TND v Queensland Police Service
[2014] QDC 154
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- Unreported Judgment
- TND v Queensland Police Service[2014] QDC 154
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TND v Queensland Police Service[2014] QDC 154
TND v Queensland Police Service[2014] QDC 154
DISTRICT COURT OF QUEENSLAND
CITATION: | TND v Queensland Police Service [2014] QDC 154 |
PARTIES: | TND (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | |
DIVISION: | Appellate jurisdiction |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Mount Isa |
DELIVERED ON: | 18 July 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 June, 2 July 2014 |
JUDGE: | Bradley DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – where the defendant plead guilty to a charge of contravening a protection order made under the Domestic and Family Violence Protection Act 2012 – where the defendant was sentenced to six months imprisonment with immediate release on parole – whether this sentence is manifestly excessive Domestic and Family Violence Protection Act 2012 (Qld) Justices Act 1886 (Qld) s 222 Penalties and Sentences Act 1992 (Qld) s 13 Police Powers and Responsibilities Act 2000 (Qld) s 790 Berner v MacGregor [2013] QDC 33 Hili v The Queen (2010) 242 CLR 520 House v The King (1936) 55 CLR 499 Hughes v Hopgood [1950] QWN 21 Pullen v O'Brien [2014] QDC 092 R v Moss [1999] QCA 426 R v Woods [2004] QCA 204 Smith v Ash [2010] QCA 112 Teelow v Commissioner of Police [2009] QCA 84 |
COUNSEL: | D Castor, solicitor, for the appellant. J Goldie, counsel, for the respondent. |
SOLICITORS: | Aboriginal and Torres Strait Islander Legal Service for the appellant. Office of the Director of Public Prosecutions Townsville for the respondent. |
Background
- [1]The appellant was charged with two offences committed in Normanton on 4 March 2014. The first was that he contravened a protection order made under the Domestic and Family Violence Protection Act 2012 and the second, that he assaulted a police officer in the performance of the officer’s duty contrary to s 790(1) of the Police Powers and Responsibilities Act 2000.
- [2]The appellant was held in custody overnight and pleaded guilty to the charges the following day on 5 March 2014 in the Magistrates Court at Mount Isa. The appellant and his solicitor appeared from Normanton by video link. For the first offence the Magistrate imposed a sentence of six months imprisonment with an immediate release on parole and with a declaration that he had spent two days in presentence custody. For the second offence the Magistrate imposed a sentence of one month imprisonment wholly suspended for an operational period of nine months.
- [3]The appellant has appealed against the first sentence only on the grounds that it is manifestly excessive.
Facts
- [4]The facts as placed before the Magistrate are that at 830 on 4 March 2014 the aggrieved and the appellant were at a family member’s house drinking. Upon returning to their home at Woodward Street, Normanton, they went into their bedroom. The appellant became agitated and accused the aggrieved of getting smart with him. He punched her to the left side of her face, causing a tooth to cut the inside of her cheek. The aggrieved threw a work boot at the appellant and left the room.
- [5]Police attended at the address after receiving a call, and spoke to the aggrieved. The aggrieved told police that the appellant had left through the backyard as police arrived. As police were speaking to the aggrieved, the appellant was observed walking on the road and yelling out to police and wearing only a pair of boardshorts. The appellant rapidly approached the police officers, yelling the words, “shoot me, shoot me, go on, I want you to kill me”. Upon reaching the police officers, the appellant threw down his wallet, clenched his fists and navigated himself towards one officer and then raised his fist while lunging towards one of the police officers, who immediately deployed capsicum spray in the appellant’s face. The appellant was then subdued and handcuffed. During the arrest the appellant continued to threaten violence to the police, the aggrieved and his (or the aggrieved’s) 12 year-old brother.
Submissions made in the court below
- [6]The appellant’s criminal history and traffic history were before the Magistrate. His criminal history commences with a conviction in the Childrens Court on 7 October 2008 with the summary offence of unlawful possession of suspected stolen property, for which he was given 20 hours community service. Subsequent convictions in the Childrens Court include receiving stolen property, burglary and commit indictable offence, trespass and seven convictions for break and enter. In the Magistrates Court he has previous convictions for unlawful use of a motor vehicle, two of contravene direction or requirement, two of possession of a utensil or pipe used in connection with the smoking of a dangerous drug, assault or obstruct police officer, failure to appear in accordance with a bail undertaking, trespass, six offences of unlawful entry of a vehicle, break and enter, wilful damage and, relevantly, an offence of contravening a domestic violence order on 11 October 2013. On 26 August 2013, the appellant was placed on probation for 12 months and ordered to complete 100 hours of community service. He breached those orders by committing these offences.
- [7]The appellant’s traffic history includes convictions for an offence of driving under the influence of drugs and two of unlicensed driving.
- [8]On behalf of the appellant, it was submitted to the Magistrate that he was only 20 years of age and was working four days a week in the equivalent of the “Work for the Dole” scheme. He had expressed remorse and his relationship with the aggrieved had been in existence for about five years.
- [9]It was pointed out that the conviction for contravening a domestic violence order on 11 October 2013 had only resulted in a $100 fine and that “it couldn’t be suggested … that violence is a regular part of his relationship with the aggrieved” and that the penalty imposed for the previous conviction indicated that it was not a matter of “significant gravity”.
- [10]It was submitted that the dispute between the appellant and the aggrieved revolved around the appellant’s drinking and that he accepted that his response in the circumstances was inappropriate. The incident was not prolonged and the injury appeared to have been minor. The appellant advised the Magistrate through his solicitor that he wished to give the aggrieved “space for as long as she requires to respect her wishes in that respect” and that he intended to live with his father and, in the short to medium term, live away from the community of Normanton.
- [11]It was submitted that the appellant was willing and able to give back to the community and that he had been reporting whilst on probation. He had been referred for one meeting to ATODS (the Alcohol, Tobacco and Other Drugs Service) and wished to attend ATODS on a more regular basis. The appellant accepted that offences occur when he is intoxicated and that he needs “to find a way not to become intoxicated in the future”.
Magistrate’s sentencing remarks
- [12]The Magistrate took into account the appellant’s plea of guilty “at a very early opportunity” and noted that it could be viewed not only as a sign of his cooperation and assistance, but also as a sign of his remorse. He also took into account the appellant’s youth, his previous criminal history and the effect of his actions upon the aggrieved. He noted that, although the incident was fairly short in duration, the aggrieved did suffer as a result of his actions.
- [13]The Magistrate noted that “for a 20 year old man you are a prolific offender in my assessment” with four pages of criminal history. He noted that the appellant had had the benefit of community based orders and that he committed the present offences whilst subject to a probation order.
- [14]In relation to general deterrence, the Magistrate referred to visiting “a website which shows the number of domestic violence order breaches in this district over the last 12 months”[1]. The Magistrate was not sure if that included the Normanton district as well as Mount Isa but noted that “there are between 38 and 62 domestic violence breaches per month, which would tend to indicate that the offending is prevalent. It might also add to my anecdotal experience that it certainly seems to be a significant part of my sentencing”. In relation to the same website, the Magistrate said that it showed “the propensity for acts of violence involving police in this district which is significantly more than the Townsville district”. These matters supported a need for general deterrence.
- [15]The Magistrate noted the “significant cost to the community” of domestic violence. He noted that the appellant was fined $1,000 and ordered to pay $500 compensation for the offence of assault a police officer committed on 9 August 2012.
- [16]The Magistrate noted that because the appellant was convicted of contravention of a domestic violence order in the Normanton Magistrates Court on 28 October 2013, the maximum penalty for the contravention of a domestic violence order was three years’ imprisonment.
Appellant’s arguments
- [17]The appellant argues:
- that the Magistrate failed to give proper weight to the plea of guilty pursuant to s 13 of the Penalties and Sentences Act 1992;
- that the Magistrate gave too much weight to general deterrence; and
- that the Magistrate gave too much weight to specific deterrence.
- [18]Although the Magistrate clearly stated that he took into account the appellant’s very early plea, he failed to outline how the plea of guilty was taken into account and the impact that it had upon the sentence ultimately imposed. This was contrary to the obligation on a sentencing judicial officer outlined by the Queensland Court of Appeal in R v Woods[2]:
“The necessity to take a guilty plea into account and state that it has been done and how it has been done is an essential part of the transparency of the sentencing process.”
- [19]The referral of the Magistrate to crime statistics as evidence of the prevalence of “domestic violence breaches” was an unacceptable basis upon which to justify an increased need for general deterrence in the sentence of the appellant. The appellant referred to the comments of Davies JA in R v Moss[3], which was an appeal against a sentence imposed in the Townsville District Court for the offence of armed robbery. At p 10 Davies JA said:
“…there's nothing wrong with looking at statistics or with looking at the prevalence of offences, but that should be done sensibly and on the basis of reliable statistics, and I agree with the remarks of the presiding Judge that the statistics in this case weren’t reliable.
They didn't show, for example, that offences for armed robbery in the Townsville area were increasing, or decreasing or remaining static, or, indeed, that they were worse in the Townsville area than in any other city of commensurate size.”
- [20]A considerable part of the appellant’s criminal history related to property offending with only two convictions for previous offences of violence: one of assault police committed on 9 August 2012 for which he was fined $1,000 and ordered to pay compensation of $500; the other of contravention of a domestic violence order on 11 October 2013 for which he was fined $100. In that context it is argued that there was not a pressing need to impose a sentence that would act as a specific personal deterrence with respect to the offence of contravention of a protection order. Whilst the appellant’s criminal history is quite lengthy for someone of his young age, much of the property offending which was dealt with in the Childrens Court was committed when he was 14 years of age.
- [21]It was pointed out that despite the fact that the appellant and the aggrieved had been in a relationship for some five years he had only one previous conviction for contravention of a protection order which resulted in a relatively minor penalty.
- [22]The appellant submits that a sentence of three months imprisonment to be served within the community should be substituted for the sentence of six months imposed by the Magistrate.
Respondent’s arguments
- [23]The respondent concedes that the Magistrate failed to comply with s 13(4) of the Penalties and Sentences Act by not referring specifically to how the plea was taken into account and that the Magistrate should not have placed any reliance on statistics in circumstances where the Magistrate could not be sure if the statistics applied to the Normanton district. The Magistrate was however entitled to take into account the prevalence of domestic violence offending and the need for general deterrence for that type of offending.
- [24]The respondent referred to the increase in the maximum penalty for breaches of domestic violence orders provided for by the Domestic and Family Violence Protection Act 2012.
- [25]Given the appellant’s four page criminal history and the range of penalties he has received in the past including community based orders both as a child and as an adult and the fact that he was subject to a probation order and a community service order at the time of the commission of the offences on 4 March 2014, personal or specific deterrence is of particular importance.
- [26]The factors relied upon by the respondent which, when taken into account, cannot support the argument that the penalty imposed was manifestly excessive were:
- (a)the offending involved actual violence and injury, albeit minor;
- (b)the totality of the offending that evening which included the breach of the protection order followed by the assault on police;
- (c)the offending was committed whilst the appellant was subject to a probation order and a community service order;
- (d)the appellant has an extensive criminal history including prior convictions for breaching a domestic violence order and assaulting police;
- (e)the appellant has been given the benefit of a number of different sentencing options but has continued to reoffend; and
- (f)the maximum penalty for breaching a domestic violence order where the offender has a previous conviction for breach of a domestic violence order is three years’ imprisonment.
Construction of s 222(2)(c)
- [27]Section 222 of the Justices Act 1886 provides relevantly as follows:
“222Appeal to a single judge
- (1)If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within one month after the date of the order to a District Court Judge.
….
- (2)However, the following exceptions apply -
…
- (c)if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.”
- [28]The respondent submits that the conclusion reached by Dorney QC, DCJ in Philip Richard Berner v Anthony John MacGregor[4] should be adopted. In that case, after carefully considering the wording of s 222(2)(c) and the application of the reasoning of the Queensland Court of Appeal in Smith v Ash[5] and Teelow v Commissioner of Police[6] and the judgment of the High Court in Hili v The Queen[7], Dorney DCJ concluded “that reliance on anything wider than manifestly excessive or inadequate (i.e. relying on some identified error of the other kinds mentioned in House v The King) is impermissible, although due attention must be given to [all of the matters that are relevant to fixing the sentence]”[8]
- [29]As a consequence of the respondent’s reliance on the approach taken by Dorney QC, DCJ in Berner v MacGregor, I gave the parties the opportunity to make further submissions both in writing and orally on the interpretation of s 222(2)(c). The appellant referred to subsequent decisions of this court in which the interpretation of the section has been addressed.[9] The appellant referred in particular to the Court of Appeal decision in Teelow v Commissioner of Police.
- [30]In Teelow, an appeal against sentence after a plea of guilty, it was held that the technical failure to record the Magistrate’s reasons did not amount to a failure to give reasons, and as such was not an error of law requiring an appeal judge to exercise the sentencing discretion afresh. Muir JA referred to the well known principles governing appeals against the exercise of discretion stated in House v The King[10], and clearly the court was of the view that in the event of an identifiable error made in the exercise of a sentencing discretion, the appellate court may exercise its own discretion. It is true, as Dorney QC DCJ observed in Berner, that the Count of Appeal did not, in Teelow, discuss the actual meaning of s 222(2)(c).
- [31]In Hughes v Hopgood[11] when dealing with an appeal under the provisions of s 222 of the Justice Acts, 1886 – 1949, as it then stood, Macrossan CJ said that he was not entitled to interfere with the sentence of a magistrate “unless I can find that the sentence is manifestly excessive or that there are some circumstances which show that the magistrate acted under a misapprehension of fact or on some wrong principle in awarding the sentence”.
- [32]In Pullen v O'Brien[12], Long SC DCJ undertakes a lengthy analysis of relevant Court of Appeal decisions, none of which examine the precise meaning of s 222(2)(c), but from which it can be inferred that the section should be construed to allow an appeal against sentence on the basis that the magistrate’s sentencing discretion miscarried. There is force to the argument that it would be difficult to accept that a court exercising jurisdiction under s 222 and conducting an appeal by way of re-hearing pursuant to s 223, would not have power to consider and, if necessary, correct an error, and further that there would be a significant anomaly in that such a limitation would not apparently apply to an appeal against conviction and sentence where a defendant has pleaded guilty or admitted the truth of a complaint.[13]
- [33]I am respectfully inclined to disagree with the literal interpretation of s 222(2)(c) by my brother judge, Dorney QC DCJ. However, in this case it is not necessary to finally determine that issue as I have come to the conclusion that the sentence imposed on the appellant was not manifestly excessive, and, if I had to exercise the sentencing discretion afresh, I would have imposed the same penalty. The Magistrate did err in using criminal statistics which could not be assured of being accurate or particularly relevant to Normanton, to justify a particular emphasis on general deterrence. He also failed to state how he took into account the plea of guilty as he was required to do. These errors would generally permit an appeal court to exercise the sentencing discretion afresh.
Consideration
- [34]What can be said in the appellant’s favour is that:
- he entered a plea of guilty very quickly;
- he indicated remorse and insight into the effect of the offending on the aggrieved;
- his relationship with the aggrieved was a long-standing one, which was not characterised by actual violence;
- he had only one previous conviction for breaching a protection order which, as indicated by the penalty imposed, was a relatively minor breach;
- he was only 20 years of age;
- he had insight into the problems he had with alcohol and was keen to address them;
- apart from re-offending, he was complying with the conditions of community based orders;
- he was working four days per week.
- [35]On the other hand:
- domestic violence, particularly when it involves actual physical violence, is a serious community issue;
- in this case the appellant did strike the aggrieved and cause some injury to her;
- the appellant had been convicted of breaching a protection order less than five months previously;
- both general and personal deterrence are of relevance and importance;
- the appellant was subject to probation and community service orders at the time he committed the offence;
- the appellant had a significant criminal history stretching back six years;
- the maximum penalty for the offence in the circumstances was one of three years imprisonment (this was an increase from one year in the same circumstances under the previous relevant legislation).
- [36]In the circumstances the penalty imposed of six months imprisonment with immediate release on parole cannot be said to be manifestly excessive, and is the appropriate penalty in all the circumstances.
Decision
- [37]The appeal is dismissed.
Footnotes
[1] Apparently the website: mypolice.qld.gov.au
[2] [2004] QCA 204 at [10]
[3] [1999] QCA 426
[4] [2013] QDC 33
[5] [2010] QCA 112
[6] [2009] QCA 84
[7] (2010) 242 CLR 520
[8] Ibid at para 15
[9] Smith v Galt [2013] QDC 117 and Pullen v O'Brien [2014] QDC 92.
[10] (1936) 55 CLR 499
[11] [1950] QWN 21
[12] [2014] QDC 092
[13] Ibid paras 38 - 39