Billington v Filmore [1996] QCA 562

[1996] QCA 562 COURT OF APPEAL DAVIES JA DOWSETT J WHITE J CA No 402 of 1996 BILLINGTON v. MICHAEL WILLIAM FILMORE Applicant BRISBANE .DATE 14/11/96 JUDGMENT -- 1 of 5 -- 141196 T4/JJD1 M/T COA284/96 2 JUDGMENT DOWSETT J: The applicant was born on 13 April 1977. He is presently aged 19 years. He pleaded guilty in the Magistrate's Court to one count of wilful and unlawful damage to property and one count of aggravated assault. On each count he was sentenced to imprisonment for two months, with a recommendation that he be eligible for parole after serving a period of one month. On the wilful damage count, he was ordered to pay compensation in the amount of $570, within six months. The circumstances of the offence were that while affected by liquor, he returned to a home which he was sharing with the complainant on the aggravated assault count. He was sitting in the driveway of the house when she returned home and when she saw him in the condition that he was in, she decided that she had had enough of him and told him to pack his bags and leave. He became angry and stormed into the house, where he punched two holes in the lounge room plasterboard walls. He then went to his bedroom and could be heard punching or kicking the walls there. The complainant contacted the police, who arrived shortly thereafter. They spoke to him. He was uncooperative and abusive. He was questioned as to the damage which had been caused, but refused to comment. He was asked if he wished to be interviewed in relation to the matter and declined. He was then arrested and taken to the watch-house, where he was more or less immediately released on bail. As I have said, an order for compensation in the amount of $570 was made with respect to the damage to which I have referred. On the assault count, the circumstances were that as -- 2 of 5 -- 141196 T4/JJD1 M/T COA284/96 3 JUDGMENT he was leaving the premises with the police after being arrested, they walked past the complainant and as he walked past her, he turned his head and spat at her, his saliva landing on her chest area. The circumstance of aggravation in this case is, as I understand it, the fact that she was a female. Clearly, the applicant was affected by alcohol. He was a person who had one previous conviction for an offence of dishonesty, for which he was fined a quite substantial amount it would seem, having regard to the property involved, but there is no other convictions of any kind. The Stipendiary Magistrate took, understandably, a very severe view, particularly of the spitting offence, apparently considering it to be a very serious offence, both because of its degrading nature and because of the risk of communicating disease. One cannot, in a general way, criticise either of these views. However, the question of interpersonal hygiene may be of somewhat less significance in this case, where the complainant and the applicant had in fact been living together for some time prior to the offence. I fear that the Magistrate has in some respects misconceived this case by equating it to a number of cases in which Courts have imposed periods of imprisonment in respect of offences which involved spitting. These have, very largely, been offences involving police officers, where the Court has been concerned to ensure that the -- 3 of 5 -- 141196 T4/JJD1 M/T COA284/96 4 JUDGMENT dignity of the officer was maintained and more particularly, that the community mark its displeasure of such degrading conduct towards somebody performing a difficult, but vital duty. I do not think that those cases can readily be translated into incidents which occur between persons who are or have been living together, where the passions have been stirred to anger for whatever reason. It cannot be the case that every incident involving spitting invariably results in a period of imprisonment. To state the proposition in that way demonstrates a part of the problem with this sentence. Mr Campbell, for the respondent, sought to hold the sentence primarily upon the basis that because the police had been called, she was assaulted because she had availed herself of police assistance. I think there is something in this submission, but I do not think that it so aggravates the circumstances as to lead to the conclusion that it was appropriate to send a 19 year old man to gaol in the absence of any significant criminal history, particularly for offences of this kind. In the circumstances, I conclude that the sentencing discretion has miscarried. I would give leave to appeal and set aside the sentence. I would propose that subject to the applicant's consent being obtained, he be admitted to probation for a period of 12 months in respect of each offence, subject to the usual conditions. With respect to the wilful damage count there should be a further condition that he pay compensation within six months of the date of conviction, 9 September 1996, in the amount of $570, -- 4 of 5 -- 141196 T4/JJD1 M/T COA284/96 5 JUDGMENT such amount to be paid, if it has not already been paid, to the Clerk of the Court at Petrie. DOWSETT J: Has the disposition of that already been provided for in the Magistrate's Order? MR LEWIS: Your Honour, I'll just - Your Honour, all it says is that it be paid to the Clerk of the Court - the Magistrate's Court. DOWSETT J: Yes, all right. Well we'll leave it at that perhaps. DAVIES JA: I agree. WHITE J: I agree also and would just add that it is my understanding that the applicant had already spent seven days in custody before being released on bail in respect of this matter and that also is a factor that should be taken into account when considering the punishment that has been imposed. I would agree with the orders proposed by Mr Justice Dowsett. DAVIES JA: I assume that you have instructions from your client to----- MR LEWIS: Your Honour, my client is in fact in Court and he does consent to a probation order. I have received those instructions. The other matter, Your Honours, is whether or not a conviction should remain recorded in relation to these matters. My submission would be with the probation order perhaps he should be given his chance where it would not remain. DAVIES JA: Yes, well we will also order that no conviction be recorded. Those will be the orders of the Court. ----- -- 5 of 5 --