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JHL v Commissioner of Police QDC 346
DISTRICT COURT OF QUEENSLAND
JHL v Commissioner of Police  QDC 346
Commissioner of Police
District Court at Maryborough
9 December 2016 (ex-tempore)
9 December 2016
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the defendant was sentenced for three contravention of a domestic violence order and a common assault – where the defendant was given a head sentence of twelve months imprisonment – where the defendant was to be released on parole at one-third of the head sentence – where the defendant breached one domestic violence order on the day it was made – where the defendant threatened the complainant via text message – whether the learned magistrate placed sufficient weight on the defendant’s mitigating circumstances – whether the sentence was manifestly excessive
Justices Act 1886 (Qld) s 222
Green v Queensland Police Service  QDC 341
IMF v Queensland Police Service  QDC 140
PMB v Kelly  QDC 301
Tierney v The Commissioner of Police  QCA 327
Mr T George (sol.) for the appellant
Ms A Baker for the respondent.
Suthers Lawyers for the appellant.
Office of the Director of Public Prosecutions for the respondent.
- The appellant, JHL, appeals in respect of the sentences imposed for four offences for which he was convicted and sentenced on 21 October 2016 before the learned magistrate at Maryborough. These offences are as follows:
- (1)contravention of a domestic violence order on 16 December 2015;
- (2)contravention of a domestic violence on 23 December 2015;
- (3)contravention of a domestic violence order on 25 December 2015; and
- (4)common assault on 27 May 2015.
- The defendant was sentenced as follows:
- (1)charge 1 – sentenced to six months’ imprisonment;
- (2)charge 2 – sentenced to six months’ imprisonment;
- (3)charge 3 – sentenced to 12 months’ imprisonment; and
- (4)charge 4 – sentenced to one-month imprisonment.
- The terms of imprisonment were all to be served concurrently and the learned magistrate made an order that the appellant be released on parole on 20 February 2017 which was, in the circumstances, a release at the usual one-third of the head sentence.
- The grounds of the appellant’s appeal are:
- (1)the sentence imposed was manifestly excessive; and
- (2)The Magistrate failed to give appropriate consideration to the principle of rehabilitation.
- Appeals pursuant to section 222 of the Justices Act 1886 (Qld) are subject to the principle set out by Margaret Wilson AJA in Tierney v Commissioner of Police (and by way of parentheses, in a range of other appeals addressing the same principles):
An appeal from the Magistrates Court to the District pursuant to s.222 of the Justices Act 1886 (Qld) is a re-hearing on the evidence given at trial and any new evidence adducted by leave. In other words, it involves a review of the record of proceedings below, subject to the District Court’s power to admit new evidence. To succeed, an appellant needs to show some legal, factual or discretionary errors.
- The circumstances of the offending involve the appellant, who has an extensive criminal history which has some twenty-two previous convictions for contravening domestic violence orders, being placed on a domestic violence order on 16 December 2015 (by the way of variation).
- On that very day the order was breached (it containing a condition that the defendant was prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved).
- The text of the various breaches is set out in the transcript (exhibit 2) at pp. 1-5-1-6. For the purposes of the appeal I do not intend to repeat of the texts, which come not only with warnings in respect of language but also in respect of their appalling racist tone, and contain in at least one or more cases threats of violence i.e., “There is going to be a blood bath today” (a portion of the texts sent on 25 December 2015). That of course of itself might well have founded a charge under Commonwealth legislation in respect of making threats using a carriage service.
- The substantial difficulty that the appellant faced on the sentence was that his criminal history, which is quite unenviable contains, as I have indicated, 22 previous breaches of domestic violence orders, but most relevantly in a sentence on 5 January 2015 he received an effective head sentence of nine months with a declaration of 13 days’ pre-sentence custody served between 24 December 2014 to 5 January 2015, and the breaches involved substantially contact with the complainant which was of a different nature, in the sense that it was more to do with family matters than any form of threats.
- The difficulty, of course, for the appellant is that the sentence effectively expired around 23 September 2015, the variation to the domestic violence order occurred on 16 December 2015 and the offending re-commenced on that very day, through to the 25 December 2015, with what from my reading of the contents of the texts appears to be escalating and deeply disturbing threats to the complainant.
- The issue then becomes issues of the learned magistrate dealing with principles of general deterrence, specific deterrence, incapacitation in the sense of deciding whether some period of actual custody is necessary, but balancing that against the important issues of rehabilitation and a reasonably significant period (for this appellant, at least) of non-offending, namely a period of about 10 months. Some of that period, of course, was spent in custody.
- The critical matters that the appellant relied upon before the learned magistrate and in this court is the completion by the appellant of the Safe Choices program run by Uniting Care Community at Hervey Bay which, in particular, addresses issues to do with anger, domestic abuse and violence, the impact of abuse on family, and strategies to deal with conflict. It is enormously to the appellant’s credit that he undertook that course but, as I will observe shortly, the learned magistrate, having received detailed, helpful and comprehensive submissions from Mr George, was well alive to the completion of that course by the appellant.
- Further, there was a letter from the appellant’s treating doctor, Dr Jenkins, indicating that, although it does not contain a diagnosis, the submission was made that he suffered from bi-polar and Dr Jenkins indicated that he had been “… well and stable in recent months…” and that his treatment consisted of “…lithium 500 mg and Lexapro 20 mg.”
- The decisions placed before the learned magistrate sought to identify a series of appellate decisions of this court which the appellant’s counsel relied on to demonstrate outcomes which did not involve periods of actual custody and although I accept that it can be difficult to obtain such comparatives given the absence of appeals from breaches of domestic violence orders, the decisions relied on of Green v Queensland Police Service, PMB v Kelly, and IMF v Queensland Police Service are all, I accept, clearly distinguishable and do not demonstrate that the appellant’s sentence was manifestly excessive.
- The appellant in Green v Queensland Police Service was 24 (much younger than the appellant here who at sentence was 43), had nine previous convictions for breaching domestic violence orders (compared to the 22 previous convictions for this appellant) and had not offended in a way that involved threats or actual violence.
- PMB v Kellydid involve a substantial level of actual violence and the sentence, not disturbed on appeal there, was 12 months’ parole after three months. Again, there was a significantly less serious criminal history involving only two breaches previously of contravening a domestic violence order.
- In IMF, two breaches of domestic violence order involving actual violence, resulting in a sentence of 15 months with parole release at 50 per-cent was not considered to be manifestly excessive.
- As I indicated during the exchange between myself and counsel for the appellant, the fundamental difficulty that faces the appellant in this appeal in seeking to demonstrate error in the exercise of the sentencing discretion by the learned magistrate was the combination of the effective nine month sentence with a third to be served in actual custody imposed on the appellant on the most recent previous sentence for breaching domestic violence orders (5 January 2015), coupled with the breaches of the amended order made on 16 December 2015 commencing on that very day (demonstrating in non-legal terms a complete contempt for the court’s order), exacerbated by at least one threat of violence in one of the texts on 25 December 2015, and all of that moderated on the learned magistrate’s sentencing remarks to reflect the positive effects of the completion of the Safe Choices program and the – effectively the period of non-offending (10 months).
- In all the circumstances, I am not persuaded that the learned magistrate’s sentence in the circumstances which was effectively a 12-month sentence with parole at a third was manifestly excessive. It flows that the appeal should be dismissed.
- I order as follows:
- (1)Appeal dismissed.
- Published Case Name:
JHL v Commissioner of Police
- Shortened Case Name:
JHL v Commissioner of Police
 QDC 346
09 Dec 2016