NVZ v Queensland Police Service
[2018] QDC 216
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- Unreported Judgment
- NVZ v Queensland Police Service[2018] QDC 216
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NVZ v Queensland Police Service[2018] QDC 216
NVZ v Queensland Police Service[2018] QDC 216
DISTRICT COURT OF QUEENSLAND
CITATION: | NVZ v Queensland Police Service [2018] QDC 216 |
PARTIES: | NVZ (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | 2655 of 2018 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane (Roma Street) |
DELIVERED ON: | 12 October 2018 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 October 2018 |
JUDGE: | Kefford DCJ |
ORDER: | The appeal is dismissed. |
CATCHWORDS: | CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – where the appellant breached a domestic violence order while in custody – where the appellant had a criminal history of breaches of domestic violence orders – where the appellant suffered from depression and anxiety – where the appellant was sentenced to nine months imprisonment with parole eligibility the same day – whether the sentence was excessive |
LEGISLATION: | Justices Act 1886 (Qld), s 222, s 223 Penalties and Sentences Act 1992 (Qld), s 187 |
CASES: | ETB v Commissioner of Police [2018] QDC 26, distinguished Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, applied Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, applied Queensland Police Service v JSB [2018] QDC 120, distinguished R v Adams; ex parte A-G (Qld) [2006] QCA 312, cited R v Goodger [2009] QCA 377, applied RJD v Queensland Police Service [2018] QDC 147, considered Rongo v Commissioner for Police [2017] QDC 258, approved Smith v Queensland Police Service [2015] QDC 152, distinguished |
COUNSEL: | E Strofeild (solicitor) for the Appellant C Barron (solicitor) for the Respondent |
SOLICITORS: | Legal Aid Queensland for the Appellant Office of the Director of Public Prosecutions for the Respondent |
Introduction
- [1]On 18 July 2018, the Appellant pleaded guilty to one charge of contravening a domestic violence order (aggravated offence) in the Magistrates Court at Roma Street, Brisbane. The maximum penalty for the offence was 240 penalty units or 5 years imprisonment. The maximum that could be imposed by the Magistrate was three years. The Appellant was sentenced to nine months imprisonment with an immediate parole eligibility date and 36 days of pre-sentence custody declared as time served.
- [2]The Appellant appeals against the sentence on the basis it is manifestly excessive. The Appellant’s outline raises three bases on which he asserts the sentence was excessive. First, it is submitted that the sentencing discretion miscarried as the learned Magistrate failed to place adequate weight on the material tendered in relation to the Appellant’s psychiatric condition. Second, it is submitted that the learned Magistrate erred by failing to have proper regard to the principles of totality. Third, it is submitted that the sentencing discretion miscarried as the learned Magistrate dismissed a comparable case tendered by defence which, together with the Appellant’s personal circumstances, are said to support a shorter head sentence.
Circumstances of the offending
- [3]The facts of the offence were set out by the prosecutor at the hearing before the Magistrate as follows:
“On 15 August 2017, a temporary protection order was made in the Sandgate Magistrates Court. NVZ was named as respondent and YMK as an aggrieved. Also, two children were named. Temporary protection order includes five conditions. Around 10am on the 21st of November 2017 the matter was heard again with the defendant appearing in court via video link from the Woodford Correctional Centre. During the proceedings the respondent had been irritable and when the magistrate has expressed her interest in finalising the matter that day, defendant has directed comments to the aggrieved. He said, “Dead slut. You’re going to get fucking shot and so are your kids. You are nothing but a fucking lying dog and you deserve to get buried and you will.” The aggrieved became quite upset. Domestic violence assistance staff have conveyed the aggrieved from the court whilst the magistrate finalised the video link. Later defendant was charged with this offence.”
Antecedents of the Appellant
- [4]The Appellant was 31 years of age at the time of the offending and 32 at the time of sentence.
- [5]The Appellant has a four page criminal history consisting of property, drug and violence related offences. At the time of the sentence, the Appellant had been dealt with for breaches of domestic violence orders on seven separate occasions. They are as follows, As is evident from the criminal history, they are as follows.
- [6]On 13 February 2009, the Appellant was convicted and fined $350 for a breach of an order made under the Domestic and Family Violence Protection Act 1980 with which he had been served. The offending conduct occurred on 25 December 2008.
- [7]On 31 March 2009, the Appellant was fined $300 for breach of an order made under the Domestic and Family Violence Protection Act 1980 with respect to which he was present in court. The offending conduct occurred on 16 February 2009.
- [8]On 1 July 2009, the Appellant was fined $750 for two breaches of an order made under the Domestic and Family Violence Protection Act 1980 about which he had been told by a police officer. The offending conduct occurred on 3 May 2009 and 19 June 2009.
- [9]On 27 April 2010, the Appellant was sentenced to three months imprisonment with immediate release on parole for a breach of an order made under the Domestic and Family Violence Protection Act 1980 with which he had been served. The sentence was imposed by the Toowoomba Magistrates Court and was concurrent with a three month sentence of imprisonment imposed that same day by the Toowoomba District Court for two charges of going armed so as to cause fear, which offending conduct occurred in 2003. The offending conduct for the breach occurred on 30 September 2009.
- [10]On 1 February 2016, the Appellant was sentenced to three months imprisonment, wholly suspended for an operation period of 12 months for contravention of a domestic violence order on 3 January 2016.
- [11]On 9 January 2017, the Appellant was sentenced to six months imprisonment with immediate release on parole for contravention of a domestic violence order on 5 September 2016. At the time of that offending, the Appellant was subject to a suspended sentence.
- [12]On 13 December 2017, the Appellant was sentenced to six months imprisonment with immediate parole eligibility date for contravention of a domestic violence order on 10 February 2017.
- [13]The early breaches of domestic violence orders involved offending between December 2008 and September 2009, for which the Appellant received various fines and, in relation to the offending on 30 September 2009, a sentence of three months imprisonment, but with immediate release on parole. There was then a gap in the Appellant’s offending between mid 2010 and the end of 2015.
- [14]In the two years immediately preceding the current offending, the Appellant was sentenced for a further three contraventions of a domestic violence order. Those three all related to the same aggrieved. He has had the benefit of suspended sentences, which he breached.
- [15]The Appellant committed the subject offending while in custody for the offending for which he was sentenced on 13 December 2017. This was an aggravating feature of the offending.
- [16]At the time of the sentence hearing on 18 July 2018, the Appellant had served 36 days in pre-sentence custody, all of which was declarable.
Sentencing hearing before the Magistrate
- [17]During the sentencing hearing, the facts as outlined by the prosecutor were accepted by the Appellant’s representative.
- [18]After hearing the facts, the learned Magistrate indicated an intention to read the other material before hearing submissions. The material included the Appellant’s criminal history, a Mental Health, Fitness and Soundness Assessment Court Liaison Service Report and the Appellant’s Offender Case File.
- [19]Alison MacIntyre, an Authorised Mental Health Practitioner, prepared the Mental Health, Fitness and Soundness Assessment Court Liaison Service Report for submission to the Magistrates Court on 18 July 2018. Ms MacIntyre assessed the Appellant on 20 June 2018 for approximately 50 minutes. She considered him to be fit for trial and of sound mind.
- [20]By way of background, Ms MacIntyre’s report recorded that the Appellant reported childhood Attention Deficit Disorder and poor numeracy and literacy skills.
- [21]In relation to past psychiatric history, MsMacIntyre noted a suggested history of contact with Tweed Heads mental health services. The report also notes that Sunshine Coast mental health services assessed the Appellant on two occasions, five days apart. Both occasions were in the context of emergency examination orders undertaken by Queensland Police and ambulance services. The report notes that on those occasions, the Appellant presented with a situational crisis on the background of complex psycho-social stressors. The stressors included relationship difficulties, financial hardship and compliance difficulties with the parameters of his probation order. The Appellant’s risk domains were assessed as low and on both occasions, he was discharged and returned home with acute care team support. The Appellant was diagnosed with personality vulnerabilities, namely Anti-social personality disorder.
- [22]In terms of the Appellant’s presentation at the time of her assessment, Ms MacIntyre noted that the Appellant was satisfactorily groomed, polite and co-operative. He was alert and orientated. Ms MacIntyre opined that the Appellant’s judgment appeared in tact and his insight reasonable. She noted he did not have a working diagnosis but previous assessment indicated anti-social personality traits.
- [23]Ms MacIntyre’s report recorded that the Appellant was a patient of Offender Health whilst he remained in custody. He reportedly saw the service psychologist to help with anger management issues and found that beneficial.
- [24]With respect to the subject charges, the report records that the Appellant stated he could remember feeling angry and frustrated and acknowledged he probably said what was attributed to him. The Appellant acknowledged his poor impulse control secondary to his anger issues and that he hoped to work with his prison psychologist to help him manager his anger.
- [25]The report records that there are no contemporaneous assessments of the Appellant’s mental state that can be relied on for the relevant time. His own account of his mental state was that he was not suffering any mood or perceptual disturbance and denied any intoxication at the relevant time. He expressed remorse with respect to his offending conduct.
- [26]The Offender Case File tendered was 32 pages and related to the period 1 Feburary 2017 to 25 June 2018. An entry on 16 February 2017 reports a suicide attempt at the watchhouse and that the Appellant demonstrated poor coping mechanisms. It recommended the Appellant’s accommodation in a suicide resistant cell and that he be placed on 15-minute observations. He was subject to a continuing safety order.
- [27]The notations record, in general, that the Appellant was polite, compliant, and a quiet prisoner with no behavioural issues. There were occasions where the Appellant was refusing to eat. As well, in May, August and October 2017, the Appellant was recorded as suffering elevated depression and anxiety, reporting self-harm and suicide ideation and reporting an absence of support. Stressors were reported as being related to child safety issues and custody of his children.
- [28]The case file records the Appellant had an ongoing counselling support session on 17 November 2017, shortly before the relevant offending. He was reported to be co-operative and no concerns were noted with his speech, impulse control, psychomotor agitation, concentration, judgment, insight, or orientation. No signs of psychosis or anxiety were observed, but there were salient features of depression. He was assessed as not presently at an elevated risk of deliberate self-harm or suicide.
- [29]The entry on 20 November 2017 reported no issues.
- [30]On 23 November 2017, two days after the relevant offending, the report records an ongoing counselling support session. The notes of the assessment were similar to the observations recorded on 17 November 2017, except there were no recorded signs of depression. The Appellant’s mental status was assessed to be unremarkable. Similar assessments are recorded each month thereafter.
- [31]In submissions at the hearing before the magistrate, the solicitor for the Appellant referred the learned Magistrate to R v Goodger [2009] QCA 377. It was submitted that the Appellant’s condition is relevant to sentence and that it reduced his moral culpability. It was submitted that the consideration of general deterrence had to be moderated, but it was accepted that such considerations had to be balanced against protection.
- [32]In terms of comparable cases, the Appellant referred the learned Magistrate to ETB v Commissioner of Police [2018] QDC 26. In that case, the defendant had pleaded guilty in the Magistrates Court to two charges of contravention of domestic violence order and one charge of common assault. The first charge related to conduct on 28 October 2017 when the defendant attended the aggrieved’ s address and called her derogatory names and threatened to slice his own throat. The other two charges related to conduct on 14 September 2017 where the defendant again verbally abused the aggrieved but also punched her in the right ear twice with a closed fist. At the time, the defendant was intoxicated and had returned to the residential address at night. The defendant also had a history including contravention of domestic violence orders in 2011 and 2012 and other convictions involving threats with a knife and threatening to kill himself.
- [33]In ETB v Commissioner of Police, the learned Magistrate sentenced the defendant to three months imprisonment with respect to the first charge and imposed nine months imprisonment with respect to each of the other charges. The defendant was ordered to serve the whole of a seven day suspended sentence to run cumulatively and 39 days pre-sentence custody was declared. The then defendant was to be released on parole after having served one third of the head sentence. On appeal the District Court reduced the sentences to three months for each of the contraventions of a domestic violence order and six months for the common assault.
- [34]Having briefly outlined the offending in that case, the solicitor for the Appellant submitted that the Appellant’s remarks should be considered in the context of the stressful situation.
- [35]The following exchange then occurred between the solicitor for the Appellant and the learned Magistrate:
“BENCH: It was more than swearing though, wasn’t it? It was making threats.
MS GUNNERSEN: They certainly can – yes, be viewed as being threats, your Honour. I still respectfully make the submission that your Honour would consider a sentence that is within the range of certainly less than nine months. It would be more, in my respectful submission, in the range of three to four months taking into account there’s no violence attached to it, taking into account the totality ---
BENCH: But there is violence attached to it to both the court in terms of refusing to acknowledge that situation ---
MS GUNNERSEN: Yes.
BENCH: --- as well as the aggrieved directly.
MS GUNNERSEN: I mean in terms of actual violence there.
BENCH: Okay.
MS GUNNERSEN: There was no actual violence. I don’t move away from the fact that the remarks are certainly ---
BENCH: Well, there couldn’t be any actual violence because he’s on the video link.
MS GUNNERSEN: And, certainly, he’s in a court context, your Honour. These are factors, but balanced against that, he’s on a safety order. This is a person with long-term mental health issues. I do respectfully ask your Honour to look at that case. I will hand it up for your Honour to look at.
…
BENCH: There is a palpable difference between making threats when you’re drunk and making threats in the sober confines of a courtroom.
MS GUNNERSEN: Your Honour, respectfully, I ask you to balance that against the fact that he is on a safety order at the time. It can’t be determined when he has to appear in court. He’s got documentation that shows he has – he is – in my submission, fits in the category of having impaired functioning.
BENCH: Well, yes.“
- [36]The Appellant’s solicitor then made submissions about the time already served in custody. She requested the Magistrate take into account that he is likely to serve every day of the sentence that is imposed on him and the “totality aspect with the fact that he has been in now for 17 months”.
- [37]The solicitor for the Appellant ultimately submitted that an appropriate sentence would be between three and four months with a parole eligibility date of that day.
Approach of the Magistrate on sentence
- [38]The learned Magistrate took into account the concerning circumstances of threats made to the aggrieved in court while another Magistrate was trying to deal with him for another matter. Those circumstances were aggravated by the fact that the Appellant was in custody with a criminal history for similar behaviour when the Appellant engaged in the offending conduct. The learned Magistrate noted the criminal history included having been dealt with five times since 2008 for breaching domestic violence orders.
- [39]The sentencing remarks indicate that the Magistrate dismissed ETB v Commissioner of Police [2018] QDC 26 because of the completely different set of circumstances. As I have already noted, and was observed during sentencing submissions, the criminality in terms of the contravention of the domestic violence order in that case involved swearing at the aggrieved when the defendant was intoxicated. Here, the criminality included the Appellant threatening the aggrieved and her children while sober and in the presence of the court.
- [40]In her sentencing remarks, the learned Magistrate noted that R v Goodger [2009] QCA 377 was very instructive in this matter and that special care needs to be taken when sentencing a person who has mental health problems. She recorded having read the prison report, that 2017 had been a “bad year for you and you were up and down with your mental health”. However, the learned Magistrate noted that the Appellant’s mental health could only go so far, given his criminal history.
- [41]The learned Magistrate accepted the principles found by the Court of Appeal in R v Goodger [2009] QCA 377, but noted she did not entirely agree with the Appellant’s solicitor’s application of it to the Appellant’s case. The learned Magistrate quoted the Court of Appeal at paragraph 21 as follows:
“The Court accepts the proposition that, generally speaking, a mental disorder short of insanity may lessen the moral culpability of an offender and so reduce the claims of general deterrence or personal deterrence upon the sentencing discretion.”
- [42]The learned sentencing judge re-iterated that mental disorder “may” lessen the moral culpability of the offender, but that it had to be balanced with protection of the aggrieved and consideration of the Appellant’s criminal history. She also noted that personal deterrence plays an important role given the prison report evidenced that the Appellant knew how to behave properly, even when suffering.
- [43]Her Honour then stated:
“So that brings me back to the balancing exercise. And when I balance all of those things, it seems to me that, in fact, the term of imprisonment could well be more than nine months, as submitted by the prosecutor. But given that she has submitted nine months and if I set a parole eligibility date today, there will be a significant period of time on parole where you can prove yourself or go back to prison, I will leave the term of imprisonment.
You are convicted and sentenced to nine months imprisonment with a parole eligibility set at today to attend to the totality aspect of the matter. And I will declare the pre-sentence custody at 36 days, in accordance with the certificate. And the rest is up to you and the parole board. That ends the proceedings.”
Nature of Appeal
- [44]This is an appeal under s 222 of the Justices Act 1886 (Qld) which provides:
“If a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.”
- [45]Pursuant to s 223 of the Justices Act 1886, the appeal is by way of rehearing on the evidence given before the Magistrates Court. It involves a review of the record of proceedings below, rather than a completely fresh hearing (subject to the grant of leave, on special grounds, to adduce fresh, additional or substituted evidence).
- [46]This court is required to conduct a real review of the evidence, which task involves weighing conflicting evidence and drawing inferences and conclusions. However, in doing so, the court must bear in mind the advantage the Magistrate had in seeing and hearing any witnesses: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126-7 [25].
- [47]As to the approach to be taken, I respectfully agree with the observations of Deveraux SC DCJ in Rongo v Commissioner for Police [2017] QDC 258, where he said:
“[22] My view of it is that the purpose of that provision is to focus the appellate proceeding on whether the sentence imposed was excessive. Whether a sentence is “manifestly excessive” can be assessed against various criteria. They are collected neatly in R v Morse [1979] 23 SASR 98. King CJ, with whom the other two members of the court agreed, said:
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime; the standards of sentencing customarily observed with respect to the crime; the place which the criminal conduct occupies in the scale of seriousness of crimes of that type; and the personal circumstances of the offender.
[23] It seems to me, then, that the focus in this and many appeals brought to this court on attempting to demonstrate an error in the exercise of the sentencing discretion is not misguided but slightly misplaced. The real question is whether the sentence was excessive, so that, although the appellant may argue that the magistrate made a certain error, the success of the appeal does not depend on persuading the appeal court on that point. On the other hand, successfully demonstrating an error does not guarantee success of the appeal, because, in each case, the question is whether the sentence was excessive.”
(emphasis added)
- [48]Whether a sentence is excessive is revealed by a consideration of all of the matters that are relevant to fixing the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 539 [60].
Grounds of appeal
- [49]As I have already observed, the Appellant submits the sentence was excessive having regard to the Appellant’s psychiatric condition, the principles of totality and the comparable case tendered by defence which, together with the Appellant’s personal circumstances, supported a shorter head sentence.
Relevance of the Appellant’s psychiatric condition
- [50]The Appellant maintains his reliance on R v Goodger [2009] QCA 377 as warranting a reduction in sentence because of reduced moral culpability. However, as was correctly observed by the learned Magistrate, that case is not authority for the proposition that sentence must be reduced by reason of a psychiatric condition.
- [51]In that case, Keane JA relevantly observed:
“[19] The applicant also referred the Court to the more recent decision of R v Verdins, where the Court of Appeal of Victoria reviewed decisions since R v Tsiaras and said:
"Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:
- The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
- The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
- Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
- Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
- The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
- Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment."
…
[21] Thus far there is nothing controversial about the applicant's submissions. This Court has accepted the proposition that, generally speaking, a mental disorder short of insanity may lessen the moral culpability of an offender and so reduce the claims of general or personal deterrence upon the sentencing discretion. …
…
[24] Even if it were to be accepted that the applicant's condition was accurately described in Dr Flanagan's report so as to lessen the claims of general and personal deterrence upon the sentencing discretion, and that the applicant's lack of insight into her condition and her failure to seek treatment are truly symptoms of her condition, it cannot seriously be argued that the considerations of general and personal deterrence were of no relevance, or that any sentence other than a non-custodial sentence would be manifestly excessive.
[25] In Channon v R, Brennan J said:
"Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender's psychiatric abnormality. An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem, on one view, to lead towards a lenient sentence, and on another to a sentence which is severe. That is not an unusual phenomenon in sentencing, where the court must fashion a sentence which either reconciles or balances the various objectives of sentencing, sometimes giving emphasis to one of the objectives of sentencing, sometimes giving emphasis to another."
(footnotes omitted, emphasis added)
- [52]Here, the learned Magistrate clearly acknowledged and considered the Appellant’s mental health. She was entitled to treat it as having little influence on her discretion. There is no compelling evidence that the Appellant’s mental health difficulties played any role in his offending, nor that he was experiencing any particularly concerning symptoms at the time of sentence. To the contrary, as I have already observed, in the Mental Health, Fitness and Soundness Assessment Court Liaison Service Report prepared prior to the sentence of the Appellant, Ms MacIntyre opines that the Appellant’s judgment appeared in tact and his insight reasonable. She noted he did not have a working diagnosis but previous assessment indicated anti-social personality traits. Ms MacIntyre noted that there were no contemporaneous assessments of the Appellant’s mental state for the time of the offending but that on his own account, he was not suffering any mood or perceptual disturbance.
- [53]Further, the offender case file indicates that from around the time of the offending until the Appellant was sentenced, the Appellant was co-operative. No concerns were noted with his speech, impulse control, psychomotor agitation, concentration, judgment, insight, or orientation. No signs of psychosis or anxiety were observed and, while at times there were signs of depression, the Appellant was assessed as not presently at an elevated risk of deliberate self-harm or suicide. The Appellant was also reported as mixing well in the prison, including when sharing a cell.
- [54]As such, there was not compelling evidence that the Appellant’s condition at the date of sentencing (or its foreseeable recurrence) may mean that continued incarceration would weigh more heavily on the offender than it would on a person in normal health.
- [55]There was also no suggestion that there was a serious risk of imprisonment having a significant adverse effect on the Appellant’s mental health.
- [56]In any event, the learned Magistrate was entitled to take into account the Appellant’s criminal history and the circumstances of the offending and conclude that his mental health offered no good reason to impose a different sentence than the one she imposed.
- [57]As was observed by Holmes JA (as her Honour then was) in R v Adams; ex parte A‑G (Qld) [2006] QCA 312 at [22]:
“The balance, in sentencing, between allowing for individual frailty and recognising individual responsibility is a delicate one.”
- [58]In my view, the condition described in the Mental Health Report, or the offender case file, are not such that the consideration of personal deterrence was of no relevance. I am not satisfied that the exercise of the discretion miscarried due to a failure by the learned Magistrate to place adequate weight on the material tendered in relation to the appellant’s mental health.
The principles of totality
- [59]Section 9(2)(j), (k) and (l) of the Penalties and Sentences Act 1992 deal with the totality principle.
- [60]The Appellant submits that s 9(2)(j) and (k) of the Penalties and Sentences Act 1992 required the Court to take into account time spent in custody before being sentenced, and other sentences served by an offender. He submits that considering the 17 months spent in custody due to the Appellant’s inability to achieve parole, the sentence offends the totality principle.
- [61]The submission is a misstatement of the effect of those provisions. They require the Court to have regard to:
- “(j)time spent in custody by the offender for the offence before being sentenced; and
- (k)sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing;”
(emphasis added)
- [62]At the time of sentence, the Appellant had spent 36 days in custody with respect to the offence for which he was being sentenced. That time was taken into account by the learned Magistrate. It was declared as time already served.
- [63]As for the approximately 17 months in custody prior to the sentence, that was time spent by the Appellant for offending that violated his Court ordered parole order. As is evident from the submissions on sentence, the full time discharge date for that offending was 12 June 2018, that is prior to the date on which the offender was sentenced by the learned Magistrate.
- [64]As such, there was no relevant failure to consider the matters in s 9(2)(j) and (k) of the Penalties and Sentences Act 1992.
- [65]In any event, after hearing submissions from the Appellant’s solicitor regarding totality, the learned Magistrate acknowledged the need to moderate the head sentence and noted that a sentence “could well be more than the nine months as submitted by the prosecutor”. The learned Magistrate clearly gave consideration to the total time spent in custody by moderating the sentence and setting an immediate parole eligibility date.
The comparable case tendered by defence
- [66]The Appellant submits that a review of ETB v Commissioner of Police [2018] QDC 26 supports a sentence of three months imprisonment. He further submits that the learned Magistrate made an error in not giving consideration to this case.
- [67]I do not accept that the learned Magistrate did not give consideration to the case. During the submissions of the solicitor for the Appellant, the learned Magistrate correctly observed that the defendant in that case was swearing at the aggrieved, rather than making threats. As I have already stated, she noted that “there is a palpable difference between making threats when you’re drunk and making threats in the sober confines of a court room.” These differences between the Appellant’s circumstances and those of the defendant in ETB v Commissioner of Police were relevant to the exercise of the discretion.
- [68]I do not consider that the learned Magistrate erred in deciding not to impose a sentence of three months by reference to ETB v Commissioner of Police.
Was the sentence excessive?
- [69]The Appellant submits taking into account the Appellant’s mental health issues, the time spent in custody, comparable cases, the Appellant’s plea of guilty and other mitigating circumstances, the sentence should be set aside as excessive. He submits that the appropriate sentence is three months imprisonment with parole eligibility set as at the time of re-sentencing.
- [70]I have already detailed the matters considered by the learned Magistrate. It is clear that the Magistrate had regard to considerations that were regarded as relevant to the exercise of the discretion.
- [71]While the offending was done at a time when the Appellant could not deliver on the threats made, given he was in custody, I do not consider the sentence to be excessive.
- [72]The Appellant’s criminal history illustrates a general disregard for the law and court orders. His offending was aggravated by the fact that he offended while in the confines of a Court room, showing contempt not only for the complainant but also the Court.
- [73]The fact that the appellant was so bold as to make a threat to the aggrieved that she would “Dead Slut. You’re going to get fucking shot and so are your kids. You are nothing but a fucking lying dog, and you deserve to get buried and you will” in the presence of the Court indicates to me that the sentencing principle of protection to the Queensland community from the offender was also an important principle to which regard ought be had.
- [74]At sentence no submissions were made on the Appellant’s behalf that he had taken steps towards rehabilitation and no material was tendered in support.
- [75]The Appellant has failed to take advantage of the many sentences designed with his rehabilitation in mind.
- [76]In RJD v Queensland Police Service [2018] QDC 147, the defendant was sentenced on his own plea of guilty in the Magistrates Court for three counts of contravening a domestic violence order (aggravated offence). He was sentenced to 18 months imprisonment for each offence, to be served cumulatively on a 15 month sentence he was serving as a consequence of reoffending whilst on parole. One of the counts related to a physical altercation with the defendant pushing the aggrieved with sufficient force that she fell against a window and broke it. The second and third charges related to verbal abuse where he yelled and screamed at the aggrieved and said “You’re a fat cunt and slut” and “I could get a piece of glass from the window and kill you if I wanted to”.
- [77]The defendant in that case had reoffended whilst on parole. He had a worse criminal history and the threats he made were more serious given his proximity to the aggrieved. This is reflected in the lengthier sentence of 18 months.
- [78]During the submissions, the representative for the appellant referred me to other decisions relied on as demonstrating that the sentence was excessive. They are Queensland Police Service v JSB [2018] QDC 120 and Smith v Queensland Police Service [2015] QDC 152.
- [79]Queensland Police Service v JSB [2018] QDC 120 involved a respondent convicted on his own pleas of guilty to three charges, one of which was contravention of a domestic violence order, an aggravated offence. The appeal was brought on the basis that the fine of $1000 imposed with respect to that offence was manifestly inadequate.
- [80]Her Honour Judge Fantin did not accept that the cases demonstrated a proper exercise of sentencing discretion and required a sentence of imprisonment for the contravention offence. There, the contravention offence was described in this way:
- “[12]On 26 April 2017 at about 8 pm, 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.”
- [81]Her Honour Judge Fantin found, at [72]:
- “[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.”
- [82]Having regard to the relationship between that respondent and aggrieved, the fact that the contravention did not involve any actual violence and was limited to a single instance of verbal abuse, the early plea and co-operation with police and the activation in full of a suspended sentence of two months imprisonment, her Honour found that it was open to the magistrate to impose the fine of $1000 for the contravention offence. She did, however, consider that the sentence may be regarded as generous and another judicial officer may have structured the sentences differently.
- [83]I do not regard that decision as demonstrating that the sentence in this case is excessive. That involved a very low level of offending that is entirely different to a threat to kill the aggrieved and her children delivered in a courtroom at a time when the appellant here was sober.
- [84]The other decision to which I was referred, Smith v Queensland Police Service [2015] QDC 152, involved a case where the appellant was convicted on his plea of guilty of 11 offences, a number of which were contraventions of a domestic violence order. Charge 8 involved the defendant telephoning the aggrieved and threatening her with the words, “You’re fucking dead, slut” and then terminating the call. His Honour Judge Morzone said, at [26]:
- “[26]Singh v Queensland Police Service[1]may be of some assistance when considering those other contravention charges. It seems to me that the nature and seriousness of the conduct constituting charges 6, 8, 9 and 11 would warrant various penalties between the middle to low end of the range of 1 to 3 months imprisonment.”
- [85]I do not regard that decision as evidencing that the sentence in this case is excessive. While that conduct may well have warranted a sentence in the range of one to three months imprisonment, it did not have the aggravating feature of a threat to kill delivered to the aggrieved and her children in the presence of the court.
- [86]Also, in that case there had been no prior conviction for violence or contraventions of a domestic violence order that are present here.
- [87]In all of the circumstances, I do not consider the sentence to be excessive.
Conclusion and order
- [88]For the reasons expressed, the sentence which was imposed was not excessive.
- [89]I propose to dismiss the appeal.
Footnotes
[1][2013] QDC 037.