Di Vita v The Queensland Police Service [2008] QDC 230

DISTRICT COURT OF QUEENSLAND CITATION: Di Vita v The Queensland Police Service [2008] QDC 230 PARTIES: LIBORIO DI VITA (Appellant) v SENIOR CONSTABLE JASON CAMERON (Respondent) FILE NO/S: 131 of 2008 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Southport DELIVERED ON: 26 September 2008 DELIVERED AT: Southport HEARING DATE: 17 September 2008 JUDGE: Rackemann DCJ ORDER: The appeal is dismissed. CATCHWORDS: Appeal against sentence for common assault – whether community service and recording of a conviction were manifestly excessive – whether magistrate inappropriately took account of submissions and evidence about bodily harm – whether magistrate improperly acted on basis of a disputed and unproven version of events COUNSEL: Mr C F Bagley of counsel – for the Appellant Ms M Arace, solicitor – for the Respondent SOLICITORS: Price & Roobottom – for the Appellant Director of Public Prosecutions – for the Queensland Police Service -- 1 of 9 -- 2 [1] This appeal is against the sentence imposed upon the appellant in the Magistrates Court on 14 February 2008, upon his plea of guilty to one count of common assault. He was ordered to perform 180 hours of community service and a conviction was recorded. The appellant was also ordered to pay compensation in the amount of $1,000, with the matter being referred to SPER. [2] There was no complaint about the sentence in so far as it ordered compensation to be paid. Indeed the solicitor who appeared for the appellant at first instance had informed the magistrate that his client was willing to consent to the making of such an order, on account of the victim’s pain and suffering and damage done to his shirt. The appellant’s complaints relate to the decision to record a conviction and the ordering of community service, instead of the imposition of a fine. Both were said to be manifestly excessive. It was submitted that the magistrate was influenced, in arriving at a manifestly excessive sentence, by wrongly taking into account certain matters which had been placed before him by the prosecution. [3] It may be noted that at first instance, the community service order and the conditions of that order were explained to the appellant, who then indicated a preparedness to comply with the order. It was not suggested however, that this stood in the way of a subsequent appeal to this court. [4] The only offence for which the appellant was dealt with was common assault. He was not charged with any offence which involved the occasioning of bodily harm. Nevertheless, Ms Jobberns, who appeared for the prosecution at first instance, told the magistrate that, as a result of the assault, “the victim suffered bruising, swelling and soreness to the left high cheek area, bridge of his nose, left forehead and chest area”. She also tendered photographs, which showed bruising, and a victim impact statement. The solicitor who appeared on behalf of the appellant at first instance took some objection to both the photographs and the victim impact statement. It was submitted, on the hearing of the appeal, while the learned magistrate could not be blamed for what the prosecutor said, he should have disregarded submissions in relation to any injuries to the complainant and ought not to have received evidence about those injuries, over the objection of the solicitor who appeared for the appellant at first instance. -- 2 of 9 -- 3 [5] When the photographs were tendered, the solicitor for the appellant objected, on the basis that they tended to sensationalise the matter to the prejudice of his client, given that the charge was for common assault only. Upon being questioned by His Honour as to whether there was a problem with him seeing the photographs, the solicitor went on to say: “Your Honour, it is a – I don’t wish to take that particular matter any further, suffice to say that I would ask your Honour to consider the contents of those photographs in context with the charge that is before the Court. …” [6] At that point the learned magistrate interrupted to say “I’m fully aware of what a common assault charge is”. [7] The solicitor for the appellant had, at first instance, also taken objection to the victim impact statement. That was partly because it had not been provided in advance of the appellant’s decision to plead guilty and partly because it contained statements, not sworn to, which his client would wish to contest. [8] Considerable care needs to be employed in the use of the victim impact statements. As Fryberg J said in R v Singh (2006) QCA 71: “One other matter should be mentioned. In his sentencing remarks the judge referred to the “consequences not only to [the complainant] physically but to his mental and emotional and psychological health and the impact it has also had on his wife and children.” The information upon which his Honour made that finding came from a victim impact statement prepared by the complainant. Sentencing judges should be very careful before acting on assertions of fact made in victim impact statements. The purpose of those statements is primarily therapeutic. For that reason victims should be permitted, and even encouraged, to read their statements to the court. However, if they contain material damaging to the accused which is neither self-evidently correct nor known by the accused to be correct (and this includes lay diagnoses of medical and psychiatric conditions) they should not be acted on. The prosecution should call the -- 3 of 9 -- 4 appropriate supporting evidence. It is unfair to present the accused with the dilemma of challenging a statement of dubious probative value, thereby risking a finding that genuine remorse is lacking, or accepting that statement to his or her detriment.” [9] In light of the objection by the solicitor for the appellant, the learned magistrate adjourned the court to give the legal representatives an opportunity to discuss the matter. Upon resumption, the solicitor for the appellant informed the learned magistrate that discussions had been “fruitful” and that the matter could proceed to finality that day. It would appear that the parties reached agreement on the basis that parts of the victim impact statement were obliterated. I do not think that the magistrate should be criticised for proceeding on that agreed basis. [10] It was pointed out that the magistrate, in the course of argument, had referred to the victim impact statement as going to penalty, but that statement was evidently made to challenge the assertion that it may have been relevant to the appellant’s decision to plead. [11] In his sentencing remarks, the magistrate made no mention of the victim impact statement or of any injury said to have been suffered by the complainant. Indeed, notwithstanding what had been placed before him, the magistrate made express reference to the fact that he was only dealing with the appellant for common assault. I note that the compensation order, at $1,000, was significantly less than the $1,550 which had been sought (and not opposed). The learned magistrate, in his sentencing remarks, also distinguished the cases which had been cited to him by the prosecution, on the basis that they involved “a number of other more serious elements that … are not relevant here”. In the course of argument, he had identified those other elements as including assault occasioning bodily harm 1 and had observed that he was “mindful” of the distinction between those cases and the current case, which involved common assault only.2 [12] In the circumstances, while the prosecution ought not to have referred to bodily harm and while the learned magistrate ought not to have admitted evidence of bodily harm, or acted on the victim impact statement in a way which departed from 1 T8. 2 See T9. -- 4 of 9 -- 5 the above quoted passage from R v Singh (supra), he clearly kept at the forefront of his mind, that the appellant had only been charged with common assault. While the sentencing remarks mis-described that as a “mitigating factor” (it was the offence, not a mitigating factor), I do not consider that it should be inferred that the severity of the sentence was influenced by a consideration of bodily harm. [13] It was also submitted that the learned magistrate had been inappropriately influenced by the version of events placed before him in the submissions of the prosecutor, including the complainant’s version of events in relation to the manner of the appellant’s driving on the highway preceding the common assault. The version of events put before the court by the prosecution was as follows: “At about 11.50 on the 27th of July 2007, a victim, a Mr Bowman, was travelling north along the Pacific Motorway, Tallebudgera, when a black Holden Commodore sedan being driven by the defendant has started tailgating him. This is as a result of the defendant further following the victim’s vehicle as it exited the motorway at the Bermuda Street exit. When at the roundabout, the defendant has pulled his vehicle up alongside the victim’s passenger side and struck at his side mirror resulting in it being knocked from its mounting. The victim has continued driving along Bermuda Street with the defendant driving off in front of him. The victim has exited into Hutchinson Street where he was to pick up his wife. As the victim was standing next to his car with his wife, the defendant has driven up and exited his vehicle. He has immediately commenced verbally abusing the victim and when within reaching distance has started to throw punches at the victim’s head area. A number of these punches have hit the victim’s face before the victim has been able to grab hold of the defendant. The defendant has at one stage then head butted the victim to the bridge of his nose. The victim’s wife who was present the entire time was able to step in between the defendant and her husband telling the defendant she had called the police. -- 5 of 9 -- 6 The defendant has re-entered his vehicle and sped off along Hutchinson Street, Burleigh Heads. …” [14] That version of events was not uncontested. The appellant’s solicitor informed the magistrate that, on his client’s version, there had been no tailgating of the complainant’s vehicle. Rather, the complainant had merged into the lane in which his client had been travelling. His client then passed the complainant’s vehicle, at which time the complainant sounded his horn, made offensive hand gestures and also yelled out something. This caused his client to become upset. While he accepts that he should have simply kept driving to his destination, he did not. Once the vehicles stopped the complainant approached the appellant and there was an altercation. During that altercation the complainant struck his client in the arm with a pen. His client then punched the complainant in the face. He denied intentionally head butting the complainant, but accepts that it could have happened in the course of the altercation. [15] This is an illustration of the difficulty which can arise when a sentence proceeds as if it was an uncontested sentence when, in reality, the parties have not come to an agreement about the facts upon which the court ought to proceed. Where there is some conflict, the court is not put in a position to resolve that conflict simply by being told, from the bar table, what the competing version of events are. The proper course is for the dispute to be the subject of evidence, upon which the court can make findings. [16] The experienced magistrate was, as one might expect, alive to the difficulty. At page 20 of the transcript at first instance, he specifically raised a concern about conflict between the two versions of events. It may be noted that the particular conflicts which seemed to trouble his Honour were those concerning the incident from which the charge of common assault arose, rather than the earlier driving incident. As a consequence of His Honour’s concern, the solicitor for the appellant went through, quite carefully, the basis upon which the plea had been made. [17] It was conceded, in an oral argument on the hearing of this appeal, that the magistrate ought not to have acted upon the disputed and unproven parts of the prosecution’s version of events. The learned magistrate did not however, in his -- 6 of 9 -- 7 sentencing remarks, descend to a detailed description of any particular version of events or seek to resolve any conflicts. He did accept, as a mitigating factor, that the common assault followed an altercation between the complainant and the appellant. [18] It was submitted on behalf of the appellant, that one could infer that his Honour had taken the disputed parts of the prosecution’s version of events into account, including in relation to the manner of the appellant’s driving. Attention was drawn to those parts of his Honour’s sentencing remarks which referred to the incident as being one of “road rage”, that “it shows a completely selfish attitude to the way that in this particular case, you thought that you were the so-called king of the road”, the mis-description of the absence of a traffic offence charge as a “mitigating factor” and his express decision not to disqualify the appellant from holding a driver’s licence. [19] His Honour’s reference to “road rage” does not indicate that the appellant was being punished for the manner of his driving. In his sentencing remarks, the learned magistrate spoke not of any erratic driving behaviour on the part of the appellant, but rather about the need for the appellant to have shown “tolerance” and not “physically take out on another road user your frustration at the way that particular person drives”. [20] While the assault occurred subsequently to the driving incident, the appellant’s solicitor had, at first instance, acknowledged that his client had become “somewhat disturbed and riled by the actions of the complainant”. This had caused him to follow the complainant, rather than just continue on his way. The subsequent incident between the complainant and the appellant was no chance meeting. When the two became involved in an altercation, the defendant reacted with disproportionate force. [21] There had been some debate, at first instance, as to whether the circumstances could fairly be described as “road rage”. The learned magistrate responded by saying: “I agree it’s a generalisation but this would be one of the classic examples of road rage in the sense that there is an incident that occurs on a road between two motor vehicles and then rather than let -- 7 of 9 -- 8 the incident pass, the two drivers decide to sort it out between them, if I can use the colloquial, and one comes off second-best and then complains. … But I think it could safely be categorised as generally, anyway, one of road rage … [b]ecause there is the incident between the vehicles on the road which is then subsequently followed up by personal contact.” [22] When the sentencing remarks are read in the context of the argument which preceded, it can be seen that his Honour viewed the incident as an example of road rage, not because he accepted that the appellant had driven dangerously or recklessly or had damaged, or sought to damage, the vehicle or person of the complainant in the course of driving, but because the appellant became enraged (rightly or wrongly) as a result of an incident on the road and, rather than let it go, followed the complainant in his enraged state and ultimately committed an unlawful assault upon that person. His Honour was entitled to take that view. [23] The “king of the road” remark may be somewhat inapposite, but it appears at the conclusion of a paragraph in which the magistrate spoke of the need for tolerance towards those who do not act as you would wish them to. It is not linked to an observation about the manner of the appellant’s driving on the day in question. [24] Moreover, an examination of the reasons for judgment, set in the context of the argument which preceded them, satisfies me that: (1) The learned magistrate was mindful that the only charge was one of common assault and that, notwithstanding the matters put before him by the prosecution, the appellant was not being dealt with for an offence involving occasioning bodily harm or for a traffic offence. (2) His Honour distinguished the cases which had been cited by the prosecution, which involved elements, such as occasioning bodily -- 8 of 9 -- 9 harm and wilful damage, which His Honour recognised were not relevant here. (3) Having identified that there was a conflict between the versions of events put forward by the prosecution and defence respectively, and having been careful to examine the basis upon which the defendant entered the plea, his Honour took into account, as a mitigating circumstance, that the assault followed an altercation between the parties. (4) While His Honour expressed some interest in whether there ought to have been a licence disqualification, he did not purport to impose any such disqualification. (5) Although his Honour took the view that the offence was one of some seriousness and involved “road rage”, he did so not on the basis that the appellant had driven dangerously or recklessly or had done damage to the vehicle or person of the complainant in the course of driving, but rather on the basis that the appellant had allowed his frustration with the complainant in relation to the driving incident to affect his later conduct, culminating in the assault. [25] In so far as the discretion to record a conviction is concerned, His Honour took into account the seriousness of the offence, set against the appellant’s antecedents and, in particular, the lack of a previous conviction for a like offence. There was no evidence of any specific adverse effect which the recording of a conviction would have upon the appellant. [26] In my view when the magistrate was entitled to view the offence, which was one of violence, as being of some seriousness and as calling for a deterrent sentence notwithstanding that it did not involve bodily harm. The sentence which his Honour imposed was, in my view, within the bounds of a proper exercise of discretion both with respect to the imposition of community service and with respect to the recording of a conviction. The appeal is dismissed. -- 9 of 9 --