Commissioner of Police v Peneueta (No 1)
[2011] QDC 370
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- Unreported Judgment
- Commissioner of Police v Peneueta (No 1)[2011] QDC 370
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Commissioner of Police v Peneueta (No 1)[2011] QDC 370
Commissioner of Police v Peneueta (No 1)[2011] QDC 370
DISTRICT COURT OF QUEENSLAND
CITATION: | Commissioner of Police v Peneueta (No 1) [2011] QDC 370 |
PARTIES: | COMMISSIONER OF POLICE (Appellant) v VINCE PENEUETA (Respondent) |
FILE NO: | 37/2011 |
DIVISION: | Appeal |
PROCEEDING: | Appeal against sentence |
ORIGINATING COURT: | Magistrates Court, Beenleigh |
DELIVERED ON: | 21 December, 2011 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 24 November, 2011 |
JUDGE: | Dearden DCJ |
ORDER: | 1. Appeal granted.
|
CATCHWORDS: | APPLICATION – where respondent not present within Australia – whether deemed service is valid – where evidence demonstrates lack of receipt by respondent APPEAL – assault occasioning bodily harm – conviction and fine – contravene direction or requirement of police officer – made to pay compensation, fined and no conviction recorded – whether sentence manifestly inadequate |
LEGISLATION: | Acts Interpretation Act 1954 (Qld) ss. 39 & 39A Justices Act 1886 (Qld) ss. 222 & 225 |
CASES: | Fancourt & Anor v Mercantile Credits (1983) 154 CLR 87 Queensland Police Service v Tobane [2010] QDC 222 R v Allison [2003] QCA 125 R v Dwyer [2008] QCA 117 R v Kingston [2008] QCA 193 R v Kite [1999] QCA 162 R v Taylor [2000] QCA 311 R v Tupou; ex-parte Attorney General (Qld) [2005] QCA 179 |
COUNSEL: | B Power for the appellant No appearance for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant No appearance for the respondent |
Introduction
- [1]The respondent, Vince Peneueta, pleaded guilty on 30 March 2011 in the Beenleigh Magistrates Court to one charge of assault occasioning bodily harm and one charge of contravening a direction or requirement of a police officer. The respondent was globally fined the sum of $800 in respect of both offences, and ordered to pay compensation of $1,500 to the complainant. No conviction was recorded for either offence.
Facts
- [2]The complainant in respect of the assault occasioning bodily harm was a 30 year old female, not known to the appellant. On 6 January 2011, the appellant was consuming alcohol with other persons at Fitzy’s Loganholme Nightclub. At 11.50 pm, the appellant was evicted from the nightclub by security guards due to his excessive level of intoxication. The appellant yelled obscenities towards the security guards and walked through the nightclub’s car park.
- [3]As the appellant walked through the car park, he approached three females (including the complainant) and without warning or conversation of any kind, punched the complainant in the stomach with his fist. This punch caused the complainant to fall over and hit her head on the bitumen surface. The complainant was frightened by this random unprovoked attack and began to vomit.
- [4]Nearby security guards were immediately alerted and the defendant was detained until police arrived at approximately 12.20 am on 7 January, 2011. The appellant was arrested and transported to the police station and the complainant was taken by ambulance to the Logan Hospital. Police spoke to the complainant who said that at no time did she give any permission for the appellant to assault her, she did not feel that she had provoked any assault, the defendant was unknown to her, and she that didn’t say anything prior to the assault.
- [5]The complainant suffered bruising and tenderness to her neck as well as a ringing in her ear and numbness to the left side of her face due to the impact with the bitumen. As a result, the complainant was placed in a neck brace and underwent CT scans to rule out any permanent injury. Shortly before the assault, the complainant had had an operation, and the medical records obtained from the complainant’s doctor indicated that the assault caused a haemorrhaging cyst to form within her abdomen which had required regular check-ups and ultrasounds. The medical opinion was that the injuries were very serious, but did not amount to “grievous bodily harm”.
- [6]At 4.30 am, police transported the appellant to the watch house and spoke to him. Upon being cautioned, the defendant stated that he was “wasted” and did not remember what happened after being asked to leave Fitzy’s Nightclub. The appellant claimed that he did not remember the complainant and did not remember hitting her. The appellant attributed his loss of memory to the amount of alcohol he consumed prior to attending Fitzy’s Nightclub and upon arrival there.
- [7]The contravene requirement charge involved the appellant stating his brother’s name, when taken to the watch house, the falsity of which was not discovered until his fingerprints were taken, and subsequent examination revealed that a false name had been supplied.[1]
- [8]The appellant’s criminal history indicated the following:-
Beenleigh Magistrates Court | 7 February 2010 | Commit public nuisance | No conviction recorded & fined $300 |
Beenleigh Magistrates Court | 16 August 2010 | Failure to appear in accordance with undertaking (on 29/5/2010) | 100 hours community service; no conviction recorded |
Beenleigh Magistrates Court | 16 August 2010 | Wilful damage (on 29/5/2010) | 100 hours community service; no conviction recorded |
- [9]The prosecutor on sentence pointed out that the appellant had received a community based order on 16 August 2010 but was not aware whether or not he had completed that order.
- [10]The prosecutor submitted that a suspended period of imprisonment was “not out of range” or in the alternative, probation and community service. The learned sentencing magistrate indicated a preference for probation.
- [11]The appellant was referred to Community Corrections for an assessment as to his suitability for probation, but the learned magistrate was advised that the appellant had been non-compliant with the community service order imposed on 16 August 2010, had five hours community service still to complete, and Community Corrections recommended that the appellant was not suitable for a community based order.
- [12]In the light of these submissions, the learned magistrate imposed a global fine of $800 and proceeded not to record convictions in respect of both the assault occasioning bodily harm charge and the contravene direction charge. The appellant was also ordered to pay $1,500 in criminal compensation to the complainant, which was referred to the State Penalties Enforcement Registry.[2]
Jurisdiction with Respect to Appeal
- [13]The appellant Commissioner of Police lodged an appeal on 27 April 2011, within the relevant one month time period for lodging an appeal.[3]
- [14]
- [15]The submission on behalf of the appellant is that deemed service pursuant to ss. 39 and 39A of the Acts Interpretation Act is valid, even though the evidence demonstrates a lack of receipt by the respondent.
- [16]The relevant provision of Justices Act (Qld) 1886 s. 222D provides:-
- (1)The relevant registrar must give notice of the appeal to the respondent –
…
- (b)… Within seven days of the filing of the filing of the Notice of Appeal in the District Court Registry.
- [17]Acts Interpretation Act s. 39 provides:
“39 Service of documents
- (1)If an Act requires or permits a document to be served on a person, the document may be served -
(a) on an individual
- (i)by delivering it to the person personally; or
- (ii)by leaving it at, or by sending it by post, telex, facsimile or similar facility to, the address of the place of residence or business of the person last known to the person serving the document; or
- (b)on a body corporate – by leaving it at, or sending it by post, telex, facsimile or similar facility to, the head office, a registered office or a principal office of the body corporate.
- (2)Subsection (1) applies whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.
- (3)Nothing in subsection (1) -
- (a)affects the operation of another law that authorises the service of a document otherwise than as provided in the subsection; or
- (b)affects the power of a court or tribunal to authorise service of a document otherwise than as provided in the subsection.”
- [18]Acts Interpretation Act s. 39A provides:
“39A Meaning of service by post etc.
- (1)If an Act requires or permits a document to be served by post, service -
- (a)may be effected by properly addressing, prepaying and posting the document as a letter; and
- (b)is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.
- (2)If an Act requires or permits a document to be served by a particular postal method, the requirement or permission is taken to be satisfied if the document is posted by that method or, if that method is not available, by the equivalent, or nearest equivalent, method provided for the time being by Australia Post.
- (3)Subsections (1) and (2) apply whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.
- (4)Without limiting subsection (2), the requirement or permission mentioned in the subsection is taken to be satisfied, and is taken always to have been satisfied, for the service of a document if the document is, or was, posted by certified mail provided by Australia Post.”
- [19]In Fancourt & Anor v Mercantile Credits (1983) 154 CLR 87 it was held that there is a distinction between proved failure of delivery (where it can be shown that there was no delivery by post or other means to the services used) and proof of failure of receipt (that is where delivery by the deemed method can be assumed to have occurred, but the recipient did not personally become aware of the service).
- [20]An examination of the court file indicates that a copy of the Notice of Appeal was forwarded to the respondent’s lawyers, George Lawyers, under cover of a letter dated 28 April 2011, but upon advice by that firm to the Registry that they no longer acted for the respondent, a copy of the Notice of Appeal was forwarded under cover of a letter dated 4 May 2011 from the District Court Registry, Beenleigh to the respondent’s residential address, as indicated on the bench charge sheets for the offences of assault occasioning bodily harm and contravening a direction or requirement.
- [21]I am satisfied therefore that postal service of the respondent was sufficient service, and that it was not necessary for the notice of hearing to be served personally on the respondent.[6] It is sufficient that deemed service has occurred, that there has been no proved failure of delivery,[7] and consequently this court is properly seised of the appeal.
Merits of the Appeal
- [22]The assault was serious, unprovoked, and was committed by a young male on a woman in the precincts of licensed premises from which he had just been excluded. The offence was committed on a stranger, in a public place, without any provocation or warning. The very brief submissions made on his behalf indicated that he didn’t “remember hitting this young lady and he does apologise”, and that he was “very – very remorseful.”[8] It is submitted on behalf of the appellant that there was a lack of remorse, demonstrated by the provision of the false name to police, but this submission doesn’t recognise the express remorse provided (presumably on instructions) to the sentencing court by the respondent’s counsel.
- [23]
- [24]At the time the respondent committed the offences subject of this appeal, he was subject to a community service order imposed on 16 August 2010 in respect of charges of wilful damage and failure to appear in accordance with undertaking, and he was in breach of that order, having failed to complete the last five hours of the order.
- [25]In my view, the applicant’s youth and relatively minor criminal history, as well as his expressed remorse through his counsel, were mitigating factors, but must be balanced against the very serious nature of the assault, the significant consequences, and the random nature of the attack on a female stranger in a public place without provocation or warning. In my view, the imposition of a global fine of $800, without a conviction being recorded, for both the assault occasioning bodily harm and the contravene a direction or requirement charge, is manifestly inadequate.[11]
- [26]It is submitted on behalf of the prosecution that, if I am persuaded that the sentence was manifestly inadequate, I should proceed to grant the appeal and, pursuant to Justices Act s. 225 (1) & (2), and remit the matter to the Magistrates Court to proceed according to law, given that the respondent remains absent from the jurisdiction and is subject to an outstanding warrant for breach of his community service order.
- [27]I am persuaded that the sentence was manifestly inadequate. An appropriate sentence in the circumstances would, in my view, have been a period of imprisonment in the range of six to twelve months albeit, wholly suspended or subject to an immediate parole release date.
- [28]Accordingly I order as follows:-
- Appeal granted.
- That part of the sentence imposed by the learned Magistrate at the Beenleigh Magistrates Court on 30 March 2011 by which the Magistrate ordered globally that the respondent be “convicted and fined $800 and no conviction recorded” in respect of the offences of assault occasioning bodily harm and contravene a direction or requirement, be set aside.
- The proceedings are to be remitted to the Magistrates Court to proceed according to law in respect of the re-sentence of the respondent.
Footnotes
[1] Sentencing submissions, pp. 1-3 - 1-4.
[2] Decision, pp. 2-7.
[3] Justices Act (Qld) 1886 s. 222(1).
[4] Exhibit SJDN5, Affidavit of Sarah Neale, sworn 19 July 2011.
[5] SJDN1, Affidavit of Sarah Neale, sworn 11 November 2011.
[6] Queensland Police Service v Tobane [2010] QDC 222, per McGill DCJ, para 3.
[7] Fancourt & Anor v Mercantile Credits (1983) 154 CLR 87.
[8] Sentencing submissions, p. 1-5.
[9] R v Tupou; ex-parte Attorney General (Qld) [2005] QCA 179.
[10] R v Dwyer [2008] QCA 117 at para 6.
[11] See for example R v Allison [2003] QCA 125; R v Kite [1999] QCA 162; R v Kingston [2008] QCA 193; R v Taylor [2000] QCA 311.