W v QPS[2013] QDC 87

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal pursuant to s 222 of the Justices Act 1886 (Q).

2. [2]
   The appeal is against the severity of penalty imposed in the Mackay Magistrates Court on 2 January 2013.

3. [3]
   The Appellant pleaded guilty to one charge of breach of protection order; one charge of assault occasioning bodily harm, and one charge of possessing a dangerous drug.

4. [4]
   The Appellant was sentenced to three months imprisonment on the breach of protection order; nine months imprisonment with respect to the assault occasioning bodily harm charge, and was fined $400 for possessing the dangerous drug (no conviction was recorded on this charge).

5. [5]
   The Appellant’s parole release date was ordered as at 1 April 2013, which means that three months actual custody was imposed.

6. [6]
   The Appellant appeals on a number of grounds as follows:

1. (a)
   The Magistrate erred in his application of Earl v Heron [2011] QDC 183;

2. (b)
   The Magistrate gave excessive weight to the Appellant’s [criminal] history and the need for deterrence;

3. (c)
   The Magistrate did not state on the record that he had specifically reduced the sentence pursuant to s 13 of the Penalties and Sentences Act 1992;

4. (d)
   The Magistrate did not consider the imposition of a suspended sentence, an Intensive Correction Order or an immediate parole release date;

5. (e)
   The Magistrate did not give adequate consideration to the Appellant’s age, employment and surrounding circumstances of the case;

6. (f)
   The correct sentence should be in line with R v Taylor [2000] QCA 311.

7. [7]
   Section 222 of the Justices Act permits a person who feels aggrieved as a defendant to appeal to the District Court.

8. [8]
   Section 223(1) provides that an appeal under s 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the Justices. 

9. [9]
   Section 225(1) provides “on the hearing of an appeal, the Judge may confirm, set aside or vary the appealed order or make any other order in the matter the Judge considers just.”

10. [10]
    In Stevenson v Yasso [2006] QCA 40 it was held that the court is required to make its own determination of the issues on the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view (see [36]).

11. [11]
    Bearing in mind this test I now turn to the circumstances of the case.

12. [12]
    I note that ground 3 is no longer relied upon by the Appellant (see letter from the Appellant’s solicitors dated 31 January 2013).

13. [13]
    Turning then to the sentencing proceeding, the bench charge sheets show that the offence of assault occasioning bodily harm was alleged to have occurred on 1 January 2013 at Sarina. The defendant unlawfully assaulted CA and did her bodily harm.

14. [14]
    The second bench charge sheet alleges that, on 1 January 2013 at Sarina in the State of Queensland, the defendant unlawfully had possession of the drug cannabis. 

15. [15]
    The final bench charge sheet alleges that, on 1 January 2013 at Sarina in the State of Queensland, the Appellant being a Respondent under the provisions of the Domestic and Family Violence Protection Act 1989 contravened a protection order made under the said Act on 19 August 2011 in the Magistrates Court at Mackay and he was served with a copy of the said order.

16. [16]
    As I have indicated, the plea of guilty proceeded on 2 January 2013 before the Mackay Magistrates Court and may be regarded as a very early plea of guilty.

17. [17]
    The Appellant’s criminal history was tendered. The criminal history discloses that the Appellant was born on 25 September 1986 and therefore was 26 years old at the time of the offences. He had previously been convicted of public nuisance on 19 August 2009 and assault occasioning bodily harm on the same date. He was fined $1,000 with compensation of $1,200.

18. [18]
    On 17 January 2011 he was dealt with in the Mackay Magistrates Court on two counts of wilful damage, failure to appear and drunk and disorderly, and was ordered to undergo 12 months probation with 100 hours community service with total restitution of $1,994.43.

19. [19]
    Finally, in the Mackay Magistrates Court on 25 May 2012, the Appellant was dealt with for breaching a domestic violence order and was fined $600. The Prosecutor submitted that the domestic violence order was issued in the Mackay Magistrates Court on 19 August 2011. The order was served on 29 August 2011.

20. [20]
    As to the facts of these matters on 1 January 2013 at about 5.10 am the complainant and the Appellant were walking down Central Street, Sarina, to the Sarina RSL club.  The Appellant asked the complainant to drive her car to Mackay but she refused.  An argument ensued with the Appellant calling her a “dumb bitch”.  The Appellant followed after her, grabbed her by the arms and tried to pull her back towards him.  He threatened her that, if she did not do as he said, he would push her head into a glass window.  She broke free of the Appellant and started walking away but was punched once by the Appellant to the right side of the jaw.  Her mouth started to bleed profusely and she cried out in pain. 

21. [21]
    At about 5.14 am Sarina police observed the complainant running towards their car, waving her arms in the air. They could see she was bleeding from the mouth, and there was blood on her hands and clothing. The Appellant was arrested and placed in the police vehicle. The complainant was taken to the Sarina Hospital for treatment.  $750 compensation was sought.

22. [22]
    At the Sarina Police Station the Appellant was searched and some cannabis was located in his wallet. The Appellant’s intoxication level was such he was not able to answer any questions in relation to the matter.

23. [23]
    The previous breach of a domestic violence order involved the same victim. At that time she was heavily pregnant. He had demanded that she have sex with him at that time, she refused and he threw her phone at her in anger and punched the bedroom door. On that occasion he was also affected by liquor.

24. [24]
    The Prosecutor submitted that a term of imprisonment was open.

25. [25]
    The defence counsel submitted that the argument between the parties had been ongoing for sometime that night. Alcohol was a recurrent theme in the arguments.

26. [26]
    The Appellant was aged 26 and they had one child together. They had been together for two years. He worked in retail and was undertaking a second job in the hospitality industry. He seemed very focussed on his daughter’s needs.

27. [27]
    With respect to the injury, the Appellant’s version was that he struck the complainant with his shoulder rather than his fist or elbow. To my mind, that does not matter much in the circumstances.

28. [28]
    It was submitted that the Appellant had successfully completed probation and community service. His history was mainly of street-type offences and alcohol-related street-type offences. He was willing to do some more counselling with ATODS.

29. [29]
    At this point in time, the Prosecutor mentioned to the court that there was bruising to the right jaw area and one of the complainant’s front teeth had been cracked right through to the bone. The tooth was at risk of infection and would need further follow-up treatment at the Mackay Base Hospital as there were insufficient facilities at Sarina for this treatment.

30. [30]
    The defence solicitor further submitted that the Appellant was not a regular user of cannabis. The defence solicitor submitted that the range was from a large fine to a parole release date. He submitted he did not believe actual imprisonment was in the range. It was submitted that there was only a single blow.

31. [31]
    It was submitted there were attempts for rehabilitation in the sense that he had undergone probation and he had attended Anglicare, which was part of the probation order.

32. [32]
    In his decision, the learned Magistrate took into account the pleas of guilty and noted they were early and timely pleas. He accepted there were indications of remorse and cooperation on the Appellant’s part. He took into account the provisions of the Penalties and Sentences Act, what the Crown had alleged and what was said.  He noted he had pleaded guilty to the charges at the very first opportunity. 

33. [33]
    He took into account the facts of the matter. He took into account that he had a previous conviction for a serious violent offence in 2009 and a conviction in 2012 for breaching a domestic violence order.

34. [34]
    He took into account the decision of Earl v Heron [2011] QDC 183.  He noted the Appellant had been on probation for 12 months from 17 January 2011 but this did not seem to have had a salutary effect upon him.  The Magistrate found that the Appellant seemed to have not done anything about his alcohol intake since the August 2009 offence.

35. [35]
    The Magistrate considered that, in view of the serious nature of the offences and in light of his personal circumstances, there was no reasonable alternative but a term of imprisonment.

36. [36]
    I now turn to the arguments raised by the Appellant.

37. [37]
    In the outline of argument the grounds have been refined.

38. [38]
    The Appellant argues that the Magistrate erred in his application of Earl v Heron (supra) because Earl had a significantly more violent history than the Appellant.  He had received a less lengthy term of actual imprisonment.

39. [39]
    It was further submitted the Appellant in that case had committed a random act of gratuitous violence on a stranger, whilst in this case the Appellant committed an act of violence during a heated domestic argument between spouses to a long-term relationship.

40. [40]
    The Respondent with respect to this particular point submits that the sentence in Earl v Heron does not show that the decision on the instant case was “unreasonable or plainly unjust”. 

41. [41]
    It was submitted by the Respondent that the Judge on appeal in the matter of Earl v Heron took issue with the fact that the defendant was not taking any positive steps towards addressing his issues with alcohol, and this appears something which the sentencing Magistrate in this matter focussed on in particular.

42. [42]
    To my mind, there is no basis in the submission that the Magistrate erred in his application of Earl v Heron. 

43. [43]
    In this regard it is true the Magistrate referred to the decision but he does not seem to have been unduly fettered by the decision and simply referred to it. I do not see there is any error in the Magistrate referring to that decision.

44. [44]
    Further, I do not accept the submission that an act of violence during a heated domestic argument between spouses is necessarily less serious than a random act of gratuitous violence on a stranger. It all depends upon the circumstances of the particular case.

45. [45]
    The courts cannot condone significant unprovoked violence between partners in a relationship, particularly in breach of a domestic violence order, nor can the courts condone significant unprovoked violence between strangers.

46. [46]
    The second matter argued by the Appellant is that the Magistrate gave excessive weight to the Appellant’s history and the need for deterrence because the Appellant only had one previous for a breach of a protection order, which did not involve physical violence; there was only one previous entry for assault occasioning bodily harm, which was committed three years prior; the current assault was not a protracted one, it involved a single blow and perhaps a short period of wrestling and scuffle; and the need for deterrence and safety to the victim and the community could adequately be dealt with by the insertion of a “no contact” provision into the protection order, which is what happened.

47. [47]
    Additionally it is submitted the Magistrate did not consider the imposition of a suspended sentence or Intensive Correction Order or immediate parole release, all of which were well within range and could accommodate the Magistrate’s concerns of deterrence and safety to the victim.

48. [48]
    I do not accept the argument that the Magistrate gave excessive weight to the Appellant’s history and the need for deterrence.

49. [49]
    The Magistrate was entitled to take into account the previous convictions for breach of a protection order and the previous assault occasioning bodily harm conviction.

50. [50]
    Importantly however, the Magistrate was certainly entitled to take into account the nature of the injuries which were caused. The injuries were reasonably significant injuries when one is concerned with an assault occasioning bodily harm charge. It was not at the low end of the scale for such an offence.

51. [51]
    In the circumstances I do not consider that this ground of appeal is made out.

52. [52]
    I should also mention the Magistrate was obliged to take into account the matters mentioned in ss 9(3) and (4) of the Penalties and Sentences Act 1992 (Q).Those sections provide:

“(3)However, the principles mentioned in subsection (2)(a) [the provision that sentences of imprisonment are ones of last resort] do not apply to the sentencing of any offence for any offender—

1. (a)
   that involved the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person; or

2. (b)
   that resulted in physical harm to another person.

(4)In sentencing an offender to whom subsection (3) applies, the court must have regard primarily to the following—

1. (a)
   the risk of physical harm to any members of the community if a custodial sentence were not imposed;

2. (b)
   the need to protect any members of the community from that risk;

3. (c)
   the personal circumstances of any victim of the offence;

4. (d)
   the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence;

5. (e)
   the nature or extent of the violence used, or intended to be used, in the commission of the offence;

6. (f)
   any disregard by the offender for the interests of public safety;

7. (g)
   the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;

8. (h)
   the antecedents, age and character of the offender;

1. (i)
   any remorse or lack of remorse of the offender;

10. (j)
    any medical, psychiatric, prison or other relevant report in relation to the offender;

(k) anything else about the safety of members of the community that the sentencing court considers relevant.”

53. [53]
    Some of these matters were very relevant in the present sentence.

54. [54]
    The Appellant, for ground 2, submits that the Magistrate failed to give proper weight to the early plea of guilty and has breached s 13(4) of the Penalties and Sentences Act by not indicating how the plea of guilty played out in relation to the imposition of the sentence. 

55. [55]
    The Appellant relies on CCR v QPS [2010] QDC 486 at [pp 16-17].

56. [56]
    The Respondent, on the other hand, submits that the Magistrate imposed a head sentence of nine months in respect of the most serious offence. The Magistrate ordered a parole release date after serving three months of that sentence. It is submitted that the irresistible inference is the Magistrate discounted the sentence to three months.

57. [57]
    I accept the submission by the Respondent. The Magistrate, to my mind, reduced the sentence which might otherwise have been imposed by ordering release after three months.

58. [58]
    Although there was no early release for the breach of domestic violence order charge, to my mind that was subsumed by the more serious charge of assault occasioning bodily harm.

59. [59]
    The next ground argued by the Appellant is that the Magistrate did not give adequate consideration to the Appellant’s age, employment and surrounding circumstances of the case.

60. [60]
    I do not think this is correct. The Magistrate, in his sentencing remarks, took into account all relevant matters and, to my mind, no error in the Magistrate’s approach can be determined.

61. [61]
    The final submission by the Appellant is that the correct sentence should be in line with R v Taylor [2000] QCA 311 where a wholly suspended sentence was imposed.

62. [62]
    In R v Taylor the offender pleaded guilty to one count of assault occasioning bodily harm. 

63. [63]
    He received nine months’ imprisonment, to be suspended after three months. His appeal was allowed.

64. [64]
    The immediate difference with that case was that there was no breach of a domestic violence order. The applicant also in that case was 23 years of age – younger than the present Appellant.

65. [65]
    In that case, whilst there were reasonably significant injuries (see [7]) there was no broken tooth with the consequent problems for medical treatment as in this case.

66. [66]
    The court took into account the relatively young age of the applicant and his good record after 26 December 1998 to find it was manifestly excessive to require the applicant to serve part of the term of imprisonment (see [26]).

67. [67]
    As I have said, I consider that there are some distinguishing factors, although some factors of similarity, with the case of R v Taylor.

68. [68]
    The prosecution submits that in Mbuzi v Torcetti [2008] QCA 231 it was held that the principles stated in House v The King (1936) 55 CLR 499 are applicable. 

69. [69]
    I am not convinced about that because the appeal here is an appeal by way of rehearing. But in any event I do not consider the Magistrate engaged in any error. Nor does the result appear to me to be manifestly unreasonable or unjust.

70. [70]
    I am informed the Appellant has already served the term of imprisonment imposed by the Magistrate.

71. [71]
    I consider this is a relevant factor to be considered on the exercise of the discretion under s 225. 

72. [72]
    I note that there was some delay in the Respondent filing its submissions and the Appellant was unable to apply for bail as he did not have a residential address. But regardless, the fact is the Appellant has served the sentence imposed below. Further there has been no challenge to the head sentence. Even if there was it could not be said the head sentence is outside of the range.

73. [73]
    I do not consider a sentence requiring a short actual custodial portion to be outside of the sentencing range considering the Appellant’s history and the injuries sustained by the complainant.

74. [74]
    The Respondent relied on the decision of R v Roach [2009] QCA 360 at [31]-[40].

75. [75]
    The Appellant in further written submissions dated 30 April 2013 submitted that this decision is distinguishable from the present case.

76. [76]
    The decision of Roach and each of the cases referred to therein are not on all fours with the present but that case informs me that the range of penalty in this sort of case. In my view it can include a short custodial penalty. 

77. [77]
    I may confirm, set aside or vary the appeal order, or make any other order on the matter as I consider just.

78. [78]
    In the circumstances, bearing in mind the fact the Appellant has served the three month term of imprisonment, bearing in mind I cannot discern any error in the approach by the Magistrate, bearing in mind the sentence cannot be said to be outside of the range and giving due weight to the Magistrate’s decision, I consider it just in all of the circumstances to confirm the order made below in the exercise of my discretion on the rehearing.

79. [79]
    As a result, my determination on the rehearing is to confirm the sentences below and to dismiss the appeal.