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- Unreported Judgment
KRN v Queensland Police Service QDC 205
DISTRICT COURT OF QUEENSLAND
KRN v Queensland Police Service  QDC 205
QUEENSLAND POLICE SERVICE
Magistrates Court at Proserpine
17 October 2019
8 October 2019
Farr SC DCJ
The appeal is dismissed.
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced in the Proserpine Magistrates Court to a total of 9 months 28 days imprisonment with a parole release date – where the appellant claims his solicitor did not adequately represent him – where the appellant claims the learned magistrate should have partially suspended the overall sentence rather than set a parole release date – whether the penalty was excessive.
The appellant was self-represented
E Coker for the respondent
Office of the Director of Public Prosecutions for the respondent
- The appellant appeared in the Proserpine Magistrates Court on 20 June 2019 and pleaded guilty to the following offences:
- Contravention of a Domestic Violence Order (Aggravated), for which he was sentenced to 8 months imprisonment;
- Wilful damage (Domestic Violence Offence), for which he was sentenced to 7 days imprisonment;
- Breach of a bail undertaking, for which he was sentenced to 14 days imprisonment;
- Using a carriage service to menace, harass or cause offence, for which he was discharged upon entering into a $400.00 recognisance conditioned that he be of good behaviour for 12 months; and
- Drive a motor vehicle under the influence of liquor, for which he was sentenced to 14 days imprisonment and was disqualified from holding or obtaining a driver licence for a period of 2 years.
- The terms of imprisonment were ordered to be served concurrently.
- Some of the offences were committed during the operational periods of 3 suspended terms of imprisonment which totalled 1 month 28 days imprisonment. Those operational periods had been in effect for just under 2 months at the time. They were imposed for the defendant having previously breached a probation order which had been imposed for another charge of contravention of a domestic violence order (aggravated offence) and for a further charge of a domestic violence order (aggravated offence) which occurred on 18 February 2019.
- The learned magistrate activated the total period of 1 month 28 days imprisonment and the appellant was ordered to serve the period of 8 months imprisonment which was imposed for the substantive offences cumulatively upon that period of 1 month 28 days.
- The appellant was therefore sentenced to a total of 9 months 28 days imprisonment. 39 days of pre-sentence custody was declared and a parole release date was set at 11 July 2019; that is after he served a total period of 2 months imprisonment.
Grounds of appeal
- The notice of appeal notes the following ground of appeal:
- That the penalty was too severe and manifestly excessive.
- The appellant’s outline of submissions also presses the following grounds:
- The sentences imposed were too severe and manifestly excessive;
- The appellant’s solicitor did not adequately represent him by failing to follow his instructions, was ill-prepared and had a conflict of interest; and
- That the learned magistrate should have partially suspended the overall sentence rather than set a parole release date.
Standard to be met on appeal
- An appeal pursuant to s 222 of the Justices Act 1886 is an appeal by way of re-hearing on the original evidence, and new evidence where leave has been granted to adduce such evidence. Section 222 requires the District Court to conduct a real review of the record, the evidence before the magistrate, and any additional evidence adduced with leave. As stated in Forrest v Commissioner of Police:
“An appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case.”
- Accordingly, the court is required to review the exhibits tendered before the learned magistrate and the transcript of the hearing.
- As noted in R v Allen,
“It is well settled that to establish that a sentence is manifestly excessive, it is insufficient to show it to be markedly different in other cases. What must be established is that there must have been a misapplication of principle by the sentencing judge or that the sentence is “unreasonable or plainly unjust”.
Facts of offences
Breach of bail condition:
- On 9 July 2018 the appellant entered into a bail undertaking for the offence of wilful damage. It contained a number of conditions including a prohibition on his entering a residential address. He breached that condition 20 days later by attending his previous address in that street.
Drive under the influence of liquor:
- Police were called to attend the car park of the Jubilee Tavern at Shute Harbour on 11 August 2018 and observed the appellant to be sitting in the driver’s seat of a vehicle. Keys were in the ignition and the engine was running and the driver’s side door was open with a female member of the public standing in the open doorway. The appellant was holding a mobile phone which was plugged into the cigarette lighter of the vehicle. He told police that he had not been driving and was only charging his phone. Breath analysis showed a concentration of 0.22 grams of alcohol in 210 litres of breath.
Contravention of a domestic violence order:
- A Protection Order Varied Order was made in the Proserpine Magistrates Court on 15 March 2019 naming the appellant as the respondent and imposed 5 conditions. The appellant was present in court via video-link when the order was made.
- On 11 May 2019 at approximately 9.00pm police were detailed to attend a property regarding a domestic violence incident. The victim (the aggrieved on the domestic violence order) had contacted 000 and stated that the defendant was at her home address and had stated during a phone conversation that he was going to burn her house down.
- Police attended at that address and located the victim and her two children outside. Police could smell a strong odour of petrol emanating from the dwelling. Police moved to the rear of the dwelling and could see a red fuel canister with a liquid spilled on the lounge room and kitchen floors. Queensland Fire and Emergency Services attended a short time later and rendered the dwelling safe by cleaning the liquid off the floor and it was later identified as petroleum. Police searched the dwelling but the appellant had left the address by that stage. Several floor tiles where the petroleum had seeped under had been damaged as a consequence.
- Earlier that evening the victim had returned home with her two children and the appellant when a verbal argument in relation to the children developed. When it became heated the victim took her children outside and left in her vehicle. Shortly thereafter, the victim contacted the appellant and stated that she wanted him to leave. The appellant began to shout at the victim and stated that he was going to burn the house down. It was at that stage that the victim called triple zero.
- Between 9.00pm and 11.00pm that evening the victim received several abusive phone calls from the appellant whilst she was still in the presence of police officers. She received many further calls during the course of that evening and the early hours of the following morning but did not answer the phone on any of those occasions. Messages were left however on her Messagebank which were again abusive in nature.
- Police located the appellant on 12 May 2019 and when interviewed he stated that the victim had poured petrol on him, forcing him to leave the premises. He also denied contacting the victim and stated that he does not own a telephone.
Wilful damage (domestic violence offence); Using a carriage service to menace, harass or cause offence:
- These charges also arise from the defendant’s activities on 11 May 2019 as detailed above.
The appellant’s criminal history
- The appellant is 40 years old and has a substantial criminal history in Queensland and in New South Wales. He has prior convictions for offences of violence, dishonesty, damaging property, escaping police custody, attempting to pervert the course of justice, stealing and numerous driving related offences. Relevantly and importantly he has approximately 12 prior convictions for contravening a domestic violence order. Sentences which have been imposed include fines, community based orders, suspended terms of imprisonment and actual imprisonment and actual imprisonment.
- The appellant has sought to raise a second ground of appeal in his outline of submissions to the effect that his legal representative did not adequately prepare his matter, failed to follow his instructions and had a conflict of interest arising from her past role in prosecuting the defendant in 2015.
- Section 222(2)(c) of the Justices Act states however, that where a matter has proceeded as a plea of guilty, the appeal is limited to the ground that the “fine, penalty, forfeiture or punishment was excessive or inadequate”. It follows, that this asserted ground of appeal is not legislatively available to the appellant and is of no relevance to the determination of this matter.
- Notwithstanding that fact, upon reading the transcript of the hearing in the court below, it is readily apparent that the appellant’s legal representative was adequately prepared for the matter and had no conflict of interest irrespective of whether she prosecuted the appellant some years earlier or not. Even if she had done so, the appellant has provided no evidence that she was aware of that fact. In fact, the appellant himself conceded that he wasn’t aware, at the time, that she had prosecuted him years earlier (assuming that allegation is correct).
- In relation to the ground that the sentence was excessive, the appellant’s submissions can be best summarised as follows:
- His pleas of guilty at first opportunity were not adequately taken into account;
- The parole board placed additional conditions upon his parole order prior to his court ordered release, raising additional hardships including financial stress and a difficulty to comply with the employment opportunity that was presented at his sentence;
- His representative did not explain his medical conditions properly;
- His representative did not explain the circumstances surrounding the offence properly;
- The learned magistrate did not place sufficient weight on his remorse and his repair work to the damaged tiles;
- His legal representative did not explain his family situation, including that he has family interstate and may need to travel at short notice which is hindered by the parole regime; and
- The learned magistrate placed excessive weight on his criminal history, including his New South Wales history which he asserts contains entries not belonging to him.
Submissions made before the learned magistrate
- The transcript of the submissions made before the learned magistrate indicate that the appellant’s legal representative made submissions regarding the following matters:
- The appellant’s criminal history from both Queensland and New South Wales was accepted;
- The appellant’s daughter died in 2014, which was an event that had troubled him in the years that followed;
- Details about the appellant’s family background, including that he was adopted and the death of his biological father around the time of the anniversary of his daughter’s death;
- That the appellant and the aggrieved got into an argument after a wedding which they attended together on the date of the offence, which escalated to the aggrieved stating that it would be easier to burn the house down, and that the appellant received chemical burns to his buttocks from petrol, and that the tiles that were damaged by the petrol were repaired by the appellant;
- That the appellant had a pancreatic condition, namely tumours growing on his pancreas, which cause difficulty with his blood sugar and that he was medicated for the condition; and
- That the appellant had a diagnoses of bipolar and post-traumatic stress disorders for which the appellant received medication.
- The appellant’s legal representative tendered a letter from a medical practitioner noting the appellant’s past history of the pancreatic condition. No evidence was tendered nor were submissions made however to suggest that the relevant medication the appellant requires would be unavailable to him in a correctional centre.
- The appellant’s legal representative also tendered letters of reference, including a reference from his stepfather and his mother. Those references indicated that his family reside interstate.
- The appellant’s legal representative ultimately submitted that the appropriate sentence was up to 9 months imprisonment.
Consideration of issues
- A review of the transcript indicates that the learned magistrate took into account the appellant’s plea of guilty and co-operation with the administration of justice. The magistrate did so when also taking into account other relevant features of the offending, including the nature of the charges, the appellant’s antecedents and his criminal history. Further, the learned magistrate gave consideration to the totality principle, indicating to the appellant’s legal representative that the head sentence would be moderated as a result.
- The appellant’s complaint that the parole board placed additional conditions upon his court ordered parole order is of no relevance to the consideration of whether the sentence imposed at first instance was excessive. It relates to a decision made by the Queensland Parole Board. An appeal pursuant to s 222 is not the correct mechanism in which to challenge the decision made by the board as it does not relate to the matters before the magistrate at the time the sentence was imposed and is an administrative law matter that has arisen subsequently.
Was the sentence excessive?
- The appellant’s legal representative initially submitted a head sentence of “3 – perhaps 6 as a head” months imprisonment to allow the appellant time to gain benefits from supervision on parole and conceded that it was open for the magistrate to impose a cumulative sentence with respect to the activation of the suspended sentence. After the learned magistrate indicated that in his view 3 to 6 months imprisonment was inadequate in light of the appellant’s criminal history and the fact that the most serious offending involved the appellant throwing petrol around a house and threatening to burn it down, when considered together with the need for adequate time for rehabilitation, the appellant’s legal representative then submitted that the head sentence attaching to the contravention of the domestic violence charge shouldn’t exceed 9 months.
- In the case of R v James, the defendant was sentenced to 9 months imprisonment with a parole release date set after 4 months in relation to a charge of breaching a domestic violence protection order. The defendant in that matter punched the aggrieved to the face while she was at hospital seeking treatment for an injury sustained when she had been drinking. The defendant had a criminal history including six breaches of protection orders and other offences for violence.
- The single judge decision of NVZ v Queensland Police Service, also provides assistance. In that matter, the 31 year old defendant was sentenced to 9 months imprisonment in relation to an aggravated charge of contravening a domestic violence order. The defendant had a four page criminal history which included offences of violence and past breaches of domestic violence orders. The offence involved a threat to kill the aggrieved and her children during a court proceeding. The offence was committed whilst he was in custody for similar matters. The defendant had served 36 days in pre-sentence custody which was declared and it was ordered that he be eligible for parole immediately.
- These cases do not support the appellant’s submission that the sentence of 8 months imprisonment imposed in this case for the charge of contravention of the domestic violence order was excessive. He has past convictions for breaching domestic violence orders and is a mature man with an extensive criminal history. General and specific deterrence were pertinent factors for the learned magistrate to take into account.
- In relation to the activation of the suspended sentences, the Penalties and Sentences Act 1992 (Qld) required the court to order the whole of the suspended imprisonment to be activated unless satisfied that it would be unjust to do so. The appellant’s criminal history shows that he has previously had the benefit of suspended sentences, including a sentence imposed on 15 March 2019 for contravening a domestic violence order. He in fact committed further acts of domestic violence upon the aggrieved during the operation of that suspended term of imprisonment.
- In light of the circumstances of the offending that occurred during the operational period of suspended terms of imprisonment imposed in relation to earlier offences that included contravening a domestic violence order and contravening a probation order that was imposed for an even earlier offence of contravening another domestic violence order, it was not unjust for the magistrate to order the activation of the term.
- Given the above features of the offending, including the fact that the offence was committed 2 months after the suspended sentences were imposed, it was open for the learned magistrate to order that the sentences imposed for the substantive offences be served cumulatively upon the activated suspended terms of imprisonment.
- Finally, the learned magistrate gave appropriate weight to the mitigating features by setting a parole release date after a period of only 2 months.
- I can discern no error on the part of the learned magistrate in his consideration of issues or in the determination of penalty.
- The appeal is dismissed.
 Justices Act 1886, s 223(1).
 Ibid, s 223(3).
 McDonald v Queensland Police Service  QCA 255.
  QCA 132.
  QCA 126
 Citing House v The King (1936) 55 CLR 499 at 505.
 Transcript p 7, ll 23-46.
 Transcript p 11, ll 32-39.
 Transcript p 11, ll 41-45; p 16, ll 9-14.
 Transcript p 12, ll 45-47.
 Transcript p 23, ll 23-25.
 Transcript p 27, ll 29-30; p 12, l 46; p 13, ll 1-2.
 Transcript p 17, ll 16-21.
 Transcript p 17, ll 23-24.
 Exhibit 2.
 Exhibit 2. I note that the learned magistrate had regard to those references, indicating that he had regard to the appellant’s family support and what had been written by his family in the course of providing reasons for his decision.
 Transcript p 27, ll 40-42.
 Transcript of decision p 2, ll 43-46.
 Transcript p 22, ll 42-47; p 23, ll 1-5.
 Transcript p 24, ll 16-20.
 Transcript p 24, ll 40-46; p 25, ll 11-12.
  QCA 256.
  QDC 216.
 Penalties and Sentences Act 1992 (Qld), s 147(1)(b) and (2).
- Published Case Name:
KRN v Queensland Police Service
- Shortened Case Name:
KRN v Queensland Police Service
 QDC 205
17 Oct 2019