PMB v Kelly[2014] QDC 301

DISTRICT COURT OF QUEENSLAND

HIS HONOUR: This is an appeal against sentence. On the 22^nd of August 2014 in the Magistrates Court at Southport the appellant pleaded guilty to a charge that on the 3^rd of August 2014 at Southport he contravened a domestic violence order made on the 21^st of May 2014 in the Magistrates Court at Southport. A conviction was recorded and he was sentenced to 12 months imprisonment. A parole release date of the 5^th of November 2014 was fixed and a declaration as to pre-sentence custody of 17 days between the 6^th and the 22^nd of August 2014 was made. On the 12^th of September 2014 the appellant was released on bail pending the hearing of the appeal. He had by then served a further 21 days of the sentence of 12 months. A total of 38 days has been served so far. The appellant contends that the sentence imposed by the magistrate was manifestly excessive.

Counsel for the appellant, Mr Rosser, submitted to me that all of the facts stated by the prosecution to the magistrate were accepted and that he did not argue against a sentence of 12 months imprisonment, taking into account the facts and the history. In fact, he said it was quite fair if a sentence of imprisonment was considered warranted. In such a case, he submitted that taking into account pre-sentence custody, an immediate parole order should have been made and that the sentence in fact imposed was manifestly excessive. Alternatively, a lengthy probation order should have been made with conditions requiring ongoing treatment for the appellant’s obvious problems with alcohol and associated domestic violence.

The protection order dated the 21^st of May 2014 was made under the Domestic and Family Violence Protection Act 2012 and required the appellant to be of good behaviour towards Ms JA, the lady he has lived with for more than five years.

The facts placed before the magistrate were as follows. At 7 pm on the 2^nd of August 2014, the appellant arrived home. He was seen to be upset after hearing some news from his father. He stayed up drinking red wine in the lounge room all night. Ms A stayed away from him in her bedroom. At about 9.30 am on the 3^rd of August, Ms A asked the appellant to fix the washing machine. The appellant opened and slammed shut the metal lid until it snapped off the machine. He then started banging the lid against the machine. He picked up an unopened can of Pepsi, threw it at the kitchen wall, causing it to spray Pepsi over the kitchen. He then grabbed a steak knife, held it in a threatening manner and said to Ms A, “Are you scared now?”  He then stabbed a loaf of bread and threw the knife across the kitchen. He then grabbed Ms A and threw her onto the lounge. He attempted to take her phone from her, but she refused. He placed his hands around her neck and started choking her. She couldn’t breathe and bit the appellant on the forearm. The appellant then threw Ms A onto the lounge room floor and with a closed fist punched her on the top of her head approximately four times. He then picked her up off the floor and slammed her into the tiled floor twice, causing her right temple to bang on the floor. He then placed his knee in her back and put her in a headlock. She struggled to breath and again bit him on the fingers. She managed then to run out of the home and call police. An ambulance attended and she was transported to the Gold Coast University Hospital where she was treated.

Police attended and obtained a statement from her. Police observed her to have a swollen and bruised right eye, a bleeding upper lip and scratches on her arms.

The magistrate described this as an appalling attack on Ms A and said he was very concerned with the level of violence the appellant demonstrated in attacking Ms A for nothing more than an argument over whether he should have the car keys. He apparently had asked for the car keys and she refused to give them to him because he was drunk. Mr Rosser agreed that, clearly, he shouldn’t have driven, as he was drunk. His Honour also said it was most fortunate that Ms A did not suffer more serious injuries. These remarks by the magistrate were clearly warranted in the circumstances.

Before me, the appellant through Mr Rosser referred to a letter tendered to the magistrate by Ms A dated the 20^th of August 2014, which the magistrate said he took into account, in which she said, “I did sustain injuries due to the incident;  however, the ambulance officer took me to hospital only as an observation precaution. I remained at hospital for approximately five hours, then went home,” which he submitted was inconsistent with the facts stated by the prosecution and caused, he submitted, the magistrate to aggravate the offending and level of injury caused by the appellant to Ms A. I am unable to accept this submission. The magistrate described her injuries as outlined by the prosecution and also, as I said, took into account what Ms A said in her letter. In any event, I do not consider the two statements to be contradictory or to have had the effect on the magistrate submitted by Mr Rosser. There is thus no substance in this ground.

The appellant had twice previously been convicted of contravening a protection order made in respect of Ms A. The prosecution gave notice under section 47 of the Justices Act of its intention to rely on these on sentence. The effect was to increase the maximum sentence for the offence from imprisonment for two years to imprisonment for three years.

The magistrate referred to two previous convictions for breaching a previous domestic violence order made in respect of Ms A. The facts of each were not placed before the magistrate, but were placed before me, exhibits 1 and 2. The first conviction was in the Magistrates Court at Southport on the 13^th of August 2013 and the facts relating to that offence were these:  on the morning of the 14^th of January 2013 at about 8 am the appellant went to an address in Southport where Ms A was. She told him not to enter the dwelling because she could smell alcohol on his breath. He and Ms A then engaged in a verbal altercation and the appellant pushed his way with such force to gain entry to the dwelling. Whilst inside the dwelling, he grabbed Ms A by her arms and started squeezing very hard and forcefully pushed her out of his way. He then went into his bedroom and went through Ms A’s drawers looking for small items to sell for alcohol. She then called the police. The appellant was fined $500 for this offence and no conviction was recorded.

The second conviction was in the Magistrates Court at Southport on the 21^st of May 2014. In that, the facts were these:  on the 5^th of November 2013, Ms A was contacted by the appellant and as a result she collected him and took him home. He was heavily intoxicated and on arriving home she told him to stay outside until he sobered up. She would not allow him in the house and rear yard because she considered he would damage property due to his state of intoxication by knocking things over. Upon arriving home, he entered the rear yard and knocked over a stand. Ms A then got him to the front gate and told him to wait in the front yard until he sobered up. He became aggressive with her and started struggling with her, grabbing her arms as she attempted to ring the police. He bit her twice on the left arm and police observed injuries on her consistent with bite marks. He then slapped her in the back of her head with his open hand. She then locked herself inside the unit. The police were called and they located him in the back courtyard, heavily intoxicated. For this offence, the appellant was placed on probation for 18 months and, again, no conviction was recorded. The present offence occurred about two and a half months after this probation order was made. It is a requirement of such an order that the offender not commit another offence during its currency.

A probation officer from the Department of Corrective Services reported to the magistrate that the appellant’s response to supervision had been compliant and that he was just at the end of his assessment phase. He was waitlisted for the domestic violence program and was engaged with AA and AODS. The magistrate referred to this evidence in his sentencing remarks.

In her letter to the magistrate, which I’ve already referred to, Ms A said that, without wanting to excuse the appellant’s actions, she wanted to have contact and remain in a relationship with him and support him through his road to recovery.

Ms A referred to past stressors in the appellant’s life and the influence these and depression have on his decision to drink generally and at the time of the subject offence. She also said that the appellant said his experience in pre-sentence custody was a valuable final aspect of the lesson he needs to learn. She referred to his care for his father and his ability as a medical practitioner. She considered he was making determined and positive efforts at behavioural change with particular emphasis on his drinking.

A letter from the appellant’s father dated the 19^th of August 2014 was also tendered to the Magistrate and taken into account by him. Curiously, he does not mention the triggering incident referred to by Ms A, which she said was something he said to the appellant, which she said set him off. In his letter, the appellant’s father referred to the appellant’s background and upbringing, and also to the stressors which impacted on his behaviour and drinking. Drinking caused the present offence, as it did the breaches of his bail. He referred to the help and assistance afforded to him by the appellant, and to the fact that Ms A still cares very much for him and wants to return to an amicable relationship.

Mr Rosser submitted to the Magistrate that Ms A wanted the appellant back, but this was not exactly what she said in her letter or what the appellant’s father said she said to him. I may be reading too much into the words used or not used. In any event, the Magistrate said he took into account what each said in their respective letters.

The appellant made the following submission in relation to the facts in paragraph 6(f) of Mr Rosser’s outline of argument: 

The learned sentencing Magistrate appears to have dealt with the appellant without having due regard to the charge under consideration. The matter was not an assault complaint, but a breach of a domestic violence order. It is conceded for the appellant that breaching a domestic violence order is a matter to be taken seriously, but nonetheless, however serious allegations of violence were, the sentencing the Court was not dealing with an assault, rather a breach of a protection order particularised by a violent act.

I cannot accept this submission. It completely misunderstands what is involved in domestic violence. Section 8 of the Domestic and Family Violence Protection Act 2012 provides as follows, in part:

Domestic violence means behaviour by a person towards another person with whom the first person is in a relevant relationship that is physically abusive; is threatening; or is coercive; or in any other way controls or dominates the second person and causes the second person to fear for the second person's safety or wellbeing or that of someone else.

Domestic violence includes the following behaviour:  causing personal injury to a person or threatening to do so; and damaging a person's property or threatening to do so.

The facts stated by the prosecution were no more than particulars of the extent to which the protection order had been contravened. Those facts established the contravention. The contravention occurred by reason of the commission of domestic violence against Ms A and the failure of the appellant to be of good behaviour towards her.

The appellant next submitted, by reference to two other cases, that the sentence imposed was outside the range of sound sentencing discretion. No two cases are the same.

In Taylor [2000] QCA 311, the defendant and complainant were each aged 23 and lived together. The defendant pleaded guilty to assault occasioning bodily harm and was sentenced to nine months imprisonment, suspended after three months. The defendant punched the complainant once to the face and she fell to the ground. The complainant’s injuries consisted of bruising to the head, face and left shoulder, a broken nose, and a conjunctival haemorrhage in the left eye, so more serious than those suffered by Ms A. The defendant had a prior conviction in December 1988 for a relatively minor assault on a 14 year old boy for which he was sentenced to 180 hours community service. He had not previously been sentenced to imprisonment. The relationship between the defendant and the complainant ended on the day he assaulted her. The maximum sentence was imprisonment for seven years.

The Court of Appeal did not interfere with the sentence of nine months imprisonment, saying it was consistent with the need to deter assaults of this nature in circumstances where the offender uses superior strength and size to harm his domestic partner. The Court of Appeal did, however, order the forthwith suspension of the sentence; that is, after about two months and one week. That is three weeks less than the period set by the sentencing Judge. The Court of Appeal did this because there was no submission by the Crown that there was a risk of physical harm to either the complainant or other members of the community if the defendant was then released and because of his good record since December 1988.

In the present case, the Magistrate referred to the need to take into account the protection of Ms A and other members of the public who may fall victim to the appellant’s abuse and violence, and the need to deter the appellant personally, factors not apposite to Taylor.

In addition, the appellant’s criminal history for similar offences is much worse than Taylor. There was no criticism, such as was made in the present case by Mr Rosser, of the fact that a sentence involving actual imprisonment was imposed for the first time without giving the defendant the benefit of suspension or immediate release from parole. The submission was that the appellant had not had the benefit of any imprisonment order involving a suspended sentence or immediate release on parole. The case does not really assist the appellant.

The other decision is James [2012] QCA 256. The defendant there pleaded guilty to breaching a domestic violence protection order. He was sentenced to imprisonment for nine months with parole after four months. One day after being served with the protection order, the defendant’s aggrieved de facto partner was waiting at Townsville Hospital to be treated for an injury. The defendant punched her in the face causing pain, discomfort, and swelling, injuries less serious than suffered by Ms A.

The defendant’s criminal history included convictions for six previous breaches of domestic violence protection orders in respect of the same lady, the most recent two of which had attracted sentences of six and nine months respectively. The maximum penalty was imprisonment for 12 months because the Prosecution did not serve a notice relying on the breach offences. They were, though, able to be taken into account in the normal way. The sentencing Magistrate had particular regard for the need for general and personal deterrence and the defendant’s history of repeated breaches of domestic violence protection orders. The Court of Appeal found no identifiable error nor any error by implication from the length of the sentence. The breach was described as a serious example of the offence of breach of a domestic violence order, with the only mitigating feature being the guilty plea.

The present case is different to James in the following respects:  (1) the level of violence here was more violent and sustained; (2) the injuries here were more serious, and the circumstances of the contravention far outweigh those in James; (3) the time to be served here is proportionately less; (4) the appellant was on probation at the time; (5) the maximum sentence here is three years imprisonment; in James it was one year. The other difference is that James had previously similarly offended more times than the appellant. The case does not suggest that a sentence requiring the appellant to serve more than 17 days actual imprisonment is for this reason manifestly excessive. The circumstances of the previous breaches in James were not referred to, in the present case they were referred to in exhibits 1 and 2, and I’ve already set out the facts of those.

It was next submitted that the appellant, who is a medical practitioner able to practice in the United States of America, and who is working towards registration in Australia, would be likely to possibly face career ending consequences if a term of imprisonment remains as the sentence. This submission was made immediately after that in paragraph 6(q) of the appellant’s written submissions, that the Magistrate ought to have ordered no further imprisonment than the time already served. It is also at odds with Mr Rosser’s acceptance of a sentence of 12 months imprisonment, albeit without any further time to be served.

The same submission was made to the Magistrate, and he said he took into account the appellant’s qualifications and education. Mr Rosser could put his argument no higher than that his history would be considered by the medical board and that the offence was not an automatic disqualifying offence for admission as a medical practitioner.

Mr Rosser then submitted that the appellant should have been given a chance to allow continuation of treatment for his alcohol problem and the Magistrate erred in not allowing that to occur by not fashioning a sentence which did not require more time in custody. It was put to the Magistrate that the appellant had attended AA daily since the 14^th of March 2014, and that he was seeing a psychologist once a week since March 2014, who had told him that when he finds himself in a stressful situation he should leave that situation, which is what he didn’t do on the present occasion. Mr Rosser also submitted to the Magistrate that Ms A said it was binge drinking rather than alcoholism or whether a stressor depression comes upon him and that he doesn't drink all the time.

Before me Mr Rosser said the appellant was participating in a domestic violence intervention program at least once a week and attending AA each day. He is required to do such things as a condition of his probation order. Mr Rosser also submitted to the Magistrate that he is a person who will comply with and will respond to treatment. He submitted that the appellant was aware of his problem and was addressing it and self-rehabilitating. The appellant has let himself down. His release on appeal bail had this condition:

(l)He must not consume alcohol and must submit to alcohol testing, including breath or urine testing as required by any police officer.

The following is taken without objection by Mr Rosser from the respondent’s outline of argument in paragraphs 5.2 and 5.3:

The appellant was charged with two offences of breaching condition (l) on 13 and 15 November 2014 respectively. On 13 November 2014 police attended the appellant’s residence for a bail check. The appellant submitted to a breath test that produced a high positive result. On 15 November 2014, police again attended the appellant’s residence. On this occasion, police found him passed out on the front driveway. Enquiries by police revealed the appellant had consumed alcohol and was highly intoxicated. Both breaches were dealt with in the Magistrates Court at Southport on 17 November 2014. The appellant was fined $300 and a conviction was recorded.

In addition, the respondent stated in paragraph 5.4 that:

On the 14^th of November, the appellant was charged with a further offence of contravening a domestic violence order in respect of Ms A. That charge is currently before the Magistrates Court at Southport and is next listed for mention on 27 November 2014. No more can be said about this charge, other than it is at the moment unproven.

In the circumstances, I do not consider that it has been established that to return the appellant to prison should his appeal be dismissed would set back well-advanced steps towards rehabilitation or be so onerous that an alternative should be adopted. See the decision of Allison [2003] QCA 125 referred to in paragraph 6(n) of the appellant’s outline of argument.

The appellant’s appeal bail also requires that he live separately from Ms A and have no contact with her other than by telephone or internet if she consents in writing to such contact. Mr Rosser told the Magistrate that she then held some fears for her own safety - which clearly distinguishes the case from Taylor - and wanted him back, considering that he is doing something in the way of self-rehabilitation. That state of affairs would appear to have changed since that submission was made.

It was finally submitted by the appellant as follows in paragraph 6(u) of the written outline:

The learned sentencing Magistrate failed to afford procedural fairness to the appellant’s counsel on sentence in not providing counsel with the opportunity to provide and by not inviting submissions by counsel in relation to the appellant spending further time in custody.

I'm also unable to accept this ground. The possibility of imprisonment beyond 17 days was clearly contemplated. Mr Rosser was heard on all aspects of penalty. In fact, he said to the Magistrate:

This type of offence - when you come up for a third offence of this nature involving violence and no excuses are made for what’s happened, except where there are exceptional circumstances, a term of imprisonment is imposed and usually in custody. My friend said it’s past the fine stage. I'd say that’s fairly obvious. He’s already served time. Since the 6^th of August, he’s been incarcerated. The Court could consider obviously a term of imprisonment, I'd say, with immediate parole is within range, but there’s one other factor that the Court could look at, and that’s more extensive probation. A term of imprisonment, I say, would put the lid on his – any application for a medical career, and, even if he was to go back to the United States, it’s something he would have to declare. It seems that he would be terminated there from his right to practise so there’s a hell of a lot riding on the penalty that this Court has to impose.

In my view, it was clearly apparent to the defence that a sentence involving imprisonment of more than 17 days was a realistic possibility. The defence had the opportunity to address that issue.

Many factors influence and determine sentences for breaching domestic violence protection orders by committing further domestic violence. The attitude of an aggrieved person such as Ms A is but one of these factors and cannot by itself determine the sentencing outcome. Other relevant considerations include those referred to by the Magistrate, and at the end, what is involved is a balancing exercise involving a consideration of often divergent factors.

In the present case, the Magistrate took into account what Ms A and the appellant’s father each said, but he was also influenced by the following considerations which he referred to, namely:  the circumstances of the offence, the two previous breaches, the fact that the appellant was on probation at the time for the last breach;  the appellant’s initial response to the probation order, the absence of any professional explanation in the form of a report to explain the violence associated with binge drinking, the appellant’s background and personal circumstances, the level of violence and its unprovoked nature, the need for personal and general deterrence, the prevalence of domestic violence upon women, the interests of the community in preventing violence towards women and the need to protect Ms A and other members of the community. These are all relevant matters to take into account.

In my view, the appellant has not identified any error in the exercise of the sentencing discretion by the Magistrate, nor does any error arise by implication from the length of the sentence. In these circumstances, the appeal will be dismissed, except that a new parole release date will be fixed to take into account the 38 days in custody already served by the appellant. The sentence commences again from today. Taking into account 17 days pre-sentence custody, the effective non-parole period fixed by the Magistrate was about three months. The appellant has already served 38 days. A parole release date of 30^th of January 2015 will be fixed, which takes into account 38 days pre-sentence custody. I record that the appellant has been in pre-sentence custody for 38 days between 6^th of August and 12^th of September 2014, and I declare that period of 38 days to be time already served under the sentence of 12 months. Now, does that cover everything, Ms Darwen?

MS DARWEN: Yes, your Honour. Thank you.

HIS HONOUR: Mr Rosser.

MR ROSSER: Thank you, your Honour.

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