Davies v Commissioner of Police [2025] QDC 37

DISTRICT COURT OF QUEENSLAND CITATION: Davies v Commissioner of Police [2025] QDC 37 PARTIES: DAVIES, Molly Michelle (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: BD1127/24 DIVISION: Appeal PROCEEDING: Appeal pursuant to s 222 of the Justices Act 1886 (Qld) ORIGINATING COURT: District Court of Queensland DELIVERED ON: 24 February 2025 DELIVERED AT: Brisbane HEARING DATE: 18 March 2025 JUDGES: Richards DCJ ORDER: Appeal allowed, compensation orders set aside. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – DAMAGES EXCESSIVE – where the appellant was convicted of 15 offences, including assaults on Corrective Services Officers and wilful damage – where the appellant spent a significant amount of time in pre-sentence detention – where the Magistrate imposed a compensation order of $2,500 – where the appellant had limited financial capacity – whether the compensation order was manifestly excessive – whether the appellant had the ability to pay compensation – whether the compensation order would hinder the appellant’s rehabilitation CASES: R v Flint [2015] QCA 275 R v Matauaina [2011] QCA 344 COUNSEL: D Karuana for the appellant G O’Day for the respondent SOLICITORS: Vered Turner Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent -- 1 of 5 -- Introduction [1] On 8 April 2024, the appellant was convicted and sentenced in relation to 15 offences in the Brisbane Magistrates Court. The offences occurred in 2021 and 2023:  wilful damage [2 charges] on 16 March 2021;  trespass on 8 April 2021;  wilful damage and trespass on 15 April 2021;  common assault on 19 July 2021;  common assault on 27 July 2021;  contravention of domestic violence order and assault occasioning bodily harm on 10 August 2021;  serious assault of a Corrective Services Officer on 16 October 2021;  serous assault of a Corrective Services Officer on 1 November 2021;  common assault on 9 November 2023;  serious assault of a Corrective Services Officer [2 charges] on 14 November 2023;  breach of bail condition on 18 December 2023; [2] She was convicted and not further punished in relation to each offence and ordered to pay $2,500 in compensation by paying $500 each to five complainants. [3] An appeal is brought on the basis that the order for compensation renders the sentence was manifestly excessive. The Crown accepts that the sentence is manifestly excessive. Background [4] The appellant was sentenced in the District Court at Brisbane on 15 December 2023 in relation to offences of dangerous operation of a motor vehicle, serious assault and assault occasioning bodily harm. The offending occurred between 8 April 2021 and 15 April 2021 and involved harassing motorcyclists on the road and causing injury to -- 2 of 5 -- 3 one of them, and threatening a neighbour with a knife, struggling with her and later damaging her property with the knife. [5] She had, at that stage, spent 318 days in pre-sentence custody of which only 93 days were declarable. She was sentenced to two years and three months imprisonment. The full-time expiry of that sentence is 12 December 2025. At the time of that sentence, she had only one entry in her criminal history where she was fined $300 on 6 April 2021 for wilful damage. [6] She was 23 for the majority of the offending. The finalisation of the hearing was delayed due to investigations into her mental state at the time of the offending. The examining psychiatrist for that investigation concluded that there was no evidence of psychiatric or psychological illness however she has been receiving mental health treatment since 2015 and her treating psychologists speak of her suffering from a form of autism and possibly characteristics consistent with borderline personality disorder. The Sentence Hearing [7] The offending dealt with in the Magistrates Court included her scratching her brother in breach of a domestic violence order. The wilful damage offences included cutting up the cat netting belonging to her neighbour and trespassing on the neighbour’s land. She threw a phone at a Corrective Services Officer’s chest, punched a Corrective Service Officer in the head, and threw a cup of tea over one Corrective Services Officer which hit her in the right eye causing pain and discomfort and hit the legs of another Corrective Services Officer. Amy Stead, who was a Corrective Services Officer, supplied a victim impact statement detailing the significant effect the assault had had on her. [8] At the time of sentence, she had spent 318 days in pre-sentence custody for two of the wilful damage charges and a further 158 days for the serious assaults on the Corrective Services Officers. [9] The prosecution submitted that the appellant should pay compensation for the damage caused by throwing paint on motor vehicles, however, it was submitted on her behalf that she did not have any capacity to pay as she was currently unemployed, on the -- 3 of 5 -- 4 National Disability Insurance Scheme (NDIS) and was living in supported independent living accommodation. [10] In sentencing the applicant, the Magistrate found that if the appellant had been dealt with in the District Court for all of the offences at the same time, she would not have received a heavier sentence. The Magistrate also noted that since that sentence, things have improved. She now has a NDIS package which was assisting her to continue treatment for her mental health conditions and she was complying with her parole. Her Honour noted that she had spent 158 days in custody in relation to the assaults on the Corrective Services Officers and a further 318 days for the wilful damage. Given that long period of time in custody, the learned Magistrate decided to convict and not further punish her. She decided, however, that she should pay compensation. It was noted that she had limited funds, but she nonetheless ordered compensation and immediately referred it to the State Penalties Enforcement Register (SPER). The appeal [11] At the hearing of this matter, two of the victims of the appellant, Amy Stead and Kelly Medhurst, were present. Ms Stead provided an email which was tendered in this hearing indicating that she opposed any alteration to the sentence. While she felt that the amount of $500 restitution was not significant, she emphasised that it represented a punishment which would hold the appellant accountable for her actions and serve as a reminder of the seriousness of her actions. When invited, Ms Medhurst made oral submissions which were similar to Ms Stead’s submission. She pointed out that in their view the appellant had demonstrated ongoing bad behaviour, that she did not appear to be remorseful for her actions, that she had little control over her actions and that she did not seem to have any remorse for what she did. [12] The victims make a strong case for accountability and, in the course of what is a very difficult job, they face danger and disinhibited prisoners on a daily basis. They rightly feel that there should be concrete consequences for the actions of prisoners who assault them. It is easy to feel sympathy for their position but as I have indicated at the hearing in this matter I am bound by the law in this particular area. [13] In R v Flint,1 McMurdo P noted at [24]: 1 R v Flint [2015] QCA 275. -- 4 of 5 -- 5 “In the absence of cogent evidence that an offender has the capacity to pay compensation after release from a term of actual imprisonment imposed as part of a sentence, courts are reluctant to order offenders to pay compensation after serving a term of imprisonment. To do so may jeopardise the offender’s prospects of rehabilitation; it would be apt to amount to a crushing sentence and would risk setting up the offender to fail at the time of release from prison when most in need of support to reintegrate into society.” [14] It was noted in R v Matauaina,2 that the lack of ability to pay compensation is not cured by an immediate referral to SPER. An appellant who fails to pay SPER referred debts as directed can ultimately be subject to imprisonment in relation to those debts with no avenue of review. The referral allows for manageable instalments for payment of a debt but can ultimately result in imprisonment. [15] In this case, the Crown accepts there was an absence of cogent evidence of her capacity to pay compensation. She was unemployed, studying and receiving NDIS assistance. Additionally, the complainant had spent a significant amount of time in custody for serious offences (particularly the serious assault offences) but they were committed by a young woman with significant mental health issues who had very little previous criminal history. [16] I accept that the awards for compensation may affect her ability to rehabilitate. She did not have an apparent ability to pay compensation and that much was accepted by the Magistrate in her decision. The authorities dictate that, where an offender has no capacity to pay compensation, it is not an appropriate vehicle for punishment. [17] In the circumstances, I accept the submissions of the defence and the Crown that the sentence is manifestly excessive and I allow the appeal and set aside the orders for compensation. The sentences are otherwise to remain the same. 2 R v Matauaina [2011] QCA 344. -- 5 of 5 --