Caddies v Birchall[2018] QDC 180

DISTRICT COURT OF QUEENSLAND

1. [1]
   This appeal was filed pursuant to section 222 of the Justices Act 1881 (“The Act”). I reserved my decision in relation to the determination of the appeal.

Background:

2. [2]
   On the 3rd of June 2016 the appellant, Alan David Caddies, was convicted of the offence of assault occasioning bodily harm (domestic violence offence) committed on 12 December 2014. This followed a two-day trial conducted on the 26th of February and the 5th of May 2016. Sentencing was adjourned and prior to sentencing the appellant lodged an appeal against conviction in the District Court at Townsville. This appeal also was pursuant to the provisions of section 222 of the Act. Sentencing was then adjourned pending the outcome of the appeal.
3. [3]
   On the 15th of November 2017 Judge McGill dismissed that appeal. A notice of appeal was then filed in the Court of Appeal in relation to the orders of Judge McGill, but that appeal was abandoned pursuant to a notice of abandonment filed 16 May 2018.
4. [4]
   On 21 December 2017 his Honour Magistrate Mack sentenced the appellant to 18 months imprisonment with a parole release date fixed at 20 September 2018. In other words, the appellant was to serve nine months actual imprisonment which equates to one-half of the sentence. A conviction was also recorded.
5. [5]
   On the 12th of January 2018 the appellant lodged an appeal against his sentence. On the 23rd of February 2018 the appellant was granted bail pending his appeal against sentence. He had served 64 days in prison from the 21st of December 2017 to the 22nd of February 2018 inclusive. The grounds of appeal are set out in the notice of appeal of the 12th of January 2018. They are in these terms:

1. (1)
   The learned magistrate failed to:

1. (a)
   Identify whether he took into account the extra-curial punishment I received during the offence for which I was convicted, in particular the broken foot caused by the complainant;

2. (b)
   Indicate how that extra-curial punishment was taken into account in the sentencing process;

3. (c)
   Take into account the offer of compensation made by me.

2. (2)
   The sentence was in all the circumstances manifestly excessive.

History:

6. [6]
   To fully appreciate the grounds of appeal, particularly that relating to a failure to identify whether the magistrate took into account the extra-curial punishment, some details as to the history of the incident and the determination of the previous appeal against conviction is necessary. The appellant had previously lived with the complainant. The complainant in the assault charge, Ms Needham, was the mother of the appellant’s child Zac. That child born the 20th of October 2003 was aged 11 at the time of the offending. The appellant and the complainant had separated many years before, and orders were made in the family law jurisdiction on the 27th of September 2005, which provided for Zac to live with his mother and to spend time with his father, in accordance with those orders.
7. [7]
   On the 12th of December 2014 the appellant attended at the residence of the complainant to collect the child in accordance with those family law orders. The complainant had apparently previously advised the appellant that the child did not wish to spend time with him on that occasion, however, the appellant determined that he would still attend at the residence with the hope of encouraging or coaxing the child to go with him.
8. [8]
   When the appellant arrived at the complainant’s residence the child came to the car and informed the appellant that he did not wish to go with him that weekend. The child then returned into the complainant’s residence. The appellant exited his car and had a conversation with the complainant at the front door. He apparently suggested that she had the obligation or responsibility to make Zac accompany the appellant and he indicated to the complainant that if she were unable to get Zac to accompany him, then he would enter the unit and get him himself.
9. [9]
   The complainant indicated that she would not agree to the appellant entering her unit but said that she would speak with the child. She apparently attempted to do so but was unable to persuade Zac to go with the appellant. She then returned to the front of the residence and told the appellant of this. He insisted that she needed to get the child to go with him or that he would go inside and drag the child out himself. He then attempted to enter the unit and a physical altercation between the appellant and the complainant ensued.
10. [10]
    There was some divergence in the evidence of the appellant and the complainant at trial as to what might have occurred, the complainant suggesting that she put her arms up to block the appellant’s entry and was able to do so until he punched her on the cheek and pulled her away from the front door, so that he would be able to enter. She says that she attempted to use her mobile phone to seek assistance, but he punched her again, such that she dropped the phone and when she bent to pick it up, he punched her a number of other times causing her to back away from him.
11. [11]
    The complainant says that following that assault, but in the course of the incident generally, the appellant then entered into her residence and the complainant says she followed him into the kitchen when she again made an attempt to telephone police but was again assaulted by the appellant where he began punching her again. She suggests that this continued until the child yelled out to the appellant to stop and at that point he did so and left the complainant’s residence.
12. [12]
    The appellant’s version of events is to the effect that when he sought to go into the residence to speak with the child, the complainant refused to allow him entry and, in fact, she forcefully pushed him back when he tried to enter the residence. He says he fell to the ground and whilst he lay dazed on the ground the complainant picked up a large blue pot and dropped it onto his foot. He says that as a consequence of that the fifth metatarsal of his foot was significantly displaced and there was medical evidence to the effect that the injury was such that it would not have healed without an operation. On the 29th of December 2014 his foot was operated on and an open reduction with an internal fixation with a plate and screws was carried out.
13. [13]
    The appellant says that after the injury to his foot he still managed to return to his feet and it was only then that he struck the complainant numerous times with his fists. He says that he then entered the residence to speak with his son and that the complainant followed him and he then struck her a number of further times. The appellant says that the child was upset but does not suggest that the child called out to him to cease the blows to the complainant. In any event, both appellant and complainant acknowledge that the appellant then left the residence of the complainant.

Discussion:

14. [14]
    At trial the learned magistrate rejected the proposition that the complainant had lifted a pot and dropped or threw it at the appellant, causing the injury to the appellant’s fifth metatarsal. The learned magistrate accepted that there was an injury but stated that he was unable to identify how the appellant came to suffer that injury. He did note, however, that in light of the findings that he had made, in relation to the complainant and the veracity of her evidence, he was satisfied that it was not as a result of any deliberate act with the pot-plant, by the complainant.
15. [15]
    However, on appeal as to conviction Judge McGill took a different view at least with regard to the cause of the injury to the appellant’s foot. At paragraph 41 of his Honour’s reasons Judge McGill said:

However, on the evidence before the magistrate I consider that the existence of the injury to the appellant’s left foot, the evidence of the police officers who attended his home, and the evidence of the orthopaedic surgeon together provided a basis for the magistrate to have at least a reasonable doubt about the reliability of the evidence of the complainant, so that it was not open to him on the evidence simply to accept her as an honest and reliable witness in all respects. I am conscious of the respect that should be shown to a magistrate when conducting a trial of this nature, particularly in relation to findings as to credibility of witnesses, but I consider that the injury to the appellant’s foot cannot be satisfactorily put aside simply on the basis that it cannot be explained but was not caused by the complainant. To that extent, I disagree with the approach adopted by the magistrate in finding the facts.

16. [16]
    It is relevant that that arose in relation to this particular matter, because the learned magistrate made specific reference to those comments by Judge McGill in his sentencing remarks, but as is indicated it is suggested that he did not specifically consider it in the ultimate penalty that was imposed. In his sentencing remarks the learned magistrate said at page 2, line 24 onward the following:

You did not come out of the episode unscathed. You suffered a broken foot that required surgical intervention. That injury is accepted and amounted to grievous bodily harm. The defendant it seems, or you it seems still has a plate and screws in your foot and it is caused some discomfort to you still. This discomfort, it is submitted, must be taken into account in terms of extra-curial punishment.

17. [17]
    Thereafter, reference is made in the sentencing remarks to various cases that were referred to by counsel for the appellant with regard to the effect of extra-curial punishment. The learned magistrate at page 3, line 23 says:

Before any extra-curial punishment can be taken into account in reducing an otherwise appropriate sentence, there must be some serious loss or detriment suffered as a result of committing the offence. In this instance you have suffered a broken foot which was repaired by the insertion of a plate and screws that are still there. This involved some discomfort and will, it is submitted, serve as a reminder of the offence for years to come.

18. [18]
    His Honour was clearly aware of the requirement that extra-curial punishment be considered in relation to whatever might be the ultimate penalty to be imposed, however, at the conclusion of the sentencing remarks the learned magistrate said:

Now, I have had regard to the seriousness of the offence, your complete lack of remorse, the detrimental effect on the victim and the prevalence of the offence in the community. I consider that in view of the serious nature of the offence committed there is no reasonable alternative to a term of imprisonment to achieve the purposes that I have referred to. You are convicted. The conviction is recorded. You are sentenced to 18 months imprisonment. I fix a parole release date of the 20th of September 2018 which marks the half-way point of that term. Upon your release from prison you are required to report to the parole authorities within 24 hours of your release. If you fail to do so you will be unlawfully at large.

19. [19]
    Clearly whilst his Honour Magistrate Mack had made reference to the issue of the injury to the appellant’s foot and the fact that consideration needed to be given to it, in relation to any reduction that might be imposed in relation to the ultimate penalty, he does not make reference to that particular aspect of the matter in those closing remarks. Rather, he makes reference to the seriousness of the offence which is of course correct and the detriment to the victim as well as the prevalence of the offence of that nature in the community and notes additionally that there is a complete lack of remorse.
20. [20]
    That also is the subject of some concern in relation to the appeal, it being noted that the appellant had made an offer of compensation to the complainant, in the sum of $1200. In submissions made to me, it was argued that whilst the appellant had appealed his conviction it was on the basis of an error of law regarding his defence and if his defence was not one that at law provided a defence to the offence charged then he had offered compensation.
21. [21]
    The argument put was to the effect that the learned magistrate’s suggestion that there was a, “complete lack of remorse”, was therefore incorrect. It may have been that the learned magistrate did not weigh it heavily or at all in relation to any assessment of the actual remorse of the appellant, but it is argued that his Honour’s failure to at least address how he reached a conclusion that there was a complete lack of remorse led to an error in the sentencing process.

The Law:

22. [22]
    Insofar as the law is concerned section 222(1) of the Justices Act 1886 provides:

(1) If a person feels aggrieved as a complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within one month after the date of the order to a District Court Judge.

23. [23]
    It is that process that is to be followed here. The appeal is then by way of re-hearing on the original evidence given in the evidence before the magistrate. The court has the power then to confirm, set aside or vary the order of the magistrate. There is also, however, consideration that must be given to the second ground of appeal which is that the sentence was, in all the circumstances manifestly excessive. In order for a sentence to be “excessive”, it must be beyond the acceptable scope of judicial discretion or so outside the appropriate range as to demonstrate inconsistency and unfairness.
24. [24]
    In commenting upon the basis for an appeal pursuant to the provisions of section 222 of the Justice Act 1886, the High Court in Kentwell v R [2014] 252 CLR 60 at 35 said the following:

In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.

25. [25]
    Further attempts have been made to explain the process to be followed and Acting Justice of Appeal Wilson said in Tierney v Commissioner of Police [2011] QCA 327 at 26 the following:

An appeal from a Magistrates Court to the District Court, pursuant to section 222 of the Justices Act 1886 (Qld) is a re-hearing 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.

26. [26]
    Of course, the consideration of a discretionary error has been the subject of considerable commentary and flows from the long accepted position as expressed in House v R (1936) 55 CLR 499 where the following was said:

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 to 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.

27. [27]
    At the conclusion of the argument on the part of the appellant, at least in relation to the basis upon which the appeal should succeed, the following was said:

Here, the appellant appeals the sentence imposed after trial on 21 December 2017 by Magistrate Mack on two bases; first, upon an error of law which vitiates the sentence and obliges the District Court in its appellate jurisdiction to set aside the sentence imposed in the Magistrates Court and to re-sentence the appellant afresh and, secondly, upon an error in the exercise of discretion whereby the sentence imposed was beyond the allowable range and, thus, the District Court, in its appellate jurisdiction, is entitled to set aside the sentence and re-sentence the appellant.

28. [28]
    The argument in relation to the first of the bases upon which it is suggested that the appeal should be successful, an error of law, relates to the suggestion that the learned magistrate had failed to take into account or to properly explain how account was given to the issue of extra-curial punishment. The argument put was that whilst the learned magistrate referred to the cases raised by defence counsel and, in sentencing remarks, identified the broken foot, the insertion of a plate and screws and discomfort suffered, his Honour failed to make any mention of how or whether the extra-curial punishment was taken into account in sentencing.
29. [29]
    It was noted, in that regard, that the learned magistrate did not even mention the matter when identifying those matters which he had specifically considered in determining the appropriate sentence to be imposed, that being the comments at the conclusion of his sentencing remarks to which I have already made reference.
30. [30]
    It is clear that there was no reference to those specific issues other than the comments to which I have already made reference and there must clearly be a concern held that the failure to explain how the issue of extra-curial punishment was considered gives rise to a concern that there is an error of law.
31. [31]
    The learned magistrate was referred to a number of authorities which made it clear that extra-curial punishment is a matter relevant to sentencing and one which can appropriately be considered to mitigate sentence. Specific reference was made to R v Hook [2006] QCA 458, R v Hannigan [2009] QCA 40, R v Davidson; ex parte Attorney-General [2009] QCA 283 and R v Galeano [2013] QCA 51. More specifically, it was noted that a failure to have regard to that specific issue, or to give it appropriate consideration in the exercise of the sentencing discretion, is an error which enlivens the court’s jurisdiction to re-sentence. More specifically, section 9(2)(g) of the Penalties and Sentences Act 1992 (Qld) provides that a court:

must have regard to … the presence of any aggravating or mitigating factor concerning the offender.

32. [32]
    In that regard, it was submitted that the learned magistrate did not do so and that, therefore, the sentence was one that had been reached in error. Reference there was made to the decision in Spizzirri v The Commissioner of Police [2015] QDC 222 where her Honour Judge Bowskill QC, as she then was, identified the failure of the sentencing magistrate to take into account section 9(2)(k) of the Penalties and Sentences Act and found that that led to an error in the exercise of the sentencing discretion. There her Honour specifically made reference to the comments of Acting Justice of Appeal Margaret Wilson in R v Hyatt [2011] QCA 55 where her Honour noted at paragraph 11:

It is desirable that sentencing remarks be succinct, sharply focused and expressed in a way likely to resonate with the offender, the victim and the public at large. They also have to be able to withstand the scrutiny of appellate courts. The reasons for structuring a sentence in a particular way should ordinarily appear in the sentencing remarks and a sentencing court may more readily infer error when reasons are not expressed.

33. [33]
    Judge Bowskill QC went on to note in Spizzirri v Commissioner of Police that even in circumstances where there may be exchanges between the bench and counsel, it does not necessarily reflect the appropriate consideration as required in respect of sentencing remarks. Her Honour said, at paragraph 31, the following:

There may be circumstances in which it is appropriate to consider exchanges between counsel and the bench in, “amplification of the reasons”, although it has been said that “a cautious approach is warranted” since such exchanges are often designed to draw out and test submissions and often are in the nature of preliminary observations.

34. [34]
    Commenting in a similar vein, Judge Dearden in Owens v The Queensland Police Service [2012] QDC 392 noted that the failure of a sentencing magistrate to place any weight at all on extra-curial punishment, as well as placing too much weight on another consideration, the prior criminal history, led to a clear sentencing error. The issue clearly is that there must be a connect between the identification of extra-curial punishment and the sentence imposed.
35. [35]
    Similarly, there is a suggested disconnect between the offer of compensation made by the appellant to the complainant in the sum of $1200 and the comment by the learned magistrate at the conclusion of his sentencing remarks that there was a, “complete lack of remorse”. There appears to be no indication as to how his Honour viewed the offer of compensation and whether that then constituted some indication or degree of remorse or was disregarded by the learned magistrate for the purposes of section 9(3) of the Penalties and Sentences Act.
36. [36]
    The argument on the part of the respondent was to say that even if it were to be the case that errors, as suggested on the part of the appellant were to be found, they were not necessarily an automatic guarantee of success in relation to an appeal in that respect. In Ross v The Commissioner of Police [2018] QDC 99 Judge Muir examined the principles relating to appeals with regard to sentence. There his Honour said at paragraphs 8 and 9 the following:

It is not a sufficient basis for this court to intervene that this court considers it might have taken a different course between the competing considerations which have to be weighed in the exercise of the discretion. It must appear that some error has been made in exercising the discretion of the kind identified in House v R. If the magistrate acted upon a wrong principle, if he allowed extraneous or irrelevant matters to guide or affect him, if he made a mistake about the facts, if he did not take into account some material consideration, then the appellate court may exercise its own discretion in substitution for his, if it has the materials to do so.

37. [37]
    But his Honour goes on in paragraph 9 as follows:

It is not necessary to identify a particular error as Keane JA (as he then was) observed in R v Ikin. The judgment appealed from is a discretionary one. An appeal can succeed only if an error of the kind described in House v R (1936) 55 CLR 499 at 504 – 505 has occurred. In this regard, there may be cases where the sentence is so “unreasonable or plainly unjust” in the circumstances as to give rise to an inference that the discretion has miscarried. It is this idea which informs the familiar ground of appeal that a sentence is manifestly excessive. But that having been said, as was emphasised by Kirby J in Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 341, this Court should allow an appeal against sentence only where the error is clearly apparent.

38. [38]
    Thereafter, the Crown argued that the question of an error ultimately requires a consideration of whether the error may have led to a finding as to why the sentence of itself was excessive. In that respect, Devereaux SC DCJ observed in Rongo v The Commissioner of Police [2017] QDC 258:

Successfully demonstrating an error does not guarantee success of the appeal but it might explain why the sentence was excessive.

39. [39]
    Judge Devereaux noted in Rongo the following at paragraph 23:

It seems to me, then, that the focus in this and many appeals brought to this court on attempting to demonstrate an error in the exercise of the sentencing discretion is not misguided but slightly misplaced. The real question is whether the sentence was excessive, so that, although the appellant may argue that the magistrate made a certain error, the success of the appeal does not depend on persuading the appeal court on that point.

40. [40]
    His Honour then noted in paragraph 24:

Identifying a particular error might assist because it might explain why the sentence was excessive. And that is ultimately, as I understand it, the appellant’s argument in this case.

41. [41]
    I am minded to the view that that is the appropriate consideration in relation to the determination of this matter. Even if an error is identified and, in this case, it is suggested that there are two errors, the failure to explain appropriately the consideration of any extra-curial punishment and the consideration of any remorse that might be identified as a result of the offer of compensation, the ultimate question is whether the punishment which was imposed, was manifestly excessive. Argument by both counsel for the appellant and counsel for the respondent, focused on this particular aspect of the matter.
42. [42]
    The appellant, through counsel, conceded that in submissions made to the learned magistrate, it was acknowledged that a term of imprisonment in the range of six to nine months imprisonment was appropriate but that an actual term of imprisonment was not required. The prosecution submitted that a sentence between 18 months to two years imprisonment with a requirement that the appellant serve half of the sentence in prison was appropriate. In that regard, it is noteworthy that the prosecution, in their submissions on sentence, suggested that the sentence should fall in the higher end of the range due to the appellant’s lack of remorse. Such a submission seems to have been taken up by the learned magistrate in the sentencing remarks, to which I have already made reference.
43. [43]
    Counsel for the appellant at sentence and the prosecutor, made reference to a considerable number of cases in their provision of assistance to the learned magistrate about a penalty to be imposed. Both counsel at the appeal made reference to R v RAP [2014] QCA 228. Each, interestingly, sought to rely upon the facts but then to either align them, as was the position of the prosecution, or distinguish them, as was the position of the defence. In R v RAP, on appeal Justice Wilson held that, in the case of a serious assault in a domestic setting, a sentence of imprisonment for two years or more is, “plainly within the proper sentencing range” and that it was, “far from excessive”.
44. [44]
    The circumstances in RAP were certainly distinguishable in one particular respect and that related to the fact that the appellant in RAP had pleaded guilty. The sentence imposed was for two years imprisonment suspended after eight months. In RAP, the assault was described as vicious and sustained. It involved the appellant striking his former partner on both sides of the head, punching her four times, dragging her by the hair and telling her that she was, “fucking dead”. The assault was interrupted by the intervention of their 16 year old son. It was noted in RAP that the appellant had kicked the complainant, chased her and punched her in the face from behind. He also caused damage to her property and made threats to kill her. She suffered significant physical injuries, including three facial fractures to the cheek, cheekbone and eye socket as well as psychological injuries. It was identified as a terrifying experience for both her, the complainant, and their son.
45. [45]
    Similarly, in this case, matters were identified by the learned magistrate as being of significance in relation to sentence and they included:

• That the appellant was found guilty after trial;
• The seriousness of the offence and its prevalence in the community;
• The protracted nature which only came to an end when there was the intervention by Zack who observed, at least in part, the assault upon the complainant; and
• The significant effect upon the complainant as set out in two victim impact statements and that the complainant suffered physical injuries and was affected by the assault upon her.

46. [46]
    Balanced against those considerations, however, the learned magistrate also identified the following matters as points in mitigation:

• The appellant suffered a broken foot that required surgical intervention and there was still discomfort caused as a result of the break;
• The appellant’s age and lack of criminal history;
• That the appellant contributed to the community and had been in full-time employment since he left school;
• That the reference from the appellant’s employer was provided and it spoke highly of him; and
• That there was an offer of $1200 compensation to the complainant.

47. [47]
    Similarities in the two cases are obvious. There is clearly some similarity in the ages of the appellants in each matter, though it is acknowledged that in RAP the appellant is a few years older than the appellant here. Additionally, neither had any criminal history at the time of committing the offence and were otherwise of good character. There is a suggestion that the course of conduct in relation to each of the appellants was a protracted, vicious and brutal attack upon a former partner, with multiple blows being exchanged and, at least from the perspective of the complainant in this matter, it was suggested that the appellant did not desist his assault upon her until the intervention of their son.
48. [48]
    Additionally, the complainants in this matter and in RAP both suffered physical and psychological injuries, though it appears clear that the injuries sustained by the complainant in RAP were more significant. Distinguishing those particular aspects of the matter, however, is the fact that RAP involved a plea of guilty whilst this was a matter determined following two days of hearing.
49. [49]
    But perhaps most significant of all was that it appears clear, particularly following the findings of Judge McGill, that there is a consideration of extra-curial punishment.
50. [50]
    Additionally, reference was made to a considerable number of cases with regard to the range that should be considered in relation to a penalty to be imposed. They included R v Pierpoint [2001] QCA 493, R v Johnson [2002] QCA 283, R v Von Pein [2001] QCA 385, R v Fairbrother; ex parte Attorney-General [2005] QCA 105, R v King [2006] QCA 466, R v George [2006] QCA 001 and R v Roach [2009] QCA 360. Those various authorities emphasise the various extents of considerations and the penalties that might be imposed. They show clearly the very considerable range of penalties and the need for an independent exercise of discretion. In that regard, I note the comments of his Honour Judge Durward SC of this court in IFM v Queensland Police Service [2016] QDC 140 at paragraph 23. His Honour said:

Every case depends very much upon its own circumstances and comparative sentences are only useful as a guide to a sentencing judicial officer if they reflect similar circumstances, similar conduct, similar antecedents and are truly comparable. Comparative sentences may have the function of indicating a range of sentencing or provide statements of principle stated by a court of appeal or another higher court. However, they do not mandate a particular sentence to be imposed by a magistrate who has a discretion which, if exercised judicially, provides him or her, as the case may be, to take account of the criteria to which I have referred.

51. [51]
    Provided there is an explanation for the sentence imposed, which is capable of understanding by an appellate court, judicial discretion allows that judicial officer to impose a sentence which he or she thinks fits the circumstances and reflects all of the matters that are required to be taken into account on a sentencing proceeding. His Honour Judge Durward has succinctly explained the considerations that must be looked at, both in relation to sentencing and in respect of the determination as to whether an appeal might be successful.
52. [52]
    Ultimately, in this matter, I have come to the view that there are errors which give rise to a basis upon which the appeal should be successful. There is no explanation as to the learned magistrate’s consideration of extra-curial punishment and how it was taken into consideration with regard to the penalty that was imposed. There is no explanation as to the basis upon which the learned magistrate found that there was a complete lack of remorse, when his Honour noted that there was an offer of compensation.
53. [53]
    Additionally and perhaps most significant, however, I conclude that the learned magistrate fell into error when he determined that a sentence of 18 months imprisonment was the appropriate penalty. Having regard to the comparable cases, it is my view that the imprisonment term of 18 months was manifestly excessive, perhaps most directly as a result of the errors that have been identified. In so far as the course then to be followed is concerned, section 225(1) of the Act provides:

On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.

54. [54]
    I am satisfied that the errors identified vitiate the sentence imposed by the learned magistrate. Accordingly, the appeal is allowed and the sentences are set aside. The appellant is to be re-sentenced. In the circumstances, however, I will re-sentence, there being no utility in sending the proceedings back to the Magistrates Court. I will hear, in due course, from the parties about arrangements in relation to re-sentencing. The hearing is otherwise adjourned for that purpose and the bail currently available for the appellant is enlarged.
55. [55]
    The orders of the court, therefore, will be:

1. (1)
   The appeal is allowed.
2. (2)
   The hearing is adjourned for sentence on a date to be fixed.
3. (3)
   Bail is enlarged.