Cusick v Queensland Police Service [2023] QDC 173

DISTRICT COURT OF QUEENSLAND CITATION: Cusick v Queensland Police Service [2023] QDC 173 PARTIES: JONATHAN THOMAS CUSICK (Appellant) V COMMISSIONER OF THE QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: 2188/23 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 29 September 2023 DELIVERED AT: Kingaroy HEARING DATE: 15 September 2023 JUDGE: Heaton KC DCJ ORDER: Appeal dismissed CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the Appellant was sentenced in the Magistrates Court to 14 months’ imprisonment with parole release after he had served four months after pleading guilty to the offence of assault occasioning bodily harm in company – where the Appellant submitted that the learned magistrate erred by requiring him to serve time in actual custody – whether the sentence imposed was manifestly excessive – whether the magistrate did not have due regard to mitigating circumstances – whether the learned sentencing magistrate erred by failing to give any or sufficient consideration to section 9(3) of the Penalties and Sentences Act 1992 (Qld) – whether the learned sentencing magistrate erred by refusing the offer of restitution, and not placing any weight on the offer of restitution. COUNSEL: J Kennedy for the Appellant. A Pinkerton for the Respondent. -- 1 of 14 -- 2 SOLICITORS: Beavon Lawyers for the Appellant. Commissioner of the Queensland Police Service for the Respondent. -- 2 of 14 -- 3 Introduction [1] This is an appeal by the appellant against the sentence imposed upon him in the Brisbane Magistrates Court on 14 July 2023 whereby he was sentenced to 14 months’ imprisonment with parole release after he had served four months, that is, on 14 November 2023. [2] The appellant entered a plea of guilty to the offence of assault occasioning bodily harm in company on 6 June 2023. [3] The appeal is pursuant to s 222 of the Justices Act 1986 (Qld) (“JA”). Relevantly, s 222(2)(c) provides that where a defendant pleads guilty, they may appeal on the sole ground that the sentence is excessive. An appeal pursuant to s 222 is by way of rehearing on the evidence given in the proceedings before the magistrate (s 223(1)), and, in this case, upon the evidence relating to the sentencing of the appellant’s co- offender, Benjamin Carlin, which was the subject of a grant of leave to adduce fresh evidence given during the hearing of this appeal.1 Relevant Principles [4] In Teelow v Commissioner of Police,2 it was said that: “It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error… On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.3 [5] Further, in McDonald v Queensland Police Service [2017] QCA 255 at [47], Bowskill J stated: “It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view. Nevertheless, in order to succeed on such an appeal, the 1 s.223(3) JA 2 [2009] 2 Qd R 489 at [4] 3 Citing Allesch v Maunz (2000) 203 CLR 172 at 180-181. -- 3 of 14 -- 4 appellant must establish some legal, factual or discretionary error.” [citations omitted] [6] In Forrest v Commissioner of Police [2017] QCA 132, Sofronoff P stated: 2 “...an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case.” Background [7] By notice filed on 1 August 2023, the appellant contended four grounds of appeal, namely: (a) The sentence imposed is manifestly excessive; (b) The learned sentencing magistrate erred by failing to have due regard to mitigating circumstances; (c) The learned sentencing magistrate erred by failing to give any or sufficient consideration to section 9(3) of the Penalties and Sentences Act 1992 (Qld); and (d) The learned sentencing magistrate erred by refusing the offer of restitution, and not placing any weight on the offer of restitution, by the appellant. Grounds of Appeal [8] Mr Kennedy of counsel, who appears pro bono with his instructing solicitor for the appellant, clarified in oral submissions that the contentions of the appellant advanced in support of the appeal are: 1. that the learned magistrate erred in that he failed to give sufficient, or any weight, to the many matters in mitigation, such as the appellant’s youth, plea of guilty, good character as evidenced by the references tendered at the original hearing on his behalf, and the offer of compensation; and 2. that the sentencing discretion miscarried in that the learned magistrate gave undue weight to the aggravating circumstances of the offence. [9] The contention of the appellant is in essence that the many matters in mitigation ought to have resulted in a penalty which did not involve any period of actual incarceration. Whilst all of the matters personal to the appellant are promoted in support of this -- 4 of 14 -- 5 appeal, principal among those matters is the offer of compensation which, it is submitted, was not given any (or sufficient) weight in the exercise of the sentencing discretion. Facts [10] The complainant, a 56 year old man, left his work at a night club in Fortitude Valley in the Safe Night Precinct in the early hours of the morning of Friday 2 December 2022. He saw a young woman running and calling for help and being pursued by the appellant. The complainant attempted to intervene to assist her. He was then immediately set upon by the appellant and his companion and co-offender, Benjamin Carlin. The appellant immediately began punching the complainant in the chest area using both hands with clenched fists. The complainant attempted to resist the punches, but the appellant continued his attack upon the complainant. Mr Carlin then punched the complainant to the head, from behind, and knocked him to the ground rendering him unconscious. Both the appellant and Mr Carlin then continued to punch and kick the complainant whilst he was unconscious on the ground. Other people came upon the scene and intervened to attempt to stop the assailants’ attack upon the unconscious man on the ground. Police were contacted and the two assailants then fled. They were pursued and apprehended. [11] The complainant was taken by ambulance to hospital and released later that same morning. As a result of the attack, he suffered bleeding on the brain, soft tissue damage to his right knee and bruises to various parts of his body causing pain. He required crutches and a walking stick to assist him with walking and he reported continuing symptoms of pain, dizziness, headaches and blurred vision for a period of six to eight weeks following the event. A Victim Impact Statement tendered in the court below evidenced continuing issues with memory and an impaired capacity to concentrate and perform simple tasks. The complainant suffered a significant impact upon his mental health beyond the physical injuries he suffered as a result of the attack. Antecedents [12] The appellant was 23 years of age at the time of the offending and 24 at sentence. He has some history of prior offending. Of most relevance, on 4 February 2021, he was -- 5 of 14 -- 6 sentenced to a period of 15 months’ probation for offences of burglary and serious assault (being an assault upon a 71 year old victim). The question of parity [13] Material relevant to the sentencing of Mr Carlin was not brought to the attention of the sentencing magistrate in the hearing relating to the appellant. Consequently, during the hearing of this appeal, leave was granted to the appellant to adduce fresh evidence in the form of the criminal history of Benjamin Connor Carlin, the transcript of the sentencing hearing before Magistrate Gilbert and the sentencing remarks of Magistrate Gilbert in sentencing Mr Carlin. The application was not opposed by the respondent. [14] Mr Carlin was sentenced on 17 April 2023, some four months after the subject offending. He was sentenced for this and subsequent offending involving domestic violence related offences committed on 11 December 2022. For the offence the subject of this appeal, Mr Carlin was sentenced to 12 months’ imprisonment. For the subsequent offences, he was sentenced to a cumulative total of 4 months imprisonment. Consequently, the total period of imprisonment imposed upon him was 16 months. By the time he was sentenced, he had served 127 days in pre-sentence custody (which is equivalent to a little over 4 months). He was additionally ordered to pay compensation of $1400. He was ordered to be released on parole after that 127 day period. He was slightly older at 25 years of age and had a limited history of prior criminal offending which did not involve violence. As can be readily seen, the penalty imposed upon Mr Carlin compares appropriately to that imposed upon the appellant. The penalty imposed upon Mr Carlin does not give rise to any justifiable sense of grievance which might warrant a review of the penalty imposed upon the appellant. With the benefit of having considered that material in the context of the matters raised in this appeal, its absence in the sentencing hearing of the appellant has not resulted in error. Submissions on Appeal [15] The appellant submits in support of his first contention that the youth, plea of guilty, the character references and importantly, the offer of immediate compensation in the -- 6 of 14 -- 7 sum of $2500 to be paid to the complainant, were given insufficient weight in the exercise of the sentencing discretion. Compensation [16] Particular focus is made in relation to the offer of the appellant to pay compensation to the complainant. [17] The issue of compensation first arose in submissions by the prosecutor who tendered a quote for the replacement of the spectacles the complainant had been wearing at the time of the attack, amounting to $819.4 That exhibit evidenced the financial loss suffered by the complainant as a result of this offending. In his concluding submissions, the prosecutor referred to an offer of compensation by the appellant but made no submissions in relation to it. [18] After sensibly conceding that imprisonment was within range for the offending, the solicitor for the appellant informed the court that the appellant was prepared to pay the sum of $2500 to the complainant to compensate him for his pain and suffering as well as his loss. He continued, “My client is willing and able to pay those funds”. After making submissions in relation to other matters on behalf of the appellant, he returned to the issue of compensation in this way, “…my client is prepared to offer compensation to the victim in the order of $2500. I would ask your honour to place weight on this when imposing sentence.” [19] In the exchange between the bench and the solicitor that followed, the magistrate expressed concerns in relation to the quantum offered, the mechanism by which it was to be paid, and the means by which the magistrate could reasonably determine the sufficiency of, and therefore the appropriate weight to be given to, the offer of compensation. In response it was clarified that whilst the money had not been placed into the solicitor’s trust account in anticipation of the sentence hearing, the appellant was in a position to pay the amount immediately. [20] The learned magistrate was invited to give weight to the offer of compensation as part of a series of submissions in mitigation of penalty with the intention to persuade the magistrate to structure the penalty so as to enable immediate release into the 4 Exhibit 4 in the sentencing hearing before Magistrate Pinder on 14 July 2023. -- 7 of 14 -- 8 community. Ultimately, the learned magistrate was not persuaded that the circumstances of this case warranted such an outcome. When sentencing the appellant, he expressed concern that the compensation was not particularised. Properly understood, that is a reference to the inability, on the material provided, to assess meaningfully the reasonable amount of compensation that might address the degree of harm caused to the complainant. In the exercise of his discretion, the magistrate declined to make an order for compensation. [21] In light of the imposition of imprisonment with a period to be actually served, it is not uncommon for a sentencing court to decline to make a concurrent order for the payment of compensation. The appellant however contends that the failure of the magistrate to make any order for compensation evidences the magistrate’s failure to give that factor sufficient, or any, weight in the exercise of the sentencing discretion. I do not accept that submission. [22] The issue of compensation was the subject of fulsome submissions and discussion between the learned magistrate and the solicitor acting for the appellant. The relevance of the issue, said now to have been of paramount importance, cannot have escaped the appellant in anticipation of the sentencing hearing, and the opportunity to place funds in trust or to attempt somehow to more meaningfully assess the level of compensation offered was, at all times, available to the appellant in advance of the hearing. There was no failure of procedural fairness, as is alleged in this appeal, in proceeding to sentence without further information in relation to the issue of compensation. [23] The appellant relies upon what was said in the case of R v Allen5 in the context of restitution: “… restitution can also be evidence for remorse quite independently from the benefit that it gives to the victim. That benefit is appropriately extended to the person being sentenced usually by significant reduction in the actual term of imprisonment imposed.” And further, what was said in R v Cuff ex parte Attorney General:6 “A person ought not to be able to buy himself out of serving a custodial sentence by paying compensation, but that does not mean that in an 5 [2005] QCA 73 6 [2001] QCA 351 -- 8 of 14 -- 9 appropriate case the fact that compensation is offered and paid cannot be a relevant factor for the sentencing judge to take into consideration”. [24] There is no doubt that an offer of compensation may be a relevant factor in mitigation of penalty. Its relevance stems from the degree to which the offer, or payment, of compensation may go to evidence genuine remorse, an acknowledgement of wrongdoing and a genuine desire to make amends for it. It may also go to support the conclusion of steps towards rehabilitation and demonstrate that the community will be protected by the steps already undertaken by an offender to address the criminal conduct. That is what was referred to in Cuff (above) by the reference to “in an appropriate case”. [25] The circumstances of the offer of compensation in this case do not strongly support those conclusions. The critical issue in this case was the weight to attribute to it, whilst being mindful of the principle that a person ought not to be able to buy himself out of serving a custodial sentence, and particularly to avoid any perception of such a consequence. As already noted, given the importance to the appellant of the offer in the context of the circumstances of this case, it was open to the learned magistrate to view with circumspection, the manner in which the offer was made, the amount offered with no reference to any quantifiable meaningful compensation for the pain and suffering experienced, and the failure to make payment of the amount offered in advance of the hearing, or with a meaningful plan as to its payment, and as undermining the matters which might go to mitigate penalty by reason of an offer of compensation. Regardless, given the serious nature of the offending, the weight to be given to the offer of compensation need not have saved the appellant from the imposition of a period of actual imprisonment in any event. In my view, the magistrate did not err in the exercise of the sentencing discretion by reason of this factor. The relevance of matters in mitigation [26] The other matters in mitigation promoted by the appellant, were also the subject of submissions in the court below and were, in my view, appropriately taken into account in the exercise of the sentencing discretion by the learned magistrate. In sentencing the appellant, the magistrate acknowledged his cooperation in the form of a timely plea of guilty and the extent to which it evidenced remorse. In addition, -- 9 of 14 -- 10 specific reference was made to the letter of apology, although he also acknowledged that it was written to the court and not to the complainant. It was accepted that the appellant was remorseful. The magistrate acknowledged the young age of the appellant but also that he has a relevant history of prior violence for which he was ordered to perform probation. Despite apparently satisfactorily performing that probation, he continued to offend, and in this serious way. He had not previously been sentenced to imprisonment. He also acknowledged the contents of the letters of support that he is otherwise a “hardworking gentleman”. [27] In the fulsome submissions by the solicitor for the appellant, the court was told that the appellant’s criminal conduct was the consequence of a clumsy lack of judgement. Those who know him attest to his otherwise good character, and know him to be honest and hardworking and willing to support his family. His plea, apology and offer of compensation in particular evidence his remorse. Further, the magistrate was told that the appellant has taken steps to address his issues with drugs and alcohol and he had shown insight into the need to better himself. The failure of the learned magistrate to specifically refer to all of these matters when sentencing does not demonstrate that they were not properly considered.7 The critical question is whether an appellate court can be satisfied that they were properly considered in the exercise of the sentencing discretion. In addition to the matters specifically referred to by the magistrate in sentencing, he stated that, “…a period of imprisonment is the appropriate penalty in relation to the matter. There is no reasonable alternative to that, notwithstanding your personal circumstances.” Considering the entirety of the record of this sentencing hearing, as well as the sentencing remarks, I conclude that, contrary to the submission of the appellant in this appeal, the matters in mitigation promoted on behalf of the appellant were properly considered and taken into account in the exercise of the sentencing discretion. The proper application of s 9(3) of the Penalties and Sentences Act [28] Further, the appellant contends that the transcript of the sentencing hearing demonstrates that the learned magistrate gave primary focus to the imposition of a custodial sentence and did not properly consider the availability of a sentence which did not involve actual custody. It is, respectfully, unsurprising that the serious 7 R v Safi [2015] QCA 13 at [16]. -- 10 of 14 -- 11 violence of this case would give rise to a contemplation by a sentencing court of a term of imprisonment with actual incarceration as a component. The principles of denunciation, deterrence and protection of the community loom large in the exercise of the sentencing discretion in a case such as this. That the learned sentencing magistrate may have evidenced such a contemplation in the discussion with the lawyers at the hearing, does not demonstrate error or that he somehow fettered his discretion. To the contrary, as this case involved both the use of violence against another person as well as physical harm to another person, this was a case in which a sentence of imprisonment was not a last resort and the principle that a sentence that allows an offender to remain in the community did not apply. The sentencing court was instead required to give primary regard to the matters set out in s 9(3) of the Penalties and Sentences Act 1992 (Qld). As a consequence, particularly given the serious degree of violence committed, it was inevitable that a term of imprisonment would be, at least, in contemplation, and in the absence of matters in mitigation of sufficient weight to justify a different course, the likely outcome. [29] The offending was properly regarded by the magistrate as extremely serious violent behaviour. It was also protracted and committed in company and it continued even though the complainant was incapacitated and unconscious on the ground. In R v Oliver8 it was relevantly stated: “At the forefront of a sentencing judge’s consideration of an offender who falls within s 9(2A) must be the risk to the community on the one hand and the interests of the victim of the offender on the other hand. No longer is the sentence to be seen, in the first instance, from the perspective of the offender who should not, except as a last resort, be sentenced to an actual term of imprisonment. Instead, a judge must place at the forefront of the sentencing process the question whether the risk to the public and to the victim, as well as the circumstances of the victim, point to the need for prison. This is a large difference from s 9(2). It is justified by the community’s abhorrence of the use of violence and the community’s expectation that the courts will protect the community when necessary from the risk of further violence by incarcerating the offender. That will deter the particular offender, will deter others from offending and will satisfy a justified need for a sense of retribution. 8 [2018] QCA 348 at [26] to [28]. -- 11 of 14 -- 12 [30] There is nothing in the exchanges between the lawyers and the learned magistrate which suggests that all relevant factors presented for consideration, were not considered as part of the exercise of the sentencing discretion. This contention of the appellant also fails. The appropriate penalty? [31] The difficulty for the appellant however is that the circumstances of the offending were particularly serious and involve an example of gratuitous violence delivered to an innocent bystander who went to the aid of a young woman who was being pursued by the appellant and Mr Carlin. The appellant and Mr Carlin redirected their violence to the complainant and delivered, initially by the appellant, and then together, a combination of blows with the combined force of two assailants against the complainant. When he was rendered unconscious, it seems as a direct consequence of a blow delivered by Mr Carlin, the appellant personally capitalised on the incapacitation of the complainant to continue his attack, in conjunction with Mr Carlin, with punches and kicks to the unconscious man on the ground. The attempt by the solicitor for the appellant to categorise the appellant’s conduct as being less serious than his co-offender was rightly rejected as it sought to improperly compartmentalise a joint attack in which the appellant was the initial instigator and an active participant. [32] In the recent case of R v Chitty; Ex parte Attorney-General (Qld),9 the court observed: “Sentencing of relatively young offenders generally gives rise to the importance of considerations of rehabilitation. However, for some time Courts have recognised and stressed the importance of deterrence, both general and personal, in the sentencing of young men for serious acts of public violence upon innocent members of the community.10 The need for such deterrence has been stressed, notwithstanding that the offending involved a single punch from remorseful young men, who pleaded guilty and had promising rehabilitative prospects.”11 [33] In all of the circumstances of this case, a need for personal deterrence remained, as did the need for general deterrence and denunciation. Public violence, leading to 9 [2021] QCA 2 10 Citing R v Tupou; Ex parte Attorney-General (Qld) [2005] QCA 179; R v Bryan; Ex parte Attorney- General (Qld) (2003) 137 A Crim R 489; [2003] QCA 18. 11 Citing R v Ford [2011] QCA 208 at [22]. -- 12 of 14 -- 13 significant consequences to innocent members of the community, requires a strong sentencing response to deter likeminded individuals. A sentence involving actual imprisonment is a powerful means of providing that deterrence and the requisite denunciation for such criminal conduct. Conclusion [34] As noted above, the contention of the appellant in this appeal is that the matters in mitigation were given insufficient weight, and the matters of aggravation were given too much weight. That contention must be rejected. [35] In R v Chmieluk; ex parte Attorney-General (Qld),12 in relation to the submission that mitigating factors were given too much weight, the Court said: “Questions of weight are at the heart of the exercise of judicial discretion. A court reviewing an exercise of discretion will be slow to conclude that the decision maker has failed to give proper weight to a particular matter and a mere preference for a different result will not suffice.13 [36] Whilst the matters in mitigation were properly considered by the learned magistrate, it is unsurprising that in delivering his sentencing remarks, they were overwhelmed by a focus on the serious features of the offending in his articulation of the factors informing the appropriate exercise of the sentencing discretion. [37] I am unable to conclude that the sentencing discretion miscarried in this case. In my view, the sentence of 14 months imprisonment with parole release after serving 4 months was an appropriately stern sentencing response to the particular offending involved. Whilst having proper regard to the role of comparable sentences in the sound exercise of a sentencing discretion,14 the cases to which I was referred, R v Lude; R v Love,15 R v Ball16 and Dowden v Commissioner of Police17 support the level of penalty imposed here. 12 Citation. 13 Citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42 per Mason J. 14 Barbaro v The Queen [2014] 253 CLR 58 at [34]; R v Goodwin, Ex Parte Attorney-General (Qld) [2014] QCA 345. 15 [2007] QCA 319. 16 [2012] QCA 51. 17 [2023] QDC 111. -- 13 of 14 -- 14 [38] In my review of the whole of the evidence now before me in this appeal, I am unable to conclude that the sentence imposed in the Magistrates Court on 14 July 2023 by the learned magistrate is the result of some legal, factual or discretionary error. For the reasons articulated above, the offending was sufficiently serious as to justify a sentence which involved some period of actual custody. Despite the matters personal to the appellant and in mitigation of penalty, I am unable to conclude that requiring the appellant to serve four months in actual custody was outside the limits of the sound exercise of the sentencing discretion. No errors are demonstrated, and the sentence is not manifestly excessive. The appeal is dismissed. -- 14 of 14 --