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Randall-Salam v Commissioner of Police[2019] QDC 65

Randall-Salam v Commissioner of Police[2019] QDC 65

DISTRICT COURT OF QUEENSLAND

CITATION:

Randall-Salam v Commissioner of Police [2019] QDC 65

PARTIES:

THOMAS RANDALL-SALAM

(Appellant)

V

COMMISSIONER OF POLICE

(Respondent)

FILE NO/S:

D83/18

DIVISION:

Appeal

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Q)

ORIGINATING COURT:

Magistrates Court at Mackay

DELIVERED ON:

3 May 2019

DELIVERED AT:

Mackay

HEARING DATE:

29 April 2019

JUDGE:

Smith DCJA

ORDER:

1. The appeal is allowed.

2. The order for restitution of $14,730.43 is set aside and in lieu thereof the appellant is ordered to pay compensation in the amount of $2,826.88 within 28 days to the Registry of the Magistrates Court at Mackay to be paid out to Mr Anthony Angler at an address to be provided to the Registrar by the respondent.

3. In default of payment within that time the appellant is ordered to serve 1 months’ imprisonment.

4. If the appellant fails to pay the sum within the ordered time, I direct he appear before the District Court at Mackay at 9.30 am on 17 June 2019 to show cause why the default imprisonment should not be enforced.

5. The appeal is otherwise dismissed.

6. I make no order as to costs.

 

 

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – whether sentence excessive – whether restitution order should have been made.

Justices Act 1886 (Q) s 222, 223.

Transport Operations Road Use Management Act 1995 (Q) s 83

AB v R (1999) 198 CLR 111

Pavlovic v Commissioner of Police [2007] 1 Qd R 344; [2006] QCA 134

R v Ferrari [1997] QCA 073

R v Matauaina [2011] QCA 344

Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 084

COUNSEL:

Solicitors for the appellant

Ms T. Lawrence for the respondent 

SOLICITORS:

Taylors Solicitors for the Appellant

Office of the Director of Public Prosecutions for the Respondent  

Introduction

  1. [1]
    This is an appeal by the appellant against a sentence imposed upon him on 20 November 2018.
  1. [2]
    The appeal is pursuant to s 222 of the Justices Act1886 (Q). 
  1. [3]
    Section 223 of the Justices Act provides that the appeal is to be by way of rehearing.  In Teelow v Commissioner of Police[1]it was held that ordinarily to succeed in such an appeal it is necessary for the appellant to demonstrate that having regard to all of the evidence before the appellate court, the order below is the result of some legal, factual or discretionary error.

Charge

  1. [4]
    The appellant was charged with one charge of driving without due care and attention or driving without responsible consideration for other persons using a road contrary to s 83 of the Transport Operations Road Use Management Act1995 (Q).  The offence occurred on 25 October 2018.
  1. [5]
    The appellant was fined the sum of $1,000 and ordered to pay restitution in the amount of $14,780.43 to the registrar of the Magistrates Court at Mackay to be paid to Mr Anthony Angler. He was also disqualified from holding or obtaining a Driver’s Licence for a period of six months.

The facts

  1. [6]
    The appellant was driving a V8 Holden Commodore in a residential area recklessly at high speed. On turning right into a street, he lost control of his vehicle. His vehicle drifted over the road, collided with the gutter, travelled over a driveway and then collided with a structural metal fence.

Appellant’s submissions

  1. [7]
    No issue was taken with the imposition of the fine or disqualification period. The appeal relates to the restitution order. It is submitted the magistrate denied procedural fairness by not providing the appellant with adequate notice and the ability to be heard in relation to this issue.
  1. [8]
    It is further submitted that the magistrate erred in making an order for restitution as distinct from compensation.
  1. [9]
    The appellant also seeks to rely on fresh evidence as to the cost of repairs to the fence.

Respondent’s submissions

  1. [10]
    The respondent concedes that the magistrate engaged in two errors. Firstly, that he acted on an incorrect principle when imposing the restitution order and the appellant was denied procedural fairness with respect to it. The respondent does not oppose leave being sought by the appellant to adduce new evidence. It is agreed that a restitution order ought not to have been made here. It is also agreed the appellant was not provided with the restitution notes prior to the hearing nor was he afforded the appropriate opportunity to be heard with respect to restitution.
  1. [11]
    The respondent does not oppose the admission of the fresh evidence.

Discussion

  1. [12]
    Section 35 of the Penalties and Sentences Act1992 provides:

“(1) The court may order that the offender—

  1. (a)
    make restitution of property—
  1. (i)
    in relation to which the offence was committed; or
  1. (ii)
    taken in the course of, or in connection with, the commission of the offence; and
  1. (b)
    pay compensation to a person for any loss or destruction of, damage caused to, or unlawful interference with, property—
  1. (i)
    in relation to which the offence was committed; or
  1. (ii)
    in the course of, or in connection with, the commission of the offence; and
  1. (c)
    pay compensation for personal injury suffered by a person (whether or not the person is the victim against whom the offence was committed) because of the commission of the offence.
  1. (2)
    An order may be made under subsection (1) in addition to any other sentence to which the offender is liable.
  1. (3)
    If an offence is taken into account under section 189 in imposing sentence on an offender for another offence, the court may make an order under subsection (1).
  1. (4)
    If a court makes an order under subsection (1) because of subsection (3), then, despite section 189(8), the offender has the same right of appeal as if the court had convicted the offender of the offence in relation to which the order was made.”
  1. [13]
    In R v Ferrari[2]it is said that:

“Strictly speaking, restitution in this context means the return or redelivery of particular property… what was in contemplation here was not restitution of the vehicle to its owner, who had already recovered it, but compensation for damage to it.”

  1. [14]
    It is my opinion that the magistrate erred in making an order for restitution. An order for compensation should have been made. This is a material error as to the nature of the order. It gives rise to a resentence in this case.[3]
  1. [15]
    As to whether there was a failure to accord procedural fairness, the prosecutor informed the magistrate that the appellant had a criminal history and some restitution “notes” to hand up. It is my view that the appellant was not given any opportunity to review the restitution notes to be given adequate notice of the amount of compensation being sought. It is clear on the evidence the sum of $14,730.43 was excessive.
  1. [16]
    In R v Matauaina[4]it was said:

“Senior counsel for the respondent acknowledged that the principles of procedural fairness apply in sentencing, including in relation to an order for compensation made under s 35 of the Penalties and Sentences Act.  One of those principles is that a person is entitled to “adequate notice and opportunity to be heard” before any judicial order is pronounced against the person so that the person, or someone acting on that person’s behalf, may make representations about the proposed order.”

Resentence

  1. [17]
    I now turn to the issue of what compensation (if any) should be ordered. The appellant seeks leave to adduce evidence of photographs of damage to the fence which he submits is not consistent with the quote provided for compensation. He further seeks leave to tender a quote from City Gates Fencing Mackay dated 13 March 2019 which states “supply and install powder coated aluminium fencing custom made to match the existing fence with “pregnant lady” style curved balusters” for an amount of $2,739.00 inclusive of GST.
  1. [18]
    In addition there are the repairs to the letter box in the sum of $87.88.
  1. [19]
    It is my opinion, bearing in mind the appellant was unrepresented before the magistrate, that this evidence should be admitted.
  1. [20]
    In my view the tribunal of fact below may have made a different order if this evidence was before it.[5] 
  1. [21]
    It is in the interests of justice that the evidence be admitted. Or as the Justices Actprovides, there are “special grounds” to admit this new evidence.[6]I am persuaded by the validity of the quote tendered by the appellant. It is not challenged.
  1. [22]
    In the circumstances I make the following orders:
  1. The appeal is allowed.
  1. The order for restitution of $14,730.43 is set aside and the appellant is ordered to pay compensation in the amount of $2,826.88 within 28 days to the Registrar of the Magistrates Court at Mackay for payment out to Mr Anthony Angler at an address to be provided to the Registrar by the respondent.
  1. In default of payment within that time, the appellant is ordered to serve 1 months’ imprisonment.
  1. If the appellant fails to pay the sum within the ordered time, I direct he appear before the District Court at Mackay at 9.30 am on 17 June 2019 to show cause why the default imprisonment should not be enforced.
  1. The appeal is otherwise dismissed.
  1. I make no order as to costs.

Footnotes

[1]  [2009] 2 Qd R 489 at [4]; [2009] QCA 084.

[2]  [1997] QCA 073.

[3] AB v R (1999) 198 CLR 111 at [130].

[4]  [2011] QCA 344 at [26].

[5] Pavlovic v Commissioner of Police [2007] 1 Qd R 344; [2006] QCA 134.

[6]  Section 223 (2) of the Justices Act 1886 (Q).

Close

Editorial Notes

  • Published Case Name:

    Thomas Randall-Salam v Commissioner of Police

  • Shortened Case Name:

    Randall-Salam v Commissioner of Police

  • MNC:

    [2019] QDC 65

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    03 May 2019

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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