RMR v Sinclair[2012] QDC 204

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 11 April 2012, the appellant pleaded guilty to breaching a domestic violence order. The learned magistrate sentenced him to 3 months imprisonment, wholly suspended for an operational period of 12 months. In this appeal against sentence, the appellant seeks instead a fine without a recorded conviction.

2. [2]
   The appellant was 25 years old at the time of the offence. He is 26 years now and has no criminal history.

3. [3]
   The domestic violence order was made at Redcliffe on 8 September 2011. It carried the standard condition^[1] and two other conditions requiring the appellant not to contact the aggrieved or approach within 100 metres of her. On 6 October 2011, the order was varied deleting the other conditions.

4. [4]
   The appellant and the aggrieved/complainant were, and still are, in a de facto relationship. The prosecutor told the learned magistrate that on 18 February 2012, at about 9.30 pm, the couple argued in the kitchen at home. The appellant became aggressive. He ripped his partner’s shirt apparently trying to strip her of it. She suffered bruising to the left upper arm. Shortly after, the appellant punched the external wall of the house, threw food onto the floor and threw her mobile phone to the floor, breaking it. He left but returned, calmer, about 15 minutes later. He became aggressive again and ripped his partner’s shirt from her body. They argued more. She told him to leave her alone or she would not see his unborn child. He grabbed her around the neck and said, ‘If you don’t let me see my daughter I’ll murder you.’ He punched her on the back left side of the head. When police arrived, the appellant admitted assaulting the aggrieved and causing damage. He said he’d made a big mistake, acknowledging he should never have hit the aggrieved.

5. [5]
   The duty solicitor, appearing for the appellant, told the learned magistrate the appellant, supported by the aggrieved who was present in court, contested certain facts as alleged by the prosecution: while the appellant admitted he threw the mobile telephone, it was not damaged; he hit the complainant with an open hand, not with a fist; though he pulled at her shirt it was not torn.

6. [6]
   The duty solicitor tendered a letter from a medical centre. In one line, it said the appellant had suffered from Autistic Spectrum Disorder and ADHD all his life. The duty solicitor also submitted:

• The appellant was reasonably young;
• It was particularly important to him that no conviction be recorded because he was about to complete ‘a special course that’s going to enable him to work in the mines’;
• The appellant’s father has worked at mines in Queensland and New South Wales, including at Mt Isa;
• The appellant was very confident of obtaining work but a recorded conviction ‘would put an end to that’^[2];
• The appellant had been employed for the past four years as a security officer with, apparently, one firm;
• The appellant and his partner had been together for two years; she has a child from another relationship; their own child was due in six weeks; they both intended to seek anger management counselling after the child was born; despite the diagnosed conditions the appellant suffered from the couple were confident they could ‘work things through’.^[3]

7. [7]
   The learned magistrate remarked:

• The offending, on 18 February 2012, came ‘not so long’^[4] after the appellant had been a number of times before the court related to managing his violence;
• Whether the appellant hit the complainant with a closed fist or a slap, ‘this was an extensive piece of violence against a pregnant woman;^[5]
• The appellant was quite right to describe the incident as a big mistake;
• The legislative purpose is to protect people from violence; and
• It is insufficient for an offender to come to court and say they don’t want a conviction because they want to get a job at the mines – there are more important matters to consider;
• The letter from the doctor does not justify the violent behaviour;
• The only appropriate penalty is a term of imprisonment;
• The community has an interest in the family’s protection.
• A conviction is, necessarily, recorded.

8. [8]
   On appeal, the appellant submitted that, although the principle that a sentence of imprisonment should be imposed as a last resort did not apply,^[6] the learned magistrate failed to take into account:

• the appellant’s lack of criminal history: Penalties and Sentences Act 1992 s. 9(4)(g);
• his relatively young age and good character as demonstrated by his employment history: s. 9(4)(h);
• the appellant’s admissions to police and expression of remorse implicit in his statement that he had made a big mistake: s. 9(4)(i);
• the letter from the doctor: s. 9(4)(j).

9. [9]
   The appellant also complains that the learned magistrate failed to provide reasons for a sentence of imprisonment in breach of s. 10; failed to take into account the absence of criminal history in the assessment of the appellant’s character; failed to take into account the plea of guilty in reduction of the sentence or, alternatively, failed to state reasons for not reducing the sentence on account of the plea: s. 13; failed properly to consider whether a conviction should be recorded: s. 12.

10. [10]
    The appellant referred to Commissioner of Police v RTC [2009] QDC 376 and RAS v Commissioner of Police (No. 1) [2011] QDC 366 in support of the outcome urged, a fine without a recorded conviction 

11. [11]
    The respondent concedes that the learned magistrate made little express reference to the principles and provisions referred to by the appellant but submits the sentence was within the appropriate exercise of discretion because the breaching incident – an assault on a pregnant woman – was protracted and included serious threats, personal violence – grabbing the throat and hitting the head, and left the complainant with bruising. The background necessarily included domestic violence sufficient to warrant the order. The appellant also punched a hole in the wall.

12. [12]
    The respondent argues the magistrate had sufficient regard to the appellant’s character and circumstances and was obviously aware of his statement to police that he had made a big mistake; the letter from the doctor was so brief as to be useless to the magistrate; sufficient reasons for the sentence were given including the remark that it was ‘an extensive piece of violence against a pregnant woman’; the recording of a conviction followed upon the sentence; the magistrate’s error in not stating that she took into account the plea did not affect the sentence.

13. [13]
    The main purpose of the Domestic and Family Violence Protection Act 1989 is to provide for the safety and protection of a person in the case of domestic violence.^[7] The order made against the appellant was made to achieve that purpose in his relationship with the complainant. The breach carries, in this case, a maximum penalty of 40 penalty units or 1 year’s imprisonment.^[8] The making of an order is a serious matter.  Orders should not be made lightly. Breaches involve, as the learned magistrate said, community as well as personal concerns.

14. [14]
    Her Honour was, with respect, right to consider this a serious example of a breach of an order. Still, I am driven to the conclusion that the learned magistrate was wrong to conclude that the only appropriate penalty was a term of imprisonment. In the result, the penalty imposed was excessive.

15. [15]
    At 25 years old, the appellant was not particularly a young offender. But his character, properly assessed, stands him in good prospect of rehabilitation. He has no criminal history. He has worked for a security company for 4 years. More than simply coming to court asking for no recorded conviction on account of a desire to work in the mines, he had taken steps to qualify for such work and enjoyed the benefit of his father’s connection to and experience of mine work. The glib medical statement offers no comfort to a court attempting to assess prospects of rehabilitation or degree of criminality. But taken with the information that his partner, the complainant, supported him at court and both intended to seek anger management counselling, the medical statement tends towards reducing culpability and promising improvement.

16. [16]
    I am not satisfied the learned magistrate mistook the facts upon which sentence was to be passed. Except for the ‘ripping’ remarks, her Honour carefully stated the facts according to the appellant’s qualification of the prosecution summary.

17. [17]
    An appeal court will be slow to conclude a sentencing court failed to take a matter into account simply because the judicial officer did not expressly refer to the matter. The proceeding was short. Her Honour had just heard the submissions. Her Honour is experienced and may be taken to be completely familiar with the provisions of the Penalties and Sentences Act referred to by the appellant. So, her Honour’s failing to mention the appellant’s lack of criminal history is not decisive. Her Honour, having concluded that a sentence of imprisonment was required, had no occasion to consider the provisions of s. 12 of the Act.

18. [18]
    Because of:

• the appellant’s plea of guilty, coming after a statement to police signifying at least regret if not remorse, and
• the lack of criminal history and a good work record with prospects of future employment;
• the support of the complainant and the expressed resolve to work at the relationship,

I think the proper outcome in this case was a probation order. Such an order would strengthen the order made under the DVFPA by the supervision of the appellant and, presumably, the oversight of counselling programs and medical treatment. It would best produce the results envisioned in the purposes of the DVFPA, while still carrying a deterrent threat to the appellant and others in the prospect of re-sentencing upon breach. 

19. [19]
    Subject to the appellant’s consent to such an order, I would allow the appeal, set aside the magistrate’s order, and order the release of the appellant under the supervision of a probation officer for a period of 2 years subject to the conditions set out in s. 93(1) of the Penalties and Sentences Act 1992. Having regard to the matters set out in s. 12 of the PSA, particularly the appellant’s antecedents and medical diagnosis and the prospect that a conviction might adversely affect his chances of gaining employment, I would not record a conviction.