Payne v Commissioner of Police
[2015] QDC 294
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- Unreported Judgment
- Payne v Commissioner of Police[2015] QDC 294
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Payne v Commissioner of Police[2015] QDC 294
Payne v Commissioner of Police[2015] QDC 294
DISTRICT COURT OF QUEENSLAND
CITATION: | Payne v Commissioner of Police [2015] QDC 294 |
PARTIES: | Matthew David Scott Payne v COMMISSIONER OF POLICE |
FILE NO/S: | D131/15 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Maroochydore Magistrates Court |
DELIVERED ON: | 4.12.15 (reasons only) |
DELIVERED AT: | Maroochydore District Court |
HEARING DATE: | 24 November 2015 |
JUDGE: | Robertson DCJ |
ORDER: (made 24 November 2015) |
|
CATCHWORDS: | CRIMINAL LAW – appeal against sentence – where the appellant pleaded guilty to one count of assault occasioning bodily harm in a public place while adversely affected by alcohol – where the appellant was sentenced to 18 months imprisonment with a parole release date after serving 3 months which was the 18 December 2015 and 40 hours community service – where a conviction was recorded and a compensation order of $4000 made and referred to SPER – whether the sentence was manifestly excessive. ERROR OF FACT – ERROR OF LAW – whether there was a legal, factual or discretionary error – where the Magistrate did not refer to the schedule of facts in his decision, nor did he make any attempt to resolve the obvious conflicts and inconsistencies in the factual scenario before him – where the Magistrate failed to state that the Court is obliged to have regard to “the nature of the offence and how serious the offence was” s 9(2)(b) – and “the circumstances of the offence” s 9(3)(d) of the Penalties and Sentences Act 1992 – where the Magistrate accepted the prosecutor’s submission that the offence was an example of “gratuitous violence” – where the Magistrate impermissibly fettered his sentencing discretion by refusing to consider a combined community service probation order, amounting to legal error – where there is no evidence to support a suggestion of “disfigurement” of the complainant – where the Magistrate failed to properly expose the factual basis for the sentence – where consideration of recording of a conviction was not undertaken as the Magistrate considered only as a sentencing option – where the Appellant could not pay compensation because of his critical financial situation – where there is no evidence to support a compensation order of $4000 – where the proper exercise of sentencing discretion should not have led to any actual imprisonment |
| Legislation Criminal Code 1899 (Qld) Justices Act 1886 Penalties and Sentences Act 1992 Victims of Crime Assistance Act 2009 Cases Dempsey v Commissioner of Police [2010] QDC 155 Quatermass v Commissioner of Police [2015] QDC 169 R v Cay; Ex parte A-G (Qld) (2005) 158 A Crim R 488; [2005] QCA 467 R v Lam [2006] QCA 560 R v Middleton and Johns [2006] QCA 92 Shambayati v Commissioner of Police [2013] QCA 57 House v The King (1936) 55 CLR 499 |
COUNSEL: | Deo, K., Legal Officer for the Respondent McMahon, K. of Counsel for the Appellant |
SOLICITORS: | Hanslow-Hastie, D. Solicitor of DME Law for the Appellant D.P.P office Maroochydore for the Respondent |
- [1]The appellant Mr Payne pleaded guilty in the Maroochydore Magistrates Court on 18.9.15 to one count of assault occasioning bodily harm in a public place while adversely affected by alcohol which offence occurred at around 5 – 5:30am in the public area outside the Underwater World complex in Mooloolaba on 22 February 2015. As a result of section 339(4) of the Criminal Code 1899 and section 108B(1) of the Penalties and Sentences Act 1992, it is a circumstance of aggravation to commit this offence in a public place whilst adversely affected by an intoxicating substance. The consequence is not that the maximum penalty increases – it remains at 7 years – but by virtue of section 108B(2), the court must make a community service order, whether or not it makes another order. It is an example of the modern trend of drafting penal statutes which makes the task of the sentencer even more difficult.
- [2]As a result however, the Magistrate (his Honour Magistrate Madsen) was obliged to impose a community service order as part of the sentence. He sentenced Mr Payne to 18 months imprisonment with a parole release date after serving 3 months which was the 18 December 2015 and 40 hours community service. Necessarily, as a matter of law, a conviction was recorded. His Honour also made a compensation order of $4000 presumably pursuant to section 35(1)(c) of the Penalties and Sentences Act 1992 which he referred to SPER.
The appeal
- [3]An appeal was lodged on 22.9.15. The only ground pleaded (as required by law) is that the sentence was manifestly excessive. I am told that a bail application was made to another Magistrate which was refused. Unfortunately no bail application was made in this Court after the Notice of Appeal was filed; until 16.11.15. The bail application came on before his Honour Judge Jones on 20 November 2015, but was adjourned by consent until the 24th November before me, on the basis that I was prepared to hear the appeal on the merits despite not being listed this week. I say unfortunately because, for the reasons I am about to expose, I find that the Magistrate made multiple errors both in law and in fact, and, in my opinion Mr Payne should never have been required to serve any period of imprisonment. On the 24.11.15, I allowed the appeal, set aside all the orders made below, and re-sentenced Mr Payne to 15 months probation and 40 hours community service, with no conviction recorded.
The relevant principles
- [4]The appeal is pursuant to section 222(2)(c) of the Justices Act, and is by way of technical re-hearing on the evidence before the Magistrate. Neither party seeks to introduce new evidence.
- [5]The appellant must show “some legal, factual or discretionary error”: per Wilson J in Shambayati v Commissioner of Police [2013] QCA 57. Such appeals are governed by the principles laid down by the High Court in House v The King (1936) 55 CLR 499 at 505.
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon the wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials to do so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred”.
The proceedings below
- [6]It is clear from the record below that the Magistrate had received a great deal of material from both parties prior to the actual hearing. This is desirable, but when the prosecutor tended her material (which included the defence material, and sentencing decisions which are not evidence) the Magistrate did not mark the various documents as exhibits. This is highly undesirable as it makes it difficult for this Court, on an appeal, to locate documents and consider issues of weight. Consistent with the practice in the higher courts, at the very least in long sentences like this, it is highly desirable that the presiding Magistrate mark each document with an exhibit number.
- [7]The Magistrate said he had read the schedule of facts in advance and no summary was given by the prosecutor. The schedule of facts presented a complex scenario and was supplemented by Mr Payne’s solicitor who referred (without demur) to a witness statement which added to those facts. In his reasons, which I will discuss later, the Magistrate did not clearly articulate the factual basis which formed the basis for the sentence he imposed. This is particularly important in a case such as this, where the facts presented were anything but clear.
- [8]In summary, the Magistrate was informed by the schedule, that police were called to a violent disturbance outside Underwater World at 5:30am on 22.2.15. They found 2 men fighting. One was Mr Payne, the other was the complainant. The schedule notes that the defendant pushed the other male to the ground. Police grabbed both men and “pulled them apart”. Police observed injuries to the complainant’s face. The schedule says “police observed that his eyes were swollen shut and he was bleeding”. The photographs (and indeed the medical summary from Nambour Hospital) do not suggest any injury to the right side of his face, and certainly his right eye is open and uninjured. The schedule referred to a witness who had met the 2 men on a moored boat earlier. It appears to be accepted that the two men had met for the first time earlier that morning and had then been drinking together, ending up upon the boat which belonged to a friend of the complainant. The witness Mr Read said that the appellant became a “nuisance” and was escorted from the boat by Read and the complainant. It can be inferred that up until then, there was no suggestion of bad blood between the men. It can be inferred that both were extremely intoxicated. Mr Read says when off the boat, he was punched twice in the head by the appellant. It can be inferred that he retreated back onto the boat and that he never complained of assault. Another witness, a woman on the boat, saw Read and the complainant escort the appellant off the boat, and the defendant “repeatedly” punch Read in the head. Contrary to what Read says, she says that the complainant attempted to come to the aid of Read and was punched in the head by the appellant, causing the complainant to fall to the ground unconscious. Read says nothing about the complainant coming to his aid, but says he returned to the area off the boat a short time later and observed the complainant lying unconscious in a pool of blood with the appellant standing over him. Consistently with what the police saw, he then saw the complainant get up “and the fight continued into the street”. The owner of the boat, Mr Cassells, said he saw the appellant leave with the complainant, but does not mention Mr Read. He then heard “loud voices yelling and screaming at each other”. It can be inferred that the voices were those of the appellant and complainant. He then went to an area outside the Marina gates and he too saw the appellant standing over the complainant who appeared to be unconscious. Mr Cassells says that he then “attempted to call” the ambulance and the appellant yelled at him to get off the phone, and prevented him from attending to the complainant. Read, who on the police case, was there, says nothing about this. Mr Cassells says the complainant got up and he says he attempted to defend him. Again Read says nothing of this. Mr Cassells says nothing about the two then fighting, rather he says that the appellant pushed the complainant out into the street and the police arrived.
- [9]The police prosecutor made much of the allegation of fact (according to Cassells) that the appellant “has (sic) tried to stop witnesses calling an ambulance and also tried to stop witnesses from rendering first aid to the defendant”. She submitted that the assault was “protracted” by reference to “a further altercation with (sic) the defendant and the victim”.
- [10]The appellant’s solicitor disputed that her client had tried to stop witnesses from rendering first aid. The solicitor told his Honour that “part of the crowd were trying to render first aid”, and her client (presumably because of his Navy experience) “was trying to explain that that was not the appropriate first aid to be giving”. This was not challenged by the prosecutor.
- [11]The solicitor also referred to a statement from “the police material” from a witness McCall (which was not referred to in the schedule of facts) who “observed two male persons fighting in the street” and that he broke up the fight.
- [12]She also told his Honour that her client recalled at some stage during the night talking with the people about “the Mayweather fight and sparring”. Again this was not disputed by the prosecutor, however she submitted to his Honour, by reference to an apology the appellant had given to the Court, that his reference in that to a “spar”, “that the defendant’s remorse appears to be somewhat tainted by the continuance (sic) in attempting to mitigate his involvement in relation to the offence”.
- [13]This was a confusing factual scenario and it was incumbent upon the Magistrate to clearly articulate the factual basis on which he was imposing sentence. He did not refer to the schedule of facts in his decision, nor did he make any attempt to resolve the obvious conflicts and inconsistencies in the factual scenario before him. He said (at p. 3):
“Clearly the higher courts have recognised that courts do hesitate before imprisoning people who have never been imprisoned before. Courts weigh up the need for imprisonment by considering a person’s mitigating circumstances, their plea of guilty and other circumstances”.
- [14]What he did not say is that the Court is obliged (i.e. it “must”) have regard to “the nature of the offence and how serious the offence was”;: s 9(2)(b); and “the circumstances of the offence”;: s 9(3)(d).
- [15]He seemed to accept the prosecutor’s submission that the assault was “largely” unprovoked. He seemed to accept her submission as well that this offence was an example of “gratuitous violence”.
- [16]His complete failure to analyse the complex and confusing factual scenario before him, and to explicitly state the factual basis on which he was intending to sentence constitutes appealable error, and for that reason alone, I would allow the appeal.
- [17]In my opinion, the proper basis for sentence, based on the evidence before the Magistrate was as follows:
- (a)prior to his removal from the boat the appellant had not been aggressive;
- (b)for reasons unknown, he became aggressive towards Read and punched him more than once causing him to retreat;
- (c)it could be inferred that there was then mutual aggression between the appellant and the complainant, involving “yelling and screaming at each other”;
- (d)the appellant then punched the complainant once to the left side of his face, which was obviously a significant blow that knocked him unconscious and caused the injuries referred to in the material, and as seen in the photos;
- (e)despite this, the complainant recovered and continued to fight with the appellant either until the police arrived, or the witness McCall broke up the fight.
- [18]The failure of the Magistrate to undertake this simple analysis, also makes it difficult to assess how he reached the conclusions that he did about the nature of the assault constituted by the one punch. The description that it was “largely” unprovoked may be apt, but immediately that finding focuses on the utility of the plea of guilty. As well as demonstrating remorse, it showed a special degree of contrition and acceptance of responsibility in the face of what may have been a very confusing factual dispute at trial.
The impermissible fettering of discretion
- [19]The Magistrate said he had considered all the cases placed before him, and he noted (correctly) that “there is a significant range”. One of those cases was Dempsey v Commissioner of Police [2010] QDC 155 a decision of his Honour Judge Dearden in Mt Isa. The appellant, a mature man with a “relatively minor criminal history with no previous convictions for violence”, in the context of a long standing family feud, approached the complainant after a football match while he was walking with his wife and children. The appellant was with (4) others, one of whom swung a punch at the complainant. Almost immediately, the complainant was punched in the jaw by the appellant. The blow was so forceful that it caused the complainant to stagger backwards, and he suffered a fractured jaw. He had to be transferred to Townsville for further treatment. The Magistrate rejected the appellant’s suggestion that the blow involved a moderate amount of force. The appellant immediately apologised for his conduct. The sentence imposed of (2) years probation with conviction recorded was not disturbed on appeal.
- [20]Clearly community based orders were in range here especially having regard to the extensive mitigating circumstances in this case, to which I will refer later.
- [21]However, when the appellant’s solicitor submitted that the Magistrate “could reasonably consider a combined community service probation order”, the Magistrate cut her off and said: “Look, just so you’re – I’m not going to do a community service and probation order. Okay.” The solicitor can rightly be criticised for not persisting with a submission that was soundly based. However, the Magistrate quite impermissibly fettered his sentencing discretion by refusing to consider such an option, or to hear submissions about it. It is tolerably clear that he was considering only one sentencing option, and that is imprisonment. This again amounts to legal error, and, on its own, would lead me to allow the appeal.
The effect on the victim
- [22]The effect on a victim of violence is a mandatory consideration for the sentencer to take into account. The report from the Nambour Hospital indicates that the complainant was confused and disorientated when he presented at 6:34am. He reported being assaulted by a “friend”. He was “still … intoxicated.” A CT Scan revealed an undisplaced left nasal bone fracture, and a left maxillo fracture involving the medical anterior and lateral walls of the sinus. His victim impact statement (not supported by any medical evidence), says that the day after, he went to the Royal Brisbane maxillo-facial unit, and was booked to have surgery. When he attended a week later, he was told by a surgeon that the injuries had caused his cheek to drop by 2mm, but he could either have surgery or leave the injury to heal by itself. He elected this later course. There was no evidence at all of any permanent residual disability.
- [23]The Magistrate described the injuries as significant. They were, but as the appellant’s solicitor fairly submitted, less significant than injuries sustained in other like cases. The Magistrate said (by reference to the complainant):
“He … selected whatever disfigurement he was left with as a preference to the on-going pain, suffering and inconvenience associated with that surgery, from what I’ve read”.
- [24]There was not a shred of evidence to suggest “disfigurement”. If there had been, I assume the prosecutor would have charged him with grievous bodily harm. As I have noted, there was no medical evidence to support the complainant’s hearsay comment about his cheek, and no evidence that this, in any event, constituted “disfigurement”.
- [25]This was a significant factual error, which on its own, would not have lead me to allow the appeal.
Gratuitous violence
- [26]This description, adopted by the Magistrate, apparently came from the prosecutor’s submissions, although this is not clear at all from the reasons. She submitted (at 1 – 5 line 17) that “this can be classified as unprovoked gratuitous violence”. She relied upon R v Lam [2006] QCA 560. Giving the judgment of the court, Philippides J (as her Honour then was) described the offending as follows:
“[5] The relevant facts concerning the offences are set out in the Schedule of Facts which was tendered at sentence. At about 5.15 am on 9 October 2005, the complainant, who had been enjoying a night out drinking in the Brisbane CBD, passed a group of about ten people which included the applicant. One of the group said to the complainant, “Are you gay?” The complainant stopped said, “No, mate” and kept walking. The applicant who was intoxicated then jumped up and whilst walking backwards in front of the complainant repeatedly said, “Come around the corner, come around the corner. You can eat me. You can suck me.” The complainant replied “No, mate, no” and tried to walk away. The applicant then punched the complainant on the nose causing it to bleed. The complainant continued to back away and to tell the applicant that he did not want a fight. The applicant was joined by a male from his group who also punched the complainant in the face. The applicant continued with a second blow to the complainant, striking him in the mouth, which loosened a tooth, and in the process the applicant cut his own hand. The complainant backed away across the road but was pursued by the applicant and the other male. The applicant punched the complainant in the forehead. The complainant attempted to duck and cover his head with his hands. He then felt two or three punches to his face, but was unable to say which of the two men threw these punches.
[6] Soon after the assault the subject of count 1, the complainant, who had managed to get away from the applicant and his group, came across them again. The applicant approached the complainant saying, “You dog!” This may have been a reference to the complainant having reported the first incident. The applicant punched the complainant on the left side of the head, knocking a mobile telephone out of the complainant’s hands. The applicant then punched the complainant several more times whilst saying, “You dog!” Two or three other men joined the applicant in assaulting the complainant. The complainant again attempted to protect himself but was knocked to the ground. The applicant then proceeded to kick the complainant and the other men joined in. The complainant received kicks to the head, arms, legs, stomach and back region. The complainant was able to avoid being further assaulted by pretending to have been knocked out. The assailants then desisted, with the applicant being the last person to cease the assault.
[7] The assault was witnessed by a police officer who happened to be travelling to work. He approached the applicant and two others, identified himself as a police officer and told them to stop. While the police officer was taking details from others involved in the assault, the applicant slipped away. Other police arrived. The complainant approached the police, informing them that the applicant was at a nearby taxi rank and identifying him as the main assailant. The applicant attempted unsuccessfully to get into a taxi with other people unknown to him. He then walked off ignoring police directions to stop and when pursued, turned on the police officers. The applicant was only captured after a violent struggle and the use of capsicum spray by the police”.
- [27]The applicant had committed those offences whilst subject to a suspended sentence. He had a significant criminal history, including one entry for violence, and had been to prison on a number of occasions.
- [28]The facts here are nothing like that, and the prosecutor’s submission is entirely undermined by the very case upon which she relied, which, I infer, his Honour had not read. In the case here, the parties were known to each other, albeit for a short time; they had had a good night together prior to the appellant being escorted from the boat. The analysis of the factual scenario above indicates that it was factually wrong to describe this as a case of “gratuitous” violence. Courts of Appeal use these terms for a reason, and to significantly misdescribe the nature of the violence here undermines the reasons of principle behind such descriptors.
Re-sentencing
- [29]The material before the Magistrate revealed significant factors in mitigation, and evidence of very positive rehabilitation already undertaken by the defendant.
- [30]Before dealing with those matters, I turn to the aggravating features. This was undoubtedly a significant blow. The appellant, and indeed the complainant, are fortunate that the injuries were not more serious. Fighting and violence in public places, especially those in entertainment areas where many people are likely to be, is serious and the Courts are obliged to discourage such conduct by imposing significant sentences. It is not clear how many people were actually present on this occasion, and, as I have attempted to expose, despite the appellant being the initial aggressor (against another person), it is clear that the complainant was prepared to fight and he did. As for the prosecutor’s submission about his remorse being undermined by the reference to a “spar” in his apology to the Court; it appears that the Magistrate did not accept this in the sense that he described his remorse as genuine; and the unchallenged submission from the appellant’s solicitor disposed of that submission in any event. It is not clear that the Magistrate regarded the suggestion that the appellant interfered with aid being given to the complainant as aggravating because he simply does not mention it. Again, the unchallenged explanation from the solicitor, at worst, should fairly have rendered that submission neutral in the balancing exercise.
- [31]The appellant was 29. He had (2) minor entries in his criminal history which did not suggest any propensity for violence. The solicitor explained to the Magistrate that at the time of offending her client was in the course of the breakup of his relationship with the mother of his 5 and 3 year old daughters. The Magistrate had before him a report from a psychiatrist Dr Chris Martin. It is dated 15.9.15. It informed the Magistrate that the appellant (who has served (5) years with the Navy and received the Australian Defence Medal) was suffering from post-traumatic stress disorder as a result of being assaulted during his naval training in 2008. Dr Martin had been treating him for 15 months, so at the time of the offence he was under his care.
- [32]In his brief report Dr Martin wrote:
“This condition renders him unusually reactive in situations which trigger memories of that assault. The event which lead to the current charges being laid against Mr Payne does not seem by his account to be one such scenario”.
- [33]In submissions, his Honour regarded this last sentence as having little weight because of the appellant’s loss of memory as a result of being intoxicated. He was entitled to that view.
- [34]He was not entitled however to place little weight on the other parts of the report simply because it was “brief”. Clearly alcohol was the major disinhibiting factor that underpinned the offending. However the circumstances that pertained in his life at the time of the offence, coupled with his PTSD and the non-controversial opinion of the doctor referred to in the first sentence above, were important factors to explain why a man, who had served his country for 5 years in the Navy, who had never been violent, would react as he did that morning when intoxicated.
- [35]The solicitor informed the Magistrate that as at the 18.9.15, her client now had the full time care of his daughters because of the deterioration of his ex-partner’s mental health. The prosecution was unfairly critical of this aspect of the defence position, by suggesting there was no evidence to back up such a proposition. This was fully explained by the solicitor who told the Magistrate that the parties had reached an agreement about the care of the children without the need for a formal order.
- [36]The appellant also had significant responsibility for the care of his ill father who was living with the family and present in Court.
- [37]He was in employment, and had gained many qualifications to advance his employment opportunities. He had qualified as a fitness coach for which he requires a blue card. Because of the attitude the Magistrate took to any disposition other than prison, the issue of recording of a conviction never came up.
- [38]The Magistrate rightly accepted that he was remorseful. As I have noted, his failure to properly expose the factual basis for the sentence, to some extent understated the utility of the plea in the face of a confused factual scenario with a number of intoxicated witnesses. His Honour referred to his apology to the victim and his demeanour in Court which suggested genuine remorse.
- [39]The solicitor said her client was prepared to pay compensation but could not do so because of his critical financial situation as a result of the breakup of his relationship. She told the Magistrate that he had the “spectre of threatened bankruptcy hanging over his head”. The Magistrate said he was “thinking around $4000” for compensation, but seemed to acknowledge the futility of making such an order on the basis that “he’s got no immediate prospect of making any meaningful contribution to SPER …”. Perhaps sensing an advantage, the solicitor referred to a possible return from a property settlement, and then (in court) instructions that the father would lend him the money so that “it won’t have to go to SPER”. The Magistrate noted it “is a way of showing remorse”; but then said “it’s diametrically opposed to everything you said about his financial situation and the weight I should give to that”.
- [40]An order made under section 35(1)(c) is “in addition to any other sentence to which the offender is liable”: s 35(2). It is difficult to see where the Magistrate found evidence to support a compensation order of $4000. The complainant did not attempt to quantify his loss, apart from referring to time off work, and non quantifiable expenses for pain killers and antibiotics and $40 for fuel. I suspect, his Honour took the figure from the sum apparently paid (not ordered) in Quatermass v Commissioner of Police [2015] QDC 169, a case relied upon by both parties and referred to by the Magistrate in his reasons.
- [41]The appellant in that case was 19. He and the complainant were complete strangers. He entered an early plea to one count of assault occasioning bodily harm. The offence took place on the floor of a night club. The appellant approached the complainant from behind, turned him round and punched him in the face and knocked him out. Whilst the complainant was helpless and unconscious on the ground the appellant punched him at least once in the face. The injuries suffered are described by his Honour Judge Reid at [35] of his reasons, and are objectively more serious than the injuries suffered in this case, and consistent with multiple forceful blows. The complainant had to have corrective surgery. The victim impact statement showed that he had “suffered dreadfully and continues to suffer considerably”.
- [42]The sentence imposed below was 12 months suspended after serving 2 months. In that case, unlike here, there was no factual or legal error alleged, and the appellant relied on House v The King type error. The appellant had a relevant but not serious prior history. The Magistrate had heard details of a public nuisance conviction which involved the appellant fighting in a safe precinct area in Fortitude Valley.
- [43]His Honour Judge Reid helpfully analysed some of the relevant authorities.
- [44]It was clearly an objectively much more serious case than the present. The prosecutor correctly distinguished the case on the basis that the offender was 19, overlooking that a mature person of 29 with a very minor history who has served his country in the armed services, is also entitled to benefit.
- [45]The Magistrate referred to that case but not as a comparable sentence. He referred to an extract quoted by Judge Reid from R v Middleton and Johns [2006] QCA 92 from the judgment of Jerrard JA, who, (after analysing a number of decisions) wrote (at [39]):
“Those decisions make clear that even for offenders aged 18, this Court will uphold sentences resulting in actual custody for first offenders with no prior convictions who plead guilty to assault occasioning bodily harm, where there are aggravating circumstances. Those can include the motive for the assault, its severity, or the circumstances of being armed and in company. While actual imprisonment is not mandated, it will ordinarily be within the proper exercise of a sentencing discretion.”
- [46]What the Magistrate did not do is examine that case, and that is always essential when a sentencer intends to apply a statement of principle. The circumstances of the offending are described fully by Jerrard JA at [3] – [5] of his judgment. The three co-accused (only (2) appealed, one was 19 the other 22 with a minor record) went with (2) others to the house of the complainant who was known to the application. They were all dressed in black. The complainant had been warned they were coming and hard armed himself with a knife. He was confronted by multiple assailants one of who sprayed him in the face with mace. It was said to be in response to being ripped off in a drug deal. He was viciously assaulted, and sprayed again with mace. He was punched and kicked multiple times. The assaults occurred in the yard of his own home at night. He retaliated and stabbed one of the applicants. The sentences under appeal, which were not disturbed, were 6 month and 3 month terms followed by probation for 3 years. It was in that context that Jerrard JA made that statement.
- [47]It has no application at all to the circumstances of the case here.
- [48]As well as the mitigating factors I have mentioned, the Magistrate had before him a series of excellent references attesting to the appellant’s strong work ethic and family values. The appellant had successfully completed a drug and alcohol course through the Courts service.
Disposition
- [49]It is very unfortunate that the appellant has served 2 ½ months in prison, when the proper exercise of sentencing discretion should not have led to any actual imprisonment. In re-sentencing the appellant, I have to take into account that he has already been seriously punished by being incarcerated. The orders made below, including the compensation orders, are set aside, subject to the consent of the appellant, he is sentenced to 15 months probation and 40 hours community service subject to the general requirements in sections 93 and 103 of the Penalties and Sentences Act 1992.
- [50]As I noted, the Magistrate never considered section 12. The appellant is derious of starting his own business as a fitness instructor. Having regard to the nature of the offence (as I have characterised it above); his character and age, and the clear impact the recording of a conviction will have on his economic and social well-being and chances of finding employment; and having regard to what Keane JA (as his Honour then was) said in R v Cay; Ex parte A-G (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, I exercise my discretion not to record a conviction.
- [51]I have set aside the compensation order. Unfortunately, in his reasons his Honour indicated that he had reduced both the head sentence and parole release date, because of “the offer by your father”. This has the unfortunate flavour of suggesting that an offender can buy his was out of the proper punishment. His Honour did refer it to SPER, but as my reasons above expose, that lacked utility. The complainant will be fully protected by exercising his right under the Victims of Crime Assistance Act 2009, where his actual expenses can be proved.