Commissioner of Police v DGM[2016] QDC 22

DISTRICT COURT OF QUEENSLAND

1. [1]
   Mr DGM assaulted his pregnant partner (the complainant) in her home, at night. Their first child, who was then one year old, was within earshot. A little over 2 weeks earlier, Mr DGM was served with a Temporary Protection Order under the Domestic and Family Violence Protection Act 2012. It named the complainant, their young son and their unborn child as the persons protected by the order. Apparently the order was made because Mr DGM hit the complainant some time earlier.^[1]

2. [2]
   About 7 weeks after the assault, Mr DGM pleaded guilty to and was sentenced for a number of offences committed that night. He was also dealt with for repeated breaches of bail pending sentence. The primary sentence was 12 months imprisonment for assault occasioning bodily harm. The Magistrate also imposed concurrent lesser terms for other offences and wholly activated a suspended sentence that he breached by committing these offences. Mr DGM was released to parole on the day of sentence.

3. [3]
   The Commissioner of Police has appealed against the sentences imposed on Mr DGM. The focus of the appeal was the term imposed for the offence of assault occasioning bodily harm and his immediate release to parole. The primary ground of appeal is that the sentence is manifestly inadequate. The Commissioner of Police argued the sentencing Magistrate placed too much or too little weight on relevant factors and took into account irrelevant matters.

4. [4]
   The principles that apply on an appeal against sentence are well-established. It is not enough that the appeal court might have imposed a different sentence. The sentencing Judge must have made some error in exercising the sentencing discretion. Examples of appealable errors include the following: the Judge acted on a wrong principle; the Judge allowed extraneous or irrelevant matters to guide or affect them; the Judge 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.^[2]  In this case the Commissioner of Police relies on specific errors, but also argues the result is manifestly unreasonable or plainly unjust.

The circumstances of the offences

5. [5]
   Mr DGM did not contest the prosecutor’s summary of the facts on sentence.

6. [6]
   A Temporary Protection Order was granted on 19 May 2015 and served on Mr DGM on 22 May 2015. He had to be of good behaviour towards the protected persons. He could not commit domestic violence or expose their child to domestic violence (the same condition to apply to their unborn child once born). He could not be in the vicinity of the complainant, except for authorised contact with their child and with the complainant’s consent.

7. [7]
   On 5 June 2015, at about 8pm, Mr DGM went to the complainant’s home to visit his child. He did not have proper authorisation. This was the first breach of the TPO.

8. [8]
   He began yelling at the complainant, who started to walk away. He yelled “Come here. I want to talk to you.”She replied “No. You will hit me.”- an apparent reference to earlier incidents of violence prior to the TPO being made.  Mr DGM walked quickly towards her, took off his jacket, placed his bag on the ground, took a metal pole out of his bag, raised his clenched fist towards her and said “Come on then you fucking dog. Let’s go then, you scummy cunt. You’re a fat slut.” This verbal abuse and threatening conduct towards the complainant, constituted the second breach of the TPO. The third breach occurred because he exposed his child, who was within earshot, to domestic violence.

9. [9]
   The assault occasioning bodily harm started when Mr DGM approached the complainant holding a metal pole. He raised his right hand and yelled “I’m going to hit you, you dog.” He dropped the metal pole and walked towards her with a clenched fist. He punched her in the forehead and repeatedly struck her in the face, on both cheeks. He kicked her in her ribs, under her breast, with his left foot. She fell to the ground. She said she felt excruciating pain and blacked out for a few seconds.

10. [10]
    When she came to, the complainant asked him to leave and tried to use her phone to call police. Mr DGM grabbed the phone and threw it to the ground. She was walking towards the front yard when he kicked the right hand side of her face. She said she felt immediate pain and fell to the ground, putting her arms around her face. Mr DGM started kicking her all over her body, head, back, ribs and legs. The complainant told police she felt excruciating pain and blacked out again. She awoke to police sirens and saw Mr DGM grab his bag and jump the side fence.

11. [11]
    The police looked for Mr DGM but could not find him. The complainant was taken to Caboolture Hospital for treatment. She was released at 11pm. Luckily, she had no lasting injuries, but sustained some bruising and tenderness.

12. [12]
    The final breach of the TPO occurred at about 11.20pm, after she had returned from hospital. Mr DGM came into her yard and asked to speak to her. Somebody called police who found Mr DGM in the passenger seat of a car, with a machete at his feet. He obstructed police by refusing to get out of the car as directed. He was also charged with unlawful possession of the machete.

13. [13]
    The breaches of bail occurred when Mr DGM failed to report on 7 occasions over a 3 week period leading up to the day he surrendered himself to police and was sentenced.

Mr DGM’s antecedents

14. [14]
    Mr DGM is now 21 years old; 20 at the time of sentence. He has a criminal history commencing about 2 years before these offences. It shows entries for property and street offences. He has a history of breaching community based orders. In 2013 he served 27 days in pre-sentence custody for a number of property offences. In May 2015, about one month before these offences, he was sentenced to 6 weeks imprisonment, which was wholly suspended. That sentence was imposed when he was resentenced for drink driving (mid-range) and related offences. He was originally sentenced to a period on Probation. He was resentenced because he breached that order. Mr DGM has no previous convictions for violent offending or for contravening a protection order. There had been at least one act of violence against the complainant which led to the TPO, but it was not charged as an offence.

Defence submissions on sentence

15. [15]
    His lawyer made the following submissions on sentence. Mr DGM entered an early plea. He was heavily affected by methamphetamine to the point of being psychotic. He was towards the end of the TPO (it did not expire, though, until 14 July 2015). He had no prior history of violence or breaching a domestic violence order.

16. [16]
    Mr DGM, an indigenous man, had sought help through a Justice Group (although at that time he had not started any programs). He did not report on bail because he left the bail address; his mother’s house in Townsville. Their relationship broke down because cannabis and alcohol was being abused in her house. He was trying to remain drug-free.

17. [17]
    He returned to Caboolture where he has support from his grandparents. His grandfather is a respected member of the community. He voluntarily attended the police station on the day of sentence knowing he would be charged with breaching his bail. He takes responsibility for the extremely serious incident. He is still a young man. While he was looking for work; his focus was on staying drug free.

18. [18]
    Mr DGM was deeply remorseful. He had apologised to the complainant who expressed a desire to maintain a relationship with him. He was supported in court by her and by other family members.

19. [19]
    His lawyer did not argue against a reasonably lengthy period of imprisonment or against wholly activating the suspended sentence, but submitted Mr DGM could be immediately released on parole. On parole he would be subject to drug testing and could access relevant programs.

Did the Magistrate give no or inadequate weight to aggravating features?

20. [20]
    The Commissioner of Police argued her Honour failed to give any or adequate weight to a number of aggravating features. All of them were put before her during the sentencing hearing. She described the offending in her sentencing remarks as extremely seriousand noted the injury to the mother of his child was substantial and that what he had exposed her and the child to was really serious.^[3] She also described the assault as this horrendous act of violence.^[4]

21. [21]
    However, she did not specifically mention a number of factors: that the complainant was pregnant at the time; that the complainant said she blacked out twice; that it was a prolonged attack involving multiple kicks and blows; that he prevented her calling police before continuing to attack her; and that he absconded and returned that night again in breach of the TPO.

22. [22]
    The learned Magistrate is an experienced Magistrate sitting in a busy jurisdiction. I am not persuaded her failure to explicitly state certain aggravating features means she has not given them any weight at all. I will assess whether the sentence was manifestly inadequate once I have identified the mitigating factors and considered comparable authorities.

23. [23]

Did the Magistrate give too much weight to mitigating factors?

24. [24]
    Mr DGM was entitled to the benefit of his plea. However, the Attorney argued the learned magistrate either misconceived or gave too much weight to factors submitted in mitigation.

Bail – self surrender

25. [25]
    The Attorney argued the sentencing Magistrate erred in taking into account Mr DGM’s voluntary surrender to the police. This made a virtue out of an obligation; and occurred after 7 consecutive failures to report on bail. On the other hand, Mr DGM’s representative submitted his voluntary surrender showed Mr DGM had decided to turn his life around.

26. [26]
    Mr DGM is a young indigenous man. When he assaulted the complainant he was in the grip of a drug addiction. He voluntarily surrendered, knowing he would be taken into custody. This might indicate a change in attitude, which could be relevant to his prospects of rehabilitation.

27. [27]
    Performance on bail can be a mitigating factor. In R v Bosnjak Keane JA, as he then was, said “Rehabilitation indicated by a lengthy period on bail without re-offending is a factor which may weigh significantly in an applicant's favour”^[5]That offender was compliant on bail for some 5 years.

28. [28]
    Mr DGM was on bail for about 7 weeks. He committed bail offences numerous times in the 3 weeks before sentence. This conduct was consistent with his well-established pattern of non-compliance with court orders. His decision to voluntarily surrender might show a change of attitude, but it did not mitigate his violent offending. In the context of his persistent history of non-compliance on bail and on community based orders, his actions on the morning of sentence were too recent to reasonably enhance his prospects of rehabilitation.

29. [29]
    When sentencing Mr DGM, the sentencing Magistrate said “I also very much take into account the fact that you’ve handed yourself in and therefore that shows a willingness to accept the responsibilities.”^[6]  That view is very generous to Mr DGM, but I can see how her Honour reached it. However, it was not a factor that warranted significant credit on sentence.

30. [30]
    Respectfully, I have concluded the sentencing Magistrate did err in this respect. Mr DGM’s voluntary surrender was largely irrelevant on sentence, except perhaps for the bail breaches. Her Honour gave significant credit for a feature worthy of little, if any, weight.

A very young person

31. [31]
    Mr DGM was only 20 years old at sentence. The courts often extend comparative lenience to young offenders to maximise their prospects of rehabilitation.^[7]His criminal history was not so serious that it fatally weakened his claim to age being a factor in mitigation, as the prosecutor argued. The sentencing Magistrate made no error in taking Mr DGM’s age into account as a factor in mitigation.

Support of partner

32. [32]
    The complainant was in court during the sentencing hearing, apparently to support Mr DGM. She told his lawyer she wished to continue the relationship and for Mr DGM to fulfil his role as father to their children.

33. [33]
    On appeal, the prosecutor submitted the sentencing Magistrate placed too much weight on this factor. Ongoing support of the victim is often a feature of domestic violence and can be associated with repeat offending against that victim.

34. [34]
    Courts in Queensland and in other states of Australia, have recognised the need to approach submissions about reconciliation with real caution, because of the particular features of domestic and family violence. The fact that a victim is a reluctant complainant is not a mitigating factor.^[8]Likewise, reconciliation after the victim has complained ought not mitigate the sentence.

35. [35]
    There may be cases in which reconciliation is relevant to an offender’s prospects of rehabilitation.^[9]However, that comes from the offender’s conduct, not the victim’s forgiveness. The nature of the relationship means victims may, contrary to their own welfare, forgive their attacker. That does not reduce the risk posed by the offender and, depending on the dynamics in a particular relationship, it could well exacerbate the risk. Necessarily, prospects of rehabilitation must be assessed by reference to the offender’s attitude and conduct, not the victim’s.

36. [36]
    Even if the complainant’s support for Mr DGM is relevant, it is only one factor to be considered on sentence.^[10]Denunciation and deterrence are the dominant considerations on sentence for such offences.^[11] 

37. [37]
    In R v Fairbrother; ex parte A-G (Qld) McMurdo P provided useful guidance for sentencing judges:^[12]

 “[23] Domestic violence is an insidious, prevalent and serious problem in our society. Victims are often too ashamed to publicly complain, partly because of the misguided feelings of guilt and responsibility for the perpetrator’s actions. Members of the community are often reluctant to become involved in the personal relationships of others where domestic violence is concerned. Perpetrators of domestic violence often fail to have insight into the seriousness of their offending, claiming an entitlement to behave in that way, or at least to be forgiven by the victim and to evade punishment by society. Domestic violence has a deleterious on-going impact not only on the immediate victim but on the victim’s wider family and ultimately on the whole of society. It is not only a domestic issue; it is a crime against the State warranting a salutary punishment. The cost to the community in terms of lost income and productivity, medical and psychological treatment and on-going social problems is immense. Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour. They can expect the courts to impose significant sentences of imprisonment involving actual custody to deter not only individual offenders but also others who might otherwise think they can commit such acts with near impunity.” (emphasis added)

38. [38]
    On appeal, the prosecutor argued the sentencing Magistrate treated the complainant’s support for Mr DGM as a mitigating factor. I am not persuaded she did.

39. [39]
    Her Honour said: “You are fortunate in that your partner still is wanting to continue to have a relationship with you even though she’s been subjected to this horrendous act of violence on your part…”^[13]This observation does not suggest he got any credit on sentence.  Magistrates are exposed by their case load to the cyclical nature of domestic violence. The sentencing Magistrate can be expected to understand that a victim’s forgiveness provides no assurance about an offender’s future conduct. While she might have been more explicit about how she regarded the complainant’s support on sentence, her Honour’s observation of Mr DGM’s good fortune does not demonstrate error.

Rehabilitation

40. [40]
    The prosecutor argued that by immediately releasing Mr DGM on parole, the sentencing Magistrate placed too much weight on rehabilitation. Mr DGM failed to complete a number of community based orders, his offending was escalating and a suspended sentence of imprisonment was imposed shortly before he committed the primary offences.

41. [41]
    Although Mr DGM is young and had made contact with the Justice Group in his area, there was little else to suggest he has good prospects of rehabilitation. His past history, his offending when on a suspended sentence and in breach of a TPO and the subsequent repeated breaches of bail establish he did not have strong prospects of rehabilitation.

42. [42]
    The Magistrate had scant information about the background to the TPO. She had limited information about Mr DGM’s contact with the Justice Group. She had no evidence of his addiction status. This may be explained by the speed of sentencing. Mr DGM surrendered to police in the morning and was sentenced that afternoon. Regardless of the haste, it is the parties’ obligation to place adequate information before courts so judicial officers can properly fulfil their functions.

43. [43]
    In immediately releasing Mr DGM, the sentencing Magistrate was evidently intending to encourage his rehabilitation. This is an important consideration when sentencing a young indigenous man with a drug addiction. However it was not the dominant factor on this sentence. It had to be balanced with the need to denounce and deter serious violence against a vulnerable victim. I accept the prosecutor’s submission that there is a disparity between her Honour’s description of the offence and the sentence ultimately imposed. Respectfully, I consider her Honour erred by placing too much weight on rehabilitation given the information provided to her on sentence.

Is the sentence manifestly inadequate?

44. [44]
    Regrettably, the parties did not refer to any comparable authorities to assist the sentencing Magistrate to formulate her sentence.

45. [45]
    On appeal, the prosecutor argued R v RAP [2014] QCA 228 provides a yardstick for a sentence in the order of 2 years imprisonment with a release to parole at 8 months. The solicitor for the defence, argued RAP could be distinguished and referred the Court to the cases of R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105, R v Johnson [2002] QCA 283 and R v Denham; ex parte A-G (Qld) [2003] QCA 74.

46. [46]
    RAP was a 48 year old first offender who punched, kicked and dragged his wife along the ground by her hair in a sustained assault. It persisted despite intervention by their 16 year old son, who physically restrained his father. It ended when his wife took refuge in a bedroom. He committed a further offence of wilful damage trying to enter the bedroom. His wife suffered serious injuries, including three facial fractures. After the offences, RAP was diagnosed with a form of alcohol dependence and adjustment disorders and underwent professional treatment. The Court of Appeal did not disturb the sentence of 2 years suspended after 8 months.

47. [47]
    The complainant’s injuries were more serious in RAP. The assault came without warning and from behind and persisted despite intervention. His victim was terrified.  Against that, there was only one kick (not the multiple kicks Mr DGM’s partner endured), his victim was not pregnant, the assault was not committed in the presence of a 1 year old child and he was not in contravention of TPO or in breach of a suspended sentence.

48. [48]
    RAP was a much more mature offender, but had no criminal history. He entered a timely plea, although he sought to minimise or downplay the seriousness of his offending. Later, he breached a domestic violence order made after the assault, but not through an act of violence. Mr DGM was a younger man with a criminal history but no prior convictions for violent offending. He entered early pleas to all charges.

49. [49]
    RAP had already taken steps to address a factor which contributed to his offending. Although Mr DGM had contacted the Justice Group, there was no evidence of treatment or programs dealing with drug addiction or managing conflicts in relationships.

50. [50]
    In some respects RAP’s offending was more serious; the injuries were more substantial and it persisted despite intervention. However, his prospects of rehabilitation were stronger than Mr DGM’s. He was a mature man with no prior convictions. He had undertaken treatment for his alcohol dependence. He was still required to serve 8 months in custody on the sentence.

51. [51]
    Fairbrother was an Attorney-General’s appeal against a 2.5 year sentence, wholly suspended with a 4 year operational period. The offender was in his 40s and had relevant prior convictions for assault and for breaching a DVO. He had been in a relationship with his victim for 5 years. One night, when he had been drinking, he pushed her to the floor and hit her on the head with cans of beer. He was taken into custody and released on the condition he have no contact with the victim. The next morning, in breach of the TPO, he went to her home. They argued and, during a scuffle in her kitchen, she was scalded by hot water from a kettle. He pleaded guilty on the second day of the trial.

52. [52]
    The Attorney-General argued the decision to wholly suspend the sentence rendered it manifestly inadequate.

53. [53]
    Although the complainant was seriously scalded, Fairbrotherwas notsentenced for deliberately pouring boiling water on her.

54. [54]
    He was a much more mature offender than Mr DGM. He had a concerning relevant criminal history, with convictions for assaulting a former partner, for breaching a domestic violence order in relation to the complainant and for assaulting the complainant’s daughter. At the time of the offence, Fairbrotherwas unemployed and abusing alcohol. By sentence, he was employed, had spent 8 months in alcohol rehabilitation programs and was in a stable relationship.

55. [55]
    Fairbrother was older with a worse and relevant criminal history, but the conduct was less serious than Mr DGM’s, given the Court accepted Fairbrother did not deliberately scald the complainant. This explained why he did not serve time in actual custody. McMurdo P considered the sentence was a substantial penalty for, if he reoffended within 4 years, he was at risk of having to serve 2.5 years.

56. [56]
    Johnsonwas an appeal against a 2 year head sentence suspended after 8 months for three offences against a woman with whom he had a casual relationship. The two assaults occasioning bodily harm and the one wilful damage offence were committed on three separate occasions.

57. [57]
    Although there were 2 assaults, they were not sustained episodes of violence. Johnsonhad an extensive relevant criminal history, including assaulting his de facto wife and breaching a DVO. Holmes J, as she then was, observed the head sentence was heavy but justified by his previous criminal history and the repeated nature of his offending. His plea was appropriately recognised by suspension at one third.

58. [58]
    Denhamwas another Attorney-General appeal. The complainant was the father of Denham’sex partner. Denhamhit him in the face 4 or 5 times, causing his nose to bleed and kicked him and held him in a headlock. The offending also breached a DVO. Denham was a 32 year old man with minor street offences and a conviction for assault occasioning bodily harm. The incident occurred in the context of a dispute about access to the offender’s child. At the time he suffered from reactive depression and was intoxicated. He compensated the victim. He had not previously been on a community based order.

59. [59]
    The Attorney-General appealed against a 12 month intensive correction order. McMurdo P noted a 2 year term of imprisonment was within range but was not the only sentencing option. Jerrard JA considered the offender justescaped a sentence of up to 6 month’s actual imprisonment.

60. [60]
    Deterrence is a primary factor in sentencing acts of domestic and family violence. Although Mr DGM is a young man with no previous convictions for violence or for breaching a domestic violence order, the TPO was issued because of his past violence towards the complainant.

61. [61]
    The purpose of such orders is to protect those at risk and to prevent further violence. In R v Wood [1994] QCA 297, McPherson JA said:

“Domestic violence orders imposing restraints of the kind involved here are, practically speaking, the only available means of curbing in advance conduct in the domestic context that is violent or likely to lead to violence. Unless breaches of such orders are, and are well known to be, visited with appropriate severity, they will quickly lose their value in the minds both of those who obtain them and of those who are subject to them. Apart from orders of that kind, the ordinary criminal law, operating as it does only after the event, arrives too late to be an effective deterrent. The wrongdoer is liable to prosecution and punishment, but only after the injury has, sometimes with fatal consequences, already been inflicted.”^[14]

62. [62]
    The comparable authorities considered above, and those reviewed in RAP, indicate that a 12 month term with no time in actual custody is manifestly inadequate.

63. [63]
    2 years is an appropriate starting point for this sentence given the following features: A TPO was issued only weeks earlier. He was on a suspended sentence imposed recently. It was a sustained assault involving multiple punches. Twice, Mr DGM kicked the complainant to the ground and she described blacking out. The assault continued after he prevented her calling the police for assistance. He kicked her multiple times while she was on the ground. She was pregnant. Their 1 year old child was within earshot. Mr DGM returned to the complainant’s house after the assault. He was found in possession of a machete.

64. [64]
    Fortunately, the complainant’s injuries were not serious. A head sentence of 18 months takes that into account and also recognises Mr DGM’s youth and lack of prior convictions for violence. That term will be substituted for the 12 month term imposed for the offence of assault occasioning bodily harm.

65. [65]
    There was no real complaint about the terms imposed for all other offences^[15]and they will be confirmed. It would not be unjust to fully activate Mr DGM’s suspended sentence. As I have taken that into in fixing the sentence for the assault, the activated term of imprisonment will be served concurrently.

66. [66]
    Mr DGM should receive full credit for his plea. Given I have moderated the head sentence to reflect his youth, there is little else to warrant a much earlier release to parole than the one third mark. Although he served no time in pre-sentence custody, Mr DGM has since served almost 6 months. He was taken into custody on 7 September 2015,^[16]presumably because he breached parole. Given time served in custody, I fix the date this judgment is delivered as the date for his release on parole.

Orders

1. The appeal is allowed

2. The sentence imposed in the Caboolture Magistrates Court on 24 July 2015 for the offence of assault occasioning bodily harm is varied by substituting a term of 18 months imprisonment.

3. The conviction for that offence must be recorded as a conviction for a domestic violence offence.^[17]

4. The parole release date is fixed as 22 February 2016.

5. The time spent in custody from 7 September 2015 to 22 February 2016, a period of 169 days, is declared to be time served in relation to the sentences as varied by these orders.

6. Otherwise the sentences originally imposed are confirmed.