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- Unreported Judgment
MEG v Commissioner of Police QDC 302
DISTRICT COURT OF QUEENSLAND
MEG v Commissioner of Police  QDC 302
COMMISSIONER OF POLICE
Appeal pursuant to s 222 of Justices Act 1886
Brisbane Magistrates Court
10 November 2017 (ex tempore)
Brisbane District Court
10 November 2017
Judge Horneman-Wren SC DCJ
CRIMINAL LAW – APPEAL AGAINST SENTENCE – whether the learned magistrate erred in imposing a six month and four month sentence in respect to two charges of a contravention of domestic violence order – where the appellant plead guilty to both charges – where the learned magistrate miscarried in applying their sentencing discretion by adopting a foreclosed view in respect of an identified sentencing option – where the learned magistrate erred by not inviting further submissions prior to sentencing – where appeal allowed
Ms L Heaney for the appellant
Ms S Lio-Willie for the respondent
Legal Aid Queensland for the appellant
Office of the Director of Public Prosecutions for the respondent
- HIS HONOUR: On 31 May 2017 a learned Magistrate sitting in the Redcliffe Magistrates Court convicted the appellant MEG of a number of offences. Those offences were as follows: (1) the contravention of a domestic violence order as an aggravated offence (2) an assault or obstruction of a police officer as a domestic violence offence (3) possession of dangerous drugs (4) contravening a direction (5) contravention of a domestic violence order simpliciter (6) authority for controlled drugs (7) failure to properly dispose of a syringe or needle.
- Having convicted the appellant of each of those offences, his Honour imposed sentences of imprisonment of six months and four months respectively for the contravention of a domestic violence order as an aggravated offence and the simpliciter contravention of a domestic violence order. In respect of each of the other charges his Honour convicted the appellant but did not further punish her.
- The appellant appeals against the sentence imposed – I should say that the sentences were imposed upon the appellant’s pleas of guilty to each of the charges. The appellant appeals on the grounds set out in the amended Notice of Appeal filed by leave today: that she was denied access to natural justice and procedural fairness; and that the sentence imposed was disproportionate to the gravity of the offence before the court.
- In respect of the ground of denial of natural justice and procedural fairness, the submissions made on behalf of the appellant are placed on two footings. The first is that his Honour took into account extraneous material which was before the court, that having arisen by his Honour interposing a child safety matter related to the same appellant. In the course of the hearing of the sentencing for the offences.
- The second is that his Honour failed to seek full submissions from the legal representative of the appellant as to the sentence to be imposed. In particular, that having indicated a particular sentence structure, that being a combined prison probation order of two months’ imprisonment and 12 months’ probation. His Honour, for reasons which I will soon develop, departed from that sentence structure and imposed the sentences to which I have referred.
- I should say that in respect of the two sentences of imprisonment, his Honour ordered that the appellant be released on parole after serving two months of each of those sentences. It should be observed that the appellant did serve the two months of each of those sentences and was released on parole on the 27th of July 2017. It should also be observed that her full-time release date will occur in 17 days time in respect of the six month sentence.
- At this point it is also worth noting that the appeal has proceeded in the absence of the appellant. That course itself is contemplated by section 224A of the Justices Act 1886. However, in this particular matter I have been informed by Ms Heaney of Legal Aid Queensland, who appears for the appellant, that she has been informed that the appellant has in fact been deported and the Legal Aid Office has not had contact with her for some time.
- Notwithstanding that, because full submissions were filed by the parties, there was agreement that the matter ought proceed on the basis of the filed submissions. I have, in the course of the hearing of the appeal, asked some limited questions, arising out of the submissions on behalf of the respondent, of Ms Lio-Willie who appears for the respondent.
- It is convenient to deal first with the ground of appeal concerning a denial of natural justice and procedural fairness concerning the imposition of the sentences.
- It is apparent, as it was before the learned Magistrate, that the appellant had problems with drugs. During the course of the hearing before his Honour, his Honour raised the prospect that the appellant be referred to QMERIT for rehabilitation. It was indicated on the appellant’s behalf that she was amenable to that course. However, when she raised whether she was able to go home until she went to rehab, she was informed by his Honour that she could not. She persisted, saying that it was only for one night and that she would do a drug test that night and the following one the next morning. To that his Honour responded:
No, MEG. It’s my way or no way.
- MEG asked why and his Honour said:
I’m happy to just sentence you now, MEG.
- There was then a further discussion that she would not be bailed in the meantime. She asked whether she might be able to spend some time with her family, being a period of 10 minutes, and his Honour observed that the watch-house may be able to facilitate that but he did not know, it being beyond his control. There were then further exchanges and ultimately his Honour concluded that given the appellant’s presentation in the dock, he did not think that she was really somebody who was going to benefit from the course that his Honour had proposed and then proceeded to sentence her for the charges.
- His Honour commenced his sentencing by saying:
I’m just going to sentence her. I don’t think she’s suitable. Given the presentation I’ve just observed, I don’t think she’s really someone who presents as a suitable candidate. Stand up, please. Stand up, please. I’ve taken into account
- At that point the appellant’s legal representative interjected saying:
Your Honour, I beg your pardon, I’ve not made any submissions in relation to sentence in this matter.
- His Honour then responded:
Sorry. Sorry. I will hear from you. I intend to impose a combination – sorry, I had forgotten you hadn’t. I intend to make an order in relation to the – so you can address me in relation to charges 4 and 6 for a combined prison/probation order. I’ll hear from you as to why I shouldn’t do that.
- The appellant’s then legal representative commenced to ask what periods his Honour had in mind and his Honour informed that it was two months’ imprisonment to be followed by 12 months’ probation. His Honour went on to say:
And I’m considering that for a number of reasons: the seriousness of both of those charges, the nature of the threats that were made, the ongoing offending and the clear connection it seems with the use of ice. I’m of the view that a sentence constructed that way recognises the seriousness of it, provides a sufficient deterrence but also assists in the rehabilitation of MEG, ensuring that she won’t be using for two months and then by having her subject to a significant period of probation for ongoing follow-up.
- At that point it can be observed that his Honour was inviting submissions on a particular sentencing structure which he was considering for the reasons which he had identified. Submissions were then made on the appellant’s behalf as to her antecedents and something of the circumstances of the offending. The breaches of domestic violence orders related to a domestic violence order which had been made in favour of her mother as the aggrieved and named her son as a named person in the order. The threats which had been made were threats to kill herself, the appellant, and her son. Her mother had been quite concerned that she might carry out those threats.
- Further submissions were made on her behalf, including that she was still a very young woman. There was also an exchange about the fact that she had breached an earlier probation order which had been placed upon her in January of 2017 by the subject offending. The following submission was then made by Mr De Maio who appeared for the appellant:
If your Honour continues on the course you are proposing, really, your Honour, my submission in the alternative would have been that she be released perhaps earlier but on parole for a longer period of time. That’s the other side of it, but I certainly hear what your Honour says in relation to it. I ask your Honour to take these as early pleas, certainly those last two matters so they might be the last in time, but the ones that were brought forward from June to be dealt with today is by her an effort to have more matters finalised.
I think they’ve all been – the first court dates in all of these have been – the 24th of May is possibly the earliest. Everything has been either this week or brought forward from next month. She sought to bring these matters to a conclusion, facilitate in the course of justice and do the right thing to get things sorted out and get her back on track. Your Honour, I would ask your Honour to provide her with the shortest possible period in custody. Obviously she is going to be subject to testing regardless upon release. I think those matters are all relevant. She is seeking to take the next steps to return to being a responsible mother as soon as possible and to return to what can only be described as a very supportive family, your Honour. They’re all here today.
- That was the conclusion of the submissions made on her behalf. It should be observed that those submissions were made on the basis of them being an alternative submission which would have been made. That expression as used by Mr De Maio suggests acceptance of the sentence structure as proposed by his Honour. It is perhaps for that reason that Mr De Maio did not go on to expand upon what he might have submitted to be an appropriate shorter period of imprisonment or what he meant by her being put “on parole for a longer period of time”.
- His Honour then proceeded to impose a sentence. In doing so his Honour proceeded on the basis that he had foreshadowed that is that the appellant would be sentenced to two months’ imprisonment to be followed by a period of probation of 12 months. His Honour then, as he was required to do, explained to the appellant the requirements of the probation order to which she would be subject.
- Those requirements were to include that she would be under an absolute prohibition from consuming, inhaling or administering a dangerous drug or other illicit substance whilst on the order and that she would be required to submit to drug testing, including urine analysis as required, and all such tests were required to be negative. His Honour observed that he was the view that after two months she should be returning negative tests. That was quite evidently a reference to the two months’ imprisonment which his Honour was going to impose.
- His Honour then asked whether the appellant would be willing to comply with that Probation order. The appellant’s response was, “Yes.” His Honour then said:
It is – but you’ve got two months. I do not need your compliance for sending you to gaol for two months. I’m asking at the release of the two months, are you willing to comply with a probation order?
- The appellant then asked:
What happens if I say no?
- His Honour then said:
You can say no. I therefore note her consent has not been given in relation to the offence
- At that point Mr De Maio interrupted saying:
I think she asked if she is able to say no.
- The following exchange then took place:
BENCH: Well, I take it as no.
DEFENDANT: That’s right.
BENCH: That’s right? Yes. In relation to the offence charged 6 – charge fraud
- His Honour then went on immediately to convict the appellant and sentence her to six months’ imprisonment in relation to the aggravated breach of domestic violence and four months’ imprisonment in relation to the other domestic violence breach. He then fixed the parole release date, as I have already described. His Honour then declared four days of presentence custody served in the watch-house to be time served under the sentence.
- From those exchanges it is apparent that his Honour considered that the appellant had indicated that she would not consent to probation in the terms identified by his Honour. In my view, his Honour was wrong in that conclusion. The appellant clearly said:
What happens if I say no?
- That was not, in my view, a statement that she did not consent to the probation order. It was an inquiry as to what might occur in the event that she did not give her consent. Of course, the answer to that inquiry may very well have informed whether she did ultimately provide her consent. That avenue was foreclosed to her.
- I am further of the view that his Honour was mistaken in concluding that the defendant’s statement, “That’s right,” was confirmatory of her not consenting to the probation order. Mr De Maio had made the observation, accurately, that:
I think she asked if she is able to say no.
- His Honour’s response that, “Well, I take it as no,” was, as I have already said, misplaced. Furthermore, the appellant’s statement of, “That’s right,” which his Honour then took to be confirmatory, seems more confirmatory of Mr De Maio’s observation that she had only asked if she was able to say ‘no’ rather than, as his Honour took it to be, confirmatory of her indication that she would not consent.
- At that point, in my view, the sentencing discretion of his Honour miscarried. At that point his Honour foreclosed not only an available sentencing option, but the hitherto identified sentencing option without the appellant having stated that she would not consent to probation but on the understanding that she had done so. In my view, his Honour also erred in then going on to impose a six month sentence and a four month sentence for the two breaches of domestic violence order without inviting further submissions.
- Whilst it is true that Mr De Maio had offered what would have been an alternative submission of being a shorter period of imprisonment and a longer period of parole, that was, as I have already discussed, not expanded upon. There were no comparable decisions handed up to his Honour for his consideration and whilst it is apparent that his Honour had in mind, under the sentence structure which he was initially considering, a period of actual imprisonment of two months, the basis upon which his Honour then imposed a head sentence of six months with a custodial period of two months was not explained by his Honour.
- Whilst the end result was still one of a custodial period of two months, no reasons were stated as to why a six month head sentence was appropriate. For those reasons I am satisfied that an error of the kind identified in House v The King has been established in respect of that aspect of the denial of natural justice ground. That being so, the sentencing discretion ought be exercised afresh.
- The appellant, as I have said, has already spent two months in custody. In the written submissions on behalf of the respondent reference is made to the decisions of The Queen v Williams  QDC in which a term of six months’ imprisonment was imposed for each of the three contraventions for domestic violence order. There were also indictable charges, including assault occasioning bodily harm and choking.
- The respondent very fairly submits that the substantive charges in that matter were more serious than in the present matter. The submissions also very helpfully refer to The Queen v De Villiers  QDC in which a term of three months’ imprisonment was imposed for each of four contraventions of a domestic violence order. There there were also indictable charges which included grievous bodily harm and assault occasioning bodily harm, deprivation and stalking and the infliction of actual violence. Again it was very fairly submitted that that was a more serious matter than the present matter.
- I have touched somewhat on the circumstances of the breaches in this particular matter, being breaches of the domestic violence order of which the appellant’s mother was named as the aggrieved and her son as the named person, the threats being of self-harm, including killing herself, that is the appellant, and also her son. They are very serious threats indeed and constitute serious breaches of the domestic violence order.
- An aggravating feature of the breaches was that the threats were made, or at least some of them, in front of her son. However, in the circumstances of this particular matter, I am of the view that the time served in custody by the appellant is an appropriate sentence. Therefore, the orders will be:
(2)set aside the orders of the Magistrates Court in respect of counts – is it 8 – of charges
- MS HEANEY: His Honour referred to them as charge 6 and charge 4.
- HIS HONOUR: Thank you.
(2)set aside the orders in respect of charge 6 and charge 4.
- In lieu of those orders, I sentence the appellant to two months’ imprisonment. I do not think I need to make an order in respect to the other charges, do I?
- MS LIO-WILLIE: No, your Honour.
- HIS HONOUR: Is there anything further?
- MS LIO-WILLIE: No, your Honour.
- HIS HONOUR: Well, if you can find MEG you can inform her of the result. Thank you very much both for your very helpful submissions and the way you’ve managed to facilitate today’s hearing. Thank you.
- MS HEANEY: Thank you, your Honour.
 (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ
- Published Case Name:
MEG v Commissioner of Police
- Shortened Case Name:
MEG v Commissioner of Police
 QDC 302
10 Nov 2017