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Gibuma v Queensland Police Service[2016] QDC 183

Gibuma v Queensland Police Service[2016] QDC 183

DISTRICT COURT OF QUEENSLAND

CITATION:

Gibuma v Queensland Police Service [2016] QDC 183

PARTIES:

KENNETH MICHAEL GIBUMA

(Appellant)

v

QUEENSLAND POLICE SERVICE

(Respondent)

FILE NO/S:

DC 44 of 2016

DIVISION:

Appellate

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

Wednesday, 29 June 2016

DELIVERED AT:

Cairns

HEARING DATE:

24th June 2016

JUDGE:

Harrison DCJ

ORDERS:

  1. Appeal is allowed.
  2. In lieu of the sentences imposed by the learned magistrate the following sentences are imposed:
  • Contravention of domestic violence order 30.09.15- 6 months imprisonment;
  • Breach of bail condition  16.11.15- 6 months imprisonment;
  • Breach of bail condition between 31.12.15 and 04.01.16- 6 months imprisonment;
  • Contravention of the domestic violence 03.01.16- 15 months imprisonment;
  • Failure to report – 3 months imprisonment;
  • Parole release date to be fixed at 24th June 2016; and
  • All sentences to be served concurrently.

CATCHWORDS:

CRIMINAL LAW- s 222 APPEAL-APPEAL AGAINST SENTENCE- WHETHER SENTENCE IS MANIFESTLY EXCESSIVE- where the applicant was sentenced to a head sentence of three years for contravention of a domestic violence order- facts compared to R v Kowearpta [2009] QCA 48 and IFM v Queensland Police Service (2016) QDC 140.

COUNSEL:

J. Sheridan for the Applicant

Y. McDonald for the Respondent

SOLICITORS:

Aboriginal and Torres Strait Islander Legal Services for the Applicant

Department of Public Prosecutions (Qld) for the Respondent

  1. [1]
    On the 24th of June 2016, I upheld the appeal against sentence in this matter and I now provide my reasons.
  1. [2]
    Relevant Offences

On the 16th day of March 2016, the applicant was convicted on his own pleas of guilty and sentenced in relation to the following matters:

  1. (1)
    Contravention of a domestic violence order on the 30th of September 2015 – 12 months’ imprisonment.
  1. (2)
    Breach of a bail condition on the 16th of November 2015 – 12 months’ imprisonment.
  1. (3)
    Breach of bail condition between the 31st of December 2015 and the 4th of January 2016 – 12 months’ imprisonment.
  1. (4)
    Contravention of a domestic violence order on the 3rd of January 2016 – 3 years’ imprisonment.
  1. (5)
    Failure to comply with reporting conditions – 6 months’ imprisonment.
  1. [3]
    All sentences were to be served concurrently and his parole release date was fixed at the 5th of January 2017, after allowance was made for a total of 50 days that he had served in pre-sentence custody but for which no declaration was made.  Effectively, therefore, he was required to serve roughly one-third of that sentence.  He appealed under section 222 of the Justices Act 1886, essentially on the basis that the sentence imposed was manifestly excessive.  This was in fact conceded by the respondent when the matter was mentioned before me on the 24th of June 2016.  Nonetheless, it is necessary for me to properly consider the matter.
  1. [4]
    Circumstances Surrounding Offending

The circumstances are all set out in a sentencing schedule which was tendered before the learned magistrate on sentence.  The first offence in time related to the failure to comply with reporting conditions.  On the 23rd of April 2012, the applicant was sentenced in the District Court at Cairns to an offence of unlawfully dealing with a child under the age of 16 years, under the age of 12 years.  He was sentenced to nine months imprisonment suspended after serving three months for an operational period of nine months.  This meant that he was, under the relevant legislation, required to report for a period of five years.

  1. [5]
    Service of the relevant documentation was effected on the 26th of October 2014 and this confirmed his requirement to report for five years.  One of the conditions noted was that he was required to provide his address from time to time to the Child Protection Offender Registry – Queensland Police Service, Brisbane.  It seems that at different times he did do that.  In mid-2015, he advised the relevant authorities that he was moving to Innisfail, but after moving to Innisfail, he failed to report his address between the 21st of July 2015 and the 16th of November 2015.  On the material before the court, he was apparently in Innisfail for part of, if not all of, that time.  It is interesting to note that he did have a previous conviction for that offence, which I will deal with later when I refer to his previous criminal history.
  1. [6]
    The second charge in time is the contravention of the domestic violence order on the 30th of September 2015.  On the 29th of July 2015, he was present in the Magistrates Court at Innisfail when a domestic violence order was made in favour of the complainant in this matter and this contained the usual mandatory conditions.  On the 30th of September 2015, the Innisfail Police attended at the address of the complainant in relation to what was referred to as a domestic disturbance.  He was noted sitting in a chair in the driveway with the aggrieved over the road opposite, apparently trying to hide from him behind some bushes.
  1. [7]
    The aggrieved informed the police that he had been there and had been drinking since 10 that morning – police arrived at 2 pm – and that a verbal argument had ensued. In the course of that argument, she flicked a towel at him which hit him in the eye and as a result of that, he pushed her on the forehead causing her to fall over. She attempted to run away. It appears as though he tried to take hold of her because her dress was torn on the back as she tried to get away. She was successful, however, in getting away and the matter was subsequently resolved by the police, who formally charged him with a breach of the domestic violence protection order.
  1. [8]
    The third offence in time involves a breach of a bail condition on the 16th of November 2015.  He had earlier been granted bail in relation to the contravention.  That bail was enlarged on the 19th of October 2015 and again on the 2nd of November 2015 and again on the 30th of November 2015.  So he was on that bail at the time.  He was required not attend at the specific address of the complainant or any other place where she may from time to time reside.  On the 16th of November 2015, the police again attended at the complainant’s premises.  He was noted to be there on that occasion, although there is nothing in the schedule of facts which talks of any untoward behaviour on his part beyond his attendance.
  1. [9]
    The fourth charge in time relates to the breach of bail condition over the period of time from the 31st of December to the 4th of January 2016.  What is particularised here is the fact that he appeared to be at her residence from that time.  Despite the fact that he was there from at least the 31st of December, it appears as though the complainant herself never made any complaint to the police until the 3rd of January.  I find that somewhat unusual in circumstances where she would have been aware of what the bail conditions were.  One of the difficulties with matters such as this is where the complainant continues to have contact with the person, the subject of the order, particularly here where it would have been clear to her that the very condition of the bail required him not to be there.
  1. [10]
    The schedule is set out what happened over a course of time from the 31st of January – 31st of December 2015 to the 4th of January 2016.  There is no doubt that at different times he drank, and drank excessively.  There is no doubt that at some times he became abusive and demanding, although there was no suggestion which becomes particularly relevant, when I consider the learned magistrate’s reasons, of any violence on those occasions.
  1. [11]
    The fifth offence relates to the incidents on the 3rd of January 2016.  This was the offence for which a sentence of three years imprisonment was imposed.  This relates to the police attendance at the same premises on the 3rd of January 2016.  He was located by the police lying on a trampoline in the front yard.  He smelled strongly of liquor and had trouble standing up.  The allegations do not, however, show any adverse conduct directed particularly at her.
  1. [12]
    Previous Criminal History

There is no doubt that he had a particularly serious criminal history.  This was read to the court by the prosecutor.  I have also had regard to the criminal history which was tendered as an exhibit and also to the summary of his offending as set out by the learned magistrate in her reasons.  The relevant summary commences at the bottom of page 3 of her decision through to about line 30 on page 5 of her decision.  She noted a history of offences going back to 1975.  She referred particularly to an aggravated assault on a female and the offence of assault occasioning bodily harm in 1984, to an of aggravated assault and assault occasioning bodily harm in 1995, a breach of a domestic violence order and obstruct police in 1995, an assault occasioning bodily harm for which he was sent to prison in 1996, a further breach of a domestic violence order in 1996 and a further one in 1997.

  1. [13]
    She noted further breaches in 1998 and, again, in 2000 when he was sentenced to nine months imprisonment. She noted that he was sentenced in 2001 for assault occasioning bodily harm and for a breach of a domestic violence order. On this occasion, the sentence imposed was four months imprisonment. She noted a breach of a domestic violence order in 2002 and another for common assault and a breach of domestic violence order in 2005, and she referred to a sentence in the District Court at Cairns for entering a dwelling-house with intent, assault occasioning bodily harm and deprivation of liberty. This was dealt with by his Honour Judge White. She quoted from the sentencing remarks from Judge White which were tendered to her about his problems with alcohol, the excessive consumption of alcohol and how the offences which related to domestic violence appeared to relate to some problem there.
  1. [14]
    She also noted his comments to the effect that the prisoner, as he was then described, had some more deep-seated problems in relation to his attitude towards women. She also noted that there was a further breach in 2009 and she accepted a submission which was advanced by the solicitor for the applicant that there were no such breaches between 2010 and 2015. She did, however, note that he was dealt with in the Magistrates Court for a failure to report in respect of the other matter which involved the child that I referred to earlier.
  1. [15]
    The learned magistrate’s reasoning in terms of the scale of the sentence imposed is essentially set out from about line 30 on page 5 of her decision through to line 20 on page 6. She has placed considerable emphasis on the whole issue of violence towards women and children even though, it would seem, that the only allegation of violence in relation to all of these offences for which he collectively received a period of imprisonment of three years was the push in response to the flick in the eye by the towel in the offence committed on the 30th of September 2015.  At one point, the learned magistrate said:

But in this case, in my view, your criminal history shows offences against women and children over and over and over again.  Why you have been allowed to continue to offend so long is of some concern to me.

  1. [16]
    It is unclear what was meant by that, but it is well accepted that he stood to be sentenced on the behaviour for which he was brought before the court. It was not a question as to whether or not any earlier sentences imposed by the courts had been adequate. The reference to children seems to me to relate to the offence for which he was required to do the reporting conditions, although I accept his record insofar as domestic violence was concerned and breaches was concerned was atrocious. She spoke of the need to protect women, particularly Indigenous women, and quite properly said that they deserve the same protection as white women.
  1. [17]
    She noted that women deserved to be and to feel safe in their houses and safe from continued offending. She then went on to say that the offending in his case has continued despite the fact that he was on suspended sentences, despite the fact that he was on bail conditions in relation to that matter. She said that the continued offending that puts these offences at the higher end of the spectrum. I can certainly understand why any court would take the view that the persistence of his behaviour in terms of attendance would justify a sentence at the higher end of the appropriate range. The real difficulty in this case, however, is just what that range is when one looks at what he actually did.
  1. [18]
    The learned magistrate placed considerable weight on what was described as the fear of the aggrieved person in this case, but that needs to be balanced with the fact that whilst he was a pest, a nuisance, and whilst he did disregard some court orders and bail conditions, he was not, on these occasions, particularly violent. It is worth noting that he was 61 years of age at the time of the offending and 61 years of age at the time of sentence. When I compare this matter with the more serious cases of spousal violence that we regularly see in this court, it seems to me that the penalty imposed here of three years is well outside the established range for that type of offending. This is well illustrated by reference to a number of decisions.
  1. [19]
    In this court, we regularly see very serious examples of spousal violence. One case which is often referred to this court in the very serious cases is the matter of R v Kowearpta [2009] QCA 48.  On that occasion, it was repetitive and serious violence inflicted on the partner by the prisoner.  He was dealt with for three offences of assaults occasioning bodily harm:  one of going armed so as to cause fear, one of deprivation of liberty and two less serious charges.  The circumstances surrounding the offending are set out on page 3 of that decision.  In the first incident in time, the applicant punched the complainant in the face with sufficient force to knock her to the ground.
  1. [20]
    When she stood up, the applicant again punched her in the face, causing her nose to bleed. Subsequently, he threatened her with a fork that she picked up in the kitchen. That led to a struggle and he bit her on the arm. He later apologised but, at the same time, threatened to strike her again if she sought medical attention or reported the matter to police. She was left with a bruised and swollen left eye, a swollen and bloody nose and a bite mark to her left forearm. In a subsequent event, 13 days later, he attended at her home, punched her in the face, caused her to fall on the bed, and kicked her in the stomach, back and ribs a number of times. He then attempted to choke her. He picked up a pair of scissors and stabbed her in the left arm, causing a puncture wound.
  1. [21]
    Orders were obtained to keep him away from her and less than three months later he found her on her way home, threatened her with a knife after grabbing her in a laneway quite forcefully by the arm. There were also some less serious matters associated with that. That illustrates the type of offending which justifies a sentence in the region of three and a-half years. And the sentence in this case was three years with a level of seriousness that was nowhere near that type of offending in Kowearpta.  I had to deal with two matters in the last two weeks where substantial penalties of two and a-half years and three years have been applied to Aboriginal men who have been physical abusive to their partners.  Again, in far more serious circumstances than what is complained of here, even though slightly less serious than the allegations in Kowearpta.
  1. [22]
    I accept that the sentence imposed here is well outside the accepted range. I also had the benefit of reading a decision of his Honour Judge Durward in IFM v Queensland Police Service (2016) QDC 140, which was handed down on the 17th of May 2016.  On that occasion, the applicant was dealt with for two charges of contravention of domestic violence orders on separate dates, two breaches of bail conditions on those same dates and a further contravention on a third day.  The sentence imposed there, which was not interfered with on appeal, was 15 months.  His offending, on the face of it, was more serious than that of the applicant here.  The facts are very neatly summarised in paragraphs 10 and 11 of the decision.
  1. [23]
    The first incident in time involved the appellant pushing over the complainant and punching her in the jaw. On a later occasion, he grabbed her by the throat and hit her, knocking her to the ground, kicking her in the body, dragged her to her feet and verbally abused her. He then dragged her to a nearby park, knocked her to the ground on the way, hit her in the head, picked her up and continued to drag her with him. The other matters were less serious. He too had previous convictions for similar offences, although it is not clear just how bad that record was. I doubt that it was necessarily as extensive as the one of the applicant in this case. It seems to me that the applicant here was sentenced on the basis of violence in circumstances where there was little violence.
  1. [24]
    The real gravamen of his offending, as I see it, was his failure to comply with court orders and bail conditions. It seems to me that even after allowing for his atrocious history no penalty in excess of 15 months would have been justified in his case. I say that particularly because of the behaviour complained of. As I said earlier, he was a pest and a nuisance, but not particularly violent, particularly for someone who has quite an extensive history of violence as summarised by the learned magistrate. Having concluded that the sentence was manifestly excessive, it seems to me that an appropriate penalty in this case was one of 15 months’ imprisonment.
  1. [25]
    I confirm that on the 24th of this month I made the following orders:  (1) that the appeal against sentence be upheld, (2) that in lieu of the sentences imposed by the learned magistrate the following sentences should be imposed.  On the contravention of the domestic violence order, on the 30th of September 2015, six months’ imprisonment.  On the breach of bail condition, on the 16th of November 2015, six months’ imprisonment.  On the breach of bail condition between the 31st of December 2015 and the 4th of January 2016, six months’ imprisonment.  On the contravention of the domestic violence order on the 3rd of January 2016, 15 months’ imprisonment.  And on the failure to report, three months’ imprisonment.
  1. [26]
    I confirm that I ordered that his parole release date be fixed at the 24th of June 2016 and that all sentences were to be served concurrently.  I should add that when sentencing him the learned magistrate also quite correctly ordered that he serve the balance of a suspended sentence, being a sentence of one month, which had been suspended for 18 months in respect of an earlier failure to report.  I note that he has, in fact, served that month in any event.  I confirm that I also made the necessary declaration to the effect that 170 days from the 5th of January 2016 to the 23rd of June 2016 was time served in respect of the sentence that I imposed when I resentenced him on the 24th of June 2016. 

______________________

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Editorial Notes

  • Published Case Name:

    Gibuma v Queensland Police Service

  • Shortened Case Name:

    Gibuma v Queensland Police Service

  • MNC:

    [2016] QDC 183

  • Court:

    QDC

  • Judge(s):

    Harrison DCJ

  • Date:

    29 Jun 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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