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CDX v Queensland Police Service QDC 96
DISTRICT COURT OF QUEENSLAND
CDX v Queensland Police Service  QDC 96
QUEENSLAND POLICE SERVICE
Appeal under s 222 Justices Act 1886
Magistrate Court at Ipswich
5 April 2017 (ex tempore)
5 April 2017
Horneman-Wren SC DCJ
CRIMINAL LAW – APPEAL AGAINST SENTENCE – whether the Magistrate considered irrelevant matters in consideration of the sentence – Whether the Magistrate fettered in her discretion by losing objectivity in approaching the sentence – Whether the Magistrate relied on irrelevant considerations from a temporary protection order – Where imprisonment was within the sentencing range – Where appeal allowed
S Kissick for the Applicant
N Needham for the Respondent
Aboriginal and Torres Strait Islander Legal Service for the Applicant
Director of Public Prosecutions for the Respondent
- On 15 February 2017 the appellant pleaded guilty to one count of contravention of a domestic violence order, one count of possessing restricted items – which were a set of handcuffs and a telescopic baton – one count of possessing explosives, and one count of assaulting or obstructing a police officer. On each of the contravention of a domestic violence order and assaulting or obstructing police, he was convicted and sentenced to six months imprisonment. His parole release date was fixed at 15 April 2017; that is after having served two months, being one third of the head sentence imposed. On each of the other counts he was convicted but not further punished. He appeals against the sentences imposed pursuant to section 222 of the Justices Act 1886.
- The appeal, as filed, raised the sole ground of appeal that:
The sentence imposed by the learned Magistrate was manifestly excessive.
- He seeks leave to include the following further grounds:
- (a)The Magistrate took irrelevant matters into consideration, namely the grounds that were relied upon to found the temporary protection order (made ex-parte) and that the appellant was “exactly the sort of person that made the court concerned that his next victim could be on the front page of the Courier Mail, he having gone around there and taken matters into his own hands;”
- (b)The Magistrate mistook the facts and relied upon facts not alleged to form facts constituting the breach of domestic violence, namely having the child in his arms and going to grab a knife;
- (c)The Magistrate fettered her discretion by losing objectivity in the approach to the sentence, calling submissions:
It’s bullshit, you know.
calling taking his child from school:
Borderline child abduction
Leopards don’t change their spots
expressing concern about the dangerousness of the appellant, and making reference to the Courier Mail; and
- (d)The Magistrate erred in law on sentencing on the basis that she rejected the appellant’s instructions that the threat related to the Family Court and the threat regarding the child was an actual threat to kill his son.
- The original ground of the sentence being excessive was not abandoned.
- No objection to those further grounds is taken by the respondent. Although section 222(2)(c) in its terms prescribes that if a defendant pleads guilty or admits the truth of a complaint, the person may only appeal under this section on the sole ground the defined penalty, forfeiture or punishment was excessive or inadequate, that provision must be read in light of the reasons for judgment of the President, and Chesterman JA in Smith v Ash  2QR 175, where it was concluded that that provision should be understood as a prohibition on appeals simply against conviction by a person who pleaded guilty, and does not extend to any other prohibition.
- The nature of an appeal under section 222 is one of rehearing. An appeal by way of rehearing requires that the appellate court conduct a real review of the hearing and the Magistrate’s reasons. In Allesch v Maunz (2000) 203 CLR 172, at , it was observed that on 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.
- In respect of discretionary error, that is error in the exercise of the discretion as explained in House v The King (1936) 55 CLR 499:
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 to exercise the discretion which the law reposes in the court of first instance.
- In Fox v Percy  214 CLR 118, at , their Honour’s, the Chief Justice and Gummow and Kirby JJ observed:
If making proper allowance for the advantages of the trial judge they conclude that an error has been shown, they are authorised an obliged to discharge their appellate duties in accordance with the statute.
- Further on, at , their Honour’s said:
But in every appeal by way of a rehearing, a judgment of the appellate court is required both on the facts and the law.
- The further grounds raised in the appeal by the appellant, if successful, would demonstrate appealable error.
- The events giving rise to each of the charges occurred the day before the appellant was dealt with in the Magistrates Court. He had been refused bail after his arrest and appeared in court the following day, on which he entered his guilty pleas and the charges were immediately dealt with. The prosecution case was stated in unusually brief terms. It consisted only of the following:
Your Honour, there’s facts I intend to rely upon, I’ll tender those. There’s history from Queensland, Northern Territory, Western Australia, Victoria and Northern Territory, Victoria and Northern Territory that interstate history.
- The tendered facts to be relied on were, so it would appear, the facts set out in the Queensland Police Service Court Brief (General), commonly referred to as the QP9. Those facts were set out as follows:
On the 6th of February 2017, temporary protection order was made at the Ipswich Magistrates Court, naming CDX as the respondent and ACP the aggrieved. The order has mandatory conditions only. The respondent to be of good behaviour to the aggrieved and not commit domestic violence against the aggrieved. At 11.14 am on the 13th of February 2017, Inspector Michael Ede contacted by telephone and explained the order to the defendant. At 2 pm, Inspector Ede emailed a copy of the temporary protection order to the respondent, and at 2.30 pm on the same date explained the order over telephone to the respondent.
In relation to charge 1, at approximately 11.20 am on the 14th of February 2017, the aggrieved contacted police concerned for the welfare of her five year old child, [child’s name] and the respondent. The aggrieved stated she was receiving text messages from a phone number belonging to the respondent all morning. The respondent accused the aggrieved of having a boyfriend and demanding his name. The aggrieved has replied that the only man in her life is [child’s name]. The applicant has replied texting words to the effect of, ‘I can change that.’ The respondent then attended the [name of school]. The respondent had taken [the child] out of school, stating he was going to an appointment. A short time later the respondent sent a multimedia message to the aggrieved’ s parents of a sex toy (dildo) and what appears to be a bottle of lube. The aggrieved has recognised the bench in the photograph to be that of her former residence of [address]. The respondent then contacted a sister, stating that he was going to kill himself.
In relation to charge 4, at approximately 11.30 am on the 14th of February 2017, police attended [the address]. Police attempted to raise the respondent at the address with no result. One officer believed he heard a small child crying for a small period, however couldn’t confirm this. Due to threats of self harm and concerns for the safety of [the child], police attempted to force entry to the rear of the house. A male has flung open the curtain and roared at police. The door has then been opened by police. Due to the initial aggressive behaviour displayed by the male, police gave verbal directions for the male to get on the ground. During this, a small child has run to the male who has picked him up and moved backwards into the kitchen. Police gave numerous verbal instructions for the male to put the child down. The male continued to argue with police, yelling at them to leave his house, all the while holding the child. The male then open (sic) the top kitchen draw (sic) and using his right hand attempted to grab something – the draw (sic). Police, fearing the male was attempting to grab a weapon, moved forward whilst still issuing verbal directions. The male moved forward from the draw (sic). Police observed the male to make a fist with his right hand an moved his right arm back in an aggressive manner, however have physically restrained the male. The male was arrested and restrained. Police observed in the top draw (sic) where the male attempted to reach in, large serrated kitchen knives.
- Charge 1 to which those facts related is the charge of a breach of a domestic violence order. Charge 4 was the charge of obstruct or assault police officers. Nothing further was said by the prosecution as to the facts. No submissions were made by the prosecutor on those facts generally, or as to an appropriate penalty.
- The solicitor who appeared for the appellant below commenced his submissions by observing that:
At the outset, the QP9 material paints a little bit of a different picture than to – on my instructions to the reality
- The solicitor then continued by observing that in relation to the appellant’s criminal history the last entry was in March 2010, and that is was an assault occasion bodily harm. He noted that it did not involve the aggrieved, in terms of the complaint then before the Court. He then referred to earlier domestic violence breaches, in 2005, 2006 and 2007, of which the appellant had been convicted, and noted again that those breaches in those years did not relate to the aggrieved in respect of the domestic violence order that he was then before the Court for having breached. He referred to the aggrieved and the appellant having been in a domestic relationship for some eight years and their domestic circumstances.
- He referred to the appellant’s occupation as a diesel mechanic and that he worked in Katherine in the Northern Territory in his own business. That his parents lived in the Northern Territory and that he usually flew in and flew out to the business, spending six weeks in the Northern Territory and two weeks back in Queensland on a rotational basis.
- The solicitor then went on to make the first of what was a series of submissions in relation to the circumstances faced by the defendant, now appellant, upon his return to Queensland on the most recent occasion prior to the commission of these offences.
- The solicitor said:
He returned home a couple of days ago from the Northern Territory and found that his partner and their son had moved out of home. A lot of belongings taken, furniture taken from the house. So he arrived home rather devastated, that no message that she had left or why she had left, no indication where she’d gone to. He makes the contact with the parents, not there. So as to now, he still doesn’t know where she and her – the son is.
- The appellant’s solicitor then referred to circumstances, which were set out in what he referred to as “the DV material on the protection order applications”. He noted that, from that material, the aggrieved had contacted police initially on 2 February 2017, but at that stage, had not wanted any order made, but that the police, however, had proceeded, in any event, and of their own initiative, and made the application.
- On examining the file transferred from the Magistrates Court to this Court on the appeal, the document which Mr Hoskin, the solicitor appearing for the defendant at first instance, was referring to, did not appear on the file. In the course of the sentencing hearing, her Honour also later referred to matters, seemingly contained within documents, or a document, not transmitted with the file.
- On examination of the document to which Mr Hoskin had apparently referred, that is, the application for protection order, it is apparent that that was the document to which her Honour also referred. In the circumstances, and without objection of either counsel, I admitted that document as exhibit 1 on these proceedings. In my view, it was necessary to complete the record upon which the re-hearing was being conducted. I shall return later to the observations which her Honour drew from that document.
- In the course of his submission on behalf of the then defendant, Mr Hoskin conceded that the taking of the child out of school without the mother’s knowledge, she having taken him to school that day, of itself, would be conduct on the part of the defendant which was not being of good behaviour to the aggrieved. He noted, however, again, the defendant’s expectation of coming home to the house a couple of day’s previously, to find his son, with whom he described the defendant as having a loving relationship, being gone from the home. Mr Hoskin submitted that, in terms of taking the child out of the school, the defendant had done so in a panic. He submitted that, in hindsight, the defendant should not have done so, but then said:
But I guess his sentiments and emotions at the time, not knowing – not having any forewarning of a wife or partner moving out of home, and then finding that happened after returning from some six weeks of work in the Northern Territory, would be quite upsetting and distressing.
- Mr Hoskin then went on to refer to the defendant’s timely plea of guilty and the absence of any history involving anything concerning the aggrieved to this particular domestic violence order and submitted that a fine was within range, which he conceded would probably be a significant fine. That submission was met with a response by her Honour which suggested that her Honour did not consider a fine to be within an appropriate range for these matters. Her Honour referred to the defendant’s previous history, as revealed in the criminal history, of stalking and breaching domestic violence orders in 1997, 2005 and again in 2007, and observed that they must have been in respect of other relationships.
- Her Honour also referred to the defendant’s criminal history, of failing to stop motor vehicles, dangerous driving, assault occasioning bodily harm in 2000, failing to stop in 2007 and of wilful damage and of assaulting two people in 2008. Her Honour observed that she “was very interested to see what those two assaults were.” Her Honour then said this:
And then, you know, a lot of your instructions completely fly in the face of the DV application, where on the 2nd of February, he’s sending her incredibly threatening text messages, saying, “Ensure it’s paid tomorrow or a surprise is on its way. I’ll fuck you up, cunt. You keep on making excuses up. You’re a cunt. I’m on the verge of hopping on a plane and coming home to wring your fucken neck. Again, you are fucken up my credit history. You’ll pay for this. I fucken mean it. I hope something bad happens to you.”
Blah, blah, blah:
This is the twentieth time you’ve lied to me.
So him, to suddenly come home to a loving household, well – bam, she’s gone with the son. It’s bullshit, you know. You can see by – you – these can be your instructions, but I don’t have to accept them.
- It may be observed that her Honour’s reference to the submissions being made by the defendant’s solicitors as being “bullshit” was an infelicitous expression. It is clear, however, that her Honour was expressing herself in that way in rejection of what was placed before her by way of submissions, that the defendant had returned home a couple of days earlier with, effectively, no understanding as to why it would be that he would find his partner and son no longer at the family home.
- In his submissions on the appeal, Mr Kissick has raised that the Magistrate’s reliance on the grounds to found the temporary domestic violence order, from which that quoted passage to which I have just referred came, was an error as those grounds did not form part of the facts presented and that they had been made ex parte on the application for a domestic violence order and no submissions were sought or made about their veracity in the sentencing hearing.
- The first of the new grounds of appeal added asserts those matters to be irrelevant considerations. For my part, I cannot see that the facts and circumstances giving rise to an application for a domestic violence order would be irrelevant to a consideration of an appropriate sentence to be imposed for a breach of that same order, particularly in circumstances in which the breach had occurred within two weeks of the order having been made. Mr Needham, who appears for the respondent, in his submissions, however, raises the issue as to whether or not the reference to those matters may indicate that there may have been some denial of natural justice.
- In respect of those particular matters which I have quoted above from her Honour’s reasons, whilst they were drawn from the application for the protection order, rather than from the QP9 which was tendered on the sentence, and to that extent may have denied the defendant some opportunity to respond to them, no attempt was made to cure that within the hearing itself by submissions made by Mr Hoskins, on instructions from the defendant who was present at the time, and nor has any attempt been made on the appeal to lead evidence which would place in contest the veracity of that evidence.
- It should also be observed that those aspects which I have set out above of the application for a protection order, appear as direct quotes from emails shown by the aggrieved to the police. To the extent that there may have been any minor lack of procedural fairness in the reference to those matters being made by her Honour, where they did not form part of the QP9 facts, I am of the view that the opportunity, both below and on appeal, to cure any such lack of procedural fairness has been accorded. What is more, it must also be observed that the defendant’s solicitor obviously had that same document to hand, because it was from that document that he had earlier recited other facts in the course of the sentencing hearing.
- In the course of the hearing of the appeal today, the central ground of appeal has distilled itself to an issue as to whether or not, in sentencing the defendant, her Honour conflated the facts and circumstances concerning the breach of the domestic violence order with those concerning the obstruction of the police officers, that is, counts 1 and 4. It is for that reason that I have set out above the particularised facts in relation to each of those counts.
- In her reasons delivered on the sentence, some suggestion emerges that her Honour may have, in fact, conflated those facts in sentencing the defendant. At page 2 of her Honour’s reasons, her Honour says:
And when police spoke to you on the 2nd of February, via phone, and explained these threatening messages, you have said, when questioned by the police, “(indistinct) was in for a big surprise when you returned,” and you said it was her birthday present. The respondent refused to answer any questions, became aggressive, stated the police were out to get him. The next thing they came – the next time they came to his house, they (indistinct) seemed to be pretty much getting close to an accurate description of what happened.
- It should be observed that that passage of her Honour’s reasons was also taken from, and informed by, the facts set out in the application for a protection order. However, those were not matters which were raised by her Honour in the course of the sentencing hearing; they only appeared in her Honour’s reasons as delivered. It should also be observed that, unlike the earlier recitation of matters from the application for a protection order, they are not facts evidenced by emails which were shown to the police, but rather statements by the police as to what had been said on the earlier occasion.
- Her Honour then went on to say:
I am told you have returned from the Northern Territory. You have then – she has left with the child, and apparently some property. You have spat the dummy. You have gone and taken that child out of school on a pretence, and taken him back to your house. The police have turned up – and just going back a little bit, sending her text messages accusing her of having some boyfriend, demanding to know his name. She said, “The only man in my life is [the child]. And your response is, “I can change that.” I do not for one second believe that that can be explained by “I can change that by going and taking Family Court proceedings so that he isn’t in your life.” I think that it was a threat that you could change her life by killing your son.
You have then taken him out of school. The police have gone around. You phoned her sister, saying that you were still – saying that you were going to kill yourself. Apparently, she has gone around. She is not concerned about you, but the police were called. You have flung open a curtain [indistinct] police. You have picked up your child, who has come onto the scene, continued to argue, arguing with police to leave your house, while you were holding that child. You have then gone to the top kitchen drawer and attempted to grab something from the drawer, which are later seen to be serrated kitchen knives. You have also got, in that house, in plain view, a telescopic baton and handcuffs, located on or in the gun safe.
- Her Honour then said:
Well, that is what you are being sentenced on.
- That statement, as I have said, suggests that her Honour may have conflated all those circumstances which relate to both counts 1 and 4 with the breach of the domestic violence offence, which was count 1. It should also be said that her Honour’s rejection of the explanation offered that “I can change that” related to the defendant taking proceedings in the Family Court for custody of the son emerged from submissions earlier made on the defendant’s behalf by Mr Hoskin. Her Honour then referred to, and took into account, the defendant’s previous history, setting it out in some detail, and then observed:
So whilst you may have been out of trouble for about the last nine years, you do show a propensity to violence. I have taken into account that. It is quite unusual, I think, for your partner’s sister to be here today in support of you, and that does surprise me to some extent. You are exactly the sort of person that Magistrates really worry about. You are the sort of person, your behaviour, your history, makes me very concerned that your next victim could be on the front page of the Courier Mail, you having gone around there and taken the matter into your own hands. This is extremely concerning for me, your behaviour. I am imposing a sentence here today that adequately reflects the criminality.
- Her Honour then went on to say that she had determined that a term of imprisonment should be imposed, and that under the legislation, she was required to first determine that imprisonment was the last resort, but found that there was no other alternative but to sentence the defendant to a term of imprisonment, and that her concern then became whether she released him immediately on parole or made him serve two months of that term of imprisonment. Her Honour had earlier in her reasons referred to the defendant’s guilty plea at the earliest of times, and said that she had taken that into account to reduce the penalty. It can also be observed that earlier in the proceedings, her Honour had observed that she thought that a sentence in the order of 12 months, with parole after four months, was what she was considering.
- Her Honour then went on to say that in the back of her mind she was concerned about the defendant’s state of mind, and what had gone on with police the previous day. She said that she took into account that it was a very emotional time for the defendant, and he may have been acting out of panic, and that he came home to find his son missing. Her Honour observed, however, that in terms of the context of the defendant’s history, she was satisfied that he must serve an actual term of imprisonment, and she set the parole release date after his having served two months.
- It should be observed that her Honour did not actually pronounce a six-month sentence in delivering her reasons. Her Honours handwritten orders do record a six month sentence with parole release on 15 April 2017; that is at the one-third mark.
- Her Honour’s statement that, “I am imposing a sentence here today that adequately reflects the criminality”, again suggests that her Honour was conflating the facts and circumstances of both counts 1 and 4. In making that statement, her Honour did not identify the basis upon which the sentence was being imposed. She did not, for example, identify which of the charges she considered to be the more serious based upon the relevant facts and circumstances relating to it, and that she was imposing a sentence for that charge which reflected the appellant’s overall criminality in respect of all charges. It is not, with respect, at all clear that her Honour was not imposing that sentence for the breach of domestic violence offence on facts which included those which transpired at the house, and which did not form part of the particulars of that charge.
- Whilst one has hesitance in referring to the discourse between the learned Magistrate and Mr Hoskin to illuminate the reasons and to discern more closely whether the suggested conflation may have taken place, reference to that discussion in the course of the sentence hearing does seem to demonstrate that her Honour was, in fact, conflating those issues.
- At one point, Mr Hoskin had submitted that he had initially struggled somewhat to see that there was a breach of the domestic violence order, but then made the concession, to which I have already referred, that the taking of the child out of school without the mother’s knowledge was, in fact, a breach. Her Honour had referred to the taking of the child out of school as being “borderline child abduction”. Her Honour then said this:
You say, ‘I cannot see how he breached the domestic violence order’. He has gone to grab – on the police summary of facts, he has got the child in his hand, and he has gone to grab a knife and, you know, that is not exposing a child to domestic violence? [indistinct] situation [indistinct] this is really serious, you know. We are talking – you know, my gut feeling is 12 months jail with parole after four. This is a dangerous man. This man, if he is released today, is a dangerous man.
- That passage seems clearly to indicate that her Honour had the matters concerning the conduct subsequently at the house in her mind as part of the breach of the domestic violence order. Having apparently conflated those factual issues, I am of the view that her Honour committed error in the exercise of her sentencing discretion. It then falls to this Court to determine what to do by way of re-sentencing the appellant.
- In respect of the domestic violence breach, the threat made was concerning and would have been most disturbing, and it was open to her Honour to conclude that it was a threat intended to scare the aggrieved. When followed by the boy being taken out of the school, it takes on a further tenor of concern. That conduct was also accompanied by the vulgar and degrading text that was sent to the aggrieved’s parents. Against that, however, there was no actual violence occasioned to any party, and the aggrieved’s sister had attended the house, subsequently, and found the appellant and son there, and she had formed the view that there was no particular risk to the child. That, however, of course, was conduct which itself was subsequent to the facts which constitute the particulars of that charge.
- The obstruct police, which was charge 4, was a serious example of obstructing police. It included grabbing for something from the drawer in the kitchen, and the evidence suggests that it would have been a knife. The child was being held throughout, no matter how he came to be so, and it is clear from the facts that the defendant had been instructed, clearly, initially to get on the ground and then, when he had taken the child into the kitchen, to put the child down. Against those matters, however, it must be considered that the maximum penalty for that particular charge is, in fact, six months’ imprisonment and given the defendant appellant’s early plea of guilty, six months to serve two months was at the highest possibly end of the sentencing range in those circumstances.
- Whilst the appellant’s solicitor had contended for a fine at first instance, I am of the view that that was not itself an appropriate penalty for this offending. The learned magistrate was entitled to, indeed, one might say obliged to take into account the significant domestic violence history of the appellant, ranging over many years. He had previously been convicted of offences of stalking and assault occasioning bodily harm, for which prison sentences had been imposed, albeit with immediate parole.
- Against that history, in my view, a sentence of imprisonment would have been an appropriate sentence to impose. However, against the history, or as part of it, was the absence of any offending in the nine years prior to the particular offending with which her Honour was dealing. In my view, a wholly suspended sentence would have been one within the proper exercise of the sentencing discretion. It was not a sentencing option which was discussed between her Honour and Mr Hoskin, Mr Hoskin only having advocated for immediate parole in light of her Honour’s observations that she did not believe that a fine was appropriate.
- Given my view that a short period of imprisonment wholly suspended would have been an appropriate exercise in the sentencing discretion, and given the fact that the appellant has now been imprisoned under her Honour’s orders since the 15th of February 2017. The appropriate order by way of re-sentencing, in my view, is to convict him and not further punish him. The orders will be (1) appeal allowed, (2) to set aside the sentence imposed on counts 1 and 4 on 15 February 2017, (3) on each of counts 1 and 4, he is convicted and not further punished. Is there
- MR KISSICK: The – that obviously means that the domestic violence order will stay in place, as made by her Honour. I presume you are not setting aside that component?
- HIS HONOUR: There is no appeal against it for a start.
- MR KISSICK: That is exactly right.
- HIS HONOUR: Yes, well, I order that the respondent pay the appellant’s costs, fixed in the sum of $1800.
- MR NEEDHAM: The only other matter to raise, your Honour, you have convicted and not further punished. That’s a conviction being recorded?
- HIS HONOUR: Yes.
- MR NEEDHAM: Yes.
- MR KISSICK: I am not arguing against that, your Honour, in the circumstances.
- HIS HONOUR: Yes. No, given his history, it must be recorded, in my view.
- Published Case Name:
CDX v Queensland Police Service
- Shortened Case Name:
CDX v Queensland Police Service
 QDC 96
05 Apr 2017