CDL v Commissioner of Police[2024] QCA 245

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  On 5 July 2024, the applicant was convicted, on his pleas of guilty, of five charges of contravening a domestic violence order.  He was sentenced to two years’ imprisonment on the charge last in time, with lesser concurrent terms of two, four, six and twelve months’ imprisonment imposed on each of the other four charges.  His appeal to the District Court, on the ground that the sentence was manifestly excessive, was dismissed.  He now seeks leave to appeal to this Court, under s 118(3) of the District Court of Queensland Act 1967 (Qld).  The principles governing the grant of leave are well-established.  Relevantly, given that the applicant has already had the benefit of two judicial hearings, leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.^[1]
2. [2]
   In support of his application for leave to appeal, the applicant contends that the learned District Court judge erred in failing to find that two years’ imprisonment was not excessive, having regard to the totality of the applicant’s offending (ground 1), and that her Honour erred by failing to find that the sentence was disproportionate to the gravity of the offending conduct, due to the sentencing Magistrate placing too much emphasis on the applicant’s criminal history (ground 2).^[2]
3. [3]
   The applicant, who was 38 at the time of the Magistrates Court sentence, was in a relationship with the complainant for a short period of time; about two and a half years, it was said, at the time of that sentence in July this year.  It is to be inferred that he behaved badly towards the complainant from the outset.  A protection order under the Domestic and Family Violence Protection Act 2012 (Qld) was made on 24 March 2022, requiring that he be of good behaviour towards the complainant and not commit domestic violence against her.  That order was varied on 31 March 2022, to include a requirement that the applicant not contact, follow or approach the complainant.  It was varied again on 21 April 2022, to slightly reword the conditions.^[3]  The protection order was expressed to continue in force for five years, to 24 March 2027, and has the following requirements:

1. “(1)
   That the respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.

2. The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved by any means whatsoever including telephone, text or internet.

3. The respondent is prohibited from following or remaining or approaching to within 100 metres of the aggrieved when the aggrieved is at any place.”

4. [4]
   Prior to the offences the subject of the current proceeding, the applicant contravened that order 13 times, in each case involving the same complainant.  It is to be kept in mind that some form of domestic violence has taken place prior to this, in order for a protection order to have been made in the first place.  The contraventions were as follows:^[4]

   1. On 29 March 2022 (“[t]here was a verbal argument, it did include some abusive language.  Pushed aggrieved with forearm to ribs, and also pushed into bonnet of car”); and
   2. On 13 May 2022 (“a verbal argument and breach of no contact condition”).

He was convicted of those offences (and drug offences) on 20 May 2022 and fined $1,750.

3. On 1 April 2022 (“abusive language in breach of no contact”).

He was convicted of that offence (and breaches of bail) on 2 August 2022, fined for the breaches of bail and not further punished for contravening the domestic violence order.

4. On 2 September 2022, also committing an offence of assault occasioning bodily harm on this occasion (“breach of no contact” and “struck with closed fist in the face on the nose”);
5. On 5 September 2022 (“breach of no contact, being at residence and sending text messages”); and
6. On 6 September 2022, also committing an offence of common assault on this occasion (“no contact, verbal argument, common assault, at residence and it involved a push to the chest and pushed into wall”).

He was convicted of those offences on 31 October 2022, and sentenced to five months’ imprisonment, suspended for 12 months (after serving the 44 days he had served in pre-sentence custody).

7. On 12 December 2022, also committing offences of possessing drugs on this occasion (“breach of no contact, parties at Bribie Island together for the day”).

He was convicted of those offences on 1 February 2023.  He was sentenced to a cumulative term of three months’ imprisonment (with 52 days’ pre-sentence custody declared).  He was found to have breached the suspended sentence previously imposed, and ordered to serve that sentence.  He was released on parole on the date of sentence.

8. Between 7 June and 11 June 2023, and again on 11 June 2023 and also 24 June 2023 (variously, breach of “no contact”, verbal argument, threatening to take property of the aggrieved).

He was convicted of those offences on 11 August 2023 and sentenced to two months’ imprisonment (with 44 days’ pre-sentence custody declared), and given immediate parole eligibility.

9. Between 26 December 2023 and 3 January 2024 (“again breach of no contact, alleged 216 calls made”), between 5 February and 8 February 2024 (“no contact, breach of, at shops together and Snapchat messages”, and again on 8 February 2024 (breach of “no contact, being at residence”).

He was convicted of those offences on 12 February 2024, sentenced to six months’ imprisonment, and given a parole release date of 9 April 2024.

5. [5]
   The offences the subject of the current proceeding are five further contraventions of the same domestic violence order.  Relevantly:

   1. Charge 1: 15 December 2023 – breach of condition three of the order, by going to the complainant’s home.  The agreed facts suggest the complainant had sent the applicant a message inviting him over, but then revoked the invitation.
   2. Charge 2: 5 January to 12 January 2024 – breach of condition two of the order, by calling the complainant 55 times over this period, and leaving numerous voice messages including one telling the aggrieved to “[j]ust fuck out of my life now”.
   3. Charge 3: 11 January 2024 – breach of condition two of the order, by texting the complainant five times, with abusive and denigrating messages.
   4. Charge 4: 10 April 2024 – breach of condition two of the order, by calling the complainant three times.  In one of the calls (just before 8 pm), the applicant said to the complainant “[y]ou are fucked and I am coming to get you”.  He made another call about ten minutes later, saying “[y]ou know who this is” before hanging up.

These four breaches were reported to the police on 12 April 2024.

5. Charge 5: Between 22 and 25 April 2024 – breach of condition three of the order, by being with the complainant at her home.  The agreed facts record that they “have had sexual intercourse which the defendant has recorded on an unknown device.  During the recordings, the defendant and aggrieved can be identified.  [At some stage] the aggrieved has sent recordings of the intercourse to a third party (witness) along with images of text messages between herself and the defendant…  On the 26^th of April 2024 the witness attended Chinchilla Police Station where she reported the matter…”.

6. [6]
   Police spoke to the applicant on 27 April 2024 about these matters.  He was subsequently charged, arrested and returned to custody.  He then served 70 days in custody until 5 July 2024, when he was convicted of the five offences above, and sentenced to two years’ imprisonment.  Those 70 days were formally declared as pre-sentence custody.
7. [7]
   Relevantly, the first three offences were committed prior to the applicant’s appearance in the Magistrates Court on 12 February 2024.  The remaining two were committed in breach of his parole order.  Significantly, the fourth offence, which was regarded as the most serious by the Magistrate, was committed the day after the applicant was released from custody on parole under a sentence of imprisonment imposed for identical offending.  The applicant’s prior history of contravening the domestic violence order, his persistent unwillingness to comply with that order, the need for personal and general deterrence, as well as prevention of further domestic violence and protection for the complainant, led to the Magistrate imposing the overall penalty of two years’ imprisonment, with parole eligibility after one third, having regard to the applicant’s guilty plea.  With the declaration of 70 days’ pre-sentence custody, the applicant is eligible for parole on 26 December 2024.
8. [8]
   The sentence of two years was imposed on charge 5, but it is clear from the Magistrate’s sentencing remarks (and the submissions) that it was intended to reflect the combined criminality of all the charges.  On the appeal to the District Court, there was an issue whether a factual error had been made.  That argument was rejected and is not repeated here.  In dismissing the applicant’s appeal against the sentence, the learned District Court judge said:

“My conclusion is that firstly, his Honour did not misunderstand the facts, and secondly, he attached the head sentence to the last contravention not because his Honour saw it as the most serious contravention, but because his Honour intended to reflect the combined criminality of the charges through the final episode of offending. Furthermore, that last contravention was no means a trivial one. It was committed in defiance – not only of the protection order, but also parole – and it reinforced the need to further deter [the applicant]. The time already spent in custody and the threat of a return to custody had failed to deter [the applicant] from further contraventions.

He was a determined offender with a sustained contempt for protection orders. The five contraventions, in combination, were protracted and concerning. For any protection order to work, it must be enforced. That means firmly deterrent sentences for substantial contraventions. The flagrant breaches were disturbing. [The applicant’s] contempt for domestic violence orders – and his attitude to his partner were entrenched. There are 15 domestic violence charges on his record.

The Court had dealt with him for the same aggrieved six times before his Honour sentenced him. Indeed, in the midst of the present offending, he was sentenced to six months’ imprisonment for similar offending. After serving two months in prison, he was released on parole. As I say, the threats and the visit to the house were while he was on parole. The period of offending only ended when he was taken into custody. And notwithstanding the precariousness of his position, he was bold enough to make those threats to the complainant.

The maximum penalty for the offences is five years’ imprisonment. The Magistrate’s discretion extended to three years’ imprisonment. The important purposes of sentencing for this offending were to punish [the applicant] for what he had done and to deter him and to deter others from future defiance of protection orders. I am not persuaded that the sentence of two years’ imprisonment for the totality of this conduct was excessive.”

9. [9]
   The applicant seeks to persuade this Court either that a specific error has been made – by imposing a penalty which is disproportionate to the gravity of the instant offending, having regard to his criminal history – or, otherwise, that error should be inferred because the outcome is unjust or unreasonable.
10. [10]
    In my view, neither argument should be accepted.
11. [11]
    The relevant offence is contravening a domestic violence order; that is, failing to comply with, or breaching, the conditions of an order, which has, by its very nature, been put in place to prevent particular behaviour which is dangerous and causing harm to the person entitled to the protection of it.  The maximum penalty for doing so the first time is 120 penalty units or three years’ imprisonment.  The maximum penalty for doing so a second time, within five years, is 240 penalty units or five years’ imprisonment.  Here, the applicant has now committed the offence 18 times, in the space of less than two years.  He has been fined, then imprisoned on four separate occasions, and has still not been deterred.
12. [12]
    Section 177 of the Domestic and Family Violence Protection Act 2012 (Qld) provides, relevantly:

1. “177
   Contravention of domestic violence order

1. This section applies if a respondent against whom a domestic violence order has been made—

1. was present in court when the order was made; or

2. has been served with a copy of the order; or

3. has been told by a police officer about the existence of the order.

2. The respondent must not contravene the order.

Maximum penalty –

1. if, within 5 years before the commission of an offence against this subsection, the respondent has been previously convicted of a domestic violence offence^[5] – 240 penalty units or 5 years imprisonment; or

2. otherwise – 120 penalty units or 3 years imprisonment.”

13. [13]
    The penalty under s 177(2)(a) was increased from three years to five years in 2015.^[6]  That was considered justified due to the seriousness of the offence, “particularly where there is a pattern of domestic violence behaviour involved”.^[7]  Both the language of s 177(2), and the legislative intention just referred to, support the conclusion that, in this context, the fact that the offender has previous convictions for precisely the same offence is a particularly aggravating factor,^[8] which must be reflected in the penalty imposed.  It was entirely appropriate for the courts below to place significant weight on the applicant’s previous convictions for contravention of the domestic violence order.  In doing so, they did not fall into the error of, in essence, imposing an additional penalty for past offences.
14. [14]
    In this regard, it is important to keep in mind the principle as articulated by the majority in Veen v The Queen [No 2] (1988) 164 CLR 465 at 477-478:

“… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] A.C. 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.” [emphasis added]

15. [15]
    As Cooper J observed, in R v Aston (No 2) [1991] 1 Qd R 375 at 381, the reference to the opinion of Lord Donovan in R v Ottewell [1970] AC 642 at 650 “is illuminating in that it shows firstly that there are limits to which progressively harsher sentences may be imposed as a punishment or for the protection of society, and secondly, the purposes for which increasingly harsher sentences may be imposed”.  His Lordship said:

“… judges have always (and I think rightly) felt themselves entitled to deal with a persistent offender by increasing the sentence they would have passed if he were not. This is not to punish the offender again for his past crimes. Nor is it always primarily for the protection of the public. It may simply be because in the judge’s view the sentences passed for previous offences have proved to be an insufficient deterrent and that the effect of a longer sentence must be tried, perhaps in the offender’s own interests. Or, it may be that repetition has itself increased the gravity of the offence. Eventually, in some cases, a stage is reached where it becomes clear that progressively increasing sentences are not a deterrent; and the protection of the public against a persistent offender then comes to the forefront of the considerations which the judge must take into account…” [emphasis added]

16. [16]
    In the circumstances of this case, each of the emphasised points above applies: the applicant’s previous convictions demonstrate his continuing attitude of disobedience and disregard for domestic violence orders; it illuminates his moral culpability and shows his dangerous propensity, as well as demonstrating a need to impose condign punishment to deter him, and others, from similar offending; previous sentences imposed on him, including of actual imprisonment, have proved an insufficient deterrent, and it is appropriate for a longer sentence to be tried.  This is a case where repetition has increased the gravity of the offence.  In my view, it cannot be said the District Court judge erred, by failing to find the sentence imposed was disproportionate, because of the focus on the applicant’s previous convictions.
17. [17]
    Turning then to the broader contention, that the sentence should have been found to be, in any event, manifestly excessive.
18. [18]
    As long ago as 1994, this Court endorsed the importance of general and specific deterrence, as well as denunciation, in sentencing for offences of this kind, particularly by repeat offenders.  In R v Wood [1994] QCA 297, at p 5, McPherson JA and Ambrose J, with the agreement of Pincus JA, said:

“Domestic violence orders imposing restraints of the kind involved here are practically speaking the only available means of curbing in advance conduct in the domestic context that is violent or likely to lead to violence.  Unless breaches of such orders are, and are well known to be, visited with appropriate severity, they will quickly lose their value in the minds both of those who obtain them and of those who are subject to them.  Apart from orders of that kind, the ordinary criminal law, operating as it does only after the event, arrives too late to be an effective deterrent.  The wrongdoer is liable to prosecution and punishment, but only after the injury has, sometimes with fatal consequences, already been inflicted.”

19. [19]
    As a community, we know only too well the appalling truth of those observations.  As McMurdo P said, in R v Fairbrother; Ex parte Attorney-General (Qld) [2005] QCA 105 at [23]:

“Domestic violence is an insidious, prevalent and serious problem in our society. Victims are often too ashamed to publicly complain, partly because of misguided feelings of guilt and responsibility for the perpetrator's actions. Members of the community are often reluctant to become involved in the personal relationships of others where domestic violence is concerned. Perpetrators of domestic violence often fail to have insight into the seriousness of their offending, claiming an entitlement to behave in that way or at least to be forgiven by the victim and to evade punishment by society. Domestic violence has a deleterious on-going impact not only on the immediate victim but on the victim’s wider family and ultimately on the whole of society. It is not solely a domestic issue; it is a crime against the State warranting salutary punishment. The cost to the community in terms of lost income and productivity, medical and psychological treatment and on-going social problems is immense. Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour. They can expect the courts to impose significant sentences of imprisonment involving actual custody to deter not only individual offenders but also others who might otherwise think they can commit such acts with near impunity.”^[9]

20. [20]
    In arguing that the sentence of two years is manifestly excessive, the applicant emphasises the particular conduct involved in his more recent contraventions and the sentences imposed in other cases, as revealed by decisions of the District Court.
21. [21]
    As for the first point, it is fair to say the conduct resulting in the five most recent breaches did not involve actual violence.  However, the fourth breach involved a particularly menacing threat, directed at the complainant just one day after the applicant was released from custody on parole, and at a point where, having been released, he was capable of acting on that threat.  The other four breaches all involved, yet again, complete disregard for – and defiance of – the conditions of the order, by contacting the complainant or going to her home.
22. [22]
    It must be remembered that the offence under s 177(2) is constituted by contravening the domestic violence order.  In the present case, the conditions of the order are quite modest: be of good behaviour towards the complainant and do not commit domestic violence; do not contact that person; and do not follow or approach them.  That is the offence for which the maximum penalty, under s 177(2)(a), is five years’ imprisonment.  If the conduct involved in contravening the order also constitutes another offence (such as assault, or assault occasioning bodily harm), the offender should be charged with that additional offence, and expect a penalty to be imposed which reflects that crime.  The fact that an additional offence(s) was not committed, in the present circumstances, does not diminish the objective seriousness of the aptly described “flagrant breaches”, by this particular applicant, who repeatedly reoffended over the course of two years.  In the context of a maximum penalty of five years’ imprisonment, a penalty of two years, imposed to reflect the combined criminality of the five offences, by a repeat offender such as the applicant, is not unjust or unreasonable.
23. [23]
    There is some dissonance with the penalties reflected in some of the District Court decisions on appeals to that Court against sentences imposed for like offending – although, on closer analysis the disparity is less so.  For example:

    1. In NVZ v Queensland Police Service [2018] QDC 216, the District Court upheld a sentence of nine months’ imprisonment for one charge of breach of a domestic violence order, imposed on a 31 year old man, who had a substantial history of breaching domestic violence orders (on seven occasions between 2009 and 2017).  He was in custody for one of these offences when he committed the relevant offence, which was to make a serious threat against the complainant and her children, whilst appearing by video link at a hearing in relation to the protection order.  It was accepted the offender suffered a mental health condition, although this was not considered to be an overwhelming factor in the sentencing process.  I observe that the applicant’s criminal history, for breaching domestic violence orders, is worse than the offender in NVZ; and he was sentenced for five offences (not one), one of which was committed the day after being released on parole.  At the sentencing hearing before the Magistrates Court, the applicant was said to have “no mental health issues”, although “drugs have been a problem”.^[10]
    2. In RJD v Queensland Police Service [2018] QDC 147, the District Court upheld a sentence of 18 months’ imprisonment, ordered to be served cumulatively on a sentence of 15 months’ imprisonment the offender was then serving as a result of reoffending on parole, imposed on a 25 year old man for three charges of contravening a domestic violence order.  The offender in this case had a significant criminal history, of property and motor vehicle offending, breaching bail, probation orders and community service orders.  He had six prior convictions for breaching domestic violence orders.  For three of those, he was sentenced to an effective sentence of 15 months’ imprisonment.  He was on parole, and was the subject of a probation order, for like offending against the same complainant, at the time of the relevant offending, which involved: the offender struggling with the complainant on a couch and, when the complainant fell onto a mattress, pushing her with sufficient force that she fell against and broke the lounge room window; the offender leaving the house and then, after returning a couple of hours later, abusing the complainant, as well as threatening her, saying “I could get a piece of glass from the window and kill you if I wanted to”.  Emphasising the offender’s previous history and the fact of offending in breach of parole and a probation order, the judge in this case considered a sentence in the range of 18 months to two years’ imprisonment would have been appropriate.  Taking into account the effect of the cumulative order, the sentence of 18 months imposed was not found to be manifestly excessive.  The present applicant’s history of domestic violence offences is worse than RJD’s (13 charges over two years); he was dealt with for five charges, not three; whilst the applicant’s offending did not, on this occasion, involve physical violence, the threat was equally sinister and, like RJD, committed while on parole for like offending.  Having regard to the cumulative order made in RJD, there is considerable consistency between that case and this one.
    3. In YSD v Commissioner of Police [2022] QDC 92, the District Court upheld a sentence of nine months’ imprisonment, imposed on a 34 year old man, in relation to three offences of contravening a domestic violence order.  The sentence was varied by providing for release on parole (after serving five months) rather than suspending the balance of the sentence (which was the order originally made).  The offender had a substantial history for breach of domestic violence orders, all involving the same complainant, over the period from 2011 to 2019.  It is to be inferred his prior offending involved substantial physical violence, as he had been sentenced to 12 months’ (or more) imprisonment on four separate occasions (see [24]-[30]).  The relevant offending involved a breach of the no contact condition of the order (by going to the complainant’s home); directing abuse, threats and intimidation towards his 15 year old daughter; and punching the door of the clothes dryer and breaking it.  There was no challenge to the term of imprisonment imposed; the challenge was limited to the duration of the operational period of the suspended sentence (five years).  YSD’s criminal history is far worse than the applicant’s; but the subject offending is less serious than the applicant’s.
    4. In HJA v Commissioner of Police [2022] QDC 285, the District Court upheld a sentence of two years’ imprisonment, for domestic violence offending over a six week period, committed in breach of a suspended sentence imposed for like offending.  The range of offences included contravening the domestic violence order and common assault (multiple counts of both).  The offender had an appalling history, with 29 previous convictions for contravening domestic violence orders, involving four different women.  The District Court judge described the two year sentence as “well within the bounds of an appropriate exercise of sentencing discretion”, and observed that in fact the sentence was generous, given that the Magistrate could have activated the suspended sentence and ordered the later sentence to be served cumulatively.  HJA is a more serious case than the present, having regard the nature of the offending (including physical violence) and the offender’s patently worse criminal history for similar offending.  The effect of the decision is that two years’ imprisonment was not manifestly excessive; it does not follow that a more severe penalty would not have been appropriate – as was made plain by the judge in HJA.
24. [24]
    Consideration of some of the decisions on appeal to the District Court does not, in my view, support the conclusion that the penalty imposed in this case was unjust or unreasonable.  There are serious and concerning features of the present case which support the imposition of a severe deterrent penalty.  I endorse the statement, made in 1994 in Wood, of the need for breaches of domestic violence orders to be met with appropriately severe penalties, to strongly denounce this conduct, encourage compliance with such orders – in the interests of both perpetrators and victims – and endeavour to give the orders meaning, in terms of the protection they are intended to provide.
25. [25]
    It was, of course, a relevant factor that three of the offences were committed prior to the applicant being sentenced on 12 February 2024.  It was necessary, therefore, to consider totality – in particular, to take into account the sentence of six months’ imprisonment which was imposed on that day.  This was taken into account, both by the Magistrate at first instance and by the District Court judge.  Favourably to the applicant:

    1. He was given the benefit of a declaration, under s 159A of the Penalties and Sentences Act 1992 (Qld), of 70 days (between 27 April and 5 July 2024) as time served under the sentences imposed on 5 July 2024.  Given that the applicant was returned to custody as a result of breaching his parole, which saw him serve the remainder of the previous sentence imposed on him on 12 February 2024, the Magistrate was not required to declare all of that time as time served under the later sentence.^[11]
    2. He was also given the benefit of the later sentence not being ordered to be served cumulatively upon the earlier sentence, which it could readily have been.  The full-time discharge date of the earlier sentence would have been 11 August 2024.  Since the later sentence commenced on 5 July 2024, there is effectively the benefit of another month.
26. [26]
    I would not readily assume that, had the additional three offences been amongst the offences dealt with on 12 February 2024, the sentence would not have been higher.  Having regard to the factual context, in my view, it could well have been higher.  When that is factored into account, together with the benefit of just over three months as a result of the matters just referred to, in my view, it cannot be said the sentence of two years’ imprisonment, with the declaration of time served, and commencing from 5 July 2024 (not cumulatively), was unjust or unreasonable.
27. [27]
    I would refuse the application.
28. [28]
    BODDICE JA:  I agree with Bowskill CJ.
29. [29]
    BROWN JA:  I agree with the Chief Justice that the application for leave should be refused.  These are my reasons.
30. [30]
    On 5 July 2024, the applicant pleaded guilty in the Magistrates Court at Pine Rivers to five charges of contravention of a Domestic Violence Order.  Each charge was an aggravated offence.  All sentences were to be served concurrently.  The lengthiest sentence of two years imprisonment was imposed in respect of charge 5.  A parole eligibility date was set after the applicant served eight months in custody, being 26 December 2024.  Seventy days of presentence custody was declared.
31. [31]
    The applicant appealed his sentence to a judge of the District Court pursuant to s 222 of the Justices Act 1886 (Qld) (Justices Act).  The primary judge, Judge Clare SC, dismissed the appeal.  The applicant now applies to this Court for leave to appeal from her Honour’s decision under s 118(3) of the District Court of Queensland Act 1967 (Qld).
32. [32]
    While the discretion to grant leave is unfettered, in a case such as the present, the applicant, having already had the benefit of two hearings, must generally show that the judge below has made error and an appeal is necessary to correct a substantial injustice to the applicant, given that the present case does not involve any point of particular importance to public interest or an important question of law.^[12]
33. [33]
    The applicant contends that the learned District Court judge erred in two respects.  First, in not finding that the two-year sentence was excessive for the totality of the applicant’s offending conduct.  Secondly, in not finding the sentence imposed was disproportionate to the gravity of the offending conduct due to the sentencing Magistrate’s disproportionate focus on the applicant’s criminal history.  A third error raised in the application for leave to appeal was, quite properly, abandoned at the oral hearing.

Background

34. [34]
    Each of the five charges to which the applicant pleaded guilty related to contraventions of a domestic violence order dated 21 April 2022.  Pursuant to s 177(2) of the Domestic and Family Violence Protection Act 2012 (Qld) contravention of the order is an offence.  In the applicant’s case the maximum penalty was five years.  Under the Penalties and Sentences Act 1992 (Qld) (PSA), a domestic violence offence is an aggravating feature of the applicant’s offending.^[13]  Relevantly, that order provided that the applicant is “prohibited from contacting or attempting to contact... the aggrieved by any means whatsoever including telephone, text or internet” and is “prohibited from following or remaining or approaching to within 100 metres of the aggrieved when the aggrieved is at any place”.
35. [35]
    The applicant and the aggrieved have been in a relationship.  The protection order in respect of this aggrieved was first made on 24 March 2022.  Prior to the present offending, the applicant had contravened protection orders in relation to the aggrieved on 13 occasions and been dealt with by the Magistrates for those contraventions on six occasions.  The contraventions have generally been of the no contact provision.  On two occasions the breach involved physical assault in respect of the aggrieved in September 2022.  As a result, the applicant was also charged and sentenced for two common assault charges in September 2022 which were domestic violence offences.  On the last four occasions the applicant breached the domestic violence orders he was sentenced to imprisonment for periods of five months, three months, two months and six months and served time in actual custody.  He has previously breached a suspended sentence.
36. [36]
    Prior to the present offending, the applicant was sentenced on 12 February 2024 for a number of contraventions of a domestic violence order in respect of the same aggrieved.  He was sentenced to six months imprisonment with a parole release date set after two months, being 9 April 2024.  The current breaches of the domestic violence order occurred while the applicant was on parole and breached parole, resulting in cancellation of his parole.
37. [37]
    The offending the subject of charge 1 was that the applicant attended the aggrieved’s address on 15 December 2023, where the aggrieved recorded him as saying that “you told me to come down”.  The aggrieved explained that she removed the message inviting the applicant over, to which the applicant explained that he was already on his way.
38. [38]
    In relation to charge 2, the applicant called the aggrieved some 55 times between 5 January 2024 and 12 January 2024.  He left numerous voice messages and the aggrieved answered some of these calls.  At least some of the phone calls were abusive, telling the aggrieved to get out of his life.
39. [39]
    In relation to charge 3, the applicant sent five messages to the aggrieved on 11 January 2024, saying “Fuck off then you piece of shit”, “What the fuck is your problem now hey”,” Just fuck off and have another red [name of aggrieved]” and “Thanks for being such a shit cunt to me now ok appreciate”.
40. [40]
    In relation to charge 4, the applicant called the aggrieved three times on 10 April 2024, the day after the applicant was released on parole.  Each call was answered.  In the second call, the applicant said “you are fucked and I am coming to get you” and in the third call, the applicant said “you know who this is” before terminating the call.
41. [41]
    The aggrieved reported the conduct the subject of charges 1-4 to the police on 12 April 2024.
42. [42]
    The offending the subject of charge 5 occurred between 22 April 2024 and 25 April 2024.  The applicant and aggrieved had sexual intercourse, which was recorded by the applicant on an unknown device.  The aggrieved subsequently sent recordings of the intercourse to a third-party witness along with images of text messages.  That third party then attended Chinchilla police station on 26 April 2024 to report the matter.
43. [43]
    The offending the subject of the first three charges before the Magistrate occurred prior to 12 February 2023, being the date of the previous sentencing, and both parties accepted that the totality principle was a relevant consideration in the present sentence.
44. [44]
    In the course of his sentencing remarks, the Magistrate indicated that he had taken a number of matters into account, including that:

    1. the applicant entered an early timely plea of guilty;
    2. the maximum penalty for the offences, if dealt with in summary proceedings, is three years;
    3. the applicant had been sentenced on six occasions across 21 years for a total of 13 breaches of domestic violence orders against the same aggrieved, in circumstances where the past offending was very similar to the offending for which the applicant was to be sentenced by the Magistrate.  The Magistrate regarded his conduct as being “contemptuous of the court orders and of the authority of the courts to represent and protect the community and the aggrieved…”;
    4. the conduct the subject of charge 4, namely that the applicant called the aggrieved and said “you are fucked and I am coming to get you”, occurred only one day after the applicant was released on parole;
    5. the applicant’s prior history of driving under the influence of drugs and alcohol shows a lack of regard for the safety and welfare of the community;
    6. the applicant’s criminal history is lengthy and includes breaches of bail, drug offending, charges of obstructing or assaulting police and other public nuisance offences;
    7. the applicant recognised the relationship was over and had no reason to have any future contact with her;
    8. the applicant has a good work history in the civil construction industry;
    9. the first three charges occurred prior to the time of the previous sentence such that it was relevant to consider the totality principle;
    10. the fourth and fifth charges both breached his parole and meant the applicant was only entitled to a parole eligibility date;
    11. the applicant indicated an intention to engage in drug and alcohol rehabilitation programs but had not provided any evidence of steps taken to participate; and
    12. the applicant had an ability to comply with court orders but appeared unwilling to do so.
45. [45]
    The Magistrate assessed the applicant’s prospects of rehabilitation as being low.  The applicant was sentenced to concurrent terms of imprisonment for 2 months, 4 months, 6 months, 12 months and 2 years on each of charges 1-5, respectively.  The prosecution was unable to obtain a pre-sentence custody certificate ahead of sentence, but the Magistrate was prepared to proceed on the basis of the prosecution’s calculation that the applicant had served 70 days in custody.  Seventy days of pre-sentence custody was declared between 27 April and the date of sentence.  That period of time overlapped with the time the applicant was serving for the balance of the six month sentence imposed on 12 February 2024 as a result of the suspension and then cancellation of parole which followed his conviction for these further offences.  The applicant’s parole eligibility date was set at one-third of the sentence, being 26 December 2024.  The Domestic Violence Orders was extended to five years from the date of the last offence so it expired on 25 April 2029.

Appeal Below

46. [46]
    The applicant appealed to the District Court pursuant to s 222(2)(c) of the Justices Act.
47. [47]
    The grounds of appeal in the District Court were that:

    1. the sentencing discretion miscarried because the Magistrate was guided or affected by irrelevant matters; and
    2. the head sentence imposed was manifestly excessive.
48. [48]
    In relation to the applicant’s first ground below, her Honour accepted that the solicitor in the Magistrates Court had made a misstatement of fact in relation to charge 5, which was not expressly corrected by the Magistrate, which represented it as more serious offending than it in fact was insofar as it suggested that the applicant had been responsible for distributing the video taken.  However, her Honour concluded that the Magistrate had not misunderstood the facts.  That finding is not the subject of one of the grounds of the proposed appeal from her Honour’s decision.
49. [49]
    In relation to the second ground of appeal below, Judge Clare was not persuaded that two years’ imprisonment for the totality of the offending was excessive in circumstances where the applicant had demonstrated a sustained pattern of breaching protection orders against the same aggrieved.  In particular, after having set out the factual basis of the applicant’s offending, her Honour stated that:

“He was a determined offender with a sustained contempt for protection orders. The five contraventions, in combination, were protracted and concerning. For any protection order to work, it must be enforced. That means firmly deterrent sentences for substantial contraventions. The flagrant breaches were disturbing. [The applicant’s] contempt for domestic violence orders – and his attitude to his partner were entrenched. There are 15 domestic violence charges on his record.

The Court had dealt with him for the same aggrieved six times before his Honour sentenced him. Indeed, in the midst of the present offending, he was sentenced to six months’ imprisonment for similar offending. After serving two months in prison, he was released on parole. As I say, the threats and the visit to the house were while he was on parole. The period of offending only ended when he was taken into custody. And notwithstanding the precariousness of his position, he was bold enough to make those threats to the complainant.

The maximum penalty for the offences is five years’ imprisonment. The Magistrate’s discretion extended to three years’ imprisonment. The important purposes of sentencing for this offending were to punish [the applicant] for what he had done and to deter him and to deter others from future defiance of protection orders. I am not persuaded that the sentence of two years’ imprisonment for the totality of this conduct was excessive.”

50. [50]
    Judge Clare dismissed the appeal.

Proposed grounds of appeal for which leave is sought

51. [51]
    In seeking leave to appeal in this Court, the applicant relies on the following grounds of appeal:

    1. First, that Judge Clare SC erred in finding two years’ imprisonment was not excessive for the totality of the applicant’s offending conduct; and
    2. Secondly, that Judge Clare SC erred by failing to find that the sentence imposed was disproportionate to the gravity of the offending conduct due to the sentencing Magistrate’s disproportionate focus on the applicant’s criminal history.
52. [52]
    While the second error was not raised as a separate ground below before her Honour, it was raised as part of the argument that the sentence was manifestly excessive.
53. [53]
    To demonstrate the sentence was manifestly excessive, more must be demonstrated than simply that a different sentence could have been imposed of a more lenient nature in a proper exercise of discretion.  It is well established that the proper exercise of the sentencing discretion can result in more than one sentence being open.  In order to succeed on this basis:^[14]

“Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle even though where and how is not apparent from the statement of reasons.”

54. [54]
    In this regard the applicant particularly contends that the sentence was unreasonable and unjust having regard to three District Court decisions to which her Honour was referred, which were “useful yardsticks against which to determine an appropriate sentence for this offending” although not binding on this Court.
55. [55]
    As to the second ground, in considering the proper approach to sentencing, the majority in Veen v The Queen [No 2] noted “that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.  To do so would be to impose a fresh penalty for past offences”.^[15]  The majority did, however, recognise the history of past offending is relevant to show whether the instant offence is an offence for which sentences being imposed:^[16]

“is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.”

56. [56]
    In R v J; Ex parte Attorney-General, Macrossan CJ stated that:^[17]

“A principle of sentencing which is firmly established by Veen [No. 2] and other cases is that proportionality of the sentence to the circumstances of its commission must be preserved.  Apart from all else, this means that there must be conformity with the available range which will usually, but not always, appear from the range already established by sentences in other cases for offences of a similar character and from the statutory maximum.”

Was there error by the District Court Judge?

57. [57]
    It is evident from her Honour’s reasons and her reference to two years “for the totality of conduct was not excessive” that she treated the two year sentence imposed in respect of charge 5 as being the sentence which reflected the applicant’s overall criminality, rather than limited to charge 5 only.  That would appear to be a fair reading of the Magistrate’s sentencing remarks which appeared to consider charge 4 was the most serious.
58. [58]
    Her Honour and the Magistrate had regard to the maximum penalty for the offence being five years’ imprisonment with the Magistrate’s discretion limited to three years imprisonment.
59. [59]
    The applicant contends that the applicant’s conduct in offending in relation to the present offences which involved no physical offending in the contravention of the orders did not support a sentence which was four times greater than the previous sentence that had been imposed upon him.  The applicant’s Counsel contended that demonstrated her Honour had placed disproportionate weight of the applicant’s prior offending as had the Magistrate, which was further supported by the sentence being discordant with the authorities referred to her Honour as yardsticks.
60. [60]
    The learned District Court judge was required to carry out a real review of the sentence, as part of a rehearing under s 223 of the Justices Act, in considering whether the Magistrate had erred in the exercise of the sentencing discretion.^[18]
61. [61]
    It is evident from her Honour’s reasons that she placed considerable weight on the applicant’s previous offending, in particular breaches of domestic violence orders as well as the protracted nature of the present offending in breaching the domestic violence order.  Her Honour identified that protection orders only work if enforced and in the present case, deterrence, both personal and general, were an important purpose of the applicant’s sentence when determining that the Magistrate’s sentence of two years for the totality of conduct was not excessive.
62. [62]
    In the present case, as noted by Judge Clare SC, there were a number of previous contraventions of the domestic violence order against the same aggrieved, supporting her Honour’s view that “[The applicant’s] contempt for domestic violence orders – and his attitude to his partner were entrenched”.  A similar view was expressed by the Magistrate.
63. [63]
    Whether prior offending has overwhelmed the appropriate level of sentence which the circumstances dictated and is disproportionate to the gravity of the offence may be evident from a consideration of:^[19]

    1. the circumstances of the offending;
    2. sentencing principles and considerations set out in s 9 of the PSA;
    3. the maximum penalty; and
    4. where the offending sits on the scale in relation to sentences imposed on other offenders which may be said to be broadly comparable.
64. [64]
    The applicant particularly points to the fact that the present offending, unlike previous offending, did not involve physical offending, in contending the gravity of past offending disproportionately affected the sentence imposed by the Magistrate.  It must be borne in mind however that the sentence is for the non-compliance with the Domestic Violence Order.  In the present case, in order to establish a contravention of the domestic violence order itself, the prosecution need only establish that the applicant made contact with the aggrieved or being within 100 metres of the aggrieved, although the nature of the offending and how serious the offence was, including harm to the victim which constitutes the contravention, is a matter to which the Court is to have regard in sentencing pursuant to s 9(2)(c) of the PSA.  If physical offending has occurred that could found additional charges of assault in addition to contraventions of the domestic violence order as was the case with the Applicant’s offending in September 2022.
65. [65]
    A history of continued non-compliance with a domestic violence order is therefore clearly material in considering the sentence that should be imposed for the present contraventions.  Continued contraventions of a Domestic Violence Order designed to protect an aggrieved from such conduct, demonstrates a continuing disobedience of the law by the applicant as a result of which, as was stated by the majority of the High Court in Veen [No 2], “retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted”.^[20]  The present sentences were a part of a continuum of contraventions against the same aggrieved and warranted a severe sentence being imposed upon the applicant.  While the sentence imposed had to be proportionate to the present offending and not a resentencing for past offending, given the nature of the offences, it is difficult to identify any error in the sentence on the basis of a disproportionate weight on past offending in the context of the offences involved, notwithstanding it was a significant sentence.
66. [66]
    As was said by McPherson JA and Ambrose J in R v Wood,^[21] given domestic violence orders are generally “the only available means of curbing in advance conduct in the domestic context that is violent or likely to lead to violence”, unless breaches of such orders “are, and are well known to be, visited with appropriate severity, they will quickly lose their value in the minds of both those who obtain them and of those who are subject to them”.^[22]
67. [67]
    It is relevant to consider sentences imposed for comparable conduct, in considering the second ground of alleged error as well as the first ground.
68. [68]
    Authorities serve as yardsticks against which to examine a proposed sentence for the purpose of achieving broad consistency in the sentencing of offenders in broadly comparable cases.^[23]  Decisions determining that a sentence is not manifestly excessive do not mark the outer bounds of the permissible discretion or set a range of permissible sentences.^[24]
69. [69]
    Judge Clare SC was referred to a number of appellate decisions under s 222 of the Justices Act for breaches of domestic violence orders.  Each case considered whether the sentence imposed was manifestly excessive.  None were binding and each had varying degrees of comparability with the circumstances of the present offending the subject of this appeal.  Her Honour did not explicitly refer to any of the decisions in her reasons.
70. [70]
    In the case of NVZ v Queensland Police Service the appellant was of similar age to the present applicant, had breached the domestic violence order in respect of the same aggrieved on seven occasions, including three times over the previous two year period, and had breached suspended sentences.^[25]  He made a threat of serious violence to the complainant and her children in the courtroom while in custody for previous breaches of domestic violence orders for which he was sentenced to six months imprisonment with immediate parole eligibility on that day.  While the appellant in that case had a timely plea of guilty and no evidence of remorse or rehabilitation, he did suffer mental health issues which were taken into account.  After giving careful consideration to all the relevant factors and authorities, Judge Kefford in NVZ determined that the sentence imposed of nine months with an immediate parole eligibility and 36 days of pre-sentence custody declared as time served was not excessive.  The threat made by the present applicant in charge 4 was comparable to that made by the appellant in NVZ, albeit without the aggravating feature of the threat having been made while in custody and including a threat against children.  The contraventions of the domestic violence orders in NVZ extended over a longer period than the present applicant, although in relation to the sentence being considered by her Honour and the contraventions that had occurred in the previous two years, they were less than the present case.  The appellant had mental health issues which were to some extent a mitigating circumstance.  It was less serious offending than the present, given the lesser number of contraventions involved.
71. [71]
    In the course of her reasoning in NVZ, Judge Kefford referred to the case of RJD v Queensland Police Service.^[26]  In that case Judge Morzone KC found that a magistrate was not in error by sentencing a 25-year-old to 18 months’ imprisonment for each of three breaches of a domestic violence order, to be served concurrently with each other, which were also to be served cumulatively on a 15-month sentence given the reoffending occurred while on parole for breaches of domestic violence orders.  The offending the subject of the appealed sentence involved physical offending (although the offender was not charged with assault) followed by abuse and threats.  The offender had a significant criminal history with a litany of breaches of court orders.  He had been previously sentenced for two charges of contravention of a domestic violence order and common assault and four months later for three further contraventions of the domestic violence order for which he was sentenced to an effective head sentence of 15 months.  At the time of the offending the subject of the appeal he was subject to both a probation order as well as a parole order.  Like the present applicant had been returned to custody and his offending resulted in his parole being cancelled.  There was an early plea of guilty.  The Magistrate considered a case involving two years’ imprisonment to be most comparable to the applicant’s circumstances but moderated it, taking account of the fact the reoffending had occurred while on parole in sentencing the offender to eighteen months to be served cumulatively with the pre-existing 15-month sentence with parole eligibility at a third of the overall total sentence.  Judge Morzone KC had regard to the fact that the offending was of a violent nature and therefore required consideration of the principles in s 9(2A) of the PSA.  While his Honour found the Magistrate, had made an error in the course of his sentencing, Judge Morzone considered that the sentence of 18 months’ imprisonment, albeit harsh, was within the permissible range of sentences for the offences.  He found that no different sentence should have been passed in the circumstances.  While like the present case, the offending in that case was also in breach of parole, the nature of the offending constituting the contravention was more serious than that of the present applicant, insofar as it included some physical offending although of a relatively minor nature.  The present applicant had a greater number of contraventions of a domestic violence order than the offender in RJD.  The eighteen-month sentence in that case was, unlike the present case, cumulative with the sentence the offender previously had imposed.  The sentence does have some comparable features to the present.
72. [72]
    In YSD v Commissioner of Police, Judge Fantin considered whether a five-year operational period for a sentence of nine months, wholly suspended, on the most serious of three charges of breaches of a domestic violence order was manifestly excessive.^[27]  It offers little guidance to the present.
73. [73]
    HJA v Commissioner of Police was a more serious case of offending than the present case.  The appellant in that case pleaded guilty to eight counts of contravening a domestic violence order as well as other offences including six counts of common assault.^[28]  The heaviest sentence imposed was two years’ imprisonment in relation to each of two charges of contravening a domestic violence order (aggravated offence) and one charge of common assault (domestic violence offence).  The applicant had served 104 days in custody, which was declared, and a parole date was fixed after eight months of serving time in custody.  The appellant in that case commenced reoffending three and a half weeks after he had been released from custody for contravening a police protection notice made in favour of the aggrieved.  Similar to the present case, the offender had shown a complete lack of remorse and had taken no steps to rehabilitate.  Personal deterrence was significant given, like the present case, sentences of imprisonment in the past had failed to have effect.  The appellant also struggled with addiction and mental health issues.  Judge Loury KC determined that, having regard to the principles of sentencing, the two-year sentence with release after the appellant having served a third of the sentence in custody was well within the bounds of an appropriate exercise of a sentencing discretion.  Her Honour considered that deterrence, denunciation and protection of the community all supported the sentence imposed.
74. [74]
    In HJA, the appellant had a greater number of contraventions against more victims than the present applicant, being some 29 contraventions and four victims.  These contraventions involved physical assaults such that her Honour determined that it was “appropriate to treat each of the appellant’s previous convictions for contravening a domestic violence order as an aggravating factor having regard to the sheer number of previous convictions of a like nature”.^[29]  That offending in a number of cases occurred soon after the applicant had been released from custody or on a suspended sentence.  Her Honour noted that the extension of the operational period, in lieu of activating the suspended sentence or making the sentences cumulative, was a “generous option”.^[30]  The sentence of two years in that case certainly could not be regarded as at the outer limit of a sentence that could have properly been imposed in that case.
75. [75]
    Consideration of the above cases do not demonstrate that a sentence of two years was outside of the permissible exercise of discretion and unreasonable or unjust such that this Court should conclude a misapplication of principle has occurred.
76. [76]
    No case from this Court has directly considered an appeal from a sentence for contravention of domestic violence orders that is comparable to the present.^[31]
77. [77]
    Even though the head sentence was for a longer period than that imposed in NVZ and RJD, the magnitude of the applicant’s conduct, particularly given his persistence in breaching domestic violence orders,^[32] justified a sentence of two years for the totality of the applicant’s conduct.
78. [78]
    While the District Court judge did not expressly reason by reference to the authorities referred to her by the parties, it may be inferred she did give them some consideration, given they were the subject of the respondent’s written and oral submissions, in determining that the two-year sentence for the totality of the offending was not manifestly excessive in the circumstances.
79. [79]
    A two-year sentence for the totality of the offending conduct, standing alone in light of the maximum penalty being five years’ imprisonment, while severe, was not of itself disproportionate to the offending taking into account the applicant’s past history of offending for domestic violence offences as aggravating factors.  I therefore consider that ground two of the applicant’s proposed appeal has not been made out in the circumstances.
80. [80]
    As to whether the sentence was manifestly excessive, as discussed, to the extent that the cases referred to her Honour were comparable, they do not suggest the sentence is unjust or unreasonable.  However, in considering whether the sentence was manifestly excessive, consideration must be given to whether totality considerations were properly taken into account in the sentence imposed.
81. [81]
    Three of the offences in the present case occurred prior to the sentence being imposed on 12 February 2024.  That required the Magistrate, as he recognised, to consider whether the totality of the applicant’s offending prior to that date would have resulted in any different sentence.  The application of the principle required an evaluation of the overall criminality involved in all the offences with which the applicant has been charged.^[33]  While the Magistrate identified the need to consider totality, he did not specifically identify how the sentence addressed totality considerations.  That raises the question of whether Judge Clare, in carrying out a real review, could infer that the Magistrate had properly considered the totality of the sentence.  It was raised as part of the applicant’s argument that the sentence was manifestly excessive.
82. [82]
    The offending for which the applicant was sentenced in February 2024 involved two breaches of the “no contact” requirement by being at the aggrieved’s residence on 8 February 2024 and further by attending the shops with the aggrieved and exchanging Snapchat messages with her between 5 and 8 February 2024.  The offending also included conduct that between 26 December 2023 and 3 January 2024 the applicant breached the no contact requirement by making some 216 calls to the aggrieved.  The conduct which was the subject of the first three charges for which the applicant was sentenced by the Magistrate also involved breaches of the “no contact” requirement by the applicant attending the aggrieved’s residence, leaving some 55 messages on the aggrieved’s phone over a nine-day period in January and, on 11 January 2024, leaving a further 5 abusive messages on the aggrieved’s phone.  The charge relating to 216 phone calls on its face appears to be the most serious offence, including when regard is had to the first three charges the subject of the present application.  The present offending in relation to the second and third charges at least, may have led to a higher head sentence being imposed on 12 February 2024 to reflect the applicant’s overall criminality, although it is unlikely to have been significantly higher than the six months imposed.
83. [83]
    In carrying out her review, Judge Clare SC did refer to the fact that the sentence imposed on 5 July 2024 was not cumulative with the earlier sentence, which was open on the present facts.  Although concurrent sentences can be a proper exercise of sentencing discretion, even where the offences have been committed at different times, the consideration of totality requires that the judge to consider:^[34]

“whether that total effective sentence bore a proper relationship to the overall criminality involved in all the offending, viewed in its entirety, having regard to all relevant circumstances, and whether that sentence was a crushing sentence, not in keeping with the applicant’s record and prospects.”

84. [84]
    Given the parole order would automatically be cancelled as a result of the applicant’s convictions on 5 July 2024, account had to be taken of the fact that the applicant was serving the balance of the six-month sentence imposed on 12 February 2024.  That was taken into account by the Magistrate insofar as all of the 70 days spent in custody from the time that the applicant had been taken into custody on 27 April 2024 was declared as time served for the 5 July 2024 sentence.  All time was not required to be declared pursuant to s 159A of the PSA given the time was being served as part of the previous sentence as a result of the breach of parole and it may be inferred that was due to at least some part of the consideration of totality.
85. [85]
    That resulted in the total period of the sentence for the offences for which the applicant was sentenced being two years, two months and 15 days, with the applicant to serve 10 months and 15 days.  Neither the Magistrate nor the District Court judge considered whether that sentence reflected the applicant’s overall criminality.  Although in her reasons, Judge Clare SC stated she was not persuaded that “the sentence of two years imprisonment for the totality of this conduct was excessive”^[35] and noted the sentence was not cumulative with the sentence imposed on 12 February 2024, in not addressing whether the two-year, two-month and 15-day sentence represented the applicant’s overall criminality, I consider that the Magistrate and primary judge were in error.^[36]  However, the question of totality is only relevant to the ground of whether the sentence is manifestly excessive, rather than being raised as a specific error.^[37]  For the reasons set out below, I would not conclude that the sentence is manifestly excessive when proper regard is had to totality considerations.
86. [86]
    However, even where there is a specific error, there is a question of whether leave to appeal should be given and the applicant re-sentenced by this Court.  In Kentwell v The Queen the High Court stated that:^[38]

“In the case of specific error, the appellate court's power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.”

87. [87]
    Both charges 4 and 5 were serious contraventions occurring while on parole.  Charge 4, in particular, occurred the day after the applicant’s release on parole and the contact was threatening of the aggrieved.  It was a serious contravention and cannot be downgraded on the basis there was no physical contact.  It showed a complete antagonism towards the domestic violence order to which the applicant was subject.  The purpose of the order is to protect the aggrieved from such conduct.  As Judge Clare SC observed, that is not to say charge 5 was not serious, given it again breached the requirement of no contact while the applicant was subject to parole, although it was accepted that the engagement between the applicant and the aggrieved was consensual.  Both called for significant sentences to be imposed.
88. [88]
    Given the number of contraventions, both the subject of this application and the sentence of 12 February 2024, condign punishment is called for to reflect deterrence, both personal and general, and denunciation as well as imposing a sentence which is just in all the circumstances having regard to totality.  A more severe sentence is warranted given the applicant’s past history where he has engaged in protracted offending against the same aggrieved and acted with complete disregard for both the domestic violence order to which he is subject and the sentences imposed upon him previously to deter such conduct, including custodial sentences.  The complexity of his relationship with the aggrieved does not excuse or ameliorate his conduct.  If an order is in place, it must be complied with or variations sought, not disregarded.  Otherwise the very purpose of the imposing the order is undermined as stated by this Court in R v Wood referred to above.  The prevalence of this type of offending is also a relevant matter to be considered, as is the fact that a domestic violence offence is an aggravating feature.^[39]
89. [89]
    The serious nature of the offending is also evidenced by the Parliament increasing the maximum penalty for the offence of contravening a domestic violence order to five years imprisonment (if convicted of a domestic violence offence within five years before the commission of the offence) from three years in 2015.^[40]  The Parliament also inserted s 9(10A) of the PSA in 2016, providing for a domestic violence offence to be treated as an aggravating factor, unless the court considers it is not reasonable.^[41]  While the sentence imposed may be markedly different from the cases to which we were referred, it is not for the reasons set out above, outside the proper exercise of the sentencing discretion.  The applicant is a mature offender who has chosen to repeatedly disregard the orders imposed upon him.  The only relevant mitigating circumstance is the applicant’s plea of guilty.  While the time served in custody is slightly more than a third of the total sentence, that is a result of his breaching parole which has been ameliorated by the sentence being served concurrently and the declaration of time served.

90. [90]
    Having regard to all the circumstances, an appropriate sentence for the applicant’s offending, even taking into account considerations of totality, would be the same sentence.  Nor did totality considerations result in a sentence which could be regarded as unjust and excessive in the circumstances.  I do not therefore consider that substantial injustice will be caused if leave is not granted.  Leave should be refused.

Disposition

91. [91]
    I would order:

1. Application for leave to appeal is refused.