Finch v. Bailey - [2008] QDC 286

[2008] QDC 286

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 928 of 2008

JENNA RHIANNON FINCH	Appellant
and
RENEE CLARE BAILEY	Respondent

BRISBANE

..DATE 13/10/2008

ORDER

CATCHWORDS: Justices Act 1886 s 222 - Penalties and Sentences Act 1992 (PSA) s 35 - Criminal Offence Victims Act 1995 (COVA) - offender's appeal against that part of sentence requiring her to pay $14,179 compensation for damage to teeth occasioned in the relevant assault - although order made under PSA,
Magistrate was encouraged to apply COVA schedule amounts and in addition make awards for pain and suffering and actual dental expenses paid - gross overstatement of entitlements under COVA schedule - appeal allowed and compensation amount reduced to $5,000

HIS HONOUR: This is an appeal restricted to the compensation component of a Magistrate's sentence imposed on the 17th of March this year at Southport in respect of an offence of assault occasioning bodily harm. That occurred after a trial. The outcome was unfavourable for the appellant. She was sentenced to perform 200 hours community service with no conviction recorded, and also ordered to pay restitution of $14,179, which must have been under section 35 of the Penalties and Sentences Act.

Both the appellant and the complainant were young women out late at night, presumably drinking. In the course of an altercation in which the appellant's assertions of being provoked were unavailing, she punched the complainant, knocking one of her front teeth out. Is that right, was the front tooth knocked out?

MS OVERELL: One tooth was completely dislodged.
HIS HONOUR: Yes, but which was which?
MS OVERELL: The front one was completely knocked out.
HIS HONOUR: Yes, that's what I thought.
Knocking the front tooth out and pushing out of place the tooth beside it. An up to date treatment summary from the relevant dental practitioner suggests that he's determined it may be appropriate to keep a watch on the second "front tooth" but nothing concerning has been detected there yet. Significant treatment has occurred of the two teeth first referred to, and there's been some further treatment and cost incurred as the up to date material suggests. I think I have already indicated that this appeal relates only to the compensation component. Ms Overell, in her submissions for the respondent, has referred the Court to authorities indicating that the award is not out of line with some that may be found in civil cases such as Gray v State of Queensland [2000] QSC 465; and Dinsdale v Morse [2003] QDC 338.

The complainant is seriously disadvantaged in seeking some financial redress for the wrong the Magistrate found was done to her, by the matter having been dealt with summarily rather than on indictment. If there had been a conviction on indictment, the Criminal Offence Victims Act 1995 (COVA) would have applied, and the complainant could have expected to look to the resources of the State to have the compensation order under the Act satisfied.

There would appear to be…

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.

Continue reading Finch v. Bailey

Details

AGLC: Finch v Bailey [2008] QDC 286
Case: [2008] QDC 286
Decision Date: 13 October 2008

CaseChat Overview and Summary

In this case, the District Court was asked to review a decision made by a Magistrate in Southport. The appellant, Jenna Rhiannon Finch, was convicted of an assault occasioning bodily harm and sentenced to perform 200 hours of community service with no conviction recorded. Additionally, she was ordered to pay $14,179 in compensation for the damage caused to the complainant's teeth. The appeal was limited to the compensation component of the sentence. The legal issue the court had to decide was whether the compensation amount was appropriate and reasonable, considering the circumstances of the case and the relevant legislation.

The court found that the Magistrate had misapplied the relevant legislation, particularly the Criminal Offence Victims Act 1995, when determining the compensation amount. The court considered that the compensation awarded under section 35 of the Penalties and Sentences Act 1992 was excessive, as it was significantly higher than what could be awarded under the Criminal Offence Victims Act 1995. The court also took into account the financial circumstances of both the appellant and the complainant, which were modest, and the fact that the appellant was employed casually as a waitress. The court decided that the compensation amount should be reduced to $5,000, which was considered to be reasonable and appropriate.

In conclusion, the court allowed the appeal and reduced the compensation amount to $5,000, with the appellant having 12 months to pay the amount. In default of payment, the court would refer the matter to the State Penal Enforcement Registry. The court also noted that the amount of compensation awarded was likely to be more than what could be awarded under the Criminal Offence Victims Act 1995, but it was not considered inappropriate in the larger scheme of things for the purposes of section 35 of the Penalties and Sentences Act 1992.

Orders