DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant, Natasha Stampfli (a Queensland police officer) appeals from the decision of the learned magistrate at Beenleigh on 28 February 2014, finding the respondent Brian Paul Hance, not guilty of common assault; and further appeals from the sentence imposed by the learned magistrate in respect of a second charge of serious assault, on which the respondent was sentenced to a three month good behaviour bond with a recognisance in the amount of $100. The appellant also appeals in respect of an award of $1,500 in costs made in favour of the respondent.

2. [2]
   The first ground of appeal (in respect of the respondent’s acquittal on the common assault charge) was withdrawn by the appellant, given that the District Court in its appellate jurisdiction may only deal with a sentence, or an order for costs, in respect of an indictable offence dealt with summarily.^[1]

Grounds of appeal

3. [3]
   The appellant submits that the sentence imposed by the learned magistrate in respect of the serious assault charge was “manifestly inadequate”, and submits further that the learned magistrate erred in the award of costs to the respondent.

Background

4. [4]
   The respondent appeared for trial before the learned magistrate at Beenleigh on 6 and 14 February 2014 in respect of a common assault on Sharon MacRae and a serious assault on Eleanor Roosen (both offences are alleged to have occurred on 28 July 2013 at Park Ridge.)  The learned magistrate delivered a decision on 28 February 2014, acquitted the respondent of the charge of common assault on Sharon MacRae, convicted the respondent of the serious assault of Eleanor Roosen and sentenced the respondent to a three month good behaviour bond with a recognisance in the amount of $100. The learned magistrate ordered the appellant to pay the respondent’s costs, caped at $1,500.

5. [5]
   The events which gave rise to the charges occurred at the entrance of a gated community, Greenbank Gardens, 3651 Mt Lindsay Highway, Park Ridge, where the complainant Eleanor Roosen lived. Ms Roosen had been out shopping with her daughter Sharon MacRae, a serving Queensland police officer, but off duty at the time of the events giving rise to the charges. Ms MacRae was driving a small Hyundai i30 motor vehicle. Ms Roosen was 70 years old at the time of the alleged offences.

6. [6]
   Ms Roosen’s gate controller did not work to open the gated community’s entrance, so Ms Roosen got out of the car and asked the persons in the car behind if her daughter’s car could follow that car into the complex. Ms MacRae reversed her car to enable the car behind to use the gate controller. The respondent, in a blue Hyundai, came up beside Ms MacRae’s vehicle outside the gate, and then followed the first car through the gate, in turn followed by Ms MacRae’s vehicle. The respondent stopped his car about 10 metres inside the gate. Ms MacRae went to drive around that vehicle. The respondent got out of his vehicle and confronted Ms MacRae, yelling abuse.

7. [7]
   The respondent attempted to strike Ms MacRae (who was seated in the driver’s seat) by reaching through the front passenger window of her car, but did not make contact. However, as he pulled his arm back, he struck Ms Roosen, causing bruising to her face.^[2] The respondent, in a record of interview^[3] stated that he lent inside the car, and said to Ms MacRae, “You should shut-up”.

8. [8]
   The learned magistrate found (in respect of the common assault of Ms MacRae) that the respondent had made a pointing or punching motion towards Ms MacRae, but at that time had no ability to effect a physical connection with her, and was therefore not guilty of common assault on Ms MacRae.

9. [9]
   The learned magistrate, however, found that the respondent, after moving his left hand around in either a punching or pointing motion at Ms MacRae, whilst swearing at her, then withdrew his hand from the vehicle and in doing so, struck Ms Roosen on the right side of her face. The learned magistrate was satisfied there was insufficient evidence to show that the respondent intended to hit Ms Roosen in the face, in particular having regard to an immediate apology by the respondent. However, the learned magistrate was satisfied that the hitting of Ms Roosen in the face was a foreseeable consequence of the respondent’s act of pointing or punching with his hand through Ms Roosen’s window, in the confines of a car. The learned magistrate held that the defence of accident did not apply; and that an ordinary person would reasonably foresee hitting Ms Roosen as a possible consequence of the act of pointing or punching with his hand, in the confines of the motor vehicle, through Ms Roosen’s window. Accordingly, the respondent was found guilty of the serious assault of Ms Roosen (who was at the time a person aged 60 years or more).^[4]

10. [10]
    The learned magistrate, in sentencing the respondent, stated:

“Effectively, my findings are and my observations are that you were probably behaving badly, and Ms MacRae was behaving badly too. And the person, the meat in the sandwich has been her mother. And I take into account the fact that you’ve got no history, and you’re an older person, and I accept that it was effectively an accident, but you are not afforded a defence under the [Criminal] Code of accident, because I’ve found that the action was foreseeable, and I’ve found that you had extended your hand into the car, and as a result of that, Ms Roosen was slightly injured.”^[5]

11. [11]
    Having reached those conclusions, the learned magistrate went on to state:

“So what I’m going to do is impose a good behaviour bond under s 19 of the [Criminal] Code, that you be (sic) in the sum of $100, and you be of good behaviour of period of three months. … So what that means is, before you leave here today, you go out. You sign that good behaviour bond. As long as you don’t commit any offences in the next three months, and I’m sure you won’t, you won’t have to pay the $100, and you won’t have to come back to court. That’ll be the end of the matter.”^[6]

12. [12]
    An application was then made on behalf of the respondent seeking costs. It was asserted from the bar table that a submission had been made to the prosecution that both charges should have been discontinued in October 2013, which was rejected, and (without any supporting documentation) that total costs, including counsel’s fees, were in the order of $10,000.

13. [13]
    After hearing submissions by the prosecution, the learned magistrate indicated that she was “certainly not going to make an order for $10,000”, but could make an order for $1,500.^[7] After hearing submissions in reply from the prosecution, the learned magistrate stated “I think I could make an order for $1,500 in relation to the common assault, having regard to what [the respondent’s legal representative] said to me about how much he’s incurred.”^[8]

The law

14. [14]
    As Margaret Wilson AJA stated in Tierney v Commissioner of Police [2011] QCA 327:-

“An appeal from a Magistrate’s Court to the District Court pursuant to s. 222 of the Justices Act 1886 (Qld) is a rehearing on the evidence given at trial and any new evidence adduced by leave. In other words, it involves a review of the record of proceedings below, subject to the District Court’s power to admit new evidence. To succeed, an appellant needs to show some legal, factual or discretionary error.”^[9]

Submissions – sentence appeal

15. [15]
    It is submitted on behalf of the appellant that the sentence imposed on the respondent for the serious assault was manifestly inadequate.

16. [16]
    No submissions were made by the police prosecutor at sentence in respect of penalty. The learned magistrate was advised that the respondent did not have a criminal history.^[10]   The respondent’s legal representative submitted that the respondent was born in 1945; was married; and had been an Australian resident since 1976. At this stage, the learned magistrate sought no further submissions, described the complainant, Ms Roosen, as being “slightly injured”, and proceeded to impose a good behaviour bond for three months with a $100 recognisance.

17. [17]
    It is submitted by the appellant that, in the context of the respondent remonstrating with Ms MacRae for cutting him off and then causing an injury to Ms Roosen, arising out of a “road rage incident”, with no remorse (given his record of interview and the conduct of a trial), the sentence was manifestly inadequate.

18. [18]
    It is submitted on the other hand by the respondent, that, in contrast to the sentence in R v Dizo [2008] QCA 89 (a sentence of three months’ imprisonment wholly suspended for a 71 year old applicant convicted of common assault at trial arising out of a motor vehicle accident), the circumstances in this particular case justified the penalty imposed. In particular it was stressed on behalf of the respondent that:

1. The police prosecutor had submitted that the blow to the face of the complainant was not deliberate;^[11]

2. The learned magistrate found that the respondent did not intend to strike the complainant, Ms Roosen’s, face;^[12]

3. The respondent was convicted of the serious assault solely because the application of force to the complainant, Ms Roosen’s, face was a reasonably foreseeable consequence of the respondent pointing at, or threatening to punch, the complainant’s daughter Ms MacRae^[13]; and

4. The learned magistrate concluded that this was an incident in which “… two people had been behaving badly, and the meat in the sandwich is the lady who ended up being injured”^[14] - by inference the learned magistrate considered Ms MacRae to be at least partly responsible for the series of events resulting in the unintentional blow to Ms Roosen’s face and accordingly that only a nominal penalty should be imposed.

Discussion

19. [19]
    With respect, given the learned magistrate’s finding that the minor injury to Ms Roosen occurred as an unintended but foreseeable consequence of the respondent pointing his finger inside the car at Ms MacRae (ie. a non-accidental but unintentional assault), then it was clearly within the learned magistrate’s sentencing discretion to impose an effectively nominal sentence, given the respondent’s age and lack of criminal history.

Conclusion – sentence appeal

20. [20]
    In those circumstances, I am not persuaded that the sentence was manifestly inadequate. Accordingly, the appeal in respect of sentence is dismissed.

Costs appeal

21. [21]
    It was submitted on behalf of the appellant that the learned magistrate gave insufficient weight to the considerations in s. 158A(2) of the Justices Act (Qld) 1886. Pursuant to Justices Act s. 158(1), a magistrate is entitled to order costs where a complaint is dismissed, provided that any such costs are “just and reasonable”.

22. [22]
    It is submitted by the appellant that there was no evidence to support the quantum sought by the respondent’s legal representative ($10,000); that the complaint was made in good faith and prosecuted efficiently and in the public interest; and that there was either no, or insufficient reasons, to award costs.

23. [23]
    On behalf of the respondent, it is submitted that the respondent was represented by solicitor and counsel on the first and second days of the hearing and by solicitor on the third day. In those circumstances, it is submitted (and I accept) that conventional rules for taxation should not apply where the modest sum awarded was unlikely to approach anywhere near the true cost to the litigant.^[15]

24. [24]
    It is further submitted on behalf of the respondent, and I accept, that the trial would have been completed in one day, but for the insistence of the prosecution on calling a Constable Sherrie McLean, who the prosecutor wrongly thought had taken a notebook statement from Ms Roosen in respect of a contested factual issue.

25. [25]
    In the circumstances of the case, given the submission by the respondent’s lawyers some five months prior to the trial that the charges should be discontinued, it was in my view entirely appropriate for the learned magistrate to make an award of costs in respect of the successful defence by the respondent of the common assault charge on Ms MacRae.

26. [26]
    Pursuant to Justices Regulation 2004, Schedule 2, Part 2, the amounts which may be allowed as costs for legal professional work are as follows:-

“1. Instructions and preparation for the hearing, including attendance on day 1 of the hearing – up to $1,500.

2. For each day of the hearing after day 1 – up to $875.

3. Court attendance, other than on the hearing of the complaint – up to $250.“

27. [27]
    An examination of the court file indicates that there were four mention appearances prior to the first day of trial, the first day of the trial was conducted on 6 February 2014, a second day of trial on 14 February 2014, and the third day of trial (delivery of the decision) on 28 February 2014.

28. [28]
    Although there was no documentation with the respect to the of the figure of $10,000 cost provided by the respondent’s legal representatives to the learned magistrate, it is clear from an examination of the Justices Regulation that the learned magistrate could  arguably have awarded costs up to $4,250.

29. [29]
    In the circumstances, given the unnecessary extra day of trial; the respondent’s conviction for an unintended assault; and his acquittal in respect of a related common assault, that without the necessity for an itemised account from the respondent, and despite the lack of detailed reasons from the learned magistrate, that an order for costs, in the (modest) amount of $1,500 was an appropriate exercise of the learned magistrate’s discretion pursuant to Justices Act s. 158(1).

Conclusion – costs appeal

30. [30]
    Accordingly the appeal in respect of the costs order is dismissed.

Costs of the appeal

31. [31]
    I will hear the parties in respect of the costs of appeal.