Green v Queensland Police Service
[2015] QDC 341
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- Unreported Judgment
- Green v Queensland Police Service[2015] QDC 341
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Green v Queensland Police Service[2015] QDC 341
Green v Queensland Police Service[2015] QDC 341
DISTRICT COURT OF QUEENSLAND
CITATION: Green v Queensland Police Service [2015] QDC 341
PARTIES: Bevan Steven GREEN
(Appellant)
-v-
QUEENSLAND POLICE SERVICE
(Respondent)
FILE NO.: DC 145/2015
DIVISION: Appellate
PROCEEDING: Appeal
ORIGINATING Magistrates Court at Cairns
COURT:
DELIVERED EX 27 November 2015
TEMPORE ON:
DELIVERED AT: Cairns
HEARING DATE: 26 November 2015
JUDGE: MORZONE QC DCJ
ORDER: 1. Appeal against sentence allowed.
2. The appellant is re-sentenced to three (3) months imprisonment to be served concurrently with his existing sentence, with parole eligibility set at the date of the original sentence, being 9 September 2015.
CATCHWORDS: CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 – conviction on guilty plea – limited appeal rights in respect of conviction – appeal against severity of penalty for contravention of domestic violence order – whether sentence manifestly excessive.
Legislation
Penalties and Sentences Act 1992 (Qld), ss 9, 9(3), 156A & 160F
Justices Act 1886 (Qld), s 223
Cases
House v The King (1936) 55 CLR 499
The Queen v Kendrick [2015] QCA 27
The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 2006
Murray v The Queen [2015] QDC 219
The Queen v Baker [2011] QCA 104
The Queen v Fairbrother; ex parte Attorney-General (Qld) [2005] QCA 105
COUNSEL: J. Trevino for the Appellant
SOLICITORS: O'Reilly Stevens Lawyers for the Appellant
Office of the Director of Public Prosecutions for the Respondent
- [1]On the 9th of September 2015, the appellant defendant was convicted on his own plea of guilty in the Magistrates Court held in Cairns of one charge of contravention of a domestic violence order. The appellant now appeals the resultant sentence. Both parties have provided outlines of argument and made further submissions on a hearing of the appeal, which I have considered.
Background
- [2]The appellant was born on the 4th of February 1990. He was aged 24 at the time of the offence, and was 25 at the time of sentence. He had a criminal history, which included nine previous convictions for contravention of domestic violence orders, eight of which were against the same aggrieved as in the contravening offence subject of the sentence.
- [3]The offending, subject of the criminal history, culminated in an earlier sentence imposed on the 25th of November 2014. On that date, he was dealt with for the following offences: one charge of breach of probation order imposed in respect of one dangerous operation of a motor vehicle; two charges of contravention of domestic violence order; one charge of wilful damage; one charge of failing to comply with a requirement to stop a private vehicle; six charges of contravention of a domestic violence order; three charges of common assault, and one charge of breach of bail condition. For that offending, he received a head sentence of 15 months’ imprisonment. His full-time discharge date was the 26th of November 2015. It was also declared that 92 days in pre-sentence custody was served and he was given an immediate release on parole.
- [4]He committed the current offending about two months after that sentence whilst on parole. As a consequence, he was returned to custody on the 26th of January 2015. By the time of sentence, he had spent almost eight months in custody.
- [5]The sentence subject of this appeal occurred on the 9th of September 2015. The appellant pleaded guilty to one charge of contravention of a domestic violence order. The contravening offence was committed within five years of another domestic violence offence. Therefore, the maximum penalty was three years’ imprisonment (as the law was then). He was sentenced to six months’ imprisonment, which was ordered to be served cumulatively upon the 15-month sentence he was then already serving. The learned magistrate ordered that a parole eligibility date be set at the 27th of November 2015. That date was the day after his full-time release date in respect of his pre-existing sentence.
- [6]The events preceding the subject offending were relevant to the Court’s consideration. On the 24th of January 2014, the appellant was hospitalised as a result of his partner, the aggrieved, stabbing him in the leg and foot with a knife during the course of an argument between them. As a result of that incident, a temporary protection order was made against the appellant requiring him to be of good behaviour to his partner, and also prohibiting him from contacting or attempting to contact her. That stabbing incident was not the subject of any charge.
- [7]The relevant offending occurred between 3 pm on the 25th of January 2015 and 1 am on the 26th of January 2015 whereby the appellant contacted the aggrieved on her mobile phone on 60 occasions. It was accepted that the purpose of his communication was to request the aggrieved to withdraw her complaint.
- [8]At sentence, the prosecutor emphasised the appellant’s past history of domestic violence. I have already summarised that above. It is relevant to note at this stage that the past history of offending was more serious and involved acts of personal violence against the aggrieved than the subject offending.
- [9]The appellant’s representative, in the course of submissions, made it clear that the basis upon which the matter was proceeding was that the subject offending did not involve any threats or actual violence. So much was properly conceded by the prosecutor. The appellant’s representative tendered medical evidence establishing that the appellant suffered from developmental delay, autism spectrum disorder and attention deficit hyperactivity disorder. It was not submitted that a causal link existed between those health issues and the commission of the offence. The Court was informed that the appellant had appropriately engaged with a range of mental health practitioners whilst in custody which, by the time of sentence, had extended almost eight months. The appellant’s representative submitted for a short concurrent term of imprisonment that did not exceed the full-time release date in respect of the sentence the appellant was then serving.
- [10]In the sentencing remarks, the magistrate took account of: the appellant’s early plea and cooperation; that the offence was committed whilst on parole and that he had then been required to serve the balance of the earlier sentence; his very poor history for breaching domestic violence orders; that deterrence was necessary given his previous history of contravening domestic violence orders; it was accepted the appellant suffered from a range of mental health issues and was doing some “excellent work to rehabilitate” himself in prison; but she formed a view that the term of imprisonment imposed must be cumulative so as to deter others from non-compliance with domestic violence orders.
Appeal against sentence
- [11]Pursuant to section 223 of the Justices Act1886 (Qld), an appeal under section 222 is by way of rehearing on the original evidence given in the proceeding before the magistrate. Fundamentally, the appellant must demonstrate some legal, factual or discretionary error.
- [12]This Court ought not interfere with a sentence unless it is manifestly excessive. It is vitiated by error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.
- [13]A mere difference of opinion about the way in which the sentencing discretion should be exercised is not a sufficient justification for review. Instead, it must be shown that the discretion miscarried. In doing so, the Court is cognisant of what was said in House v The King:[1]
It is not enough that the judges composing the Appellate Court consider that if they had been in a position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance.
Grounds of Appeal
- [14]The appellant contends that the magistrate erred in two significant respects which resulted in an excessive sentence:
- (a)first, the learned magistrate placed too much emphasis on the appellant’s criminal history for like offending and imposed a sentence which was disproportionate to the gravity of the instant offence and
- (b)secondly, in imposing a cumulative term, the learned magistrate failed to review the aggregate sentence and consider whether the total sentence imposed was just and appropriate.
Criminal History
- [15]It was agreed and properly conceded by the prosecution that the subject offending did not involve any threats or actual violence.[2]So much was established at the outset of the hearing.
- [16]During the course of the hearing, the prosecution traversed the appellant’s criminal history and intervening behaviour.[3]The submission was in particular detail with appropriate sequencing chronologically and contextually.
- [17]Clearly enough, these surrounding circumstances were properly provided by way of context for the subject offending. However, the danger was that that context could potentially take on an overwhelming character with the prospect of elevating the nature of the offending subject of the sentence. It seems to me that that danger was realised and can be demonstrated by the sentencing remarks of the magistrate where she conflated the past criminal history, other intervening behaviour and the subject offending. She said in the sentencing remarks:[4]
You have a very poor history for breaching your domestic violence. In fact, you have eight previous offences involving this particular young woman for whom you were in a relationship with and for whom you have a small baby. You have an extensive history for violence which involves what I would loosely describe as controlling, assaults, intimidation, physical violence, restraining the aggrieved from leaving, choking her, punching in the stomach, pinning her to the bed, and general fear and intimidation of violence and threats, which culminated in the incident before when she was – when she stabbed you as a consequence of the fear in which she lived in. This was a shocking incident, I am sure, for you, but reflective of the amount of stress that had been occasioned to her and a number of incidents which commenced on the 30th of March 2015 and concluded when you contacted her on 60 occasions to withdraw her complaint.
- [18]The criminal history and the conduct which constituted it were not so proximate to the subject offending as apparently apprehended by the magistrate. The commission of the offences subject to the criminal history did involve the matters described, but the offending occurred between the 25th of June 2014 and the 24th of August 2014, approximately one to one and a-half years before the subject offending. In fact, no behaviour commenced on the 30th of March 2015 as apprehended by the Court. The appellant was at that time in custody serving the balance of his previous sentence, having been dealt with and returned to custody on the 26th of January 2015, where he remained up to and including the date of the subject sentence, and continued even till today.
- [19]The characterisation of the events preceding the subject offending, namely, the stabbing, was apparently accepted in the context that the police did not press charges against the aggrieved, but determined that she was acting in self-defence at the time that she stabbed the appellant and that is “an extraordinary set of facts”.[5]
- [20]There was little or no regard given to any particular findings of fact surrounding the subject offending, namely, the 60 occasions of telephone contact. Indeed, the sentencing remarks seem to relegate that offending to almost incidental behaviour.
- [21]By conflating the historical criminal behaviour and other violent behaviour with the subject offending, it seems to me that her Honour mistook the facts and allowed erroneous or irrelevant matters to guide or affect her exercise of discretion. This, then, infected her reasoning which disclosed, in my view, undue weight to the criminal history and preceding conduct. In doing so, the weight given to the context became a dominant feature of the exercise of discretion rather than having an appropriately contextual relevance to the subject offending which ought to have been the dominant feature of the exercise of the discretion.
Totality of Sentencing
- [22]The appellant contends that the sentence also offends against the totality principle in that the magistrate failed to review the aggregate sentences and consider whether it was just and appropriate. The appellant points to the imposition of a cumulative term and setting of the parole eligibility date pursuant to section 160B(2) of the Penalties and Sentences Act 1992 (Qld) (“the Act”) as the date immediately following the full discharge date of the pre-existing sentence.
- [23]The totality principle has been the subject of much judicial consideration and is a settled principle of law. It was recently explained in The Queen v Kendrick.[6]I don’t propose to repeat all that was said in that judgment, with which I, of course, agree. Relevantly, in the course of the reasoning at paragraph [34] Morrison JA referred to recent remarks in The Queen v Beattie, ex parte Attorney-General (Qld)[7]where Philip McMurdo J (as he then was) spoke about the extension of the principle including:
The principle has also been extended in the sentencing of an offender who is then serving an existing sentence. In such a case, ‘the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable’.
- [24]This is reflected in section 160F of the Act which provides:
- (1)One of the objects of sections 160A to 160E is to ensure that at any one time there is only one parole release date or parole eligibility date in existence for an offender.
- (2)When fixing a date under this division as the date an offender is to be released on parole or is to be eligible for release on parole, the date fixed by the court must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment.
- [25]The legislature have provided salient examples in relation to the application of the principle under section 160B(2) of the Act relevant here. That section and the meaning of “period of imprisonment” was recently considered by this court in Murray v The Queen[8]by his Harrison DCJ. His Honour carefully examined those principles and the relevant authorities and I respectfully adopt his reasoning.
- [26]
The sentencing judge in this case did not consider, after he had imposed both sentences, whether the combined sentence offended the totality principle. He did not, in accordance with the requirements in Mill, review the aggregate sentence and consider whether the total was just and appropriate ... the failure to explicitly consider the aggregate sentence in order to determine whether the total sentence was just and appropriate bespeaks an error in the exercise of the sentencing discretion.
- [27]Here, the magistrate’s reasons are silent about totality considerations. This is not surprising given the exchange with the appellant’s representative as follows:[10]
MR ECCERSLEY: Your Honour, this is not an offence which triggers the provision of section 156A of the Penalties and Sentences Act. It doesn’t have to be cumulative upon the sentence he’s currently serving, and I’m not going to attempt to establish - - -
BENCH: I could say to you, Mr Eccersley, quite clearly that, given his history, circumstances that involved it, I would find it almost impossible to accept that submission.
MR ECCERSLEY: Well, it’s legislatively binding, your Honour. It’s not a provision which attracts a cumulative sentence that you must impose under the provisions of section 156A of the Penalties and Sentences Act.
BENCH: Yes. But I can determine that, because of his history, I can impose a cumulative sentence - - -
MR ECCERSLEY: You can, and my - - -
BENCH: because of the other factors in relation to his recidivist’s behaviour in relation to the one woman.
MR ECCERSLEY: Well, what your Honour invites, then, is a totality consideration. In that regard, he’s now spent seven months in custody for his – sorry, for this offending behaviour, which you must take into account.
BENCH: Yes. But he’s breached his parole by reoffending, a different issue altogether.
MR ECCERSLEY: Yes. But I’m going to put on the record your Honour has to take it into account, seven months.
BENCH: Yes. I will take it into account, Mr Eccersley, but - - -
MR ECCERSLEY: He still has a further two and a-half months to go - - -
BENCH: Yes. He does.
MR ECCERSLEY: ... to his current full-time release date, and the ultimate submission is going to be for – for these reasons – I’ll provide the reasons after I put the submission to your Honour – is to impose a concurrent term of imprisonment that does not see it go past the 26th of November 2015, with a parole eligibility date of today, taking into account the seven months that he’s now done. He’s pleaded guilty, and the material that I’ve put before this court in its totality – he has pleaded guilty, your Honour. ...
- [28]The magistrate said in her reasons:[11]
I intend to, then, convict and sentence you to six months’ imprisonment. However, in terms of your parole eligibility date, taking into account the excellent submissions put forward by Mr Eccersley, I have determined that I will allow your parole eligibility date as of the 27th of November 2015, which is the day after your full-time in respect of the other sentence that you are – that you’re serving.
- [29]The magistrate had immediately before indicated that she’d formed a view that it must be a cumulative period of imprisonment on the issue of deterrence to ensure people to comply with orders.[12]
- [30]It seems to me that the magistrate acted on a wrong principle by characterising the pre-existing sentence to a “different issue altogether” because the appellant breached his parole by reoffending. She apparently had no regard to the “period of imprisonment” required by section 160F of the Act and the extension of the totality principle. Instead, she proceeded by effectively segregating the period of imprisonment she was about to impose and then isolating that cumulative sentence as the focal point of setting the parole eligibility date. It seems to me that her approach caused her to fall into error by failing to take into account material considerations of the whole period of imprisonment (including the balance of the previous sentence), reviewing the aggregate sentences and considering whether the latter was just and appropriate.
Conclusion
- [31]For these reasons, in my respectful view, the magistrate erred in exercising the sentencing discretion by mistaking the facts by conflating the criminal history, previous behaviour and subject offending behaviour; allowing erroneous or irrelevant matters to guide or affect her by elevating the criminal history beyond a contextual weight and as such making it the dominant factor of her consideration; failing to take into account some material considerations of the totality principle and sections 160B(2) and 160F of the Act and acting upon a wrong principle by looking at the period of imprisonment and the prospective term of imprisonment in isolation.
- [32]How the magistrate reached the result embodied in the sentence, in my respectful opinion, was unreasonable or plainly unjust. Therefore, I allow the appeal against sentence.
Resentence
- [33]It is therefore incumbent on me to re-exercise the sentencing discretion. I have had the opportunity to consider all the material which was placed before the magistrate. The appellant’s offending involved him contacting the aggrieved by various devices over 60 times. The circumstances of that conduct is further explained in the material. In isolation, the nature and seriousness of the offence subject of the sentence was of a low order. However, it was pursued in a context which followed a heightened level of emotion and harassment following an argument and stabbing incident in the evening before. It is not clear in the material the extent, if any, the aggrieved suffered mental or emotional harm or the personal circumstances, except for what can be broadly gleaned from the contextual behaviour in the evening before.
- [34]There can be no doubting that domestic violence is at the forefront of the community’s concerns. In various manifestations, it is no less than an appalling and serious crime, usually against and as a result of profound disrespect of women and children. Such matters were highlighted by the remarks of President Justice McMurdo in The Queen v Fairbrother; ex parte Attorney-General (Qld) [2005] QCA 105. Those remarks are as pertinent then as they are now.
- [35]I’ve had regard to the matters submitted and the material setting out the appellant’s personal and family circumstances, his medical and psychiatric condition, matters of rehabilitation, the personal impact and remorse demonstrated by his plea. His past record of offending is of a particular concern, and I have remarked about that in the course of these reasons. That behaviour occurred some one to one and a-half years before the sentence imposed by the magistrate. Since then, the appellant has been subject of further imprisonment, and the period of that offending is even greater when considered today. It does demonstrate a particular need for personal deterrence in structuring the appropriate sentence. However, care must be taken to ensure that the criminal history is not elevated such as to form part of the behaviour subject of the sentence itself.
- [36]The sentence that ought be imposed must accord with the Act (including the principles set out above) such that it is appropriate punishment in the circumstances, facilitates avenues of rehabilitation, deters similar behaviour by the appellant and others, makes it clear that the community denounces the appellant’s conduct in the offending and protects the community.
- [37]The offending proceeded on a factual basis that it did not involve a threat or actual violence. Therefore, the requirements in section 9(3) of the Act are not directly enlivened. Nevertheless, it is an appropriate consideration in the sentencing discretion, in my view, to have regard to the risk of physical harm to the aggrieved if a custodial sentence is not imposed and the need to protect the community from that risk. Of course, all of the matters subject of consideration in section 9 of the Act ought be considered.
- [38]I take into account the appellant’s plea of guilty and cooperation with the police and prosecuting agencies, such as to save time, cost, inconvenience of a trial as well as avoiding the trauma to the aggrieved which would result from sustained court proceedings.
Orders
- [39]As I said, I allow the appeal. I set aside the orders made by the Magistrates Court imposing a six-month term of imprisonment to be served cumulatively with a parole eligibility date of the 27th of November 2015 and substitute the following orders: the appellant will be sentenced to three months’ imprisonment, to be served concurrently with his existing sentence, with a parole eligibility date set at the date of the original sentence, being the 9th of September 2015.
- [40]The result is that the appellant has served and completed his full term of imprisonment.
Judge D. P. Morzone QC
Footnotes
[1](1936) 55 CLR 499 at 504 and 505.
[2]Transcript p 2, lines 23 to 31.
[3]Transcript p 10, line 2; and p 12.
[4]Page 2, lines 10 to 20.
[5]Page 3, lines 5 to 6.
[6][2015] QCA 27 at [31]-[41].
[7][2014] QCA 2006 at [19].
[8][2015] QDC 219.
[9][2011] QCA 104 at [47].
[10]Transcript p 18, line 16 to p 19, line 10.
[11]Decision p 3, lines 23 to 30.
[12]Decision p 3, lines 23 to 24.