PFM v Queensland Police Service
[2017] QDC 210
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- Unreported Judgment
- PFM v Queensland Police Service[2017] QDC 210
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PFM v Queensland Police Service[2017] QDC 210
PFM v Queensland Police Service[2017] QDC 210
DISTRICT COURT OF QUEENSLAND
CITATION: | PFM v Queensland Police Service [2017] QDC 210 |
PARTIES: | PFM (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | APPEAL NO: 102/17 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Atherton |
DELIVERED ON: | 11 August 2017 |
DELIVERED AT: | Cairns |
HEARING DATE: | 2 August 2017 |
JUDGE: | Morzone QC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW - APPEAL AGAINST SENTENCE – ERROR OF LAW - appeal pursuant to s 222 Justices Act 1886 – contravention of a domestic violence order on 26 March 2017 whilst on parole – mode of hearing of appeal – 13 past breaches of Domestic Violence Order – other breaches of orders and other criminal history – on parole for drug and failure to appear offences unlike the current charge – error in consideration of setting parole eligibility date only having regard to proposed sentence rather than period of imprisonment – whether sentence manifestly excessive – totality principle and related statutory consideration – whether wholly suspended sentence or intensive correction order appropriate – resentence to 1 month imprisonment cumulative – Domestic Violence Order extended for 5 years. Legislation Domestic Violence and Family Protection Act 2012 (Qld), s 36 Corrective Services Act 2006 (Qld), s 209 Justices Act 1886 (Qld) ss 222, 223(1) & 227 Penalties and Sentences Act 1992 (Qld), ss 9, 156, 156A, 160B & 160F Cases AB v R (1999) 198 CLR 111 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Allesch v Maunz (2000) 203 CLR 172 Dwyer v Calco Timbers (2008) 234 CLR 124 Forrest v Commissioner of Police [2017] QCA 132 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 60 Norbis v Norbis (1986) 161 CLR 513 Teelow v Commissioner of Police [2009] QCA 84 R v Beattie, ex parte Attorney-General (Qld) [2014] QCA 206 R v Fairbrother; ex parte Attorney General (Qld) [2005] QCA 105 R v Kendrick [2015] QCA 27, [31]-[41] Warren v Coombes (1979) 142 CLR 531 White v Commissioner of Police [2014] QCA 121 |
COUNSEL: | M Dickson for the Appellant J Sheridan for the Respondent |
SOLICITORS: | Northern Plateau Law for the Appellant The Office of Director of Public Prosecutions for the Respondent |
- [1]On 15 June 2017, the appellant was convicted on his plea of guilty in the Magistrates Court at Atherton, for an offence of contravention of a domestic violence order on 26 March 2017 whilst on parole.
- [2]The appellant was sentenced to 4 months’ imprisonment to be served concurrently with earlier cumulative sentences of three and six months respectively. The magistrate set a parole eligibility date at 25 July 2017.
- [3]The appellant now appeals this sentence.
Mode of Appeal
- [4]The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld). Pursuant to section 223 the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. Section 223 provides:
“(1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
- (2)However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
- (3)If the court gives leave under subsection (2), the appeal is—
- (a)by way of rehearing on the original evidence; and
- (b)on the new evidence adduced.”
- [5]For an appeal by way of rehearing ‘The powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error ... At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.’[1]
- [6]But the court does not merely consider whether or not the magistrate has made an error of fact or law. The rehearing requires this court to conduct a real review of the evidence before it, and make up its own mind about the case.[2]
- [7]For an appeal against the sentence, this court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.[3]
- [8]
"It is not enough that the Judges composing the Appellate Court consider that if they had been in a 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 erroneous 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. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
- [9]
“In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.”
- [10]The decisions distinguished cases of specific error and manifest excess. Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless in that separate and independent exercise it concludes that no different sentence should be passed. By contrast, an error may not be discernible; but the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
Background
- [11]The appellant has a 7-year-old son who lived with the aggrieved. The aggrieved had a Domestic Violence Order made in her favour on the 19th November 2015. Relevantly that order included a ‘no contact’ provision with defined exceptions, including for contact with his son only in circumstances where she had provided her prior written consent.
- [12]The acting magistrate was not provided with a copy of the order, instead, the prosecutor submitted that the offending specifically relates to condition 3, which he read as follows:
“The respondent is prohibited from locating, attempting to locate or asking someone else to locate the aggrieved and from contacting or attempting to contact or asking someone to contact the aggrieved by any means whatsoever, including telephone, text or internet, except when appearing personally before a Court or Tribunal; except when attending conference, counselling or mediation or for the purposes of having contact with children but only as set out in writing by the aggrieved or in compliance with an order of a court.”
- [13]It is not clear to me why the acting magistrate was not given a copy of the order. The complaint and summons does not identify the relevant condition and the defendant’s representatives did not raise any matter concerning either the asserted breach or the absence of the order. The order was critical to the nature of the breach, and also the proper exercise of the discretion to extend its operation as sought by the prosecutor.
- [14]I was provided with a copy of the order during the hearing of the appeal, and it seems to me that the relevant condition is number 2, which is in these terms:
“(2) The respondent is prohibited from entering, attempting to enter or approaching to within 100 metres of where the aggrieved works or resides.
Except for the purposes of having contact with children but only as set out in writing by the aggrieved or in compliance with an order of a court.”
- [15]The applicant had previously complied with the order to travel from the Moreton Bay region to collect his son from the aggrieved’s house on the Atherton Tablelands for holiday periods.
- [16]However, the offending subject of this proceeding arose when, contrary to the ‘no contact’ provision and without the prior written consent of the aggrieved, the appellant arrived unexpectedly at the aggrieved’s house on or about 10.30 am on 26 March 2017, about a week before he was due to spend time with his son over the holidays. He apparently travelled by train a week early to take advantage of a Centrelink payment in his favour. When he arrived, the aggrieved’s dogs barked and she saw him standing in her driveway. She immediately retreated into the house and called the police, while the appellant was calling her name and her son’s name on three occasions. The appellant admitted to yelling out his son’s name and also saying words to the effect of “If it was a problem, you could’ve at least told me. I have come 2500 kilometres to get [him].” Having then realised that early contact was not likely, the appellant left the aggrieved’s property.
- [17]The appellant’s offending conduct did not involve any physical violence, overt aggression or intimidation.
- [18]The appellant has a relevant criminal history including 13 breaches of domestic violence orders involving conduct spaning 12 years from November 1993 until June 2015 as follows:
- 20/10/1994 for a breach on 18/11/93 - 3 months’ imprisonment;
- 21/11/2006 for a breach order on 25/05/06 - sentence 1 month imprisonment;
- 28/02/2008 for a breach on 27/11/2007 - sentence 3 months’ imprisonment suspended for 2 years;
- 21/03/2012 for 8 breaches on 09/03/2011, 22/05/2011, 15/06/2011, 17/06/2011, 19/06/2011, 04/07/2011, 11/09/2011, and 15/10/2011 – sentenced to 3 months’ imprisonment:
- 16/12/2016 for 2 breaches, between 23/12/2014 and 13/04/2015 and between 13/04/2015 and 03/06/2015 - sentenced to 92 days’ imprisonment:
- [19]The current offending occurred on 26 March 2017 being between 21 and 23 months after his last breach and for like offending involving prohibited contact with the same aggrieved. This would have enabled the prosecutor to rely upon a greater maximum penalty of 5 years’ imprisonment, but the relevant Notice of Intention to Allege Previous Convictions was erroneous. Therefore, the maximum penalty for the current offending was 3 years’ imprisonment.
- [20]The appellant also had an extensive criminal history of breaching other Court orders as follows:
- Breach of 3 year probation order by reoffending on 12/10/1982 - sentenced on 9/11/1982 to a further 18 months’ probation;
- On 19/03/1984 he was convicted driving whilst disqualified (having been he disqualified from driving for 18 months from 23/03/1983) - sentenced to disqualified from driving absolutely;
- Beach of probation order on 7/09/1983 - sentenced to 6 months imprisonment;
- Dangerous driving and driving vehicle whilst having a blood/alcohol concentration of 0.09% on 7/07/1984 - sentenced to 15 months imprisonment and disqualified from driving for 3 years;
- Unlicensed driving on 16/10/1985 - sentence imprisonment 15 months, disqualified absolutely; and again unlicensed driving on 6/01/1987 - sentence imprisonment 17 months, disqualified 4 years;
- Breach of bail conditions on 12 occasions - 20/09/1988; 15/05/1989; 13/09/1990; 9/05/1992; 20/10/1984; 4/09/1997; 10/08/1999; 20/04/2000; 18/10/2000; 29/05/2001; 12/09/2013; and 7/01/2016;
- Failure to appear in accordance with undertaking on 4 occasions - 25/06/2006; 21/03/2012 (x 2); and 12/09/2014;
- Failure to pay a fine on 14/07/2000;
- Breach of suspended sentence on 19/02/2009; and
- Breach of community service orders on 14/07/2000 and 17/02/2017.
- [21]At the time of his offending subject of this appeal, the appellant was on court ordered parole pursuant to orders made on 17 February 2017. On that date the appellant was sentenced to six months’ imprisonment for a drug offence and three months for failure to appear, to be served cumulatively. The court set an immediate parole release date. This 9 month period of imprisonment subject of the court ordered parole was due to expire on 5 November 2017.
- [22]On appeal the respondent’s counsel adduced further evidence of a Probation and Parole officer’s report given at the previous sentence hearing on 17 February 2017, as follows:
“He [the appellant] fails to demonstrate any level of purposeful commitment and motivation towards his order requirements, and therefore is perceived to be avoiding his obligations in this regard. … However, at this time, all measures have been exhausted to prompt Mr [PFM]’s compliance, to which he has resisted.”
- [23]However, that evidence was not before the acting magistrate at the time of the sentence subject of this appeal. Indeed, the acting magistrate accepted that the appellant more recently complied and responded to his parole requirements.
- [24]The prosecutor relied upon comparative cases of TZL v QPS [2015] QDC 171, and Russell v Commissioner of Police [2008] QCA 210 to the submission on sentence that a term of imprisonment of 6 months was within the range. The appellant’s representative sought to distinguish the case of TZL as being more serious brief contact and 41 abusive and insulting emails over an 11 week period. However, she conceded that a term of imprisonment was open having regard to the appellant’s criminal history.
- [25]After hearing from the representatives on 15 June 2017, the acting magistrate sentenced the appellant to four months’ imprisonment for breaching the domestic violence order, and set a parole eligibility date of 25 July 2017. In the course of his reasons, His Honour highlighted the following:
- The applicant’s previous criminal history and issues of Domestic Violence within the previous five years, and the applicant was facing a maximum penalty of three years;
- His ‘early plea’ of guilty has the ‘effect of reducing the sentence that O consider to be appropriate by one third and I take that into consideration.’
- Other mitigating factors, included current employment, support of his employer, family support, independent counselling to address offending issues, and attendance at the aggrieved’s house a week earlier than arranged, parties were on ‘good terms’, that ‘there is obviously no aspect of violence to charge before the Court or even threats of violence’, and the breach related to the ‘non contact provision only’.
- His 11 page criminal history, with numerous custodial sentences, and at the time of offending was on court ordered parole from 17 February 2017;
- The comparative of TZL v QPS [2015] QDC 171 was ‘very similar’,[6] and the ‘history of like offending with respect to this charge before the Court with, at least, 12 previous convictions. Ten of them involving the same aggrieved. That says to me that even though a custodial sentence is a sentence of last resort, it is quite clear that a custodial sentence is within range today’.[7]
- Highlighting that, ‘the offending here demonstrates a disregard for order of the Court. … The purpose of the domestic violence legislation is for the protection of the aggrieved and she relies on the Courts to enforce compliance with that order. Specific deterrence, in light of your history, is necessary in this case.’
- ‘Taking those facts into consideration and even distinguishing the case of TZL in terms of the more serious level of offending by virtue of the greater volume of contact and the more serious content in that contact, a custodial sentence is still warranted in this case.’
- [26]The Court also ordered that the Domestic Violence Order made on 19th November 2015 be extended for 5 years until 15 June 2022 pursuant to s 36 of the Domestic Violence and Family Protection Act 2012 (Qld).
Appeal against Sentence
- [27]This court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.[8]
- [28]
"It is not enough that the Judges composing the Appellate Court consider that if they had been in a 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 erroneous 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. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
- [29]
“In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.”
- [30]The decisions distinguished cases of specific error and manifest excess. Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed. By contrast, an error may not be discernible; but the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
Totality in sentencing
- [31]The appellant argues that the sentence is manifestly excessive because the acting magistrate erred by failing to apply the principle of totality and more specifically s 9(2)(m) of the Penalties and Sentences Act 1992 (Qld) (“PSA”).
- [32]The appellant points to the automatic cancellation of the parole and absence of consideration of any alternative sentencing options which would have avoided that trigger under s 209(1), (3)(b)(i) and (ii) of the Corrective Services Act 2006 (Qld) (“CSA”). During the course of the appeal hearing, the appellant’s counsel properly recanted from his acquiescence to the sentence of 4 months’ imprisonment. He argued that the offending is sufficiently distinguishable from the comparatives relied upon by the acting magistrate, and contended for a lesser term wholly suspended, or to be served by intensive correction order.
- [33]The totality principle has been the subject of much judicial consideration and is a settled principle of law. It was recently explained in R v Kendrick.[11] Relevantly, at paragraph [34] Morrison JA referred with approval to R v Beattie, ex parte Attorney-General (Qld)[12] where Philip McMurdo J (as he then was) spoke about the extension of the principle including:
“The principle has also been extended in the sentencing of an offender who is then serving an existing sentence. In such a case, ‘the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable’.”
- [34]This is reflected in s 9(2)(m) of the PSA, which required the court to have regard to ‘sentences that the offender is liable to serve because of the revocation of orders made under this or another Act for contraventions of conditions by the offender’.
- [35]Here the acting magistrate imposed the 4 months’ imprisonment to be served concurrently with the effective 9 months cumulative period of imprisonment.
- [36]Since the appellant was on parole at the time of the offending, the imposition of the sentence had the effect of automatically cancelling that parole by virtue of s 209 (1) of the CSA. So the practical effect of His Honour’s sentence was to impose a 9 month sentence (including the 4 month concurrent sentence). Consequently, the acting magistrate was required to fix a parole eligibility date in accordance with s 160B of the PSA. So much is uncontroversial, and he did so “set a Court ordered parole eligibility date effective the 25th of July 2017”.
- [37]Of particular relevance here is the requirement to set a parole eligibility date pursuant to s 160F of the PSA, which provides (with my bolding):
“(1) One of the objects of sections 160A to 160E is to ensure that at any one time there is only one parole release date or parole eligibility date in existence for an offender.
- (2)When fixing a date under this division as the date an offender is to be released on parole or is to be eligible for release on parole, the date fixed by the court must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment.”
- [38]The legislature have provided salient examples in relation to the application of the principle under s 160B(2), including, relevantly here, example 2 as follows:
“O is sentenced to a term of 1 year’s imprisonment on 1 July 2007 with a parole release date of 1 January 2008. On 1 November 2007, O is sentenced to a further term of 1 year’s imprisonment for another offence, to be served concurrently with the first term. A parole release date fixed for O under section 160B(3) must relate to the 16 months period of imprisonment to which O has been sentenced and must not be earlier than 1 January 2008.”
- [39]Both the prosecution and appellant’s representative alluded to the appellant’s offending while on parole making him liable to serve the 9 months’ cumulative imprisonment imposed on 16 December 2016. But the Court was not assisted with any submission about s 160F(2) of the PSA, nor was it referred to in the sentencing reasons.
- [40]Whilst the learned acting magistrate seemed to be cognisant of the need to set a parole eligibility date, His Honour apparently did so by calculating a date 1 month and 10 days from the sentence, or one third of the 4 month term of imprisonment, just imposed. In that way His Honour isolated the 4 month cumulative sentence as the sole focal point of setting the parole eligibility date.
- [41]It seems to me that the acting magistrate apparently set the parole eligibility date with no regard to the 9 month “period of imprisonment” constituted by the previous cumulative sentences and the concurrent 4 month sentence. Therefore, in my respectful view, the acting magistrate erred in exercising the sentencing discretion by failing to take into account material considerations of the totality principle, and ss 160B(2) and 160F of the PSA.
- [42]Further, in my respectful view, having considered the comparative cases below, the sentence of 4 months’ imprisonment is outside the appropriate range in the circumstances of this case. It seems to me that the Court allowed the appellant’s previous offending to overwhelm other material considerations and the nature and seriousness of the offending subject of the sentence. This may have been avoided if the advocates provided better assistance to the court with comparative guidance as to sentence. The result is that the sentence is manifestly excessive, unreasonable or plainly unjust.
- [43]Therefore, I allow the appeal against sentence.
Resentence
- [44]In those circumstances, this Court is required to allow the appeal and to re-exercise the sentencing discretion having regard to the material on appeal and my remarks, and I highlight the following.
- [45]The purpose and guidelines of sentences are those particularised in s 9 of the PSA. The sentence must be appropriate punishment in the circumstances, facilitate avenues of rehabilitation, deter others from committing a similar offence, make it clear that the community denounces the conduct in this offence, and protect the community.[13] Further, in the absence of violent or sexual offending, a sentence of imprisonment should only be imposed as a last resort and a sentence that allows the offender to remain in the community is preferable.[14]
- [46]The appellant 51 years old at the time of the offending, and he is now 53.
- [47]Since the Notice of Intention to Allege Previous Convictions was erroneous, the respondent properly concedes that the maximum penalty for the current offending was 3 years’ imprisonment.
- [48]The appellant’s offending involved his unannounced attendance at the aggrieved’s house with a view to early contact with their child in the absence of the requisite written consent of the aggrieved as required by the Domestic Violence Order made on 19 November 2015 (as amended). He is wholly blameworthy for the offending; it was not a result of some misunderstanding. The appellant’s offending conduct did not involve any physical violence, overt aggression or intimidation, but the cumulative effect of his conduct upon the aggrieved should not be underestimated. The continuing need to protect the aggrieved and her personal circumstances are also relevant to the sentence.
- [49]The prevalence of the offending, especially in the nature of repeated domestic violence, cannot be understated. The strong remarks of McMurdo P in R v Fairbrother; ex parte Attorney General (Qld) [2005] QCA 105 at [23] that ‘domestic violence is an insidious, prevalent and serious problem in our society’ and her remarks of its consequences and impact in the victims. Sadly, those remarks remain true 12 years later in contemporary society.
- [50]The appellant has a relevant criminal history including 13 breaches of domestic violence orders involving conduct spaning 12 years from November 1993 until June 2015. The current offending occurred on 26 March 2017 being between 21 and 23 months after his last breach, which involved prohibited contact with the same aggrieved. He also has an extensive criminal history of breaching other Court orders and other offending. The appellant also has previous convictions for multiple drug offences, assault occasioning bodily harm, wilful damage, possession of a knife in public, assault or obstruct police, stealing and possession of suspected stolen property.
- [51]At the time of his offending subject of this appeal, the appellant was on court ordered parole pursuant to orders made on 17 February 2017. On that date the appellant was sentenced to six months’ imprisonment for a drug offence and three months for failure to appear, to be served cumulatively. The court set an immediate parole release date. This 9 month period of imprisonment subject of the court ordered parole was due to expire on 5 November 2017, which is effectively extended to 5 February by virtue of the suspension and cancellation process.
- [52]Whilst his criminal history, especially previous breaches, is clearly relevant and militates for personal and general deterrence, it ought not overwhelm proper consideration of other proper principles.
- [53]The appellant has three children from his previous relationships. He has worked as a petrol and diesel mechanic over 3 decades and also worked training horses. Whilst he is in receipt of Centrelink benefits he has obtained employment and is regularly disclosing his income from that employment in the calculation of the receipt of those benefits.
- [54]He has made efforts of self-rehabilitation. He has voluntarily engaged in counselling to address the underlying causes of his behaviour, which is supported by a letter tendered at the sentence. Further to the Probation and Parole officer’s report given at the previous sentence hearing on 17 November 2017, I accept that the appellant more recently complied and responded to his parole requirements, but for this reoffending.
- [55]He has also demonstrated his remorse by an early plea of guilty, and has co-operated with police and prosecuting authorities.
- [56]The respondent persisted with reliance upon the comparative cases provided to the acting magistrate of TZL v Commissioner of Police [2015] QDC 171 and Russell v Commissioner of Police [2008] QCA 210.
- [57]TZL was an appeal from the Magistrates Court to the District Court. The District Court reduced the sentence imposed below from 10 months to 6 months, 11 days’ pre-sentence custody was declared and the immediate parole release order was undisturbed. In that case, the defendant sent 41 emails in a period of 3 and a half month. They were described as containing insults and abuse aimed at the aggrieved as well as images of exposed female breasts. The offending also involved a brief personal contact when the defendant attended a Christmas party at his daughter’s childcare centre before the aggrieved arrived. Kingham DCJ remarked at [20] that: “On those facts, the combination of those contacts would not warrant a sentence of imprisonment.” However, the defendant had an “appalling history of breaching protection orders: 10 convictions in all; 8 of which related to this complainant.”, which demonstrated disdain for protection orders”. The defendant was also on probation for similar offending when be reoffended.
- [58]Like TZL, the appellant’s criminal history could be described as ‘appalling’ and showing ‘complete distain for protection orders’. However, comparative value of the case is otherwise limited. The appellant’s conduct was limited to a single brief event. The conduct could not be equated to the content and persistence of electronic communication over an extended period as in TZL. It was also pertinent that TZL reoffended whilst on probation for like offending, whereas, the appellant’s last offending of like nature was about 2 years before. His parole order related to very different offending, which did not involve the aggrieved. It seems to me that the circumstances in TZL were more serious and can be well distinguished from the appellant’s offence. Even so, the circumstances in TZL warranted an immediate parole release order after accounting for 11 days’ presentence custody.
- [59]In Russell the defendant was refused leave to appeal from a decision of the District Court dismissing an appeal from the Magistrates Court. The defendant was convicted of breaching a domestic violence order and bail conditions. His offending also constituted a breach of a suspended sentence imposed the day before. He was sentenced to 6 months’ imprisonment, and also required to serve the 3 month suspended sentence of imprisonment, resulting in an overall sentence of 9 months’ imprisonment. A parole release date was set after serving 4 months’ imprisonment. The facts of the breach offending were contested, but involved the defendant attending the aggrieved’s premises with another male, and requiring her to drive him around Rockhampton. He was 37 years old, single and unemployed. Dutney J (with whom the other members agreed) remarked that: ‘Plainly the most serious aggravating feature of this matter was the imposition of the suspended term of imprisonment for the same offence on the previous day’; and that ‘the effect of the imposition of a further 1 month actual imprisonment for the breaching offending could hardly be complained of…’.
- [60]Again, Russell is of very limited comparative value. The appellant’s conduct was not analogous to the longer, direct, intimidatory and manipulative conduct in Russell. The appellant’s past like offending was historical and was not as recent as a day before nor subject of a suspended sentence, as in Russell. It seems to me that the circumstances in Russell are more serious and incomparable to the present. Further, it should be noted that the custodial portion of Russell’s sentence had already been served by the time of the appeal.
- [61]The respondent’s counsel referred me to JRB v Bird [2009] QDC 277, where a sentence of 6 months with a parole release date after 1 month was overturned on appeal. The defendant was convicted and not further punished. That involved a similar non-contact order excepting contact in relation to the children. The defendant’s offending did not involve any violence , but it was his third breach within 6 months and occurred only 8 days after the last one. The offender had no criminal history. Irwin DCJ said the sentence imposed on appeal should not be used as a precedent because it had to account for the time already served (22 days in custody before being granted appeal bail). There were other distinguishing features, including the defendant’s justified fears for his children’s welfare, who were removed from their mother’s care, and the reconciliation of the family by the time the appeal was determined.
- [62]I was not referred by either party to another appeal decision of Green v Queensland Police Service [2015] QDC 341, but I invited further submissions on the case. In that case, this court substituted with a sentence of 3 months’ imprisonment. The defendant was previously sentenced to 15 months’ imprisonment with an immediate parole release date for several offences, including two charges of contravention of a domestic violence order. He committed the further contravention of a domestic violence order about two months later. Whilst subject of a temporary protection order with a no contact condition the defendant contacted the aggrieved 60 times on her mobile phone. The purpose of the contact was to get her to withdraw the complaint. There were no threats of actual violence. The defendant received mental health treatment in custody and suffered from developmental delay, autism spectrum disorder and attention deficit disorder. He had a poor history for domestic violence breaches. Much of the past history was more serious.
- [63]Whilst of relatively limited comparative value, this case serves as an indicator of more serious offending in the sentencing range. The appellant’s contact was of a different mode and was not sustained and manipulative as in Green. The appellant’s conduct was not as recent as 2 months. It seems to me that the circumstances in Green are more serious and again distinguishable form the present. Further, it should be noted that, the custodial portion of Russell’s sentence had already been served by the time of the appeal.
- [64]In my view, the appellant’s offending conduct is in the lower end of the range and would not, of itself, usually attract a sentence of imprisonment. However, the nature of the offending in the context of persistent past breaches elevates the need for personal and general deterrence.
- [65]At the time of his offending, the appellant was on court ordered parole pursuant to orders made on 17 February 2017. On that date the appellant was sentenced to six months’ imprisonment for a drug offence and three months for failure to appear, to be served cumulatively. The court set an immediate parole release date. A sentence of imprisonment in this appeal will place the appellant in jeopardy of automatic cancellation of that parole and make him subject of a parole eligibility date, unless wholly suspended or to be served by intensive correction order (as discussed above).
- [66]Where the appellant has been sentenced to serve the cumulative period of imprisonment for the earlier offences, the Court may direct that the sentence be served concurrently or cumulatively under s 156 of the PSA. The circumstances are not caught by the mandatory requirement of cumulative sentences under s 156A of the PSA.
- [67]Since the past cumulative sentences arose from separate incidents and different offences, and personal and general deterrence looms large, it seems to me that the appellant ought serve his sentence cumulatively. To arrive at a just and appropriate sentence, I have considered the aggregate and the cumulative effect of the sentence, and have ameliorated the sentence having regard to the overall period of imprisonment imposed so that it is just and appropriate for the whole criminality but not too crushing or disproportionate.
- [68]For the offence of contravening the domestic violence order on 26 March 2017, I will sentence the appellant to 1 month of imprisonment to be served cumulatively. This will not trigger automatic cancellation of the appellant’s parole, but further enforcement of his parole is a matter for the probation and parole authority.
- [69]I am disinclined to imposing an intensive correction order given the appellant’s present circumstances and the potential with his previous sentence of imprisonment.[15] Instead, in mu view this is an appropriate case that the sentence is wholly suspended, and the operational period of this order will be 6 months. If the appellant commits a relevant offence in that period, then he will be dealt with, and likely sentenced to actual imprisonment.
- [70]Further, in all the circumstances, I will not disturb the extension of the Domestic Violence Order made on 19 November 2015, for 5 years until 15 June 2022 pursuant to s 36 of the Domestic Violence and Family Protection Act 2012 (Qld). I think it is necessary or desirable for the order to regulate the parties’ communication and contact for that period. By that time, the parties’ parental relationship and need for contact will change as the child matures into his early teens.
- [71]I will allow the appeal and order accordingly.
Orders
- [72]For these reasons, I will order:
- Appeal allowed.
- The sentence and orders made by the Magistrates Court on 15 June 2017 are set aside and in lieu:
- (a)The appellant is sentenced to 1 month imprisonment to be served cumulatively from the end of the sentence imposed on 17 February 2017.
- (b)The whole of the 1 month term of imprisonment will be suspended forthwith, and the operational period under this order is 6 months.
- The Domestic Violence Order made on 19 November 2015 is extended for 5 years until 15 June 2022.
Judge Dean P. Morzone QC
Footnotes
[1] Allesch v Maunz (2000) 203 CLR 172, [22] – [23] followed in Teelow v Commissioner of Police [2009] QCA 84, [4] per Muir J (Fraser JA & Mullins J agreed). See also White v Commissioner of Police [2014] QCA 121, [8] per Morrison JA (Muir JA & Atkinson J agreed), but contrast Forrest v Commissioner of Police [2017] QCA 132, 5 per Sofronoff P (Gotterson JA, Morrison JA agreed).
[2] Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5.
[3] House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519.
[4] (1936) 55 CLR 499, 504 and 505.
[5] Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111, [130] per Hayne J (minority).
[6] Sentence, T2/25-29.
[7] Sentence, T2/29-31.
[8] House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519.
[9] House v. The King (1936) 55 CLR 499, 504 and 505.
[10] Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111, [130] per Hayne J (minority).
[11] R v Kendrick [2015] QCA 27, [31]-[41]
[12] R v Beattie, ex parte Attorney-General (Qld) [2014] QCA 200, [19]
[13] Penalties and Sentences Act 1992 (Qld), s 9(1).
[14] Penalties and Sentences Act 1992 (Qld), s 9(2)(a).
[15] R v Hood (2005) 2 QdR 54