Cusick v Queensland Police Service - [2023] QDC 173

DISTRICT COURT OF QUEENSLAND

CITATION:

Cusick v Queensland Police Service [2023] QDC 173

PARTIES:

JONATHAN THOMAS CUSICK

(Appellant)

V

COMMISSIONER OF THE QUEENSLAND POLICE SERVICE

(Respondent)

FILE NO/S:

2188/23

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

29 September 2023

DELIVERED AT:

Kingaroy

HEARING DATE:

15 September 2023

JUDGE:

Heaton KC DCJ

ORDER:

APPEAL DISMISSED

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the Appellant was sentenced in the Magistrates Court to 14 months’ imprisonment with parole release after he had served four months after pleading guilty to the offence of assault occasioning bodily harm in company – where the Appellant submitted that the learned magistrate erred by requiring him to serve time in actual custody – whether the sentence imposed was manifestly excessive – whether the magistrate did not have due regard to mitigating circumstances – whether the learned sentencing magistrate erred by failing to give any or sufficient consideration to section 9(3) of the Penalties and Sentences Act 1992 (Qld) – whether the learned sentencing magistrate erred by refusing the offer of restitution, and not placing any weight on the offer of restitution.

COUNSEL:

J Kennedy for the Appellant.

A Pinkerton for the Respondent.

SOLICITORS:

Beavon Lawyers for the Appellant.

Commissioner of the Queensland Police Service for the Respondent.

Introduction

This is an appeal by the appellant against the sentence imposed upon him in the Brisbane Magistrates Court on 14 July 2023 whereby he was sentenced to 14 months’ imprisonment with parole release after he had served four months, that is, on 14 November 2023.
The appellant entered a plea of guilty to the offence of assault occasioning bodily harm in company on 6 June 2023.
The appeal is pursuant to s 222 of the Justices Act 1986 (Qld) (“JA”). Relevantly, s 222(2)(c) provides that where a defendant pleads guilty, they may appeal on the sole ground that the sentence is excessive. An appeal pursuant to s 222 is by way of rehearing on the evidence given in the proceedings before the magistrate (s 223(1)), and, in this case, upon the evidence relating to the sentencing of the appellant’s co-offender, Benjamin Carlin, which was the subject of a grant of leave to adduce fresh evidence given during the hearing of this appeal.[1]
[1]s.223(3) JA
Relevant Principles
In Teelow v Commissioner of Police,[2] it was said that:
“It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error… On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QDC 173
Decision Date: 29 September 2023

CaseChat Overview and Summary

Cusick v Queensland Police Service involved an appeal by the appellant against his sentence of 14 months imprisonment with parole release after serving four months, imposed by the Magistrates Court for the offence of assault occasioning bodily harm in company. The appellant argued that the sentence was manifestly excessive, and the magistrate had not given sufficient consideration to mitigating factors such as the offer of restitution and his prior non-violent offending history. The Court of Appeal examined whether the sentence imposed was excessive, whether the magistrate failed to consider mitigating factors adequately, and whether the magistrate erred in not considering the offer of restitution.

The Court of Appeal found that the sentence imposed was appropriate given the seriousness of the offence, which involved a violent assault on an innocent bystander leading to significant physical and mental health consequences. The Court held that the magistrate had properly considered the mitigating factors, including the appellant’s offer of restitution, but was primarily focused on the need for general deterrence and denunciation in public violence cases. The Court further noted that questions of weight in sentencing are inherently part of the judicial discretion, and a reviewing court should not substitute its judgment for that of the sentencing magistrate unless there is a demonstrated error. Consequently, the Court found no error in the magistrate’s exercise of discretion and dismissed the appeal.

The Court upheld the sentence of 14 months imprisonment with parole release after four months, affirming that the sentence was a stern but appropriate response to the appellant’s conduct. The appeal was dismissed, and the original sentence was confirmed.

Orders

Orders of the court

APPEAL DISMISSED

Background

Background to the litigation

The contention of the appellant is in essence that the many matters in mitigation ought to have resulted in a penalty which did not involve any period of actual incarceration. Whilst all of the matters personal to the appellant are promoted in support of this appeal, principal among those matters is the offer of compensation which, it is submitted, was not given any (or sufficient) weight in the exercise of the sentencing discretion.Facts The complainant, a 56 year old man, left his work at a night club in Fortitude Valley in the Safe Night Precinct in the early hours of the morning of Friday 2 December 2022. He saw a young woman running and calling for help and being pursued by the appellant. The complainant attempted to intervene to assist her. He was then immediately set upon by the appellant and his companion and co-offender, Benjamin Carlin. The appellant immediately began punching the complainant in the chest area using both hands with clenched fists. The complainant attempted to resist the punches, but the appellant continued his attack upon the complainant. Mr Carlin then punched the complainant to the head, from behind, and knocked him to the ground rendering him unconscious. Both the appellant and Mr Carlin then continued to punch and kick the complainant whilst he was unconscious on the ground. Other people came upon the scene and intervened to attempt to stop the assailants’ attack upon the unconscious man on the ground. Police were contacted and the two assailants then fled. They were pursued and apprehended. The complainant was taken by ambulance to hospital and released later that same morning. As a result of the attack, he suffered bleeding on the brain, soft tissue damage to his right knee and bruises to various parts of his body causing pain. He required crutches and a walking stick to assist him with walking and he reported continuing symptoms of pain, dizziness, headaches and blurred vision for a period of six to eight weeks following the event. A Victim Impact Statement tendered in the court below evidenced continuing issues with memory and an impaired capacity to concentrate and perform simple tasks. The complainant suffered a significant impact upon his mental health beyond the physical injuries he suffered as a result of the attack.Antecedents The appellant was 23 years of age at the time of the offending and 24 at sentence. He has some history of prior offending. Of most relevance, on 4 February 2021, he was sentenced to a period of 15 months’ probation for offences of burglary and serious assault (being an assault upon a 71 year old victim). The question of parity Material relevant to the sentencing of Mr Carlin was not brought to the attention of the sentencing magistrate in the hearing relating to the appellant. Consequently, during the hearing of this appeal, leave was granted to the appellant to adduce fresh evidence in the form of the criminal history of Benjamin Connor Carlin, the transcript of the sentencing hearing before Magistrate Gilbert and the sentencing remarks of Magistrate Gilbert in sentencing Mr Carlin. The application was not opposed by the respondent.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In all of the circumstances of this case, a need for personal deterrence remained, as did the need for general deterrence and denunciation. Public violence, leading to significant consequences to innocent members of the community, requires a strong sentencing response to deter likeminded individuals. A sentence involving actual imprisonment is a powerful means of providing that deterrence and the requisite denunciation for such criminal conduct. Conclusion As noted above, the contention of the appellant in this appeal is that the matters in mitigation were given insufficient weight, and the matters of aggravation were given too much weight. That contention must be rejected. In R v Chmieluk; ex parte Attorney-General (Qld),[12] in relation to the submission that mitigating factors were given too much weight, the Court said:“Questions of weight are at the heart of the exercise of judicial discretion. A court reviewing an exercise of discretion will be slow to conclude that the decision maker has failed to give proper weight to a particular matter and a mere preference for a different result will not suffice.[13] [12] Citation.[13]Citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42 per Mason J. Whilst the matters in mitigation were properly considered by the learned magistrate, it is unsurprising that in delivering his sentencing remarks, they were overwhelmed by a focus on the serious features of the offending in his articulation of the factors informing the appropriate exercise of the sentencing discretion. I am unable to conclude that the sentencing discretion miscarried in this case. In my view, the sentence of 14 months imprisonment with parole release after serving 4 months was an appropriately stern sentencing response to the particular offending involved. Whilst having proper regard to the role of comparable sentences in the sound exercise of a sentencing discretion,[14] the cases to which I was referred, R v Lude; R v Love,[15] R v Ball[16] and Dowden v Commissioner of Police[17] support the level of penalty imposed here. [14] Barbaro v The Queen [2014] 253 CLR 58 at [34]; R v Goodwin, Ex Parte Attorney-General (Qld) [2014] QCA 345.[15] [2007] QCA 319.[16] [2012] QCA 51.[17] [2023] QDC 111. In my review of the whole of the evidence now before me in this appeal, I am unable to conclude that the sentence imposed in the Magistrates Court on 14 July 2023 by the learned magistrate is the result of some legal, factual or discretionary error. For the reasons articulated above, the offending was sufficiently serious as to justify a sentence which involved some period of actual custody. Despite the matters personal to the appellant and in mitigation of penalty, I am unable to conclude that requiring the appellant to serve four months in actual custody was outside the limits of the sound exercise of the sentencing discretion. No errors are demonstrated, and the sentence is not manifestly excessive. The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cusick v Queensland Police Service [2023] QDC 173
PARTIES:	JONATHAN THOMAS CUSICK (Appellant) V COMMISSIONER OF THE QUEENSLAND POLICE SERVICE (Respondent)
FILE NO/S:	2188/23
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	29 September 2023
DELIVERED AT:	Kingaroy
HEARING DATE:	15 September 2023
JUDGE:	Heaton KC DCJ
ORDER:	APPEAL DISMISSED
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the Appellant was sentenced in the Magistrates Court to 14 months’ imprisonment with parole release after he had served four months after pleading guilty to the offence of assault occasioning bodily harm in company – where the Appellant submitted that the learned magistrate erred by requiring him to serve time in actual custody – whether the sentence imposed was manifestly excessive – whether the magistrate did not have due regard to mitigating circumstances – whether the learned sentencing magistrate erred by failing to give any or sufficient consideration to section 9(3) of the Penalties and Sentences Act 1992 (Qld) – whether the learned sentencing magistrate erred by refusing the offer of restitution, and not placing any weight on the offer of restitution.
COUNSEL:	J Kennedy for the Appellant. A Pinkerton for the Respondent.
SOLICITORS:	Beavon Lawyers for the Appellant. Commissioner of the Queensland Police Service for the Respondent.