R v Kowalczyk[2021] QCA 154

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with the reasons of McMurdo JA and with the orders proposed.
2. [2]
   McMURDO JA:  The applicant was convicted, on his pleas of guilty, of two offences which were committed in the same incident against his wife.  There was an offence of assaulting her (which was a domestic violence offence^[1]) and an offence of contravening a domestic violence order.  The incident occurred on 17 October 2019 and on the following day, he was arrested and charged.  He was on remand from then until 10 August 2020, when he was released on bail after spending 298 days in prison.  From then, he was held in immigration detention.
3. [3]
   He was sentenced on 19 October 2020.  For the assault offences, he was ordered to serve a term of imprisonment of 300 days, and, at the same time, it was declared that he had served 300 days in pre-sentence custody.  (As I have said, he had served 298 days, but clearly the judge meant to impose a term which coincided with the period for which he had been in pre-sentence custody.)  On the summary offence, he was convicted but not further punished.  A conviction was recorded for each offence.
4. [4]
   He seeks leave to appeal against his sentences on the ground of manifest excess, and upon further specific grounds.  He seeks an outcome by which the order for his imprisonment would be set aside, with no punishment for either offence and no conviction recorded.  For the reasons that follow, the order for his imprisonment should be aside, but convictions should be recorded for these offences.
5. [5]
   The applicant is a Canadian citizen.  At the time of the offending, he was aged 27 and the complainant was aged 23.  They had been married for two and a half years.  In December 2017, a protection order was issued in her favour, by which the applicant was to be of good behaviour towards her and their child, and he was not to commit domestic violence against her or expose the child to conduct of that kind.
6. [6]
   On the day in question the couple argued, with the complainant accusing the applicant of being unfaithful.  In the course of the argument, he grabbed her by the arm, pulled her through a doorway and attempted to slam a door on her arm.  He then left the house.  That conduct constituted the breach of the domestic violence order.
7. [7]
   Moments later, he then returned to the house, and the couple continued to argue.  He walked towards her, grabbed her by her throat and pushed her up against a wall.  He placed his other hand over her mouth to stop her from screaming.  At the same time he was yelling at her.  Their daughter was standing nearby watching all of this.  This conduct constituted the assault offence.
8. [8]
   After the complainant left the house again, he sent a message threatening to kill her if she accused him of infidelity again.  She sought refuge with a domestic violence service and, as I have said, he was arrested and charged on the following day.
9. [9]
   At the time of the offending, he held a spousal visa which was then cancelled, resulting in his spending all of the time, since his release from prison, in immigration detention.  He has now been there for more than 340 days and he remains at risk of deportation.  There is now a second child of the couple, with whom he has had little contact having been in jail and then in immigration detention.  At the time of the sentencing hearing, it seems that he and the complainant had reconciled.  However if he is deported to Canada, it is unlikely that she and the children would be allowed to take up residence there.
10. [10]
    The applicant had what the prosecutor described as a “minor criminal history with no similar previous convictions”.  It involved some minor drug offences, and an offence of failing to appear, for each of which he had been fined with no conviction recorded.
11. [11]
    At the sentencing hearing, the prosecutor submitted that the appropriate penalty would be to impose a term of imprisonment of 367 days, which was calculated by adding to his time on remand the time which, to that point, he had spent in immigration detention.  That was an error by the prosecutor, because the period in immigration detention was not pre-sentence custody in the terms of s 159A of the Penalties and Sentences Act 1992 (Qld).  The error was recognised by the judge, who otherwise accepted the prosecutor’s submission.
12. [12]
    Her Honour rejected the submission by the applicant’s counsel that the appropriate order would be to convict the applicant, but not to further punish him, because of the time which he had spent on remand.  The applicant’s counsel had submitted to the judge that the circumstances of this offence would not have called for a period of actual imprisonment, had he not spent any time in pre-sentence custody.  The judge accepted that last submission, remarking, at the end of her sentencing reasons, that “it would have been suspended, but for the fact that he has already served that time.”
13. [13]
    The judge recognised the mitigating circumstances of the applicant’s pleas of guilty, his cooperation with police (although he had attempted to diminish the seriousness of his conduct in speaking to them), his period in custody and in immigration detention, the absence of any relevant criminal history and the hardship experienced by him in worrying that he would be deported.  On the other hand, her Honour noted, deterrence was an important consideration for offending of this kind.
14. [14]
    It can be seen, therefore, that the judge agreed with the view, which was common to the parties, that the applicant had been sufficiently punished already.  Indeed her Honour effectively said that he had been punished more than sufficiently.  The difference between the parties, apart from the question of whether convictions should be recorded, was how the intended outcome of no further punishment was to be achieved.  In my respectful opinion, the course taken by her Honour was incorrect.
15. [15]
    In this Court, it was common ground between counsel that the relevant provisions of the Penalties and Sentences Act required a further order in this case to provide for his release on parole.  That order would have made no sense in his case.  He could not have complied with the conditions of parole, when he was subjected to immigration detention and the prospect of deportation.  Secondly, no one had in mind that he should serve any period on parole.  Thirdly, he was not in custody.  He was a person who had been in custody, but who was not to be returned to prison by the orders which were made.
16. [16]
    By s 160A of the Penalties and Sentences Act, sections 160B to 160D apply if a court is imposing a term of imprisonment on an offender for an offence.  Section 160B applies if neither s 160C or s 160D applies.  Those two provisions do not apply where the offender’s period of imprisonment is three years or less and there is no term of imprisonment for a serious violent offence or a sexual offence.  Where it applies, s 160B requires the court to fix a date for the offender to be released on parole.^[2]
17. [17]
    Section 160G provides that if a court must fix a parole release date, the court may fix any day of the offender’s sentence as the release date.  As the first of the examples provided in s 160G(1) shows, the court may fix the sentencing day as the parole release date.  And by s 160G(2), if the parole release date is the date the offender is to be unconditionally released from lawful custody, the chief executive (corrective services) is not required to issue a court ordered parole order under the Corrective Services Act 2006 (Qld), s 199.
18. [18]
    Had a parole release order been made, its purported effect would have been for “the offender to be unconditionally released from lawful custody”.  The evident fiction in that order would have been in its premise that the applicant was then in “lawful custody”.  In truth, he was in immigration detention, which was not lawful custody under the Penalties and Sentences Act.
19. [19]
    It can be seen that the application of these provisions to the applicant’s case would have been awkward, to say the least.  It would have compounded the curious effect of the orders which were made by the judge.  By those orders, the applicant was ordered to serve a period of imprisonment which had already passed.
20. [20]
    These complications provided good reason to take the course suggested by the applicant’s counsel, which was for the Court to not impose any further punishment, having regard to the period of time for which he had been effectively punished.  There was a further reason for not ordering as her Honour did, which was that the sentence which her Honour imposed was, from what she said, one which was excessive.
21. [21]
    For these reasons, the order for imprisonment, should be set aside making it unnecessary for this Court to correct the small error in the specification of the period of pre-sentence custody.
22. [22]
    There remains the question of whether convictions should be recorded.  The imposition of the term of imprisonment required the recording of a conviction for the assault offence.^[3]  Absent that order, there is a discretion to not record a conviction which is conferred by s 12 of the Act.  By s 12A(2), if a conviction is recorded in relation to an offence which is also a domestic violence offence (as here), it must also be recorded as a conviction for a domestic violence offence.  By subsection (3), if no conviction is recorded in relation to the offence, the offence must be entered in the offender’s criminal history as a domestic violence offence.
23. [23]
    In considering whether or not to record a conviction, a court must have regard to all of the circumstances of the case, including (a) the nature of the offence; (b) the offender’s character and age, and (c) the impact that recording a conviction will have on the offender’s economic and social wellbeing, and chances of finding employment.
24. [24]
    The nature of these offences was serious, and the assault offence was made more serious by the fact that it was committed in breach of the domestic violence order.  The applicant had no recorded criminal history and he was relatively young.  As to the impact of the recording of convictions, it is difficult to assess from the evidence and the submissions to the judge what would be the consequences for him.
25. [25]
    It appears that he was lawfully in Australia under a spousal visa, which had been cancelled.  The judge was told that “following these charges, there is an option of reviewing that” but that “until the resolution of these charges”, the applicant was being held in immigration detention and was “at real risk of deportation”.  This Court cannot speculate about what might occur in that respect.  The recording of convictions may or may not matter for his visa.
26. [26]
    Having regard to the seriousness of these offences, and the related purpose of general deterrence, convictions should be recorded in this case.
27. [27]
    I would order as follows:

1. Grant leave to appeal.
2. Allow the appeal.
3. Set aside the order for imprisonment imposed on 19 October 2020 for the charge upon the indictment.
4. Order that a conviction be recorded on that charge but that the applicant not be further punished.

28. [28]
    APPLEGARTH J:  I agree with the reasons of McMurdo JA and with the proposed orders.