Day v Commissioner of Police [2017] QDC 77

DISTRICT COURT OF QUEENSLAND CITATION: Day v Commissioner of Police [2017] QDC 77 PARTIES: RYAN PATRICK DAY (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: D134/16 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Maroochydore Magistrates Court DELIVERED ON: 10.03.2017 (Reasons 7.04.2017) DELIVERED AT: Maroochydore HEARING DATE: 10.03.2017 JUDGE: Robertson, DCJ ORDER: Appeal allowed in part. Compensation order set aside. CATCHWORDS: APPEAL AGAINST SENTENCE – where appellant pleaded late to assault occasioning bodily harm; where he was sentence to 18 months imprisonment with parole release after one third; whether her Honour erred in describing the violence as “gratuitous”, whether the sentence was excessive when contrasted with the comparable authorities. COMPENSATION - where her Honour ordered the appellant to pay $20,000 compensation to the complainant which she referred to SPER, where her Honour was given details of the appellant’s financial circumstances which were described as “modest”; where it was clear that the appellant’s ability to pay compensation was dependant on him continuing in employment. Where the unintended consequence of the referral to SPER was that the appellant could be liable to serve an additional 164 days in prison; whether a combination of the custodial order and the compensation order made the overall sentence excessive. Legislation Justices Act 1886 ss 222(2)(c) and 223(1) Evidence Act 1977 s 132C -- 1 of 15 -- 2 Penalties and Sentences Act 1992 s 35 State Penalties Enforcement Act 1999 ss 52A and s 119(7) Cases Wheeler v B [1995] QCA 595 R v BCT [2016] QCA 180 R v Lam [2006] QCA 560 R v Ball [2012] QCA 51 La Carta v Commissioner of Police [2016] QDC 68 Ross v The Commissioner of Police [2016] QDC 205 Van Hese v Brown [2015] QDC 92 Payne v Commissioner of Police [2015] QDC 294 R v Ross [2009] QCA 7 R v Torrens [2011] QCA 38 R v Robertson [2008] QCA 164 R v Flint [2015] QCA at 275 R v Silasack [2009] QCA 88 R v Matauaina [2011] QCA 344 COUNSEL: Mr A Stark for the respondent SOLICITORS: Mr M Cavanagh of Go to Court Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent [1] On the 31 August 2016 the appellant pleaded guilty in the Maroochydore Magistrates Court to the following charge: “… on 20 October 2013 at Maroochydore in the State of Queensland he unlawfully assaulted one Matthew Robert Maher and thereby did him bodily harm.” [2] The matter had been listed for trial that day so it was a late plea. The matter was listed as a long sentence hearing for 30 September 2016. [3] Her Honour Magistrate Hennessy sentenced the appellant to 18 months imprisonment with a parole release date fixed for 29 March 2017, and ordered the -- 2 of 15 -- 3 appellant to pay compensation to Mr Maher in the sum of $20,000 of which she referred to SPER. [4] On 30 September 2016 the appellant lodged an appeal to this court pleading three grounds: “1. The magistrate erred at law in failing to have sufficient regard to the objective seriousness of the appellant’s offence when compared to the facts apparent from the comparative authorities relied on by prosecution and defence. 2. The magistrate erred at law in not moderating the sentence imposed having regard to the combined effect of the term of actual custody and compensation order. 3. The sentence of imprisonment imposed was manifestly excessive in all the circumstances of the case.” [5] Pursuant to s 222(2)(c) of the Justices Act 1886, the sole ground of appeal is that the punishment was excessive. Pursuant to s 223(1) the appeal is by way of rehearing on the evidence before her Honour. [6] The appellant filed his outline on 2 December 2016. The outline recognises that the only ground of appeal is that the sentence imposed was excessive. [7] The outline concentrates on the term of imprisonment initially and asserts that her Honour erred in describing the violence as “gratuitous”, and in not giving sufficient weight to the personal circumstances of the appellant. Secondly, the appellant argues the combination of the term of imprisonment and the compensation order renders the overall sentence excessive. The proceedings below [8] The plea proceeded on the basis of an agreed schedule of facts: “The defendant in this matter is Ryan Patrick Day. The victim in this matter is Matthew Robert Maher. The offence location is the Solbar which is a licence [sic] venue operating as a nightclub. The club is located on Ocean Street Maroochydore. -- 3 of 15 -- 4 On the morning of the Sunday [sic] the 20th October 2013 the defendant and the victim were both in attendance at the Solbar. At approximately 2 am on this night the victim was standing on the dance floor within the club. The victim has observed a male doing handstands and walking around on his hands on the dance floor just in front of him. The victim observed a second male holding this males [sic] legs. The male holding his legs is the defendant in this matter. While this male was doing the handstand the victim has observed this male’s wallet fall on the ground, at the same time the handstanding male has fallen to the floor. The victim bent down and pick [sic] up this item with the intention of handing it to the male. As the victim stood upright the defendant [sic] and went to hand the wallet to its [sic] owner the defendant approached the victim. The defendant accused the victim of stealing the wallet and before he could respond the defendant pushed him in the chest causing the victim to stumble backwards. The defendant then picked the victim up around the waist and then speared him headfirst into the dance floor. This has caused the victim pain and discomfort to the head and left wrist. The defendant was then observed step [sic] toward the victim who was now lying on the floor. The defendant was then observed by the victim kick [sic] him to the left side of his face. Independent witnesses observed the defendant kick the victim to the head. At no time did the victim give the defendant any permission or authority to assault him. As a result of this assault victim [sic] sustained a fractured jaw, sprained left wrist and bruising and swelling to his head. This incident was broken up by patrons, and the victim went to the front of the venue and reported the incident to security. Police attended a short time later and obtained a complaint from the victim. -- 4 of 15 -- 5 On 10 May 2014 police located the defendant at his residence. The defendant was subsequently arrested and transported to the Maroochydore Police Station. The defendant participated in an electronically recorded interview in relation to this matter. During this interview the defendant stated that he recalled the incident. The defendant states he was watching his mate do handstands when he saw his wallet fall onto the dancefloor. He saw a male, the victim, about one metre away, bend down, look around then stand-up [sic] with the wallet. The defendant believed that the male was going to steal the wallet. The defendant states that he went over to the victim tapped him on his shoulder and asked accused [sic] the victim of stealing his mates’ [sic] wallet. The defendant went on to say that the victim pushed him in the chest with both hands and continued to come towards him. It is at this time that the defendant states that he bent down and grabbed the victim and threw him to the floor. The defendant denies lifting him up and spearing him into the floor. At that stage the defendant states that other males who believed were the victims’ [sic] friend [sic] intervened and the altercation ended. The defendant stated that a short time later security spoke to him and obtained his personal details. The defendant denied ever kicking the victim at any stage during this altercation.” [9] As noted the defendant gave a record of an interview in which he significantly understated his criminality. Prior to the sentencing hearing, her Honour received a written outline of submissions from the appellant’s solicitor which she made Exhibit 7. The appellant’s position as to what happened is stated at paragraph 9: “9. The defendant instructs: a. He believed at the time the victim was attempting to steal the wallet. b. He accepts with the benefit of hindsight the victim was attempting to return the wallet. c He tackled the victim intending to prevent him taking the wallet. This was an overreaction even in the circumstances as he perceived them. -- 5 of 15 -- 6 d. He did not intend or act to deliberately spear the victim into the ground but accepts he is responsible for that outcome because he raised the victim off his feet in a tackle motion causing him to fall headfirst into the ground. e. He kicked the victim once out of frustration and anger. The kick was delivered from a standing position. Although the kick was not delivered with full force it was a dangerous act.” [10] In a lengthy submission to her Honour, the prosecutor did not demur from this being the factual basis for sentence. The schedule of facts tendered by the prosecution was described as an agreed schedule of facts. It contained the defendant’s version given in his interview. In this court, the schedule of agreed facts often contains a statement to the effect that the prosecution does not accept a version given by a defendant, when that version is significantly different from the version relied upon by the prosecution. This has usually been agreed in advance so that the schedule is in truth an agreed schedule of facts. [11] No issue arises here because her Honour clearly sentenced the appellant on the factual basis most favourable to him as set out in his solicitor’s outline; however this practice seems to be the norm in the Magistrates Court and it can lead to error if the factual basis for the sentence is not clearly articulated: Wheeler v B [1995] QCA 595. Where a schedule of facts contains a version of the defendant that is significantly at odds with a version advanced by the prosecution, the schedule should make it clear to the sentencer that it is agreed that the defendant is to be sentenced on the basis of the prosecution facts. If there is not agreement then there should be a contested sentence hearing so that the magistrate can determine the facts in contest by reference to s 132C of the Evidence Act 1977: R v BCT [2016] QCA 180. The submissions below [12] The prosecutor submitted that a sentence of 18 months with a parole release date after one third was called for, and the appellant should pay $20,000 by way of compensation; being $5,000 for pain and suffering, and $15,000 for loss of wages -- 6 of 15 -- 7 and expenses. A victim impact statement was tendered and marked Exhibit 2 and it sets out the basis on which the compensation order was calculated. The prosecutor submitted by reference to R v Lam [2006] QCA 560; R v Ball [2012] QCA 51 and La Carta v Commissioner of Police [2016] QDC 68, that the range was 12 to 18 months. [13] The prosecutor submitted that the appellant should not receive “significant benefits” for his plea, because: (a) it was late, and (b) the delay was occasioned by the appellant’s own conduct. By reference to the appellant’s passport, the prosecutor informed her Honour that the appellant had entered the USA on 4 November 2014, having applied for and obtained a visa on 22 August 2014. He was due to appear in the Maroochydore Magistrates Court on 15 December 2014 and failed to appear, and a warrant was issued for his arrest. He returned to Australia in March 2016, and in fact informed police of his new address at his mother’s home in Buderim. It appears that the warrant was executed in the sense that the appellant surrendered to police on 20 April 2016. [14] On that date the matter was set for trial on 4 May 2016 after a plea of not guilty was entered. Ultimately the matter was listed for trial on 31 August 2016, and all the prosecution and witnesses had been summoned for that day when he pleaded guilty late. [15] The appellant was 31 at the time of the offence and 34 at the time of sentence. His criminal and traffic history were tendered. He had a number of entries for public nuisance, dangerous driving and disorderly conduct, and one minor drug offence and one wilful exposure. He had only ever received fines. His traffic history was lengthy and included dated convictions for dangerous driving (the same conviction recorded in his criminal history), and disqualified driving. He also had a dated and minor New South Wales history for minor public nuisance offending. [16] The prosecutor described the offending as unprovoked, sustained, and involving “significant gratuitous violence”. The prosecutor emphasised the seriousness of the injuries suffered by the victim, and the effects, psychological, physical and financial on him as a result of the assault. -- 7 of 15 -- 8 [17] The prosecutor submitted that the appellant’s account to the police, and his late plea showed a lack of remorse and insight. The prosecutor made extensive submissions based on the victim impact statement and took her Honour carefully and at some length through the comparable cases. [18] Mr Cavanagh who appeared below and pro bono before this court, relied upon his written submissions. A number of character references were tendered. Mr Cavanagh emphasised that his client’s criminal history was relevant but not significant. He submitted that the evidence before the court established the victim had recovered from his injuries which he submitted were not as serious as some of the injuries in the comparable cases. He referred to the fact that the assault was not planned or premeditated and that the incident occurred very quickly. He informed her Honour that his client was in fulltime employment as a roofer, and had the sole care of his five year old son whose mother lived in the USA. He referred to the appellant’s level of intoxication and to “issues with drinking to excess in social situations”. [19] In relation to the issue of compensation, his submission was that his client “accepts he is liable to pay compensation”. His client had a weekly income of $1200 per week, and in addition to rent and living expenses he was paying off an $18,000 debt to the ATO. [20] He sought to distinguish the cases relied upon by the prosecutor and also referred to Ross v The Commissioner of Police [2016] QDC 205, and Van Hese v Brown [2015] QDC 92. [21] He relied upon the following paragraphs in his written submissions: “15. The authorities indicate the only appropriate sentence is a sentence of imprisonment. The authorities do not dictate or otherwise establish a principle that a sentence of actual imprisonment is mandated. 16. A sentence of imprisonment either wholly suspended, with an immediate release to parole and to be served by intensive correction order are comfortably within range. Judge Farr’s review of the authorities (in La Carta v Commissioner of Police [2016] QDC 68) establishes as much. Those cases -- 8 of 15 -- 9 attracting sentence [sic] of actual imprisonment have involved terms in custody as short as two-three months. 17. A review of the authorities summarised in this outline establishes: a. the matters of Lam, Ross and Van Hese concern the more serious form of the offence involving the aggravating circumstance that the offenders were in company. The latter two appealed decisions resulted in sentences other than actual imprisonment. b. the matters of Ball and Van Hese involved a single blow but concern: i. much more serious injury than the present case; ii. a more deliberate (less spontaneous act of violence). Ball was required to serve three months. Van Hese ultimately received an intensive correction order. c. The matters of La Carta, Lam, and Ross included far more protracted violence. La Carta and Lam involved multiple blows delivered to an obviously unconscious victim. … 20. The sentence that permitted the defendant to remain in the community will permit the defendant to meet an order to pay compensation given time.” [22] In his oral submissions he said this: “The fact that the court will inevitably impose a significant sentence of imprisonment today, however the court determines that order be served will, in large part, reflect firstly the undoubted seriousness of the offence and, indeed, the need for both specific and general deterrence. It’s accepted that the offence is serious and it’s accepted -- 9 of 15 -- 10 that issues of personal and general deterrence loom large but it is of course somewhat erroneous to suggest that the only way deterrence can be given effect is by way of sentence of actual imprisonment. Every penalty, to varying degrees, achieves the purpose of deterrence. Your Honour, it’s accepted, as my friend emphasised, the plea of guilty was entered at a late stage, and it is also accepted that he cannot be said to have co-operated with the administration of justice as that term or factor is usually understood.” [23] In relation to the issue of compensation he said this: “Your Honour, there is a request for payment of some $20,000 in compensation. His financial circumstances are relatively modest but he accepts, as I’ve indicated in his outline of submissions, that he has to make good on the damage that he has caused through his actions and that he ought to pay compensation. It’s accepted that compensation is essentially at the discretion of the court. He then referred to some aspects of the victim impact statement and the compensation orders made in Van Hese and Ross. Her Honour’s reasons [24] Her Honour emphasised the following matters: “The appellant was a mature offender with a minor albeit relevant criminal history. The consequences of the assault to the victim were significant. His plea of guilty was late and he was responsible for the delay by deliberating absenting himself from the jurisdiction. He showed no remorse until his late plea on the day. The matter was set for trial. [25] She took into account his employment history and his responsibility for his young son. She noted that his parents were able to assist with the care of the child. She accepted that the assault was not premeditated but she noted that it was unprovoked. She accepted that the violence could be characterised as “gratuitous”; and noted that it occurred in licensed premises whilst he was intoxicated. She noted his willingness to pay compensation and his “modest” financial circumstances. She regarded the principle of “general deterrence in the case of gratuitous violence” as “a very important consideration”. She referred only generally to the authorities. -- 10 of 15 -- 11 She made a banning order and imposed the sentences referred to above. It is clear that she made the ameliorating order of a parole release date after one third taking into account the mitigating factors and the reality that it was a very late plea of guilty. The appeal [26] The authorities relied upon below indicate that for this type of serious unprovoked violence committed in licensed premises, the so-called range was up to two years imprisonment and orders involving no actual custody are within range. [27] The respondent’s counsel, in her written outline, has fairly summarised the relevant authorities at [39] to [42] of her outline. [28] Criticism is made of her Honour’s classification of the violence as “gratuitous” by reference to Payne v Commissioner of Police [2015] QDC 294. As the appellant’s summary of the facts in that case reveal (see para [10]), it was a totally different case. The complainant in that case had become involved in a drunken argument with the appellant in a public area near a boat on which they had both previously been. It was described as “mutual aggression” resulting in one punch which knocked the complainant out but did not cause any fracture. The complainant then got up and continued fighting with the appellant until the police arrived. I was critical of the magistrate for accepting the prosecutor’s submission that it was a case involving “gratuitous violence”. [29] Here the violence was entirely unprovoked. The victim was returning the wallet when the appellant pushed him then spear tackled him head first into the floor, followed by a kick to the head which fractured his jaw. “Gratuitous” means “without reason, cause or justification”, which was an apt description of the violence here. [30] Otherwise, and apart from the compensation order, the appellant’s submissions here mirror those he made below. [31] I agree with the respondent that a term of imprisonment in these circumstances of 18 months was high but within the range mandated by the authorities, and her Honour further ameliorated the sentence by allowing the full one third release on parole despite the late plea. As the jurisprudence indicates, a mathematical -- 11 of 15 -- 12 approach to sentencing to provide for mitigating factors is undesirable, but an order for release on parole at the one third mark is “an important way of properly recognising the significance of pleas of guilty and other mitigating circumstances”: R v Ross [2009] QCA 7 at [6]; and see R v Torrens [2011] QCA 38, and R v Robertson [2008] QCA 164 at [2]-[6]. The compensation order [32] It is now argued however that the combination of the compensation order pursuant to s 35(1)(c) of the Penalties and Sentences Act 1992 and referred to SPER by her Honour, together with a term of actual imprisonment, renders the overall sentence excessive. This argument was not advanced before her Honour. [33] R v Flint [2015] QCA at 275 is authority for the proposition that where an order is made for compensation under s 35; (in that case pursuant to s 35(1)(a)(i) and/or (ii)), and a default term is imposed if compensation is not paid, the order may make the overall sentence manifestly excessive: R v Silasack [2009] QCA 88, and R v Matauaina [2011] QCA 344. [34] In this case, her Honour was given limited information by the appellant’s solicitor about his capacity to pay; however it is clear that his capacity to pay $20,000 depended upon him maintaining his employment. In R v Flint (at [24]) McMurdo P wrote: “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.” [35] Of much more significance on this issue is Matauaina. In that case, the primary judge had made a compensation order which he referred to SPER. The order was set aside on the ground that it was made by the primary judge without the appellant -- 12 of 15 -- 13 having had any opportunity to argue against it, i.e. a denial of procedural fairness which is not the case here. [36] The court however undertook a detailed analysis of the relevant provisions of the State Penalties Enforcement Act 1999. Fraser JA (for the Court) wrote: [28] Section 35 of the Penalties and Sentences Act empowers a court to order an offender to make restitution or pay compensation in certain circumstances. Pursuant to s 36(l)(c) of the Penalties and Sentences Act a court may order that the proper officer of the court is to give particulars of the amount of the restitution or compensation to “SPER” (the State Penalties Enforcement Registry) for registration under s 34 of SPEA. In any event, s 34(2A) of SPEA provides that the court registrar may give to SPER for registration the prescribed particulars of an unpaid amount of restitution or compensation which the court has ordered under s 35 of the Penalties and Sentences Act. [29] Upon registration, SPER becomes responsible for collecting the debt. Pursuant to s 34(4), the registrar may issue an enforcement order or an enforcement warrant against the person for the unpaid amount. Pursuant to s 36, if a person served with an instalment payment notice fails to pay within the time allowed, the registrar may cancel the instalment payment notice. Upon cancellation the registrar must issue an enforcement order for the total of the unpaid amount. The enforcement debtor must pay the amounted stated in the order in full to SPER or apply to pay by instalments within 28 days of the date of the order. [30] Under Pt 4, Div 4, in the event of default after an enforcement order, the registrar may issue an enforcement warrant or an arrest and imprisonment warrant for the balance of the unpaid amount stated in the enforcement order or instalment payment notice. Pt 5 of SPEA then deals with civil enforcement of the debt. Pt 5 does not prevent the issue of an arrest and imprisonment warrant. Under Pt 5, Div 2, an enforcement warrant authorises the seizure and sale of real or personal property. Pt 5, Div 7 provides for the suspension of the person’s driver licence. Pt 5, Div 7A authorises enforcement by vehicle immobilisation. [31] Pt 6 authorises enforcement by imprisonment. The registrar may issue an arrest and imprisonment warrant. Section 52A sets out the method of calculating the period of imprisonment; in effect, each day of imprisonment is treated as payment of $100 of the debt. Accordingly, if the applicant does not pay any of the compensation she has been ordered to pay, she may be imprisoned for 270 days. [32] The Court was informed that SPER administratively applies the remedies hierarchically in the following order until the debt is recovered: firstly by suspension of the person’s driver licence, secondly by conducting property searches for prospective seizure and sale, thirdly by either seizing or immobilising vehicles, and, as a last resort, enforcement by imprisonment. Ultimately, however, the effect of s 119(1) and s 119(2) is that a debtor may be imprisoned -- 13 of 15 -- 14 either if the registrar of SPER (a public servant employed pursuant to s 10) is satisfied, after attempting to enforce an enforcement warrant or immobilisation warrant against the debtor, that the unpaid amount cannot be satisfied in any other way authorised under SPEA, or if the registrar issues an instalment payment notice or fine collection notice or makes a fine option order for an enforcement debtor after attempting to enforce an enforcement warrant or immobilisation warrant and the debtor fails to comply with the notice or order. [33] Section 155 of SPEA provides that the decision to issue an arrest and imprisonment warrant is non-reviewable. That could not exclude the Supreme Court’s jurisdiction to review any arrest, imprisonment, or other executive action for jurisdictional error, but SPEA does not give the sentencing court or any other court the power to review the merits of any executive decision, including any decision to arrest or imprison a debtor. Thus the consequences for a debtor of non- payment, even if that is merely a consequence of poverty, might extend to the imposition of a further term of imprisonment without any intervention by the sentencing court. [34] No party submitted that the legislation was constitutionally invalid. Accordingly, the Court should proceed on the footing that a consequence of the legislation is that the applicant may be imprisoned for up to 270 days if she defaults in payment of the compensation she has been ordered to pay. The conclusion is inevitable that the applicant was adversely affected by the order and the adverse consequences extended well beyond the mere summary enforcement of her existing civil liability. Because the applicant was not given any notice or opportunity to be heard about this order at the sentence hearing, the compensation order must be set aside. [37] In this case, by application of s 52A and s 119(7) of the State Penalties Enforcement Act 1999, the appellant would potentially be liable to a further 164 days imprisonment, clearly not a result contemplated by her Honour and, as I have noted, not a submission to her in any event. It is tolerably clear that the court in Matauaina had doubts about the constitutional validity of these provisions, i.e. the apparent ceding of judicial power to the executive; however no party took this point, and it has not been taken since nor has the legislation been amended. [38] As the setting aside of the compensation order potentially adversely affected the interests of the victim, at my direction, he was given notice of the adjourned hearing date but did not respond. [39] The imposition of a compensation order with the potential legal consequences referred to in Matauaina, together with the term of imprisonment, rendered the overall sentence excessive. These are the reasons for the order I made on -- 14 of 15 -- 15 10.03.2017, setting aside the compensation order. Otherwise, her Honour’s order will remain in place. -- 15 of 15 --