harm was suffered by the complainant, the effects of which continued until at least the next day; bruising, stiffness and the like. 

Although Mr Niceforo, who was self represented before the Magistrate, advanced the theory that this was all a compensation exercise being perpetrated by Mr Green, there is no basis for saying that.  Where assault occasioning bodily harm charges are brought to that end, they are most inevitably going to be pursued on indictment so that compensation can be awarded under the Criminal Offence Victims Act 1995.

It is true that the Magistrate, in an understandable gesture of sympathy towards the victim, made an order for compensation to be paid to him of the modest sum of $500.  Mr Niceforo has paid that.  Although it's not an exhibit, he has produced to the Court a receipt to satisfy me in that respect.

The appeal is against sentence.  It is unclear to me whether it covers the compensation aspect.  There is no justification whatever for the appeal in that respect.  Otherwise, the sentence was one of nine months' imprisonment to be suspended after three months had been served.

Mr Niceforo obtained appeal bail from Judge McGill on the 1st of February this year.  The sentence was pronounced on the 21st of January so that he has had 11 days in custody.  It is unfortunate that delays which begin with the obtaining of a transcript attend appeals such as this.  A transcript was not available until the second half of March 2005 at the earliest.

Judge McGill was plainly right to allow bail.  Success of the appeal, had it come on in the ordinary course, would have been nugatory if custody had continued until the hearing date. 

The condemnation of what the Magistrate referred to as "horrendous actions on the day...a terrible incident of road rage" is totally justifiable.  Although Mr Green might, in hindsight, regret having asked Mr Niceforo to stop, he cannot be criticised for having done so.  Citizens ought to be able to deal with each other for purposes of obtaining details after accidents and the like in safety - without coming under any risk of being physically attacked.

The findings of fact by the Magistrate were universally in favour of Mr Green but they are not complete.  There are no findings in relation to any impact between the two vehicles and how that might have eventuated.  Even if some verbal threat had come from Mr Green, and there is no real basis in the circumstances for proceeding on that assumption, that would not have justified Mr Niceforo's resort to physical force.

The conduct by him is all the more reprehensible given that he is a professional driver, much more likely than the rest of us to be driving in traffic.  One would think he would appreciate, more than most, the necessity of keeping a cool head even when the actions of others are perceived as frustrating.

The comparable sentences which Mr Hungerford-Symes for the respondent places before the Court, Paul Anthony Jones [2003] QCA 474 and Tufuga and Kepu [2003] QCA 171 support the sentence under appeal.

...

HIS HONOUR:  Mr Bowler is correct that they appear to be more serious in that the complainant suffered more severe injury.  The complainant in Jones was hospitalised for a month although he recovered, fortunately.  That may have been so also in the other case which has the aspect of offenders acting in company and also the aspect of associated property damage being inflicted by the offenders.

Mr Bowler has referred the Court to other cases which indicate that a lighter sentence would be in range, including one suspended at a very early stage, if not wholly.  Those are not necessarily road rage cases.  A number involve "domestic violence"; in particular Taylor [2000] QCA 311.

Notwithstanding the different nature of the offences from some points of view, the circumstances have similarities as well, in that there is totally unjustifiable resort to more or less extreme force against a complainant who may be relatively helpless, whose actions do not in the least justify it.

The basic underlying sentence of nine months' imprisonment, suspended after three months, is reflected in a number of the appeals Mr Bowler has relied on; in those the sentence was typically reduced.

Mr Niceforo has no criminal history.  I have referred to the useful occupation which he pursues, I infer on his own account, so that disruption by imprisonment may well be financially ruinous, depending on the circumstances.  Mr Niceforo is with a partner, but she and he do not yet have children.  He is in his mid-30s.

He suffers from a chronic complaint of prolapsed haemorrhoid, which in an affidavit used to obtain bail, he referred to as twisted bowel.  He describes in his affidavit filed on the 21st of June, the impact of this condition on him:

"5.  Prolapsed Haemorrhoid is a condition where, as I understand it, excess tissue that is stretched or

swollen.  After defecation it prolapses through the anus.  It can cause severe pain and bleeding.

6. I have had this condition for approximately twenty-two (22) years.

7. My treating medical practitioner for this condition practices at the Logan Central Medical Centre in Logan City.

8. A basic description of my condition is that following defection approximately 5cm of the haemorrhoid comes out and must be reinserted.

9. Following defecation I always have a shower to reinsert the part of the organ that has emerged.  I do this in the shower for both lubrication and hygiene reasons.

10. I find that my condition is extremely inconvenient because I must have the facility of a shower to use following defecation.

11. The last time that I defecated and I did not have a shower to use, I ended up with a severe infection wherein I was bedridden for approximately five (5) days and had to take a course of antibiotics. I was in considerable pain and experienced considerable difficulty walking until the infection had cleared up."

At the Court's instigation, Mr Bowler, or his instructing solicitor, arranged for a telephone contact with Dr Lee Steere, who practises at Logan Central Medical Centre, which Mr Niceforo attends.  It was not possible to speak to the treating doctor.  Dr Lee Steere, by reference to practice records, was able to confirm what the appellant asserts.

In the circumstances, Mr Hungerford-Symes understandable reservations about what had been said in Mr Niceforo's earlier affidavit:  "I have a health condition known as twisted bowel, whereby my immune system falls out following defecation and must be reinserted by me", set out in his outline of argument, filed the 9th of May 2005, are beside the point.

There is clearly some element of a lay person's misunderstanding in the impugned statement.  I for one thought it useful to have the confirmation which now comes from Dr Lee Steere.

Mr Hungerford-Symes tendered a letter from a section of Corrective Services, described as "Health and Medical" under the hand of the principal adviser, which confirms, as one would expect, that the Corrective Services' system would be able to accommodate Mr Niceforo in a way that allowed him an acceptable level of dignity.

Mr Bowler is not asserting that the medical condition is such that Corrective Services cannot suitably care for his client.  On the other hand, the conditions of imprisonment would be somewhat more difficult and embarrassing for him than for a person who was perfectly healthy.

That is a factor.  The circumstances in my opinion render applicable the approach taken in Hughes [2003] QCA 460, where, following a sentence which was not challenged, new evidence was collected for the Court of Appeal bearing on the offender's condition, resulting in a successful appeal against sentence and an immediate suspension of the sentence pronounced.

Ordinarily, one would expect material of that kind to be placed before the sentencing court.  Mr Niceforo was self-represented at that stage which, undoubtedly, made the Magistrate's task much more difficult.  The material before the Court indicates it was not the only trial with a self-represented defendant in the list that day. 

Mr Bowler has been submitting that matters may have gone awry because the Magistrate took such an adverse view of Mr Niceforo's conduct in Court, in particular by failing to take the matter sufficiently seriously and engage a solicitor.  It is suggested that critical remarks included in the reasons such as "this arrogant, unsustainable and fanciful defence and version of events given by the defendant today reveals a self-justification for his horrendous actions" bespeak an approach that has or may have led the Magistrate into failing to act with the required fairness towards Mr Niceforo at the sentencing stage.

The prosecutor with the aid of reference to authorities that have not been identified had asked for a sentence of 12 months imprisonment "perhaps suspended after three or four months imprisonment".  He referred to authorities indicating a range to 18 months.  The Magistrate invited Mr Niceforo to make submissions on sentence at page 11 of the reasons, accompanying that with what reads as a criticism of Mr Niceforo's failure to appreciate the seriousness of the matter to the extent that he engage a lawyer.

The Magistrate made an inquiry about Mr Niceforo's work and was given an answer.  He displayed little enthusiasm to see some financial records of the business which were offered.  The Magistrate asked Mr Niceforo, "Is it dawning upon you how serious this is?" which attracted a response that the appellant though he was doing the right thing.  Mr Niceforo would have heard the prosecutor ask for the sentence mentioned but was very likely in a rather stunned condition having just been convicted.  I think it is unfortunate that the Magistrate failed to spell out to him that he faced imprisonment and to inquire of him whether there were reasons he wished to put forward why he ought not to be imprisoned.  Inquiries of that kind might have elicited information about the twisted bowel condition which is, I think, a factor worthy of the Court's consideration.  The Magistrate did not urge on Mr Niceforo the advisability of seeking legal assistance for the purposes of the sentence. 

In the circumstances, I think that the sentencing exercise miscarried.  I do not wish to be critical of the Magistrate who ought to be commended for the detailed way in which he summarised the evidence and its effect and explained his reasoning processes not only in support of the decision to convict but also in support of the sentence.  He noted this was a first offence but emphasised the seriousness of it. 

In circumstances like the present where an offender has been returned to the community on appeal bail and where failure of the appeal may lead to return to custody of someone who has already spent a period there, there are real, practical difficulties.

One of Mr Bowler's authorities was Allison.  It may well have been one of the Police Prosecutor's authorities.  The reference is [2003] QCA 125.  Justice Jerrard said, at paragraph 43 of his reasons which the other members of the Court agreed in:

"Mr Allison was released on bail on 6th December 2002 after serving one-and-a-half months.  He seemed very anxious not to be returned to prison.  I am satisfied a prison sentence was appropriate but also that, since his release on bail, it becomes a little more onerous to return him there.  I consider a suspended sentence now would be a considerable deterrent to him."

The actual custody in Allison was one-twelfth of the sentence which survived appeal.  Allison was convicted by a jury so did not get the consideration which a guilty plea usually brings.  He returned to the community on a suspended sentence but otherwise without obligations to make amends for his offending.  Mr Niceforo has served about a ninth of his sentence. 

I think this is a case in which it is not particularly necessary to go beyond Hughes against a background that I do not think Mr Niceforo had any understanding that he should have made submissions about his medical condition or indeed other matters.  What he did say on sentence was elicited by the Magistrate.

I think those circumstances warrant review of the sentence without having to consider whether it was beyond the range.  In Taylor, and cases referred to in it, the offenders often had prior convictions.

I propose that the appeal be allowed and that Mr Niceforo be sentenced to six months' imprisonment but with the benefit of an intensive correction order.

Now, Mr Niceforo, an intensive correction order is only made with your agreement.  It is like a combination of probation and community service.  For the six months, you are at the beck and call of Community Corrections.  If they direct you to perform community service, you have got to do it.  If they direct you to attend programs, anger management programs and that sort of thing, you might have to do it.  They even have the right to direct you to attend a live-in program and that is done with people who have got drug problems and that sort of thing.  I do not anticipate it in your case but it is not up to me, it is up to Community Corrections to talk to you and assess you and see what they think might be a good idea to recommend for you.

There is a ceiling on the amount of interference with your life that an intensive correction order can involve.  That is 12 hours a week.  It may not necessarily be as high as that.  Community Corrections can be expected to give a very high priority to people keeping their work going.  If you end up on an intensive correction order and it is compromising your ability to run your business, you can always approach the Court to get the Court to look at things again.

They have got the right to approach the Court if you are not doing the right thing under an intensive correction order; so have Mr Hungerford-Symes' people.  So, it is always kept reviewable for the six months that it runs for.

As well as the things I have mentioned, you might be required to report to Community Corrections for interview or receive a visit from them wherever you are living.  You have got to keep them advised of where you are living and working, any change in those.  You cannot leave the State without their consent.  You are given instructions by Community Corrections.

The whole purpose of an intensive correction order is to keep someone who is sentenced to imprisonment in the community doing useful things, but it is a gaol sentence in principle.  If you do not do the right thing, you lose the intensive correction order but you keep the sentence.  I hope you understand the idea of that.

Do you think you need any further information or advice about that from Mr Bowler?

APPELLANT:       No.

HIS HONOUR:       Are you willing to agree to that order being made?

APPELLANT:       Yes, your Honour.

HIS HONOUR:       Well, I make the order that I indicated.

...

HIS HONOUR:       The appeal is allowed.

The sentence imposed by the Magistrate is confirmed to the extent that compensation was ordered.

The Court notes that the compensation has been paid.

Otherwise, the Magistrate's orders are set aside and replaced by an order of imprisonment for six months which is qualified by an intensive correction order.  I allow you to the close of business tomorrow to report to the Logan Community Corrections office.

...

HIS HONOUR:  Mr Bowler, I think that no-one in the community is going to feel upset if there is an additional financial cost to your client for his legal costs in getting the matter resolved.  So I do not propose to order costs.