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Laine v Senior Constable Hubbard[2016] QDC 47

Laine v Senior Constable Hubbard[2016] QDC 47

DISTRICT COURT OF QUEENSLAND

CITATION:

Laine v Senior Constable DG Hubbard [2016] QDC 47

PARTIES:

Laine
(Applicant)

v

Senior Constable DG Hubbard
(Respondent)

FILE NO/S:

290/15

DIVISION:

Appeal

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

22 February 2016 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2016

JUDGE:

Rackemann DCJ

ORDER:

The appeal is allowed and the sentence is varied only to the extent of altering the compensation order such that the compensation so ordered must be paid within 12 months of the date of sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCES – where sentence included an order to pay compensation within 6 months but also imposed a sentence of imprisonment with a parole release date set after 6 months – where sentence proceeded on a material error as to whether the appellant had the means to pay the compensation within 6 months if he was incarcerated

COUNSEL:

S B Ganasan for the applicant

K E Thomas for the respondent

SOLICITORS:

Legal Aid for the applicant

Office of the Director of Public Prosecutions on behalf of the Queensland Police Service for the respondent

  1. [1]
    This is an appeal against a sentence given in the Magistrates Court on the 25th of September 2015, when the appellant was dealt with for one count of assault occasioning bodily harm, one of common assault, and was also dealt with a consequential breach of a suspended sentence. The learned magistrate imposed concurrent custodial terms of 18 months for the assault occasioning bodily harm, and 12 months imprisonment for the common assault, and no issue was taken at all with those head sentences.
  1. [2]
    The appellant’s legal representative at first instance had sought the sentence to be structured in a way that would require no actual time in prison, but his Honour set a parole release date of 24 March 2016, thereby requiring six months of actual custody. On the hearing of this appeal, it was not urged on behalf of the appellant – or certainly not strongly urged on behalf of the appellant - that that was beyond range.
  1. [3]
    In arriving at the sentences, his Honour had regard to various matters that were in the appellant’s favour; those included the indications that he had accepted responsibility for the consequences of his actions and had done something about it. I need not go into the detail of that save to say that part of accepting responsibility was the offer that had been made to pay compensation, and, indeed, his Honour’s sentence did include an order that compensation be paid in the amount of $1500 to one complainant and in the amount of $750 to another.
  1. [4]
    His Honour did give the appellant’s legal representative at first instance an opportunity to take instructions in relation to the time it would take to pay that amount, and was informed that a period of six months would be requested and that the appellant’s legal representative had explained to his client that so long as he was making regular payments an extension could be requested. His Honour seems to have acted upon that in setting a time for payment of six months and ordering 30 days of imprisonment in default.
  1. [5]
    In doing so, however, he appears to have acted on a material error in relation to the matters put before him. The submissions before the learned magistrate included that the appellant had seasonal work in his father’s business; and so was able to obtain some form of income. The instructions relayed to his Honour that the amount of compensation could be paid over a six-month period by making regular payments, obviously presupposed that the appellant would be able to do so from a form of income, and, by inference, that income would be from his employment activities.
  1. [6]
    The six months should be seen in the context of the submissions that were being made, which urged his Honour to adopt a sentencing structure which would require no time of actual custody and hence leave the appellant in a position to immediately continue his employment and to start making compensation payments. When his Honour decided upon a sentencing structure which involved six months of actual imprisonment, his Honour erred by setting the time for compensation as commencing on the date of sentence, rather than including a period which allowed six months after the release from custody.
  1. [7]
    That warrants the appeal being allowed and the sentence below interfered with. The appellant’s representative indicated that a further six months from the date of release would be a sufficient time to pay the compensation. Accordingly, I will allow the appeal, but I vary the sentence below only to the extent of altering the compensation order such that the compensation so ordered must be paid within 12 months of the date of sentence. The same consequence of default will be left in place.
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Editorial Notes

  • Published Case Name:

    Laine v Senior Constable DG Hubbard

  • Shortened Case Name:

    Laine v Senior Constable Hubbard

  • MNC:

    [2016] QDC 47

  • Court:

    QDC

  • Judge(s):

    Rackemann DCJ

  • Date:

    22 Feb 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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