Roberts v Walpole

[2009] QDC 309

[2009] QDC 309

DISTRICT COURT

A	PPELLATE JURISDICTION
J	UDGE DEVEREAUX SC
A	ppeal No 16 of 2009
N	ICHOLAS ROBERTS Ap pellant
a	nd
S	NR CONST B WALPOLE Respondent
M	T ISA
.	.DATE 08/09/2009
O	RDER

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HIS HONOUR: The appellant Nicholas Roberts was sentenced on

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22 April 2009 in the Magistrates Court at Mornington Island to
a probation order of three years with two special conditions,
one, "You must go to meetings at the Men's Group which are
held in the Justice Group area every Monday at 10 a.m. and (2)

You must attend all meetings of ATODS at the Morning Island	10
Hospital on the dates and times as directed.” That order was made with respect to the charges of assault occasioning bodily harm and possession of liquor in restricted area.
The appellant was born on 15 June 1971, so he is now 38 years	20
old but was 37 at the date of the offences on 20 March 2009.
It is submitted on appeal that the order of three years
probation is manifestly excessive. It is also argued that
special condition 1, which on its face requires the appellant
to attend a meeting every Monday at 10 a.m. for the duration	30
of the probation period, either is unworkable or makes the order manifestly excessive.
The offence occurred about 8.50 p.m. A number of people had
been drinking, including the complainant. The appellant and	40
the complainant began arguing. The complainant had been
sitting on a chair and had stood up to walk away when the
appellant approached him and punched him in the face causing
him to fall backwards over the chair and onto the ground. The
complainant got back up and the appellant threw more punches	50

at him, again knocking him to the ground.
The appellant has a lengthy criminal history that commences in 1-2 ORDER 60

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1987 in the Morning Island Childrens Court and covers five and
a half pages. It includes previous convictions for assaults,
unlawful wounding and an assault occasioning bodily harm while

armed and in company and grievous bodily harm.

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The learned Magistrate was persuaded that in light of the fact that the appellant had not been given the benefit of community based orders for many years it was within range in this case.

It must be said that that was on its face a generous

concession given the appellant's criminal history and the	20
circumstances of the offence in question.
The learned Magistrate said, "You've done a lot of time in
prison, we know that much." The learned Magistrate also took
into account the appellant's expression of concern for the	30
complainant, who was his friend, and went on for those reasons to admit him to probation for a period of three years.
The learned Magistrate did not expressly obtain the
appellant's consent to the probation order, but there are two	40
things to say about that. The first is that a community based order was urged on the Magistrate by the appellant's solicitor in these terms, "It's well and good to have the offending
behaviour, but the Penalties and Sentences Act contains
sentencing provisions for rehabilitation as well as deterrence	50

and not once over that 18 year period has the rehabilitation
aspect been used."
A little further on the solicitor said, "In this case I'm 1-3 ORDER 60

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asking the Court to address that and give him some type of
assistance for his anger. There's Men's Group here now so
perhaps that may assist him. If that can be overcome and his
problems with grog can be overcome, the chances are he won't

come back before the Court at all." It was open to the	10
Magistrate to conclude that consent would be forthcoming given the urgency of the submissions made.
A similar problem arose in the Queen v Marsden [2003] QCA 473
where an applicant for leave to appeal against his sentence	20
was placed on probation and community service orders by a
Judge of the District Court. In delivering the principal
judgment Mackenzie J noted that counsel for the applicant had
told the learned sentencing Judge that the applicant would
consent to being placed on probation and/or on community	30
service, whichever her Honour thought more appropriate.
Later in his reasons Justice Mackenzie noted "that the
provisions of the Penalties and Sentences Act relating to each
of probation and community service contemplated not only	40
consent to the general proposition that probation or community
service should be imposed, but also to consenting to perform
it in the terms ordered. That seems not to have been strictly
complied with in this case, although that is perhaps a
relatively minor matter in view of the circumstances of the	50

case."
Because of the nature of the assault and the appellant's 1-4 ORDER 60

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criminal history and in view of the submissions made on his
behalf in favour of a community based order it's open to me to
consider that although there was an error of procedure in the
sentencing process - to borrow the phrase that Justice

Mackenzie employed - perhaps that is a relatively minor matter	10
in this case.
It isn't enough, in my opinion, to infect the sentencing
proceedings with error with the result that I should reopen
the order. I'm not satisfied that a three year probation	20
period is manifestly excessive. It is a long time and it will
be difficult for the appellant to comply with conditions of
probation for three years if his criminal history is anything
to assess the future by. But on the other hand, he's 37 years
old and so mature enough to be able to make his own decisions.	30
I am concerned about the form of special condition 1 and am
minded to vary it. Section 225 of the Justices Act 1886 says
in subsection 1, "On the hearing of an appeal the Judge may
confirm, set aside or vary the appealed order or make any	40
other order in the matter the Judge considers just."
Although I am of the view that the three year probation order is not manifestly excessive I propose to exercise power under section 225 to vary the order by varying special condition 1	50

so that it reads, "You must go to meetings at the Men's Group
as directed by the authorised corrective services officer."
To that limited degree I allow the appeal and vary the order 1-5 ORDER 60

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of the Magistrate.

So the order is appeal allowed to the extent of varying the
decision of the learned Magistrate so that special condition 1

reads, "You must go to meetings at the Men's Group as directed	10
by the authorised corrective services officer."
I make no order as to costs.

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