Finch v Bailey[2008] QDC 286

HIS HONOUR: This is an appeal restricted to the compensation component of a Magistrate's sentence imposed on the 17th of March this year at Southport in respect of an offence of assault occasioning bodily harm. That occurred after a trial. The outcome was unfavourable for the appellant. She was sentenced to perform 200 hours community service with no conviction recorded, and also ordered to pay restitution of $14,179, which must have been under section 35 of the Penalties and Sentences Act.

Both the appellant and the complainant were young women out late at night, presumably drinking. In the course of an altercation in which the appellant's assertions of being provoked were unavailing, she punched the complainant, knocking one of her front teeth out. Is that right, was the front tooth knocked out?

MS OVERELL: One tooth was completely dislodged.

HIS HONOUR: Yes, but which was which?

MS OVERELL: The front one was completely knocked out.

HIS HONOUR: Yes, that's what I thought.

Knocking the front tooth out and pushing out of place the tooth beside it. An up to date treatment summary from the relevant dental practitioner suggests that he's determined it may be appropriate to keep a watch on the second "front tooth" but nothing concerning has been detected there yet. Significant treatment has occurred of the two teeth first referred to, and there's been some further treatment and cost incurred as the up to date material suggests. I think I have already indicated that this appeal relates only to the compensation component. Ms Overell, in her submissions for the respondent, has referred the Court to authorities indicating that the award is not out of line with some that may be found in civil cases such as Gray v State of Queensland [2000] QSC 465; and Dinsdale v Morse [2003] QDC 338.

The complainant is seriously disadvantaged in seeking some financial redress for the wrong the Magistrate found was done to her, by the matter having been dealt with summarily rather than on indictment. If there had been a conviction on indictment, the Criminal Offence Victims Act 1995 (COVA) would have applied, and the complainant could have expected to look to the resources of the State to have the compensation order under the Act satisfied.

There would appear to be little prospect of the Magistrate's order of $14,179 being satisfied, given that the appellant, who has had no previous trouble with the law, is employed for modest remuneration casually as a waitress. The complainant's financial circumstances appear to be similar. She can ill‑afford the expensive dental treatment that would be appropriate to secure the optimum outcome, whereas the compensation available under the COVA is capped by the combination of the scheme maximum of $75,000, and the maxima as set out in the various schedule items.

For purposes of section 35, there is no cap. I accept from MsOverell that in considering compensation that might be awarded under section 35 as part of a sentence - see Ferrari [1997] QCA 73 - courts from time to time would refer to the COVA for guidance as to what amounts might be appropriate. That certainly occurred here, although the Magistrate, of course, was not applying that legislation, which I suppose Magistrates are never required to do directly.

On the sentence proceeding, the Police Prosecutor established to her Honour that there had been total dental expenses actually incurred to date by the complainant of $2,179. That is the first component of the compensation award made. The second was a "global" amount of $10,000 for loss of or damage to teeth and the third, $2,000 for pain and suffering; this last figure being suggested by the Police Prosecutor, and accepted.

The Prosecutor's suggestion for the largest component was comprised of two components, which acknowledged the appropriate COVA provision, that might be referred to by way of analogy, as one allowing one per cent to 12 per cent of the scheme maximum for loss of or damage to teeth. For the loss of one front tooth, $9,000, being 12 per cent, was suggested. For the damage to the other "front tooth" (which I interpolate may indicate some confusion as the dentist's chart suggests it was not a "front tooth" proper being referred to), the Prosecutor's suggestion was that six per cent of the scheme maximum, namely $4,500, be allowed.

It can thus be seen that the Magistrate allowed a discount of $3,500, and arriving at the global amount of $10,000. While I accept that there is no limit to the compensation or restitution that can be awarded under section 35, it cannot be ignored that the "global" award of $10,000 could not possibly be supported under the COVA, given that the maximum, which would apply even if all teeth were lost, would be $9,000. It would not have been open under the COVA to allow anything additional for pain and suffering, or for the dental expenses actually incurred. A complainant desirous of recovering under those heads could institute civil proceedings, or as happened here, perhaps seek the prosecution's cooperation in having her loss recognised and accommodated under section 35.

I accept from Ms Overell that the loss of or damage to particular teeth can be more significant than loss or damage to other teeth. One would expect greater concern to be attached to front upper teeth because of their prominence cosmetically. Apropos the COVA, it might be noted that since it was not the foundation for any application for compensation, no attention was paid to the possibility of there being components for mental or nervous shock, or other injuries that might, as a matter of pure speculation, have been inflicted, such as a laceration to the mouth.

Mr Hamlyn-Harris's researches, indeed recollections of some of his own forensic exercises, have unearthed a number of instances of orders under section 35 receiving attention in the Court of Appeal. For statements of principle he relied on the judgment of McPherson JA with whom White J agreed in Ferrari at pages 8 to 9, where his Honour said:

"To my mind the application raises the much wider question of the proper basis of liability for the purpose of section 35(1)(b). The Act provides little or no assistance on the question. However, if one thing is clear about a compensation provision like section 35(1), it is that an order under it, although part of the 'sentence' or judgment, is not a form of punishment. See R v. Lovett [1870] 11 Cox C.C. 602; R v. Muckan [1975] Qd.R. 392; R v. Braham [1977] V.R. 104; R v. Civoniceva [1983] 2 Qd.R. 633; R v. Stieler [1983] 2 Qd.R. 573.

Although non of those decisions was given under section 35(1) of the Penalties and Sentences Act and some of them related to compensation for personal injury not property damage, the similarities in the relevant legislation are sufficiently close for the same principle to apply to that provision. Section 35(1)(b) is, for the most part, a rescript of section 685A of the Criminal code, which was the provision considered in the Queensland authorities referred to.

The general purpose of the legislation is to provide a summary and inexpensive method of compensating a person for injury or damage to person or property. See R v. Braham [1977] V.R. 104, 108. It is not intended to cater for cases involving complicated or extensive inquiry or investigation; but, with that qualification, it provides a useful means of avoiding the need to institute separate proceedings to establish civil liability: R v. Braham, at 107, 110; R v. McDonald [1979] 1 N.S.W.L.R. 451, 459.

The authorities are almost uniformly at one in holding that criminal compensation awards are, subject necessarily to any legislative provision to the contrary, governed generally by the ordinary legal principles of civil liability and assessment for loss or damage of that kind: see R v. McDonald [1979] 1 N.S.W.L.R. 451, 459-461; R v. Stieler [1983] 2 Qd.R. 573, 575; McClintock v. Jones [1995] 79 A.Crim.R. 238; Stinson v. Webb-Myer [1995] 79 A.Crim.R 502.

These were all cases of compensation for personal injuries; but in R v. Braham [1977] V.R. 108, 112-113, the Full Court of Victoria appears to have regarded civil liability principles as equally applicable to compensation for property loss. The Court left open the question of whether contribution between tortfeasors was available under the equivalent of section 5 of the Law Reform Act 1952 (Qld.), while inclining to the view that an order for contribution could be made in respect of compensation awarded in criminal proceedings.

It is, in any event, difficult to imagine what principles of civil liability were not applied. It would presumably by necessary to develop a completely new system of law or principles for determining claims for compensation under provisions like section 35(1)(b). If, on the other hand, those principles are applied here, it is difficult to say that the Magistrate had sufficient material before him to require the applicant to pay compensation."

Some very large compensation orders have been made by the Court of Appeal, notably in Sheppard [2000] QCA 57, where it occurred by consent. The Court of Appeal has made a compensation order in association with allowing an appeal, so that an offender would not have to serve actual custody, in Casiotis [2006] QCA 85. It has similarly made an order identical in an amount to that imposed by a Sentencing Judge who erred by incorporating it in a probation order as a condition in Hughes [1998] QCA 61.

The Court of Appeal allowed compensation orders to stand in Sanders [2007] QCA 16, and Rockley v Braithwaite [1995] QCA 54. In McDonald [1996] QCA 250 an appeal against sentence was allowed to the extent of substituting $1,000 for $2,000 as the amount of compensation for assault occasioning bodily harm.

The Court of Appeal said:

"No detail of the pain or treatment was placed before the Magistrate after the conviction was entered, and when informed that the complainant had lost $528 in wages because he was away from work for three days as a result of the injuries, the Magistrate indicated that he would not take that loss into account because no evidence had been given concerning it earlier.

Of course, economic loss caused by the assault could properly have been taken into account in assessing compensation under section 35(1)(c) of the Act.

On such limited information as the Magistrate permitted himself to consider, $2,000 seems excessive compensation; $1,000 appears more appropriate.

In Duncan 2006 QCA 46, a compensation order under section 35 in the amount of $30,000 was set aside by the Court of Appeal. At paragraph 44 Muir J, as his Honour was then, with the agreement of the President and Gerard JA, said, "Default under the order could in theory at least expose the appellant to a lengthy term of imprisonment.

Default in this case would appear to be virtually inevitable as the evidence revealed that the appellant's total assets were worth about $4,000. The terms of imprisonment imposed meant that the appellant was deprived of any real prospect of paying the further sum of $26,000 within six years. That in itself strongly suggests that sentencing discretion miscarried. In my view, the compensation order was manifestly excessive and should be set aside."

In this case I am of the view that the sentencing discretion likewise miscarried. The appellant's legal representative was not Mr Hamlyn-Harris, and seemed somewhat confused about the compensation aspect. He certainly did nothing by way of indicating his or the appellant's agreement to any particular order. Not only did the Prosecutor's written "restitution for Sandi Louise Ross" document, which Mr Hamlyn-Harris didn't have, although it appears in the Court file, misrepresent what the COVA itself would authorise, and arguably and inappropriately invite her Honour to add other components to the COVA amount - the Prosecutor, in oral submissions, clearly addressed the Magistrate to similar effect, telling her, at page 17 of the transcript, that "A loss of one front tooth ranges between one per cent to 12 per cent, depending on the seriousness of the damage."

Given that the front tooth was replaced, it was suggested that 12 per cent was possibly too high; that the prosecution would seek about half of that, namely five to six per cent. The Prosecutor then turned to the second tooth, which, "was just bent backwards and was able to stay - remain within the mouth. That's six per cent." Then there was reference to the extensive root canal surgery the complainant had undergone, "quite painful work", and general reference to pain.

Doing the best I can, I think the compensation amount ought to be $5,000, which I would observe is probably in excess of what the Court could award under a COVA application; however, I don't think it can be regarded as inappropriate in the larger scheme of things for purposes of section 35. I don't profess to have any understanding of the SPER system to which the appellant has been invited to refer the compensation.

The explanation I've been given by Ms Overell is that that would save the appellant from having to serve custody in any event in respect of this compensation, although she may have the right to elect to serve time in custody, rather than continue to pay instalments.

I am setting aside the Magistrate's order for compensation and replacing it with an order for compensation in the amount of $5,000. I ought to record that Mr Hamlyn-Harris's submission was that only the established dental costs that the complainant has had to bear ought to form part of the compensation amount. I don't think there is anything that requires section 35 to be limited in that way. So far as the amount is concerned, although in particular cases it might well be appropriate to do that, I have not been prepared to act on round sum amounts, either $4,000 or $4,600, depending on what the second digit is in respect of possible future replacement of affected teeth. That seems to me something too speculative for the Court to be applying.

MR HAMLYN-HARRIS: Could I just raise the question of time to pay, your Honour?

HIS HONOUR: Yes, what would you seek?

MR HAMLYN-HARRIS: Would your Honour consider making it within 12 months of today?

HIS HONOUR: She might be able to get $5,000? Well, I will certainly allow 12 months, yes.

MR HAMLYN-HARRIS: And, your Honour, would that date from today given the-----

HIS HONOUR: Yes, 12 months from today.

MR HAMLYN-HARRIS: Thank you, your Honour.

HIS HONOUR: Unless you're urging that something be paid sooner.

MS OVERELL: Your Honour, you could make it, in default, refer to SPER as part of the order if the money's not paid by the 12months.

HIS HONOUR: Will I say that then?

MR HAMLYN-HARRIS: Yes, that would be appropriate, yourHonour.

HIS HONOUR: In default refer to SPER.