JMM v Commissioner of Police[2018] QDC 130

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   The appellant^[1]was a 39 year old woman living with her three children and de facto partner.

2. [2]
   On 8 November 2017 the appellant’s 12 year old son (a named person in a domestic violence protection order) came home from school. The appellant had been drinking with friends. The child called the appellant a “slut” and while she was seated on the toilet, he produced a knife and pointed it at her. The appellant’s de facto disarmed the child, kicked him in the bottom and chased him across the street, during which he was said to have almost been struck by a car. The child then ran to Tully Hospital. Two witnesses saw the de facto and the appellant yelling at the child. The appellant called the child a “little maggot” and a “maggot cunt”. There was an argument between the appellant and one of the witnesses before nursing staff took the child until police arrived.

3. [3]
   When spoken to by police, the appellant admitted that she may have yelled at the child but did not recall using those exact words. When told that witnesses heard her using those words, she was upset and remorseful. She confirmed that she was aware of the order. She said she was having difficulties with her mental health and had an appointment with a mental health service in relation to a treatment plan. She said she was going to speak to family members to put something in place to prevent the issues with the child.^[2]

4. [4]
   Fifteen months earlier, on 4 August 2016, a domestic violence order had been made under Domestic and Family Violence Protection Act 2012 (“the Act”) against the appellant and in favour of her de facto partner as the aggrieved. Three children were named persons in the order.  The order expires on 4 August 2018. 

5. [5]
   The order contained the standard conditions pursuant to s 56 of the Act, including a condition that the appellant must be of good behaviour towards the child, must not commit associated domestic violence against the child and must not expose the child to domestic violence.

6. [6]
   It did not contain a “no contact” condition prohibiting the respondent from approaching or contacting the aggrieved or the named children or an “ouster” condition prohibiting the respondent from entering or approaching or remaining at premises: ss 57, 63.

7. [7]
   For the yelling incident, on 30 November 2017 the appellant was convicted on her own plea of guilty in the Magistrates Court at Tully of contravention of a domestic violence order pursuant to s 177(2)(b) of the Domestic and Family Violence Protection Act 2012 (“the Act”). The maximum penalty was 120 penalty units or 3 years imprisonment.

8. [8]
   The appellant was sentenced to 3 months imprisonment, wholly suspended for an operational period of 12 months. A conviction was recorded.

9. [9]
   She appeals against the sentence on two grounds: that it is manifestly excessive and that the magistrate denied procedural fairness in not inviting submissions on imprisonment.

Nature of the appeal

10. [10]
    The appeal is pursuant to s 222 of the Justices Act 1886 and is by way of rehearing on the record, since neither side sought to lead further evidence: s 223. On such an appeal, 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.^[3]

11. [11]
    The onus is on the appellant to show that there was some legal, factual or discretionary error in the decision under appeal.^[4]

12. [12]
    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.^[5] 

13. [13]
    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.^[6]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^[7]. 

14. [14]
    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.^[8]

The appellant’s personal circumstances and criminal history

15. [15]
    The appellant had a 4 page criminal history largely comprising minor drug offences for which she received small fines or probation. However there were 2 relevant previous convictions:

1. On 4 August 2016 she was convicted of contravention of release conditions under s 179(2) of the Act on 26 July 2016. A conviction was recorded and she was fined $200; and

2. On 26 October 2017 (about 2 weeks before the subject offence) she was convicted of contravention of a domestic violence order under s 177(2)(b) of the Act on 15 October 2017.  A conviction was recorded and she was sentenced to 12 months probation. 

16. [16]
    The Crown submitted that the history also disclosed 2 other relevant domestic violence offences: on 11 August 2016 the appellant was convicted of one charge of possessing dangerous drugs and one charge of possessing utensils or pipes, for which she was fined $600. I infer from the low penalty imposed that those offences were of a minor nature. Both those offences are recorded in her criminal history as domestic violence offences. No information was provided about the circumstances of that offending or how those drug offences were recorded as domestic violence offences. Having regard to s 12A of the Penalties and Sentences Act 1992 (PSA), the definition of “domestic violence offence” in section 4 PSA and section 1 of the Criminal Code, and the definitions in sections 8 to 12 inclusive of the Act, it is difficult to see how those offences were recorded as domestic violence offences.  However in the absence of submissions on the point, I do not determine that issue.

17. [17]
    Even assuming they were correctly recorded, given that they are offences of a different character and of a minor nature, I do not consider those convictions relevant for the purposes of this appeal.

18. [18]
    On sentence, the prosecutor did not serve a Notice to Allege Previous^[9], so the maximum penalty was 120 penalty units or 3 years imprisonment.

19. [19]
    No other information concerning the appellant’s personal circumstances was put before the magistrate or this court on appeal.

The hearing and sentencing remarks

20. [20]
    The prosecutor outlined the circumstances of the offending and was in the process of tendering the criminal history, when the magistrate interrupted to say that she was aware the appellant was currently on probation.

21. [21]
    The probation officer advised the court that the appellant had only recently been placed on the order and was still going through the assessment phase.

22. [22]
    The magistrate asked the prosecutor about the circumstances of the contravention offence for which she was sentenced on 26 October 2017.^[10]The prosecutor advised that the appellant had had an argument with her de facto over food and money in which she threw items around the house, including a television remote control and a coffee cup, which smashed.  There were no allegations of personal violence. The appellant told police she had been getting really stressed as the family was living in a small unit which was very cramped, that they were arguing about food and money and she “just lost it for a while”.  She advised that she was going to see “mental health” the following day to get some assistance and was going to stay at a friend’s house.^[11]

23. [23]
    The prosecutor did not provide the magistrate with any further assistance and made no submissions on penalty.

24. [24]
    The appellant’s solicitor submitted that a fine would be the appropriate penalty because the child suffered from chronic behavioural problems. Before she had the opportunity to develop that submission, the magistrate interrupted her saying:

“I’m very aware of how this child has suffered, given that I’ve also done matters in relation to [the de facto]… and I have seen the child safety record, in relation to this child.  I think “suffered” would be the right way to put it.  But behavioural problems are clearly related to the parenting.”^[12]

25. [25]
    When the appellant’s solicitor attempted to point out that there was no personal violence the magistrate continued:

“She’s shaking her head, so obviously she really has little understanding of how he [sic] behaviour has affected her child.”^[13]

26. [26]
    The appellant’s solicitor submitted that the appellant had in fact shown personal insight into the offending. She swore at the child in a moment of frustration, and emphasised how stressful it was for the appellant as the parent of a child with chronic behavioural problems. She said the child was receiving counselling from a psychologist and had an impending psychiatric assessment.^[14]The magistrate again interrupted her submissions, stating:

“I already diagnosed the problem, Ms Hynes, in court last week.  [The de facto] and [the appellant] keep hurting him.  That’s his behaviour problem.  [The de facto]’s currently on charges of assault occasioning bodily harm against this child.”^[15]

27. [27]
    The appellant’s solicitor pointed out that the appellant had separated from the de facto and that she was not charged with assaulting the child.

28. [28]
    With respect to penalty, the appellant’s solicitor submitted that when breaches were limited to verbal abuse, the result was usually a fine, but that if the magistrate was against her on that, another probation order could be imposed concurrently with the existing order. She submitted that the appellant had only recently been placed on probation and asked the court to give her a chance to obtain therapy because she had not yet had time to do that under the order.^[16]The appellant had yet to start programs which would assist her with rehabilitation.

29. [29]
    At no point during submissions did the magistrate indicate that she was considering imposing a sentence of imprisonment (actual or suspended). Neither the appellant’s solicitor nor the prosecutor provided the magistrate with any authorities.

30. [30]
    The magistrate proceeded directly to sentence. She took into account the appellant’s early plea of guilty and that the offending was limited to verbal abuse.^[17]She noted that the appellant had been placed on a probation order on 26 October 2017 and that the contravention had occurred on 8 November 2017.^[18]

31. [31]
    The magistrate referred to the appellant as having “a number of other previous of domestic violence”^[19].  She noted there was no Notice to Allege Previous but took the appellant’s criminal history into account.^[20] 

32. [32]
    The magistrate then said “Having regard to all matters stated in sections 9 and 11 of the Penalties and Sentences Act and your plea of guilty, I am satisfied that it is appropriate and no more severe in all the circumstances, then, that you should be sentenced to a term of imprisonment” of 3 months, suspended for 12 months.

33. [33]
    The magistrate turned to consider whether the terms of the domestic violence order should be varied. She referred to the circumstances resulting in the domestic violence order being made on 4 August 2016: the appellant argued with the child over his refusal to clean up and struck him on his upper thigh with her crutch.^[21]Twice, the magistrate referred to the circumstances of that initial order, the child safety report and expressed concerns for the child’s safety.^[22]

34. [34]
    The magistrate then varied the protection order to include a further condition prohibiting the appellant from going to within 20 metres of premises where the named child resides.^[23]  The appellant expressly stated that she does not appeal against this variation of the order so I do not consider whether the variation was necessary or desirable.

Appellant’s submissions

35. [35]
    The appellant submitted that the magistrate:

1. erred in giving undue weight to the circumstances of the domestic violence order, the criminal proceedings against the appellant’s de facto and the child protection proceedings, which was evident from her references to them during submissions and in her decision^[24];

2. erred in stating “I already diagnosed the problem” and finding that the child’s behavioural problems were caused by bad parenting rather than a pre-existing condition, in the absence of any expert evidence about those issues;

3. used inappropriate language that was emotive rather than dispassionate; and

4. placed too much weight on the appellant’s criminal history;

and in so doing, imposed a penalty disproportionate to the gravity of the offence.

36. [36]
    The appellant also submits that the magistrate erred in failing to invite submissions on imprisonment, which was a breach of procedural fairness.^[25]Had the magistrate indicated she was considering imposing a period of imprisonment, the appellant’s solicitor would have addressed her on that and it may have caused the magistrate to reconsider that penalty.

Respondent’s submissions

37. [37]
    The respondent concedes that the magistrate’s failure to indicate that she was considering a term of imprisonment and to invite submissions on that penalty may amount to a breach of procedural fairness.^[26]  However it says that does not mean that a different sentence would have been imposed if those submissions had been made.

38. [38]
    The respondent’s ultimate submission is that while the sentence of 3 months imprisonment, suspended for 12 months, is “at the upper end of the permissible range for the offending, it is not manifestly excessive.”^[27] 

39. [39]
    The respondent concedes that the principle that a sentence of imprisonment is a sentence of last resort and a sentence that allowed the offender to stay in the community was preferable applied to the offence: ss 9(2)(a)(i) and (ii) PSA^[28], and that the magistrate did not refer to this. However it submits that the magistrate properly considered the alternatives to imprisonment, made a finding that they were unsuitable and only then concluded that a term of imprisonment was just and appropriate.

40. [40]
    It submits that the magistrate was not unduly influenced by her knowledge of the domestic violence order and criminal proceedings against the de facto, and gave no weight to those matters in sentencing the appellant. Her only reference on sentence to the child safety report was in the context of whether it was necessary and desirable to vary the domestic violence order.

41. [41]
    The respondent submitted that although the offending was limited to verbal abuse, it involved intimidation and aggression and was more serious because it was directed to a child.

42. [42]
    In addition, the offending occurred while the appellant was on probation for an earlier contravention of the domestic violence order and the appellant had previous convictions for breaches of probation orders, although they were dated (in 2004, 2010 and 2012).

Discussion

43. [43]
    The offending was limited to the appellant yelling at the child “little maggot” and “maggot cunt” after he called her a “slut” and pointed a knife at her while she was seated on the toilet. It was two instances of name calling, one of which contained an expletive.

44. [44]
    It is important to distinguish the appellant’s actions from those of her de facto, and not conflate them. It was the de facto, not the appellant, who disarmed the child, kicked him in the bottom and chased him across the street.

45. [45]
    At its highest, the appellant’s behaviour fell within the definition of “domestic violence” in s 8 of the Act because it was “emotionally or psychologically abusive”. “Emotional or psychological abuse” in s 8(1)(b) is defined as “behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person”: s 11. The examples given in s 11 include “repeated derogatory taunts”.

46. [46]
    There is no doubt that the behaviour was wrong and inappropriate. But it is offending at the least serious end of the range for domestic violence. It was an unfortunate response to serious provocation (the use of a knife by a child with behavioural problems). There was no element of physical violence, actual or threatened, by the appellant.

47. [47]
    Although the appellant had 2 previous relevant convictions, they were confined to a breach of a release condition (resulting in only a $200 fine) and a contravention offence that did not involve any physical violence, actual or threatened, towards the child or the aggrieved.

48. [48]
    The magistrate made a number of unfortunate remarks about the circumstances of the previous contravention, the criminal charges against the de facto, the child safety report and the cause of the child’s behavioural problems. Those remarks compel the conclusion that the magistrate allowed extraneous factors, and the appellant’s criminal history, to overshadow the objective gravity of the offence. In doing so, the sentencing discretion miscarried.

49. [49]
    As a general proposition it is appropriate for a court, if considering imposing a sentence more severe than the range suggested by the prosecutor, to give notice of that, so that the defendant’s representative may address matters on that basis.^[29]This applies particularly where there is some unusual feature in the sentence the court has in mind.^[30] 

50. [50]
    Here there was no indication that the magistrate was considering imposing a sentence of imprisonment. Had she done so, the appellant’s solicitor would have made full submissions with respect to imprisonment, including by referring to s 9(2)(a) of the Penalties and Sentences Act 1997.  The magistrate erred in failing to afford the appellant’s solicitor the opportunity to address her in relation to whether a sentence of imprisonment was appropriate. To impose a sentence of imprisonment in the circumstances of this particular offence and the appellant’s antecedents, where no party had addressed the court on that possibility and where the court had not indicated it was considering it, was a breach of the rule of natural justice. 

51. [51]
    In my respectful view, the magistrate erred in exercising the sentencing discretion by:

1. allowing extraneous or irrelevant matters to influence her determination, namely the circumstances of the domestic violence order and the previous contravention offence, the criminal proceedings against the appellant’s de facto and the child protection proceedings;

2. rejecting the appellant’s submission that the child was suffering chronic behavioural problems, was receiving psychological counselling and a psychiatric assessment was pending, and “diagnosing” that the child’s behavioural problems were caused by the appellant “hurting him”, when there was no evidence of the appellant being physically violent towards the child during this offence or the earlier contravention offence;

3. placing too much weight on the appellant’s criminal history and allowing it to overwhelm other material considerations and the nature and objective seriousness of the offending;

4. failing to take into account material considerations pursuant to s 9 of the Penalties and Sentences Act 1992 (Qld) namely the nature and seriousness of the offence,^[31]the principle that the sentence imposed must not be disproportionate to the gravity of the subject offence^[32]and the principle that a sentence of imprisonment is a sentence of last resort and a sentence that allowed the offender to stay in the community was preferable^[33]; and

5. breaching the rule of natural justice by failing to invite the parties to make submissions on whether a sentence of imprisonment was appropriate, in circumstances where no party had addressed the court on that possibility and where the court had not indicated it was considering it.

52. [52]
    Having identified those specific errors, the sentence must be set aside and this court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise I conclude that no different sentence should be passed.^[34] 

1. [1]
   Exercising my own independent discretion and for the reasons explained below, I consider that the sentence imposed was excessive.

53. [53]
    The respondent relied upon PFM v Queensland Police Service^[35]and TZL v Commissioner of Police^[36](and the cases referred to therein) to submit that a suspended sentence of 3 months imprisonment was both within range and appropriate because the offending here was more serious than in each of those cases.^[37]The appellant sought to distinguish those decisions. 

54. [54]
    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 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 of 3 months (save for one sentence of one month).  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 an aggravated offence was then 3 years imprisonment (rather than 5 years as it is now).  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 5 weeks earlier. On appeal, the court reduced the sentence from 4 months imprisonment to one month imprisonment, to be served cumulatively, wholly suspended for an operational period of 6 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. 

55. [55]
    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, the appellant had numerous previous convictions for breaches of domestic violence orders for which he had been sentenced to periods of imprisonment involving actual custody, and the offending occurred while he was on parole.

56. [56]
    In TZL the court on appeal reduced a sentence of imprisonment imposed from 10 months to 6 months for contravention of a domestic violence order involving the appellant having brief contact with the aggrieved at their daughter’s child care centre and by sending her 41 emails over 4 months in breach of a “no contact” condition, some of which contained insults, abuse and images of exposed female breasts. The appellant had an “appalling” history of breaching protection orders including 10 previous convictions for domestic violence against 2 complainants. The offending occurred while he was on probation. The court placed considerable weight on the appellant’s history. 

57. [57]
    TZL also had a number of aggravating features which are not present here: the offending was premeditated and involved repeated, persistent contact, it was in breach of a “no contact” condition, and the appellant had numerous previous convictions for breaches of domestic violence orders for which he had been sentenced to periods of imprisonment involving actual custody.

58. [58]
    I do not accept the respondent’s submission that the offending in this case is objectively more serious than in PFM and TZL. In my view, these cases are not truly comparable and are of little assistance in considering the subject offending.

59. [59]
    I have also considered 2 recent decisions of this court for contraventions of domestic violence orders involving verbal abuse.

60. [60]
    In Day v Commissioner of Police^[38] the appellant pleaded guilty to 9 breaches of domestic violence order conditions and 9 breaches of bail based on the same facts. In breach of an order and a “no contact” condition, the appellant contacted his ex-wife numerous times over a two month period. The protection order arose from an alleged choking or strangulation in a domestic setting, for which the appellant had not yet been sentenced. The breaches involved the appellant contacting his ex-wife and arranging to see her and staying with her. They maintained a sexual relationship. One charge involved him sending her 154 text messages over a two week period. The most serious charge involved the aggrieved making a complaint to police and the appellant then calling and abusing her on the telephone, saying “you’re a dog … you’re an absolute dog.  My mum has called the police and they’ll be coming around. You’re a paid whore.  You like sucking dick. You’re on parole and you’re going back to jail.” Another charge involved him sending a text message to the aggrieved’s daughter, a named person in the order. There were no allegations of physical violence. The appellant had an “unremarkable” criminal history (including minor drug offences, trespass, public nuisance and breach of bail) but no previous convictions for breaching domestic violence orders. The court emphasised the persistent nature of the offending over a long period of time, the complete disregard for the conditions of the domestic violence protection order and the bail undertaking conditions, and recognised the increase in maximum penalty for contravention offences from two years to three years. The appellant was sentenced to 6 months imprisonment on the most serious breach and two months imprisonment on the other breaches to be served concurrently. He was convicted and not further punished on the breaches of bail. The sentence was suspended after two months and 42 days served was declared.

61. [61]
    In ETB v Commissioner of Police^[39]the court on appeal substituted a concurrent sentence of 3 months imprisonment for a contravention of a domestic violence order involving the appellant returning home intoxicated at night and verbally abusing the aggrieved calling her a “black cunt”, a “motherfucker” and a “slut”.  The aggrieved slapped the appellant across his ear with her open hand and told him to leave.  He then assaulted her, which was the subject of a separate charge of common assault. Another sentence of 3 months imprisonment for an earlier contravention was not challenged on appeal. That offence involved the appellant turning up intoxicated outside the aggrieved’s house at night, verbally abusing her, calling her a “motherfucker” and a “scabby cunt” and threatening to get a knife and slice his throat in front of her. The appellant had a criminal history including 4 previous contraventions of domestic violence orders within the last 5 years. A suspended sentence of 7 days was fully activated, to be served cumulatively.  Pre-sentence custody of 39 days was declared and a parole release date set 10 days later. 

62. [62]
    In each of Day and ETB the circumstances of the offending on each of the charges were objectively more serious, in Day there were persistent and repeated breaches of a “no contact” order, and in ETB the appellant had a much more serious criminal history. In neither case was there the element of provocation that is present here, nor was the appellant suffering from mental health problems.

63. [63]
    There are examples where sentences other than imprisonment have been imposed for contraventions of a domestic violence order in earlier cases, even where the offender has previous convictions for like offending. 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 2 recent previous convictions for like offending (described as minor) and a breach of bail. In MH v Queensland Police Service [2015] QDC 124 this court allowed an appeal against a sentence of 3 months imprisonment, wholly suspended for 12 months, for contravention of a domestic violence order and imposed a sentence of 18 months probation.  However these authorities were decided before the maximum penalty increased.

64. [64]
    Taking into account those decisions and the relevant circumstances, in my view a sentence of 3 months imprisonment, suspended for 12 months, was outside the permissible sentencing range for the offender and the offence.

65. [65]
    Having regard to the fact that the contravention here did not involve any actual or threatened violence and was limited to a single instance of verbal abuse in response to some provocation, the appellant was not charged with any other offence arising from the contravention, the appellant’s early plea and cooperation with police, her limited criminal history, that she had only 2 weeks before received a sentence of 12 months probation and she had not yet had the opportunity to start programs to assist her rehabilitation, her personal circumstances including her mental health and the child’s behavioural problems, 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, a sentence of 3 months imprisonment was excessive.

66. [66]
    Under s 144(1) of the Penalties and Sentences Act the court may order that the term of imprisonment be suspended.  However, such an order may only be made if the court is satisfied that a term of imprisonment would be appropriate in the circumstances^[40]and suspending the term is appropriate.^[41]A suspended sentence is not a mere formality and may be regarded as significant punishment.^[42]The court should only turn to consider suspending a sentence of imprisonment after first determining that imprisonment is the appropriate penalty having decided that imprisonment is the appropriate penalty and having decided the head sentence and non-parole period to impose, a sentencing judge may then suspend that sentence if he or she considers that good reason exists to do so.^[43] 

67. [67]
    In my view, a sentence of imprisonment (wholly suspended or otherwise) was not appropriate. The principle pursuant to s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) that a sentence of imprisonment is a sentence of last resort and that a sentence that allows the offender to stay in the community is preferable, applied.  Taking into account all the relevant circumstances, the appropriate sentencing range for this offence encompassed a short period of probation or a fine. 

Conclusion

68. [68]
    I allow the appeal, set aside the sentence of 3 months imprisonment made by the magistrate and, subject to the appellant’s consent, order that the appellant be released under the supervision of an authorised Corrective Services officer for a period of 6 months (to run concurrently with any other period of probation) and must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 and report within 24 hours to an authorised Corrective Services officer at Tully or Innisfail. The probation order is further conditioned that the appellant is to undergo such substance abuse and domestic violence counselling and/or courses as directed by an authorised Corrective Services officer.  The matter will be mentioned to enable the appellant to advise the court whether she consents to the probation order.

69. [69]
    The magistrate’s orders recording a conviction and varying the protection order are not appealed against and therefore are not varied.

70. [70]
    Subject to any written submissions to the contrary received within 7 days, there will be no order as to costs. If any such submissions are received, costs will be determined on the papers.