DISTRICT COURT OF QUEENSLAND

1. [1]
   On 24 April 2009 the respondent pleaded guilty in the Ipswich Magistrates Court to breaching a domestic violence order on 21 March 2009 [contrary to s 80 of the Domestic and Family Violence Protection Act 1989].  He was fined $400 and no conviction was recorded.

2. [2]
   The appellant has appealed against this sentence on the following grounds:

1. (1)
   That the learned magistrate erred in its application of The Queen v Forrester [2008] QCA 12 in failing to take into consideration the material facts of the offending; and

2. (2)
   The sentence imposed by the learned magistrate was manifestly inadequate in all of the circumstances.

Facts

3. [3]
   The respondent and the aggrieved were and still are involved in an intimate relationship.

4. [4]
   On 19 January 2009 a domestic violence protection order was granted in the Ipswich Magistrates Court and served on the respondent on 24 January 2009. That domestic violence protection order was to run for two years from 19 January 2009.

5. [5]
   On 23 March 2009 at 1.40 am police were called to a disturbance at an address in Cross Street, Raceview. On arrival there the police saw the aggrieved in the front yard of the residence with a laceration to his head and blood on his head, face and chest. They also noticed a number of household items on the lawn and a vehicle in the driveway in a damaged condition.

6. [6]
   Police spoke with the aggrieved who advised that he and the respondent were partners. They had attended a party in Yamanto earlier in the evening. The aggrieved had left the party early in the evening and went home. The respondent arrived later and an argument occurred.

7. [7]
   During the course of the argument the respondent began to throw property around the house and out the window on to the front lawn. He retrieved a knife from the kitchen and presented it to the aggrieved and then began swearing and yelling and demanded that the aggrieved leave. The aggrieved exited the house after being struck in the face by the respondent. He went out into the front yard and the respondent threw a kettle at him and then struck him with a hat stand in the head causing the stand to break. Finally he retrieved a rock from the garden and threw it through the window of the aggrieved’s vehicle shattering the window.

8. [8]
   The respondent then returned to the house while the aggrieved contacted the police. The respondent admitted to striking the aggrieved and throwing the kettle but declined to comment on how the property and the vehicle were damaged.

Sentence Hearing

9. [9]
   On 24 April 2009 the respondent entered a plea of guilty in the Ipswich Magistrate’s Court. In sentencing the respondent the learned magistrate said

“I therefore cannot sentence you on the basis that you committed an assault or for damage of any kind as R v Forrester is clear authority that I can’t load up the facts on a less serious offence and punish you for the facts which would, by themselves constitute a separate and more serious offence.

Therefore taking out the facts that anything got broken and that anybody got assaulted, I suppose what I am left with is that you carried on in a childish fashion having a tantrum and throwing things around the house and out the windows.  I have to ignore the fact that anything might have broken when it landed or hit the walls or anything like that.  I can take into account that you threw things around, I can take into account that you intimidated and frightened the person who is the aggrieved person, I can’t take into account that you struck them or caused any injury to them.  So its very artificial, the sentence that I sentence you on today given that I have been told those extraneous facts.  I have put all of those matters out of my mind.” 

10. [10]
    The facts led by the prosecution at sentence were not in any way disputed by the respondent’s legal representatives. It is conceded by the respondent in his outline that the magistrate has erred in his application of The Queen v Forrester [2008] QCA 12 in failing to take into consideration material facts of the offending.

Application of principle in The Queen v Forrester

11. [11]
    The Domestic and Family Violence Protection Act 1989 is an act established “to provide for protection to a person against violence committed or threatened by someone else if a spousal, intimate, personal, family or informal care relationship exists between the persons”.

12. [12]
    It provides that a person who has had domestic violence committed against them can apply for a protection order [temporary or otherwise] against the spouse to the Magistrates Court. Section 17 provides that:

“If a court makes a domestic violence order –

1. (a)
   the respondent must be of good behaviour and must not commit acts of domestic violence or associated domestic violence; and

2. (b)
   the respondent must comply with any other conditions imposed by the court and set out in the order.”

13. [13]
    Domestic violence is defined under s 11(1) of the Act as follows:

“Domestic violence is any of the following acts that a person has committed against another person if a domestic relationship exists between the 2 persons - 

1. (a)
   Wilful injury.

2. (b)
   Wilful damage to the other person’s property;

3. (c)
   Intimidation or harassment of the other person;

4. (d)
   Indecent behaviour to the other person without consent;

5. (e)
   A threat to commit an act mentioned in paragraphs (a) to (d).”

14. [14]
    Section 80 provides that a respondent spouse must not contravene a protection order made under the Act. If the spouse breaches the order they are liable to a fine of up to 40 penalty units or a maximum of 12 months imprisonment.

15. [15]
      R v Forrester was a decision of the Court of Appeal in relation to sentences imposed for burglary and indecent assault.  During the course of sentencing for those offences the sentencing judge took into account the fact that the appellant had taken the handbag of the complainant and proceeded to harass her and stalk her after the offences had been committed.  The judge described this as a circumstance of aggravation demonstrating a lack of remorse when sentencing for the burglary and indecent assault.  In coming to the conclusion that the court should not have taken into account that subsequent behaviour, the court quoted with approval a passage in R v D [1995] QCA 329 from the judgment of Fitzgerald P and Byrne andWhite JJ at 51:

“1. Subject to the qualifications which follow:

(a) a sentencing judge should take account of all the circumstances of the offence of which the person to be sentenced has been convicted, either on a plea of guilty or after a trial, whether those circumstances increase or decrease the culpability of the offender;

(b) commonsense and fairness to determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing principles (CP Merriman at 593, R v T at 455); and

(c) an act, omission, matter or circumstances within (b) which might itself technically constitute a separate offence is not, for that reason necessarily excluded from consideration.

2. An act, omission, matter or circumstances which it would be permissible otherwise to take into account may not be taken into account if the circumstances were to establish;

(a) a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted;

(b) a more serious offence than the offence of which the person to be sentenced has been convicted; or

(c) a “circumstance of aggravation” (Code s 1) of which the person to be sentenced has not been convicted; i.e., a circumstance which increases the maximum penalty to that which the person is exposed.

3. An act, omission, matter or circumstance which may not be taken into account, may not be considered for any purpose, either to increase the penalty or deny leniency; and this restriction is not to be circumvented by reference to considerations which are immaterial unless used to increase penalty or deny leniency, e.g. (context) or the (relationship), between the victim and the offender, or to establish, for example, the offenders “past conduct”, (character), (reputation) or that the offence was not an (isolated incident), etc.”

16. [16]
    The court then went on to conclude that the harassment of the complainant by use of telephone was not sufficiently proximate in time to constitute part of the offence of which the appellant was convicted.

17. [17]
    In R v D the court carefully analysed the development of the law in relation to fact finding on sentence.  In that context it is important to bear in mind that the court was dealing with an appeal from a sentence of indecent dealing with a child under 16 after trial and after acquittal on a number of other more serious offences of incest. The trial judge sentenced D on the single count but took into account a finding of fact that he had engaged in a course of conduct with the complainant. The court noted at p6:

“It has been accepted in Queensland that, while there might be cases in which the sentencing judge ought sentence on the least culpable view of the facts, he or she is otherwise free to make findings of fact for the purpose of sentencing provided that such findings are supported by the evidence and consistent with the jury’s verdict: R v Haselich [1967] Qd R 183; R v T [1993] 1 Qd R 454 at p459; and see Kingswell v R (1985) 159 CLR 264 at p276 per Gibbs CJ, Wilson and Dawson JJ, pp 283,284 per Mason J; Skillin (1991) 53 A Crim R 311; Savvas v R (1995) 69 ALJR 564. Judicial findings of fact for this purpose are not considered to conflict with the “fundamental principle that questions of fact affecting the liability of an accused to punishment should be decided by a jury when the trial is on indictment”: Kingswell at p280, per Gibbs, Wilson and Dawson JJ; R v Meaton (1986) 160 CLR 359, 367 per Brennan and Deane JJ ( dissenting); cf R v De Simoni (1981) 147 CLR 383.”

18. [18]
    In arriving at the principles referred to above in R v D the court indicated that it was attempting to summarise the principles which emerged from the decisions in the High Court in De Simoni and subsequent cases. The principles that were enunciated emphasised the fact that it is unfair for an accused person to be sentenced on the basis of offences forming part of a pattern of conduct for which he has not been charged, convicted or even brought before a jury.

19. [19]
    In De Simoni (1981) 147 CLR 383 the High Court examined the question of sentencing where there was a circumstance of aggravation not alleged on an indictment despite the provisions of s 582 of the Western Australian Criminal Code (as it then was) which mandated that where a circumstance of aggravation exists it must be charged (s 564 of the Criminal Code (Qld) is identical in it’s terms and s 47 (4) of the Justices Act is an analogous section).

20. [20]
    The court in De Simoni was dealing with a case of robbery where the complainant was assaulted by the applicant by being hit over the head with a piece of wood resulting in a wound which required stitching.  A circumstance of aggravation under the Criminal Code of Western Australia included where a person is armed with a dangerous or offensive weapon or instrument or if at, or immediately before, or immediately after the time of the robbery, he wounds or uses any other personal violence to any person.

21. [21]
    In that case the High Court found that, although a circumstance of aggravation must be charged in the indictment if it is to be relied upon as increasing the penalty that might otherwise be imposed, where the act which could constitute a circumstance of aggravation is also an element of the offence then the judge may take that into account in sentence as long as he is not to be sentenced on the basis of the circumstance of aggravation without it being charged in the indictment. In his judgment the Chief Justice Gibbs (with whom Mason and Murphy JJ agreed) noted at paragraph 17:

“[17] The application of s 582 leads to difficulty in some cases of robbery.  Under s 391, it is an element of the offence that the offender has used or threatened to use actual violence to any person or property.  Under s 393 circumstance of aggravation is that the offender wounds or uses any other personal violence to any person.  In my opinion there is no difference between using actual violence to any person, and using personal violence to any person…

[18] If an offender has been convicted of robbery, and the indictment charges that he used actual violence to any person, it is obvious that the trial judge, in imposing sentence, may have regard to the actual violence that was used, notwithstanding that it would also constitute personal violence within s 393.  On the other hand, if the actual violence used resulted in wounding, the trial judge should not take the wounding into account unless it has been charged in the indictment, for the wounding is purely a circumstance of aggravation and not an element of robbery simpliciter.

[19] For these reasons it was not correct for the Court of Criminal Appeal to take the view that the trial judge, in imposing sentence, should have disregarded the fact that the respondent had used actual violence to the person of his victim, since that was an element of the offence with which he was charged and to which he pleaded guilty.  On the other hand their Honours were correct in taking the view that it would not have been right for the trial judge to have had regard to the fact that the respondent had wounded his victim.  However, in my respectful opinion the trial judge did not increase the sentence which he imposed because of the fact that the victim was wounded.  He expressly mentioned that that circumstance of aggravation had not been charged, and then went on to refer to the facts in a way which shows that he treated the use of the actual violence as a matter which warranted substantial punishment.  However, the manner in which he mentioned the fact that the victim was wounded – in relation to the act of the applicant in washing the wound - does not indicate that he relied upon the wounding in deciding upon the sentence.”

22. [22]
    Brennan J in his judgment (with whom Wilson J agreed) talked of the function of the sentencing court generally at paragraph 17:

“[17] …It is a rule of sentencing practice that an allegation made but not admitted or otherwise proved against an offender cannot be taken into account in passing sentence upon him.  Ordinarily, a contest upon an issue of fact is resolved by the sentencing judge after hearing evidence relating to that fact if the fact has not been determined by a jury verdict and if the fact is of sufficient importance to justify a hearing.  But where statute provides that a particular issue is susceptible of resolution by the verdict of a jury, a sentencing judge cannot deny an offender his right to a jury trial of that issue, and himself assume the function of finding the facts.  Where there is a contest as to a circumstance of aggravation which might have been alleged in an indictment and submitted to a jury’s determination, but which was not so determined, the judge cannot impose sentence on the footing that the circumstance of aggravation has been established.  The Court of Criminal Appeal so held when it reduced the sentence in R v Bright (1916) 2 KB 441.  Darling J., delivering the Court’s judgment, said (1916) 2 KB at pp 444 to 445 that a judge “must not attribute to the prisoner that he is guilty of an offence with which he has not been charged – nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation”. (and cf Lovegrove v The Queen (1961) TAS SR106; Reg. v Huchison (1972) 56 CRAPPR 307 at p 309).  Where there is a contested issue of fact affecting the sentence which ought to be imposed it would be wrong to deny an offender the right to have a jury’s verdict upon the contested issue, and to sentence him as though the issue had been resolved adversely to him.  But where adverse facts are admitted and no resolution of a contested issue is required the offender is denied no right and loses no safeguard if the agreed facts are taken into account in passing sentence upon him.

[18] If in cases where the facts are agreed, artificiality would conceal or distort the true circumstances of the offender’s conduct, the administration of criminal justice would be at risk.  Unless statute clearly compels the adoption of artificiality in sentencing it should be avoided, for it distorts the weighing of the factors material to the exercise of a sound discretion.  Sentencing evokes much judicial anxiety and rightly so; and it would not be in the public interest (nor often times in the interest of an offender) to make the task of sentencing more difficult by requiring the judge to leave out of account the uncontested circumstances of the case before him.”

23. [23]
    De Simoni was considered by the High Court in Kingswell v The Queen (1985) 159 CLR 264 wherein the court explored the relationship between s 80 of the Constitution and the requirement for trial by jury on indictable offences.  In that case the court highlighted the right to trial by jury on serious offences upon which indictments are presented and that that should not be diminished by findings of fact on sentence.

Conclusion

24. [24]
    Whilst Forrester’s case does at first blush seem to be authority for the proposition that the court should not take into account any act which could be charged separately as a more serious offence, an analysis of the facts of the case and the previous authorities upon which it is based seems to suggest that this principle is not always applicable in summary matters.

25. [25]
    Three factors relevant to the offence of breach of domestic violence orders emerge from an analysis of the cases:

• Firstly, the principle underlying the need to take into consideration matters constituting an offence and attendant circumstances for sentencing purposes is dependent upon the principle that where an offender has been sentenced for an offence and there are within the circumstances placed before the court on sentence a more serious offence or conduct aggravating the offence, the defendant has a right to trial by jury to decide the matter where the charge proceeds on indictment. 
• Secondly, the sentencing court may take into account on sentence all circumstances which are elements of the offence for which the person has been convicted regardless of whether they might also constitute a separate offence and, depending on the proximity to the offence, may take into account matters that may otherwise be separately charged.
• Thirdly, where the facts of the sentence are not in dispute it would be wrong to take an artificial approach to sentencing as it may distort the sentencing process.

26. [26]
    In this case the court was dealing with a summary matter and therefore the court was the arbiter of both the law and the facts and the facts of the breach were not in dispute.

27. [27]
    On a consideration of a breach of a domestic violence order the court is required to take into account the acts that constitute the breach. The terms of a domestic violence order include a condition that the respondent spouse must be of good behaviour and must not commit acts of domestic violence or associated domestic violence. Domestic violence is defined as including wilful damage to the spouse’s property, wilful injury, intimidation or harassment of the spouse. The fact that an assault or damage to property may have occurred whilst breaching the domestic violence order simply forms part of the narrative of the act of domestic violence constituting the breach in the way that actual violence performs part of the elements of robbery. The respondent could have been charged with assault or wilful damage as a result of this offending but it does not mean in my view that the learned magistrate is required to ignore those facts on sentence. That is not what was decided in R v D or followed in R v Forester.  To exclude those acts from the sentencing process was to adopt an unnecessarily artificial view of matters which affected the weighing of all relevant factors in the exercise of the sentencing discretion.

28. [28]
    Accordingly, the learned Magistrate in my view did not apply the correct test to the issue of fact finding on sentence. The Magistrate was entitled to take into account the assault and the damage that occurred during the breach of domestic violence although he was required to sentence bearing in mind that the maximum penalty for breach of domestic violence is 12 month’s imprisonment.

29. [29]
    The respondent should therefore be resentenced for the breach of domestic violence order. The respondent has no previous convictions and no traffic history. He was, at the time of sentence, 34 years of age and in full-time employment. There were no lasting injuries for the aggrieved person and they remain in a committed relationship. The maximum penalty for the offence is one year’s imprisonment or 40 penalty units.

30. [30]
    Whilst this is a serious example of breach of domestic violence, it is not an offence which requires imprisonment particularly since it is his first breach of a domestic violence order and his first appearance before the court and therefore can be seen to be out of character. He pleaded guilty thereby showing remorse and he made admissions to police at the scene. In my view it is appropriate that the fine originally imposed should be increased to take into account the more serious factual matrix as outlined by the prosecutor. However, taking into account his previous good character a conviction should not be recorded.

ORDER

The appeal is allowed. The original sentence is set aside and instead the respondent is fined the sum of $1000 to be paid by 1 March 2010. In default of payment within that time I order that the matter be referred to the State Penalties Enforcement Register.  No conviction is recorded.