Lingwood v Turner

[1997] QCA 69

[1997] QCA 069

COURT OF APPEAL
DAVIES JA
McPHERSON JA

WHITE J

CA No 572 of 1996
M S LINGWOOD
v.

JACOB PAUL TURNER Applicant

BRISBANE
..DATE 20/03/97
200397 T15-16/RB28 M/T COA45/97
DAVIES JA: The applicant in this matter is 18 years of age and
has no previous convictions. He pleaded guilty in the
Magistrates Court at Cairns on 25 November last on one count of
wilfully and unlawfully damaging a perspex screen the property
of Cairns City Council in the night-time.

He was sentenced to 120 hours community service and ordered to pay $4,585 by way of compensation via monthly instalments of $150 over a period of two years and, in default, imprisonment for six months. We were informed today that he has paid $450 of that sum and that he has also performed his community service. He seeks leave to appeal against the compensation order forming part of that sentence.

The sum of $4,585 was not just the cost of the perspex screen. That sum included as well as the repair of the perspex screen, repair of damage to the door of a disabled toilet, a toilet seat, partitioning in a female toilet, some tiling, identification signage and the cost of some painting. It also included the cost of cleaning and making safe the toilet block.

There were other persons present at the toilet block on the night that this offence was committed - at least four other male persons. It is not clear which of them, if any, caused what part of the damage other than that which the applicant admitted by his plea of guilty that he had caused.

It was submitted by the respondent that as co-offenders bear joint and several liability for their conduct and because the applicant did not identify any of the other persons who may have 200397 T15-16/RB28 M/T COA45/97

been involved, the Magistrate was entitled to make a compensation order against the application in respect of the whole of the damage caused.

However, there does not appear to be any evidence that those who may have caused the other damage were co-offenders of the applicant or that the applicant even knew who they were. There was, therefore, no basis, in my view, for a compensation order being made against the applicant in respect of damage other than that which he admitted causing by his plea of guilty.

Although the Magistrate could have ordered the applicant to pay compensation in respect of the damage to the perspex screen, which on the material before us appears to have been probably no more than about $300 and such an order would have been appropriate, it follows from what I have said that he did not do that.

The applicant also spent eight days in custody awaiting sentence. The Magistrate said he found it amazing that, "Some concern was expressed about you" - that is the applicant, "being in custody". I must say that I do not find it amazing at all. On the contrary, I think it was most undesirable that a youth of 18 years of age with no previous convictions charged with an offence of this kind should have been required to spend eight days in custody in the circumstances in which he did. And I think it most unfortunate that he was allowed to do so.

Moreover the fact that he did spend that period in custody must, in my view, be taken into account in considering the appropriate 200397 T15-16/RB28 M/T COA45/97

penalty for the offence for which he was convicted. It was, it follows from what I have said, plainly wrong for the Magistrate to impose the compensation order which he did, but as it would have been appropriate, in my view, to impose a compensation order for an amount in the vicinity of $300 or perhaps a little more than that and as the applicant has already paid $450, I would grant the application and allow the appeal only to the extent of setting aside the order that the applicant pay $4,585 by monthly instalments of $150 over a period of two years in default imprisonment for six months, and substitute for that an order that he pay the sum of $450 by way of compensation.

McPHERSON JA: I agree with the order proposed by Mr Justice Davies and with his reasons other than that I would prefer to reserve for some future occasion a consideration of the relevance or otherwise of the period spent in custody by the applicant.

WHITE J: I agree with the orders proposed.

DAVIES JA: The orders are as I have indicated.

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