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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
SH v Queensland Police Service  QDC 247
QUEENSLAND POLICE SERVICE
Magistrates Court at Brisbane
2 December 2019
29 November 2019
Clare SC DCJ
1. The Appeal is allowed.
2. The recording of a conviction is set aside.
3. The sentence imposed on 14 January 2019 is otherwise affirmed.
4. The respondent is to pay the appellant $1,800 by way of costs.
APPEAL AGAINST SENTENCE – ERRORS OF FACT – SENTENCE EXCESSIVE – RECORDING OF A CONVICTION – where the appellant was convicted upon his plea of guilty to a contravention of a protection order – where the issue was the recording of a conviction – where the Magistrate misapprehended material facts – where no violence was alleged – where the appellant was middle aged with no history of domestic violence – where the appellant had a long record of community service – where a conviction would risk his continued employment – whether his history of seeking help for alcoholism and anxiety was a mitigating or aggravating factor
Penalties and Sentences Act 1992
Domestic and Family violence Protection Act 2012
J Feely for the appellantK McFarlane for the respondent
Fuller & White Solicitors for the appellantOffice of the Director of Public Prosecutions for the respondent
- The appellant pleaded guilty to one charge of contravening a domestic violence protection order. He was fined $750 and a conviction was recorded. This is an appeal against the severity of the sentence, specifically the recording of the conviction.
- The circumstances of the offending are very unusual. There was no allegation of harm of any kind caused by the appellant, either at the time of the contravention or any time earlier. The gravamen was the contravention of a police instruction to leave the home and stay away. The appellant had returned to recover a work laptop.
- Her Honour indicated this was a flagrant breach by a man with untreated domestic violence issues. The record demonstrates a misunderstanding about material circumstances of the offence and the appellant’s antecedents. The exercise of the sentencing discretion miscarried and ought to be considered afresh.
- At sentence, a brief statement of the facts was set out by the prosecutor, with some expansion by the defence. The court also had an earlier report recording the appellant’s version of his relationship with the aggrieved ten months prior to the offence, as well as a body of character references. The prosecution did not take issue with any of those things.
- The appellant was a middle aged man with a minor criminal history. There were two entries for personal drug use: one 25 years ago and the other five years ago. In 2015, he contravened a direction and obstructed a police officer.
- A bundle of references spoke highly of the appellant’s character, his contribution to the community, his dedication to social justice issues and his personal sacrifices to help vulnerable people in need. He was a qualified social worker who ran a large not for profit organisation, with high level responsibilities for people, funding and budgets. He worked long hours from home. He formed a romantic relationship with the aggrieved early in 2016. In 2017 she started working for him. In January 2018 they set up house together. They lived and worked together for about ten months.
- The appellant was passionate about his organisation and took pride in its work. The aggrieved on the other hand, exhibited a poor attitude to work and had been openly defiant of attempts at performance management. She would accuse the appellant, her line manager, of being controlling and micro managing. When they began cohabiting, she would stay out drinking most nights, leaving her young son at home. She would become aggressive at perceived criticism. The appellant’s nature was avoidant rather than confrontational. In January 2018, he started psychological therapy for severe stress, anxiety and depressed mood relating to the pressures of work and the dysfunctional relationship. At sentence, the appellant’s solicitor used the term “volatile” without any further details being given to the court by either side.
- The court was told the appellant was a recovering alcoholic. Records showed he had pursued regular alcohol counselling sessions with the Metro North Mental Health Alcohol and Drug Service from 2016 into 2017, and from mid-2018 (five days before the Protection Order was made) to the present. His doctor noted that the appellant “has struggled for the best part of 2018 battling his alcoholism and has made efforts to address his problem. He is fully aware of his situation and feels that this has contributed to his present situation and also has played role (sic) in his continued struggle.”
- The appellant’s Blue Card was suspended when he was charged. His professional endeavours were in the areas of homelessness, mental health and substance abuse. He had had involvement with domestic violence programs. He had been with his current employer for almost ten years. He was a board member of the Youth Advocacy Centre. The sentencing magistrate was told the recording of a conviction “is going to have a very significant impact on his employment.”
The circumstances of the offence
- The protection order was made on 5 July 2018. The appellant did not appear. He was served with the order on 28 July 2018. The relevant condition was that he stay away from the place the aggrieved was living, except with her written consent. The aggrieved immediately gave her written consent and the couple continued living together in their home for a further three months.
- The breach occurred on 30 October 2018. On that day the appellant was directed to leave home because “he was no longer welcome at the address.” It was not alleged he had done anything untoward. Under the protection order he could only remain with the aggrieved’s consent. She no longer wanted him there. He learned of that through the police. He left his home almost immediately. He had only a few personal items. Twenty minutes later he returned for his laptop. As he well knew, under the terms of the protection order, he was not allowed to return without fresh written consent. He did not have it.
- Police found the appellant at the house. Details of his conduct are limited. The prosecution simply said that according to the aggrieved, the appellant “had returned and was refusing to leave, yelling at her about the domestic violence order.” The defence told the court the appellant had gone to retrieve his work laptop, there was an altercation and he was waiting for a taxi when the police arrived. Neither side offered further details of the “altercation” or the yelling about the domestic violence order.
- There was no further incident. The appellant never returned to the aggrieved despite her repeated requests for a reconciliation.
- It was common ground that a fine was appropriate. The issue was whether a conviction should be recorded. The prosecutor acknowledged no violence was involved and the appellant had no history of similar offending, but contended a conviction ought to be recorded because of the age, criminal history and “blatant disregard” of a court order within a short time of a police direction. The defence solicitor stressed that the appellant had never previously been before a court for domestic violence offences, “this entire incident has been a massive deterrent for him” and a recorded conviction would have “a very significant impact on his employment.”
The approach of the Magistrate
- The sentencing magistrate stressed the need to ensure that the home is a safe haven for victims of domestic violence. She repeatedly referred to the appellant’s initial refusal to leave when requested by the aggrieved. In fact, the appellant had not refused. The prosecutor had expressly noted that the aggrieved had not asked the appellant to leave. When police told him he was not welcome, he promptly left.
- Her Honour noted “voluminous references” for the appellant’s otherwise good character, but was dismissive about the potential loss of employment. She said: “I understand the impact of the recording of a criminal conviction on a person’s history and at 44, so should SH (sic). Which is cogent reasons (sic) why you comply with police who direct you to go and not to come back.” Earlier she had made these points: “That is a flagrant breach, having had the intervention of police. And I don’t think that gravitates (sic) towards an exercise of discretion that would merit the not recording of a conviction. This is the…sixth time your client has appeared before the court.”
- Her Honour obviously regarded the number of entries on the criminal history as a significant factor for the recording of a conviction. Previous convictions will often be an aggravating factor, but the history had limited relevance here. It reflected low level offending that was dated and of a different nature. It was a history consistent with substance abuse issues. It did not include domestic violence. The most recent entry was the most relevant. It was for assault or obstruct police. It is the only offence on the history for which a conviction was recorded. It was committed more than three years before the present offence.
- Her Honour suggested the appellant was resistant to rehabilitation, lacking both insight and motivation to reform: “Even according to the psychologist, he vilifies the aggrieved. There is no counselling in relation to being a perpetrator of domestic violence: ‘It’s all her fault.’ That’s concerning. The absence of candour about the alcohol dependence, also concerning. The tailing–off of the alcohol dependence counselling, also an issue.”
- Her Honour’s listed concerns appear to be misconceived. Firstly, this was not a case of an offender wrongly blaming the victim. As Her Honour noted, the psychological report pre dated the offence. It was written months before the protection order was even made. At that earlier time, the appellant had given his account of the aggrieved’s behaviour in a treatment setting, when seeking Ms Laing’s professional help to cope with the difficult relationship. He had no obvious motivation to misrepresent the situation at that point. Nor is there any evidence that he did misrepresent it. The prosecutor did not challenge the appellant’s version of the aggrieved’s behaviour. Nor did she allege the appellant had ever acted poorly towards the aggrieved at, or before, the time of Ms Laing’s report in February 2018. It follows that the only wrongful act specified by the prosecution was the return to the house on 30 October 2018 to recover the laptop, and yet her Honour criticised the appellant for “the lack of candour in the various reports” and his failure to seek assistance as a perpetrator of domestic violence. Her Honour thereby seemed to consider that Ms Laing’s report reflected badly on the appellant, whereas, it actually offered some insight into the dynamics of the couple’s relationship and the broader context for the offence. It documented eight months before the offence, that the appellant was suffering symptoms of anxiety, depression and severe stress from the relationship and work. It listed assertive, even aggressive, behaviours by the aggrieved towards the appellant. It established that the appellant had sought help to cope. None of those things were disputed by the prosecution.
- Her Honour’s second criticism concerned the failure to seek out rehabilitation as a perpetrator of domestic violence. The known facts however did not demonstrate a need for it. It was an isolated incident. It did not involve violence or the apprehension of violence. It did not involve a malevolent intent. The appellant went back to get the laptop he needed for work, after he had been evicted without warning. He should have waited to recover the laptop through the police. The disregard of the order was the gravamen of this offending. The appellant had presented at the house and he yelled something about the order. It was not suggested he had insulted or demeaned or threatened the aggrieved. Of course, yelling can itself be intimidating, but no adverse impact was alleged here. The aggrieved did not claim to feel unsafe or upset by the appellant’s contravention. Furthermore, the prosecutor did not identify any prior, or subsequent, concerning behaviour. She did not allege the appellant had ever been violent towards the aggrieved or had a problem with anger management. There would be many cases where psychological harm, or at least fear of the offender, could be readily inferred. This however was a different case. No inference of harm arose here given the nature of the contravention, the prior evidence of the couple’s relationship and the fact that the prosecution did not identify any other concerning incident.
- There was the fact that a protection order had been made. The rules of evidence do not apply to domestic violence proceedings and the standard of proof is the balance of probabilities. Even so, in the circumstances of this case, I do not think the sentencing court could reasonably infer that the appellant had previously committed domestic violence against the aggrieved. This particular protection order was determined in the absence of the appellant. The existence of the order indicated an earlier Magistrate had accepted that the appellant had probably previously committed domestic violence against the aggrieved and that a protection order was desirable to protect her, having regard to the principle that the safety of people who fear domestic violence is paramount under the legislation. It was however a decision made on untested evidence of an unknown kind. It could have been made on hearsay. Moreover, the prosecutor did not purport to rely on any aspect of the earlier circumstances, or note any adverse aspect of the appellant’s general conduct towards the aggrieved.
- Her Honour’s third criticism was a diminishing frequency in appointments with the Biala substance abuse service. Her Honour also criticised the lack of candour about alcohol abuse. The criticism appears misplaced. Domestic violence is frequently associated with substance abuse, but in this case there was no allegation that the appellant had been drinking at the time of the contravention. The respondent’s submissions confirmed “there is no suggestion alcohol played a role in the offending.” Furthermore the appellant’s personal issue with alcohol was only before the court because of his efforts to address it. He was a person who acted on his own initiative. He probably did downplay the alcohol issue to Ms Laing at the beginning of 2018, but there was more updated information. According to Dr Gregg, his regular doctor, the appellant “struggled for the best part of 2018 battling his alcoholism and has made efforts to address his problem. He is fully aware of his situation and feels that this has contributed to his present situation and also has played role (sic) in his continued struggle…Steven has self-initiated treatment for his alcoholism through Biala Alcohol Services…” The records of Biala show the appellant returned to Biala in July 2018.
- The misunderstanding about the circumstances of the offence and antecedents means the exercise of the sentencing discretion miscarried. As the only issue is the recording of the conviction, this court needs to consider the discretion afresh. The discretion to record or not record a conviction is conferred by s 12 of The Penalties and Sentences Act 1992. Pursuant to ss (2) the court must consider all relevant circumstances of the case, including the nature of the offence, the offender’s character and age, and the impact upon his economic or social well-being or chances of finding employment. The court may consider the risk of reoffending, the impact on rehabilitation and the effect on the community of not recording a conviction or allowing the offender to conceal the offending. The recording or non-recording is part of the total sentence. “The combined effect of the orders needs to be looked at before a court decides that a sentence is appropriate.”
- Domestic violence is a matter of great concern to the community. Perpetrators should be accountable for their actions. The disruption to the lives of those aggrieved should be minimised. Where the parties had shared a home, a condition excluding the respondent is designed to enable the aggrieved to feel safe in her own home. To have that effect the ouster condition must be enforced. Recognition of those important principles however does not mean that all contraventions are the same. As the respondent conceded, this offender’s contravention was low level. It was not of the character commonly associated with the contravention of a protection order. It was an isolated incident. Harm was neither intended nor suffered. There were other extenuating circumstances. In addition, there were favourable antecedents. The appellant had pleaded guilty. He had reasonable insight. He had a history of accessing services for self-improvement. He had a strong record of contributing to the community. His prospects of continuing to positively contribute were otherwise good. At the time of sentence it was uncertain whether he would be able to continue in his work with a conviction. His blue card had been suspended, meaning a relevant regulating body was already aware of the matter. On appeal, Mr Feely referred to the inherent stigma that attaches to a conviction for this offence. It is however ten months since the conviction was recorded. No fresh evidence was offered on the appeal which suggests the concerns about employment have not materialised. Further there is the fact that the appellant already had a conviction recorded on his criminal record, although it did not have the same degree of social repugnance as a contravention of a protection order.
- In my view the balance of those circumstances would tend to weigh against recording a conviction. There is then the additional consideration of totality. A substantial fine was imposed. Of itself that was adequate punishment to meet the purposes of sentencing for this level of offending, by this particular offender. The recording of a conviction was not needed. It follows I would remove it.
- The appeal is allowed.
- I make the following orders:
- The Appeal is allowed.
- The recording of a conviction is set aside.
- The sentence imposed on 14 January 2019 is otherwise affirmed.
- The respondent is to pay the appellant $1,800 by way of costs.
Transcript 1-8 L30, Exhibit 2 (certificate of Dr Gregg dated 23 November 2018, Letter of Dr Gregg dated 6 December 2018).
Letter of Dr Gregg dated 6 December 2018.
Transcript 1-6 L46.
Transcript 1-3 L13.
The court was told the pair had argued about the aggrieved’s drinking on the weekend. The next morning, she called the police and revoked her consent through them.
Transcript 1-3 L19.
Transcript 1-6 L10.
Transcript 1-6 L35.
Transcript 1-6 L46.
Decision Page 2: eg “police having been called because you refused to leave when requested to do so by the aggrieved.”
Transcript 1-3 L10; Decision Page 2 L35.
Decision Page 2 L7.
Transcript 1-6 L30.
Transcript 1-5 L40.
Penalties and Sentences Act 1992 s 9(10).
Transcript 1-7 L5; Decision Page 2 L40.
Decision Page 2 L40.
Psychological report of Jenny Laing dated 12 February 2018.
Domestic and Family Violence Protection Act 2012 s 145.
See Domestic and Family Violence Protection Act 2012 ss 4 and 37.
See Domestic and Family Violence Protection Act 2012 s 145.
Respondents outline of submissions filed 19 September 2019, page 5.
Letter of Dr Gregg dated 6 December 2018.
 R v Briese; Ex Parte the Attorney General (Qld) 1997 92 A Crim R 75, p3.
Ibid per Thomas and White JJ.
Domestic and Family Violence Protection Act 2012 s 3(1).
Domestic and Family Violence Protection Act 2012 s (4).
Applicant’s supplementary outline of submissions filed 29 November 2019, page 7.
See Penalties and Sentences Act 1992 s 9.
- Published Case Name:
SH v Queensland Police Service
- Shortened Case Name:
SH v Queensland Police Service
 QDC 247
02 Dec 2019