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LDS v QRR QDC 199
DISTRICT COURT OF QUEENSLAND
LDS v QRR  QDC 199
D37 of 2017
s 222 Appeal
Coolangatta Magistrates Court
15 June 2017 (delivered ex-tempore)
15 June 2017
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where appellant pleaded guilty to three counts of contravening a domestic violence order, one count of wilful damage and one count of common assault – where the appellant was sentenced to a cumulative sentence totalling 18 months imprisonment with a parole release date after 6 months – where counsel for the prosecution and defence were not given an opportunity to be heard as to whether it is appropriate to order the sentences to run cumulatively – whether the Magistrate erred in not inviting submissions on the cumulative aspect of the sentence - whether the Magistrate erred by placing disproportionate weight on general community deterrence to the detriment of the appellant’s features in mitigation – whether the sentence was manifestly excessive.
Domestic and Family Violence Protection Act 2012 (Qld)
Justices Act 1886 s 222(2)(c), 225(1)
Penalties and Sentences Act 1992 (Qld) s 9
Chapman v Queensland Police Service  QDC 141, cited
Gibuma v Queensland Police Service  QDC 183, considered
House v R (1936) 55 CLR 499, followed
Hutchin v West  ACTSC 55, cited
IFM v Queensland Police Service  QDC 140, followed
JHL v Commissioner of Police  QDC 346, considered
Lowe v The Queen (1984) 154 CLR 606, cited
Re Criminal Proceeds Confiscation Act 2002 (2004) 1 Qd R 40, cited
R v Cunningham  QCA 321, followed
R v Fairbrother; ex parte Attorney-General  QCA 105, considered
R v King  QCA 466, considered
R v Lawley  QCA 243, followed
R v Lemass (1981) 5 A Crim R 230, cited
R v McIntosh  St R Qd 2708, cited
R v Moodie  QCA 125, followed
R v Morse (1979) 23 SASR 98, cited
R v Wood  QCA 297, cited
Shambayati v Commissioner of Police  QCA 57, considered
T.G Zwoerner (sol) for the appellant
E Brackin (legal officer) for the respondent
Legal Aid for the appellant
Department of Public Prosecutions for the Queensland Police Service for the respondent
- This is an appeal by the appellant LDS, under section 222 of the Justices Act 1886 (Qld) against the sentence imposed on him by the Magistrate in the Coolangatta Magistrates Court on 3 February 2017. On this day, the appellant pleaded guilty to one count of contravening a domestic violence order on 8 October 2016, another count of contravention of a domestic violence order on 15 November 2016, a third count of contravention of a domestic violence order on 16 November 2016, one count of wilful damage on 16 November 2016 and common assault on 16 November 2016.
- The complainant in each of the five offences was the appellant’s partner, who was also the named aggrieved in an order made on 11 August 2016 under the Domestic and Family Violence Protection Act 2012 (Qld) in which the appellant was the respondent. The maximum penalty for each of the contravention of domestic violence order offences and the common assault offence was three years’ imprisonment. The offence of wilful damage carried a maximum penalty of five years imprisonment.
- Following submissions from the police prosecutor and the appellant’s solicitor and an adjournment of just short of an hour, the learned Magistrate sentenced the appellant to cumulative orders of imprisonment totalling 18 months. In relation to the charge of contravention of a domestic violence order on 8 November 2016, the appellant was sentenced to six months’ imprisonment; in relation to the charge of contravention of domestic violence order on 15 November 2016, the appellant was ordered to serve two months’ imprisonment; and in relation to the charges of wilful damage, common assault and a contravention of domestic violence order on 16 November 2016, concurrent terms of 10 months’ imprisonment for each of these offences were ordered to be served. A parole release date was set at 2 August 2017, which in effect meant that the appellant was required to serve six months’ imprisonment.
- By the notice of appeal filed 10 February 2017, the appellant appealed on the single ground that the sentence imposed was manifestly excessive. The written submissions of the appellant contended that this ground was supported by three identifiable errors;
That the Magistrate erred by placing disproportionate weight on general community deterrence to the detriment of the appellant’s features in mitigation, causing the sentence to become excessive.
The Magistrate erroneously disregarded the appellant’s mental health issues despite undisputed evidence of some diagnosis before the court;
The Magistrate ordered the sentences to run cumulatively without consultation with either party, and this rendered the overall sentence excessive.
- The circumstances of the offending were set out by the police prosecutor at the hearing. On the evening of 8 October 2016, police were called to the apartment of the appellant and complainant in relation to a disturbance. The complainant told them that earlier in the evening, she and the appellant had been walking along the beach when the appellant became paranoid and pushed her to the ground, grabbing a bottle of wine off her. She returned to their unit with the intention of staying at a friend’s house for the evening, only to have the appellant become argumentative and attempt to stop her from leaving. Two male neighbours intervened, and the appellant challenged them to a fight. The appellant was then arrested.
- On 15 November 2016, neighbours heard the appellant and the complainant arguing loudly inside their apartment. At least one neighbour attended the apartment in an attempt to mediate the dispute. The appellant called the complainant degrading names and was alleged to have smashed a photo frame. Police were called, and the appellant was again arrested. On these two occasions, the appellant had contravened condition 1 of the domestic violence order made on 11 August 2016, namely that he be of good behaviour to the complainant and not commit domestic violence.
- Then in the early hours of 16 November 2016, the appellant attended the complainant’s residence and consumed alcohol. An argument ensued between the two, during which the appellant pushed the complainant out of the door and onto the ground. This was witnessed by a neighbour. During the argument, the complainant attempted to contact police on her mobile, only to have the appellant take the phone and throw it on the floor and destroy it by stomping on it while it was on the ground. That is the wilful damage charge. When the complainant tried to re-enter the apartment, the appellant pushed her back out, causing bruising and a minor laceration to her arm. This is the common assault charge. The appellant was then arrested. Following his arrests 8 and 16 November, the appellant declined to take part in a record of interview.
- After setting out the allegations, the police prosecutor noted a prior entry on the appellant’s criminal history for a contravening a domestic violence order condition in 2015, for which he was given a period of six months’ probation. He also noted that the appellant was currently subject to a probation order in relation to an offence of failing to stop a motor vehicle, for which he was also given community service; and that he had breached this probation order by the current offending.
- In terms of penalty, the prosecutor noted the persistent nature of the offending and the fact that the appellant had received probation for an unrelated offence. It was submitted a period of imprisonment was open, and it would be in the Magistrate’s discretion as to whether any part should be served in actual custody or if it should be wholly suspended. In terms of the appellant’s criminal history, it showed a wilful damage entry from 2015, which was classed as a domestic violence matter because it related to the appellant hitting the back of his former partner’s father’s car with a two-foot-long wooden handle because of some frustration, apparently about not seeing his children.
- Prior to making submissions, the appellant’s solicitor tendered a document referred to as a statutory declaration under the hand of the complainant and a letter from the appellant’s treating psychologist dated 9 January 2016. This statutory declaration was read out by the Magistrate, and it was taken by him to be a letter under the hand of the complainant stating her desire to have the appellant’s bail condition varied to allow the two to reside together.
- In terms of mitigation, the defence solicitor pointed to the following:
- The appellant was 27 years old.
- He was currently unemployed and in receipt of a Newstart Allowance.
- At the end of the next week, he was to begin a Work for the Dole program at the Currumbin Wildlife Sanctuary, where he expected to work casually for two days per week.
- The appellant had two children from a previous relationship, and both children resided with their mother, who had since moved out of the area.
- Although he saw little of the children, there were family court proceedings on foot through Legal Aid.
- Stemming from the relationship breakdown, the appellant had developed anxiety and depression.
- Although the solicitor noted that it was not stated in the psychologist’s letter, the appellant was said to be suffering from post-traumatic stress disorder and schizophrenia, the latter of which he had been diagnosed two years ago by his general practitioner.
- All of the incidences stemmed from the complainant and the appellant consuming alcohol together and that the appellant had since come to realise that alcohol had become an issue in his life.
- Around the time of the incidents, the appellant had apparently been trying new medications which, when combined with alcohol, caused him to behave out of character.
- Since November 2016, the appellant had begun attending Alcoholics Anonymous meetings, and he had been seeing his psychologist and had further appointments with her.
- It was also submitted to the Magistrate that in relation to the orders the appellant had been subject to since January 2016, he had completed the community service component, working at the Lady Small Haven Home for Old People, but that it was otherwise accepted he was in breach of the probation order by virtue of his re-offending.
- In terms of an appropriate sentence, the defence solicitor conceded a term of imprisonment was within range, but no specific head sentence was suggested; although it was submitted immediate release on parole should occur to allow the appellant to engage in a domestic violence program.
- During the submissions, the Magistrate made a number of remarks directed to his disappointment that the complainant had not been consulted as to her position on increasing the length of order or to any potential additional conditions. He also questioned the submissions made by the defence solicitor in terms of the appellant’s diagnosis and use of medication, which were not included in the psychologist’s letter. He referred to the letter from the complainant as being “pretty useless” and questioned how much of the offending could be explained by the appellant’s alcohol use.
- In sentencing the appellant, the Magistrate stated that he took into account the appellant’s plea of guilty, which he said he gave great weight to. He also went through the facts of each incident and noted that the intervention of neighbours was required on each occasion. He also took into account that the appellant breached both his probation order and subsequent bail undertakings in committing the offences. And he noted that one of the appellant’s entries on his criminal history that is the count of wilful damage, had been declared a domestic violence offence.
- The Magistrate describe the appellant’s offending as being “…a reign of terror heaped upon the complainant” and found that there was absolutely no evidence to support the proposition that alcohol and medication contributed to the offending.
- On appeal before me, the appellant concedes that the Magistrate could not have taken the statutory declaration or letter from the complainant to have been much weight.
- During the course of the sentence, his Honour quoted passages from the Queensland Court of Appeal decisions of R v Wood  QCA 297 and R v Fairbrother  QCA 105, which speak of the need to give credence to orders as well the insidious and prevalent effects of such offending to the community at large. The learned Magistrate also quoted a portion of the decision of Hutchin v West  ACTSC 55, which noted how such offences could sometimes occur due to the trust placed by the complainant in the appellant.
- In considering the psychologist’s letter that was tendered, the Magistrate said there was no evidence of depression and only some mention of anxiety. The Magistrate then noted a statistic that 70 women in Australia had been killed in the last year, and that if nothing changed to stem this figure, some 700 women would die within the next 10 years. He referred to the report of Dame Quentin Bryce that in 2012, there were 12,800 breaches of such orders and that in 2014, 18 out of 49 homicides in Queensland were related to domestic violence.
- The rationale behind imposing separate terms of imprisonment appears to have been that in ordering the six-month and two-month terms to be served cumulatively, the learned Magistrate took into account the fact that the appellant breached both probation, in relation to all charges, and bail, in relation to those offences committed in November 2016.
Relevant Appeal Principles
- Pursuant to section 222 (2)(c) of the Justices Act 1886, where a defendant pleads guilty or admits the truth of a complaint, a person may appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate. Such an appeal is by way of a re-hearing de novo on the evidence that was before a Magistrate.
- The authorities establish that for a sentence to be excessive, it must be beyond the acceptable scope of judicial discretion or so outside the appropriate range as to demonstrate inconsistency and unfairness.
- The manner in which an appeal against an exercise of discretion should be determined is governed by established principles which are uncontroversial and set out by Justices Dixon, Evatt and McTiernan in the House v R (1936) 55 CLR 499.
- Ultimately, to succeed on an appeal, the appellant needs to establish a legal, factual or discretionary error. The exercise of the discretion cannot be interfered with unless an error is apparent. As identified by Justice of Appeal Keane (as he then was) in R v Lawley  QCA 243:
It is not a sufficient basis for this court to intervene that this court might have struck a different balance between the competing considerations which had to be weighed in the exercise of the discretion.
Consideration of appeal grounds
- One of the errors identified by the appellant is that:
…the Magistrate erroneously disregarded the appellant’s mental health issues despite undisputed evidence of some diagnosis before the court.
- The Magistrate’s contention that there was absolutely no evidence to support the proposition that alcohol and medication were involved is incorrect in my view and somewhat in tension with his later comments that he accepted that these matters are alcohol-related but that, “…the offending is your attitude” Also, his comments that he was, “encouraged that the appellant had been attending Alcoholics Anonymous and was continuing to see a psychologist.”
- However, I accept the respondent’s submissions that there was no supporting materials or reports provided to the learned Magistrate in support of the assertion that the appellant suffered from various conditions, including depression, post-traumatic stress disorder and schizophrenia. The psychologist’s letter referred only to extremely low mood and anxiety, and it is apparent that the learned Magistrate had regard to this. I also note that the learned Magistrate sought information as to who gave this diagnosis and was told that the appellant was not seeing a psychiatrist and that there were no materials to be tendered from the appellant’s general practitioner.
- In the absence of supporting materials and after making the relevant inquiries about the evidence to be relied upon, in my view the learned Magistrate was permitted to place whatever weight he considered necessary on the assertions that the appellant suffered from mental illness, and I do not consider this to be an error in the exercise of his sentencing discretion.
- In my view, however, there were other identifiable errors by the learned Magistrate in exercising his discretion to sentence the appellant.
- The appellant contends that the Magistrate erred by placing disproportionate weight on general community deterrence to the detriment of the appellant’s features in mitigation, causing the sentence to become excessive.
- In my view, the Magistrate’s description of the appellant’s conduct as a “reign of terror” was an overstatement, and his Honour did not place the appropriate weight on the fact that the appellant’s offending was on three occasions, that the scope of the violence employed was not at the higher end of the scale and that the offences were committed over a relatively short period of time: one was committed in October and the last two within 24 hours of each other, a little over a month later.
- Undoubtedly, domestic violence is a scourge on this community. However, the learned Magistrate’s remarks, with his prediction of 700 murdered women in the next 10 years, suggests that his discretion may have been overwhelmed by considerations of community denunciation, which of course is an important and relevant factor. Such a factor needs to be balanced against the appellant’s actual conduct in this case, as I have just outlined, and the fact that in this case, these were the appellant’s first offences for personal violence; and he had never been sentenced to a term of imprisonment before; and the letter from the psychologist as well as the submissions accepted by the Magistrate, showed that the appellant had attended Alcoholics Anonymous and was continuing to see a psychologist. In these circumstances, I consider that the Magistrate erred by placing disproportionate weight on general community deterrence and not sufficient weight on the appellant’s features in mitigation.
- The appellant contends that the Magistrate ordered the sentences to run cumulatively without consulting either party, resulting in a sentence that was excessive overall.
- I note that there was no discussion between the Magistrate and the parties as to whether the sentences should be ordered to run cumulatively with each other, although there was some mention of the sentence being ordered as such to take into account the breaching of a probation order and later a bail undertaking. It was in my view, still an unusual order, considering that the appellant had not been sentenced to a term of imprisonment in the past.
- I have considered the decision of R v Cunningham  QCA 321, particularly the comments of Justice of Appeal Keane (as he then was) that:
To impose a penalty without allowing the person affected to have an opportunity to respond is a clear breach of the rule of natural justice that a court is required to follow.
In Cunningham, his Honour also referred to the principle set out by Lord Fraser in a passage approved by the Queensland Court of Appeal in Re Criminal Proceeds Confiscation Act 2002  1 Qd R 40 and the comments of Lord Fraser in Forrest v Brighton Justices  AC 1038 that:
One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any, as he sees fit. That is the rule of audi alteram partem which applies to all judicial proceedings, unless its application to a particular class of proceedings has been excluded by Parliament expressly or by necessary implication.
His Honour also referred to the recognition by the Queensland Court of Appeal in R v Moodie  QCA 125 that the principle is:
…applicable to sentencing as it is to any other judicial proceeding.
- In my view, it was an error in this case for the Magistrate to not have invited submissions about his view that the sentences should be ordered to run cumulatively with each other.
Was the sentence manifestly excessive?
- Turning now to the issue of whether or not the sentence was manifestly excessive. As the court identified in the decision of IFM v Queensland Police Service  QDC 140:
For a sentence to be excessive, it must be beyond the acceptable scope of judicial discretion or so outside the appropriate range as to demonstrate inconsistency and unfairness.
- The respondent submitted that if the effective head sentence of 18 month’s imprisonment is considered excessive, it is not manifestly so, when regard is had to authorities such as R v Fairbrother; ex parte Attorney-General  QCA 105 and R v King  QCA 466.
- In my view, having considered both of these authorities, they do not provide much assistance as to what is the appropriate range for such offences. R v Fairbrother concerned a charge of assault occasioning bodily harm and was a plea of guilty after day two of a trial. The sentence there was two and a-half years’ imprisonment, fully suspended, with an operational period of four years. If anything, this case supports the proposition that the sentence of actual imprisonment imposed upon the appellant in this case may have been excessive. However, each case turns on its facts, and as I said, it is difficult in my view to find much assistance from R v Fairbrother.
- Likewise, with R v King. This case related to more serious charges of assault occasioning bodily harm and for which a sentence of two and a-half years’ imprisonment suspended after nine months for an operational period of three years was imposed. However, the difficulty with comparing that sentence is that the appellant in that case had what was described as having:
…a concerning prior criminal history for offences of dishonesty, drugs and violence.
In my view, the lack of a previous history for personal violence in the present case was and is a distinguishing feature to R v King as is the circumstances of the offending behaviour.
- Before the Magistrate, neither the defence solicitor nor the prosecutor relied on comparable decisions, and there is nothing in the transcript which offers any guidance as to what, if any, decisions apart from the decisions his Honour referred to regarding the general attitude the courts take to these types of serious offences, guided the learned Magistrate.
- Before me today, I have been referred to Gibuma v Queensland Police Service  QDC 183. On appeal, the appellant’s head sentence of three years’ imprisonment for one count of contravening a domestic violence order with lesser concurrent terms of 12 months’ imprisonment for a further contravention as well as two counts of breaching a bail condition was reduced to 15 month’s imprisonment. In that case, the appellant had pushed the complainant, causing her to fall, and he tried to take a hold of her when she ran off. On another occasion, he was found at her premises intoxicated and lying on the trampoline.
- The appellant, in the decision of Gibuma, had a lengthy criminal history, which included entries of violence, including assault occasioning bodily harm, common assault and at least four prior contraventions of domestic violence orders, entering a dwelling with intent and deprivation of liberty. In fact, the history insofar as domestic violence was concerned, was described as “atrocious”. It was the persistency of the offending that warranted a sentence at the higher end of the appropriate scale in that case.
- I accept that Gibuma was a case where the offending conduct was roughly comparable to the appeal at hand; however, it was only one act of violence, whereas here we have more. But I need to balance this against the relevant circumstances, including in that case, there was an extensive history for violence.
- JHL v Commissioner of Police  QDC 346 was an appeal against an effective head sentence of 12 months’ imprisonment for three counts of contravening a domestic violence order and one count of common assault. That appeal was dismissed. The conduct in that matter related to the complainant sending threatening text messages, so it was much less serious, in my view, than this case, but the appellant had 22 previous convictions for contravening domestic violence orders, which had seen him on one occasion sentenced to an effective head sentence of nine months’ imprisonment. In that case, his conduct was not as serious, as I have said, as the matter before me. But given his criminal history, he was given 12 months’ imprisonment.
- In IFM v Queensland Police Service  QDC 140, an appeal against an effective head sentence of 15 months was refused for three counts of contravention of a domestic violence order and two counts of breaching a bail condition. The offending conduct in that case was much more serious. It involved the appellant pushing the complaint, punching her in the jaw, grabbing her by the throat, kicking her body and dragging her to a nearby park, where he continued to hit her. The appellant also had a history of similar offending.
- In my view, having regard to the authorities, the sentence imposed by the learned Magistrate is outside the appropriate range as to demonstrate unfairness and inconsistency. For these reasons, as I have stated, I conclude that the learned Magistrate has fallen into error and that the sentencing discretion has miscarried.
- On appeal, pursuant to section 225(1) of the Justices Act, I may set aside or vary the appeal order or make any order that I consider just. As I have said, I consider that the sentence imposed by the learned Magistrate was manifestly excessive. I allow the appeal.
- In re-sentencing, I take into account the appellant’s guilty plea, his personal circumstance, the need for general deterrence and denunciation in cases such as this and that the appellant has now been in custody for over four months. I have also taken into account section 9 of the Penalties and Sentences Act 1992. In my view, the sentences that are just in all the circumstances require a term of imprisonment, and I consider that an overall head sentence of 9 months is appropriate.
- In the circumstances, I make the following orders:
- (1)The appeal is allowed
- (2)The sentences imposed on 3 February 2017 are set aside;
- (3)In relation to the contravention of domestic violence order on 8 October 2016, the appellant is sentenced to three months’ imprisonment
- (4)In relation to the contravention of domestic violence order on 15 November 2016, the appellant is sentenced to six months’ imprisonment.
- (5)In relation to the contravention of domestic violence order on 16 November 2016, the appellant is sentenced to nine months’ imprisonment.
- (6)In relation to the charge of wilful damage on 16 November 2016, the appellant is sentenced to six months’ imprisonment.
- (7)In relation to the common assault on 16 November 2016, the appellant is sentenced to three months’ imprisonment.
- (8)I order that the date the defendant be released on parole be fixed at today’s date, the 15th of June 2017, and I declare that the 133 days spent in pre-sentence custody between 3 February 2017 and 15 June 2017 be deemed time already served under this sentence.
- (9)The sentences are ordered to run concurrently.
 Appellant’s outline of submissions p9.
 Defence outline of submissions court document no. 4 at page 5.
 Exhibit 6.
 See the summary of Judge Durward in Chapman v Queensland Police Service  QDC 141 with reference to R v Morse (1979) 23 SASR 98, R v Lemass (1981) 5 A Crim R 230, R v McIntosh (1923) St R Qd 2708 and Lowe v The Queen (1984) 154 CLR 606.
 (1936) 55 CLR 499 at pages 504 to 505.
 See Shambayati v Commissioner of Police  QCA 57 at .
  QCA 243 at .
 Supra footnote 2.
 at pages 5 – 6.
  1 Qd R 40 at .
 at 1045.
 R v Cunningham  QCA 321 at page 6.
 At .
  QCA 466
 Ibid at 
- Published Case Name:
LDS v QRR
- Shortened Case Name:
LDS v QRR
 QDC 199
15 Jun 2017