Commissioner of Police (Queensland) v RA [2012] QChCM 3

MAGISTRATES COURT OF QUEENSLAND CITATION: Commissioner of Police (Queensland) v RA [2012] QChCM 3 PARTIES: THE COMMISSIONER OF POLICE (QUEENSLAND) (applicant) v RA (respondent) FILE NO/S: CCM1925/12(1); CCM2105/12(8); CCM2133/12(1) DIVISION: Childrens Court (Magistrate) PROCEEDING: Application for parent to pay compensation ORIGINATING COURT: Cairns Childrens Court DELIVERED ON: 23 October 2012 DELIVERED AT: Cairns HEARING DATE: 5 June 2012, 7 August 2012, 4 September 2012 JUDGE: Pearson SJ ORDER: Application granted. CATCHWORDS: CRIMINAL LAW – COMPENSATION – CHILDRENS COURT – should parent pay compensation COUNSEL: J Franco for applicant Respondent appeared on own behalf SOLICITORS: Police prosecutions for applicant Respondent appeared on own behalf -- 1 of 12 -- Background to the Show Cause Hearing: [1] On 5 June 2012, I imposed sentences on a child defendant, BK, in the Childrens Court at Cairns for various offences to which he had entered pleas of guilt. This child was the son of RA. [2] At the conclusion of the sentence, the applicant pursued an application (filed 4 June 2012) for an order that RA be called upon to show cause why he should not pay compensation to the victims of the various offences. The application sought a single order however, in effect; seven orders were sought as there are seven distinct offences, with distinct complainants, which form the basis of the application. This was made clear from the material filed in support of the application. [3] Such an application is provided for under Division 16 of the Youth Justice Act 1992 (YJA) which allows for an order to be made against a parent in certain circumstances. [4] The applicant relied upon the following material: (a) Affidavit of Susan Quaid filed 4 June 2012; (b) Affidavit of Trevor Keenan filed 4 June 2012; (c) Affidavit of Anne Marie Lanigan sworn 5 June 2012 (affidavit of service) and filed by leave on 5 June 2012. [5] The application and supporting affidavits had been personally served on RA on the afternoon of 5 June 2012. He had also been sent an order pursuant to s 70 YJA requiring his appearance at the court of 5 June so he could be present for the proceedings involving his son. This was posted to RA on 10 May 2012. He failed to attend court on 5 June in response to this order and no contact was made with the court on that day. [6] The legislative framework is as follows: Section 258(1) YJA applies: - “If it appears to a court, on the evidence or submissions in a case against a child found guilty of a personal or property offence, that— (a) compensation for the offence should be paid to anyone; -- 2 of 12 -- and (b) a parent of the child may have contributed to the fact the offence happened by not adequately supervising the child; and (c) it is reasonable that the parent should be ordered to pay compensation for the offence.” [7] Section 258 YJA further provides: “(2) The court may decide to call on a parent of the child to show cause, as directed by the court, why the parent should not pay the compensation. (3) The court may act under subsection (2) on its own initiative or on the prosecution’s application. (4) If the parent is present in court when the court decides to call on the parent to show cause, the court may call on the parent to show cause by announcing its decision in court. (5) If a court calls on a parent under subsection (2), the court must (a) reduce its grounds to writing; and (b) give a copy to the parent.” [8] Compensation for the offence is defined as: “compensation for— (a) loss caused to a person’s property whether the loss was an element of the offence charged or happened in the course of the commission of the offence; or (b) injury suffered by a person, whether as the victim of the offence or otherwise, because of the commission of the offence.” (s 258(9) YJA) [9] In this case, the application was made by the prosecution and it proceeded in the absence of RA which seems clearly envisaged by the legislation. Such a proceeding is declared to be a civil proceeding pursuant to s 258(8). [10] Therefore, to arrive at the point of calling upon the parent, I had to be satisfied, on the balance of probabilities, of the matters set out in s 258(1) and then follow the prescribed process. At that time I formed the view that I was so -- 3 of 12 -- satisfied, and therefore made the order for RA to appear to show cause as to why he should not pay the compensation. The show cause hearing was listed for 7 August 2012 to allow for the service upon the respondent of the grounds for the decision and other relevant material. [11] Unfortunately, the transcript of the decision (constituting the written grounds for the decision) from 5 June was still not available to the court by the hearing date. RA appeared at that time and was informed of the court’s intention to adjourn proceedings so that he could receive the material that had to be supplied to him in accordance with the law, with a further date to be appointed for the show cause hearing. [12] RA indicated a clear objection to the orders that the applicant was seeking and presented a document to the court which he referred to as a “Notice of Demand to Immediately Withdraw Application”. He refused to engage in proper discussions regarding the progress of the matter, declined to remain in the court room whilst the explanation of the circumstances was being undertaken, and left court having provided an updated address for service of material. The Show Cause Hearing: [13] The show cause hearing was re-listed for 4 September 2012. On 7 August 2012, RA was posted a “Notice of Adjournment” to the confirmed postal address which informed him of this new date, and which contained the following direction I had made: “The respondent RA is to notify the Applicant (Queensland Police) by 28th August 2012 if any witnesses (namely Trevor Keenan; Susan Quaid or Aimee Pinfield) are required to attend to give evidence at the show cause hearing on 4th September 2012. If no notice is received by RA by 28th August 2012, no witnesses are required to attend on 4th September 2012.” RA was also sent the following material at the same time: - A copy of the pre-sentence report relating to his son; -- 4 of 12 -- - A copy of the schedule of offences for which his son was sentenced on 5 June 2012; - A copy of the transcript of submissions by the prosecutor and defence representative from the sentence of his son on 5 June 2012; - A copy of the transcript of the my sentencing remarks from 5 June 2012; - A copy of the transcript of the submissions of the applicant prosecutor regarding the application for compensation of 5 June 2012; - A copy of the transcript of my decision (grounds of the decision) of 5 June 2012. [14] On 4 September 2012 RA did not appear and I was informed that no notice had been received by him in accordance with the directions I had set. I, therefore, proceeded with the application on the basis that RA relied solely upon the written submission he had earlier presented to the court in his attempt to show cause as s 259(10) allows for the court to proceed with the show cause hearing in the absence of the parent if the court is satisfied that the parent has been given notice of the show cause hearing under s 258. The Applicant confirmed they continued to rely on the material filed at the commencement of the application. Has the Respondent Shown Cause? [15] I have determined the application taking into account the submissions of the Applicant and Respondent on the basis of the material comprised of: (a) Affidavit of Susan Quaid filed 4 June 2012; (b) Affidavit of Trevor Keenan filed 4 June 2012; (c) Pre-sentence report regarding BK dated 28 March 2012 (exhibit 1); (d) Addendum pre-sentence report regarding BK dated 30 May 2012 (exhibit 2) (e) Schedule of offences for which BK was sentenced on 5 June 2012 (exhibit 3); (f) Criminal record of BK (exhibit 4); (g) Transcript of submissions by the prosecutor and defence representative from the sentence of KB on 5 June 2012. -- 5 of 12 -- [16] The legislative provision governing the show cause hearing is s 259 of YJA. Relevantly, it stipulates: 1. The determination of the issues on the show case hearing must be by way of a fresh hearing on the merits and the court is not bound by a determination made by it under s 258 (s 259(2)). 2. If, on consideration of the evidence and submissions and any further evidence, a court is satisfied of the matters mentioned in s 258(1)(a), (b) and (c), the court may make an order requiring the parent to pay compensation (s 259(5)). 3. The court is to make its decision on the basis of proof beyond reasonable doubt (s 259(6)). 4. The maximum amount of compensation payable is 67 penalty units (at the time the application was commenced a penalty unit was $100, therefore the maximum is $6 700 per application.) (s 259(7)). 5. In determining the amount to be paid by a parent, the court must have regard to the parent’s capacity to pay the amount, which must include an assessment of the effect any order would have on the parent’s capacity to provide for dependents. [17] Therefore, determination of the matter relies on the court’s consideration of the following 3 questions in accordance with the legislative framework set out above: 1. Should compensation for the offences be paid to anyone? AND 2. May RA have contributed to the fact the offences happened by not adequately supervising his son? AND 3. Is it reasonable that RA should be ordered to pay compensation for the offences? 1. Should compensation for the offences be paid to anyone? [18] The applicant relies upon schedule of offences (exhibit 3) and the details of the offences contained in the affidavit of Trevor Keenan at paragraphs 4 to 10. This -- 6 of 12 -- is evidence that establishes the following loss incurred by the various complainants: No. Offence Complainant Details Outstanding Loss/damage attributed to BK 1 Burglary Jacqueline Barbara Whitlock 2am on 7.2.12 – Home entered - camera, cash and keys stolen. $380 2 Burglary Jean Coleman 2am on 7.2.12 – Home entered and jewellery, food, wallet, telephone keys and cash stolen. Door damaged. $1625 3 Enter dwelling with intent Stephen Spiegelhauer 7.2.12 – Carport and car entered and wallet taken (not by BK) and discarded nearby. $200 replacement of wallet 4 Burglary Anita Nolan 7.2.12 – Home entered and handbag/contents, laptop, sunglasses, perfume, jewellery, cash stolen. $4015.50 5 UUMV Hertz Car Rentals/Anita Nolan 7.2.12 - Car taken and damaged/written off. Excess paid to hire company by Anita Nolan. $5 500 6 UUMV Kimberley-Ellen Cooney Between 11.2.12. and 14.2.12 – vehicle taken and crashed into a creek – written off. Insurance excess paid by Cooney but not included in this application. Cash and keys stolen from car. $9. 7 UUMV Jason Ray Crowley Between 11.2.12 and 16.2.12 car taken and damaged with items stolen from car (keys, tobacco). $87.50 -- 7 of 12 -- [19] The Respondent’s submissions do not take specific objection to this information from Keenan’s affidavit but there is reference to this affidavit “consisting of compounded hearsay”. This may be taken to be a reference to this evidence as the Keenan’s information was based, in part, on what he had been told by the individual victims of the offences regarding the overall cost of their loss and damage. This is, of course, hearsay evidence and should be treated with caution. [20] However, BK had pleaded guilty to the offences involving these victims, and the schedule of offences (exhibit 3) containing the factual basis of each charge, including the value of loss and damage, was accepted by BK during the course of the sentence proceedings. Therefore, the information supplied by Keenan seems to merely support the evidence that is already properly before the court regarding the offences (s 259(1)(a)) and can be accepted on that basis. [21] I note further that the Applicant has taken the fair approach of seeking compensation calculated according to the total loss divided by the number of offenders involved in each offence. [22] Overall, I find that on the basis of this evidence I am satisfied beyond reasonable doubt that the stated loss or damage was sustained by each of the complainants, that BK was either a primary offender or a party to each of the offences and ought to be held responsible for such losses, and that compensation for each of the offences should be paid to each of them. 2. May RA have contributed to the fact the offences happened by not adequately supervising his son? [23] The applicant relies upon information contained in the presentence reports which had been prepared regarding BK and which are exhibits 1 and 2 in the these proceedings, as well as the historical pre-sentence reports which are exhibits 2, 3 and 4 to the affidavit of Susan Quaid. The points made can be summarised as follows: 1. BK had been in the care of his father since he was around 2 years old (1998/99); -- 8 of 12 -- 2. In the second half of 2009, BK’s behaviour began to deteriorate and this coincided with the father’s work commitments taking him away from the family home and BK being placed with other family whilst RA was away; 3. BK’s schooling ended toward the end of 2009 and was not enforced by RA; 4. BK commenced offending at the age of 13 years (2009); 5. Over time there had been numerous contacts between RA and various police officers and staff from the Department of Communities/Youth Justice. RA failed to engage with the agencies that were attempting to address BK’s behaviour. RA stated that he did not believe in rules and restrictions but only offering support and advice to his children; 6. RA repeatedly failed to attend court to support BK during court proceedings, sometimes in contravention of court orders that he attend; 7. BK was only 15 years old at the time of the most recent offences and therefore at an age when he was still in need of parental support and supervision; 8. BK’s behaviour was assessed as being the result of limited parental supervision and boundary setting. BK stated that he has too much freedom in his father’s care and is allowed to do whatever he likes; 9. As a result of the lack of supervision and lack of school attendance, BK had extensive periods of unstructured time and fell in with negative peers and commenced misusing alcohol and cannabis and ultimately offending on a regular basis during the night time hours; 10. At the time of the offences which gave rise to this application, BK had been released from detention onto a supervised release order and specifically into the care of RA. BK stayed with RA for only two nights before he absconded for the remaining two weeks before being arrested on these charges. It was during this time that the present offences occurred. [24] RA did not seek to challenge the contents of these reports or affidavits and therefore it is open to me to accept the information and the opinions contained therein. Further, RA has not supplied any further information regarding his -- 9 of 12 -- involvement with BK during the time frame under consideration. Having considered the material, I accept the factual assertions contained therein. [25] In accordance with the decision of His Honour Judge Wall in The Queen v CB & KE [2005] QChC 1 at page 23 the question “is not so much what more could the parents have done, but whether what they did in fact was adequate”. On this basis, I am satisfied beyond reasonable doubt that what RA did as a parent was not sufficient or adequate in that he did not take steps to adequately supervise BK during the time frame in which the offending commenced and continued. I am also satisfied beyond reasonable doubt that RA’s lack of adequate supervision may have contributed to the fact each of the offences happened. 3. Is it reasonable that RA should be ordered to pay compensation for the offences? [26] The Applicant provided some information regarding the employment of RA, but without specific details of his earning capacity. I therefore consider the matter on the basis on there being no evidence regarding RA’s financial position. [27] Unfortunately, RA did not supply any information regarding his financial position. In the absence of such information, there is no basis for the conclusion that orders for compensation would adversely impact upon him or any dependents. [28] Given the nature of a show cause proceeding, in my view it was for RA to provide accurate information regarding his capacity to pay compensation and or any adverse effect of this on him or his capacity to provide for dependents. Further, this information is best supplied by the Respondent to ensure accuracy. [29] This is but one of many considerations which could impact upon the decision as to whether an order for compensation is “reasonable” and overall I am satisfied beyond reasonable doubt that it is reasonable for such an order to be made Conclusion: -- 10 of 12 -- [30] Having reached the above conclusions, it follows that RA has failed to show cause as to why orders for compensation should not be made against him. While I note the Applicant filed a single application for a total amount equal to the maximum allowed for under the Act, in my view there are seven separate and distinct orders available in this case which would allow for individual orders of up to $6 700 for loss sustained for each offence basing the application. [31] Where there is a single complainant who has suffered distinct losses due to the commission of two distinctly different offences, it is my view that two distinct orders may be made for compensation. This is applicable in the case of the complainant Nolan and the losses sustained by her due to the separate burglary of her home and unlawful use of her motor car. ORDERS 1. RA pay compensation in the amount of $380 to Jacqueline Barbara Whitlock by way of instalments of $10 per week commencing Monday 19 November 2012 and continuing each week thereafter until paid in full. Such compensation is to be paid to the Registrar of the Childrens Court at Cairns for payment by the Registrar to Ms Whitlock at an address to be supplied by the Queensland Police Service. 2. RA pay compensation in the amount of $1 625 to Jean Coleman by way of instalments of $10 per week commencing Monday 19 November 2012 and continuing each week thereafter until paid in full. Such compensation is to be paid to the Registrar of the Childrens Court at Cairns for payment by the Registrar to Ms Coleman at an address to be supplied by the Queensland Police Service. 3. RA pay compensation in the amount of $200 to Stephen Spiegelhauer by way of instalments of $10 per week commencing Monday 19 November 2012 and continuing each week thereafter until paid in full. Such compensation is to be paid to the Registrar of the Childrens Court at Cairns for payment by the Registrar to Mr Spiegelhauer at an address to be supplied by the Queensland Police Service. 4. RA pay compensation in the amount of $4 015.50 to Anita Nolan by way of instalments of $10 per week commencing Monday 19 November -- 11 of 12 -- 2012 and continuing each week thereafter until paid in full. Such compensation is to be paid to the Registrar of the Childrens Court at Cairns for payment by the Registrar to Ms Nolan at an address to be supplied by the Queensland Police Service. 5. RA pay compensation in the amount of $5 500 to Anita Nolan by way of instalments of $10 per week commencing Monday 19 November 2012 and continuing each week thereafter until paid in full. Such compensation is to be paid to the Registrar of the Childrens Court at Cairns for payment by the Registrar to Ms Nolan at an address to be supplied by the Queensland Police Service. 6. RA pay compensation in the amount of $9 to Kimberley-Ellen Cooney by way of one instalment of $9 to be paid by Friday 23 November 2012. Such compensation is to be paid to the Registrar of the Childrens Court at Cairns for payment by the Registrar to Ms Cooney at an address to be supplied by the Queensland Police Service. 7. RA pay compensation in the amount of $87.50 to Jason Ray Crowley by way of instalments of $10 per week commencing Monday 19 November 2012 and continuing each week thereafter until paid in full. Such compensation is to be paid to the Registrar of the Childrens Court at Cairns for payment by the Registrar to Mr Crowley at an address to be supplied by the Queensland Police Service. 8. No order as to costs. -- 12 of 12 --