Dempsey v Osborne

[1992] QCA 23

IN THE COURT OF APPEAL [1992] QCA 023

SUPREME COURT OF QUEENSLAND

C.A. No. 275 of 1991

BETWEEN:

PAUL MICHAEL DEMPSEY

AND:

MICHAEL JAMES OSBORNE

JUDGMENT OF THE COURT

Delivered the Sixteenth day of March 1992

In this case, a notice of appeal has been filed against a conviction and sentence, but the case was argued as an application for leave to appeal against sentence. The "sentence" sought to be challenged was an order that the applicant pay what was described in the order as "restitution".

It appears to us that there is a question whether the application is competent, but as that point was not argued, we do not propose to deal with it.
The only question raised by the applicant was as to the amount of the order made. It has occurred to us that other legal questions might have been raised; these reasons deal only

with the point which was put in issue. At the conclusion of the argument, the Court dismissed the application and these are the reasons for that order.

Although the solicitor who appeared for the applicant, Mr. McGhie, said that the order complained of was made under s.685A of the Criminal Code, it is plain that it was not. The magistrate made a probation order under s.199 of the Corrective Services Act 1988, which reads in part as follows:

"(1) A probation order -

(a) ...

(b) may contain requirements -

(i)in a case where the probation order is made in respect of an offence in relation to property or against the person of another, that the probationer -

(A)make restitution of the property in relation to which the offence was committed or pay compensation for injury to or loss or destruction of that property;

(B)pay reasonable

compensation for injury occasioned to any

person by the

commission of the
offence".

The relevant part of the order required the applicant to pay "restitution" but as it appears to us, the word "compensation" would have been more appropriate; no point was taken about that. The order required the applicant to "pay to the Probation Office on behalf of Brian Joseph Larter in the sum of $202 and AAMI in the sum of $7,520 within 18 months". "AAMI" is an insurance company referred to in the evidence.

The applicant was charged before the magistrate with unlawfully using Larter's motor vehicle; the charge concluded with the allegation that the applicant "wilfully damaged the equipment attached to the said motor vehicle and further at the time and place aforesaid the (applicant) wilfully removed the equipment namely the stereo and the graphic equaliser attached to the said motor vehicle".

The applicant pleaded guilty to the charge and the only contested issue was the question of compensation.

The evidence showed that Larter was, on 26 October 1990, the owner of a Holden motor vehicle then in good condition. He parked it in a parking area at the Deagon railway station about 8.30 am that day and locked it securely. When he returned on the train from work about 6.15 pm, the car was gone.

It is not in dispute that the applicant took it and drove it
about and left it in a street called Aberdeen Parade, Boondall.
The vehicle was located in that street or just off it.
Aberdeen Parade is bitumen for a certain distance and

degenerates out into a dirt track. The vehicle was found in the

dirt track portion and, to put it simply, appeared to have been

driven through a barbed wire fence into a paddock abutting on

the track. It was towed to the police station.

Mr. McGhie took the point that although the applicant admitted that he left the vehicle in Aberdeen Parade, he did not admit that he left it at the spot at which it was found. This appears to us to have no substance. There is nothing in the evidence to suggest that it was moved after the applicant abandoned it. The marks from the "burnout" process, referred to below, could be seen in the vicinity of the place where the

vehicle was found. Mr. McGhie also contended that it had not been proved against the applicant that he did all the damage to

the vehicle which it was found to have sustained.

At the original hearing, this contention seemed to have been based upon the suggestion, pursued at some length,

that perhaps the vehicle had sustained substantial damage while being towed from Aberdeen Parade back to the police yard. But

evidence was called to refute that, and before us the question raised appeared to be whether it had been proved against the applicant that a person other than the applicant did not damage the vehicle after the applicant abandoned it.

The question raised is essentially a factual one, but it must be approached keeping in mind that the section under

which the order was made does not say or necessarily imply that the offender must be proved to have personally caused all the damage. Mr. McGhie argued, as we understood the contention,

that it was not reasonably foreseeable that if one extracted a vehicle from a railway car park, damaged it and left it in a remote spot, it might incur further damage before the owner recovered it. We think that was quite foreseeable, but are by no means convinced that that problem arises. The applicant admitted that he removed equipment installed within the vehicle, a process which apparently involved damaging its interior. He admitted that he damaged the tyres by a process called "burnout" and the signs of his having done so were plainly to be discerned when the vehicle was recovered: one tyre was off and the other had metal showing through the threads. But there was a great

deal of other damage apart from that admittedly caused by the

applicant; for example, the suspension of the car was in a condition consistent with the car's having been driven hard through a ditch or over a stump.

It appears to us that when the facts are analysed, Mr. McGhie's contention is seen to have no substance. One starts from the facts that the applicant took the vehicle, damaged it

and abandoned it; it was found in a damaged condition in the place at which he abandoned it. The applicant gave no evidence.

There was a strong case that the condition of the vehicle as

found at the place where it was abandoned by the applicant was

due to his criminal activities and no evidence was given to

suggest that any other person caused the vehicle damage. The magistrate made his order on the basis that the applicant was responsible for all the damage and we see no reason to disagree with that conclusion.

There was no dispute as to the propriety of the sum claimed, nor the titles of the respective claimants.

It was for the reasons we have given that the application was, as we have said, dismissed.

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 275 of 1991
Before the Court of Appeal
The President
Mr. Justice Pincus

Mr. Justice Thomas

BETWEEN:

PAUL MICHAEL DEMPSEY

AND:

MICHAEL JAMES OSBORNE

JUDGMENT OF THE COURT

Delivered the Sixteenth day of March 1992

MINUTES:  The application for leave to appeal against

sentence is dismissed.

CATCHWORDS: CRIMINAL LAW - COMPENSATION - Applicant ordered to pay "restitution" in respect of a motor vehicle which he unlawfully used - whether necessary to show applicant personally caused all the damage - whether magistrate correctly concluded applicant responsible for damage.

CORRECTIVE SERVICES ACT 1988 s.199

Counsel:	Mr. B. Butler for the Crown.
Solicitors:	Director of Prosecutions for the Crown. Richardson McGhie & Associates for the Appellant.
Hearing Date(s):	27 February 1992

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 275 of 1991

BETWEEN:

PAUL MICHAEL DEMPSEY

AND:

MICHAEL JAMES OSBORNE

_______________________________________________
THE PRESIDENT
PINCUS J.A.
THOMAS J.

_______________________________________________

Judgment delivered on the sixteenth day of March 1992.

Reasons for judgment of the Court.

_______________________________________________

The application for leave to appeal against sentence

is dismissed.

_______________________________________________