R v Davies [2002] QCA 29

Court of Appeal (Qld)|2002-02-15|Before: Jersey CJ, Williams JA, Douglas J

The application should therefore proceed today, albeit that only the Director of Public Prosecutions is represented in person before the Court. We have, needless to say, carefully considered all of the written material.

The submissions made to the learned sentencing Judge covered both the question whether any compensation should be ordered, and if so, as to the amount. As to the former matter, raised in the context of Ferrari [1997] QCA 73; (1997) 2 Queensland Reports 472 and Schemmell v. Pomeroy (1989) 50 South Australian State Reports 450, the Judge took the view that even though the damage to the cycle was the direct result of the actions of James, it would not have occurred but for the earlier taking of the cycle in which the applicant was immediately involved.

The amount of the compensation ordered is however excessive to an extent warranting adjustment. The Court cannot reliably approach the assessment of compensation in a case like this on a purely arithmetical, precise basis. For a start, some of the amounts put before the Judge were said to be approximate. In addition, what is in this case fair compensation should to a degree reflect the circumstance that the applicant was not personally involved in the damaging of the vehicle even though the basis for ordering compensation against him has in law been established.

The most reliable approach is to work from $5000 as the established market value of such a cycle and deduct the amount recovered, $1500, and $2000 as the approximate amount of the offsetting debt. Some consideration may be allowed for the circumstance that the cycle was apparently restored with some elaborateness, suggesting the particular cycle may have been worth more than $5000, but on the other hand, some reduction should be contemplated to reflect the applicant's not having been directly responsible for the damaging of the vehicle.

The amount which should fairly have been ordered in respect of compensation on the basis of this necessarily imprecise approach should in my view be set at $2000. The difference between that amount and the amount actually ordered, $3500, is sufficient to warrant adjustment on appeal.

I would allow the application for leave to appeal against sentence to the extent of varying the order made with respect to compensation by deleting the amount of $3500 and substituting the amount of $2000.

The orders made in the District Court on 30 April 2001 should in all other respects remain unaltered.

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