Batts v Queensland Police Service [2010] QDC 161

DISTRICT COURT OF QUEENSLAND CITATION: Batts v Queensland Police Service [2010] QDC 161 PARTIES: Fiona Elizabeth Batts (Appellant) v Queensland Police Service (Respondent) FILE NO/S: 281/09 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Ayr DELIVERED ON: 09 April 2010 DELIVERED AT: Townsville HEARING DATE: 16 March 2010 JUDGE: Durward SC DCJ ORDERS: 1. Appeal allowed 2. The penalty of a fine of $2,000, including the payment of a moiety as compensation, is set aside. 3. In lieu thereof the appellant is fined the sum of $600 The fine is referred to the State Penalties Enforcemen Registry. 4. The recording of the conviction remains extant. 5. No order as to costs. CATCHWORDS: APPEAL AGAINST SENTENCE - fine of $2,000 said to be manifestly excessive - common assault constituted by a single slap by an adult to a teenager's face - no physical injury or harm - offence committed in emotionally charged circumstances immediately following a more serious offence of assault occasioning bodily harm upon the same complainant at the hands of the appellant's teenage daughter - no allegation of bodily harm or acting in company with the daughter alleged against the appellant - minor prior criminal -- 1 of 10 -- 2 history remote in time and not involving offences of violence. COMPENSATION - MOIETY - Magistrate ordered a moiety of the fine to be paid to the complainant by way of compensation - no evidence of personal injury or harm caused by appellant in respect of the offence committed by her - whether Magistrate complied with principles relating to orders for compensation - whether order should be set aside – observations on the order of a payment of moiety. RECORDING OF CONVICTION - relevance of Criminal Law (Rehabilitation of Offenders) Act 1986 - whether discretion pursuant to s 12 Penalties and Sentences Act should have been exercised in the circumstances. LEGISLATION CASES COUNSEL: Penalties and Sentences Act 1992 ss 12, 35 and 48; Criminal Law (Rehabilitation of Offenders) Act 1986 ss 4, 6 and 11; Acts Interpretation Act 1954 s 48; Justices Act 1886 s 225. Hughes v Hopwood (1950) QWN 21; House v R (1936) 55 CLR 504. F. Richards for the Appellant Mr K Stone for the Respondent SOLICITORS: Legal Aid Queensland for the Appellant Office of the Director of Public Prosecution for the Respondent [1] The appellant was convicted and sentenced on 16 October 2009 in the Magistrates court at Ayr on a charge of common assault. She was fined $2,000 (including $1,000 ordered to be paid to the complainant by way of compensation) and the fine was referred to the State Penalties and Enforcements Registry. A conviction was recorded. [2] The appeal against conviction has been abandoned. The sole ground of appeal is that the sentence is manifestly excessive. [3] The appellant pleaded not guilty. The original charge made against her was assault occasioning bodily harm. The circumstance of aggravation (bodily harm) was withdrawn during the hearing. The reason for that withdrawal will be apparent from the outline of the facts. She was convicted of the offence of common assault. Outline of Facts [4] The appellant is the mother of a 15 year old daughter named Zoe Pamenter (“Pamenter”). In mid afternoon on 30 June 2008 they drove to a house at 8 James -- 2 of 10 -- 3 Street, Ayr to collect some belongings of the daughter. The appellant’s four year old daughter accompanied them. Pamenter went into the house at that address. The complainant, Ms Harmony Stuart (“Stuart”), then 16 years of age and a male, Steve Pedron (“Pedron”) were present in the house as visitors. Pamenter, upon seeing Stuart returned to the car and spoke to her mother. She then went back and entered the house. She then assaulted Stuart, causing her bodily harm. There is no evidence that the appellant was a party to that offence, either by encouragement or otherwise. The assault ended when Pedron restrained Pamenter. In the meantime the appellant had entered the house and immediately after the cessation of the assault upon Stuart by Pamenter, the appellant stepped up to Stuart and slapped her on the face. The appellant then immediately left, taking Pamenter and her other daughter with her. The Bodily Harm [5] Stuart suffered soft tissue swelling and a small cut on the back of her head, with scratch marks and tenderness to both sides of her neck. Those injuries were a consequence of the assault upon her by Pamenter. There is no evidence of any injury having been caused by the appellant's conduct and the circumstance of aggravation was discontinued because even bodily harm at its minimal defined meaning (an interference with health or comfort) could not be proved against the appellant on the prosecution case. Pamenter, who was a juvenile, was cautioned by the authorities but not charged with any criminal offence. The Decision [6] Whilst the appeal against conviction was abandoned at the hearing, his Honours remarks in determining criminal responsibility are nevertheless relevant to the sentencing decision that is the issue in the appeal. [7] The appellant and Pamenter, amongst others, gave evidence at the hearing. The learned Magistrate rejected their evidence. He preferred the evidence of other witnesses. He concluded that the appellant and her daughter had concocted a story to provide a justification for the appellant's conduct. [8] The appellant was not charged with an offence committed in company. Pamenter entered the house alone. The appellant entered shortly after with the other daughter. The offence committed by Pamenter had finished when the appellant entered the house. The only physical contact between the appellant and Stuart was the single slap to the face. [9] His Honour in his decision said that the matter turned "purely on the credit of the witnesses called." He referred to some of the evidence given by Pamenter - to the effect that there had been a slap on an arm and, inferentially, that this may have in some way confused the issue about the slap to the face – and concluded that evidence was contrived. He concluded that there had been some recent invention and collusion in the evidence of the appellant and her daughter. He also referred to a failure to comply with the rule in Browne v Dunn. [10] His Honour concluded that the appellant and her daughter were unreliable witnesses. He said that Pamenter was petulant, argumentative and made non-responsive answers. He took the view that she had tried to take full responsibility for the injury suffered by -- 3 of 10 -- 4 the complainant and in doing so she may have unaware that the bodily harm element of the charge against her mother had been withdrawn. [11] On the other hand, his Honour considered that the evidence of Pedron was credible and frank. He was not as forthright about the credibility of Stuart, but qualified that view by reference to the fact that her recollection may have been "affected" by the battering that she took at the hands of Pamenter. He concluded that she did her best to give honest evidence. [12] His Honour said that he accepted the evidence of the prosecution beyond reasonable doubt. He made a specific finding that Stuart: "[w]as confronted by Ms Pamenter, assaulted violently. There was a pause in that attack. She was again assaulted by Ms Pamenter to the point that her head was, at some point, went [sic] through the glass pane of the back door. She was - that is, Ms Pamenter, was restrained and taken away or pulled back from Ms Stuart by Mr Pedron at which point the defendant, Ms Batts, approached the complainant, Ms Stuart, and slapped her to the head”. [13] His Honour found that all of the elements of the offence of common assault had been proved beyond reasonable doubt and convicted the appellant of that offence. Submissions below on Sentence [14] The prosecutor submitted that a period of probation was the appropriate penalty. His Honour responded as follows: "[W]ell, what have we got here, someone who barges into a house uninvited in concert with her daughter, assaults a 16 year-old … no provocation alleged … an adherence to a version that is clearly false or is clearly unreliable. It's a significant offence.” [15] The prosecutor simply responded to that statement with the word "yes" by way of affirmation. His Honour continued as follows: "That being said, one element, that is, the bodily harm, has been left out, or limited, but that should have been obvious from the very start. It was always going to be impossible to prove the bodily harm for the second assault so we are left still with quite a significant assault." [16] The prosecution submitted that a conviction should be recorded. [17] Mr Hansen (who appeared for the appellant at the trial) submitted that there was simply one assault constituting a slap to the face and that it was at the low end of the scale of assaults. That submission elicited the following response from his Honour: "Well, let's investigate that, Mr Hansen. Perhaps if two people met on the street and someone slapped them [sic], that might be at the low end of the scale. In this instance, as I have indicated - I'll invite the submission in relation to it - they have gone uninvited into a house. The daughter has inflicted a significant beating on Ms Stuart and that's followed up by the mother when the daughter's eventually restrained. It seems to me after she's had her - been, in Pamenter's words, hit and kicked anywhere she could, had her head pushed through the back window of the -- 4 of 10 -- 5 door, then confronted by an older woman and then slapped. I can't come to the same conclusion as you that it's at the lower end of the scale." [18] Mr Hansen responded by submitting that the offence was not an assault occasioning bodily harm but a common assault and it was not committed in company, that Stuart was only a visitor at the residence and was not residing at the house where the offence occurred, the assault was not prolonged, it constituted one slap and there was no long lasting injury as a result of the incident. [19] There followed some discussion about the financial position of the appellant. His Honour then said to Mr Hansen: "It's complicated, isn't it, that she's not charged with an assault in company, she's not charged with bodily harm in company, and the two distinct assaults but it's certainly exacerbated by the fact that she follows up a fairly vicious assault with a slap. All right. I mean, I should say - I mean, my contemplation is a term of imprisonment, either wholly partly or wholly suspended, given the nature of the offence, the lack of remorse et cetera. But that's not submitted. That's not to say it can't be considered, notwithstanding it hasn't been submitted." The Sentencing Remarks [20] His Honour sentenced the appellant in the following terms: ."..Ms Batts. You've been found guilty of an offence of common assault. I've made findings that are adverse to the quality of the attack is vicious [sic]. You've shown no remorse. Indeed, you seek to escape responsibility for your actions by concocting a story that's plainly not true. You are a mature woman. You have four children. You've previous entries on your criminal history for drug matters back in 1999, possession of dangerous drug and possession of utensils. You were fined and you converted that fine to a fine option order. And again in 2001 you are convicted of possession of a dangerous drug and possession of utensils. Again, you performed community service by way of a fine option order in relation to those offences. You've got no previous entry for violence, and that's in your favour. You are engaged in employment and the moneys from that employment is supplemented by benefits. Mr Hansen tells me that you have the capacity to pay a fine. As I said, I must say to you that my contemplation is a term of imprisonment. It was a vicious assault on a person much younger than you, and no valid reason has been given for it. As far as his contention it's the lower end of the scale. I think he resiled from that, but if he didn't, it's clearly not at the lower end of the scale. It was a disgraceful act and there needs to be a general deterrent to other persons who might be inclined to engage in this sort of activity. Generally speaking, that would come from a term of imprisonment. But, although no submissions have been made on that part, a term of imprisonment would work a significant hardship on your children who it might be said are a reflection of you. In all the circumstances then you are convicted. That conviction is recorded. You are fined the sum of $2,000. I order a moiety of that fine to be paid to the complaint, Hrmony Louise Stuart. That fine will be referred to the State Penalties Enforcement -- 5 of 10 -- 6 Register. You will get a letter in the mail in due course. You must make arrangements to pay that fine. If you do not pay the fine, eventually warrants will issue for you and the default period will be in the vicinity of 20 days gaol." Submissions on the Appeal [21] In the course of submissions the possibility that some words may have been said by Stuart to the appellant that might have amounted to a provocation for the common assault offence and thereby have been relevant on sentence. I do not need to go into the detail of that evidence. In my view the evidentiary basis for that assertion is equivocal at best and in my view not capable of supporting an assertion to that effect. [22] Mr Richards submitted to me that his Honour had sentenced the appellant on a factual basis that was not supported by the evidence, namely that she and her daughter had "barged into a house uninvited in concert" and that the common assault was characterised as a "vicious assault." He submitted that in the first instance there was no evidence of the offence being committed in company and that circumstance of aggravation had not been charged; and that his Honour had failed to distinguish between the assault occasioning bodily harm committed by Pamenter - which may have warranted the description given by him in his decision - and the common assault committed by the appellant. [23] Mr Stone submitted that his Honour had been ‘thinking aloud’, in a process of clarifying the factual circumstances, when he used the word "concert" and that on the face of the whole of the sentencing remarks there had in fact been no confusion about whether the offence was one committed in company or not. He submitted that his Honour had referred to "the two distinct assaults" and that there was no reason to suspect that he had failed to distinguish between the two. So far as the use of the word "vicious" was concerned, he submitted that his Honour was simply putting the common assault offence into the context of the whole of the incident, which included the prior assault by Pamenter. [24] The appellant submitted that his Honour gave insufficient weight to mitigating factors, including the appellant's lack of any recent or relevant criminal history and that the offence was out of character. [25] His Honour did refer to the lack of relevant criminal history; that is, prior offences of violence. The respondent submitted that this of itself implied that the offence was out of character. [26] Mr Richards submitted that his Honour had not taken into account the mitigating factor of remorse because of his reference to a ‘lack of remorse’. He submitted that the hearing had been justified by reason of the element of bodily harm being discontinued in the course of the hearing; that is, it had been appropriate that the appellant plead not guilty and proceed to trial. [27] It does not seem to me that his Honour has punished the appellant for having embarked on a trial. His Honours reference to lack of remorse in my view is more likely to have reflected his findings that the appellant and her daughter had concocted the story about the sound of a slap. -- 6 of 10 -- 7 [28] I do not consider that there was any failure by his Honour in respect of the factual basis upon which he sentenced the appellant. Nor do I consider that there was any failure to take into account matters in mitigation of punishment. Was the sentence manifestly excessive? [29] The appellant submitted that the fine of $2,000 was manifestly excessive; and that a conviction should not have been recorded. In my view the fine was a large fine for conduct which constituted a single slap to the face. His Honour had said both in the course of submissions on sentence and in sentencing the appellant that imprisonment was open as a sentencing option. Frankly, I do not consider that imprisonment could possibly have been reasonably in contemplation for the offence that was committed by the appellant and I disagree with his Honour's conclusion that it was open as a sentencing option. [30] The imposition of a fine was a sentencing option that was open. However, a fine of $2,000 is manifestly excessive in circumstances where the offence constituted a slap to the face, albeit by an older woman to a younger woman who had been assaulted by another person. Further, the prosecutor’s submission was that a probation order was appropriate. I agree with that submission. It was both reasonable and appropriately moderate. Unfortunately, the prosecutor did not press the submission beyond her initial submission. A period of community service would also have been open. It seems to me that his Honour may have been influenced on sentence, impermissibly in my view, by the manner in which the defence case had developed and by his unfavourable views of Pamenter’s conduct and of the credit as witnesses of both Pamenter and the appellant. [31] In this appeal I may confirm, set aside or vary the appealed order or make any other order in this matter that I consider just: s 225 (1) Justices Act 1886 (“JA”). An order made by me has effect and may be enforced in the same way as if it had been made by the magistrate below: s 225 (4) JA. [32] The principles governing appeals against the exercise of discretion on sentence are well established. In Hughes v Hopwood (1950) QWN 21 (at p31), Macrossan CJ stated that an appeal court is not entitled to interfere unless it “[c]an find that the sentence is manifestly excessive or that there are some circumstances which show that the magistrate acted under a misapprehension of fact or on some wrong principle in awarding a sentence.” See also House v R (1936) 55 CLR 504. [33] A number of comparative sentences were provided to me at the hearing of the appeal. The lack of any recent or offences of violence in the modest criminal history of the appellant is a factor which is relevant to the quantum of the fine. I have referred to the comparative sentences, although they are all about 10 years old. Whilst acknowledging the increase in the value of money over that time, the fact that each case must be considered on its own circumstances and discharging this court's function so far as any interference with the order of the magistrate is concerned, I am of the view that a fine of up to perhaps $1000, without any order for compensation, may have been open to his Honour to impose. However, the appropriate penalty, reflecting the relevant circumstances of the offence, the matters in mitigation and maintaining objectivity in the sentencing function, is a fine of $600. -- 7 of 10 -- 8 The award of compensation [34] It seems to me that his Honour in awarding compensation of $1,000 (the moiety) was impermissibly imposing the burden of a compensation payment on the appellant for the conduct of Pamenter. There was no evidence that the appellant's single slap to the face had caused any injury or other harm to Stuart. There was no evidentiary basis for an award of compensation to be made against the appellant. [35] Pamenter was a child and she had been cautioned rather than charged. Hence there was no means by which a compensation order could be made against her, even if that was thought to be practical given that she was a child, and it seems to me that his Honour has taken the course of transferring the compensation burden to the appellant. I cannot find any other rational basis for the order made by him. There were two quite distinct offences: the first resulting in bodily harm (and inferentially giving rise to the potential for a compensation order to be made); and the second resulting in no injury or harm at all and hence a compensation order not being open. [36] The power to order payment of compensation by way of moiety appears to be derived from s 43 Acts Interpretation Act 1954 (“AIA”). How that provision sits with the more recently enacted Penalties and Sentences Act 1992 (“PSA”) is an interesting issue. The section in the AIA deals with the distribution of the fine that is collected. Hence a part of a fine, not being more than one half, can be distributed in favour of an aggrieved person. There have been over time and still are, of course, specific provisions in other legislation providing for payment of moiety in prosecutions for statutory offences. [37] It is arguable that the PSA constitutes a code for punishment of criminal offences. Inferentially it is also arguable that it constitutes a Code for the award of compensation in a summary way in respect of criminal offences. That does not mean that the compensation regime in the Criminal Offence Victims Act 1995 is affected – that regime is invoked by specific application as distinct from being a summary means of compensating victims of criminal offences. [38] His Honour does not appear to have considered sections 35 or 48 of the PSA in his decision to award compensation. Nevertheless, the compensation order was made without any evidence upon which compensation could be awarded against the appellant. She had not caused any personal injury or harm to the complainant. He erred as a matter of fact in doing so. His Honour simply ordered compensation by reference to a moiety of the fine he imposed. Hence it matters not that he did not appear to have considered the provisions of the PSA. [39] I may deliver a supplementary judgment, if it is appropriate, about the issue of the power to order the payment of moiety of a fine by way of compensation in respect of criminal offences. However, I am able to determine the present appeal without reference to that issue because that determination can be made on the evidence as distinct from any potential error of law. Recording of a Conviction [40] The appellant submitted that a conviction should not have been recorded in all of the circumstances. In support of that submission, Mr Richards referred to the Criminal Law (Rehabilitation of Offenders) Act 1986 (“the CLRO Act”). It was submitted that -- 8 of 10 -- 9 the impact of the recording of a conviction in this case enlivened the declaration of earlier convictions in the appellant's criminal history. [41] Section 12 of the PSA gives the court discretion whether or not to record a conviction. The circumstances required to be considered by the court include: (a) the nature of the offence; and (b) the offender's character and age; and (c) the impact that recording a conviction will have on the offender's - i) economic or social wellbeing; or ii) chances of her finding employment. [42] It was submitted by the appellant that this might have an adverse impact upon her employability. Although Mr Richards said that he could not point to any immediate detriment. He submitted that the case authorities did not require there to be an "immediate detriment". [43] The criminal history of the appellant comprised two drug offences, namely: • Maryborough Magistrates Court 02/09/1999, possession of dangerous drugs and possession of utensils or pipes; fine of $450 and no conviction recorded; and • Maryborough Magistrates Court 23/10/2001, possession of dangerous drugs and possession of utensils or pipes; fine of $600, conviction recorded. [44] The CLRO Act has the purpose of providing for the rehabilitation of persons convicted for offences and related purposes. It provides for a "rehabilitation period" of a period of 10 years commencing on the date the conviction was recorded (as far as is relevant here) in s 4. It provides in s 6 that where the rehabilitation period has expired and the conviction has not been revived the conviction shall not be disclosed. It provides in s 11 that where the person is again convicted for an offence the rehabilitation period recommences from the date on which the further conviction is made and the earlier rehabilitation period becomes irrelevant. [45] The submission appears to be that in respect of the second prior offence the rehabilitation period would continue to run until 23 October 2011, but that a conviction in this matter would mean that the ten year rehabilitation period would now run from the date of the conviction on this offence, namely 16 October 2009. The rehabilitation period arising from the prior conviction in 2001 had run for eight years. [46] I am not persuaded that the CLRO Act, in the circumstances of this case, would have been a relevant factor to consider in respect of the discretion exercised pursuant to s 12 of the PSA. [47] Nor am I persuaded that the Magistrate was in error in recording a conviction. It seems to me that in the absence of any finding of provocation being established on the evidence, which is what I consider to be the case, the assault was one that even in the emotionally charged circumstances that undoubtedly existed was inexcusable. His -- 9 of 10 -- 10 Honour was entitled to take the view that the offence was sufficiently serious, even though bodily harm was not an element of the offence, to take the offence out of the category of being a trivial offence. No submissions were made before his Honour (nor before me) which would have brought into proper consideration the matters to be considered pursuant to s 12 either alone or, as is properly the case, in the context of the matter as a whole. The recording of a conviction was within a proper exercise of discretion by his Honour and I do not propose to interfere with it. Orders 1. Appeal allowed 2. The penalty of a fine of $2,000, including the payment of moiety as compensation, is set aside. 3. In lieu thereof the appellant is fined the sum of $600. The fine is referred to the State Penalties and Enforcement Registry. 4. The recording of a conviction remains extant. 5. No order as to costs. -- 10 of 10 --