Motteram v Toohey[2010] QDC 180

[2010] QDC 180

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE RAFTER SC

No 3692 of 2009

BRISBANE 

DATE 14/04/2010

ORDER

HIS HONOUR: I need to give reasons for allowing the appeal, which is what I propose to do, but before I do that, having indicated that I intend to make a probation order, I will explain the requirements of probation to Mr Motteram to ascertain whether or not he would consent to such an order and, depending on that, I will then give my reasons and pronounce the formal orders.

Joseph Stuart Motteram, what I propose to do is set aside the sentence of imprisonment that was imposed in the Magistrates Court and substitute an order of probation for two years. However, I can't make a probation order unless you consent. These are the standard conditions of a probation order so I'll ask you to listen very carefully and after I've read them out I'll ask you whether or not you understand the requirements of probation and whether or not you consent to being placed on probation.

These are the conditions.

1. You must not commit another offence during the period of the order, which will be two years.

2. You must report to an authorised corrective services officer at Brisbane within 48 hours.

3. You must report to, and receive visits from, an authorised corrective services officer as directed by the officer.

4. You must take part in counselling and satisfactorily attend other programs as directed by the authorised corrective services officer during the period of the order.

5. You must notify an authorised corrective services officer of every change of your place of residence or employment within two business days after the change happens.

6. You must not leave or stay out of Queensland without the permission of an authorised corrective services officer.

7. You must comply with every reasonable direction of an authorised corrective services officer.

There will also be a special requirement, namely;

8. That you submit to medical, psychiatric or psychological treatment as directed by the authorised corrective services officer.

The purpose of the probation order is to enable you to be supervised in the community by a probation officer. You will have the support and assistance of a probation officer. However, if you breach any of the requirements of probation, including by reoffending or not reporting as directed, you can be punished for that and that can lead to you being resentenced for these offences for which the probation order is being made.

I propose to make a single probation order as I am permitted to do under section 97 of the Penalties and Sentences Act 1992 in respect of all three offences. So if you breach any of the requirements of the probation order you can be resentenced for all of the offences. Also, you must understand that the probation order can be amended or revoked on application by you or the authorised corrective services officer or the Director of Public Prosecutions.

Joseph Stuart Motteram, do you understand the requirements of probation?

DEFENDANT: Yes, your Honour.

HIS HONOUR: Do you consent to a probation order for two years on those conditions, including the special condition that I outlined, namely that you submit to medical, psychiatric or psychological treatment as directed by the authorised corrective services officer?

DEFENDANT: Yes, your Honour.

HIS HONOUR: All right.

MR LEWIS: Your Honour should possibly direct too that a copy of Dr Bell's report be sent to Probation and Parole.

HIS HONOUR: All right.

...

HIS HONOUR: On the 2nd of December 2009 in the Magistrates Court at Brisbane the appellant pleaded guilty to one charge of assaulting occasioning harm and two charges of wilful damage.

The sentence pronounced by the Magistrate was as follows:

"Having taken these considerations into account I find that a term of imprisonment is appropriate and I sentence you to a term of imprisonment of 12 months. In my view no purpose is served by making you serve that term of imprisonment and I order an immediate release on parole.

I have considered submissions on whether or not a recording of a conviction is appropriate and it is my view that the level of violence is so serious that it is warranted to record a conviction in this case.

I make an order for the payment of restitution in this case to the complainants in the sum of $302.50 and $1,150 within four months of today's date, in default levy and execution against goods."

The Magistrate seems to have imposed a single sentence of imprisonment. The reasons do not state which offences the sentence of imprisonment was imposed in relation to.

At the hearing of the appeal this morning it was accepted by Mr Lewis on behalf of the appellant and Ms Cristaldi on behalf of the respondent that the Magistrate seems to have imposed a global sentence. It is plainly erroneous to do so when imposing a sentence of imprisonment. It is necessary that a sentence of imprisonment be imposed in respect of each offence when a sentence of imprisonment is being imposed: see
R v Parker [2007] QCA 22.

The sentence of imprisonment is endorsed on the Bench charge sheet relating to the offence of assault occasioning bodily harm. However, the restitution orders are also endorsed on that Bench charge sheet when they clearly related to the charges of wilful damage. There is no endorsement on the Bench Charge Sheets relating to the wilful damage offences.

By notice of appeal filed 18 December 2009 the appellant appeals against the sentence on the grounds that the Magistrate imposed sentence on an incorrect factual basis and that the sentence is manifestly excessive.

At the hearing of the appeal this morning Mr Lewis on behalf of the appellant sought and was granted leave to add the following additional grounds, namely that the Magistrate erred in failing to advise the parties that she regarded the appellant's psychiatric treatment as inadequate and in not giving the applicant a proper opportunity to be heard on the matter, and also that the Magistrate erred in not giving sufficient weight to the mitigating factors.

The appellant was 25 years old at the time of the offences. He had one prior offence on his criminal history. The offence was obstructing a police officer, for which he was fined $200 in the Brisbane Magistrates Court on 20 September 2007. A conviction was not recorded.

The facts are helpfully set out in the appellant's written outline of submissions at paragraphs 3 to 8. Those facts are not disputed by Ms Cristaldi on behalf of the respondent. The facts are as follows.

At the time of the offences on 8 August 2009 the appellant and the complainant in respect of the assault offence were involved in a relationship. They had both been drinking heavily at the appellant's address before they went to a local hotel to purchase more alcohol. An argument developed between them over the key to the unit in which the appellant was then living.

The complainant's recollection of the assault is somewhat limited. She said that the appellant grabbed her by the hair and attempted to push her down some internal stairs of the unit complex and that he then slammed her head against a brick wall and held his left arm against her throat. The police were called to attend the disturbance and as they alighted from the police vehicle the appellant approached them and stated "I kicked her in the head. There you go, all right?  Please arrest me."

The complainant suffered the following injuries: a large lump to the right side of her forehead above her right eye which involved a cut above the eyebrow that required stitches and a large lump to the right side of her head at the back. After the assault the appellant kicked the front glass door to the unit complex. Some time later he kicked what was described as a glass frame at a laundromat causing it to smash.

The appeal was heard as a matter of urgency because the appellant's parole was suspended for a period of 28 days and he was taken into custody yesterday. There was an approach made to the Registrar of the Court yesterday to have the matter heard as quickly as possible and the matter was listed for hearing today.

At the hearing of the appeal Mr Lewis sought and was granted leave to tender a psychiatric report from Dr Robert Bell dated 14 April 2010. The report has been most helpful.

The appellant contends that the Magistrate sentenced the respondent on the erroneous basis that the appellant kicked the complainant twice;  once to the back of the head and once to the face. The respondent accepts that the Magistrate erred in this respect. The appellant also contends that the Magistrate erred in commenting that "In my view, one month consultations with a psychiatrist is not adequate given the issues that you face and the level of violence that occurred on that evening.", without alerting counsel for the appellant to the fact that her Honour was of that view. It is contended that this is a denial of procedural fairness.

However, it must be observed that during the course of submissions before the Magistrate her Honour did state to counsel for the appellant that she was concerned that the appellant's attendances at the psychiatrist weren't frequent enough and I pointed that out to Mr Lewis. He indicated that that ground of appeal was not being pressed and, in fairness to Mr Lewis, he was not the author of the written outline of submissions.

I suppose the Magistrate was indicating in the remark to which criticism is directed that the appellant required more regular consultations with a psychiatrist. However, it must be observed that there was no medical evidence before the Magistrate that justified that view. As I have said at the hearing of this appeal there is a helpful report from Dr Bell that indicates that the appellant will be having ongoing psychiatric treatment.

There was a helpful letter before the Magistrate written by the appellant's father. That letter states as follows:

"Joseph has had a troubled life over the last 12 years starting with his involvement with drugs when he was a student at Villanova College at 13 years of age.

He has been diagnosed with schizophrenia and depression and he has been under the care of a psychiatrist, Dr Michael Beech, since he was 13 years old.

He has a long history of drug and alcohol abuse and he has been hospitalised on a number of occasions, both voluntarily and involuntarily, at various hospitals including the Princess Alexandra, Royal Brisbane and Toowong Private Hospital because of his mental illness.

He is currently prescribed 2 different anti-psychotic medications, Solian and Abilify, and an antidepressant, Cymbalta, and remains under the treatment of Dr Beech.

After the incidents that occurred on 8 August 2009 he has realised that he needs additional assistance to deal with his drug and alcohol problems and he has been referred to Dr Robert Bell, a psychiatrist, who specialises in drug and alcohol addiction. I have taken Joseph to 2 consultations with Dr Bell and his next appointment with Dr Bell is on 7 January 2010. Joseph was initially unable to see Dr Bell because he had closed his books to new patients and he had been referred to Dr Kazlauskas at the Belmont Specialist Centre, however after the initial consultation Joseph wasn't satisfied that he would be able to establish a satisfactory relationship with that doctor.

Joseph struggles with his mental illness and the side effects of his medication. In April 2009 he was admitted to the Royal Brisbane Hospital for treatment after a psychotic episode when he attempted to commit suicide by taking an overdose of more than 50 lithium tablets that he was being prescribed at that time. Dr Beech has varied Joseph's medication both before and after the episode in April 2009 to try to find a combination of medications that are suitable for Joseph and that will allow him to live a more normal life.

Joseph continues to make the best of his situation but finds it difficult to deal with his mental illness."

As I have mentioned, there has been a helpful report of Dr Bell tendered at the hearing of the appeal this morning. Dr Bell states that the appellant suffers with severe mental illness complicated by multiple substance abuse. His treatment has been complex and necessitated the involvement of multiple specialists and services. Dr Bell is of the view that the appellant has responded positively to treatment and he is optimistic that the appellant can achieve abstinence.

It seems likely that the suspension of the appellant's parole has been due to a positive urine test that was delivered, so his treatment has not been entirely successful at this stage. However, in light of the history it seems to me likely that his rehabilitation and goal towards abstinence will take some time.

It is also contended on behalf of the appellant that the Magistrate failed to give sufficient weight to the mitigating factors. The mitigating factors included the appellant's age; as I mentioned he was 25 years old at the time of the offences, his lack of any relevant criminal history, his plea of guilty and remorse. I note that he made an apology to the complainant in respect of the assault charge. It was also an important mitigating factor that the appellant was obtaining psychiatric treatment.

The respondent concedes that the sentence is manifestly excessive and that a community based order is appropriate. That concession was correctly made in my view. Mr Lewis contended also that convictions should not be recorded.

Ms Cristaldi on behalf of the respondent pointed out that there were serious aspects to the assault that perhaps warranted the recording of a conviction in respect of that charge, although she accepted that it was within the Court's discretion not to record convictions in the circumstances.

As to that aspect of the matter I am required to have regard to the nature of the offences, the appellant's character and age and the impact of recording convictions on his economic or social well-being and chances of finding employment. The assault offence is serious. The wilful damage offences are less serious.

Having regard to the factors to which I must have consideration outlined in section 12(2) of the Penalties and Sentences Act 1992 I have decided that convictions should not be recorded in respect of any of the offences.

I have already mentioned the fact that all orders pronounced by the Magistrate were recorded on the Bench charge sheet relating to the offence of assault occasioning bodily harm. There is no endorsement at all on the Bench charge sheets relating to the charges of wilful damage.

I was concerned that perhaps the Bench charge sheets should be rectified so that at least the restitution orders, as they were called by the Magistrate, should have been endorsed on the appropriate wilful damage files. However, Mr Lewis informed me that the restitution orders have been paid to the State Penalties Enforcement Registry and so the occasion does not arise to correct the paperwork in that regard.

I propose to make a single probation order in respect of all three charges, as I am permitted to do by section 97 of the Penalties and Sentences Act 1992.

The formal orders, therefore, are as follows:

1. Allow the appeal.

2. Set aside the sentence of 12 months' imprisonment and the order recording convictions imposed in the Magistrates Court at Brisbane on the 12th of December 2009.

3. Instead, in respect of the offences of assault occasioning bodily harm and the two charges of wilful damage, order that:

2. (a)
   convictions not be recorded; and

2. (b)
   that the appellant be placed on probation for two years and that he must comply with the requirements set out in section 93(1) of the Penalties and Sentences Act 1992 and report within 48 hours to an authorised corrective services officer at Brisbane.And the additional requirement that the appellant submit to medical, psychiatric or psychological treatment as directed by the authorised corrective services officer.

4. I direct the Registrar to provide a copy of Exhibit 1, the report of Dr Robert Bell, psychiatrist, dated 14 April 2010 to the Probation and Parole Office.

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