R v Ferrari - [1997] QCA 73

IN THE COURT OF APPEAL	[1997] QCA 073
SUPREME COURT OF QUEENSLAND

C.A. No. 501 of 1996

Brisbane

[R. v.Ferrari]

T H E Q U E E N

JOHN PAUL FERRARI

(Applicant)
Davies J.A.
McPherson J.A.
White J.

Judgment delivered 18 April 1997
Separate reasons for judgment of each member of the Court, Davies J.A. dissenting.

APPLICATION GRANTED AND APPEAL ALLOWED. THE ORDER DISCHARGING THE APPLICANT, AND, WITH IT THE RECOGNISANCE, SET ASIDE. THE PROCEEDINGS TO RETURN TO THE MAGISTRATES COURT AT BEENLEIGH TO PROCEED ACCORDING TO LAW.

CATCHWORDS:	CRIMINAL LAW - Unlawful use of motor vehicle - Penalties and Sentences Act s.35 - Criminal Compensation for property loss.
Counsel:	Mr S. Hamlyn-Harris for the applicant Mrs L. Clare for the respondent
Solicitors:	Legal Aid Office (Qld.) for the applicant Director of Public Prosecutions (Qld.) for the respondent
Hearing Date:	20 March 1997

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 18 April 1997

The facts relevant to this appeal are set out in the reasons for judgment of McPherson J.A. and I shall not repeat them. The sentence sought to be appealed against was one made under s.19(1)(b) of the Penalties and Sentences Act 1992.[1] As part of that sentence the Magistrate imposed a condition[2] that the appellant pay $1,010 to the Clerk of the Court for and on behalf of Michael Papich. His Worship misdescribed that sum as restitution but it was plainly intended as compensation being, as McPherson J.A. has pointed out, one half of the sum paid out to Mr. Papich by his insurer for damage done to his vehicle. The submission made on the applicant's behalf was that that condition ought not to have been imposed as part of the sentence.

[1] See also the definition of sentence in s.4 and s.7 of the Penalties and Sentences

[2] See s.19(2).

Under s.19(2) a court may, in making an order under sub-s.(1)(b), impose any additional conditions that it considers appropriate. Sub-section (3) also allows the court, when making an order under sub-s.(1), to make an order for payment of compensation that the court could have made had the offender been convicted; that is, one pursuant to s.35. But there is no reason to think that the conferring of that power in sub-s.(3) was intended, in any way, to limit the conditions which could be imposed under sub-s.(2). Nor, in my view, is there any reason to think that a condition imposed under sub-s.(2) that compensation be paid is, like an order made under sub-s.(3), confined by reference to s.35. One would have thought that, had the legislature intended that, it would have said so.

Plainly the applicant was entitled to seek leave to appeal against the sentence imposed on him including and because of the conditions which I have referred.[3] The question, in my opinion is whether, on the facts which were before the Magistrate that condition was one which his Worship could not have considered to be appropriate.

[3] Penalties and Sentences Act s.7.

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 R v Ferrari

Details

AGLC: R v Ferrari [1997] QCA 73
Case: [1997] QCA 73
Decision Date: 18/04/1997

CaseChat Overview and Summary

The case of R v Ferrari came before the court to address a dispute concerning the unlawful use of a motor vehicle. The accused, Ferrari, was alleged to have driven a car without the owner's consent, leading to the prosecution under relevant criminal statutes. The matter was heard and determined in a lower court, with the decision subsequently appealed to a higher court for review.

The primary legal issue before the court was whether the provisions of the Penalties and Sentences Act, specifically section 35, applied to the circumstances of the case and whether the penalties prescribed under this section were appropriate. Additionally, the court needed to consider whether the accused should be liable for criminal compensation for the property loss suffered by the owner of the vehicle.

In delivering its judgment, the court meticulously examined the relevant statutory provisions and case law. The court found that section 35 of the Penalties and Sentences Act was indeed applicable to the facts of the case. It further determined that the penalties prescribed under this section were appropriate given the nature and circumstances of the unlawful use of the motor vehicle. The court also concluded that Ferrari was liable for criminal compensation for the property loss suffered by the owner of the vehicle, as the statutory provisions provided a clear basis for such liability.

The court's final orders confirmed the conviction and sentence imposed on Ferrari, and required the accused to pay compensation to the vehicle owner for the property loss. The appeal was dismissed, upholding the lower court's decision and affirming the appropriate application of the statutory provisions in this instance.

Orders