Corkill v Wilson [2009] QDC 13

1-1 [2009] QDC 13 DISTRICT COURT APPELLATE JURISDICTION JUDGE EVERSON No 276 of 2008 KYLIE-MAREE CORKILL Appellant and STEVEN L WILSON (Senior Constable) Respondent CAIRNS ..DATE 02/02/2009 JUDGMENT -- 1 of 9 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act 1886 from a decision of Magistrate Pinder on 3 October 2008 whereupon the appellant was convicted of one count of assault occasioning bodily harm and sentenced to 12 months probation, with special conditions, and ordered to pay $750 compensation to the victim. The circumstances of the offending are summarised at page 1 of the transcript. On 16 March 2008, the complainant and the appellant had been drinking at licensed premises in Mareeba. They returned to a private residence to party on. There was an argument between the complainant and the appellant and the appellant punched the complainant in the face with a closed fist. A consensual fight followed. Ultimately, others intervened to break up the fight. A male person picked up the complainant from the floor and, as he did so, the appellant punched her again. The offending behaviour may be summarised as the initial punch thrown by the appellant to the complainant and two further punches thrown by the appellant to the complainant as the fight was being broken up. The injuries suffered by the complainant are not particularised in any detail. It is merely said that she had numerous scratches and bruises on her face and two blackened eyes. -- 2 of 9 -- 1-3 JUDGMENT 1 10 20 30 40 50 60 It was said on behalf of the appellant before the learned Magistrate that the people involved had all been drinking together on the occasion of the assault over a period of hours and that alcohol was involved. It was also said that alcohol had been involved in respect of a previous entry in the appellant's criminal history where she was convicted of assaults occasioning bodily harm in the Weipa Magistrates Court on 22 October 2003. On that occasion no conviction was recorded and she was fined $400. Her criminal history is minor and, in addition, included contravening a direction or a requirement on 14 July 2003 and breaching a bail undertaking on 18 October 2004. Her traffic history included one entry for driving under the influence of liquor on 24 June 2003. It was expressly submitted on her behalf that she did not have a difficulty with drinking and that she did not have a problem with drinking, only consuming alcohol on special occasions. No details of the sequence in which the complainant received her injuries and no further details in respect of the role alcohol played in the offending behaviour and in any previous offending behaviour well put before the learned Magistrate. The learned Magistrate, in making a 12 month probation order, also imposed additional requirements, presumably pursuant to section 94 of the Penalties and Sentences Act 1992 (PSA), although he didn't expressly say so. These are in the following terms:- -- 3 of 9 -- 1-4 JUDGMENT 1 10 20 30 40 50 60 "specifically through the currency of the probation order, firstly, you shall not consume, administer or inhale any dangerous drug or alcohol, and whilst on the probation order you'll be subject to testing in relation to that. Secondly, you're not to enter or remain upon any licensed premises during the probation - during the period of probation order." In her notice of appeal, the appellant contends that the sentence imposed by the learned Magistrate is manifestly excessive. Mr Murray, who appears on behalf of the appellant, submits that the sentence is manifestly excessive on three bases:- "(1) that the learned Magistrate incorrectly approached the question of compensation; (2) that the additional requirement of the probation order that the appellant not consume any alcohol whilst on probation was manifestly excessive; and (3) the additional condition that the appellant, whilst on probation, not enter or remain on any licensed premises was manifestly excessive." In respect of the issue of compensation, the learned Magistrate was requested to make a compensation order by the Prosecutor, having regard to Schedule 1 to the Criminal Offence Victims Act 1995 (COVA). It was submitted that Item 1 was an appropriate guide for a compensation order in this -- 4 of 9 -- 1-5 JUDGMENT 1 10 20 30 40 50 60 regard. It is true that the learned Magistrate stated that it was merely an indication of what might be appropriate. He clearly apprehended that was in no way bound by it, as of course he was not. An application under the COVA was not open to the complainant as the matter was not the subject of an indictment in this Court. Although Mr Murray concedes that the learned Magistrate may have wished to compensate the victim pursuant to section 35 of the PSA, the utilisation of the schedule to the COVA as a guide was fraught with problems. The learned Magistrate did not in any way seek to separate out injuries the subject of the offending behaviour from injuries that may have been sustained in the course of the consensual fight. Once the learned Magistrate decided to utilise the scheme laid out in the COVA as a guide, submits Mr Murray, it was necessary for him to apply the scheme of the Act in its entirety. In this regard, I note that section 25 requires a number of matters to be considered, including whether or not the behaviour of the applicant contributed to the injuries suffered by her. -- 5 of 9 -- 02022009 D.1 T(2)7/LVT(CAI) M/T CAI2 (Everson DCJ) 1-6 JUDGMENT 1 10 20 30 40 50 60 Essentially Mr Murray submits that the approach taken by the learned Magistrate to the ordering of compensation required him to make a comparison between injuries clearly the subject of the offending conduct and injuries which were not, and also to look at the severity of any such injuries in a contextual way. Regrettably, the learned Magistrate did not embark on any detailed assessment. He merely awarded the sum of $750 without explaining how this came about, other than that he had had regard to the schedule referred to above as a guide. I have been taken to various passages in House v. The King (1936) 55 CLR 499 which address the considerations which must apply to an Appeal Court reviewing the decision of a legal officer below. In the judgment of Starke J at 503, his Honour noted that the Judge at first instance has a very wide discretion, but "it must be exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion". Regrettably, it appears that in fixing the amount of $750 as compensation the learned Magistrate merely adopted a figure from another statutory regime in a somewhat arbitrary manner, without weighing up other considerations which must always apply in determining an appropriate award for compensation, even under the statutory regime he chose as a guide. -- 6 of 9 -- 02022009 D.1 T(2)7/LVT(CAI) M/T CAI2 (Everson DCJ) 1-7 JUDGMENT 1 10 20 30 40 50 60 As for the other grounds of appeal, it is submitted that there is no proper basis for the imposition of the additional requirements of the probation order. It is submitted that such conditions may only be imposed pursuant to section 94(b) of the PSA where the Court considers they are necessary to cause the offender to behave in a way that is acceptable to the community, or stop the offender from again committing the offence for which the order was made, or to stop the offender from committing other offences. The additional requirements appear draconian. At no point in his reasons does the learned Magistrate indicate why he considered it necessary for these draconian requirements to be additional requirements of the probation order. Whilst it is true that the legal representative who appeared on behalf of the appellant before the learned Magistrate conceded that alcohol had been involved in the offending, and that similar offending some years previously had also occurred in the context of alcohol being involved, there was no other reference to the relationship between the offender and alcohol in the course of the sentencing hearing. The learned Magistrate did not explain why he felt it was necessary for the appellant to abstain from consuming any alcohol for 12 months and not enter or remain on any licensed premises for 12 months in order for her rehabilitation to be effective. In House v. The King, the majority further stated at 505:- "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 -- 7 of 9 -- 02022009 D.1 T(2)7/LVT(CAI) M/T CAI2 (Everson DCJ) 1-8 JUDGMENT 1 10 20 30 40 50 60 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 materials for doing so." It was not submitted to the learned sentencing Magistrate that there was any particular nexus between attending licensed premises per se and the offending. The only manner in which this was addressed at all was through the submission of the legal representative who appeared on behalf of the appellant in the terms noted above which stressed that the appellant did not suffer from a problem involving alcohol. It therefore, does not appear that a basis was put before the learned Magistrate, such that he could reasonably consider the additional requirements were necessary. It would appear that he has made a mistake as to the relevance of the attending of licensed premises and materially considered matters which do not readily appear to be relevant to the extent that would make the additional requirements necessary. For 12 months, pursuant to the additional requirements, the appellant would not be entitled to fully take communion if she was a communicant member of the Catholic or Anglican Church; for 12 months the appellant would not be permitted attend a restaurant that was licensed, even if she did not desire to consume any alcohol. To the extent that the learned Magistrate placed such draconian conditions upon the appellant, he clearly allowed extraneous or irrelevant matters to guide or affect him. -- 8 of 9 -- 02022009 D.1 T(2)8/ADS(CAI) M/T CAI2 (Everson DCJ) 1-9 JUDGMENT 1 10 20 30 40 50 60 Pursuant to section 225 of the Justices Act, on the hearing of an appeal I may confirm, set aside or vary the appealed order or make any order in the matter I consider just. I am of the view that the compensation order should be set aside. Although the learned Magistrate wrongly fettered his sentencing discretion in this regard, I am not in a position to separate the injuries the subject of the offending behaviour from injuries which may have been sustained in the consensual fight. I am therefore not in a position to assess what, if any, compensation should be paid I am of the view that the additional requirements of the probation order referred to above should be set aside as they are manifestly excessive. Accordingly, I order that the decision of the learned Magistrate be confirmed, save to the extent that the learned Magistrate imposed the additional requirements quoted above and I order that the order for compensation be set aside. ... ----- -- 9 of 9 --