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NHR v The Commissioner of Police[2021] QDC 67

NHR v The Commissioner of Police[2021] QDC 67

DISTRICT COURT OF QUEENSLAND

CITATION:

NHR v The Commissioner of Police [2021] QDC 67

PARTIES:

NHR

(appellant)

v

THE COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

3120 of 2020

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1866

ORIGINATING COURT:

Magistrates Court of Queensland

DELIVERED ON:

23 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

16 April 2021

JUDGE:

Judge Loury QC

ORDER:

  1. The appeal is allowed
  2. The sentence imposed in the Magistrates Court is set aside.
  3. The appellant is convicted and fined $1000.
  4. The fine is to be paid within six months.
  5. The appellant is ordered to pay compensation in the sum of $1000 to the Registrar of the District Court at Brisbane within one month for transmission to Dylan Robert Bayliss-Brow of an address to be provided by the respondent. 
  6. If either the fine or compensation is not paid by the date ordered the Registrar is to refer the non-payment to the State Penalties and Enforcement Registry. 
  7. A conviction is not recorded. 

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – Where the appellant pleaded guilty to assault occasioning bodily harm – where the appellant was fined $6,000 and a conviction was recorded – whether the sentence imposed was manifestly excessive – whether the learned Magistrate erred in failing to consider the effect of recording a conviction upon the appellant’s social well-being

COUNSEL:

Mr C Reid for the appellant

Mr M Whelan for the respondent

SOLICITORS:

Patrick Murphy for the appellant

Office of the Director of Public Prosecutions for the respondent

  1. [1]
    The appellant pleaded guilty to one charge of assault occasioning bodily harm in the Magistrates Court at Brisbane on 28 October 2020. He was fined $6,000 to be paid within six months and in default of payment to serve 60 days imprisonment. A conviction was recorded. The appellant appeals against the fine of $6,000 and the recording of a conviction.
  1. [2]
    The appeal is pursuant to section 222 of the Justices Act 1886.  Such an appeal is to be conducted as a rehearing on the evidence below, that is, a review of the record of proceedings below rather than a fresh hearing, together with any new evidence that I allow to be admitted.  I am required to conduct a real review of the evidence and the learned Magistrate’s decision and make my own determination giving due deference to and placing a great deal of weight on the Magistrate’s view.[1] In order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.[2]
  1. [3]
    Sentencing involves the exercise of a discretion. Accordingly, the principles referred to House v The King[3] are apposite.  If it appears that some error has been made in the exercise of the Magistrate’s discretion because she has allowed irrelevant matters to affect her, mistaken the facts or failed to take into account some material consideration, then her decision should be reviewed and it is open for me to exercise the discretion afresh.
  1. [4]
    The ground of appeal is that the sentence imposed is manifestly excessive.
  1. [5]
    The offence occurred at the Victory Hotel in Brisbane at about 12:30am on 14 August 2020. The appellant and complainant were not known to each other and both had been consuming alcohol. The complainant was talking to a friend of the appellant when the appellant suddenly ran towards the complainant and head-butted him. The appellant mistakenly believed, unreasonably so, that the complainant was about to assault his friend. The blow spit the skin on the complainant’s nose.
  1. [6]
    The learned Magistrate described the offence as a serious act of violence without any cause or provocation. She noted that the appellant was only 20 years of age, without previous convictions. He had pleaded guilty at a very early time. He was intoxicated at the time of the offence. She referred to his exceptional attendance record at work and the regard that his employer had for him.
  1. [7]
    In considering whether to record a conviction the learned Magistrate took into account the impact that the recording of a conviction would have on the appellant’s employment. She said that the letter provided by his employer only referred to the appellant’s attitude at work. There was no material placed before her to indicate that his employment would be hampered if a conviction was recorded. Consequently the learned Magistrate said that there were no grounds provided for her, to not record a conviction. She fined the appellant $6000 and recorded a conviction. She also imposed a default period of imprisonment of 60 days.
  1. [8]
    The appellant was 20 years of age at the time of the offence and had no prior convictions. He was employed as an apprentice carpenter and was the holder of a Blue Card having been a surf lifesaver for some time. In order to patrol a flagged beach he was required to hold a Blue Card. The appellant had received notification from the Government that his Blue Card status might depend on the outcome of the charge.
  1. [9]
    A fine of $6000 is a very significant penalty for a young man employed as an apprentice carpenter. A number of comparable cases have been referred to which tend to suggest that a fine of $6000 with a conviction being recorded is excessive and manifestly so.
  1. [10]
    In EBH v Commissioner of Police[4] a sentence of 12 months imprisonment to be served by way of an intensive correction order was reduced on appeal to a fine of $250 with no conviction being recorded.  EBH was convicted of assault occasioning bodily harm. He was 21, with no criminal convictions. He smacked his 17 month old child on the thigh causing a bruise. The offence appears to have arisen out of an attempt to discipline the child.  The fine imposed took account of the fact that the appellant had complied with “virtually all” of his intensive correction order. 
  1. [11]
    In Nolan v Queensland Police Service[5] a sentence of six months imprisonment with immediate parole was reduced to 18 months probation with no conviction recorded.  Nolan had gratuitously “king-hit” a man he did not know, causing a laceration to the side of his face and mouth.   Nolan was 21 years of age with no criminal history.  He was employed as an apprentice electrician. 
  1. [12]
    In R v Hollis[6] a conviction was not recorded by the Court of Appeal against the appellant, who was convicted of assault occasioning bodily harm whilst armed against a woman with whom he was in a relationship.  The appellant, a 71 year old man with an impeccable record had, whilst intoxicated, thrown a number of wicker chairs at the complainant causing a five to six centimetre laceration to her arm and a superficial laceration to her head. He was fined $5000. 
  1. [13]
    The respondent relies upon decisions where terms of imprisonment were imposed. In R v Ball[7] the assault upon that complainant rendered him unconscious with Ball leaving the scene whilst his victim was rendered assistance by others.  The assault occurred whilst the complainant was effectively in the custody of security officers. Those features make Ball objectively a more serious example of the offence. Ball was sentenced to 18 months imprisonment with a parole release date after serving three months.  
  1. [14]
    In R v Lude; R v Love[8] the complainant, a taxi-driver, was confronted by the force of two persons who punched and kicked him.  Those features mean that objectively the offence was a more serious one. Love was sentenced to 9 months imprisonment with a parole release date after serving three months. Lude was sentenced to 9 months imprisonment with a parole release date after serving two months. 
  1. [15]
    Whilst those cases might demonstrate that imprisonment is within range for an offence of assault occasioning bodily harm they do not provide support for a fine of the magnitude of $6000 particularly when imposed on man with employment for the next four years as an apprentice. In my view the magnitude of the fine was manifestly excessive.
  1. [16]
    In determining whether to record a conviction the learned Magistrate had regard to section 12 of the Penalties and Sentences Act 1992.  The only matter which concerned her consideration of section 12 was the impact that the recording of a conviction would have on the appellant’s chances of finding employment.  Section 12 however also required the learned Magistrate to have regard to the impact that the recording of a conviction would have on the appellant’s economic and social well-being.[9]
  1. [17]
    The appellant, as indicated was employed as an apprentice carpenter. He commenced his apprenticeship in June 2020 which provides the appellant with four years of continuous employment. The reference tendered indicated that the appellant was well regarded by his employer and displayed an impressive attitude for a man as young as the appellant working on a very large construction site. The reference further indicated that the appellant would be offered permanent employment if he continued to display his current attitude to work throughout his apprenticeship.
  1. [18]
    The appellant is also a volunteer surf lifesaver. In order to patrol flagged areas on the beaches he is required to hold a Blue Card. The appellant had received notification from the government that his Blue Card was under review and that the outcome of that review would be dependent upon the sentence he received. Under the Working with Children (Risk Management and Screening) Act 2000 the offence of assault occasioning bodily harm is not a “disqualifying offence” or a “serious offence” which would automatically prohibit the appellant from holding a Blue Card. Matters which will impact upon the review of the appellant’s Blue Card include when the offence was committed; the nature of it and its relevance to the volunteer work of the appellant; and the penalty imposed.[10]
  1. [19]
    A reading of the legislation which governs the issuing of a Blue Card demonstrates that the recording of a conviction, which forms part of the penalty imposed, is a matter relevant to the issuing of a Blue Card. The impact that recording a conviction will have on the appellant will in that sense, have an impact on his social well-being, if it means that he can no longer perform duties as a volunteer lifesaver.
  1. [20]
    Volunteering has the effect of increasing a person’s self-confidence and instilling a sense of pride and purpose. It tends to boost self-esteem and general satisfaction with a person’s life, meaning that it can counteract the effects of stress, anxiety and even depression. It can make a person more competitive in the job market. The appellant’s volunteering as a lifesaver has likely contributed to the very attitude of which his employer is so impressed. It demonstrates that he is a civic-minded individual, a quality that is looked upon favourably by many employers, particularly those with large numbers of employees, because it can reveal an openness to teamwork. Volunteering as a lifesaver provides for the community in a way that also likely provides the appellant with a natural sense of accomplishment and results in his ties with the community being strengthened. It can of course lead to the saving of lives of members of the community, a feature that benefits the community as a whole.
  1. [21]
    The non-recording of a conviction is therefore an important feature in promoting the social well-being of the appellant. Section 12(2) of the Penalties and Sentences Act requires a balancing of the considerations stated within that section.[11]  The prospects of the appellant’s rehabilitation, given the benefits it naturally provides to him and the community, would, in my view, be hampered by the recording of a conviction, particularly if it led to a loss of self-confidence after the end of the criminal justice process.  The offence itself, whilst a serious one, because it involved alcohol-fuelled violence, is not such that there is a need for public denunciation of the offence to the detriment of the appellant’s prospects of rehabilitation.  The balance, in my view, favours the non-recording of a conviction. 
  1. [22]
    The learned Magistrate did not consider the effect upon the appellant’s social well-being in deciding to record a conviction. In that respect she failed to take into account a relevant consideration in exercising her discretion. It is necessary for the exercise of the sentencing discretion afresh.
  1. [23]
    The appellant is able to make payment of $1000 immediately by way of compensation to the complainant. He is able to pay any further penalty over a period of time. I consider that the appropriate sentence is a penalty of $2000. I will order that $1000 of that penalty be payable as compensation to the complainant.
  1. [24]
    My orders are:
  1. The appeal is allowed
  2. The sentence imposed in the Magistrates Court is set aside.
  3. The appellant is convicted and fined $1000.
  4. The fine is to be paid within six months.
  5. The appellant is ordered to pay compensation in the sum of $1000 to the Registrar of the District Court at Brisbane within one month for transmission to Dylan Robert Bayliss-Brow of an address to be provided by the respondent.
  6. If either the fine or compensation is not paid by the date ordered the Registrar is to refer the non-payment to the State Penalties and Enforcement Registry.
  7. A conviction is not recorded.

Footnotes

[1] Robinson Helicopter Co Inc v McDermott (2016) 90 QLJR 679, 686 at [43].

[2] Allesch v Maunz (2000) 203 CLR 172 at [22]-[23].

[3]  (1936) 55 CLR 499.

[4] [2019] QDC 115.

[5] [2012] QDC 179.

[6] [2020] QCA 7.

[7] [2012] QCA 51.

[8] [2007] QCA 319.

[9] Penalties and Sentences Act 1992 s 12(2)(c).

[10] Working with Children (Risk Management and Screening) Act 2000 ss 221, 226 & 294.

[11] See R v ZB [2021] QCA 9 per Sofronoff P.

Close

Editorial Notes

  • Published Case Name:

    NHR v The Commissioner of Police

  • Shortened Case Name:

    NHR v The Commissioner of Police

  • MNC:

    [2021] QDC 67

  • Court:

    QDC

  • Judge(s):

    Judge Loury QC

  • Date:

    23 Apr 2021

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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