Bye v Commissioner of Police[2018] QDC 74

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 31 July 2017 the appellant pleaded guilty to four charges, one of common assault, one of deprivation of liberty, one of assault occasioning bodily harm and one of breach of a bail condition. A fifth charge, of choking or suffocation or strangulation in a domestic relationship, had been dismissed after no evidence was offered on 27 February 2017. Convictions were recorded for all offences. In respect of each of the charges of assault occasioning bodily harm, common assault and deprivation of liberty the appellant was sentenced to three months imprisonment followed by probation for two years. In respect of the breach of bail condition, the appellant was sentenced to three months imprisonment with a parole release date fixed at the last day. All sentences were to be served concurrently. In relation to the common assault charge, the appellant was ordered to pay the complainant $500 compensation.

2. [2]
   By a notice of appeal filed on 4 August 2017 the appellant appealed against the sentence imposed on the grounds that it was manifestly excessive. On 28 September 2017 another judge released the appellant on bail pending the hearing of the appeal, after he had served 59 days in custody. On 10 October 2017 an amended notice of appeal was filed, substituting as grounds for appeal:

“1. The magistrate denied procedural fairness in imposing a term of actual imprisonment;

2. The magistrate erred in imposing a parole release date as the last day of his imprisonment;

3. The sentencing discretion miscarried as the magistrate failed to place adequate weight on the psychologist’s report; and

4. The sentencing discretion miscarried as a review of comparable cases together with the appellant’s mitigating circumstances would support a sentence with no actual custody.” 

3. [3]
   The appeal is under the Justices Act 1886, s 222, and is by way of rehearing on the record, since neither side sought to lead further evidence: s 223.  On an appeal by way of rehearing, it is necessary for me to consider the evidence and make up my own mind, particularly in relation to matters involving the drawing of inferences from primary facts.^[1]  In the proceedings before me, the onus is on the appellant to show that there was some error in the decision under appeal.^[2]  As this is an appeal against sentence, the principles in House v R (1936) 55 CLR 499 at 504 – 5 apply: it must appear that some error has been made in the exercise of the sentencing discretion.^[3] 

Circumstances of the offending

4. [4]
   At the time of the offending the appellant and the complainant were in a relationship, which was not a sexual relationship, but did involve the appellant living in the same house as the complainant and her family. At the time of the offending the appellant was aged 22 and the complainant 18; the complainant was still at school. On 6 September 2016 the complainant did not want to go to school because of a scratch on her face.  She wanted the defendant to call the school to tell them that she would not go the next day, but he refused to do so.   They argued about this, at one point the complainant swore at the appellant, and he then grabbed her around the neck but desisted when the complainant’s sister and grandmother told him to stop. 

5. [5]
   The appellant then went to her room with a rope, put the rope across her mouth and then tied both her hands and feet together with the rope, so that the complainant could not move. The appellant then took photographs of the complainant, though any photographs were not in evidence before the magistrate. The appellant watched the complainant for a short time, taunting her about being unable to swear as a result of what he had done. The complainant was crying. After the appellant left the room the complainant’s sister went in and untied her. The complainant phoned her mother, and the appellant came back into the room and asked what she was doing. They went to the kitchen where the appellant tried to take the phone from the complainant, then pushed the complainant into a wall and punched her on the left side of her forehead, causing pain and swelling. The appellant was then able to take her phone.

6. [6]
   The complainant was subsequently able to call the police who arrived and observed a lump on the complainant’s forehead. The appellant was arrested, but was granted bail by a magistrate the next day. The appellant made admissions to police who attended the house, though he declined to participate in a formal interview. He said he had tied her up with the rope because he wanted her to be quiet, and she was not listening, which he said was a reason for tying her up in that way.

Circumstances of the appellant

7. [7]
   The relationship between the appellant and the complainant was said to have ended as a result of this incident, which would be unsurprising. The appellant however told a psychologist, who interviewed him on 7 June 2017 and provided a report which was before the magistrate, that he was upset at not being allowed to continue to see the complainant due to a protection order having been made (and bail conditions imposed), and that he hoped that they would be able to get back together in the future: para 38. That suggests that he had not at that time “moved on” from this relationship, a factor of some relevance in relation to the risk of further offending by him. He also told the psychologist that he had had other female friends before the complainant.

8. [8]
   The appellant was born in Burma, but when very young was taken by his family to a refugee camp in Thailand where he grew up. He came with his family to Australia when he was 15, but left the family home at age 17 or 18 after physical abuse from family members. He had also been exposed to violence in the refugee camp, and when 11 was attacked by some men and stabbed in the face with a knife, and left unconscious. In 2010 he had attempted suicide by drinking insecticide, which just made him sick; there had been no subsequent self-harm or suicidal ideation. The psychologist noted that he spoke with an accent and that English was not his first language, but she said that he appeared to understand interview questions, and he was evidently able to communicate effectively.

9. [9]
   After he was released on bail he was living with his sister for a time, but then she moved to an address close to where the complainant lived, and while she was there he lived in his car. I was told during the hearing of the appeal that he is now living with his sister at a different address. When he saw the psychologist he was working part-time as a car detailer. He was happy with the work, and presented a favourable reference from his employer at the sentencing hearing. He had no previous convictions, and the only further offending after the domestic violence offences was the breach of bail condition, when on one occasion he failed to report as required.

10. [10]
    The psychologist noted that he had reported being very ill with diarrhoea while he was a child, probably associated with poor diet. More recently he has been in generally good health. He was tested and the tests showed at that time levels of depression, anxiety and stress related symptoms which were within normal range. Nevertheless on the basis of clinical considerations and the self-reported history the psychologist considered that he was suffering from an unspecified trauma and stressor related disorder, possibly post-traumatic stress disorder although that would require further assessment.

11. [11]
    The psychologist also assessed the appellant’s risk of reoffending as low, but noted that there were features in his background which were said to be relevant to the risk of reoffending. He had been exposed to family violence and had grown up in a context where violence was commonplace. Anger, impulsivity or behaviour instability was considered to be present at a sub-threshold level, and the psychologist noted attitudes that supported or condoned the use of violence as a means of resolving conflict. On the other hand the psychologist noted that he had periods of stable employment, there were no substance abuse problems, he was motivated to attend counselling, and he had some supportive friendships. The psychologist also expressed the view that it was likely that a term of imprisonment would negatively affect his psychological well-being. There was also evidence before the magistrate that the appellant had been placed on a waiting list for a “living without violence” group program for men, subject to an assessment interview: Exhibit 4.

Grounds - Denial of procedural fairness

12. [12]
    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.^[4]  This applies particularly where there is some unusual feature in the sentence the court has in mind.^[5]  In the present case the prosecutor submitted that a probation order would be relevant in this case and that a 12 month head sentence would be within range for this type of offending.  The prosecutor referred to R v Pierpoint [2001] QCA 493 where the Court of Appeal imposed a sentence of 12 months suspended after three months.^[6]  The solicitor for the defendant said she did not cavil with the submission in relation to the probation order, and in relation to imprisonment, that a period between six to twelve months was within range, but contended for a wholly suspended jail term of six to twelve months, with a lengthy period of concurrent probation: p 8. 

13. [13]
    The solicitor for the defendant tendered the report of the psychologist, and letters from Anglicare and the employer. She referred to a sentence of a District Court Judge in Townsville where a wholly suspended sentence for the same three charges was imposed, and the cases of NAS v Queensland Police Service [2017] QDC 173 and R v Bowley [2016] QCA 254.  The latter was referred to only in relation to general principles about specific and general deterrence.  The magistrate sought additional personal information about the defendant, and then adjourned to read the material.  After she returned she immediately began to pass sentence.  The defendant’s solicitor asked if she could clarify the proposed course and whether the magistrate wanted her to address her further in relation to a wholly suspended sentence: p 10.  That offer was rejected, and the magistrate proceeded to pass sentence.^[7]

14. [14]
    The fact that the defence solicitor had made a submission for a wholly suspended term of imprisonment, and specifically asked whether she needed to address that aspect further after the resumption, seems to me clearly to indicate that she considered that the appellant was at least at risk of actual imprisonment. In substance it seems to me that after the resumption she was asking whether it was necessary for her to make further submissions in order to avoid that outcome, and the magistrate by her answer rejected that opportunity. That in my opinion does amount to a breach of the rules of natural justice. The position in effect was that the defence solicitor was saying that she had further submissions in support of the proposition that any period of imprisonment be wholly suspended, which she wanted to make unless the court indicated that that was unnecessary. In those circumstances, to decline to hear her further, when the magistrate was contemplating a period of actual imprisonment, did in my opinion amount to a denial of the right to be heard.

15. [15]
    The point is not so much whether the magistrate was contemplating imposing a sentence beyond the scope of the discussion, as that the magistrate declined to hear further submissions directed specifically against the course that she was in fact proposing to take. This was not a situation where there had already been thorough submissions advanced, so that a reasonable opportunity had been given to argue the point already. Although the position contended for had been foreshadowed before the adjournment, and material had been put before the magistrate, it is clear from the transcript that there was then no full development of the argument for the appellant. It is understandable that the magistrate would want to read the material at that point, but it was reasonable for the defence solicitor to seek the opportunity to make full submissions after the adjournment, and that opportunity was denied by the magistrate. In those circumstances the sentencing procedure miscarried.

-Error in fixing parole release date

16. [16]
    This ground can be dealt with quickly. The magistrate imposed a prison and probation order in respect of three of the counts, common assault, assault occasioning bodily harm and deprivation of liberty, while for the breach of bail condition the magistrate imposed three months imprisonment with parole release on the last day. Where a combined prison and probation order is made,^[8] the full term of imprisonment has to be served, and in those circumstances there is no question of release on parole.  If the only sentence of imprisonment imposed was one of prison plus probation, no parole release date can be fixed: s 160A(6)(b).  On the other hand, for the breach of bail condition, where a term of imprisonment of not more than three years was imposed, the fixing of a parole release date was mandatory: s 160B(3).

17. [17]
    In these circumstances the decision of the magistrate to fix the parole release date on the last day was understandable, the Act contemplates that such an order can be made,^[9] and no such error of law has been shown.  There was some concern about whether the sentence imposed corresponded with the verdict and judgment record.  The verdict and judgment record corresponds with the sentences the magistrate endorsed on the bench charge sheets, as appears from the court file, but the transcript of the magistrate’s decision that I have does not contain any reference to the sentence for the breach of bail condition being imposed orally in court. 

18. [18]
    Traditionally a court operates by the order or decision being pronounced orally in court, a holdover from medieval times when it was not uncommon for there to be judicial officers who could not read or write.^[10]  There is provision in the UCPR modifying this rule in some civil matters,^[11] but as far as I know there is no modification of it in criminal matters in magistrates’ courts.  In these circumstances, if the magistrate did omit to say out loud in court that in respect of the breach of bail condition the appellant was sentenced to three months imprisonment with parole release on the last day, it was wrong of her to endorse such a sentence on the bench charge sheet, since in law no such sentence had been imposed on the appellant. 

19. [19]
    It may be that there was a further hearing after the time for which I have a transcript during which the sentence for this offence was pronounced. But there is nothing before me to show that that was the case, and I must therefore proceed on the basis that it did not occur. In those circumstances, that sentence must be set aside, although it seems to me that, for someone with no previous history of breach of bail conditions, the sentence of three months imprisonment to serve the whole period for one failure to report was also manifestly excessive. No doubt the magistrate tailored the sentence to fit in with the other sentences being imposed, but it is still excessive for the particular offence.

-Psychiatric condition

20. [20]
    The next argument relied on was that the magistrate did not give adequate consideration to the content of the psychologist’s report, and in particular to the evidence of the existence of psychiatric problems of the appellant. The magistrate said that she had read the material about the appellant, especially the psychological report: p 4. She also referred to reading the case law but she added “I am not sure why you gave me the case of Bowley.  I did not see that it was specifically useful.”  The defence solicitor referred to the significance in relation to personal and general deterrence if there was a diagnosis of post-traumatic or stressor trauma, and asked whether she needed to address the magistrate specifically on that issue, and was told “no”: p 4.  I note as well that on the copy of the decision on the court file there is an annotation, presumably placed there by the magistrate, “Specific and general deterrence.  Not useful in a DV offending context.”  That appears to be consistent with the comments made in court afterwards in passing sentence.

21. [21]
    Although Bowley was not a domestic violence case, there is nothing in the decision, or in the earlier decisions of the Court of Appeal of Queensland,^[12] and the Victorian Court of Appeal,^[13]  referred to and relied on by the Court of Appeal in that case which indicates that the principles discussed do not apply in a domestic violence context.  In my opinion on the current state of the authorities the principles applied by the Court of Appeal in Bowley are applicable in domestic violence cases as much as any other matters.^[14]  Further, the point was made in Bowley that, on the authorities, the application of these principles is not limited to cases of serious psychiatric illness.^[15]  In my opinion, the matters discussed in Bowley about the relevance to sentencing of impaired mental functioning are principles of general application.  Given that the opinion of the psychologist at least supported an inference that the appellant was suffering from some psychiatric condition at the relevant time, the principles in Bowley were applicable in this case

22. [22]
    There is also nothing in the sentencing remarks to suggest that the principles were taken into account in the present case. As in Bowley,^[16] the magistrate in the present case made particular reference to the importance of general deterrence without expressly recognising that the significance of that factor may need to be moderated because of the existence of that psychiatric condition.  I am persuaded that on this occasion the magistrate failed to have regard to those principles, and thereby fell into error.  This ground of appeal was also made out. 

-Comparable decisions

23. [23]
    The appellant also submitted that a review of comparable cases indicated that a sentence requiring actual custody was excessive. There are certainly examples of cases where courts have declined to impose actual imprisonment notwithstanding instances of domestic violence, most notably the recent decision in the Court of Appeal in R v Kelley [2018] QCA 18, where the court held that no period of actual custody should have been imposed on an offender who had forced his way into the complainant’s house and punched her in the face in breach of a protection order under the Domestic and Family Violence Protection Act, where the complainant had been in a domestic relationship with him but had terminated that relationship.  The court reached that conclusion because of all the circumstances, including the appellant’s age, lack of previous convictions, that the violent incident had been in an emotional context, that the violence was limited to one punch, that the parties had subsequently moved on from the relationship, and that there was no evidence that the protection order had been made in response to actual violence to the complainant previously.

24. [24]
    The facts in Kelley were different from the facts here: it was a relatively brief incident, there was only one punch, and it was an immediate and emotional response to being told that the relationship was at an end.  In the present case there was an extended period of violence which had a strong element of humiliation and degradation of the complainant, apparently motivated by a desire on the part of the appellant to obtain dominance over her.  Further, the complainant in this case was a good deal younger.  Although there was no protection order in place here, the Court of Appeal in Kelley does not appear to have treated that as a matter of significance.  I do not regard Kelley as authority for the proposition that a young first offender who pleads guilty to an offence involving domestic violence is never to face actual imprisonment.

25. [25]
    When referring to authorities from the past, it is important to bear in mind that the Penalties and Sentences Act 1992, s 9 was amended as from 5 May 2016 to require a court to treat the fact that an offence is a domestic violence offence as an aggravating factor, unless the court considers it is not reasonable to do so because of the exceptional circumstances of the case: s 9(10A).  That provision applied in the present case, as it did in Kelley.^[17]  In my view it is analogous to a legislative amendment to increase the maximum penalty for a particular offence, in that it amounts to a judgment by the legislature that offences to which the section applies ought to be dealt with more severely in the future.^[18]

26. [26]
    For the purposes of an appeal on this ground, it is insufficient in my opinion to show that there are examples of cases where courts have imposed sentences which did not involve actual imprisonment. A sentence not involving actual imprisonment may well have been within range, as was conceded by the prosecutor before the magistrate; it does not follow that a sentence involving some period of actual imprisonment was not within range. For the purposes of this ground, it is really necessary to show that in the particular circumstances of this case a proper exercise of the sentencing discretion could not involve a sentence which included actual imprisonment of the appellant. I do not consider that the decisions relied on go so far.

27. [27]
    In NAS v Queensland Police Service [2017] QDC 173 the judge on appeal considered that the magistrate erred in imposing a head sentence of 15 months imprisonment, bearing in mind the decision of the Court of Appeal in R v Pierpont [2001] QCA 493: [23].  The order that the sentence be suspended after the appellant had served two months was not interfered with, even though the appellant had been granted bail pending appeal prior to completing the two months, so that the effect of the decision was that the appellant was required to serve further actual imprisonment.  In view of that, I find his Honour’s comment that a wholly suspended sentence could have been imposed a little puzzling.  Perhaps his Honour’s point was that such a sentence was within range, but a sentence with two months actual imprisonment was not outside the scope of a proper sentencing discretion in the circumstances. 

28. [28]
    It was submitted that the facts in that case were worse than the facts here, because it involved an extended assault with a weapon, and because the complainant was holding a young child at the time which was endangered by the assault. On the other hand, in the present case there was an extended period of offending and it involved the use of a rope in a way calculated to humiliate the complainant, and the appellant in NAS had participated in a formal interview with investigating police where full admissions were made.

29. [29]
    The magistrate was also referred to R v Denham, Ex Parte Attorney-General [2003] QCA 74.  In this case the complainant who was the subject of a violent attack was the father of the defendant’s former partner, and the court refrained from interfering on an attorney’s appeal with a sentence of 12 months imprisonment served by way of intensive correction order with special conditions, and six months imprisonment suspended with an operational period of three years for another offence.  He was also ordered to pay compensation to the complainant.  McMurdo P described the sentence as compassionate but not outside the range of legitimate sentencing discretion, although a period involving some actual imprisonment would have been within the sentencing range: [17].  Jerrard JA said at [21]:

“Ordinarily this behaviour would amply justify a sentence which included at least six months of actual imprisonment.  However, I have read the reasons for judgment of the President and am persuaded by those that in the circumstances the respondent should (just) escape a finding that the combination of sentences imposed upon him was manifestly inadequate.”

Admittedly the conduct in that case was more serious, and that defendant had some relevant criminal history, but this is certainly not authority for the proposition that a sentence involving actual custody in the present case was not open.

30. [30]
    The appellant’s submission in the present case was that, in the light of the various mitigating factors, and having due regard to the significance of the psychologist’s report, a sentence of imprisonment involving some period of actual custody was necessarily outside the range of a proper exercise of the sentencing discretion. I am not persuaded that that is the case. Given that the appellant has to be resentenced anyway for other reasons, it is unnecessary for me to consider further whether a sentence involving a period of three months actual custody was outside the range of a proper sentencing discretion.

31. [31]
    The appellant’s point however may be that the magistrate said at p 5 of the decision: “I accept that a term of imprisonment has to be imposed when I read the case law.” The point here was really whether the magistrate erred in saying that a sentence which did not involve imprisonment was outside the range of proper sentencing discretion in the circumstances of this case. I do not think that the authorities support such a view, though they certainly are not inconsistent with the proposition that a sentence of imprisonment is within range. If the magistrate passed sentence on the basis that the authorities indicated that a head sentence of imprisonment had to be imposed for such behaviour in all the circumstances, I do not consider that the authorities actually established that proposition, even though all of them involved some head sentence of imprisonment. At most they might indicate that a sentence of imprisonment is usual for offences such as this in these circumstances, notwithstanding the appellant’s mitigating factors.

32. [32]
    I consider however that the sentencing remarks are also susceptible to the interpretation that, in the light of the case law referred to, in the particular circumstances of this case the magistrate had accepted that an appropriate sentence was one that required a term of imprisonment to be imposed. In other words, the magistrate there was identifying the conclusion that she had come to in the exercise of the sentencing discretion in this case, informed as she was by that case law, and acknowledging that imposing a head sentence of imprisonment is a serious matter, which is not done lightly.^[19]  Appellate courts should not be astute to find error in the formulation of ex tempore sentencing remarks.  In the circumstances, I prefer to interpret the sentencing remarks in the latter sense, which does not involve any error on the part of the magistrate.

Resentence

33. [33]
    I have already outlined the circumstances of the offending, and the appellant’s personal circumstances. For the purposes of resentence, it is relevant to have regard to the fact that the appellant was in custody overnight after his arrest, and has subsequently served 59 days in prison prior to his release on bail pending appeal. It is appropriate to take that period of actual imprisonment served into account. I also take into account the (relatively mild) mental abnormality of the appellant in the various ways explained in Bowley. 

34. [34]
    There is a further complicating factor in relation to the sentence. Under s  95 of the Act the court must explain or cause to be explained certain things to the offender before making a probation order, and under s 96 the court may make a probation order only if the offender agrees to the order being made and also agrees to comply with the order as made.  The magistrate in passing sentence seems to have complied with the requirements of s 95(1)(a), but did not comply with the requirements of s 95(1)(b) or (c), or s 96.  That was in my view a further deficiency in the sentencing process.

35. [35]
    In all the circumstances, I consider that the most convenient course is to take into account the fact that the appellant has served two months actual imprisonment, and simply place him on probation for a period of two years, subject to his consent to that order. That will avoid any complication of resentencing to a term of imprisonment and then making a declaration in respect of time already served, but I do stress that this is a resentence which takes into account and gives him credit for that time already served. Resentencing just to a term of probation has the advantage that I can make one probation order in respect of the three offences of common assault, assault occasioning bodily harm and deprivation of liberty. I would not interfere with the recording of convictions, or of the recording of them as convictions for domestic violence offences. With regard to the breach of the bail condition, the appellant will be convicted and a conviction will be recorded, but he will not be further punished.

36. [36]
    When these reasons are delivered, I will make arrangements for the appellant to attend before the court so that the requirements of ss 95 and 96 can be complied with, and subject to his consent a probation order imposed, and he can be sentenced for the breach of the bail condition offence.