NAS v Queensland Police Service
[2017] QDC 173
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- Unreported Judgment
- NAS v Queensland Police Service[2017] QDC 173
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NAS v Queensland Police Service[2017] QDC 173
NAS v Queensland Police Service[2017] QDC 173
DISTRICT COURT OF QUEENSLAND
CITATION: | NAS v Queensland Police Service [2017] QDC 173 |
PARTIES: | NAS (Appellant) v QUEENSLAND POLICE SERVICE (Respondent ) |
FILE NO/S: | 879/2017 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 21 June 2017 |
DELIVERED AT: | District Court at Brisbane |
HEARING DATE: | 21 June 2017 |
JUDGE: | Reid DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – ERROR –– where the appellant pleaded guilty to one count of assault occasioning bodily harm whilst armed – where the offence was a domestic violence offence – where the appellant and the complainant are from Papua New Guinea – where assault occurred in Brisbane due to a domestic dispute – where cultural background of appellant was that he considered the offending normal – where the appellant was sentenced to a term of imprisonment of 15 months suspended after 2 months – where no prior criminal history – where the appellant has already served 2 months imprisonment – whether magistrate made an error Penalties and Sentences Act 1992 (Qld) Justices Act 1886 (Qld) House v the King (1936) 55 CLR 499 R v Denham; ex parte A-G [2003] QCA 74 R v Gibb [2007] QCA 191 R v Roach [2009] QCA 360 R v Pierpoint [2001] QCA 493 R v Bean CA 95 of 1999 |
SOLICITORS: | T. Jones (Russo Lawyers) A. Mcgee (legal officer with the Department of Public Prosecutions) for the Respondent instructed by Public Safety Business Agency |
- [1]On 28 February 2017, the appellant was summarily convicted on his own plea of guilty of one charge of assault occasioning bodily harm whilst armed with an instrument. The offence was a domestic violence offence. He was sentenced to 15 months imprisonment, suspended after serving a period of 2 months, for an operational period of 3 years. Pursuant to section 12A of the Penalties and Sentences Act 1992 (Qld) the offence was recorded as a conviction for a domestic violence offence.
- [1]The appellant appeals against the sentence imposed on the ground it is manifestly excessive.
Circumstance of offending
- [2]The offence occurred on 27 February 2017. The appellant and the complainant had been married for about one year at the time but were known to each other for some 13 years. They have a child together who was 5 months old at the time. The appellant is from Papua New Guinea and was in Australia on a tourist visa. He and his wife, who I was told is from New Zealand, were staying with his father and step-mother in a Brisbane suburb where the offence occurred.
- [3]On the night of the offence the police attended the address and the complainant told them what had occurred. She said, and it was not disputed that, the appellant was angry, presumably as a result of an argument with the complainant, and threw an apple, which struck the wall near where she was standing with the baby. The appellant then picked up a broomstick and struck her across the back while she was carrying the baby. The complainant attempted to leave the premises with the baby. The appellant grabbed her by her hair and struck her numerous times to the back of the head while she was curled over, attempting to shield the baby. While striking the complainant, the appellant told a witness to hold the baby so he could hit the complainant. The complainant had said ‘not in front of the children.’ The complainant attempted to contact the police but the appellant prevented her from using her mobile phone.
- [4]The appellant then left the address and went to a nearby park where the police located him. He voluntarily participated in a record of interview where he made full admissions. He entered a plea of guilty on the following day and was immediately sentenced.
Appellant’s personal circumstances
- [5]The appellant was, at the time of sentence, represented by a duty lawyer. The learned Magistrate noted the difficulties faced by a duty lawyer in a busy arrest court. The duty lawyer advised the court that the appellant was visiting his father and stepmother, was unemployed in Papua New Guinea and received financial assistance from his father.
- [6]The duty lawyer submitted that the appellant’s cultural upbringing perceived acts of domestic violence to be the norm in Papua New Guinea and not something that is unacceptable, as it is in Australia. Indeed, he said that when he was growing up the appellant was often exposed to violence against women as a means to end arguments. He was also often struck by his father. It was submitted that the disagreement between himself and the complainant which ended in him striking her, was not an uncommon response where he was from.
The Magistrate’s sentencing remarks
- [7]The learned Magistrate took into account the appellant’s very early plea of guilty which, he stated, reduced the penalty he would have otherwise imposed. He also noted that the appellant had no criminal history whatsoever.
- [8]The learned Magistrate acknowledged the appellant’s full admissions to the police also went to his credit. He accepted the appellant’s remorse but said
‘…the basis upon which you’ve made those admissions is not only remorse but because you acted under the misapprehension that any admissions you made weren’t going to be treated with the weight that they would be accorded in Papua New Guinea, that is, you didn’t believe that they were that serious due to your cultural upbringing.”
This suggests that perhaps lesser weight was in fact afforded to the appellant’s admissions as an indication of remorse than might normally be the case.
- [9]The learned Magistrate acknowledged the appellant’s cultural background as seeing domestic violence instances as normal, somewhat socially acceptable and not strongly punished. He noted that there was no existing protection order in place at the time but denounced the offending. The learned Magistrate said that the appellant had physically endangered his young child. He described the offence as relatively protracted, involving the use of the apple, then the broomstick and the continuing blows that ensued.
- [10]The duty lawyer had submitted for a wholly suspended 15 month sentence. The learned Magistrate accepted the submission as to the appropriate head sentence. He took into account the fact that the appellant was a foreign national and that any term of imprisonment which would see him serve actual custody may be more difficult due to his short temporal stay in Australia.
- [11]The learned Magistrate considered specific deterrence to be of little relevance because of the appellant’s lack of criminal history but considered general deterrence important. While noting the significance of general deterrence he said ‘that must not overwhelm the overall considerations of justice…’ Most importantly he said that the only appropriate sentence was one of imprisonment. He then said that the only appropriate term was one of 15 months imprisonment. He suspended that only after the appellant had served two months. In my view that statement that a 15 month sentence was “the only appropriate term” is critical. While he may have been correct in considering that a period of imprisonment was the only appropriate penalty in the circumstances, I would not consider that the only appropriate term in the circumstances to be one of 15 months.
Statutory provisions and test to be applied
- [12]The right of appeal against the sentence imposed in the Magistrates Court is provided under s 222 of the Justices Act 1886 (Qld). Section 222 provides that an aggrieved defendant may appeal an order made in a summary way to a District Court judge on the ground that the penalty or punishment was excessive.[1]
- [13]The principles set out in House v the King[2] are applicable. The relevant passage, at 504-5 states:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the 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 extraneous 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 properly to exercise the discretion which the law reposes in the court of first instance.”
Comparable decisions
- [14]The appellant relies upon cases of R v Denham; ex parte A-G[3] and R v Gibb[4] as demonstrating that a sentence of 15 months imprisonment for the offence at hand as being excessive. The respondent relies on the case of R v Roach[5] and the authorities cited by it, as supporting the sentence imposed.
- [15]In Denham, the Court of Appeal refused an appeal against sentence made by the Attorney-General. The offender was charged with one count of burglary, one count of assault occasioning bodily harm and a summary charge of breaching a domestic violence order. He was sentenced to 12 months imprisonment on each indictable count to be served by way of an intensive correction order (“ICO”) containing special conditions that he submit to psychiatric and psychological treatment and that he have no contact with the complainant. He was sentenced to a wholly suspended 6 month sentence for the summary offence. He was also ordered to pay $1,000 to the complainant within three months, and if in in default he would have to serve one month imprisonment. There the offender, a mature man, hit the complainant (a significantly older man, and the appellant’s father-in-law) to the face four or five times after forcing his way into his home. After a continued struggle, he kicked the complainant and held him in a headlock. He continued to throw items including furniture around the yard after the complainant locked himself inside. The complainant suffered broken ribs, bruising and abrasions, as well as financial loss for time off work, damaged furniture and solicitor’s fees. The offender had a relevant criminal history of two months imprisonment, wholly suspended, imposed by the District Court for an assault occasioning bodily harm.
- [16]The respondent submits that Denham does not demonstrate that a short custodial sentence is excessive for the offence. It refers to a statement made by the court that the kind of behaviour engaged in by the respondent would amply justify a sentence which included at least six months of actual imprisonment. It submits that the sentence imposed was not inadequate due to the combination of orders imposed. It also distinguishes Denham to the case at hand in that it did not involve an offence against a female partner holding a baby. The respondent’s submissions appear, however, to more relate to the imposition of a custodial term and not the head sentence. In my view that case, on balance, warrants a more serious sentence that this and yet the head sentence imposed was one of 12 months, to be serviced by way of an ICO.
- [17]In Gibb the Court of Appeal dismissed an appeal against sentence. There the offender was sentenced to nine months imprisonment, wholly suspended, for an operational period of three years to one count of common assault, one count of wilful damage and one count of assault occasioning bodily harm whilst armed. He was also ordered to pay $1,507.25 compensation. The offender had attempted to punch the complainant, and threw a pitchfork and three bricks toward him. These acts constituted the common assault count. He then engaged in an argument with his neighbour and threw a brick at his car (wilful damage). The aggravated assault arose when the offender struck the second complainant on his forearm with a piece of timber with protruding nails on it. The respondent submits that Gibb is factually distinguishable to the case at hand as it involved mature men.
- [18]The respondent relies on the case of Roach which involved an appeal against conviction and sentence for a count of assault occasioning bodily harm. There the offender had been sentenced to 18 months imprisonment with a parole release date fixed after eight months. The appellant reacted angrily after the complainant told him not to help himself to her refrigerator. He punched her face and arms and then pulled her left arm, which he had previously injured. He said, ‘I know you’re gonna ring the fuckin’ coppers, so I may as well make a fuckin’ good job of it’ and then punched her 8 more times. He had two prior assault convictions, one of a similar nature against a female and the other against the complainant. The respondent in the present case relies on Roach to illustrate the sentence imposed by the Magistrate was in range, and relies on the authorities examined by Roach to conclude that the sentence imposed, while at the high end, was not excessive. In my view the critical question is not however whether the 15 month head sentence was ‘within range’ but whether, as the learned Magistrate said, it was ‘the only appropriate term’.
- [19]The case of R v Pierpoint[6] is the most helpful. The offender in that case was at first instance sentenced to imprisonment for 18 months with a parole eligibility date set after six months. He had pleaded guilty to assault occasioning bodily harm upon the complainant with whom he was in a de facto relationship. They had a child together and he had also accepted the complainant’s daughter to be his step-daughter. A restraining order had been taken out against the offender by the complainant. When the children were at school he came to the complainant’s house and commenced packing clothing belonging to his son. A dispute ensued between him and the complainant concerning him taking his son and as to the termination of the relationship. The complainant told him to leave and dialled for the police. He cut off the telephone. She struck him and he retaliated by throwing the complainant to the floor. She resisted and he overcame this by partially choking her. He punched her and she got up and rang for the police again. He took the phone from her and attempted to hang up. There was further violence. He abused her and covered her face with a pillow. The assault terminated when police arrived due to the phone not having been hung up properly. In my regard the nature of that attack in breach of the restraining order and his unauthorised entry of the complainant’s home makes that case a more serious example of offending than the appellants.
- [20]Having regard to comparable cases, the court in Pierpoint considered the sentence imposed to be manifestly excessive. They set aside the sentence and imposed a sentence of 12 months imprisonment. Given that three months imprisonment had already been served, the sentence was wholly suspended with an operational period of 12 months. That case, in my view, is also contrary to the learned Magistrate’s statement that a 15 month term was the only appropriate one.
- [21]Pierpoint examines a number of cases in coming to the conclusion it did.
- [22]One was R v Bean[7] which involved substantially different facts, however the court in Pierpoint considered the injury to be significantly more serious than in Pierpoint and, I might say, in this. There the offender was sentenced to 12 months imprisonment, wholly suspended for an operational period of three years, which was changed on appeal to an operational period of 18 months. It involved a scuffle between the offender and complainant at a 21st birthday party which resulted in the offender punching the complainant in the face, causing him to fall to the ground where the offender and another then stomped on his ankle resulting in a fracture to the fibula. That case involving more serious injury committed in company is in my view also at least as serious if not more serious than this.
Error
- [23]In this case, I conclude that the learned Magistrate fell into error when he stated that the only appropriate term was one of 15 months imprisonment. Having regard to the comparable cases, in particular, the case of Pierpoint, it is my view that a 15 month imprisonment term was not the only appropriate term open to the learned Magistrate when exercising the sentencing discretion. In his determination that it was, it is my view that he was in error.
- [24]Whilst duty lawyer had submitted to the learned Magistrate that a head sentence of 15 months, wholly suspended was appropriate. I do not consider that the head sentence contended for was the only appropriate one. I do not consider it binds the appellant particularly given the nature of the duty lawyer system and the limited amount of time that the duty lawyer working under pressure would have had with the appellant prior to sentence. In my view, a submission by the duty lawyer that is taken into account by the magistrate does not preclude error of the sort I have identified.
- [25]In the circumstances I would consider the learned Magistrate’s as being in error when he determined that the only penalty open was to impose was one of 15 months imprisonment. His Honour has not referred to any authority as to why he considered that to be the case. In light of the various authorities considered above, in particular, Pierpoint, it is my view that a lesser sentence of imprisonment was also open. Given that an error has been found, the sentencing discretion should be exercised afresh.
Relevant considerations
- [26]While the nature of the offending was serious, given that it was somewhat protracted, committed against a female partner and in the close presence of a young child, I consider it was less serious that the offending in Pierpoint. The level of violence committed against the complainant in Pierpoint was, in my view, more serious, and did not cease until the police had arrived. Here the appellant had ceased hitting the complainant and had left the premises, to be found later in a nearby park.
- [27]I note that apart from the offence at hand, the appellant has no criminal history whatsoever. Further, unlike Pierpoint, no previous domestic violence or restraining order existed when the offence took place.
- [28]I have also given consideration to the cases referred to in Pierpoint, outlined above. I would have found in this case that actual custody was not necessary consistent with Pierpoint. The appellant initially spent three weeks in prison and was then granted bail. However, due to issues with his holiday visa, his bail was revoked. His solicitor advised that the appellant had only a balance of 9 to 10 days, of the two months, remaining to serve.
- [29]The respondent relies on Roach to show that a sentence of 15 months is not out of range. In my view, the violence in that case was significantly more serious, involving multiple blows combined with words of an aggravating effect. There the offender had relevant criminal histories, including one involving the same complainant. While I accept that a sentence of 15 months may not be out of range, I would consider a lesser sentence to be more appropriate in the circumstances of this case.
Conclusion
- [30]I find that the learned Magistrate was in error and therefore allow the appeal. I set aside the original sentence and in sentencing afresh I impose a sentence of 9 months imprisonment. I consider this to be appropriate in light of Pierpoint. I suspend that sentence after the appellant has served two months, of which I have been advised, a balance of only 9 to 10 days remains. No pre-sentence custody certificate was provided and I rely on the appellant’s solicitor’s submissions on that issue. I reiterate that but for that fact, a wholly suspended sentence could have been imposed. I impose an operational period of three years. Pursuant to section 12A of the Penalties and Sentences Act 1992 (Qld) I declare the offence to be a domestic violence offence.