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Queensland Police Service v JSB[2018] QDC 120

Queensland Police Service v JSB[2018] QDC 120

DISTRICT COURT OF QUEENSLAND

CITATION:

Queensland Police Service v JSB [2018] QDC 120

PARTIES:

QUEENSLAND POLICE SERVICE

(Appellant)

v

JSB

(Respondent)

FILE NO:

149/17

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 Justices Act 1886

ORIGINATING COURT:

Magistrates Court at Cairns

DELIVERED ON:

28 June 2018

DELIVERED AT:

Cairns

HEARING DATE:

8 December 2017

JUDGE:

Fantin DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – prosecution appeal – whether sentence manifestly inadequate – where respondent pleaded guilty to contravention of domestic violence order (aggravated offence), possession of dangerous drug and breach of bail – where contravention offending confined to single act of verbal abuse – where respondent fined for contravention and drug offences, convicted and not further punished for bail offence – where two month suspended term of imprisonment activated in full and respondent given immediate parole release date

Legislation

Bail Act 1980 (Qld) s 29

Criminal Code 1899 (Qld) ss 1, 304B

Domestic and Family Violence Protection Act 2012 (Qld) ss 5, 8, 11, 177, 181

Drugs Misuse Act 1986 (Qld) ss 9, 13

Justices Act 1886 (Qld) ss 222, 223

Penalties and Sentences Act 1992 (Qld) ss 4, 9, 48

Cases

Allesch v Maunz (2000) 203 CLR 172

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

Commissioner of Police v Al Shakarji [2013] QCA 319

Fox v Percy (2003) 214 CLR 118

Gibuma v Queensland Police Service [2016] QDC 183

House v The King (1936) 55 CLR 499

IFM v Queensland Police Service [2016] QDC 140

Kentwell v R (2014) 252 CLR 601

McDonald v Queensland Police Service [2017] 45 QLR; QCA 255

MH v Queensland Police Service [2015] QDC 124

PFM v Queensland Police Service [2017] QDC 210

R v Barling [1999] QCA 016

R v Breeze (1999) 106 A Crim R 441; [1999] QCA 303

R v Hutchinson [2018] 11 QLR; QCA 29

R v Lawley [2007] QCA 243

RAS v Commissioner of Police (No. 1) [2011] QDC 366

RAS v Commissioner of Police (No. 2) [2012] QDC 239

Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679

Rowe v Kemper [2009] 1 Qd R 247

Shambayati v Commissioner of Police [2013] QCA 57

Wagstaff v Commissioner of Police [2016] QDC 344

Walker & Anor v Davlyn Homes Pty Ltd [2003] QCA 565

White v Commissioner of Police [2014] QCA 121

SOLICITORS:

Office of the Director of Public Prosecutions for the Appellant (E Coley)

Aboriginal and Torres Strait Legal Service for the Respondent (K Goodwin)

  1. [1]
    On 26 July 2017 the respondent was convicted on his own pleas of guilty in the Magistrates Court at Cairns to three charges:
  1. contravention of a domestic violence order (aggravated offence) pursuant to s 177(2)(a) of the Domestic and Family Violence Protection Act 2012 (Qld)  (DFVPA) on 26 April 2017;
  1. possession of a dangerous drug (cannabis) pursuant to s 9(1) of the Drugs Misuse Act 1986 (Qld) (DMA) on 7 July 2017; and
  1. breach of a bail condition pursuant to s 29(1) of the Bail Act 1980 (Qld) (BA) on 24 July 2017.
  1. [2]
    For the contravention of the domestic violence order offence, he was convicted and fined $1,000. For the drug offence, he was convicted and fined $300 and the drugs forfeited. For the bail offence, he was convicted and not further punished. Convictions were recorded on all charges. In addition, a two month suspended term of imprisonment was activated in full and the respondent was released immediately on parole.
  1. [3]
    By a notice of appeal filed 25 August 2017 the appellant appeals against the sentence on the ground that it is manifestly inadequate.
  1. [4]
    The appeal is under the Justices Act 1886 (Qld), s 222, and is by way of rehearing on the record, since neither side sought to lead further evidence: s 223. On an appeal by way of rehearing, it is necessary for this court to conduct a real review of the evidence before it, and make up its own mind about the case.[1]The onus is on the appellant to show that there was some error in the decision under appeal.[2]As this is an appeal against sentence, the principles in House v R (1936) 55 CLR 499 at 504 – 5 apply: it must appear that some error has been made in the exercise of the sentencing discretion.[3]
  1. [5]
    This court ought not interfere with a sentence unless it is manifestly excessive or inadequate, 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.[4]It is not a sufficient basis for me to intervene that I might have struck a different balance between the competing considerations which had to be weighed in the exercise of the discretion.[5]
  1. [6]
    If I identify a specific error, the sentence must be set aside and I must exercise the sentencing discretion afresh, unless, in that separate and independent exercise I conclude that no different sentence should be passed.[6]

Circumstances of the offending and relevant chronology

  1. [7]
    The Magistrate sentenced on the basis of an agreed schedule of facts.
  1. [8]
    The respondent was 46 years old at the date of the offending and 47 at sentence.
  1. [9]
    The respondent and the aggrieved had been in a relationship for six years. The aggrieved had three children from another relationship. At the time of sentence, the respondent had recently gained employment as a painter.
  1. [10]
    On 6 April 2017 a domestic violence order was made under the DFVPA against the respondent and in favour of the aggrieved and her three children as named persons. In addition to the standard condition that the respondent be of good behaviour towards the aggrieved and not commit domestic violence against her, it contained an “intervention order” condition requiring the respondent to report to Relationships Australia for a suitability assessment and, if deemed suitable, to attend an intervention program. The order is in place until 5 April 2019.
  1. [11]
    The order did not contain a “no contact” condition (prohibiting the respondent from approaching or contacting the aggrieved) or an “ouster” condition (prohibiting the respondent from entering or approaching or remaining at premises).
  1. [12]
    On 26 April 2017 at about 8pm, the respondent and the aggrieved were at home and became involved in a verbal argument about the aggrieved preventing the respondent from going through her mobile phone. They often argued about going through each other’s phones due to ongoing jealousy and mistrust. During the argument, the respondent yelled: “Show me your fucking phone.” The argument only ceased upon the arrival of police. The aggrieved sought refuge in the bedroom during the respondent’s abuse. The respondent co-operated with police and admitted raising his voice and swearing. The maximum penalty for the contravention of the domestic violence order (aggravated offence) was ordinarily five years imprisonment: s 177(2)(a) DFVPA, but when dealt with summarily, three years imprisonment: s 181(5) DFVPA.
  1. [13]
    On 27 April 2017 the respondent was granted bail on the condition that he not contact or approach the aggrieved.
  1. [14]
    On 18 May 2017 he appeared in the Magistrates Court and his bail was enlarged.
  1. [15]
    On 24 May 2017 the respondent was located at the aggrieved’s residence, and she was also present. He said he was aware that he was not to have contact with her but only attended because she was sick and needed him to help with the kids. He was arrested for breach of bail.
  1. [16]
    On 7 July 2017 the respondent was searched by police and found with less than one gram of cannabis in his pocket. He admitted possessing it for his personal use. The maximum penalty for the possession offence, dealt with summarily, was three years imprisonment: s 13(4) DMA.
  1. [17]
    On 17 July 2017 the respondent appeared in the Magistrates Court, pleaded guilty to the breach of bail offence on 24 May 2017 and was convicted and sentenced (by a different Magistrate) to two months imprisonment wholly suspended for 12 months. The contravention offence was not dealt with at that time.
  1. [18]
    On 24 July 2017 the respondent was located at the aggrieved’s residence. She was also present. The Magistrate accepted that he was present at the invitation, and with the consent, of the aggrieved. She also accepted that he mistakenly thought that he was no longer subject to the “no contact” bail condition after having been dealt with in court on 17 July 2017. The maximum penalty for the bail offence was two years imprisonment. The bail offence was a breach of the suspended sentence imposed on 17 July 2017.
  1. [19]
    On 26 July 2017 the respondent pleaded guilty to, and was sentenced for, the contravention of a domestic violence order (aggravated offence) on 26 April 2017, the possession of a dangerous drug (cannabis) on 7 July 2017 and the breach of a bail condition on 24 July 2017.

Respondent’s personal circumstances and criminal history

  1. [20]
    The respondent has a relevant criminal history. It includes 28 breaches of domestic violence orders, 18 breaches of bail conditions and breaches of other court orders.
  1. [21]
    In the previous five years, the respondent had been convicted of contravening a domestic violence order on six occasions, involving the same complainant: on 1 January 2013, 7 March 2013, 13 March 2013, 11 October 2014, 1 November 2014 and 24 February 2016, for which he had been sentenced to periods of imprisonment. The last breach occurred on 24 February 2016, one year and two months before the subject offending. For that offence the respondent was sentenced to six months imprisonment with a parole eligibility date after two months.

The sentencing remarks

  1. [22]
    Before the Magistrate, the police prosecutor submitted that “in relation to the aggravated contravention charge and the breach bail condition charge, … the only sentence that would adequately address the requisite purposes of sentencing is a term of imprisonment”[7]. The prosecutor relied upon Gibuma v Queensland Police Service[8]and submitted that the appropriate range for the contravention offence was 15 to 18 months imprisonment and for the breach of bail, four to nine months imprisonment. He also submitted that the court would activate the suspended sentence imposed on 17 July 2018 and order the defendant to serve the whole of that term.
  1. [23]
    On appeal, the appellant conceded, correctly, that the range submitted by the prosecutor below exceeded the gravamen of the offending in this case.
  1. [24]
    In submissions before the Magistrate, the respondent’s solicitor submitted that the prosecutor’s sentence range was high.
  1. [25]
    The Magistrate agreed, noting that “you sentence on the gravamen of the offending. You don’t sentence on a criminal history…. It’s an aggravating feature.”[9]
  1. [26]
    In her sentencing remarks, the Magistrate described the offending this way: “It is inappropriate behaviour, it is intimidating behaviour and it is controlling behaviour”.[10]
  1. [27]
    The Magistrate referred to the respondent’s criminal history as “appalling”.[11]She then acknowledged that, notwithstanding that his previous convictions were an aggravating factor, the sentence imposed must not be disproportionate to the gravity of the offence for which he was being sentenced. The Magistrate analysed his criminal history in some detail, before noting that she was sentencing the respondent on the conduct that was before the court, in circumstances where a sentence of imprisonment for this offending was a sentence of last resort and that a sentence that enabled an offender to remain in the community was to be preferred.
  1. [28]
    The Magistrate expressly referred to the following considerations[12]: the circumstances of the offending for the contravention of the domestic violence order[13]; the respondent’s pleas of guilty; that the sentence imposed must not be disproportionate to the gravity of the offence[14]; the respondent’s criminal history[15]; that a sentence of imprisonment should only be imposed as a last resort and a sentence that enables the offender to remain in the community is preferable[16]; that the contravention of the domestic violence order predated a sentence imposed on 17 July 2017[17]; that the respondent provided assistance to the authorities[18]; the respondent’s financial circumstances and capacity to pay a fine[19]; the quantity of cannabis found[20]; the circumstances of the breach of bail charge; that the respondent had served three days in pre-sentence custody[21]; the full activation of the two month suspended sentence imposed on 17 July 2017[22]; the respondent’s suitability for a community based order and the maximum penalty for the charges[23].
  1. [29]
    In particular, her Honour noted “I have taken into account that that breach predates the sentence imposed by this Court on the 17th of July 2017. I am satisfied that, had this matter been dealt with at the same time, the overall sentence would have been no greater.”[24]It is clear that considerations of totality arising from the two month suspended sentence and its activation in full were a significant factor in her decision.
  1. [30]
    In granting immediate release on parole, the Magistrate took into account all of the mitigating factors, particularly that the act that constituted the breach of bail was done in ignorance of the respondent’s bail obligations and with the consent and at the invitation of the person whom the condition was designed to benefit.
  1. [31]
    The Magistrate also had regard to personal and general deterrence, saying “Whether you get to remain in the community for the next month will very much depend on how you respond to the parole on which you have been placed today. … So it is two months’ imprisonment. So you are on parole for the next two months.”[25]

Appellant’s submissions

  1. [32]
    The appellant submitted that the Magistrate “incorrectly concluded that a term of imprisonment was not within range for the domestic violence offence”,[26]“went on to find that imprisonment was not within range”[27]and “erred in law, by finding that imprisonment was not within range for the DV offence”.[28]
  1. [33]
    The appellant submitted (and the respondent agreed) that ss 9(10) and (10A) PSA “must be considered as aggravating features of the sentence”.[29]
  1. [34]
    Before moving to the respondent’s submissions, it is necessary to deal with that particular submission.
  1. [35]
    Sections 9(10) and (10A) provide:

“(10)  In determining the appropriate sentence for an offender who has 1 or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to—

  1. (a)
    the nature of the previous conviction and its relevance to the current offence; and
  1. (b)
    the time that has elapsed since the conviction.

(10A)  In determining the appropriate sentence for an offender convicted of a domestic violence offence, the court must treat the fact that it is a domestic violence offence as an aggravating factor, unless the court considers it is not reasonable because of the exceptional circumstances of the case.

Examples of exceptional circumstances—

  1. the victim of the offence has previously committed an act of serious domestic violence, or several acts of domestic violence, against the offender
  2. the offence is manslaughter under the Criminal Code, section 304B.”
  1. [36]
    Section 9(10) is applicable because the respondent has previous convictions, including for like offending. However, it is subject to the qualification in s 9(11) that, despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence.
  1. [37]
    Section 9(10A) only applies “in determining the appropriate sentence for an offender convicted of a domestic violence offence”. Unlike s 9(10) which expressly refers to “previous convictions”, s 9(10A) is directed towards the offence for which the offender is being sentenced. The policy basis for introducing the aggravating factor was “to protect vulnerable members of our community, denounce this type of offending and provide adequate deterrence to perpetrators of this type of offending.”[30] 
  1. [38]
    To engage the application of s 9(10A), the offender must be being sentenced for a “domestic violence offence”. “Domestic violence offence” is defined in s 4 PSA by reference to the definition in the Criminal Code, section 1:

domestic violence offence means an offence against an Act, other than the Domestic and Family Violence Protection Act 2012, committed by a person where the act done, or omission made, which constitutes the offence is also—

  1. (a)
    domestic violence or associated domestic violence, under the Domestic and Family Violence Protection Act 2012, committed by the person; or
  1. (b)
    a contravention of the Domestic and Family Violence Protection Act 2012, section 177(2).

Note— Under the Domestic and Family Violence Protection Act 2012, section 177(2), a respondent against whom a domestic violence order has been made under that Act must not contravene the order.

  1. [39]
    Here, the respondent pleaded guilty to contravention of a domestic violence order under s 177(2) DFVPA. That is an offence under Part 7 of the DFVPA and is a “domestic violence offence” for the purposes of that Act: s 5 DFVPA. However it is not a “domestic violence offence” within the meaning of the Criminal Code, section 1, and therefore is not a “domestic violence offence” for the purposes of the PSA, s 9(10A).
  1. [40]
    If the respondent had been charged with an offence against an Act other than the DFPVA where the act done also constituted domestic violence or contravention of a domestic violence order, it would have been a “domestic violence offence” for the purposes of s 9(10A). But for the offending on 26 April 2017, the respondent was charged only with contravention of a domestic violence order under s 177(2) DFVPA and no other offence.
  1. [41]
    Therefore, s 9(10A) PSA does not apply.

Respondent’s submissions

  1. [42]
    The respondent submits that the appellant has failed to demonstrate that the Magistrate made some legal, factual or discretionary error.
  1. [43]
    He says that, in all the circumstances, the sentence imposed was within the appropriate sentencing range for the offending behaviour, particularly having regard to the three days served in pre-sentence custody, the two separate fines imposed and the full activation of the two month suspended sentence. He submitted that the Magistrate properly considered and balanced the principles of sentencing required in accordance with s 9 PSA as well as the principle of totality. Totality was relevant because the contravention of the domestic violence order offending pre-dated the two month suspended sentence imposed on 17 July 2017 for the breach of bail, and the Magistrate activated that suspended sentence in full.
  1. [44]
    The respondent also submits that at no point did the Magistrate conclude that a term of imprisonment was not “within range” for the contravention of the domestic violence order. Instead, after having regard to the required sentencing principles in s 9 PSA, the Magistrate determined that a term of imprisonment was not appropriate.
  1. [45]
    The respondent submitted, and the appellant accepted, that the principles in s 9(2)(a) PSA (that a sentence of imprisonment should only be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable) applied because the offending did not involve the use of personal violence and did not result in physical harm. The Magistrate sentenced on that basis.
  1. [46]
    By virtue of s 9(2A), those principles do not apply to the sentencing of an offender for any offence:

“(a)  that involved the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person; or

  1. (b)
    that resulted in physical harm to another person.” [my underlining]
  1. [47]
    Here, the offending involved the respondent the respondent yelling: “Show me your fucking phone.” There was no use of physical or personal violence, or threat to use violence. The aggrieved “sought refuge in the bedroom during the [respondent’s] abuse”[31]. “Refuge” means a place of shelter, protection or safety[32]. I infer that the aggrieved felt intimidated or harassed. I agree with the Magistrate’s characterisation of the offending behaviour as inappropriate, intimidating and controlling.
  1. [48]
    The offending fell within the definition of “domestic violence” in s 8 of the DFVPA, because it includes behaviour by a person in a relevant relationship which is “emotionally or psychologically abusive” (s 8(1)(b)), which is defined as “behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person” (s 11). The respondent’s behaviour is capable of being characterised as emotional abuse. However the definition of “domestic violence” in s 8 of the DFVPA is broader than “violence” for the purposes of the PSA, s 9(2A)(a).
  1. [49]
    The offending did not result in physical harm, so s 9(2A)(b) PSA does not apply.
  1. [50]
    Section 9(2A)(a) PSA uses the term “violence”, not “domestic violence”. “Violence” is undefined in the PSA or the Criminal Code although a number of Code offences distinguish between actual and threatened violence. The parties’ submission requires the court to construe the meaning of “violence” in s 9(2A)(a) as physical or personal violence, and not extending to emotional abuse.
  1. [51]
    I am unaware of any decisions on this point since s 9(2A) was reintroduced in 2016.[33]
  1. [52]
    Earlier decisions considering the predecessor to s 9(2A) and the common law meaning of “violence” concluded that, for the purposes of that section:
  1. a threat of violence (without physical force having been applied) to intimidate or induce compliance was capable of constituting violence;[34]
  1. property offences resulting in psychological or emotional distress did not constitute violence against a person, and “violence” did not include emotional disturbance;[35]
  1. because the provision potentially affects the level of punishment imposed, there is particular reason not to adopt an unnecessarily broad construction.[36]
  1. [53]
    Subsection 9(3) supports the construction that “violence” in subsection 9(2A)(a) does not extend to emotional abuse because it provides that in sentencing an offender to whom subsection (2A) applies, the court must have regard primarily to a number of factors, including the risk of physical harm to any members of the community if a custodial sentence were not imposed, any injury resulting from the offence and the nature of extent of the violence used or intended to be used.
  1. [54]
    In light of the above matters, I proceed on the basis that s 9(2A) does not apply here because the offending involved emotional abuse and not physical harm or personal violence.

Discussion

  1. [55]
    Appellate courts should not be astute to find error in the formulation of ex tempore sentencing remarks. The experienced Magistrate’s sentencing remarks were detailed and over three pages long.
  1. [56]
    When one considers the transcript of the submissions and the sentencing remarks, the appellant’s submission that the Magistrate concluded that a term of imprisonment was not within range for the domestic violence offence is not made out.
  1. [57]
    The Magistrate did not state that a term of imprisonment was not “within range”. Rather, she determined that in the particular circumstances of the case a sentence of imprisonment was not appropriate.
  1. [58]
    The appellant’s submission, in effect, was that a fine for the contravention offence was necessarily outside the range of a proper exercise of the sentencing discretion and that a sentence of imprisonment was required.
  1. [59]
    For the purposes of an appeal on the ground of manifest inadequacy, it is insufficient to show that there are examples of cases where courts have imposed sentences which did involve imprisonment, actual or suspended. A sentence involving imprisonment may well have been within range; it does not follow that a sentence not involving a period of imprisonment was not within range. It is really necessary to show that in the particular circumstances of this case a proper exercise of the sentencing discretion involved (required) a sentence of imprisonment. I do not consider that the decisions relied on go so far.
  1. [60]
    In considering submissions about “the existing sentencing range”, the Court of Appeal in R v Hutchinson[37] recently said:

“As explained by the plurality in Barbaro at [24] to [28], the reference to an “available range” of sentences for an offender is a “negative” concept that is applied on an appeal to ascertain whether the discretionary judgment exercised by the sentencing judge resulted in a sentence that was “so wrong that there must have been some misapplication of principle in fixing it”. The plurality pointed out at [27] that does not translate into “any positive statement of the upper and lower limits within which a sentence could properly have been imposed”.”

  1. [61]
    I respectfully agree with the remarks of Durward SC DCJ in IFM v Queensland Police Service[38]:

“Every case depends very much upon its own circumstances and comparative sentences are only useful as a guide to a sentencing judicial officer if they reflect similar circumstances, similar conduct, similar antecedents and are truly comparable. Comparative sentences may have the function of indicating a range of sentencing or provide statements of principle stated by a Court of Appeal or another higher court. However, they do not mandate a particular sentence to be imposed by a Magistrate, who has a discretion which if exercised judicially provides him or her, as the case may be, to take account of the criteria to which I have referred. Provided there is an explanation for the sentence imposed which is capable of understanding by an appellate court, judicial discretion allows that judicial officer to impose a sentence which he or she thinks fits the circumstances and reflects all of the matters that are required to be taken into account on a sentencing proceeding.”

  1. [62]
    The appellant relied upon PFM v Queensland Police Service[39]but submitted that the respondent’s offending was more serious than the offending in PFM.[40]
  1. [63]
    I pause to note that the appellant’s written submissions on appeal (which were not prepared by the solicitor who appeared on the appeal) contained a number of overstatements and errors with respect to the agreed facts upon which the respondent was sentenced. When this was pointed out[41], the appellant’s solicitor who appeared on the appeal, appropriately, withdrew those submissions.
  1. [64]
    The respondent disputes the appellant’s characterisation of the offending as more serious than in PFM, but concedes that the respondent’s behaviour was intimidating, inappropriate and controlling, albeit at a low level. He emphasises that it occurred in the heat of the moment during an argument, involved one short statement and was objectively at the lowest end of the range of seriousness for the offence. He submits that the offending in PFM was more serious because it was committed while on parole, in breach of a “no contact” condition in the order, and was premeditated.
  1. [65]
    In PFM the defendant pleaded guilty to one count of contravention of a domestic violence order. The domestic violence order contained “no contact” and “ouster” conditions. Contrary to those conditions, the defendant arrived at the aggrieved’s house, about one week before he was due to spend time with his son over the holidays. He stood in her driveway. The dogs barked, the aggrieved saw him, retreated into the house and called the police. The defendant called her name and her son’s name three times, also saying words to the effect “If it was a problem you could’ve at least told me. I have come 2500 kilometres to get [him].” His offending conduct did not involve any physical violence, overt aggression or intimidation. He had a relevant criminal history including 13 breaches of domestic violence orders over 12 years from 1993 to 2015, on each of which he had been sentenced to periods of imprisonment. His offending occurred about 21 – 23 months after the last breach and was like offending involving prohibited contact with the same aggrieved. The maximum penalty, for the purposes of that decision, was three years imprisonment (rather than five years). He also had an extensive criminal history of breaching other court orders. At the time of the offending, he was on court ordered parole ordered only five weeks earlier. On appeal, the court reduced the sentence from four months imprisonment to one month imprisonment, to be served cumulatively, wholly suspended for an operational period of six months. His Honour said that the Magistrate had allowed the defendant’s previous offending to overwhelm other material considerations and the nature and seriousness of the offending.
  1. [66]
    PFM had a number of aggravating features that are not present here: the offending was premeditated, it was in breach of “no contact” and “ouster” conditions in the order, and it occurred while the offender was on parole.
  1. [67]
    The respondent referred to cases where sentences other than imprisonment had been imposed for contravention of a domestic violence order, even where the offender had previous convictions for like offending.
  1. [68]
    In RAS v Commissioner of Police (No. 1) [2011] QDC 366 and RAS v Commissioner of Police (No. 2) [2012] QDC 239 this court on appeal upheld a fine of $1,200 imposed for contravention of a domestic violence order involving actual violence where the defendant had two recent previous convictions for like offending (described as minor) and a breach of bail.
  1. [69]
    In MH v Queensland Police Service [2015] QDC 124 this court allowed an appeal against a sentence of three months’ imprisonment, wholly suspended for 12 months, for contravention of a domestic violence order and substituted a sentence of 18 months’ probation. Within 17 days of a domestic violence order being made, the offender was outside the unit of the aggrieved late at night, jumped the front fence, banged on the front door, attempted to gain entry, was let in, demanded to see the aggrieved’s mobile phone, was locked out and again demanded entry. He had previous convictions for drug offences and had been sentenced to five years imprisonment for dangerous operation of a vehicle causing death, involving him driving at the victim who had a domestic violence order against him. Smith DCJA found that the “Magistrate erred in stating that a prison term was the only option in this case. Bearing in mind the dangerous operation matter occurred some eight years prior and bearing in mind that there was no actual violence I consider a broader range of penalties was available.”[42]
  1. [70]
    When referring to these past authorities, it is important to bear in mind that the maximum penalty for contravening a domestic violence (aggravated offence) has increased from three years to five years imprisonment.
  1. [71]
    However in my view the cases do not demonstrate that a proper exercise of the sentencing discretion in this particular case required a sentence of imprisonment for the contravention offence.
  1. [72]
    While the respondent’s criminal history, especially his previous breaches of domestic violence orders, is clearly relevant and elevated the need for personal and general deterrence, it ought not overwhelm proper consideration of other relevant facts and principles. In particular, the low level of gravity of the offence before the court.
  1. [73]
    It seems to me, taking into account the relationship between the respondent and the aggrieved, the fact that the contravention of the domestic violence order did not involve any actual violence and was limited to a single instance of verbal abuse, that the respondent was not charged with any other offence arising from the contravention, the respondent’s early plea and cooperation with police, that the respondent had spent three days in pre-sentence custody, the activation in full of a suspended sentence of two months’ imprisonment, the purposes of sentencing contained in s 9(1) of the PSA and the factors mentioned in s 9(2), (10) and (11) of the PSA, it was open to the Magistrate to impose the fine of $1,000 for the contravention offence.
  1. [74]
    While that sentence may be considered to be generous and another judicial officer may have structured the sentences differently, it was not so wrong that there must have been some misapplication of principle in fixing it. I am not satisfied that a proper exercise of the sentencing discretion required a sentence of imprisonment for that offence, particularly when considered in the context of the sentences imposed for the other offences.

Conclusion

  1. [75]
    I am not satisfied there was an error in the exercise of the sentencing discretion.
  1. [76]
    I would therefore order that the appeal be dismissed.

Footnotes

[1] Fox v Percy (2003) 214 CLR 118 at [22] – [25]; Rowe v Kemper [2009] 1 Qd R 247 at [3] – [5]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7]; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at [43], [57]; McDonald v Queensland Police Service [2017] 45 QLR; QCA 255 at [47]. 

[2] Allesch v Maunz (2000) 203 CLR 172 at [23]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [16]; Walker & Anor v Davlyn Homes Pty Ltd [2003] QCA 565 at [9]; Shambayati v Commissioner of Police [2013] QCA 57 at [23]; White v Commissioner of Police [2014] QCA 121 at [8]; McDonald v Queensland Police Service [2017] 45 QLR; QCA 255 at [47].

[3] R v Lawley [2007] QCA 243 at [18].

[4] House v The King (1936) 55 CLR 499, [504]-[505].

[5] Rv Lawley [2007] QCA 243 at [18]

[6] Kentwell v R (2014) 252 CLR 60, [35].

[7]  Written Sentencing Submissions of the Prosecution pa 3.1

[8]  [2016] QDC 183

[9]  Transcript of submissions 1-6 lines [21]-[22]; 26

[10]  Transcript of decision p 2 lines 9-10

[11]  Transcript of decision p 2 line 21

[12]  Transcript of decision pp 2-3

[13]  s 9(2)(c) PSA

[14]  s 9(11) PSA

[15]  s 9(10) PSA

[16]  s 9(2)(a) PSA

[17]  s 9(2)(m) PSA

[18]  s 9(2)(i) PSA

[19]  s 48(1) PSA

[20]  s 9(2)(c) PSA

[21]  s 9(2)(j) PSA

[22]  s 9(2)(m) PSA

[23]  s 9(2)(b) PSA

[24]  Transcript of decision  p 2 lines 42-45

[25]  Transcript of decision p 4 lines 20-25; 34-35

[26]  Outline of Submissions on behalf of Appellant pa 3.1.1

[27]  Outline of Submissions on behalf of Appellant pa 5.9

[28]  Outline of Submissions on behalf of Appellant pa 5.17

[29]  Outline of Submissions on behalf of Appellant pa 5.8

[30]  Explanatory Notes p 3, Criminal Law (Domestic Violence) Amendment Bill (No. 2) 2015

[31]  Schedule of Facts before the Magistrate

[32]  Macquarie Dictionary definition

[33]  Although in Wagstaff v Commissioner of Police [2016] QDC 344 at [35] Butler DCJ proceeded on the basis that if physical harm or personal violence did not occur, s 9(2A) does not apply.

[34] R v Breeze (1999) 106 A Crim R 441; [1999] QCA 303

[35] R v Barling [1999] QCA 016

[36] R v Barling ibid p 8

[37]  [2018] 11 QLR; QCA 29

[38]  [2016] QDC 140 at [23]

[39]  [2017] QDC 210

[40]  Outline of Submissions on behalf of Appellant pa 5.13

[41]  Outline of Submissions on behalf of Appellant pa 5.13; TS of appeal 1-14 – 1-17

[42]  at [27]

Close

Editorial Notes

  • Published Case Name:

    Queensland Police Service v JSB

  • Shortened Case Name:

    Queensland Police Service v JSB

  • MNC:

    [2018] QDC 120

  • Court:

    QDC

  • Judge(s):

    Fantin DCJ

  • Date:

    28 Jun 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Allesch v Maunz (2000) 203 CLR 172
2 citations
Jump To
Cite 1 - (2000) 203 CLR 172
Cite 2 - (2000) 203 CLR 172
Caboolture Park Shopping Centre Pty Ltd v White Industries [2017] 45 QLR
3 citations
Jump To
Cite 1 - [2017] 45 QLR
Cite 2 - [2017] 45 QLR
Cite 3 - [2017] 45 QLR
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
2 citations
Jump To
Cite 1 - (2000) 203 CLR 194
Cite 2 - (2000) 203 CLR 194
Commissioner of Police v Al Shakarji [2013] QCA 319
2 citations
Jump To
Cite 1 - [2013] QCA 319
Cite 2 - [2013] QCA 319
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Gibuma v Queensland Police Service [2016] QDC 183
2 citations
Jump To
Cite 1 - [2016] QDC 183
Cite 2 - [2016] QDC 183
House v The King (1936) 55 CLR 499
3 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Cite 3 - (1936) 55 CLR 499
IFM v Queensland Police Service [2016] QDC 140
2 citations
Jump To
Cite 1 - [2016] QDC 140
Cite 2 - [2016] QDC 140
Kentwell v R (2014) 252 CLR 60
1 citation
Jump To
Cite 1 - (2014) 252 CLR 60
Kentwell v The Queen (2014) 252 CLR 601
1 citation
Jump To
Cite 1 - (2014) 252 CLR 601
McDonald v Queensland Police Service[2018] 2 Qd R 612; [2017] QCA 255
3 citations
Jump To
Cite 1 - [2017] QCA 255
Cite 2 - [2017] QCA 255
Cite 3 - [2017] QCA 255
MH v Queensland Police Service [2015] QDC 124
2 citations
Jump To
Cite 1 - [2015] QDC 124
Cite 2 - [2015] QDC 124
PFM v Queensland Police Service [2017] QDC 210
2 citations
Jump To
Cite 1 - [2017] QDC 210
Cite 2 - [2017] QDC 210
R v Barling [1999] QCA 16
3 citations
Jump To
Cite 1 - [1999] QCA 16
Cite 2 - [1999] QCA 16
Cite 3 - [1999] QCA 16
R v Breeze (1999) 106 A Crim R 441
2 citations
Jump To
Cite 1 - (1999) 106 A Crim R 441
Cite 2 - (1999) 106 A Crim R 441
R v Hutchinson[2018] 3 Qd R 505; [2018] QCA 29
2 citations
Jump To
Cite 1 - [2018] QCA 29
Cite 2 - [2018] QCA 29
R v Hutchinson [2018] 11 QLR
2 citations
Jump To
Cite 1 - [2018] 11 QLR
Cite 2 - [2018] 11 QLR
R v Lawley [2007] QCA 243
3 citations
Jump To
Cite 1 - [2007] QCA 243
Cite 2 - [2007] QCA 243
Cite 3 - [2007] QCA 243
RAS v Commissioner of Police (No 1) [2011] QDC 366
2 citations
Jump To
Cite 1 - [2011] QDC 366
Cite 2 - [2011] QDC 366
RAS v Commissioner of Police (No.2) [2012] QDC 239
2 citations
Jump To
Cite 1 - [2012] QDC 239
Cite 2 - [2012] QDC 239
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679
2 citations
Jump To
Cite 1 - (2016) 90 ALJR 679
Cite 2 - (2016) 90 ALJR 679
Rowe v Kemper[2009] 1 Qd R 247; [2008] QCA 175
2 citations
Jump To
Cite 1 - [2009] 1 Qd R 247
Cite 2 - [2009] 1 Qd R 247
Shambayati v Commissioner of Police [2013] QCA 57
2 citations
Jump To
Cite 1 - [2013] QCA 57
Cite 2 - [2013] QCA 57
The Queen v Breeze [1999] QCA 303
2 citations
Jump To
Cite 1 - [1999] QCA 303
Cite 2 - [1999] QCA 303
Wagstaff v Commissioner of Police [2016] QDC 344
2 citations
Jump To
Cite 1 - [2016] QDC 344
Cite 2 - [2016] QDC 344
Walker & Anor v Davlyn Homes P/L [2003] QCA 565
2 citations
Jump To
Cite 1 - [2003] QCA 565
Cite 2 - [2003] QCA 565
White v Commissioner of Police [2014] QCA 121
2 citations
Jump To
Cite 1 - [2014] QCA 121
Cite 2 - [2014] QCA 121

Cases Citing

Case NameFull CitationFrequency
MB v Queensland Police Service [2020] QDC 3252 citations
NVZ v Queensland Police Service [2018] QDC 2164 citations
Queensland Police Service v KBH [2023] QDC 262 citations
1

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