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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
BKA v Commissioner of Police  QDC 10
COMMISSIONER OF POLICE
Magistrates Court at Richlands
19 February 2020
14 February 2020
Byrne QC DCJ
MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 222 of the Justice Act 1886 (Qld) – where the applicant was charged under s 177(2)(b) of the Domestic and Family Violence Protection Act 2012 (Qld) and sentenced to 6 months imprisonment cumulative on the terms of imprisonment he was then serving – whether the Magistrate erred by not inviting submissions on a cumulative sentence – whether the Magistrate failed to take into account the totality when setting the parole eligibility date – whether the Magistrate erred by setting a parole eligibility date at the full-time date of the appellants current sentence – whether the sentence imposed was manifestly excessive.
Domestic and Family Violence Protection Act 2012, s 177(2)(b)
Justices Act 1886 (Qld), s 222,
Penalties and Sentences Act 1992, s 9(1)(a), s 156A, s 160B (3), Schedule 1
Allesch v Maunz (2000) 203 CLR 172, followed
Fox v Percy (2003) 214 CLR 118, followed
House v The King (1936) 55 CLR 409, followed
McDonald v Queensland Police Service  QCA 255, followed
R v Bahcehan  QCA 278, followed
R v Baxter  QCA 235, followed
R v Cunningham  QCA 321, cited
Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679, followed
L. Olafsson for the Applicant
H. Mangione for the Respondent
Legal Aid Queensland for the Applicant
Director of Public Prosecutions (Queensland) for the Respondent
Principles concerning the conduct of the appeal
The factual background.
The parties’ arguments
- (1)The appellant was convicted on 23 September 2019 by a Magistrate, on his own plea of guilty, of one offence of Contravention of a Domestic Violence Order pursuant to section 177(2)(b) of the Domestic and Family Violence Protection Act 2012. He was sentenced to a term of 6 months imprisonment, cumulative on the terms of imprisonment he was then serving, and his parole eligibility date was then set as 10 February 2021. One day of pre-sentence custody was declared as time already served under the sentence. The maximum penalty for the offence is 120 penalty units or 3 years imprisonment.
- (2)He has appealed against that sentence. His Notice of Appeal alleged only that the sentence was “manifestly excessive”. He was represented on the appeal by a solicitor, whose outline of argument alleged that there were three specific errors, namely
“(a)The learned Magistrate erred by not inviting submissions on a cumulative sentence;
- (b)The learned Magistrate failed to take into account the totality when setting the parole eligibility date; and
- (c)The learned Magistrate erred by setting a parole eligibility date at the full-time date of the appellants (sic) current sentence.”
- (3)The appellant also maintained that the sentence imposed was excessive.
- (4)The submissions were largely directed at the point in time which was selected for the parole eligibility date, although it was also contended that the head sentence should have been ordered to be served concurrently.
- (5)There was no objection to the apparent widening of the grounds of appeal, and the respondent joined issue with those grounds. Accordingly, I heard the matter on the basis that they were in fact the grounds of the appeal.
- (6)The appeal has been brought pursuant to section 222 of the Justices Act 1886, and hence is by way of rehearing on the record. Neither party sought leave to adduce further evidence, although the appellant did provide a copy of his criminal history which, although tendered at the hearing below, was not marked as an exhibit. This was received without objection, understandably.
- (7)On an appeal by way of rehearing, it is necessary for me to consider the evidence and make up my own mind about the effect of it, particularly where any inferences are to be drawn from primary facts. The onus is held by the appellant to show that there is some error in the decision under appeal. Further, as this is an appeal against the exercise of a discretion, the well-known principles from House v The King (1936) 55 CLR 409 at 505–506 are engaged.
- (8)The appellant was aged 38 years at the time of the offending and at sentence. He has an unenviable criminal history dating back to 1996. He has been imprisoned on numerous occasions for drug offending and offences of violence, and has been re-sentenced on numerous occasions for breaching bail, suspended sentences and an intensive correction order.
- (9)The sentence imposed most recently prior to the sentence under appeal requires some elucidation. On 5 September 2018 the appellant committed two offences of assault occasioning bodily harm, each of which were averred to be domestic violence offences. The commission of those offences breached a previously intensive correction order and a separate suspended sentence. He pleaded guilty to that offending on 14 February 2019. Sentences of 18 months imprisonment, concurrent on each other, were imposed. The 6 months suspended sentence was activated in full and ordered to be served cumulatively on the other terms of imprisonment, as was 146 days remaining on the intensive correction orders. A parole release date was nominated as 18 June 2019, and 149 days of pre-sentence custody was declared as time already served under the sentence.
- (10)The nett effect of those sentences seems to have been that the appellant was serving an overall period of imprisonment of 2 years and 146 days, resulting in a full-time release date of 10 February 2021 and a parole release date of 18 June 2019.
- (11)He was released on parole on that latter date, and committed the present offences 11 days later. The magistrate was told that a Protection Order under the Domestic and Family Violence Protection Act 2012 had been taken out on 6 September 2018 (it seems, as a result of the offending on 5 September 2018) nominating the appellant’s former partner as the aggrieved and he as the respondent. He had been served with a copy of the order. One of the conditions required that he, inter alia, not remain at or enter certain named premises. The offence was committed when he went to those premises and argued with the aggrieved over mobile phones. The aggrieved was clearly scared; police had been called and when they arrived she was hiding in a manhole in the ceiling. The appellant told police, when they located him the next day that he understood the terms of the Protection Order and admitted having gone to the address and arguing with his former partner. The appellant’s parole was cancelled on 1 July 2019.
- (12)He was sentenced for this conduct on 23 September 2019, and I have already mentioned the orders made. The effect of them was to add 6 months to the period of imprisonment he was already serving. As the offences were committed on parole, and given that the appellant’s parole had been cancelled, the Magistrate was obliged to order a parole eligibility date, rather than a parole release date. The effect of the orders was to delay that date by roughly 20 months.
- (13)The appellant submitted that the failure to refer to the possibility of imposing a cumulative sentence amounted to an error, relying on the observations of Keane JA in R v Cunningham  QCA 321, pages 5-6. The other asserted specific errors were inextricably intertwined with the proposition that the sentence imposed was excessive. The thrust of the submissions was that once issues of totality were taken into account, the sentence was excessive and this Court should interfere with that sentence. The appellant also emphasised that there had been a period of about three months pre-sentence custody that could not be declared as time already served under the sentence.
- (14)The appellant sought orders that the head sentence be served concurrently with the period of imprisonment he was currently serving, and that a parole eligibility date be set at the date of the hearing.
- (15)The respondent accepted that there had been a specific error in the failure to invite submissions on the imposition of a cumulative sentence, but submitted that a consideration of issues of totality revealed that the sentence imposed was not excessive in all the circumstances.
- (16)The offence before the Court was not a scheduled offence, and so the imposition of a cumulative sentence was not mandated by section 156A of the Penalties and Sentences Act 1992. Given the offending occurred whilst on parole, and very shortly after being granted parole, it could be ordered as a matter of principle, but was not mandated.
- (17)I accept that, in the circumstances of this matter it was an error to impose the cumulative sentence without having first invited submissions as to that possibility.
- (18)The appellant was legally represented at his sentence hearing. His lawyer had sought a sentence of 6-9 months imprisonment wholly suspended. The Magistrate raised his concerns about imposing another suspended sentence given the appellant’s past history of breaching such orders, but did not raise the possibility of ordering that the term be served cumulatively on the current period of imprisonment. In my view, had the Magistrate done so it would inevitably have elicited submissions as to the appropriate point for parole eligibility. It cannot be said it was an error without consequence.
- (19)It however does not follow that, in the exercise of my consideration of the matter as a rehearing, I must conclude that the imposition of a six month cumulative term of imprisonment is inappropriate. The offence was one that obviously affected the safety and welfare of the aggrieved person, although the appellant did not inflict any actual physical violence on her on that occasion. Nonetheless, in light of the fact that the offending occurred so soon after the appellant had been released on parole for offending involving the same woman, and in light of the need for specific deterrence given the appellant’s history for breaching Court orders when given to him, I consider that a head sentence of 6 months cumulative on the period of imprisonment the appellant was already serving is appropriate.
- (20)I recognise that in arriving at an appropriate head sentence, consideration should be given to the fact that the appellant had spent about 3 months in custody and which could be declared as time already served. That of course was the product of his offending causing his parole to be cancelled. Nonetheless I recognise that the effect is, in practical terms, to result in a sentence higher than the six months I propose to impose. Given the various features of the offending, and recognising that the maximum penalty is 3 years imprisonment, I consider it to be appropriate in all the circumstances.
- (21)I have not reached the same view as to the parole eligibility date. The extension of the parole release date by about 20 months was, in my view, excessive and especially so in light of the head sentence of 6 months. On that basis alone it would have amounted to sufficient grounds to allow the appeal.
- (22)The effect of the sentence under appeal is that the appellant will be required to serve roughly 2 years and 11 months of continuous imprisonment (ignoring the 12 days he was released on parole) with a parole eligibility arising after about 2 years and 5 months.
- (23)One of the difficulties in considering issues of totality is that I do not have the facts of the assault occasioning bodily harm offences for which the appellant was sentenced on 14 February 2019 before me. I can deduce that the same aggrieved person was the complainant in those matters and that they were objectively of sufficient seriousness to warrant concurrent sentences of 18 months imprisonment each. On that basis I conclude that they were relatively serious examples of the offending.
- (24)The relevant provisions of the Penalties and Sentences Act 1992 do not require that the new parole eligibility date must be calculated as some proportion of the period of imprisonment. Hence, there is nothing wrong in principle with a parole release or eligibility date being past the halfway mark of the overall period of imprisonment where considerations of breach of parole are involved, but the sentence imposed must always reflect the totality of the overall offending and be just in all the circumstances. In my opinion, the lengthy deferral of the parole eligibility date in this case to a point close to the overall period of imprisonment fails to reflect the few matters in the appellant’s favour in the present matter; namely his plea of guilty, that he inflicted no physical violence and that he had served about 3 months of pre-sentence custody that could not be declared as time already served under the sentence.
- (25)It is now roughly 5 months since the subject sentence was imposed. In the circumstances I am prepared to accede to the appellant’s submission, in so far as it relates to the timing of parole eligibility, although the new eligibility date will be the date of delivery of this judgment and not the date of the hearing. That is consistent with the approach taken by the Court of Appeal in similar circumstances, as I understand it.
- (26)I note that the appellant did not make any submissions as to costs.
- (27)In the circumstances I order:
- Appeal allowed.
- Set aside the order of the sentencing Magistrate of 23 September 2019 only in so far as it relates to the appellant’s parole eligibility.
- Instead it is ordered that the appellant be eligible for parole on the date of delivery of this judgment.
- All other orders of the sentencing Magistrate are confirmed.
- There be no order as to costs.
Paragraph 12 of the appellant’s Outline of Submissions.
Paragraph 11.1 of the appellant’s Outline of Submissions.
Fox v Percy (2003) 214 CLR 118 at -; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at , ; McDonald v Queensland Police Service  QCA 255 at .
Allesch v Maunz (2000) 203 CLR 172 at ; McDonald v Queensland Police Service, ibid.
Section 160B(3) of the Penalties and Sentences Act 1992.
Penalties and Sentences Act 1992, Schedule 1.
R v Bahcehan  QCA 278, especially at  and .
R v Baxter  QCA 235 at ; R v Davis  QCA 139 at .
Section 9(1)(a) of the Penalties and Sentences Act 1992.
- Published Case Name:
BKA v Commissioner of Police
- Shortened Case Name:
BKA v Commissioner of Police
 QDC 10
19 Feb 2020