Shane Alexander v Queensland Police Service
[2024] QDC 32
•6 MARCH 2024
QUEENSLAND COURTS AND TRIBUNALS
TRANSCRIPT OF PROCEEDINGS
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DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE SMITH
No 2916 of 2023
SHANE ALEXANDER Appellant
and
QUEENSLAND POLICE SERVICE Respondent
BRISBANE
10.21 AM, WEDNESDAY, 6 MARCH 2024
DAY 1
JUDGMENT
Any rulings in this transcript may be extracted and revised by the presiding Judge.
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HIS HONOUR: Well, this is an appeal against a sentence imposed on the appellant on the 10th of October?
HIS HONOUR: – – – 2023 in the Brisbane Magistrates Court. The appellant pleaded guilty to one count of serious assault and was sentenced to nine months’ imprisonment, suspended after three months. The Prosecutor informed the Court that the assault occurred on the 29th of January 2023 at Teneriffe in Brisbane. Exhibit 1 was the agreed schedule of facts.
The complainant was a 67 year old man, who was walking with some garbage bags along Commercial Road. Apparently, there had been some thefts in the area and flyers had been distributed warning people of this. The complainant was near a large bin, and he was approached by the defendant, who was clearly intoxicated, who said, amongst other things, “You’re suss,” swore at him, threatened to smash his face in. The complainant claimed he was just out for a walk, which was true. The defendant, by reason of his intoxication it seems to me, accused him of lying, and then punched him to the left side of the chest and jaw. As I said, the appellant was affected by liquor. An unusual feature of this case, probably explained by the consumption of alcohol, is the appellant stayed until the police arrived.
The complainant sustained bruising to the chest. Photographs of this were tendered. There was also a victim impact statement. I note it was not sworn or supported by medical evidence, but regardless, it is understandable, the assault had a significant effect on this man. The appellant had no prior convictions. The prosecution correctly submitted the assault was unprovoked and examined a number of comparable decisions and submitted for a suspended sentence of six months, with an order for compensation of $1000 and a no contact order.
The Defence lawyer submitted the appellant was born in New Zealand, but was an Australian citizen. He was 39 years of age and had moved to Australia in 1989. He had completed year 12 at school, and, from year 10, he had worked at Bunnings, supporting his mother. He had a good work history and was an accredited tiler and had a certificate in personal training. He was saving to buy a house. His father was ill. It was stressed there were no previous convictions. It was submitted this was out of character. He worked in places where security checks were necessary. An apology and a good character reference were tendered and $1000, by way of compensation, was offered. The Defence referred to two comparable submissions and submitted a fine without a conviction should have been imposed.
In the decision, the Magistrate referred to the plea of guilty and the circumstances of the offence. He referred to the antecedents of the defendant and said that rehabilitation did not loom large and deterrence was important. He referred to some of the comparable decisions. He had made no reference to the compensation offer, and he imposed the penalty to which I referred earlier.
In reaching my decision, I have had regard to the submissions by both parties. As I noted, the Magistrate made no reference to the offer of compensation or to the fact the injuries were at the lower end of the scale. Compensation is an important matter to be considered in the sentencing process. Aside from it being a relevant factor, under at least section 9(2)(r) of the Penalties and Sentences Act, it has long been held that an offer of compensation may be regarded in mitigation of penalty. As was noted in R v Allen [2005] QCA 73:
Restitution in full is a means of demonstrating that crime need not pay and sometimes does not pay, and restitution can be evidence for remorse quite independently from the benefit that it gives to the victim. That benefit is appropriately extended to the person being sentenced, usually by reduction in any actual term of imprisonment imposed.
In Bright v Police [2008] 108 SASR 519, Justice Gray equally noted that there was a recognition at common law of the importance of restitution. Restitution may demonstrate contrition and remorse, which are matters of mitigation. It also shows there are good prospects for rehabilitation. Restitution may be of particular significance if accompanied by circumstances of personal sacrifice. Such circumstances may lead to the suspension of a term of imprisonment or, alternatively, may operate to substantially reduce the time to be spent in custody.
In cases involving an offence against the person, in my respectful opinion, it is important that compensation payments be encouraged, because, in that way, it does show some degree of rehabilitation and compensates a victim for the harm done to them. In the circumstances, I am satisfied that an error occurred in the sentencing process here, and I should re-sentence the appellant.
In my view, this was a serious matter. It was an unprovoked assault on a person over the age of 60, who was really minding their own business. There was an effect on the victim here. Section 9(2)(a) did not apply. Deterrence was important, bearing in mind the assault occurred in public. On the other hand, one needs to consider that the physical injuries were not great. The appellant had no previous convictions, a good work history and had offered to pay compensation.
I have had regard to the comparable decisions relied on by the parties. Of course, each case depends on its own facts, and it is for the sentencing Magistrate or Judge to do the best that he or she can on the given facts of the case. I consider the submissions made by the Prosecutor below were the correct ones. I have heard Mr Lynch’s submissions about the potential effect of a conviction, and I have regard, of course, to section 12 of the Penalties and Sentences Act, but, in my view, balancing the matters mentioned therein, the offence is too serious not to record a conviction, bearing in mind the absence of specific evidence of the effect of conviction.
In the circumstances, I have decided to make the following orders – (1), the appeal is allowed; (2), I vary the Magistrate’s order, and, in lieu thereof, I record a conviction and impose six months’ imprisonment, suspended for an operational period of 12 months; (3) I order the appellant pay compensation in the sum of $1000 to the Registrar of the District Court at Brisbane for transmission to
.
HIS HONOUR: Keith David Bowden of an address to be provided to the Registrar by the DPP
HIS HONOUR: Within one month. If it is not paid within that time, I order the appellant be imprisoned for a period of one month.
HIS HONOUR: If it is not paid within that time, I direct he appear before the District Court at Brisbane, at 10 am, on the first business day after the 6th of April 2024, to show cause why the default imprisonment should not be enforced. Any further orders needed?
HIS HONOUR: “Otherwise the orders of the Magistrate are not Magistrate are not disturbed.
HIS HONOUR: With that one day in custody, I will just take that into account, I think, rather than declaring it.
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