Commissioner of Police v Power [2014] QDC 220

DISTRICT COURT OF QUEENSLAND CITATION: Commissioner of Police v Power [2014] QDC 220 PARTIES: COMMISSIONER OF POLICE (appellant) v VIRGIL MACQUARIE POWER (respondent) FILE NO/S: Maroochydore D58/14 DIVISION: Appellate PROCEEDING: Section 222 appeal ORIGINATING COURT: District Court at Maroochydore DELIVERED ON: 1 October 2014 DELIVERED AT: Maroochydore HEARING DATE: 19 September 2014 JUDGE: Long SC DCJ ORDER: The appeal is dismissed and pursuant to s 225(1) of the Justices Act 1886 the orders of the Magistrate in sentencing the Respondent on 10 March 2014 are confirmed. CATCHWORDS: APPEAL – s222 Justices Act (Qld) 1886 – prosecution appeal against sentence– whether the sentencing Magistrate erred in mistaking the facts – whether the sentencing Magistrate erred in not taking into account material considerations – whether the sentencing Magistrate erroneously constrained her sentencing discretion Penalties and Sentences Act 1992, s 9, s 12, s 15 Justices Act 1886, s 222, s 223, s 225 Criminal Code s 669A Commissioner of Police v Al Shakaji [2013] QCA 319 Fox v Percy (2003) 214 CLR 118 House v R (1936) 55 CLR 499 Lacey v Attorney-General of Queensland (2011) 242 CLR 573 Markarian v The Queen [2005] HCA 25 Mbuzi v Torcetti [2008] QCA 231 Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181 -- 1 of 19 -- 2 Rowe v Kemper [2009] 1 Qd R 247 R v Armstrong [1996] 1 Qd R 316 R v Clayton [1989] 2 Qd R 439 R v Hill, Bakir, Gray and Broad; Ex parte Director of Public Prosecutions (DPP) (Cth) (2011) 212 A Crim R 359 R v Rogers [1985] 2 Qd R 43 Teelow v Commissioner of Police [2009] QCA 84 Tierney v Commissioner of Police [2011] QCA 327 Wong v The Queen (2001) 207 CLR 584 COUNSEL: Appellant: G.J. Cummings Respondent: A.J. Glynn QC SOLICITORS: Appellant: The Office of the Director of Public Prosecutions Respondent: Cartwrights Lawyers Introduction [1] On 27 March 2014, the Appellant filed a notice of appeal against the sentence imposed on the Respondent, on 10 March 2014 and by a Magistrate at Maroochydore. In that notice, a single ground of appeal was specified, in that it was contended that the sentence “was manifestly inadequate in all of the circumstances”. [2] On 10 March 2014 the Respondent was sentenced on his guilty plea to an offence of assault occasioning bodily harm, to the performance of 240 hours community service and the payment of $23,278 in restitution or compensation. That compensation was for the cost of the treatment of the 23 year old complainant’s injuries, which were in the nature of bruising, chipped teeth and a nasal displacement, which required surgical correction and included an amount of $380 in respect of the loss of wages for one day. [3] Consequently it was open to the Magistrate and she exercised her discretion under s 12 of the Penalties and Sentences Act 1992, to order that no conviction be recorded. On this appeal, there is no separate contention made as to the exercise of this discretion. [4] The assault consisted of a single blow and the objective facts relating to the delivery of that blow were not in dispute and are simply stated in that, at about 1:20 a.m. and at a Noosa nightclub, the victim walked into the balcony bar area to buy a drink. As -- 2 of 19 -- 3 he walked past the location where the Respondent was standing, he had his wallet in both hands and was looking at it, when the Respondent threw ice or the contents of his glass onto his back. When the complainant turned around, still holding his wallet in both hands, the Respondent punched him in the face, knocking him to the ground. The suddenness and apparent wantonness of this act is, in an objective sense, graphically captured on a recording from CCTV1. [5] When sentenced, the Respondent was aged 29 years and he came before the Court without any criminal history and a good working history, which had included training and experience in the hospitality industry over a number of years, before following a common family vocation, by completing a law degree. For three years he had worked as a law clerk. The Appeal [6] On the appeal, this Court is required to conduct a review of the sentencing hearing and ultimately correct any error of the sentencing Magistrate, determined on the basis of that review and this Court’s own conclusions2. Because the review is to be conducted in respect of an exercise of sentencing discretion, the following principles, as extracted from House v R3, apply: “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the material for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to 1 See the CD marked as Exhibit 1 before the Magistrate. 2 s 223 Justices Act 1886 and see Fox v Percy (2003) 214 CLR 118 at [25], Rowe v Kemper [2009] 1 Qd R 247 at [5], Mbuzi v Torcetti [2008] QCA 231 at [17], Teelow v Commissioner of Police [2009] QCA 84 at [2]-[4], Tierney v Commissioner of Police [2011] QCA 327 at [26], Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181 at [10] and Commissioner of Police v Al Shakaji [2013] QCA 319. 3 (1936) 55 CLR 499 at 505. -- 3 of 19 -- 4 properly exercise the discretion which the law reposes in the court of fist instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”4 [7] Accordingly, the position applicable to prosecution appeals brought under s 669A of the Criminal Code is also apposite, in that demonstrated or inferred error on the part of the sentencer is required, before there is power to set aside or vary the sentence under appeal.5 Further and as observed in R v Hill, Bakir, Gray and Broad; Ex parte Director of Public Prosecutions (Cth)6: “[24] In Lacey v Attorney-General (Qld)7, the majority reasons emphasised ‘the exceptional character of the Crown appeal against sentence’. It was said:8 ‘The treatment of Crown appeals against sentence as “exceptional” indicated a judicial concern that criminal statutes should not be construed so as to facilitate the erosion of common law protection against double jeopardy.’ [25] Where an appeal against sentence is based merely on manifest inadequacy: ‘… appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.9’” [8] To that may be added the references in the judgment of the High Court in Lacey v Attorney-General (Qld)10 in emphasis of the need to show error by a primary judge, as “a specific application of the principle of legality” and in avoidance of “the vice” of depriving a sentencing order of “substantive finality”. 4 Teelow v Commissioner of Police [2009] QCA 84 at [20] 5 See Lacey v Attorney-General of Queensland (2011) 242 CLR 573 6 (2011) 212 A Crim R 359 7 Lacey v Attorney-General of Queensland (2011) 242 CLR 573 at [16] 8 Ibid at [17] 9 Wong v The Queen (2001) 207 CLR 584 at [58]. 10 (2011) 242 CLR 573 at [18] -- 4 of 19 -- 5 Grounds of Appeal [9] At the outset it may be noted that the main approach of the Appellant on this appeal has been to contend for specific error in the exercise of the sentencing discretion of the Magistrate, with a view to the resentencing of the Respondent by this Court11. In that regard the Appellant is granted the leave sought in the written outline of submissions filed on 24 April 2014, to number the original ground of appeal as 3 and to add the following: “1. The Magistrate erred in mistaking the facts as follows:  The respondent rationally believed that the complainant intended to attack him.  The respondent rationally believed that the complainant would attack him on his way home.  The respondent punched the complainant because he feared the complainant would attack him. 2. The Magistrate erred in not taking into account material considerations in:  Failing to appreciate that the attack on the complainant was rendered more serious because it was not a gratuitous attack.  Failing to recognise that the respondent was not fully nor genuinely remorseful.  Giving little or no adequate weight to s 9(1)(a), 9(1)(c), 9(1)(d), 9(2)(b), 9(2)(h), 9(2)(i), 9(3) and 9(4) of the Penalties and Sentences Act 1992.” [10] Before turning to the contentions in respect of the added grounds, it should be noted that in this appeal, the Appellant refers to no comparable decisions and makes no attempt to demonstrate that the sentence imposed fell outside any range that was appropriate to the circumstances of this case, by any such approach. Rather, the submission made under Ground 3 is that: “The reasons of the Magistrate raise a clear inference that a custodial sentence was never within the contemplation of the Magistrate and that she therefore erroneously constrained her sentencing discretion.” [11] Consistently with this approach and on the hearing of this appeal, it was expressly conceded by the Appellant that it was not contended that the sentence imposed was inappropriate, having regard to the factual basis upon which the Magistrate 11 Although, the prospect of the exercise of the power in s 225(2) of the Justices Act 1886, to remit the matter for rehearing in the Magistrates Court, was also noted. -- 5 of 19 -- 6 sentenced the Respondent, in the sense of falling outside a proper range or was therefore manifestly inadequate. Rather the central contention that was pursued was that the Magistrate had erred in determining the factual basis for sentencing. [12] That concession means that it is the matters raised under Ground 1 and incidentally the first and second dot points under Ground 2 that are particularly pursued and that requires consideration of the wider context of this offending, as such circumstances were canvassed in the sentencing proceedings before the Magistrate and reflected in the Magistrate’s reasons as follows: “The defendant submits that he felt threatened by the complainant and he told his friends this. He told his friends of his concerns about being attacked. The defendant had previously been attacked in an unprovoked assault where he suffered injury. The defendant was fearful of leaving on his own and so stayed at the nightclub. A number of the defendant’s friends have given statements as to what occurred on that night. These statements are of comments made by the defendant concerning the incident and what, in fact, did occur as witnessed by Sonny Stevens and the complainant’s behaviour prior to the incident. I do accept that the defendant was very concerned about the behaviour of the complainant, someone unknown to him yet seemingly aggressive – behaviour aggressively towards him. I accept the defendant was in fear of the complainant because of his behaviour and also because of the previous acts of violence which the defendant had been subjected to, not on this particular night, but in the previous incident where the defendant was attacked. Because of this, I do find that this assault could not be defined as gratuitous violence. The offence was once (sic/1) punch to the side of the head of the complainant. The injury suffered by the complainant was significant. The amount needed to rectify them is $23,278. The defendant has offered to pay this and it has been deposited in the trust account of the defendant’s solicitors. The factors to be taken into account: the defendant was 29 – or is 29. The complainant was 23. The defendant has a law degree and has a very good work history in the hospitality industry, having completed his law degree in 2013. The number of references speak very highly of the defendant. A large number of people who have known him in various circumstances – and they range – from what I can glean from those references, they range in ages and in different sorts of circumstances in which they would have been able to observe the defendant. All of his friends who were with the defendant on the night describe him as a non-violent person. Given this, and the circumstances leading up to the offence, I find that this is behaviour completely out of character.” (some minor typographic corrections) -- 6 of 19 -- 7 [13] Further and in summary, the Magistrate subsequently said: “As I said, the behaviour is out of character as a result of the state of mind of the defendant caused by the behaviour of the complainant and the effects that the previous assault had had on the defendant’s state of mind. There is further to this the offer to pay compensation, the defendant’s personal circumstances and the effects that the recording of a conviction would have on him. The other factor, of course, is the seriousness of the offence. In weighing up all of these factors, I have – normally – normally when I am looking at an act of violence such as this I would be considering a term of imprisonment, albeit in your circumstances it would be wholly suspended. But given all of the circumstances what I accept would have been your state of mind on that particular occasion, the fact that it seems to be completely out of character and where you are going with your career I intend to order that you perform 240 hours’ community service. And I will be exercising my discretion in not recording a conviction.” [14] From that passage, it can immediately be seen that there is no substance in the only contention that was made by the Appellant in support of Ground 3. [15] As to Ground 1 and the facts which the Appellant submits that the Magistrate mistook, it is correctly pointed out for the Respondent, that the Magistrate, at no point, found that any fear that the Respondent had that the complainant would or intended to attack him, was rational. [16] In this Court the Appellant contends that the Magistrate should have sentenced the Respondent consistently with the following inferences, as “the only rational inferences which can be drawn from the facts and circumstances”: “ Though told of others concerns(sic) and claiming to be fearful of the complainant there was no rational basis for that fear. The respondent’s fear was either irrational or feigned.  The conduct and method of the respondent in attacking the complainant is inconsistent with him having any genuine fear of the complainant or of being driven by that fear when he attacked the complainant.  The respondent well expected he could best the complainant in a fight notwithstanding the complainant was younger and bigger.  The respondent’s attack was retaliatory and not pre-emptively defensive. The attack was premeditated and planned and in that sense it was not gratuitous.  The submissions on behalf of the respondent at sentence are inconsistent with full and genuine remorse on his part.” -- 7 of 19 -- 8 [17] However not only is there difficulty in concluding that these were the only rational inferences to be drawn from the circumstances, a fundamental problem is that no such contention was made to the Magistrate and therein lies an essential difficulty in the contention that she erred in this regard. It can be particularly noted that the circumstances on which the Magistrate sentenced, did not demand a finding that the Respondent’s action was premeditated and planned, or any conclusion that his explanation for his behaviour necessarily detracted from the fullness or genuineness of his remorse for it. Rather those contentions and that made in the first and second dot points under Ground 2, are simply reflective of the Appellant’s central contention that the Magistrate sentenced on an incorrect basis. [18] As to complaint about attribution of weight to the relevant factors to be taken into account (the third dot point in Ground 2), that was essentially a matter for the Magistrate, in the exercise of her sentencing discretion. As explained in Markarian v The Queen12: “[25] As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (44), itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”. [26] Any consideration of alleged error of principle must now begin in any applicable legislation governing sentencing either generally or in the particular case. In sentencing for a federal offence, it must begin by considering Pt 1B of the Crimes Act. In the present case, it must begin with the provisions of the Sentencing Act. [27] Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary 12 [2005] HCA 25; (2005) 228 CLR 357 at [25] – [27] -- 8 of 19 -- 9 judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.” (Citations omitted) [19] The Appellant further submitted:  “With regards to s 9(1), the magistrate failed to consider anything other than personal deterrence and rehabilitation.”  “The circumstances of the attack upon the complainant demonstrated that the respondent, when not materially affected by alcohol, engaged in an extremely violent attack upon the complainant for irrational or dishonest reasons. As such the sentence imposed needed to punish the respondent to an extent which was just, deter others from engaging in violence for similarly irrational or dishonest reasons and express the community’s denunciation of the respondent’s conduct.”  “The magistrate ignored all of these issues, in particular failing to appreciate that there was a special need to generally deter others from inflicting serious violence on others in places of public resort for irrational or contrived reasons.” [20] It can be seen that even here, an underlying thrust of these contentions is also caught up with the Appellant’s contentions as to the basis upon which the Magistrate imposed her sentence and her reasons must necessarily be read in the context of the basis upon which she acted. However, some of the considerations that are raised as to some of the relevant matters, as stipulated in s 9 of the Penalties and Sentences Act 1992, should be dealt with, including the more specific suggestions of absence of regard to the maximum penalty for the offence (s 9(2)(b)) and the prevalence of this type of offence (s 9(2)(h)). [21] As has already been noted, the Magistrate clearly understood the seriousness of the offending and specifically noted that she would normally have been considering a term of imprisonment. -- 9 of 19 -- 10 [22] The prosecutor specifically referred to it13 and there can be no suggestion that she did not appreciate that the constraints of s 9(2)(a) of the Penalties and Sentences Act 1992 did not apply, or that her attention to the matters set out in s 9(4) was necessary. In that regard and quite apart from the requirement as was set out in s 9(4)(e) as to the nature and extent of violence used in the commission of the offence, those matters to which primary regard is required, also include: “(a) the risk of physical harm to any members of the community if a custodial sentence were not imposed; (b) the need to protect any members of the community from that risk; (c) the personal circumstances of any victim of the offence; (d) the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence; … (f) any disregard by the offender for the interests of public safety; (g) the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed; (h) the antecedents, age and character of the offender; (i) any remorse or lack of remorse of the offender; (j) any medical, psychiatric, prison or other relevant report in relation to the offender; (k) anything else about the safety of members of the community that the sentencing court considers relevant.”14 [23] No specific reference is made in the course of the proceedings or by the Magistrate as to the maximum penalty for this offence, but it is hardly to be presumed that the Magistrate did not have an appreciation of this or that this is indicative of any error in the exercise of this sentencing discretion. [24] The prevalence of this type of offending was specifically referred to by the prosecutor and a response by the Magistrate that it was “[n]ot as common as domestic violence” and her display of some personal concern as to that other, unrelated and irrelevant issue was obviously unfortunate and has obviously attracted the Appellant’s contention that the Magistrate has “failed to properly have regard to the prevalence of offences of violence in venues of public resort as required by s 13 T1-7 l 44 – 1-8 l 3 14 Although that provision existed at the time of sentence, it was excluded in operation to this case by s 9(3). However both sub-sections have since been repealed by the Youth Justice and Other Legislation Amendment Act; No 9 of 2014, with the consequence that the same specifically applicable considerations that applied to violent offending and which were set out in s 9(4) are now numbered as s 9(3). -- 10 of 19 -- 11 9(2)(h).” First it may be noted that the interchange where the issue of domestic violence was introduced does not necessarily lead to a conclusion that the Magistrate was excluding reference to the prevalence of this type of offence, being an incidence of violent conduct in or near a nightclub or bar, as a relevant factor. Further a particular relevance of such a consideration is to the aspect of general deterrence that may be a purpose of sentencing and in this regard the Magistrate, specifically observed in her reasons and after reviewing some comparable cases that had been referred to her: “There are a number of factors that I must weigh up. First of all, violence is unacceptable in any circumstance. There has to be to my sentencing a consideration for personal deterrents [sic] and general deterrents [sic], although as I’ve found during – as I’ve found in this particular case I do find that this behaviour by the defendant is out of character. It is absolutely against everything that has been put before me with regards to the references from people of the lack of previous history and the comments made by Ms Breen who was out with him on that particular evening. The other factors that I must consider are the circumstances surrounding this particular case and as I previously found I find that it could not be found to be gratuitous violence and it is an early plea.” [25] On these contentions, there is no error demonstrated that would warrant the setting aside of the Magistrate’s orders. Otherwise, it is now necessary to consider the attempt to challenge the basis for the sentence, in this Court. [26] As was accepted by the Appellant, in the course of argument, that could only possibly succeed if it were established that the circumstances were such that it was unreasonable for the Magistrate to have accepted and acted upon the explanation put forward. That requires, as the Appellant also accepted in the course of argument, a conclusion that, in the circumstances, the only reasonable response of the Magistrate could have been to indicate that she regarded the Respondent’s explanation as inherently improbable.15 Even then and as was also accepted, any such conclusion would necessarily have first required an indication of reluctance to accept what was being contended and the provision of an opportunity to provide evidence in support of it. 15 Cf: R v Rogers [1985] 2 Qd R 43 and R v Clayton [1989] 2 Qd R 439, at 442. -- 11 of 19 -- 12 [27] That is because and pursuant to the usual practice under s 15 of the Penalties and Sentences Act 1992, the contention for the Respondent was made in the following terms in the oral submissions of his counsel, to the sentencing Magistrate16: “Your Honour, the situation is somewhat different from that which is put forward by the prosecution. On the day in question, my client had been studying for most of the day, although he’d gone surfing with some friends in the afternoon. They’d been at a friend’s house where they’d cooked dinner and had a couple of beers at around 7 o’clock. They went to Café Le Monde where they had another beer and then they left and went to go to Laguna Jacks where they arrived at about 11.30 pm. About half an hour after their arrival, my client went to go to the toilets. However, when he got to the corridor leading to the toilets, he was blocked by the complainant who he described as a very large male, and I’ll produce a couple of photographs to give your Honour some idea of the size of this man. He said this fellow had his arms folded and a wide stance blocking entry to the toilets entirely. There was a conversation between him and the complainant. He said, “Hey mate, do you mind if I get through?” And the complainant said, “Yes,” and he didn’t move. My client said, “Sorry, but I need to go through to the toilet.” Again, he didn’t move. There was also a friend of the complainant standing there. My client squeezed between the complainant and the wall, and as he did that, the complainant pressed him against the wall with his right shoulder. He said to the complainant, “Mate, what’s your problem?” And the complainant said, “You.” Now, my client had never met this man. This is the first time he’d ever seen him in his life. He said he was confused by the source of that hostility. He went to the toilet, but he said he felt threatened by the incident. When he came out of the toilet, the complainant had moved. He walked over to his friends who were standing inside and told them of his concern. That included a man called Sonny Stephens and another man called Nathan McMillan. He expressed his concern that he was going to be attacked by the complainant because of the completely random and unprovoked behaviour towards him. He said he was particularly intimated by the complainant’s size, and could I show you a couple of photographs taken from the complainant’s Facebook page which show his size and your Honour will see he’s a very substantial man. Your Honour will see that my client is tall, but he’s of quite slim build.”17 [28] At that point the photographs, which were marked as Exhibit 3, were tendered, on the basis that they were taken form the complainant’s Facebook page and to demonstrate his physique. In response to the prosecutor’s objection as to this 16 Cf: GAS v R (2004) 217 CLR 198, at [30] 17 T1-9 l 25 – 1-10 l 8 -- 12 of 19 -- 13 evidence and questioning the weight that could be attached to it, it can be noted that the Magistrate indicated that she would “take that into account” and also that she would look again at the recording: Exhibit 118. However, it is apparent that the main point lay in the Respondent’s perception at the time and the submission for him continued: “Your Honour, about 20 minutes after the first event, while my client was speaking to his friends and telling them of his concerns, Sonny pushed him to one side and stepped between himself and the complainant who was coming towards him from his left side. He didn’t see the complainant until after his friend stepped between them and his friend commented to him that it looked like the complainant was trying to get to him. He turned to his left and he realised that his friend had stopped the complainant from actually getting any closer to him. About 20 minutes later, he walked outside to look for a friend. He saw the complainant who was sitting on the balcony, and when he saw my client, he stood up and he stared at him with his arms tensed and his chest out. My client went back inside. He said by this stage he was quite uncomfortable and fearful and intimidated. He kept an eye on the complainant and he said that he remembers looking nervously around the room and he said he was in a state of serious concern and fear because he felt vulnerable. He says he doesn’t like violence or confrontation. He finds it stressful and confusing. He’s usually good at remaining calm under pressure because he has, in the course of his career, managed busy restaurants and he has usually been good at calming upset or angry clients. He says that he felt threatened and intimidated by the situation here and he just felt overwhelmed. He said he thought about telling security about the complainant’s behaviour, but he wasn’t aware of any security guards except for the one downstairs on the door. He said he thought about leaving and finding his way home on his own, but then he had some concern that if he left on his own, he may become the subject of attack after he left when even his friends weren’t around. He accepts that in hindsight he should’ve left the premises and hopefully tried to get home. He describes that as being a regrettable judgment call and your Honour may or may not think that’s the case. He also told men called John Boag and Daniel Burridge of his heightened concern. He said he saw the complainant. He threw the cup of ice at him to attract his attention, then he punched him. Your Honour, the issue of necessity arose as to whether or not this could be classified as self-defence. The law recognises the availability of a pre-emptive strike. My advice to him was that it was too pre-emptive a strike, and I think your Honour would probably agree with that, but that in those circumstances self-defence did not provide a defence, despite his fear about this person’s apparent 18 T1-10 ll 10-32 -- 13 of 19 -- 14 hostile attention to him. Your Honour, my client also – his situation was heightened by the fact that he’d previously been the victim on the street of an assault, which left him with a broken and bloodied nose. On that occasion he was sitting outside, eating a pie, when a larger person came up to him, said he was a Samoan, and then punched my client in the face. He said it was a totally unprovoked assault. It was witnessed by a friend, Paul Albano, and the following day he sought medical attention from his general practitioner. That, of course, had occurred about 12 months before this incident and added to his concern about his safety.”19 (with some minor typographic corrections) [29] However that explanation did not stand alone. Not only did the Respondent come before the Magistrate without any criminal history, he also sought to support his position with: (a) a substantial number of impressive references, from a cross-section of persons who had known him and his family, as he grew up and which generally attested to a record of integrity and non-aggressive behaviour: Exhibit 5; and (b) statements from friends and doctor (Exhibit 4) and which were directed at confirmation of: (i) the prior occasion when the Respondent was assaulted; (ii) expressions of concern by the Respondent as to the behaviour of the complainant, before he punched him; and (iii) as to the interactions with the complainant, near the toilets and when the complainant pushed through a group in which the Respondent was standing. [30] Further, it is pointed out that the following concession was made in the prosecution’s submissions to the Magistrate: “Through the police investigation, police spoke to a number of witnesses, but certainly there is a hint that one particular witness indicates that – excuse me one moment. There’s an indication that the complainant was being an annoyance all night. He was standing in front of blokes trying to get to the bathroom and staring people down. This particular witness indicated that they didn’t report the bloke to security and management because it wasn’t that bad. He 19 T1-10 l 38 – 1-11 l 36 -- 14 of 19 -- 15 was just being annoying. So there’s some evidence that he was being, perhaps, annoying, but not any further than that.”20 Conclusions [31] Whilst it has been recognised that a Court should be cautious in accepting for sentencing purposes, unsworn assertions from the bar table and as to an offender’s state of mind when committing an offence and which are, therefore, untested by cross-examination21, for the Appellant to succeed here it is not enough to establish that such circumspection may have been appropriate and may have produced a different result and required the production of sworn evidence, before the Respondent’s explanation was acted upon. Further, it is not enough that it may be concluded that another judicial officer may have acted differently or even that the result, if the appeal succeeds and the Magistrate’s sentence is set aside, would be a resentencing where the basis for sentencing would be contested in the way now flagged. [32] It can be observed that sentencing proceedings in our courts are adversarial in conduct and as a matter of practice, including in a busy Magistrates Court, it is to be expected that where appropriate, prosecutors will be alert to raise contention as to any significant matter that is raised by a defendant and which conflicts with the basis upon which the prosecution contend that an offender is to be sentenced. Otherwise, it is matter of common practice in our Courts that sentences are imposed in accordance with uncontested submissions made from the bar table. [33] Although the Prosecutor, in the Magistrates Court, did raise a valid concern that he was only provided with a copy of the materials that became Exhibits 4 and 5, in the course of those proceedings in that Court, it was also pointed out by the Respondent’s counsel that the Prosecutor had been given an indication of the general nature of the Respondent’s submission “by my instructing solicitor last week”.22 The Magistrate offered the prospect of time for the Prosecutor to consider 20 T1-8 ll 35-42 21 R v Armstrong [1996] 1 Qd R 316 at 320. 22 T1-14 ll 7-33 -- 15 of 19 -- 16 this material and make submissions. However and ultimately the Prosecutor sought only to: (a) question the weight that could be attached to some statement of opinion in one of the statements; and (b) question what was described as the self-serving nature of the material, particularly because it had not emerged in the course of the police investigation. [34] However, no further point or challenge was raised before the Magistrate proceeded to sentence the Respondent and even after she had adjourned for a period to consider the matter. That stands in contrast to the position of the Appellant in this Court and in the written submissions, as has been noted, they go as far as contending that it should have been concluded as the only rational inferences that the Respondent’s fear “was either irrational or feigned” and that he acted in retribution of the complainant’s earlier conduct rather than any fear of what might develop from it. The nearest submission to any similar effect by the prosecutor to the Magistrate was: “I submit that even if there was perhaps some nuisance behaviour of the complainant, there was perhaps vigilante type behaviour on behalf of the defendant.”23 [35] The difficulty with the Appellant’s approach is that it is confronted by the direct explanation of the Respondent’s actual state of mind and the indications in the materials tending to confirm or support the concern or fear held by the Respondent. That explanation raises the irrationality of the response rather than of him having such a fear, upon which he acted. But to put the matter in that way only serves to underline the essential point that was sought to be made for the Respondent and in explanation for such uncharacteristic conduct. That is, it was sought to explain his conduct in a context that served to distinguish what at face value appeared to be such, from instances of what are often referred to as instances of gratuitous violence and which typically are only able to be explained as being instances of manifestation of simply angry or aggressive acts. 23 T1-8 ll 45-47 -- 16 of 19 -- 17 [36] That distinction, as it was accepted by the Magistrate, was sought to be made by reference to subjective considerations as to the defendant’s motivation for his offence and whilst it was for the Magistrate to decide the factual basis upon which to sentence him, if the Respondent’s explanation was to be challenged by the prosecution (as it is in the Appellant’s submissions to this Court), the time and place for doing that, was before the Magistrate. [37] It is of fundamental importance to any sentencing process that the basis upon which the sentence is to be imposed is clear and accepted by all parties. Judicial officers are typically alert to any conflicts, as between the submissions and positions of the parties and careful to ensure that a commonly understood basis is achieved, either by agreement or determination of facts, by hearing evidence if necessary. Accordingly it may have been preferable if the Magistrate had sought to clarify the second concern that was expressed by the prosecutor. However, the fact remains that there was no express challenge made to the contentions put forward by the defendant and this may have particularly been expected if the inferences for which the Appellant contends in this Court, were to be then pursued. [38] Put shortly, the explanation put forward by the Respondent, in the combined sense of the support for in the other materials put before the Magistrate, served to put a different complexion on an objective consideration of the circumstances relied upon by the prosecution and particularly the recording in Exhibit 1. In the absence of any rejection of that explanation, the inferences for which the Appellant contends could not be regarded as the only rational inferences that were open and the situation is, as has been submitted for the Respondent, simply an appropriate exercise of judicial discretion, having regard to all of the circumstances of the case. [39] Neither, in my view, should it be accepted, in the circumstances, that the only reasonable course for the Magistrate was to regard the Respondent’s explanation as inherently improbable, at least in the sense of requiring notification of a lack of preparedness to act on it, unless further convinced of it by sworn evidence. [40] The Appellant’s contentions to this Court attempt to recognise that there is evidence of some antecedent conduct of the complainant towards the Respondent and which -- 17 of 19 -- 18 may have been of some concern to the latter, by contending for the most culpable inference that could be drawn from this and the actions of the Respondent, as disclosed on the recording in Exhibit 1. That is, it is contended that the only rational conclusion is that the Respondent was acting in pre-meditated retribution for those earlier interactions. [41] In doing so, two particular criticisms of the Respondent’s explanation were raised. First and in respect of the Respondent’s assertion as to a lack of awareness of security guards to assist, it is suggested that a person wearing a shirt marked “Security” may be observed moving in the background of the recording in Exhibit 1, but near to and just prior to the situation where the complainant came into the vicinity of the Respondent and the offence occurred. Secondly, it is suggested that the statements in Exhibit 4 and as relied upon in support of the Respondent’s position only state that on the night in question the Respondent expressed concern as to the complainant’s behaviour rather than stating any expression of concern based in fear. [42] The first appears to be a valid observation as to the effect of the recording but any significance of it would depend on the awareness of this on the part of the Respondent at the relevant time. The second criticism was submitted to have been sufficient to have required that the Magistrate should have regarded the Respondent’s explanation as inherently improbable and notified the Respondents lawyers of the need to consider calling evidence. I don’t accept that this was the effect, particularly as the submission tends to focus on the drafting of the statements in Exhibit 4 separately from the particular context of the direct explanation of the Respondent’s state of mind. It was the explanation of that state of mind that was critical and it was not necessary that the other materials directly prove that or even confirm every aspect of it, before it could be regarded as supporting or corroborative of it. It is also difficult to entirely reconcile this submission with the submission that it should have been concluded that the Respondent was feigning his claimed fear of the complainant. [43] Further and as is apparent from the materials that were placed before the Magistrate and as was accepted by her, the conduct of the Respondent may be regarded as out -- 18 of 19 -- 19 of character and by a person who had a track record of not being a person prone to violent conduct and that there was confirmation in those materials of much of the conduct of the victim, that concerned the Respondent and of his voicing concerns about this, prior to his offending. In the light of those materials and the cumulative effect of it and this effectively unchallenged explanation that was provided for the Respondent’s behaviour and in accordance with usual sentencing practice, it is unsurprising that the Magistrate made the findings and acted on the basis that she did. [44] In these circumstances, it would not accord with the accepted principles upon which appeals such as this are to be determined, to allow this appeal and set aside the Magistrate’s sentence. To do so would have an effect of giving the prosecution a second chance to make out a case that was not actively pursued in the Magistrates Court, inconsistently with the principles which have been referred to above24. [45] Accordingly the appeal is dismissed and the appropriate order, pursuant to s 225(1) of the Justices Act 1886, is to confirm the orders of the Magistrate in sentencing the Respondent on 10 March 2014. 24 See paragraphs [6]-[8] -- 19 of 19 --