Stevenson v Commissioner of Police
[2023] QDC 126
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Stevenson v Commissioner of Police[2023] QDC 126
- Add to List
Stevenson v Commissioner of Police[2023] QDC 126
Stevenson v Commissioner of Police[2023] QDC 126
DISTRICT COURT OF QUEENSLAND
CITATION: | Stevenson v Commissioner of Police [2023] QDC 126 |
PARTIES: | Benjamin Craig Stevenson (Appellant) v Commissioner of Police (Respondent) |
FILE NO/S: | 259/23 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 11 July 2023 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 July 2023 |
JUDGES: | Allen KC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the appellant was found guilty, after a summary trial, of the offence of common assault – where the appellant was sentenced to six months imprisonment to be suspended after he had served three months for an operational period of twelve months – where the appellant was also ordered to pay compensation to the complainant in the amount of $1000 – whether sentence is manifestly excessive Legislation Justices Act 1886 (Qld), s 222 Penalties and Sentences Act 1992 (Qld), s 9 Cases Harris v the Queensland Police Service [2018] QDC 27 House v The King [1936] 55 CLR 499 R v Ampeybegan (District Court of Queensland, Judge Bradley, 29 March 2006) R v Clarke (District Court of Queensland, Judge Botting, 28 February 2007) R v Cooney [2019] QCA 166 R v Dowe (District Court of Queensland, Judge Smith, 30 August 2018) R v Guivarra (District Court of Queensland, Burnett AM DCJ, 4 May 2015) R v Johnson (District Court of Queensland, Judge Forde, 11 July 2006) R v King [2008] QCA 1 R v Leith (District Court of Queensland, Judge Dearden, 29 May 2008) R v Murray [2014] QCA 250 R v Sawtell (District Court of Queensland, Coker DCJ, 26 August 2021) R v Urquhart (District Court of Queensland, Chief Judge Wolfe, 12 February 2007) |
COUNSEL: | P A White for the appellant J A Coghlan, sol for the respondent |
SOLICITORS: | Bell Criminal Lawyers Office of the Director of Public Prosecutions (Qld) |
- [1]On 2 February 2023, the appellant pleaded not guilty to a charge of common assault committed on 16 January 2022. On the same day, after a summary trial, he was found guilty of the offence of common assault and remanded in custody until the following day for sentence.
- [2]On 3 February 2023, the appellant was sentenced to six months imprisonment to be suspended after he had served three months for an operational period of twelve months. He had offered to pay, and was ordered to pay, compensation to the complainant in the amount of $1000.
- [3]On 6 February 2023, the appellant filed a notice of appeal against sentence. On 14 February 2023, the appellant was granted bail pending the appeal. He thus served 12 days in custody following upon his conviction.
- [4]The appellant has appealed against the sentence imposed by the learned Magistrate pursuant to section 222 of the Justices Act 1886 (Qld).
- [5]The appeal is by way of a rehearing on the record. The onus is upon the appellant to show that there has been some error in the decision under appeal. The appeal against sentence is against the exercise of discretion, and so the principles in House v The King [1936] 55 CLR 499 at 504-505 apply. A court must not interfere with a sentence unless it is manifestly excessive, that is, unreasonable and plainly unjust. A conclusion to that effect will not be reached simply because the appellate court might have taken a different view as to penalty. To succeed on the appeal, the appellant must satisfy the appellate court that the sentence imposed is outside the acceptable scope of judicial discretion. Often, such is established by reference to comparative decisions. Even if an appellate court finds that the sentence was at the top end of a permissible range or has a different view as to how the discretion should have been exercised, that is not of itself sufficient justification for interference with sentence. The court should only interfere upon being satisfied of manifest excess of sentence and error of the second type referred to in the earlier cited passage of House v The King.
- [6]The circumstances of the offending are as follows.
- [7]The complainant was an employee of McDonald’s Cannon Hill. On 16 January 2022, she was serving customers in the drive-through section of the McDonald’s. The complainant served the appellant. However, there was an item missing from his order and he was asked to wait at a further window. After a number of minutes, a drink was thrown through the window of the store from the direction of the vehicle driven by the appellant. The complainant attended the window and inquired if there was a problem. The appellant was swearing and agitated. He called her a “cunt” and said that she was “crap” at her job. The complainant cleaned the drink up, opened the window and told the complainant she should not have to deal with customers who are aggressive and that he should leave. The appellant started swearing again and spat at the complainant before driving away.
- [8]The offence was committed during the period of time when it was common for persons to wear face masks in circumstances of the COVID pandemic. The complainant was fortunate to have been wearing a face mask at the time of the offence. The appellant’s spittle landed on the top of the face mask. The complainant went to a bathroom, removed the mask with spittle on it, and washed her face. There was no allegation that any of the spittle actually landed on her skin.
- [9]The complainant, understandably, was quite distressed by the disgusting action of the appellant. She suffered stress and anxiety when dealing with customers, fearing that she might again be the victim of an assault. She was required to take a week off from work to be COVID tested. She accordingly suffered financial loss as well as psychological and emotional distress.
- [10]The appellant was aged 32 years at sentence and 31 years at the time of the offence. He did have a criminal history in Queensland, Western Australia and the Northern Territory. The only relevant entries were Queensland convictions for two offences of assault occasioning bodily harm committed in 2009 and 2011 when the appellant was aged 19 years and 21 years respectively. They were thus quite dated previous convictions for violence.
- [11]It seems that the appellant’s character since that time had been good. He had completed an apprenticeship as a carpenter and obtained a builder’s licence and worked as a builder for a number of large construction companies. At the time of sentence, he was employed as a site manager for a commercial building project and was responsible for 40 employees. He had the care and responsibility for a friend with autism who resided with him. He had arranged employment for such friend and was responsible for assisting him with his transport requirements. His imprisonment would jeopardise his ability to meet the requirements of a mortgage for a recent purchase of a home.
- [12]It was submitted on his behalf that at the time of the offence, he was suffering from a considerable amount of work-related stress, and suffering irritability as a result of prescribed antidepressant medication. As noted earlier, he made an offer to pay compensation in the sum of $1000 to the complainant.
- [13]There is no suggestion of specific error on the part of the learned Magistrate by failure to take into account any relevant consideration, taking into account of irrelevant considerations, or otherwise erring with respect to any finding of fact or principle of law. The error is one of the second type referred to in House v The King, being manifest excess of sentence, and is sought to be made out by reference to comparative sentencing decisions.
- [14]Unfortunately, the learned Magistrate was not greatly assisted by the parties in reference to relevant comparative decisions. In particular, the cases referred to and relied upon by the police prosecutor – R v King [2008] QCA 1, R v Murray [2014] QCA 250, Harris v the Queensland Police Service [2018] QDC 27, and R v Cooney [2019] QCA 166 – described by the learned Magistrate in his sentencing remarks as yardsticks, all involved sentences for the more serious offence of serious assault carrying maximum penalties of seven years or 14 years imprisonment. The appellant’s solicitor referred the learned Magistrate to a single Judge decision of this Court of R v Sawtell, a sentence imposed by Judge Coker DCJ on 26 August 2021.
- [15]I have been provided further assistance by the respondent’s reference to other sentences imposed by Judges of this Court with respect to offences of common assault: R v Guivarra, Judge Burnett, 4 May 2015; R v Dowe, Judge Smith, 30 August 2018; R v Leith, Judge Dearden, 29 May 2008; R v Urquhart, Chief Judge Wolfe, 12 February 2007; R v Johnson, Judge Forde, 11 July 2006; R v Ampeybegan, Judge Bradley, 29 March 2006; R v Clarke, Judge Botting, 28 February 2007. I note that all of the comparative decisions referred to below and during this hearing involved sentences following pleas of guilty, which is a distinguishing factor. Nevertheless, they do tend to support the conclusion that the sentence imposed by the learned magistrate is manifestly excessive.
- [16]The respondent submits as follows:
7.6 The offending occurred in circumstances where the complainant was an employee going about her lawful business when she was accosted by the defendant. She was, however, wearing a mask, and there was no allegation that the defendant’s spittle entered her mouth or eyes. There was no real risk of the transmission of a serious disease, and it is fortunate that the complainant did not have to undergo disease testing.
7.7 Whilst the discretion of a sentencing magistrate in relation to an offence of this kind is certainly broad, the decisions discussed above suggest that the learned magistrate’s decision to impose a sentence with an actual custodial component may have been a miscarriage of the sentencing discretion in the circumstances. An actual custodial portion was not required to give sufficient weight to principles of personal and general deterrence and community denunciation. Whilst the defendant was found guilty after trial, there was also an offer of compensation indicative of some remorse towards the complainant.
7.8 The provision of authorities involving offences of serious assault with custodial terms being imposed may have swayed the magistrate and led him into error.
8.0 An Appropriate Sentence
8.1 If the appeal is allowed, the Crown submits that an appropriate sentence would be one that did not involve an actual custodial portion.
8.2 The imposition of a short, wholly suspended period of imprisonment may be an appropriate order in the circumstances. Alternatively, a period of probation may provide the defendant with appropriate supervision and ensure that he engages in rehabilitation that addresses issues arising from anger management.
9.0 Orders Sought
9.1 The appeal be allowed.
9.2 The sentence imposed … be set aside.
9.3 This Court exercise the sentencing discretion afresh, and the appellant be sentenced to a wholly suspended term of imprisonment in the order of six months and a compensation order of $1000.
- [17]The respondent conceded on appeal that such effect could be achieved by simply setting aside the sentence of imprisonment and substituting a sentence of imprisonment suspended after the time already served and not disturbing the compensation order made by the learned Magistrate.
- [18]After some hesitation, I am satisfied in all the circumstances that the time already served by the appellant before his release upon bail pending appeal is sufficient to meet the purposes of sentence in section 9(1) of the Penalties and Sentences Act 1992 (Qld) and that, taking into account those matters in section 9(3) of the Penalties and Sentences Act 1992 (Qld) and the comparative cases referred to by the parties during this hearing, the appeal against sentence should be allowed.
- [19]The Court orders as follows:
- The appeal against sentence is allowed.
- The sentence of imprisonment imposed by the learned Magistrate on 3 February of 2023 is set aside and the following sentence substituted.
- The appellant is sentenced to four months imprisonment suspended after he has served 12 days imprisonment for an operational period of nine months.
- Pursuant to section 159A of the Penalties and Sentences Act, I state that the period of 12 days imprisonment served by the appellant from 2 February 2023 to 14 February 2023 is time served pursuant to the sentence that I have substituted.
- The order for compensation made by the learned Magistrate on 3 February 2023 is confirmed.
- The respondent pay the appellant’s costs of the appeal in the sum of $1800.