ETB v Commissioner of Police[2018] QDC 26

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant filed an appeal in respect of the following sentences imposed by the learned magistrate at Mt Isa on 23 October 2017 as identified in the Notice of Appeal filed 20 November 2017:

1. (1)
   Contravention of DVO – Nine months (concurrent)

2. (2)
   Contravention of DVO – Nine months (concurrent)

3. (3)
   Common Assault – Three months (concurrent)

4. (4)
   Seven days suspended sentence activated (cumulative)

5. (5)
   Parole release date fixed at 3 November 2017.

2. [2]
   However, an examination of the record indicates that the original Verdict and Judgment Record issued by the Mt Isa Magistrates Court was incorrect, and an amended Verdict and Judgment Record dated 19 February 2018 now accurately records that the following sentences were imposed:

3. (1)
   Contravention of domestic violence order (on 28 June 2017) – three months imprisonment.

3. (2)
   Contravention of domestic violence order (on 14 September 2017) – nine months imprisonment.

3. (3)
   Common assault (on 14 September 2017) – nine months imprisonment.

3. [3]
   The amended Verdict and Judgment Record goes on to indicate that it was ordered that the appellant serve the whole of the suspended sentence of seven days, cumulatively [the original sentence was imposed in the Mt Isa Magistrates Court on 8 July 2016 in respect of a failure to appear in accordance with undertaking].

4. [4]
   A period of 39 days pre-sentence custody from 15 September to 23 October 2017 was declared time served under the sentence, and the parole release date was fixed at 3 November 2017.

Background

5. [5]
   Upon clarification of the sentences actually imposed in the Mt Isa Magistrates Court on 23 October 2017, Mr Castor (who appears for the appellant) indicated on the record that the appellant no longer pursued an appeal in respect of the sentence of three months’ imprisonment imposed for the contravention of a domestic violence order which occurred on 28 June 2017. Accordingly, both the appellant and respondent directed their submissions to the sentences imposed in respect of the contravention of a domestic violence order, arising from 14 September 2017, for which nine months’ imprisonment was imposed, and the common assault, also arising on 14 September 2017, for which nine months’ imprisonment was imposed.

6. [6]
   It should also be noted that the appellant takes no issue with that part of the magistrate’s order that required the whole of the suspended sentence of seven days imposed in the Mt Isa Magistrates Court on 8 July 2016 for a failure to appear in accordance with undertaking, the operational period of which was extended on two separate occasions, to be served cumulatively on the impugned sentences.

Grounds of appeal

7. [7]
   The grounds of appeal as set out in the Notice of Appeal are as follows:-

1. That the sentence imposed was manifestly excessive;

2. That the learned sentencing magistrate erred by failing to have proper regard to principles of totality;

3. The learned sentencing magistrate erred by incorrectly applying relevant case law.

8. [8]
   The appellant was granted leave at hearing to add a further ground of appeal as follows:-

4. That the learned magistrate erred by contravening s 16 of the Criminal Code in respect of imposing imprisonment on each of the offences of contravention of a domestic violence order and common assault occurring on 14 September 2017.

The law

9. [9]
   In McDonald v Queensland Police Service [2017] QCA 255, Bowskill J (with whom Fraser and Philippides JJA agreed) articulated the basis of an appeal to the District Court from the Magistrates Court in these terms:

“It is well established that, on an appeal under s 222 [Justices Act 1886] by way of re-hearing, the District Court is required to conduct a real review of the trial, and the magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.  Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.” [Citations omitted].^[1]

In Forrest v Commissioner of Police [2017] QCA 132, Sofronoff P (with whom Gotterson and Morrison JJA agreed) articulated the test in these terms:-

“…an appellate court hearing an appeal by way of re-hearing must conduct a real review of the evidence and make up its own mind about the case.”^[2]

Facts

10. [10]
    The facts are set out at paragraph 8 of the appellant’s Outline of Submissions as follows:-

“Contravention of Domestic Violence Order 28 June 2017

At about 6.10 pm on 28 June 2017 police attended address deleted, Mt Isa in relation to a domestic disturbance.  Upon arrival police spoke with the aggrieved who stated the defendant had attended the address intoxicated.  The aggrieved stated the defendant called her a “motherfucker” and a “scabby cunt”.  The aggrieved stated the defendant said ‘I’ll get a knife and slice my throat in front of you all’.  The aggrieved stated the defendant left the address.  Police spoke with the witness who stated the defendant attended the address and was telling the aggrieved ‘you’ve got scabs’ and was swearing at her.  The witness further stated the defendant said ‘do you want to see me get a knife and do it in front of you’.  Police spoke with the defendant who refused to speak with police and give a version of events.

Contravention of Domestic Violence Order 14 September 2017

On the fourteenth day of September 2017 at 11.00 pm police from Mt Isa Police Station were detailed to attend address deleted in relation to a disturbance.  Police spoke with the aggrieved and obtained a notebook statement reflecting the incident as per the facts of the charge.  The defendant has returned home intoxicated at approximately 9.30 pm and begun arguing with the aggrieved.  The defendant has verbally abused the aggrieved accusing her of seeing other men when he is out drinking.  The defendant proceeded to call the aggrieved a ‘black cunt’, ‘motherfucker’ and ‘slut’.  The defendant continued abusing the aggrieved and told her ‘this is my country, my land, fuck off to where you came from’.  The aggrieved feeling threatened by the defendant has slapped the defendant across the left ear with an open hand and told him to leave. 

Common Assault 14 September 2017

The aggrieved stated to police that she knew what was coming so she put her hands around her head to protect her face.  The defendant has punched the aggrieved with a closed fist connecting with her left wrist.  This caused immediate pain and discomfort.  The defendant again punched the aggrieved in the right ear two times with a closed fist.  Whilst punching the aggrieved the defendant kept swearing at her calling her a ‘black cunt’ and ‘scabby munga’.”^[3]

11. [11]
    The appellant’s criminal history was tendered, and the prosecutor identified the previous offences of a like nature, summarized in the appellant’s outline of submissions as follows:-

• “The 2011 conviction involved a different aggrieved (in contrast to the following three offences);
• The 2012 conviction related to the appellant being intoxicated and punching the front windscreen of a vehicle;
• The 2015 conviction involved threats with a knife;
• The 2017 conviction involved threats with a knife, then locating a knife and threatening to kill himself.”^[4]

12. [12]
    The prosecutor described the contravention of domestic violence offence occurring on 28 June 2017 as “at the lower end of the scale… I note that it does relate to a lot of verbal abuse…rather than physical contact.”^[5]

13. [13]
    The prosecution indicated that reliance was placed on the case of R v James [2012] QCA 256, and submitted that a head sentence for all offences should be in the range of nine to 12 months.^[6]

14. [14]
    The appellant’s outline of submissions summarised the submissions for the defendant as follows:-

“12. The solicitor for the defence submitted that in relation to the offence of 28 June 2017:

• The appellant was intoxicated at the time;
• The contravention of domestic violence order did not involve violence or any threats directed towards the aggrieved;
• The knife was utilised in relation to self-harm;
• The appellant was very distressed at the time.

13. In relation to the offences from 14 September 2017 the solicitor [for the defendant] submitted:

• The appellant was on Murri Court bail at the time of the offence;
• The appellant had no recollection of the offence due to his level of intoxication;
• The aggrieved did not receive any injuries;
• The common assault charge would have been the head sentence.

14. It was further submitted by the defence that:-

• The appellant was in a relationship with the aggrieved and had been for 14 years, functioning as a family unit raising their four children as well as an adopted six month old child;
• Pleas of guilty were entered at the earliest opportunity on both occasions;
• The appellant was struggling with alcohol misuse at the time of the offending;
• The appellant expressed remorse and shame in relation to both offences;
• The appellant was from an aboriginal community and had strong connections to his culture;
• The appellant was spoken of highly by the Community Justice Group, having been deemed to possess huge potential as a future leader in his community if able to overcome his substance misuse.

15. [15]
    The matter was adjourned at the behest of the learned sentencing magistrate who requested that comparative cases be tendered in relation to the common assault. The proceedings recommenced on 23 October 2017. On this date, the solicitor for the defence tendered the case of R v MAB [2004] QCA 281.

16. [16]
    The learned magistrate on the resumed hearing on 23 October 2017 sought submissions from prosecution and defence in respect of the decision of SAE v Commissioner of Police [2017] QDC 254, which counsel for the appellant sought to distinguish in her submissions to the learned magistrate.

Ground 4

17. [17]
    It was submitted that the learned magistrate erred in contravening s 16 of the Criminal Code in respect of imposing imprisonment on each of the offences of contravention of domestic violence order and common assault occurring on 14 September 2017.

18. [18]
    Although Mr Castor sought and was granted leave to add this further ground of appeal, upon further oral submissions from Mr Castor and from Mr Slack (who appeared for the respondent) it was conceded that the events the subject of contravention of domestic violence order and the common assault arising on 14 September 2017 could appropriately be parsed or demarcated, such that the contravention of domestic violence order was constituted by the verbal abuse of the aggrieved, culminating in a slap of the appellant by the aggrieved across the defendant’s left ear with an open hand; then followed by the appellant’s punch of the aggrieved’s left wrist and a further two punches by the appellant of the aggrieved’s right ear with a closed fist, which constitute the common assault charge.

19. [19]
    On that basis, there is no contravention of s 16 of the Criminal Code, with each of the offences representing a separate and distinct criminal offence constituted by different elements and occurring sequentially.^[7]

20. [20]
    However, in the context of parsing the facts in that way, Mr Slack, for the respondent, conceded that the penalty of nine months imposed for the contravention of a domestic violence order where the breached behaviour was entirely verbal conduct, was clearly in error and conceded that the appeal, to that extent at least, should be granted.

Ground 3

21. [21]
    In respect of the remaining grounds, namely:-

1. The sentence imposed was manifestly excessive;

2. The learned sentencing magistrate erred by failing to have proper regard to principles of totality; and

3. The learned sentencing magistrate erred by incorrectly applying relevant case law.

I consider that all three grounds can be appropriately addressed in the following discussion.  Given the concession by counsel for the respondent that a sentence of nine months for contravention of a domestic violence order on 14 September 2017 constituted by verbal conduct only was manifestly excessive, it is clear, in my view, that the sentence imposed for that offence, in the context of the appellant’s criminal history (four previous contraventions of domestic violence orders) and in the context of the three month imprisonment order imposed in relation to the contravention of a domestic violence order penalty on 28 June 2017 of three months, should also be a concurrent term of three months’ imprisonment.

22. [22]
    The remaining issue then is whether the sentence of nine months imprisonment imposed in respect of the common assault, constituted by three punches (one to the aggrieved’s wrist and two punches to her ear), occurring immediately after the aggrieved had slapped the defendant across his left ear with an open hand, was manifestly excessive, or otherwise affected by sentencing error.

23. [23]
    It was clearly open to the learned magistrate to impose a sentence on the common assault offence from 14 September 2017 which reflected the totality of the conduct (including the prior contraventions of domestic violence order on 28 June 2017 and 14 September 2017). Accordingly the learned magistrate was entitled to impose a penalty higher than the penalty which would ordinarily attach to a common assault offence, which in this matter left no injuries and did not involve “bodily harm” (i.e. the more serious offence of assault occasioning bodily harm).^[8]

24. [24]
    However, as Williams JA pointed out in R v Nagy:-

“…that approach should not be adopted where it would effectively mean that the offender was being doubly punished for the one act, or where there would collateral consequences such as being required to serve a longer period in custody before being eligible for parole….”^[9]

25. [25]
    The prosecution at sentence relied on R v James [2012] QCA 256.  The appellant in that case was sentenced to 9 months imprisonment for breaching a domestic violence protection order, with a parole release date set after serving 4 months.  The application for leave to appeal was refused.  The applicant had a criminal history which included convictions for six previous breaches of domestic violence protection orders in respect of the same aggrieved, and on the most recent two breaches had served sentences of 6 and 9 months imprisonment respectively.  The criminal history included other convictions for violence, and the offence the subject of the appeal was a breach constituted by punching the aggrieved in the face causing pain, discomfort and swelling just one day after the service of the domestic violence order on the appellant.

26. [26]
    That background should be contrasted with the situation of the appellant, who although he had four previous convictions for breaching domestic violence orders, these offences were committed by way of verbal abuse, rather than physical contact; one involved a different aggrieved; and (as indicated above) the contravention of the domestic violence order on 14 September 2017 arose from verbal abuse of the aggrieved, which was then followed by a common assault, for which a separate penalty was imposed. In this context, this R v James is of little assistance in identifying the appropriate penalty for either the contravention of domestic violence order or the common assault charge. 

27. [27]
    The decision relied upon in sentence submissions by the appellant’s counsel of R v MAB [2004] QCA 281 is of some limited assistance, involving as it did two common assault offences committed by the appellant against his then de facto wife and the wife’s daughter.  Each of those assaults was constituted by a slap on the face.  Subsequent common assaults of the former de facto wife, and the de facto wife’s daughter were each constituted by a slapping of the face; and a final common assault was constituted by hitting the applicant’s former de facto wife with his hands, pushing her over and resulting in her head hitting a steel cupboard door.  In the context of further offending which included offences of assault occasioning bodily harm, burglary with a circumstance of aggravation and stealing from the person, the applicant was sentenced to 3 months imprisonment for each common assault.  The applicant had no criminal history and was unsuccessful in his appeal in respect of the serious offence of burglary for which he received 2 years imprisonment suspended after serving 6 months, with an operational period of 3 years.  The common assault penalties were not discussed at all in the course of the judgment (although not overturned) and the decision is of very limited assistance in identifying the appropriate penalty for the common assault occurring on 14 September 2017 in this matter. 

28. [28]
    The decision of SAE v Commissioner of Police [2017] QDC 254 was an unsuccessful appeal by SAE in respect of a sentence of 9 months imprisonment in respect of the offence of a contravention of a domestic violence order, committed while subject to a suspended 6 month imprisonment sentence, where the breach was constituted by a series of physical assaults, abusive language, threats to kill and wilful damage of a mobile phone. 

29. [29]
    Again, with respect, this decision (which related to an offence committed only two days after the appellant had been sentenced to 6 months imprisonment for assault occasioning bodily harm whilst armed in a domestic violence context) is of little assistance in identifying the appropriate penalty for the common assault offence occurring on 14 September 2017.

30. [30]
    In my view, the learned magistrate, in arriving at a penalty of nine months’ imprisonment for the common assault count, failed to take into account the event which immediately preceded the common assault (namely the aggrieved’s uncharged assault of the appellant by way of a slap). The consequence was an overall penalty which was in my view manifestly excessive. The sentence clearly failed to acknowledge and recognise the mitigation which arose from the circumstances in which the common assault offence occurred and represents a sentencing error.

31. [31]
    In the circumstances, it is clear that the appellant is entitled to succeed under Ground 1 and it becomes unnecessary to consider Grounds 2 and 3.

Conclusion

32. [32]
    The sentence imposed in respect of the common assault charge, which adequately reflects its position as the last offence in a series, pitched at a level which reflects the overall seriousness of the three offences, is in my view a sentence of six months’ imprisonment.

Orders

33. [33]
    Accordingly I make the following orders:

1. Appeal granted;

2. Set aside the sentence of nine months’ imprisonment imposed in respect of the contravention of domestic violence order at Mt Isa Magistrates Court on 23 October 2017;

3. Substitute a sentence of three months’ imprisonment (concurrent) in respect of the contravention of domestic violence order;

4. Set aside the sentence of nine months’ imprisonment imposed in respect of the common assault charge at the Mt Isa Magistrates Court on 23 October 2017;

5. Substitute a sentence of six months’ imprisonment (concurrent) in respect of the common assault charge;

6. Otherwise affirm the sentence imposed by the learned magistrate on 23 October 2017.