MH v Queensland Police Service
[2015] QDC 124
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- MH v Queensland Police Service[2015] QDC 124
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MH v Queensland Police Service[2015] QDC 124
MH v Queensland Police Service[2015] QDC 124
DISTRICT COURT OF QUEENSLAND
CITATION: | MH v Queensland Police Service [2015] QDC 124 |
PARTIES: | MH (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 2492/14 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 22 May 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 April and 22 May 2015 |
JUDGE: | Smith DCJA |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – JUDGMENT AND PUNISHMENT – Appeal against sentence – whether Magistrate erred – whether the sentence was excessive FAMILY LAW – Domestic Violence – whether protection order should be made on conviction of breaching a protection order Domestic and Family Violence Protection Act 2012 (Q) Ss 8, 13, 37, 42, 56, 143, 145, 159, 177 Justices Act 1886 (Q) ss 222, 223, 224 and 225 Penalties and Sentences Act 1992 (Q) ss 9, 93 AB v R (1999) 198 CLR 111 CCR v QPS [2010] QDC 486 Commissioner of Police v RTC [2009] QDC 376 DPP v Shoan [2007] VSCA 220 KAB v R [2015] NSWCCA 55 Parker v Director of Public Prosecutions (1992) 65 A Crim R 209 R v Cunningham [2005] QCA 321 R v Kitson [2008] QCA 86 R v Lui [2009] QCA 366 R v Matauaina [2011] QCA 344 RAS v Commissioner of Police (No 1) [2011] QDC 366 Singh v QPS [2013] QDC 37 Teelow v Commissioner of Police [2009] 2 Qd R 489 Toole v R [2014] NSWCCA 318 W v QPS [2013] QDC 87 |
COUNSEL: | Ms K. Hillard for the appellant Mr P. Bates for the respondent |
SOLICITORS: | Kilroy and Callaghan lawyers for the appellant Director of Public Prosecutions for the respondent |
Introduction
- [1]This is an appeal by MH[1] pursuant to s 222 of the Justices Act 1886 (Q) (“JA”). The appeal is against a penalty imposed in the Brisbane Magistrates Court on 3 June 2014.
- [2]Section 222(2)(c) of the JA provides that where the defendant pleads guilty then the person may only appeal on the sole ground that the fine, penalty, forfeiture or punishment was excessive or inadequate.
- [3]Section 225(1) of the JA provides that:
“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.”
- [4]In Teelow v Commissioner of Police [2009] 2 Qd R 489 Muir JA held at [4]:
“It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is a result of some legal, factual or discretionary error …”
- [5]Section 223(1) of the JA provides that the appeal is to be by way of re-hearing on the evidence given in the proceeding before the Justices.
Background
- [6]The appellant pleaded guilty to one charge of breaching a domestic violence order on 2 February 2014 and one charge of obstructing a police officer on the same day. The learned magistrate imposed three months’ imprisonment on each charge and wholly suspended the sentences for the period of 12 months.
Grounds of appeal
- [7]The appellant alleges:
- (a)the sentences were excessive;
- (b)the learned magistrate erred in failing to invite further submissions before imposing a sentence of imprisonment;
- (c)the learned magistrate erred in considering that imprisonment was the only option and was disproportionate.
The proceedings below
- [8]The learned magistrate was informed by the prosecutor that the appellant had been served with a copy of the protection order which was to the effect that he must not commit domestic violence or go within 50 metres of an address in Annerley. The prosecutor alleged that, at about 12.30 a.m. on 2 February 2014, a resident of the street in Annerley contacted police and reported the appellant was outside a unit, banging on the front door and attempting to gain entry. There was the sound of the aggrieved and the sound of a baby crying coming from inside the unit. Police attended the unit at about 1 a.m. and spoke to the aggrieved who advised the police that the appellant had called her at about 10.30 p.m. During the course of this conversation, the appellant told her he was outside her unit. He then jumped her front fence and knocked on the side door. She let him inside, where he remained at the address for some time. He demanded to see a call list on her mobile telephone; an argument resulted. At about 12.30 a.m. the aggrieved suggested they go outside to have a cigarette, and once outside the appellant was locked out of the property. This made him angry, and he started to bang on the door to gain entry. He was located and spoken to by police a short time later but denied being within 50 metres of the address.
- [9]With respect to the obstruct police charge, when the police advised the appellant he was under arrest he became very uncooperative and aggressive towards them and refused to follow simple requests and began walking away. He tensed his arms and used his body weight in an attempt to pull away, struggled violently with police and was eventually restrained with handcuffs. He was abusive and threatening towards police.
- [10]The appellant’s criminal history was tendered, which disclosed the following:
- (a)minor drug offences in March 2002;
- (b)behaving in a threatening manner and obstructing police on 19 January 2003;
- (c)possessing clip-seal bags and scales for cannabis on 26 June 2003;
- (d)stealing a street sign in 2003, together with some minor drug charges;
- (e)minor drug charges involving cannabis in July 2005.
- [11]Importantly, on 18 April 2008 the appellant was convicted and sentenced to five years’ imprisonment, suspended after serving two years (with 21 days declared), for an operational period of five years for the offence of dangerous operation causing death. The victim of the offence was the appellant’s brother. The victim had taken out a domestic violence order against the appellant. On 1 August 2006, the appellant, who was unlicensed at the time, drove his vehicle out of a driveway and at the victim, who was about 40 metres away, who was struck and later died of medical complications. The appellant drove to a friend’s place, where he abandoned the vehicle, but he surrendered to police the following day and told police he expected the victim would have jumped out of the way of the vehicle.
- [12]The defence solicitor informed the Court that the appellant was 31 years of age and was then unemployed. He was in the process of setting up his own business to sell auto parts. He had a 16 month old daughter with the aggrieved. On the night of the offence he and the aggrieved had been talking on the telephone and he was invited to go over to her unit. He was invited to go inside and was allowed to remain for some time. He was quite surprised when he was locked outside and banged on the door to be let back in to obtain his keys and mobile telephone which he had left inside. He spoke to the aggrieved through the window and she gave him the phone and keys, and he proceeded to walk home and was later arrested. He was remorseful and since the charge had not returned to the house but was in regular and good communications with the aggrieved. It was submitted that the 2008 entry was quite some time prior. It was further submitted that in respect of the 2008 offence that “his brother ran out in front of the car which resulted in his death”. This does not seem to be an accurate statement of what transpired.
- [13]It was submitted that since that time he had been focusing on making a better life for himself, his partner and his daughter. It was submitted that the appellant be penalised by way of a fine, and it was stressed there was no actual violence involved in the incident. It was further submitted another possibility was a good behaviour order. The learned magistrate said, “I don’t think he’s even close to a good behaviour order.”
- [14]After these submissions, the learned magistrate took into account the plea of guilty and agreed the facts did not demonstrate a high or even middle level of actual violence. The magistrate thought that this was not the most relevant sentencing factor given the criminal history. The magistrate referred to the criminal history and found the appellant was a high risk of doing violence in the community, and stated, “That is not the scenario for the court to be sentencing you to anything except imprisonment.” In the result the penalty already mentioned was imposed.
Appellant’s submissions
- [15]The appellant submitted:
- (a)This was a case where the appellant had been invited over to the house and only banged on the door to get his mobile phone and keys.
- (b)The domestic violence offence did not involve any violence against the aggrieved nor any allegations of abuse, threats or other inappropriate behaviour.
- (c)The appellant had not previously breached any domestic violence orders.
- (d)The magistrate did not give sufficient weight to the facts that the dangerous operation offence occurred some eight years prior.
- (e)Comparable cases relied on would suggest a fine or other community based order.
- [16]In further addendum submissions, the appellant submitted:
- (a)The learned magistrate failed to warn the appellant’s solicitor of the possibility of imprisonment, and in the circumstances procedural fairness had not been accorded.
- (b)It was an error for the learned magistrate to consider that imprisonment was the only option. In this regard the appellant relies on R v Matauaina [2011] QCA 344 at [20].
Respondent’s submissions
- [17]The respondent in its original submissions submitted:
- (a)The sentence imposed was not manifestly excessive.
- (b)The appellant was a mature man with a criminal history and was the subject of a court-imposed order which he knowingly breached.
- (c)The allegations involved direct violence towards the police and intimidation towards the aggrieved.
- (d)The police prosecutor informed the magistrate there were no previous “DVs”. It is clear this was an error.
- (e)The appellant’s solicitor incorrectly told the magistrate that the brother had run out in front of the car, which resulted in the death. The transcript of the proceedings before Acting Justice Skoien reveals differently.
- (f)Given the facts of the matter and the entries contained on the appellant’s criminal history, it was open to the magistrate to conclude that the appellant did have a quick temper and things escalated out of control for him in a violent way.
- (g)The appellant was liable to a maximum penalty on the breach of the domestic violence order of up to two years’ imprisonment.[2]
- (h)The breach of the domestic violence order was committed within 17 days of the order, thereby exhibiting a disregard and contempt for court orders.
- (i)The appellant had a criminal history which included a serious entry which involved the death of his brother.
- (j)The comparable cases relied on by the defence could be distinguished, aside from Singh v QPS [2013] QDC 37.
- (k)There were no errors made by the magistrate and the sentence imposed was not manifestly excessive.
- [18]In further written submissions, the respondent submitted:
- (a)The magistrate was not required expressly to state that a term of imprisonment was going to be imposed.
- (b)It could be implied that a harsher penalty was going to be imposed.
- (c)Cases relied upon by the defence could be distinguished.
- (d)The appeal should be dismissed.
Whether there was an error
- [19]In R v Cunningham [2005] QCA 321 at p 5 it was said:
“To impose a penalty without allowing the person affected to have an opportunity to respond is a clear breach of the rule of natural justice that a court is required to follow.”
In that particular case no notice had been given that the appellant’s license was to be disqualified with respect to assault and wilful damage charges.
- [20]In R v Kitson [2008] QCA 86 it was held that an error had occurred where the learned sentencing judge had not advised the applicant that he was going to impose a non‑parole period past the halfway point of the sentence. At [21] it was said:
“In my opinion, that contention must be accepted. Because that aspect of the sentence was unusual and was not sought or contemplated in the submissions of either party, in my respectful opinion it should not have been imposed without the learned judge adverting to it and giving the parties an opportunity to be heard.”
- [21]In R v Lui [2009] QCA 366 the court was concerned with a situation where the sentencing judge had in a trial report noted that one of the reasons for the sentence imposed was because of the prevalence of such offences in the relevant suburb in Cairns. The appellant was unaware of judge’s view on this. The view was not mentioned in the sentencing remarks. The court noted at [15]:
“…where a matter is considered by the sentencing judge to be an important consideration in the formulation of a just sentence and it cannot reasonably be assumed that the parties appreciate that it might be taken into account, it should be communicated to the parties so that they might have an opportunity to be heard about it.”
- [22]In Parker v Director of Public Prosecutions (1992) 65 A Crim R 209, the claimant was convicted of assault occasioning actual bodily harm. He was originally fined and given a suspended sentence. He appealed both his conviction and sentence. The District Court judge referred to more critical facts and sentenced the claimant to a term of imprisonment. In that case counsel submitted for a “deferred sentence” under the Crimes Act. The judge said “You must be joking. Have you completely forgotten what the Court of Criminal Appeal has said about these incidents?” It was held by Kirby P at p220.5 that this was the “sole hint” that the judge was considering an actual custodial sentence. His Honour should have exposed his thinking to counsel (see p222.6). Of course that was an appeal and the High Court in R v Neal (1982) 149 CLR 305 has laid down the proposition that where an appeal court is considering increasing a sentence on a prisoner’s appeal notice of this should be given.
- [23]Parker was followed in DPP v Shoan [2007] VSCA 220. In that case the Victorian Court of Appeal at [26] thought it was reasonable for counsel to think the appeal was merely as to the recording of a conviction. The judge ended up sentencing the offender to actual imprisonment.
- [24]As to Parker, the respondent submits the case may be distinguished. The appellant submits that Parker and other cases which have considered it supports his position.[3]
Disposition
- [25]Each case depends on its own facts and not in all cases need a sentencing judge specifically warn counsel that a custodial sentence is being considered. This is particularly so where it is obvious to all concerned that this option is available. At the end of the day it is a question of whether on the facts procedural fairness has been accorded. An analysis of the cases suggests that a specific warning should be given where the result is unusual, where the parties obviously do not contemplate a custodial outcome or where the court may increase the sentence where there is a prisoner’s appeal.
- [26]In my respectful opinion, this is a borderline case but at the end of the day the defence solicitor ought to have been aware of the possibility of a custodial sentence in light of the appellant’s history and the comment by the learned magistrate. It was clearly implied the defence submissions were rejected. The defence chose not to make further submissions. In those circumstances I dismiss this ground of appeal.
- [27]On the other hand I do consider the learned magistrate erred in stating that a prison term was the only option in this case. Bearing in mind the dangerous operation matter occurred some eight years prior and bearing in mind there was no actual violence I consider a broader range of penalties was available. In my view an outcome which ought to have been considered was a sentence which entailed anger management treatment and/or domestic violence counselling. Such treatment could not be attached as a condition to a purely suspended sentence.
- [28]In those circumstances, I consider an error has occurred and I should resentence the appellant (see AB v R (1999) 198 CLR 111 at [130]).
Further evidence
- [29]The appellant relied on an affidavit of Kara Lee Murphy as fresh evidence on the hearing of the appeal. No objection by the crown was taken to the Court receiving this affidavit, although submissions were made that not much weight should be attached to it.
- [30]The respondent relied on further details of the previous convictions and a statement from the complainant. Ultimately no objection was taken to the receipt of this material.
- [31]I note that s 224 of the JA permits the reception of new evidence. I consider that the special circumstances permit the reception of this evidence.
- [32]The affidavit deposes to the following facts:
- (a)The appellant is 32 years of age.
- (b)He attended grade 12 at school.
- (c)His parents live together in Brisbane.
- (d)He has a sister with whom he is close.
- (e)He has a good upbringing.
- (f)He has had a good work history.
- (g)He has completed an auto parts dismantler course and wishes to set up a business to provide for his 18 month old daughter.
- (h)At the time of the offences he and his wife had separated. It was a difficult time for him but he is now on good terms with her.
- (i)The domestic violence order expired on 14 January 2015.
- (j)His partner brought the daughter to visit him in prison.
- (k)He is sorry for what happened.
- (l)He is prepared to undergo counselling for domestic violence and wants to participate in a parenting course.
- (m)He wishes to set up a business on his release.
- [33]Further attached to the affidavit was a statutory declaration of the appellant’s sister. I might say that not much weight should be attached to this reference in light of the appellant’s criminal history. She does note though that his time in remand shows that he has adopted a more mature outlook on life.
- [34]An issue was raised as to whether s 9(3) of the Penalties and Sentences Act 1992 (“PSA”) applies here. Both parties submit the facts do not appear to enliven this section as the appellant is not a “violent offender” as defined. I agree that on the facts he is not a violent offender- no actual violence was used or physical harm caused.
- [35]It seems to me, taking into account the present relationship between the aggrieved and the appellant[4]; the fact that no actual violence was involved with respect to the breach of the domestic violence order; the fact that the second charge involved obstructing police rather than an assault; the purposes of sentencing contained in s 9(1) of the PSA and the factors mentioned in s 9(2) of the PSA, this is a case where it would be desirable for the appellant to undergo probation with a condition that he attend domestic violence and anger management counselling.
- [36]
- [37]In my view the community would far better be protected if the appellant undergoes a probation order with conditions. Although the 2008 offence was a serious one, it did occur some eight years ago when the appellant was much younger.
- [38]In the circumstances, subject to the consent of the appellant, I propose to record convictions on each count and to impose an 18 month probation order as specified in the order section of this judgment.
Protection order
- [39]Another issue which was raised in this case is whether this court should make a protection order.
- [40]Section 42 of the Domestic and Family Violence Protection Act 2012 (Q) (“DFVPA”) provides that a court may of its own initiative make a protection order when it convicts an offender of an offence involving domestic violence if it is satisfied an order could have been made under s 37 of the DFVPA. The court cannot make such an order unless the parties have been given a reasonable opportunity to present evidence and make submissions (see s 42(4) of the DFVPA). The appeal was adjourned for this purpose.
- [41]
- [42]The aggrieved in her statement says that the appellant and she are both responsible for previous relationship breakdowns. They have agreed to attend counselling to better communicate with each other. Whilst she has no objection to an order being made, she believes they can work out their problems with counselling. She would not like to see anything in place which would set them up to fail.
- [43]The respondent submits that an order should be made. The appellant submits that whilst the aggrieved does not seek an order herself, if one is made, it would be desirable not to impose any condition which might interfere with the appellant’s rehabilitation and to allow reunification of the family unit. The appellant does not oppose an order being made on the basic conditions without any admissions.
- [44]On the evidence I am satisfied on the balance of probabilities[10] of all matters required by s 37 of the DFVPA.
- [45]I further consider that in light of the history between the aggrieved and the appellant and bearing in mind the appellant’s criminal history, it is desirable and appropriate for a further domestic violence order to be made pursuant to s 42 of the DFVPA.
- [46]I will further make a protection order in terms of the draft provided by the Crown. This will be on the conditions mentioned in s 56 of the DFVPA.
- [47]No order for costs was sought. I make no order as to costs.
Footnotes
[1]The appellant’s name is anonymised – see s 159 of the Domestic and Family Violence Protection Act 2012 (Q).
[2]Section 177 of the Domestic Violence and Family Protection Act 2012 (Q).
[3] Toole v R [2014] NSWCCA 318; KAB v R [2015] NSWCCA 55.
[4] See statement of the complainant dated 29 April 2015.
[5]See Commissioner of Police v RTC [2009] QDC 376, RAS v Commissioner of Police [2011] QDC 366, W v QPS [2013] QDC 87, CCR v QPS [2010] QDC 486, Singh v QPS [2013] QDC 37.
[6]The Domestic and Family Violence Protection Act 2012 (Q) - Act no. 5 of 2012, commenced on 17 September 2012. It replaced the 1989 Act.
[7]See s 13 of the DVFPA - this is the case here.
[8]See s 8 of the DVFPA- the Appellant’s conduct was emotionally abusive and/or threatening on 2 February 2014.
[9]This is particularly desirable bearing in mind the breach only occurred 17 days after the original order was made.
[10]See ss 143 and 145 of the DVFPA.