DISTRICT COURT OF QUEENSLAND

CITATION:	Patel v Queensland Police Service [2022] QDC 267	
PARTIES:	ARAM ATE A TATU RAJA PATEL
(appellant)
v
QUEENSLAND POLICE SERVICE
(respondent)	
FILE NO/S:	4/22	
DIVISION:	Appellate	
PROCEEDING:	Appeal pursuant to s 222 of the Justices Act 1886 (Qld)	
ORIGINATING COURT:	Mount Isa Magistrates Court 	
DELIVERED ON:	23 August 2022 (delivered ex tempore)	
DELIVERED AT:	Mount Isa	
HEARING DATE:	15 August 2022	
JUDGE:	Dearden DCJ	
ORDER:	1.	Appeal granted
2.	Order that the sentence of nine months imprisonment, suspended forthwith, with an operational period of 18 months, in respect of the charge of common assault, on 29 August 2021, be set aside.
3.	Order that the sentence of 15 months probation imposed on 6 April 2022, in respect of all charges except the common assault charge dated 29 August 2021, be amended to include that common assault charge as well as all other charges to which the appellant pleaded guilty and was sentenced on 6 April 2022.
4.	Order that the appellant pay compensation of $1500 to the complainant, Shaun Dillon in respect of the assault occasioning bodily harm charge dated 25 July 2020, and that the compensation order be referred to the Registrar, State Penalties Enforcement Registry, for recovery action.
5.	Order convictions be recorded in respect of all charges	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the learned magistrate did not pronounce the compensation order of $1500 ordered – where the verdict and judgment record identifies a compensation order of $1500 – whether there is an error of law
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant had no criminal history – where the appellant was employed – where the appellant had positive character references – where the sentences were above the top range – where there was no opportunity for community-based orders – whether the sentence was manifestly excessive 	
LEGISLATION	Justices Act 1886 (Qld) s 223
Penalties and Sentences Act 1992 (Qld) ss 35, 188	
CASES	Jenkins v Commissioner of Police [2021] QDC 289
R v Nagy [2003] QCA 175
R v Stapleton [2022] QCA 131
R v Tupou; ex parte Attorney-General [2005] QCA 179	
COUNSEL:	C Grant for the appellant
J Hockings (sol) for the respondent	
SOLICITORS:	Anderson Telford Lawyers for the appellant
Office of the Director of Public Prosecutions for the respondent	
Introduction
[1]	The appellant, Arama Te A Tatu Raja Patel, pleaded guilty at the Mount Isa Magistrates Court on 6 April 2022 to the following charges:- 
•	1 x common assault domestic violence offence (20/7/2021);
•	1 x assault occasioning bodily harm (25/7/2020);
•	1 x contravention of domestic violence order (4/8/2021);
•	1 x wilful damage domestic violence offence (4/8/2021);
•	1 x contravention of domestic violence order (29/8/2021);  
•	1 x wilful damage domestic violence offence (29/8/2021);
•	1 x unlawful use of motor vehicles, aircraft or vessel – use – domestic violence offence (29/8/2021);
•	1 x common assault (29/8/2021);
•	1 x breach bail conditions (18/10/2021);
•	1 x breach bail conditions (22/12/2021);
•	1 x breach bail conditions (29/12/2021).
[2]	The sentences imposed were as follows:-
(1)	In relation to the common assault domestic violence offence (29/8/2021) – convicted and sentenced to nine months imprisonment, wholly suspended for an operational period of 18 months;
(2)	In relation to all other charges – convicted and sentenced to 15 months probation;
(3)	In relation to the assault occasioning bodily harm (25/7/2020) charge against the complainant VVP – ordered to pay compensation of a sum of $1500;
(4)	Convictions were recorded in respect to all charges.
Grounds
[3]	The appellant appeals on the following grounds:-  
(1)	The learned magistrate erred in not pronouncing all orders made in open court; and
(2)	The sentence imposed was manifestly excessive.

The Law – Appeals
[4]	I repeat and adopt my exposition of the law in respect of appeals under the Justices Act 1886 (Qld) as set out in Jenkins v Commissioner of Police [2021] QDC 289.
Background
[5]	The applicant’s outline of submissions summarises the offending as follows:- 
“10.  	The offence of assault occasioning bodily harm occurred on 25 July 2020 when the applicant attended the complainant (VVP’s) address.  The applicant of the complainant argued, and the applicant pushed the complainant onto the bitumen.  Whilst on the ground, the applicant stepped on the complainant’s feet.  The complainant sought medical attention which revealed he fractured his fifth metatarsal of his foot and had skin off both of his forearms.  
11.  	The offence of common assault domestic violence offence occurred [in] an incident between the applicant and his partner, GRT (the complainant with respect to this charge) on 20 July 2021.  The applicant and the complainant had a heated argument at their residential address.  The applicant grabbed the complainant around her waist and tackled her to the ground.  Police attended the address and observed the complainant was crying and shaking, and her grey jacket was ripped at the front pocket. 
12.  	The remainder of the charges concerned less serious wilful damage and contravention of a domestic violence order offences on 4 August 2021 and 29 August 2021, and two breach of bail conditions.”
The Sentence Imposed
[6]	The applicant’s outline summarises the sentence imposed as follows:-
“6.  	On 6 April 2022, the applicant was convicted on his own plea of guilty and sentenced before the Magistrates Court at Mount Isa as follows:
•	Charge 3 (assault occasioning bodily harm):  ordered to pay compensation in the sum of $1500;
•	On all other charges:  probation for a period of 15 months;
•	Convictions were recorded in respect of all charges.
7.  	According to the sentencing submissions, the learned magistrate was inclined to impose a compensation order in favour of the complainant for charge 2, GRT.  The amount of compensation was featured in an exchange between the learned magistrate and the applicant’s lawyer, Mr Telford [transcript 1-13 ll12-44].
8.  	Nowhere in the learned magistrate’s decision did he pronounce the order for compensation.  
9.  	The verdict and judgment record VJR recorded that a compensation order was made in the amount of $1500 to be paid within 28 days, with ‘nil default’.”
[7]	I should note that, as the Notice of Appeal and the Verdict and Judgment Record (6/4/2022) identify, the sentence imposed on the charge of common assault on 29 August 2021 was a sentence of nine months imprisonment, suspended forthwith, with an operational period of 18 months.  
Discussion of Grounds
[8]	The appellant identifies, correctly, that the learned magistrate did not pronounce the compensation order of $1500 ordered in respect of the complainant, VVP, in respect of the assault occasioning bodily harm charge from 25 July 2020, in open court, although the order appears on the verdict and judgment record dated 6 April 2022.  I note further that the verdict and judgment order does not, in fact, identify to whom the compensation was to be paid.
[9]	As the Court of Appeal identified in R v Tupou; ex parte Attorney-General [2005] QCA 179:-
“A prisoner being sentenced is entitled to hear from the judge, orally, in court, the judge’s reasons for the sentence being imposed and it is that expression of reasons to which the Court of Appeal should ordinarily attend.”
[10]	The power to make an order for compensation arises under Penalties and Sentences Act 1992 (Qld) (‘PSA’) s 35.  The making of the order, and the reasons, should both be delivered in open court.  Clearly, in the circumstances of this matter, the failure to comply with that obligation is an error of law.
[11]	The respondent, appropriately in my view, concedes that an error of law occurred.
[12]	The remedy at the Magistrates Court level, had this error been identified at that stage, was quite straightforward – either to reconvene the court, with the parties present, to pronounce the order and reasons in open court, as soon as possible after the issue was identified, or in the alternative, to reopen the matter pursuant to PSA s 188, and proceed according to law.
[13]	However, the lodging of the appeal has the effect that the matter now proceeds as a rehearing in this court.
[14]	Given that an error of law is apparent, this court has the power to deal with the appeal, without having to deal separately with the ground of manifest excessiveness.
[15]	The applicant submits that this court should, on the appeal by way of rehearing, resentence the appellant in respect of the common assault charge on which the appellant was sentenced to nine months imprisonment, wholly suspended.
[16]	The submission is that the sentence of nine months, even taking into account the learned magistrate’s implicit application of the principle in R v Nagy [2003] QCA 175, was not justifiable, for the following reasons: – 
(1)	 The appellant had no criminal history;
(2)	The appellant was a mature man, 28-29 at the time of the offences (30 at sentence);  
(3)	The appellant was employed;
(4)	The appellant had positive character references;
(5)	The charge of assault occasioning bodily harm (25 July 2020), on which the applicant was sentenced to 15 months probation (as part of the overall probation order), and ordered to pay compensation of $1500 (although, as identified, the name of the person entitled to the compensation was not articulated on the VJR), was significantly more serious (it involved a fractured bone in the foot) than the common assault charge of 29 August 2021, albeit that it was a domestic violence offence, but the facts alleged were that it was a push, and that no injuries were incurred.
(6)	In the circumstances, the appellant’s sentence on the common assault inflated that sentence above the top of the range that might have been imposed of that kind and description.
(7)	The appellant had never had the benefit of a community-based order (given, of course, that he had no criminal history whatsoever).
[17]	The respondent, while acknowledging the sentencing error with respect to the compensation order, maintains that the overall sentence construction was not manifestly excessive, relying on the persistence of the appellant’s offending over a period of in excess of 12 months, as well as the domestic violence character of the common assault.
[18]	With respect, the learned magistrate concluded that all of the offending, including the assault occasioning bodily harm, with its serious aspect of a fractured bone in the foot, could be adequately dealt with by way of a global 15-month probation order.  In those circumstances, I conclude that the imposition of a jail sentence of nine months on the common assault charge, albeit wholly suspended, rendered the overall sentence, as constructed, manifestly excessive.
[19]	However, I do consider that the order of compensation was entirely appropriate, even though the learned magistrate erred in respect of the process of that order being made.  The appropriate outcome, then, would be to order that the nine months imprisonment imposed on the common assault be set aside, and that the 15 month probation order (globally applied to all other charges) also be imposed in respect of that charge, therefore covering all charges for which the appellant was sentenced on 6 April 2022.  Further, the order in respect of compensation should be identified as payable to the complainant, VVP, in respect of the assault occasioning bodily harm charge from 25 July 2020, and should be made (or more accurately, remade), noting that it reflects the seriousness of the injury incurred, and the acknowledgement of the appellant, through his lawyer at sentence, of his willingness to pay compensation in respect of that matter.
Order
[20]	I make the following orders: –
(1)	Appeal granted.
(2)	Order that the sentence of nine months imprisonment, suspended forthwith, with an operational period of 18 months, in respect of the charge of common assault, on 29 August 2021, be set aside.
(3)	Order that the sentence of 15 months probation imposed on 6 April 2022, in respect of all charges except the common assault charge dated 29 August 2021, be amended to include that common assault charge as well as all other charges to which the appellant pleaded guilty and was sentenced on 6 April 2022.
(4)	Order that the appellant pay compensation of $1500 to the complainant, VVP in respect of the assault occasioning bodily harm charge dated 25 July 2020, and that the compensation order be referred to the Registrar, State Penalties Enforcement Registry, for recovery action.
(5)	Order convictions be recorded in respect of all charges.
[21]	It is not part of the order, but given that the appeal involved an indictable offence, as indicated, there can, of course, be no order as to costs.