TZL v QPS[2015] QDC 171

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal against sentence imposed on the Appellant for contravention of a Domestic Violence order. On 6 January 2015 at Southport Magistrates Court, he was sentenced to 10 months imprisonment, 9 days were declared as pre-sentence custody and he was released to parole on the day of sentence.

2. [2]
   The principles that apply on an appeal against the exercise of discretion are well-established. It is not enough that I might have taken a different course had I been the sentencing Judge. There must be some error at first instance: for example the Judge at first instance acted on a wrong principle; allowed extraneous or irrelevant matters to guide or affect the sentence; mistook the facts or did not take into account some material consideration. Sometimes, error will not be manifest except by the result which is, on the facts, unreasonable or plainly unjust.^[1] 

3. [3]
   Here, the appeal is brought on the grounds that it is manifestly excessive. However, some particular errors were also identified by the parties in their submissions or appear from the transcript.

4. [4]
   Firstly, there was an error in the declaration of the Appellant’s pre-sentence custody. The learned Magistrate was not provided with a Pre-sentence Custody Certificate and was informed by the Prosecutor that the Appellant had been in custody ‘probably’ since 29^th December 2014. In fact, he was taken into custody on 27^th December and had served 2 more days than his Honour declared.

5. [5]
   The Respondent submitted his Honour erred because he did not insist on being provided with a Pre-sentence Custody Certificate. I am not persuaded that failing to ask for a certificate was the error. However, the consequence of acting on the uncertain information from the Prosecutor led his Honour into error because he wrongly stated the relevant dates and period and, therefore, did not comply with the requirements of s 159A of the Penalties and Sentences Act 1992.

6. [6]
   Were that the only issue with the sentence I would not be inclined to interfere with the sentence. There is a clear and simple process for the sentencing judge to re-open the sentence to correct such errors. However, because I am satisfied the appeal should be allowed for other reasons, the declaration will be corrected by orders made on this appeal.

7. [7]
   A second issue arises from his Honour’s failure to state how the Appellant’s plea of guilty was taken into account on sentence. That is a requirement of s 13 of the Penalties and Sentences Act 1992.

8. [8]
   In R v Woods [2004] QCA 204, Jerrard JA, with whom Justices Atkinson and Philippides agreed, described s 13 a statutory expression of the common law principle. He considered stating and explaining how a plea of guilty has been taken into account is an essential part of the transparency of the sentencing process.^[2]  Failure to do so is considered an error of law.

9. [9]
   It is important on an appeal to have regard to the circumstances of the court at first instance. The Magistrates Court is a high volume jurisdiction. Matters are determined without the luxury of time to hone reasons. Sentencing remarks should be read with that in mind. In my view, the observations made by the sentencing judge during the sentencing hearing should be considered as well. Just because specific reference has not been made to some factor does not mean it was not considered on sentence.

10. [10]
    In this case, however, I must respectfully observe that the learned Magistrate gave no indication of how the plea bore upon the sentence he passed, either during the sentence hearing or in his sentencing remarks. I find this amounts to an error of law.

11. [11]
    It also seems to me that his Honour misstated the factual basis for the Appellant’s plea in a way that affected the view he took of the Appellant’s offending.

12. [12]
    The offence was constituted by the Appellant having brief personal contact with the aggrieved (his former wife) at their daughter’s child care centre and by his emailing her in breach of the following condition of the Protection Order made on 6 November 2013:

3. (5)
   The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved…

The respondent may without contravening this order contact the aggrieved, solely in relation to the child (named) including by text message or email or correspondence.

13. [13]
    During the period from 22 August and 6 December 2014 the Appellant sent the aggrieved 41 emails. The Prosecutor advised his Honour that the majority of those emails were not solely in relation to the child. He also said ‘they contain insults and abuse aimed at the aggrieved as well as images of exposed female breasts.’^[3]

14. [14]
    It is evident from an exchange during the sentencing hearing that the learned Magistrate considered sending images was an important feature of the misconduct. He said it was concerning that some of the allegations involved faxing photographs of women with large breasts or something to her. The Appellant told the Magistrate that he had received by sms a photograph of the aggrieved and that is what he sent to her. His lawyer confirmed they were the Appellant’s instructions. The Prosecutor was not in a position to and did not contest this. He told his Honour that he did not have particular details of the images.^[4]

15. [15]
    Despite this, his Honour sentenced on an incorrect factual basis. Early in his sentencing remarks, his Honour made specific reference to images. He said some of the emails I would consider to be insulting if you’re sending … pictures of other female’s breasts… to your wife in the post.^[5] As this was the only aspect of the offending he made particular reference to when sentencing, it appears he considered this was a material consideration in formulating the punishment. I am satisfied the factual error affected his Honour’s exercise of his sentencing discretion.

16. [16]
    Finally, the Appellant claims the sentence imposed was manifestly excessive and was not supported by reference to sentences involving more serious offending. The Appellant submitted that, as well as failing to take into account his plea, his Honour failed to take into account his co-operation during the investigation and the context in which the emails were sent. He also argued the learned Magistrate placed too much emphasis on the Appellant’s criminal history.

17. [17]
    This was an unusual sentence. Neither party was able to refer me to a truly comparable authority. The offending was entirely contact offending. There was no element of physical violence, actual or threatened. There was no allegation the contact amounted to intimidation, harassment or controlling behaviour. When these allegations were investigated, the Appellant explained that he was genuinely concerned about his daughter’s welfare and that the aggrieved had breached orders about his contact with the child.

18. [18]
    Given those features, and given contact was permitted in relation to the child, the number, nature and details of the contact by the Appellant assumed great importance in determining an appropriate sentence. Unfortunately his Honour was not well served by the submissions made by the Police Prosecutor. The number of emails does not seem extraordinary given they occurred over a period of about 11 weeks. It is clear that all 41 emails did not breach the order. All the Magistrate was told was that a majority did. Copies of the emails were not provided. They were described in the briefest of terms. He was not told how many contained the image or images. Nor did he know how many contained insults and abuse or the nature of those insults and abuse.

19. [19]
    The other aspect of the contact offending was very brief personal contact at a Christmas party at their daughter’s child care centre. Initially, the Appellant was the only parent present. When the aggrieved arrived, the Appellant stood in front of her, said this is my kid too and left.

20. [20]
    On those facts, the combination of those contacts would not warrant a sentence of imprisonment.

21. [21]
    However, the Appellant has an appalling history of breaching protection orders: 10 convictions in all; 8 of which related to this complainant. He was serving a Probation Order for such offences when this one occurred. Respectfully, the learned Magistrate was justified in placing considerable weight on the history. Even in the absence of specific information about the prior offences, the sheer number of them demonstrated the Appellant’s disdain for protection orders. This additional feature called for a sentence that would serve as a personal deterrent to further offending. Sensibly, that was recognised by the Appellant’s representatives, at first instance and on appeal, who both conceded a sentence of imprisonment was called for.

22. [22]
    Nonetheless, this sentence was not an opportunity to punish the Appellant again for prior offending. Respectfully, I consider the learned Magistrate gave the Appellant’s prior history such weight that it led to the imposition of a penalty which was disproportionate to the gravity of this offending.^[6] That is demonstrated by reference to the authorities I was referred to.

23. [23]
    The Appellant referred me to three cases.

24. [24]
    In PMB v Kelly [2014] QDC 301 a sentence of 12 months with release to parole at 3 months was upheld on appeal. This was a serious and sustained example of actual violence which included a threat with a knife, choking, punching and other force which ended only when the victim escaped and called police. She suffered bruising, swelling, bleeding lip and scratches. PMB had 2 prior convictions and was on probation for breach of a protection order at the time.

25. [25]
    In R v James [2012] QCA 256 a sentence of 9 months with release to parole at 4 months was upheld by both the District Court and the Court of Appeal. James assaulted the victim the day after the protection order was made. He punched her in the face as she left a toilet in the hospital she visited for treatment of the injury he had inflicted the day before. James had six prior breaches, two of them serious enough that terms of imprisonment were imposed.

26. [26]
    In Wilson v QPS [2008] QDC 008 a sentence of 10 months imprisonment with release to parole at 3 months was reduced on appeal to 6 months, suspended after time served to the date of decision. Wilson was convicted of three offences. For the first offence, he came to the victim’s house and pushed and attempted to choke the victim. On the second occasion, he was at the victim’s house at night and attempted to forcibly remove their children from her car. He knocked the victim over when she resisted. The third offence also occurred at night at the victim’s home. He threw a phone at the victim. He repeatedly struck her while she held their 1 year old son and one of the blows hit the child. He took her by the throat as she struggled to escape him. He had a shorter criminal history but the subject offending was more serious.

27. [27]
    PMB faced a maximum term of 3 years, like this Appellant. Both James and Wilson faced a maximum penalty of 12 months.

28. [28]
    The Respondent referred me to two further decisions.

29. [29]
    In WAA v QPS [2014] QDC 297 the offender was sentenced to 18 months imprisonment for breach of a protection order. He was subject to a probation order at the time of his offending and had four prior breaches but no other convictions for violence. He was a younger offender. At the time, however, he was also sentenced for the offence of assault occasioning bodily harm while armed and was sentenced to 27 months imprisonment. He stabbed the victim twice in the stomach area causing two small lacerations.

30. [30]
    In Singh v QPS [2013] QDC 37 a sentence of 9 months imprisonment and a 2 year probation order was overturned on appeal, but only because a notice to allege 4 prior convictions for breaching orders had not been served and could not be taken into account on sentence. There were two offences and they involved threats and actual violence and damage to property.

31. [31]
    I was not referred by either party to another appeal decision which has some similarities to this one. In JRB v Bird [2009] QDC 277 a sentence of 6 months with release to parole at 1 month was overturned on appeal. The offender was convicted and not further punished. That involved a similar non-contact order, except for contact in relation to the children. It did not involve any violence. This was the third breach within 6 months and had occurred only 8 days after the last one. Otherwise the offender had no criminal history.

32. [32]
    Judge Irwin said the sentence imposed on appeal should not be used as a precedent because it had to account for the time already served (22 days in custody before being granted appeal bail). There were other distinguishing features, including the offender’s justified fears for the welfare of the children, who were removed from their mother’s care, and the reconciliation of the family by the time the appeal was determined.

33. [33]
    Every case turns on its own facts, but having regard to the penalties imposed in the cases referred to, I consider the sentence of 10 months imprisonment was excessive. In any case, I would allow the appeal for the other errors in sentence I have discussed.

34. [34]
    In re-exercising the sentencing discretion, I consider a sentence of 6 months imprisonment. This reflects the offence involves contact, not actual or threatened violence, in the context of communications about their child. It adequately accounts for the aggravating features of the offence and the need for specific deterrence of the Appellant: it occurred whilst the Appellant was on probation for similar offending; and he has 10 prior offences involving 2 separate complainants.

35. [35]
    The sentence will be varied, only to the extent that the term of imprisonment is reduced from 10 months to 6 months. The immediate release to parole does not need to be revisited. It recognises that the Appellant served 11 days in custody before he was sentenced and gives sufficient credit for his co-operation during the investigation and by his early plea of guilty.

36. [36]
    The pre-sentence custody declaration must be varied to accurately record the full time in custody as time served on the sentence.