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- Unreported Judgment
Peberdy v Commissioner of Police QDC 138
DISTRICT COURT OF QUEENSLAND
Peberdy v Commissioner of Police  QDC 138
JUSTIN NEIL PEBERDY
COMMISSIONER OF POLICE
District Court at Brisbane
Section 222 appeal
Magistrates Court at Brisbane
26 May 2017
26 May 2017
Butler SC DCJ
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – Whether compensation ordered was excessive
J R Cook for the appellant
Z M Ahmed for the respondent
AW Bale & Son Solicitors for the appellant
Office of the Director of Public Prosecutions for the respondent
- This is an appeal pursuant to s 222 of the Justices Act 1886 against a sentence imposed in the Magistrates Court at Brisbane on 18 August 2016. The appellant challenges the imposition of a restitution order in the amount of $38,346, submitting that it resulted in a sentence which was manifestly excessive.
- The appellant was convicted on his own plea of guilty of one charge of wilful damage committed on 31 March 2013.
- The appellant had been drinking at a function at the Powerhouse Theatres in New Farm. At 10.30pm the bar was closed and the members of the appellant’s party were asked to leave. The appellant remained and when security asked to take his glass he flung the glass without warning at a bank of television screens, causing damage to one screen.
- The court was advised that the Powerhouse had an arrangement with Brisbane City Council whereby they are indemnified for certain amounts of damage incurred at the property which is leased from the Brisbane City Council. A third party assessor was engaged to assess the damage and to determine how it might be rectified. The least expensive alternative was the replacement of a bank of nine television screens at a cost of $38,346. The court was advised the cost was apportioned between the Brisbane City Council and the Powerhouse in the amounts of $36,240 and $2,106 respectively.
- The learned magistrate convicted the appellant but did not record the conviction. His Honour imposed a fine of $800 and ordered the appellant to pay restitution of a total amount of $38,364 to be referred to the State Penalties Enforcement Registry. Of that sum, $36,240 was payable to the Brisbane City Council and $2,106 was payable to Brisbane Powerhouse.
The sentencing submissions
- At the time of sentence the appellant was a young man 23 years of age, the offence having occurred at his 21st birthday party. He had recently graduated from university with a bachelor’s degree in Commerce and Engineering with first class honours. He had no previous criminal history. At the time of sentence he was seeking employment and in the process of applying for Centrelink. There was delay in the matter coming on for sentence because the defendant had been absent overseas for a period and could not be served.
- It was submitted on behalf of the appellant that he had no capacity to pay the amount of restitution and that it would be crushing for him at his age and being unemployed to have to meet such an order. It was further submitted that he had no capacity to pay a fine.
Magistrate’s sentencing remarks
- In respect of the issue of monetary penalties, the learned sentencing magistrate said:
“I’ve taken into account the fact that you are not presently working. Your capacity to pay a fine at this instant is not of itself entirely determinative because the entire purpose of the State Penalties Enforcement Registry is to take those financial circumstances into account and fashion a repayment regime that takes into account your financial circumstances. A court is not in a position to make those sorts of determinations properly…
However, the State Penalties Enforcement Registry is in a far better position to fully consider your financial circumstances and sort out a repayment arrangement that takes them into account. So in my view, by referring a matter to SPER, it does take into account a person’s financial circumstances because it enables the Executive Government – or an arm of them who is specifically charged with recovering fines – to do so at a rate that does not impose financial burden unduly on people who are fined or ordered to pay restitution. That to my mind is taking into account a person’s personal circumstances and capacity to pay a fine.”
- His Honour went on to speak about the extent of the damage and the need for deterrence for such conduct.
- The appellant submits that the learned magistrate erred at law in imposing a restitution order which had the consequence of making the sentence manifestly excessive. The submission, in substance, was that the learned magistrate failed to have regard to the guidance provided by the Court of Appeal in R v Matauaina in relation to compensation orders.
- In its submissions, the respondent accepts “that the quantum of the larger restitution order was made absent cogent evidence of any capacity to pay”. The respondent concedes that that component of the sentence renders the overall sentence “unjust”. It is submitted on behalf of the respondent that the restitution of $2,106 payable to Brisbane Powerhouse should remain undisturbed but that a community service order should be substituted for the fine of $800 and the restitution order of $36,240 payable to the Brisbane City Council be set aside.
- An appeal to the District Court under s 222 of the Act is an appeal by way of rehearing. The task of an appellate Court in conducting an appeal by way of rehearing was recently explained by the High Court in Robinson Helicopter Co Inc v McDermott as follows:
“A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law.”
- The Court of Appeal in White v Commissioner of Police explained as follows:
“To succeed on such an appeal an appellant must establish some legal, factual or discretionary error.”
- This appeal will be determined in accordance with those principles
Compensation order principles
- Section 35 of the Penalties and Sentences Act 1992 makes provision for orders for compensation to be made. The section provides:
“(1) The court may order that the offender—
- (a)make restitution of property—
- (b)pay compensation to a person for any loss or destruction of, damage caused to, or unlawful interference with, property—
- (i)in relation to which the offence was committed; or
- (ii)in the course of, or in connection with, the commission of the offence; and
- (2)An order may be made under subsection (1) in addition to any other sentence to which the offender is liable.”
- The order made by the learned magistrate referred to the payment of “restitution”. As explained in R v Ferrari, “strictly speaking, restitution in this context means the return or redelivery of particular property”. What was in contemplation here was compensation for damage to the property, not restitution of it. Accordingly it is clear that his Honour was exercising a power under s 35(1)(b) to order what is properly described as compensation. Such an order is part of the sentence although it is not imposed as a form of punishment. As explained in R v Matauaina:
“In R v Ferrari, McPherson JA observed that an order under s 35, although part of the sentence or judgment, is not a form of punishment. Nevertheless, the potentially punitive consequences of such an order are certainly relevant in considering the appropriateness of the overall sentence.”
- Accordingly, in this case the appropriateness of the fine imposed on sentence cannot be considered in isolation from the compensation ordered to be paid.
- As appears from the reasons of the learned sentencing magistrate, his Honour took the view that it was unnecessary or not possible for the sentencing court to make a determination about the financial circumstances of the defendant and that reference of the order to the State Penalties Enforcement Registry sufficiently took into account “the person’s personal circumstances and capacity to pay”. His Honour was not referred to and was clearly unaware of the decision of the Court of Appeal in R v Matauaina. In that case the Court of Appeal gave lengthy consideration to the effect given to a compensation order by the State Penalties Enforcement Act 1999 (Qld) (“SPE Act”). The court noted that pursuant to s 36(1)(c) of the Penalties and Sentences Act a court may order that a proper officer of the court is to give particulars of an amount of compensation ordered under s 35 to the State Penalties Enforcement Registry (“SPER”) for registration under s 34 of the SPE Act. SPER then becomes responsible for collecting the debt. SPER, under the legislation, has a hierarchy of enforcement options. Those remedies are administratively applied in a predetermined order. The Court of Appeal described the process as follows:
“The Court was informed that SPER administratively applies the remedies hierarchically in the following order until the debt is recovered: firstly by suspension of the person’s driver licence, secondly by conducting property searches for prospective seizure and sale, thirdly by either seizing or immobilising vehicles, and, as a last resort, enforcement by imprisonment. Ultimately, however, the effect of s 119(1) and s 119(2) is that a debtor may be imprisoned either if the registrar of SPER (a public servant employed pursuant to s 10) is satisfied, after attempting to enforce an enforcement warrant or immobilisation warrant against the debtor, that the unpaid amount cannot be satisfied in any other way authorised under SPEA, or if the registrar issues an instalment payment notice or fine collection notice or makes a fine option order for an enforcement debtor after attempting to enforce an enforcement warrant or immobilisation warrant and the debtor fails to comply with the notice or order.”
- The Court of Appeal concluded that the consequences for a debtor of non-payment, even if that is merely a consequence of poverty, might extend to the imposition of a further term or imprisonment without any intervention by the sentencing court. It can be seen that the imposition of a monetary order can have implications beyond an obligation to pay the money extending to possible imprisonment. For that reason, the Court of Appeal concluded in Matauaina that the appropriateness of the sentence imposed “cannot be considered in isolation from the consequence that an offender might be sent to prison for non-payment of compensation”. It follows that the learned sentencing magistrate erred in concluding that referral to SPER took sufficient account of the person’s personal circumstances and capacity to pay a fine and that it was unnecessary for the court to investigate those matters further in respect to the appropriateness of the sentence.
- On the information before the sentencing court, the appellant was a young unemployed man lacking any present ability to pay the fine or compensation imposed. However, there was evidence before the court indicating that Mr Peberdy was a recent university graduate in Commerce and Engineering. It could be inferred that he had the capacity to soon find employment. There was also information before the court that he had recently travelled for 6 months overseas suggesting he had access to funds for personal purposes. The prosecution concede that the imposition of a compensation order in the amount of $36,240 was excessive. It may be accepted that that concession is properly made. The sum involved is very considerable and clearly outside the capacity of an unemployed person to pay.
- It was not inappropriate for the sentencing magistrate to have some regard to the future prospects of the appellant in determining his ability to pay a monetary amount. He was a university graduate who presumably, in due course, would be able to obtain well remunerated employment. However, such reasoning can only be taken so far in the absence of a more detailed assessment of the appellant’s financial situation. A sum of $36,240 is a considerable amount for a person not presently employed, even for one with qualifications, especially when he is at the very start of his working life. On the material before the learned magistrate it could not be concluded that the amount of compensation ordered was other than excessive.
- As his Honour’s sentencing discretion clearly miscarried in respect of the award of compensation made, it is necessary for this court to approach the sentencing process afresh.
- Ordinarily this court on an appeal under s 222 of the Justices Act conducts a rehearing upon the evidence received in the court below. However, there is a power to received new evidence upon the appeal and in two respects that has occurred in this case. Firstly, I received a correspondence from the Brisbane City Council and the Brisbane Powerhouse which was tendered by the prosecution without objection from the appellant. In a case such as this where an order for compensation in favour of a beneficiary is challenged on appeal, there is an obligation to extend natural justice and give that party an opportunity to be heard upon the question of whether the order should be set aside. The correspondence confirms that both the Brisbane City Council and Brisbane Powerhouse, having considered the matter, do not wish to be heard upon the appeal. Their correspondence also clarifies a further issue and that is that there was a misunderstanding in the information provided before the Magistrates Court as to the loss sustained. The correspondence indicates that the Brisbane Powerhouse, contrary to what was advised to the magistrate, had been fully compensated by the Brisbane City Council for the loss. Accordingly, there is no basis for any order in their favour. In addition, the Brisbane City Council correspondence confirms that the total loss sustained was $36,240 not $38,346 as understood in the court below. That loss was sustained by the Council.
- The further matter of new evidence before me relates to the appellant’s capacity to pay a fine in compensation. In submissions before the learned magistrate, it was contended that the appellant had no capacity to pay either the fine or any compensation. While that may have been technically true given to his not holding a position at the time, there was material suggesting that he would have ability to obtain income and to make some degree of contribution in due course. I raised this contradiction with the advocate for the appellant, Mr Cook. Mr Cook formally made the concession on behalf of his client that there was capacity for the appellant to pay the $800 fine and a further amount of about $2,000 in compensation. Indeed, the appellant submitted that such an order would be appropriate.
- The prosecutor, Mr Ahmed, submitted that substitution of a community service order might be appropriate in the circumstances. Such order may be appropriate in similar cases but I am not persuaded that I should substitute such an order at this time. The offending occurred in 2013 and considerable time has elapsed since then. The appellant is, it is conceded, capable of paying the fine originally imposed and for a man in his circumstances it seems to me that is an appropriate penalty.
- It emerges that there is very little at issue between the parties on the appeal. In those circumstances I am satisfied that a sentence which maintains the fine imposed below but varies the compensation order to a sum of $2,000 is an appropriate sentence in all the circumstances.
- The orders of the court will be:
- The appeal is allowed.
- The sentence of the Magistrates Court is varied by setting aside the orders for restitution made in favour of the Brisbane Powerhouse and the Brisbane City Council.
- The defendant will pay compensation in the sum of $2,000 to the Registrar of the District Court of Brisbane for transmission to the Brisbane City Council. That amount is to be paid by 26 August 2017. If not paid by that date, I direct the Registrar to refer the non-payment to the State Penalties Enforcement Registry.
- The respondent will pay the appellant’s costs of the appeal, fixed as in the amount of $1,800.
 Decision, p 2, ll 10 – 31.
  QCA 344.
  HCA 22 at .
 White v Commissioner of Police  QCA 121 at .
  QCA 84.
 Applying House v The Queen (1936) 55 CLR 499 at  – .
  QCA 73 at 7.
 R v Ferrari  QCA 73 at 10.
  QCA 344 at .
 See R v Silasack  QCA 88 at -, ; R v Shillingsworth  1 Qd R 527 at 528  per Thomas JA.
 R v Matauaina  QCA 334 at .
 Ibid, at .
 Ibid, at .
- Published Case Name:
Peberdy v Commissioner of Police
- Shortened Case Name:
Peberdy v Commissioner of Police
 QDC 138
26 May 2017