R v Andrews

[1996] QCA 33

[1996] QCA 033

COURT OF APPEAL

MACROSSAN CJ
McPHERSON JA
DAVIES JA

CA No 421 of 1995

THE QUEEN

v.

COLIN ANDREWS  Applicant

BRISBANE

..DATE 02/02/96

JUDGMENT

DAVIES JA:  The applicant pleaded guilty in the Magistrates Court at Yarrabah on 27 September on one count of assaulting a police officer acting in the execution of his duty and one of unlawful possession of a thing used in connection with a dangerous drug both on 29 August 1995.  He was sentenced to 12 months probation and 50 hours community service and was ordered to pay, as a condition of the probation order, $600 compensation.  He seeks leave to appeal only against that part of his sentence which required him to pay compensation.

The applicant is 18 years of age, having been born on 16 September 1977.  He has previous convictions on 10 May last year of assault occasioning bodily harm and breach of a domestic violence order, both on 21 April 1995, for which he was sentenced to two months imprisonment.

The present offences arise out of a disturbance on a footpath and the assault arose after the police had arrested him for breach of a by-law and whilst they were attempting to take him into custody.  He punched a police officer twice in the face.  Although this caused the officer swelling to his nose and right eye and bruising to the right side of his jaw, he received no treatment and has no permanent disability.  A cone used for smoking marijuana was found in the applicant's possession.

The complaints about the compensation order are that none was sought by the Crown.  No submissions were directed to it and consequently no consideration was given to the applicant's ability to pay or as to any other aspects of its appropriateness.  The assertion that compensation was not sought and consequently that no argument was directed to it was not disputed by the respondent before this Court, nor was there any evidence that the learned Magistrate gave any opportunity to the parties to make any submissions before imposing the compensation order.  In those circumstances, it appears that the learned Magistrate was in error in failing to give the applicant an opportunity to make submissions before imposing, as a condition of the probation order, the order to pay $600 compensation.

Having regard to the conduct of the sentence hearing and the applicant's age, I would not, as one could in a situation such as this, send the matter back to the Magistrates Court for re-sentence hearing.  I would, having regard to those factors, grant the application and allow the appeal, only to the extent of setting aside, as a condition of the probation order, the order for compensation.

THE CHIEF JUSTICE:  I agree.

McPHERSON JA:  I agree.

THE CHIEF JUSTICE:  The order will be as Mr Justice Davies indicates.

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