Quirk v Steginga

[2010] QDC 304

DISTRICT COURT OF QUEENSLAND

CITATION:

Quirk v Steginga [2010] QDC 304

PARTIES:

NATASHA LEE QUIRK

(Appellant)

V

SENIOR CONSTABLE J STEGINGA

(Respondent)

FILE NO/S:

BD429/2010

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Wynnum Magistrates Court

DELIVERED ON:

28 July 2010 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

28 July 2010

JUDGE:

Irwin DCJ

ORDER:

1.   Appeal allowed.

2.   The sentence imposed by the Wynnum Magistrates Court on 13 January 2010 for the charge of common assault is set aside.

3.   The order of the Wynnum Magistrates Court on 13 January 2010 revoking the probation order made on 4 January 2010 for the charge of stealing and resentencing for that charge is set aside.

4.   On the charge of common assault:

(a) The appellant, subject to her consent, will be released under the supervision of an authorised corrective services officer for a period of 12 months from this date under section 92(1)(a) of the Penalties and Sentences Act 1992 (Qld);

(b)   A conviction be recorded;

(c)    The appellant is to pay compensation in the sum of $500 to the complainant. The proper officer of the court is, under section 34 of the State Penalties Enforcement Act 1994 (Qld), to give particulars of the amount of compensation to SPER for registration under that section.

5.   On the charge of stealing:

(a)    The probation order made on 4 January 2010 is revoked;

(b) The appellant, subject to her consent, will be released under the supervision of an authorised corrective services officer for a period of 12 months from this date under section 92(1)(a) of the Penalties and Sentences Act 1992 (Qld);

(c)    A conviction be recorded.

6.   No order as to costs.

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty on 13 January 2010 to one count of common assault committed on 15 November 2009 in a railway carriage in the presence of an elderly woman – where the complainant suffered unspecified injuries as a result of the assault – where the appellant was sentenced to 3 months imprisonment at the end of which she was released on 12 months probation – where the appellant was also ordered to pay $500 compensation to the complainant within 6 months, in default 10 days imprisonment – where the appellant pleaded guilty on the same date for an offence of breach of bail committed on 12 January 2010 and was convicted and not further punished – where the appellant was dealt with on the same date for breach of a probation order on which she had been released on 4 January 2010 for an offence of stealing – where the magistrate revoked the probation order but it was otherwise not clear from his sentencing remarks and the court records whether the appellant had been resentenced for the offence of stealing, and if so, as to how she had been resentenced – where the appeal proceeded on the basis that the appellant had been resentenced for the stealing offence to the same penalty as for the common assault offence – where the respondent submitted that the sentence imposed for the common assault offence needed to deter the appellant and others from committing violence on public transport – where the appellant had served 24 days of the sentence for common assault offence in custody before being released on bail pending the hearing of her appeal – where she was 18 years at the term of offending and 19 years at the time of sentence – where the prior criminal history consisted of offences committed between 9 February 2009 and 22 October 2009 for which she had been sentenced to non custodial sentences by Magistrates Courts between 27 April 2009 and 4 January 2010 – where her previous convictions were 3 counts of assault or obstruct police, 2 counts each of contravening a direction and stealing, and 1 count each of wilful damage, unauthorised dealing with shop goods, public nuisance and obstructing police – where she had been living on the streets or through the generosity of friends since she was 16 years – where in addition to her early plea of guilty she had cooperated with the administration of justice – whether there was an error in the exercise of the sentencing discretion in relation to the common assault offence and in resentencing her for the stealing offence

Justices Act 1886 (Qld), s 222, s 222(2)(c)

Justices Regulation 2004 (Qld), s 14(4)

Penalties and Sentences Act 1992 (Qld), s 9(3), s 9(4), s 35(1)(c), s 35(2), s 36(2), s 92(1)(a), s 92(1)(b), s 96, s 152

State Penalties Enforcement Act (Qld), s 34(1)(c)

House v The King (1936) 55 CLR 499, applied

R v Briese (1997) 92 A Crim R 75, cited

R v Lawley [2007] QCA 243, cited

R v Lovell [1999] 2 Qd R, applied

R v Marsden [2003] QCA 473, cited

R v Melano, ex parte Attorney-General [1995] 2 Qd R 186, applied

R v Taputoro [2007] QCA 29, distinguished

R v Taylor, ex parte Attorney-General [1999] 106 A Crim R 578, applied

Sobieralski v Commissioner of Police [2009] QCA 90, applied

COUNSEL:

S. B. Ganasan (Solicitor advocate) for the appellant

D. Kovac for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions (Qld) for the respondent

HIS HONOUR: This appeal pursuant to section 222(1) of the
Justices Act 1886 (Qld) commenced as an appeal against a
sentence imposed by a Magistrate at Wynnum on 13 January 2010
on one count of common assault to which the appellant pleaded
guilty.  The appellant was convicted and sentenced to three
months' imprisonment and it was directed that after serving
three months she be discharged under 12 months' probation.  It
was also ordered she pay $500 compensation to the complainant
within six months, in default 10 days' imprisonment.  The
maximum penalty for common assault was three years'
imprisonment.

The prison/probation order was made under section 92(1)(b) of
the Penalties and Sentences Act 1992 (Qld). The compensation
order was made under section 35(1)(c) of that Act. By virtue
of the sentence of imprisonment it follows that a conviction
must have been recorded under section 152 of that Act.
Although the Magistrate did not expressly state that, it can
be taken to be included in his statement that the appellant
was "convicted and sentenced".

In accordance with section 222(2)(c) of the Justices Act, the
appeal is on the basis that the sentence is manifestly
excessive in respect of both the sentence of actual
imprisonment and the compensation order.  Today, by virtue of
an amended notice of appeal which has not been objected to by
the respondent, the appeal has now extended to an offence of
stealing for which she was dealt with by the Magistrate on the
same date as a result of a breach of on probation order on

which she had previously been released in respect of that
offence.

The maximum penalty in the Magistrates Court for the offence
of stealing was also three years' imprisonment.

The common assault occurred on 5 November 2009.  On 4 January
2010 the same Magistrate had admitted her to 12 months'
probation for a stealing offence.  While the common assault
was not committed in breach of that probation order an offence
of breach of a bail condition was.  The breach of bail
condition was committed on 12 January 2010.  The appellant
pleaded guilty to it and was sentenced by the Magistrate
concerning it at the same time as she was sentenced for the
common assault.  The bail undertaking was entered into on
4 January 2010, the same date she had been placed on probation
for the stealing.  It was entered into for the common assault.
It included a condition that:  "The defendant shall not attend
any railway station or use any trains."

According to the charge and the facts placed before the
Magistrate this was the condition she breached.

The Magistrate originally sentenced her to one month's
imprisonment for the offence of breach of a bail condition to
be served concurrently with the common assault sentence
however he amended this to convicting and not further
punishing her.  In doing so he said he took that into account

in imposing the sentence of three months' imprisonment for the
common assault.

Because this offence involved a breach of the 4th of January
2010 probation order for the stealing charge, the Magistrate
said:

"In relation to the probation order that was imposed on the
4th of January 2010 I am going to revoke that and resentence
you.  So, I am going to bring everything together.  We are
dealing with the whole lot now.  I am going to sentence you
today."

He then proceeded to sentence her to the prison/probation
order for the common assault.  He then stated that she had
tried to do the right thing by having reported to the
probation office in respect to the probation order.  He then
added:

"But we are dealing with the fact that you have breached your
bail and the fact that you've assaulted that woman on the
train track.  So we are putting it all together now.

So after you're release from prison, after the three months,
you are going to have to report to your probation officer.
You are not to commit any offences during the currency of the
order.  You must report and receive visits from the officer.
You must attend programs and courses as and when directed."

On one interpretation of that, the Magistrate was intending to
resentence her for the stealing offence for which he had
revoked the probation order by sentencing her to a concurrent
prison/probation order in the same terms as that imposed on
the common assault.  However, it is unclear from the record
that he actually did so.  This was the view taken by both
legal representatives in their original outline of
submissions.

The appellant's outline of submissions states that the record
does not indicate that any formal sentence was imposed on the
original offence of stealing.  The respondent's outline states
that she was not otherwise re-sentenced for this offence.
However, their position has changed when the appeal was argued
before me today in recognition of the fact that their original
interpretation of the Magistrate's order does not necessarily
follow from the notation on the bench charge sheet for the
common assault or the terms of the probation order.

The bench charge sheet contains a notation which suggests that
she was re-sentenced to 12 months' probation.  Notations on a
bench charge sheet must be regarded as the record of the
Magistrate's decision pursuant to section 14(4) of the
Justices Regulation 2004 (Qld). By virtue of that section
the bench charge sheet is the formal record of the Court's
sentencing decision.  Normally it can be expected to have been
made by the Magistrate at the time he announced his decision
and to state what is the intention of the words by which he

announced that decision.  However, that presumption does not
necessarily follow in this case because the bench charge sheet
contains some amendments in a different coloured ink, adding
the reference to 12 months' probation.  There is a possibility
the Magistrate did not state expressly what was in his mind
when he said he was going to revoke the probation order and
resentence her and the bench charge sheet has been
subsequently amended to rectify this.  However, even if this
is the case, the bench charge sheet only states the appellant
has been sentenced to 12 months' probation.

To further confuse matters the probation order issued under
the hand the proper officer of the Court not only states a
conviction has been recorded but is prepared in such a way as
to suggest that the appellant has been sentenced to
imprisonment for both the common assault and the stealing and
at the end of the term has been released for the remainder of
that period on probation in relation to both offences.

This combination of circumstances makes the overall sentencing
order made by the Court on 13 January 2010 unclear and results
in an unsatisfactory situation.  It will be difficult for the
probation authorities to know what offences the appellant is
actually on probation for and will complicate matters for any
Court having to deal with any future breach of probation
proceedings.  I note in this respect that the appellant's
criminal history, which was tendered before me as Exhibit 1
today, records her as being re-sentenced to 12 months'

probation for the original offence of stealing.  However, both
parties, correctly in my view, have agreed that this appeal
should proceed on the basis that the Magistrate imposed the
same penalty for the common assault and the stealing.  That
is, she was sentenced under section 92(1)(b) of the Penalties
and Sentences Act to three months' imprisonment and then
released on 12 months' probation.

Applicable principles

As I have stated the appeal has brought under section
220(2)(c) of the Justices Act which limits it to manifest
excessiveness or inadequacy of sentence.  As this involves an
appeal from the exercise of a sentencing discretion in
accordance with House v King [1936] 55 CLR 499 per Dixon,
Evatt and McTiernan JJ at 504 before an appellate Court will
interfere the appellant must demonstrate the sentencing Court
acted upon a wrong principle, allowed extraneous or irrelevant
material to guide or affect it, mistook the facts, or did not
take into account some material consideration.  In such
circumstances the Court may exercise its own discretion in
substitution for the sentencing Court if it has the materials
for doing so.

It is also relevant that in House their Honours says:

"It may not appear how the primary Judge has reached the
result embodied in his order but, if upon the facts it is

unreasonable or plainly unjust, the appellate Court may infer
that in some way there has been a failure properly to exercise
the discretion which the law reposes in the Court of first
instance."

Therefore, the error of the sentencing Court may be
demonstrated by the manifest excessiveness of the sentence
imposed.  I refer in this regard to R v Melano; ex parte
Attorney-General [1995] 2 QdR 186 at 189. Accordingly, it is
relevant to consider whether the sentence appealed is outside
the sound exercise of the sentencing Court's discretion.
I also am mindful, as submitted on the respondent's behalf,
that in House, Starke J said at 503:

"The sentence imposed upon an accused person for an offence is
a matter peculiarly within the province of the Judge who hears
the charge:  he has a discretion to exercise which is very
wide but it must be exercised judicially according to rules of
reason and justice and not arbitrarily or capriciously or
according to private opinion."

Further, I am cognisant, as the respondent submits, that in
R v Lawley [2007] QCA 243 Keane JA stated at 18:

"It is not a sufficient basis for this Court to intervene,
that this Court might have struck a different balance between
the competing considerations which had to be weighed in the
exercise of the discretion."

G N Williams JA and Mullins J agreed with this judgment.

Proceedings before the Magistrate

The appellant was at the time of this offending 18 years of
age.  As it was put by counsel for the respondent in terms of
the Prosecutor's submissions to the Magistrate, she had a
criminal history full of antisocial behaviour throughout 2009.
That is stated in the written outline of submissions.
Although the criminal history was not provided to this Court
with the Magistrates Court file, it is set out in detail in
the outline of submissions for the appellant and is accepted
by the respondent.  It was also summarised by the Magistrate
in his sentencing remarks.  The appellant's outline has now
been supplemented by the respondent tendering her criminal
history as Exhibit 1 and I rely on page 1 of that criminal
history which sets out her Court appearances prior to being
sentenced for the offences which are the subject of this
appeal.

As this criminal history shows each of her appearances was
before the Magistrates Court.  On all but two occasions, this
was the Wynnum Magistrates Court where she was sentenced for
the offences the subject of this appeal.  As I have observed,
it is apparent that the Magistrate had sentenced her on at
least one previous occasion and knew something about her
background.  The previous offences were committed between
9 February 2009 and 22 October 2009 and involved Court
appearances for sentence between 27 April 2009 and 4 January
2010.  The offences were three offences each of assault or
obstruct police, two offences of contravening a direction or
requirement, two offences of stealing and one offence each of
wilful damage, unauthorised dealing with shop goods and public
nuisance.

The previous history is as follows: On 27 April 2009 she was
dealt with at the Brisbane Magistrates Court on two offences
of assaulting or obstructing a police officer and one offence
each of contravening a direction or requirement and wilful
damage to property.  Each of these offences was alleged to
have been committed on the 19th of February 2009.  No
conviction was recorded and one penalty was imposed which was
a fine of $250, in default of payment within one month to be
imprisoned for three days.  She was dealt with on 26 June
$2009 at the Wynnum Magistrates Court on one count of stealing
for which no conviction was recorded and having entered into a
recognisance of $300 she was released on a good behaviour bond
for a period of six months.

The offences which were the subject of those Court appearances
were committed while she was 17 years of age.  The balance of
her offending was committed at the age of 18.  Her next
appearance was on 17 August 2009 at the Wynnum Magistrates
Court when she was dealt with for one offence of contravening
a direction or requirement.  Again, no conviction was
recorded.  She was fined $200 to be paid within two months, in
default two days' imprisonment.

On 21 August 2009 she appeared before the Brisbane Magistrates
Court for an offence of assaulting or obstructing a police
officer on 21 August 2009 and committing a public nuisance on
25 June 2009.  No conviction was recorded.  One penalty was
imposed of a $300 fine which was to be referred to the State
Penalties Enforcement Registry.

On 5 October 2009 she was dealt with before the Wynnum
Magistrates Court for one offence of unauthorised dealing of
shop goods committed on 7 September 2009.  On this occasion a
conviction was recorded.  She was fined $200 to be paid within
28 days, in default two days imprisonment.  She was also
ordered to pay $11.60 restitution.

It is to be noted that the common assault the subject of this
appeal was committed on 5 November 2009.  Then on 4 January
2010, as I have previously stated, she appeared before the
Wynnum Magistrates Court and without a conviction recorded was
placed on 12 months' probation for an offence of stealing
which was committed on 22 October 2009, approximately 14 days
before the common assault offence.  It is to be noted that
subsequent to being placed on a good behaviour bond on
26 June 2009 with the exception of the public nuisance
offence, each of the offences she subsequently was dealt with
for by the Courts were committed in breach of that order.

For completeness, I observe that on 12 January 2010 she
committed the breach of bail which was dealt with by the
Magistrate on the following day with the two offences which
are now the subject of this appeal.

The only offence for which circumstances were stated to the
Magistrate related to the stealing on 22 October 2009.  The
Magistrate with the acceptance of the Prosecutor, said she had
met a man who offered $100 to her to get a remote control car
for his son.  She went into a store and after two or three
attempts to distract an employee reached under the counter and
grabbed the car with which she ran down the street.

Ms Kovac did seek to place before me the facts of the assault
or obstruct police officer offences.  However, I expressed a
reservation in her doing this and in particular a reservation
about giving her leave to do so as required under the Justices
Act because this would have been by way of fresh evidence.
She ultimately did not persist in seeking to place that

information before me.

There is no suggestion that the appellant was remanded in
custody for the common assault or the breach of bail offence
except to the extent that in the presentence custody
certificate which has been admitted as Exhibit 2 in these
proceedings, it is stated that she was received into police
custody for the offence of common assault on 12 January 2010.
That would have coincided with her breach of bail which
related to that offence.  That was not expressly brought to
the attention of the Magistrate.  As a consequence he did not
declare one day's imprisonment as time already served under
the three month sentence for common assault.

The Prosecutor told the Magistrate that the appellant had
attended her first appointment with the probation service.
The appellant, who represented herself before the Magistrate,
entered a plea of guilty to each offence.  The Prosecutor
outlined the facts as follows:  in relation to the common
assault the complainant was a 20 year old female who knew the
appellant by her first name only.  The appellant approached
the complainant who was at the Wynnum train station waiting
for a train.  She asked the complainant the time and then left
the platform.  She returned with a group of friends shortly
before the train arrived and they entered the same carriage as
the complainant but sat at opposite ends.

The appellant appeared intoxicated and was talking out loud
when she turned her attention to the complainant and yelled
out, "What are you looking at dog?"  The complainant ignored
her.  The appellant then sat next to the complainant and
accused her of having some friends of hers thrown out of their
house (it seemed these friends used to live next-door to the
complainant).

The complainant refuted this which made the appellant agitated
and angry as she thought the complainant was lying.  The
complainant told the appellant that she was invading her
personal space and then moved to a different seat further down
the carriage.  The appellant followed her and then sat down in
front of her.  The complainant again said she was invading her
personal space and a verbal argument ensued.  This involved
the appellant saying that the complainant was, "Free to get
off the fucking train.", and the complainant replying that she
shouldn't have to move and the appellant should stop following
her.

The complainant moved again and sat next to an elderly person.
The appellant followed her but sat a couple of seats in front
of the complainant.  The appellant started yelling at the
complainant and threatening her by saying, "I am going to
fucking smash your head in if you don't let me finish," and,
"Why don't you get off at the next station or I will fucking
smash you."

The complainant asked the appellant to leave her alone.  The
train arrived at Birkdale train station.  The appellant turned
to her friends and asked them if this was where they were
getting off.  They replied in the affirmative.  The appellant
then turned to the complainant and said, "I will see you
later, dog," and started punching the complainant in the head.
After about five punches the complainant was able to kick her
off.  At that point the appellant was on top of the
complainant.

She came back at the complainant again and kept hitting her
despite the complainant's attempts to defend herself by
holding her hands every time the appellant lunged at her.  The
appellant eventually stopped and as she left the train she
said to the complainant, "I know where you live."

The Prosecutor said the complainant was extremely upset and
was injured as a result of the assault.  The Magistrate must
have accepted this as he ordered the payment of $500
compensation to her.  Although there is no evidence as to what
her injuries were and the appellant is not charged on the
basis they constituted bodily harm.

When the Magistrate asked the appellant whether she disagreed
with this Statement of Facts she responded that she went up to
the complainant and asked her why she got her mates kicked
out.  She said the complainant replied that she didn't do it.
She said that the complainant started being smart as she got
off the train.  She made reference to swearing and said, with
reference to the complainant:  "She just made me angry.  All I
asked her was a question."

She enlarged on this before the Magistrate by saying that the
complainant didn't listen to her and then adding:

"Asked her the question and then as soon as I got off the
train I did walk away.  As soon as I had gone to get off the
train then she yells out; 'Oh, stuff you, I don't care about
you anyway.'"

This is a different explanation for the circumstances
immediately preceding the blows to that which was advanced by
the prosecution.  In her account the appellant is saying that
she responded excessively to verbal provocation as opposed to
engaging in a gratuitous unprovoked assault.  The respondent
accepts, although it does not appear in the record before me,
that the appellant participated in an interview with police
which was regarded and made admissions to striking the
complainant several times.  Therefore, she cooperated with the
administration of justice.

The outline for the appellant states that she also said she
was "intoxicated" at the time and the interview was on
4 January 2010.  This explains why she was not dealt with by
the Court on that date when she was dealt with for the
stealing charge.  I note the bench charge sheet says she was
charged on 4 January 2010.  As a result of the offence of
common assault the appellant was placed on bail with the
condition that she did not attend train stations.

In relation to the breach of this bail condition which the
Magistrate took into account in sentencing her for the common
assault charge the police observed her at 9.20 p.m. on
12 October 2010 walking on Wynnum Central Train Station.  As
the police approached her she said passersby, "I am going to
gaol."

She told the police she had gone to the station to obtain a
cigarette from a friend.

The Prosecutor submitted a custodial sentence of some type
should be imposed.  She put emphasis on the offence occurring
in a train and the appellant hounding the victim in the
carriage until she finally assaulted her without cause.
Although, as I have stated, the appellant told the Magistrate
she assaulted the complainant after the complainant had made a
smart remark to her.  This conflict does not seem to have been
resolved by the Magistrate.

The Prosecutor referred to it as a "cowardly" act committed in
front of an elderly woman, observing this is why people don't
catch trains in this area.  The Prosecutor submitted that a
message must be sent to the community that this sort of
violence is not accepted by the Court or the community.

Because the appellant was unrepresented she made no submission
in mitigation.  Such information as emerged was as a result of
the discussion she had with the Magistrate and from the
Magistrate's statement of his own knowledge of her.  For
example, he referred to recalling a suggestion she had been
living on the streets or through the generosity of friends
since 16 years of age.  He referred to her having a mother in
Cairns and then said in the context of his having made the
previous probation order:

"Asked her prior to putting her on probation whether she had
any support people around her and she said, "No."  And at the
time the Court in consideration of her circumstances felt that
a probation order was warranted...to give her support."

In the course of the Magistrate's discussion with her and his
more formal sentencing remarks, it is clear that in exercising
his sentencing discretion he took into account that she was
the aggressor, she pleaded guilty and her criminal record
which included her breaches of the good behaviour bond.  For
those breaches he ordered the recognisance to be estreated
during the course of the sentencing process.  He gave her six
months to pay the value of the recognisance.  In default she
was to serve six days' imprisonment according to the Bench
charge sheet.

I note that despite the requirement of section 96 of the
Penalties and Sentences Act the Magistrates Court did not ask
the appellant whether she agreed to the order being made.  In
R v Marsden [2003] QCA 473 Mackenzie J (with whom McPherson JA
and Wilson J agreed) noted at page 5 that the provisions of
the Penalties and Sentences Act relating to probation
contemplate not only consent to the general proposition that
probation should be imposed but also to consenting that it be
performed in the terms ordered.  These terms included the
duration of the order.

I consider this requirement applies to all probation orders
including the probation part of a prison/probation order under
section 92(1)(b) of that Act.

The Magistrate originally ordered that the $300 forfeited
recognisance and the $500 compensation order would each have
to be paid in two months.  The appellant asked him how she was
going to come up with this money while she was in gaol.  He
accepted this and amended the order to allow six months for
payment in each case.  He added:  "I think at the end of the
day you will be talking to SPER and they will be negotiating
with you."

Submissions on behalf of the appellant

It is stated in the outline of submissions that the appellant
has served 22 days in custody on the common assault charge
before being granted bail pending the hearing of this appeal
on 5 February 2010.  This has been amended with the acceptance
of the respondent to 24 days.  I also note that as previously
stated, the presentence custody certificate indicates that she spent an extra day in custody prior to being sentenced to imprisonment and that period was not declared as time already served under the sentence.

The appellant did not appear as required on the first day of
this appeal.  I have since been told that there was some
confusion about whether she had to appear before this Court or
before the Wynnum Magistrates Court with which she is more
familiar.  I further understand that she attended at the
Wynnum Magistrates Court on that date but left after she was
told that she was not required to appear before that Court.

I did not know this at the time I issued a bench warrant for
her arrest on 22 June 2010 although, by that time, she had
been advised by the Queensland Police Service that she was
required to appear before the District Court on that date.
Therefore, she was on bail for about four and a-half months
prior to the warrant being issued.  She has been in custody as
a result of her apprehension on that warrant and for other
reasons since 23 July 2010.  That's a total of six days.  That
is a time which cannot be taken into account by me in these
proceedings.

I am also told that she was not reporting to probation pending
the outcome of this appeal.  The order was not being enforced
by the probation service.  It is submitted that despite the
application of section 9(3) of the Penalties and Sentences Act
to the use of violence in this case the applicant is within
the category spoken of by Byrne J (with whom Davies JA agreed)
at page 83 in the case of R v Lovell [1999] 2 QdR 79. In
saying:

"Nevertheless, youth remains a material consideration for the
rehabilitation of youthful offenders especially those without
relevant convictions also serves to protect the community."

This principle was articulated again in R v Taylor; ex parte
Attorney-General [1999] 106 A Crim R 578 where McMurdo P (with
whom Thomas JA agreed) noted that Courts have long recognised
the desireability of not sending youthful offenders without
prior convictions to prison because of the chances of
favourable reformation:  and the combined effect of section
9(3) and (4) has the result that although youth is still a
relevant factor, it is of less weight than it was prior to the
1997 amendments.  McPherson JA concluded that he was unable to
find anything in the Penalties and Sentences Act as amended in
1997 which now compels the imposition of a substantial
sentence of imprisonment on a young offender as a matter of
course or which deprives a sentencing Judge of discretion of
deciding in appropriate circumstances not to impose a sentence
of imprisonment or actual detention.

It is submitted on behalf of the appellant that a sentence of
probation had been imposed only nine days earlier and any
intended rehabilitation through the imposition of the
probation would have had no time for effect at the time of the
sentence.  Ms Ganasan, who appears for the appellant extends
this submission to the stealing offence for which the
appellant had previously been admitted to probation,
particularly having regard to the appellant's relative youth.
In making this submission the appellant conceded in the
written outline that it may be a circumstance of aggravation
of the offence of common assault that it was committed only a
day after the making of the probation order.  However, as
recognised today, this concession was unnecessary because the
common assault, in fact, predated the probation order although
the breach of bail condition occurred eight days later.

The appellant submits that the Magistrate's discretion
miscarried in making an order for compensation with the
default imprisonment along with an order for actual
imprisonment.  It is submitted that whilst an order for
compensation is permitted within section 35 of the Penalties
and Sentences Act in addition to any other sentencing order,
the compensation order of $500 for the charge of common
assault and the default imprisonment time of 10 days
imprisonment was in breach of the totality principle address
in the Sobieralski v Commissioner of Police [2009] QCA 90 at
paragraphs 20-24 in the judgment of Atkinson J.  I
particularly note that Her Honour (with whom McMurdo P and
Muir JA agreed) said at 22:

"The application for leave to appeal under section 118(3) of
the District Court Act submitted that the appeal raised an
important question as to the appropriateness of combining
imprisonment with substantial monetary penalties.  In my
opinion this is a matter which must be considered when the
Court is considering the totality of the sentence imposed,
particularly when the monetary penalties are unable to be paid
and will therefore lead to a further term of imprisonment
which will have to be served concurrently."

However, in that case, the total monetary penalties were about
$6,600.  In those circumstances it was considered at 23:

"In my view the effective sentence of 33 months made up of 25
months' imprisonment upheld on appeal and eight months in
default of payment was manifestly excessive.  As a result all
fines and monetary penalties were removed."

In this case Ms Kovac in any event concedes that I should
allow this aspect of the appeal to the extent of altering the
order so that the penalty is referred to SPER.  It is
submitted in conclusion that the appellant, having already
served the period of time in custody that I have mentioned,
can be sentenced to a community based order of some community
service or a period of probation.  It is also submitted that
at the appellant's age and with her circumstances there is no
realistic prospect of compensation being payable so that the
order for compensation should be removed.

Alternatively, it is submitted that any order for compensation
should have no default period attached to it within section
36(2) of the Penalties and Sentences Act and the order for
compensation referred to the State Penalties Enforcement
Registry as allowed within section 23(1)(c) of the State
Penalties Enforcement Act 1999.  As I have stated, Ms Kovac
concedes this alternative submission to the extent of the
compensation order being referred to SPER.

Submissions on behalf of the respondent

It is submitted on behalf of the respondent that the sentence
imposed for the offence was not manifestly excessive in the
circumstances.  In regard to the imposition of a custodial
sentence it is committed that there was no error of law as
stated by the Court in House v King that would require this
Court to interfere with the wide discretion of the Magistrate.

It is argued that the order for compensation should remain
subject to the concession made by Ms Kovac.  Therefore,
subject to that concession it is argued that the appeal should
be dismissed.

I will not summarise the written submission in detail in light
of Ms Kovac fairly putting the submission orally, only on the
basis that the sentence of three months' imprisonment imposed
was at the top of the permissible range.  This, however, no
doubt reflects the written submission to the extent that it
asserts that the offence involving the common assault was a
continual harassment of the complainant to the extent where
the appellant eventually used unprovoked alcohol fuelled
violence towards her and the complainant was injured as a
result of the violence used.  It also undoubtedly reflects the
submission that a concerning aspect of the assault was that it
occurred in the confined space of a train and in the presence
of other commuters, particularly an elderly person.

The submission also asserts that the Prosecutor correctly
submitted that a sentence needed to be imposed that would
personally deter the appellant and also deter others from
committing acts of violence on public transport.  In light of
that, a term of imprisonment with actual custody was within
the range of sentencing options for the Magistrate to consider
although, as I have observed, Ms Kovac concedes it would be at
the top of the range.

It was also submitted in writing that reference to authority
confirms that the sentencing discretion is sufficiently broad
to include a sentence of actual custody for this type of
offending.  In support, reference was made to R v Taputoro
[2007] QCA 29 in which it was held that an unlawful assault at
a nightclub was sufficiently serious as it involved an issue
of community concern.  For this reason it was argued in the
written submission that the conduct in this case warranted a
deterrent penalty that involved actual custody.

However, while accepting the principle which derives from the
decision in that case, as is conceded by Ms Kovac, again
fairly, that case is distinguishable from the circumstances of
the present case.  That is demonstrated by reference to the
judgment.  In that case the applicant was a 44 year old
security guard with no previous convictions whose assault was
described by the sentencing Judge as:

"A very serious one.  It was motivated by desire for
retribution.  The nature of the assault, kicking a man already
disabled in the head was both a reprehensible act in itself
and carried with it potential to cause grave injury to the
complainant."

In the Court of Appeal McMurdo P said:

"The conduct of which the appellant was convicted warranted a
salutary deterrent penalty.  The appellant was a mature man
working at the time of the offence as a security guard.  He
showed no remorse for his conduct and did not have as a
mitigating factor a timely plea of guilty or cooperation with
the administration of justice."

Despite the appellant's criminal history her only potential
relevant previous convictions were three offences of
obstructing or assaulting police.  However, it is unknown
whether she was convicted for an obstruct as opposed to an
assault.  Unlike the applicant in that case she had the
benefit of a timely plea of guilty and cooperation with the
administration of justice.

As Keane JA observed, the attack by Mr Taputoro was all the
more reprehensible because of his occupation.  Against this
background his Honour said:

"The learned sentencing Judge was clearly influenced by
considerations of general and personal deterrence, bearing in
mind the applicant's occupation and the opportunity which
security staff have to use personal violence on their fellow
citizens in and around nightclubs.  It must be acknowledged
that such considerations have a strong claim upon the exercise
of the sentencing discretion in such a case."

In those circumstances Ms Kovac has correctly, in my view,
conceded that that case is distinguishable from the case which
I have to consider.

Discussion

The learned Magistrate was correct to approach this matter on

the basis of section 9(3) and (4) of the Penalties and

Sentences Act because in being convicted of common assault the

appellant was being sentenced for an offence which involved

the use of violence against another person.  As a result a

sentence of imprisonment was not the last resort and the

principle that a sentence allowing the offender to stay in the

community is preferable does not apply.  Accordingly, the

primary factors the Magistrate was required to have regard to

were those listed in section 9(4).

Notwithstanding this, the appellant was 18 years of age and,

as recognised by the Court of Appeal, youthfulness remains a

material consideration for rehabilitation of youthful, even of

violent offenders, especially without prior relevant

convictions also serves to protect the community.  As I have

observed, the only potential relevant prior convictions were

the three offences of assaulting or obstructing police

officers.

These, together with her convictions of contravening a

requirement and the regulatory wilful damage offence are what

are commonly described as street offences.  Other than this,

she had three relatively low level stealing offences, one was

a regulatory offence and she was admitted a good behaviour

bond and probation for the other two offences.  The low level

nature of the most recent of those offences was described by

the Magistrate during the proceedings.

The three obstruct or assault offences may not have been

relevant prior convictions in any event.  The circumstances

were not put before the Magistrate and Ms Kovac did not press

upon me the circumstances of those offences in light of the

reservations that I expressed to her about them being admitted

as fresh evidence at this stage.

It is notorious that an obstruct or assault police offence may

merely be an obstruct.  Even then there are different levels

of obstruction including running away from police or some

overlap with contravening a direction.  I note that the first

two offences were associated with an offence of contravening a

direction.  In the absence of evidence on this issue, I

proceed on the basis that these offences involved obstruction

and not assault and, as such, they were not relevant prior

convictions.

The Magistrate made no reference to this in his sentencing

remarks.  He made no reference to her age or to his earlier

observation to the Prosecutor that he had previously put her

on probation on give her support.  He made reference to her

plea of guilty but not its timely nature.  In fact, it was an

early plea of guilty.  She had only been charged with the

offence nine days before and this was the first occasion it

had been mentioned before the Court.  In fact, as the

Prosecutor told the Magistrate, it had been brought forward

from 1 February 2010 to be dealt with at the same time as the

Bail Act offence which itself had been committed the previous

evening.

There is no indication that the appellant received the

discount to which she was entitled for an early plea of

guilty.  It was not mentioned by the Magistrate.  When the

Magistrate's sentencing remarks are analysed, other than the

mention of the plea of guilty itself there is no reference to

any other factors in mitigation.  As I have observed he did

not take the necessary steps to elicit any further relevant

circumstances in mitigation from an unrepresented 18 year old

litigant.  He made no reference to her explanation which could

be interpreted as her conduct being an excessive response to

what she regarded as verbal provocation rather than a

gratuitous unprovoked assault which was the basis of the

prosecution case.

These matters in themselves may be sufficient to amount to a

failure to take into account material considerations such as

to amount to an error of principle.  His failure to comply

with section 96 of the Penalties and Sentences Act may also be

sufficient for this purpose.

However, the material consideration of most relevance that his

Honour failed to take into account is that the common assault

predated the probation order by two months and the offence to

which the probation order related was committed within about

two weeks of the common assault and, the only offence which

involved a breach of the probation order was the breach of

bail condition which he considered should be taken into

account in sentencing her for the common assault.  In any

event, it was her first breach of a bail condition and without

minimising the seriousness of such an offence, it was a

relatively minor example of such offending.

The Magistrate in these circumstances should have considered

how he would have sentenced the appellant if she had been

dealt with by him for the stealing offence and the common

assault offence on the same occasion on 4 January 2010.  If

she had been, it is probable the Magistrate would have taken

the same view that a probation order rather than a

prison/probation order was warranted to give her the support

she needed.

Nothing had changed in that regard in nine days, particularly

as the order had not had a chance to operate.  If the

Magistrate had considered this, as he should have done, he

would, in all probability, have concluded there was no basis

to delay the operation of the probation order for three months

by the imposition of a prison sentence and there was no

warrant for reducing the 12 month period of probation to an

effective period of nine months.  This must also be considered

in the context of the uncertainty of his Honour's total

sentencing approach on that occasion with reference to the

earlier probation order.  The lack of clarity about whether

that order had been revoked and her being re-sentenced and if

she was re-sentenced whether this was for 12 months' probation

or a concurrent prison/probation order in the same terms as

that for the common assault, is unsatisfactory.  Such a

sentence is not in accordance with the sound exercise of the

Court's sentencing discretion.

In all these circumstances I conclude that the learned

Magistrate acted on a wrong principle as to the total

sentencing approach in circumstances where he said he was

"dealing with the whole lot now."  I may therefore exercise my

own sentencing discretion in substitution for his.

Further, the error is demonstrated by the manifest

excessiveness of the sentence imposed for the common assault.

This emerging when regard is had to the section 9(4)

principles.  It also demonstrates the manifest excessiveness

of the sentence for stealing.

The first of the principles under section 9(4) of the

Penalties and Sentences Act is the risk of physical harm to

any members of the community if a custodial sentence was not

imposed.  On the material before the Magistrate this would

have to be assessed as low.  In the absence of evidence she

should be given the benefit of the doubt about the nature of

the obstruct or assault police offences so that it is

inappropriate to proceed on the basis of physical harm being

involved in those offences or, for that matter, that they

involve any form of assault.

In these circumstances the common assault is her first offence

of violence.  On her account of events, although it does not

excuse her conduct, she was responding excessively to verbal

provocation.  To this extent the violence in this offence was

contrary to her normal character.

In these circumstances in terms of the next principle, the

need to protect other members of the community from this risk,

is also of a low level.  Nothing is known for the purposes of

the next principle, of the personal circumstances of the

victim of the offence, other than she was 20 years of age, she

knew the appellant by her first name, she used to be

neighbours of friends of the appellant, the appellant blamed

her for their eviction from a house, it was this which caused

the confrontation which led to the violence and the

complainant suffered some unspecified injury not alleged to

amount to bodily harm.  There is nothing in this which takes

the exercise of the sentencing discretion any further.

In relation to the principle of the nature and extent of the

violence used and the circumstances of the offence, although

on any view of the facts it involved a serious sustained

attack, it did not involve the use of a weapon.  As

indicated, there is no evidence that the injuries amounted to

bodily harm.

As I have observed, the appellant alleged she had assaulted

the complainant in response to verbal provocation from the

complainant.  As I have also observed no attempt was made by

the Magistrate to resolve this conflict with the prosecution

version of the events.  There was, for the purpose of the next

principle a disregard by the appellant for the interests of

public safety as this offence occurred in a public place in

the sense of a commuter train which was being used by members

of the public, including an elderly lady.  There is a risk

that violence in contained spaces such as a train will get out

of control and involve those what are innocently going about

their business, in addition to the trauma which can be caused

to other people.

Therefore, the Magistrate correctly had regard to both the

specific and general deterrent aspect of sentencing to reflect

the community concern about violence on public transport.

In relation to the principle of the appellant's past record,

including any attempt at rehabilitation and the number of

previous offences of any type committed, it must be remembered

that she was 18 years of age at the time of the offending and

is now only 19 years of age.  She had committed all of her

previous offences in the past 12 month period.  On the face of

her record the common assault was her most serious offence

following a mixture of street and stealing offences, none of

which were regarded as sufficiently serious to warrant a

sentence of imprisonment being imposed.  For the reasons I

have given I proceed on the basis this was her first offence

involving the use of violence.  Of particular significance is

that on 4 January 2010 the Magistrate had admitted her to

probation to assist in her rehabilitation.  This had not had

an opportunity to work before she was imprisoned for this

offence and the offence of stealing nine days later.  This was

although, as I have observed, this offence predated the

probation order being made and therefore while it was

committed in breach of a recognisance it was not committed in

breach of probation.

This circumstance was in favour of imposing a sentence which

would allow the rehabilitative sentence of probation to

immediately take effect rather than being postponed by three

months' imprisonment.

The next factor is the antecedents, age and character of the

offender.  As I have emphasised she was 18 at all material

times and is now 19 years of age.  Her youth remains a

relevant material consideration for the rehabilitation of a

youthful offender, even a violent offender, especially one who

I have concluded on the material before the Magistrate did not

have a relevant prior conviction.  As I have observed

penalties which reflect rehabilitation in such circumstances

also serve to protect the community.

Having regard to what the Magistrate said about her difficult

personal circumstances which had caused him to exercise his

discretion only nine days earlier to give her the benefit of

rehabilitative support, these factors favoured a sentence

involving no actual imprisonment.

As to the factor of remorse, nothing specific was said before   

the Magistrate.  It could be argued that her explanation to

the Magistrate that she attacked the complainant because she

became angry when the complainant started being smart, may

suggest a lack of remorse.  However, she never sought to avoid

responsibility for the attack which was out of all proportion

to what the complainant said to her.  This is not inconsistent

with remorse which would usually be regarded as accompanying

an early plea of guilty and cooperation with the

administration of justice.  Therefore, she was entitled to be

sentenced on this basis.  However, the Magistrate made no

reference to this issue when sentencing her.  The existence of

remorse was another factor in her favour.

There was no medical, psychiatric, prison or other relevant

report in relation to her for the purpose of that principle.

Finally, there is nothing else about the safety of members of

the community that has not already been mentioned that the

sentencing Court could regard as relevant.

Before leaving that area, I observe it is apparent that

although the Magistrate clearly sentenced the appellant on the

basis of section 9(3) he did not address each of the 9(4)

factors.  The analysis of these factors demonstrates that on

balance they were in favour of a sentence that while sending a

deterrent message to both the appellant and the general

community and while seeking to protect the community also

sought to rehabilitate her in the interests of the community,

a sentence which included an actual period of imprisonment was

not such a sentence.

For this reason, also, the sentence imposed was outside the

sound exercise of the sentencing Court's discretion.

Accordingly, I proceed to exercise my own sentencing

discretion in substitution for that of the sentencing Court.

In doing so I take into account the section 9(4) factors as

the primary factors for consideration on sentence.  I adopt

what I have already said about them.

I have regard to the need for a sentence of general and

specific deterrence and to protect the community.  I also have

regard to the serious and persistent nature of the attack,

even in giving the appellant the benefit that the violence was

an excessive response to a provocative comment from the

complainant.  I also have regard to her criminal history.  I

have regard to her age which, as I have said, was 18 when she

committed the offence and is now still 19 years, to her early

plea of guilty which is associated with remorse, to her

cooperation with the administration of justice, to the fact

that while she has a criminal history this is her first

offence of actual violence, to her difficult life

circumstances which have included her living on the streets or

through the generosity of friends since she was 16 years of

age and her separation from her mother such that the

Magistrate considered only nine days previously that she

needed the support of a probation order, to the fact that this

offence predated the making of the probation order, to the

fact that the probation order had not had the opportunity to

provide any benefits at the time of sentence, that she had

reported as required under the previous order, that she has

committed no other offence of violence, that the offence did

not cause bodily harm, that she has now spent 24 days in

actual custody for the common assault, to the fact that as

Ms Kovac fairly pointed out, she had previously spent one day

in presentence custody for this offence which was not declared

and cannot now be declared as time already served under the

sentence and that since she has been remanded in custody under

the warrant that I issued, she has spent six days in custody,

partly in relation to this offence which cannot be taken into

account, and prior to the issue of the warrant she had been on

bail in the community for four and a-half months.

This was not a case in which an actual term of imprisonment

was required having regard to these circumstances.  If a

sentence of imprisonment was to be imposed it should have been

wholly suspended but this would not give the appellant the

benefit of rehabilitation.  An immediate parole release date

would provide this, however the length of imprisonment would

not provide sufficient time for the benefit of such a parole

order to have affect.

In these circumstances I consider the appropriate sentence is

one of 12 months' probation with a conviction being recorded.

Ms Ganasan cannot argue against the recording of a conviction

in the circumstances of this case including reference to a

previous conviction in the appellant's criminal record.  As

was decided in R v Briese [1987] 92 A Crim R 75 it is the

combined effect of the sentencing option being considered and

the decision of whether or not to record a conviction which

needs to be looked at when the Court is deciding that the

sentence is appropriate.  Therefore a decision to record a

conviction is part of the sentence imposed.  It has serious

potential consequences for a 19 year old and as such can be

considered to provide a deterrent.  When deterrence is

considered it is also relevant that a probation order involves

onerous conditions.

Although I have said little about the compensation order to

date, as was stated in Sobieralski the appropriateness of

combining imprisonment with monetary penalties is a matter to

be considered in determining the totality of sentence,

particularly when the monetary penalties are unable to be paid

and will therefore lead to a further term of imprisonment.  As

I have said, that case is distinguishable on the facts due to

the length of imprisonment and the quantum of the monetary

penalties, however the principle is nonetheless applicable and

Ms Kovac concedes that the penalty here should be referred to

SPER.

In this case the Magistrate recognised the appellant's lack of

support and the fact she would probably be negotiating with

SPER at the end of the day.  In circumstances where section

36(1)(c) permits the Court to order the proper officer of the

Court to give particulars of the amount of compensation to

SPER for registration, the risk that she may not be able to

fulfil the requirements of the order with the result that she

may have to negotiate with SPER in any event to avoid serving

the default period of imprisonment causes me to conclude that

the sentencing discretion miscarried by making an order for

compensation with default imprisonment.

In any event, I consider that as I am re-exercising the

sentencing discretion, I am entitled to revisit the terms of

the compensation order as part of considering the totality of

the sentence.  In doing so I consider it is appropriate to

make an order under section 36(1)(c) of the Penalties and

Sentences Act.

Before finalising the orders which follow from my decision on

this appeal, it is necessary to say something more about the

appeal as it relates to the resentencing for the offence of

stealing.

As I have observed, there are three possible interpretations

of what the Magistrate did when he revoked the probation

order.  One of those possibilities is that, as has been

accepted for the purpose of argument in this case, he

re-sentenced her to a prison/probation order in the same terms

as that imposed for the common assault, to be concurrent.  If

this is the case, if I am to only set aside the sentence for

the common assault and resentence her in the manner I have

indicated for that offence, the sentence for the offence of

stealing would remain.

In light of the uncertainty as to the manner in which the

Magistrate exercised his sentencing discretion, which emerges

from the conflicting aspect of the record, I consider the

result embodied in these orders is so unclear as to be

unreasonable such that I infer that in some way there has been

a failure to properly exercise the sentencing discretion.

Therefore, I consider it is appropriate to exercise my

sentencing discretion in substitution for the Magistrate in

respect of the stealing offence also.  The penalty for that

offence is now the subject of this appeal.

Having regard, again, to the appellant's youth, the fact that

the probation order had not had time to take effect at the

time of sentence, the circumstances which caused the

Magistrate to consider that probation was appropriate had not

changed in the nine day period since it was imposed, to the

relatively minor nature of the breach and the relatively minor

nature of the circumstances of the stealing offence, in

exercising my sentencing discretion I consider that the same

penalty should be imposed as for the common assault.

Because I am resentencing her for the offence, even if no

conviction was recorded in the first instance, I would be

required to record a conviction under section 12(6) of the

Penalties and Sentences Act in any event.

Accordingly, the formal orders of the Court will be:

(1) Appeal allowed;

(2) The sentence imposed by the Wynnum Magistrates Court on

13 January 2010 for the charge of common assault is set aside;

(3) The order of the Wynnum Magistrates Court on 13 January

2010, revoking the probation order made on 4 January 2010 for

the charge of stealing and resentencing for that charge is set

aside;

(4) On the charge of common assault:

(a) the appellant, subject to her consent, will be released

under the supervision of an authorised Corrective Services

officer for a period of 12 months from this date under section

92(1)(a) of the Penalties and Sentences Act 1992 (Qld);

(b) a conviction be recorded;

(c) the appellant is to pay compensation in the sum of $500 to

the complainant.  The proper officer of the Court is under

section 34 of the State Penalties Enforcement Act 1994 (Qld)

to give particulars of the amount of compensation to SPER for

registration under that section;

(5) On the charge of stealing:

(a) the probation order made on 4 January 2010 is revoked;

(b) the appellant, subject to her consent, will be released

under the supervision of an authorised Corrective Services

officer for a period of 12 months from this date under section

92(1)(a) of the Penalties and Sentences Act 1992 (Qld);

(c) a conviction be recorded.

(6) No order as to costs.