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- Unreported Judgment
JWD v Commissioner of Police QDC 29
DISTRICT COURT OF QUEENSLAND
JWD v The Commissioner of Police  QDC 29
The Commissioner of Police
Appeal against sentence
Magistrates Court at Southport
8 March 2019
22 February 2019
Kent QC DCJ
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the defendant was convicted of stalking and using a listening device in breach of a domestic violence protection order – where the defendant had served non-declarable pre-sentence custody – where the defendant had entered an early plea of guilty – where the defendant had limited criminal history – where the Magistrate emphasised the seriousness of the stalking offence – where the Magistrate sentenced the defendant to three concurrent probation orders for the same act – whether the sentence was manifestly excessive – whether the sentences offended the prohibition on double punishment for the same act
CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the defendant seeks extension – where delay was caused by error in solicitor’s office – where delay was not lengthy – whether extension should be granted.
Criminal Code 1899 (Qld) s 16, s 359B, s 359E
Justices Act 1886 (Qld) s 222
Penalties and Sentences Act 1992 (Qld) s 12
Barbaro v The Queen (2014) 253 CLR 58, applied.
Griesbach v Neville  QDC 036, considered.
House v The King (1936) 55 CLR 499, applied.
Pearce v The Queen (1998) 194 CLR 610, applied.
R v Tait  QCA 304, considered.
Thompson v State of Queensland (2009) QDC 242, applied.
H ROBERTSON (sol) for the appellant
K HEATH (sol) for the respondent
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- The appellant pleaded guilty to a number of offences in the Magistrates Court at Southport on 11 May 2018, as follows:
- 1 x use listening device to record a private conversation;
- 1 x unlawfully stalking;
- 1 x contravention of a domestic violence order;
- 1 x breach of bail condition
In respect of all of the offences he was placed on three years’ probation. No conviction was recorded for the offences apart from unlawful stalking where a conviction was recorded. This is one of the main points of contention in the appeal.
- The applicant seeks an extension of time for the filing of the appeal. The delay is explained by administrative error and is relatively short. Material explaining the cause of the delay has been filed.
- Apart from the issue of the extension of time, the merits of the appeal turn on the single ground, pursuant to s 222 of the Justices Act 1886 (Qld), that the sentence imposed was excessive. In essence, the applicant argues that the combination of a number of mitigating features drive the conclusion that the sentence was excessive, that is, in essence, falling outside the range of sentences which could have properly been imposed.
- The respondent opposes the extension of time for filing a notice of appeal, saying that the explanation of administrative error is insufficient. However, curiously, the respondent also concedes that the extension should be allowed for a limited purpose, namely, it is conceded that the imposition of three concurrent probation orders in relation to the stalking, contravention of domestic violence order and breach of bail, in essence amount to double punishment contrary to s 16 of the Criminal Code (Qld).
- Thus the respondent’s position, as I understand it, is that the appeal should be allowed to the extent only that no substantive penalty should be imposed for the contravention of domestic violence order and breach of bail; rather, in respect of those matters, the applicant should be convicted and not further punished. Of course, once the extension for filing is granted, the appeal would be essentially on foot.
- The applicant and the complainant had previously been in a relationship. The first charge of using a listening device had been committed on 30 October 2017 at which time the parties’ relationship was ongoing, although it seems in a precarious state. The applicant placed a digital recorder in the complainant’s vehicle. It was found the same day by the complainant’s child. The applicant admitted that he did this because he was jealous in relation to the complainant’s friend who was visiting from north Queensland. There was, it seems, no complaint made immediately to the police about this offence. It carries a maximum of two years imprisonment.
- About three months later, in early February, the relationship apparently had ended. The applicant was charged with a serious offence against the complainant in early February and released on bail with non-contact conditions. Further, on 7 February 2018 a domestic violence protection order was made, again prohibiting the applicant from approaching the complainant or her residence, or indeed contacting her.
- The circumstances of the final three charges were that the complainant was preparing to go to sleep at about 10.15 pm on the evening of 9 February 2018 at her home in Mudgeeraba. The home is in a relatively secluded area, and after the applicant had been released on bail a few days earlier, the complainant, with the assistance of her father, had a CCTV system installed at the house.
- At about 10.15 pm the complainant heard a noise and activated the CCTV feed, observing the applicant standing on her rear patio peering through a bedroom window. Police were called; the applicant apparently heard this and left. He had been in the patio area for about ten minutes. The behaviour was in breach of the orders mentioned and also amounted to stalking, s 359B of the Criminal Code; further, it was aggravated by being in breach of court orders (s 359E) and the maximum penalty on indictment was thus increased from five to seven years. This increase was not
operative in the Magistrates Court, in the sense that the maximum sentence available was not increased from three years, but nevertheless the circumstance of aggravation is doubtless relevant to the sentencing process.
- In these circumstances the matter came before the Magistrates Court at Southport for sentence on 11 May 2018. The prosecution submitted that the offences were serious, particularly the stalking. There is a need for specific deterrence, given that the applicant had been released on the conditions outlined above only a few days earlier, and was in defiance of the domestic violence order and bail conditions when he committed the offences. He was a 47 year old male with very limited and dated criminal history. He had served 91 days in pre-sentence custody.
- On the applicant’s behalf, it was emphasised that he was a 47 year old man with no relevant criminal history. He had been in Australia since 2006, being a native of New Zealand. He had completed a Bachelor of Applied Sports Science and worked as a personal trainer, including assisting with charity boxing events for a number of different charities. It was said that he has employment available on his release from custody. He had a number of positive references attesting to his good character and had sought counselling whilst in custody. His time in custody on remand was emphasised. It was argued that the appropriate sentence would be 18 months to 2 years’ probation without a conviction being recorded.
- The learned Magistrate carefully considered the matter and found it somewhat difficult.Her Honour indicated an interest in placing the applicant on a lengthy probation order and heard from the parties as to the issue of recording convictions.
- Ultimately the magistrate concluded that the stalking was the most serious charge and thus the conviction for that offence was recorded, but those for the other offences were not.
- The applicant submits that the explanation for the delay in filing the notice of appeal was sufficient to allow for an extension of time. Reference is made to R v Tait;the applicant has provided a sufficient explanation to account for the delay and also demonstrated that it is in the interests of justice to grant it. The delay was not due to the applicant’s default, rather an error in his solicitor’s office. It was not lengthy; about 2.5 weeks. In the end I did not understand the respondent to vigorously resist the extension.
- The applicant acknowledges that an appeal against sentence is an appeal against a type discretion:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in the exercise of the discretion. If the judge acts upon
a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
- It is pointed out that the sentences for the other offences on 10 February 2018 are in breach of the principle against double punishment in s 16 of the Criminal Code, as outlined above. This provides:
16 Person not to be twice punished for same offence A person can not be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof the person causes the death of another person, in which case the person may be convicted of the offence of which the person is guilty by reason of causing such death, notwithstanding that the person has already been convicted of some other offence constituted by the act or omission
Here the same act, of loitering on the back patio, constitutes all three offences (which nevertheless have a distinct legal character). Thus the operation of s 16 is engaged. It is noteworthy that the concepts of a plea in bar, or alternatively a stay of proceedings, do not arise, rather the issue is of double punishment; see the discussion in Pearce at pp 616 – 624.
- It is further said that the recording of the conviction was part of the sentence and therefore relevant to a determination as to whether it was excessive.Further, the circumstances in which the applicant was being dealt with included the fact that he had served 91 days pre-sentence custody which was not declarable (given that a probation order was being imposed), and thus represented a punishment which he had already served. This could not be ignored in the sentencing process, so it is submitted, and should have resulted in a lighter sentence including the non-recording of the conviction. Further, the applicant argues that insufficient weight was given to significant features of mitigation including the early plea of guilty; the fact that the criminal history was dated, irrelevant and minor; the applicant’s otherwise good character; his good employment history; his contribution to the community through charity work; his good prospects of rehabilitation and the time spent on remand. It is submitted that the Magistrate erred by over emphasising the nature of the offence; giving insufficient weight to the mitigating features; and failing to address the impact on his economic or social wellbeing or chances of finding employment (s 12 of the Penalties and Sentences Act 1992).
- Reference is made in particular to Griesbach v Nevillewhere a 42 year old first offender with a good work history pleaded guilty to stalking and two breaches of bail. He was sentenced to two years’ probation with no conviction being recorded and his appeal against sentence was dismissed. There was no particular discussion in that case of the issue of the non-recording of a conviction; its relevance is as a comparable sentence rather than a statement of general principle.
- The prosecution emphasise the seriousness of the applicant’s conduct including that at the time of the second group of offences, both his bail conditions on a serious charge and the domestic violence protection order forbade contact. Nevertheless the applicant’s conduct ignored these restrictions, with serious results for the justifiably concerned complainant. It is submitted that in all circumstances the three years’ probation was not manifestly excessive, nor was there any error in the recording of the conviction for the stalking charge. When s 12 of the Penalties and Sentences Act 1992 (Qld) is analysed, governing as it does the exercise of the relevant discretion, it is said that the Magistrate correctly assessed the nature and seriousness of the offending, which was the most weighty of the three operative factors. Further it is said that there was no material directly demonstrating an adverse impact on the applicant’s economic or social wellbeing or chances of finding employment. While not a decisive factor, lack of such evidence did not assist the court.
Discussion and Conclusion
- In my view, the conclusion reached by the Magistrate as to recording of a conviction is free from appellable error. Her Honour applied the relevant factors in s 12 in an appropriate balancing exercise. It was an exercise of a House type discretion and is not shown to have miscarried in the relevant sense. The same may be said of the penalty of three years’ probation for that serious offence.
- Conversely it is common ground that the probation orders for the contravention of a domestic violence order and breach of bail condition should be set aside as a double punishment, as set out above. Further, in my view the sentencing discretion did miscarry to an unacceptable degree in relation to the offence of using a listening device. It bore a maximum penalty of only two years’ imprisonment, and was in truth relatively minor, on the facts presented. The sentence imposed was outside the available range, as described in Barbaro. The probation for that offence should be reduced to two years.
- The orders will be:
- Extension of time within which to appeal granted and appeal allowed;
- Sentences imposed below amended as follows:
- (a) The sentence for Use listening device to record a private conversation reduced from three years’ probation to two years’ probation, with no conviction recorded;
- (b) Probation orders for Contravention of a domestic violence order and breach of bail condition set aside, in lieu thereof, the applicant is convicted and not further punished.
 See Barbaro v The Queen (2014) 253 CLR 58 at .
 Pearce v The Queen (1998) 194 CLR 610.
 T1-9 l 32-35.
  QCA 304.
 House v The King (1936) 55 CLR 499 at 504-505.
 Thompson v State of Queensland (2009) QDC 242 at  (Durward SC DCJ).
  QDC 036
 See Thompson v State of Queensland  QDC 242 at , 
- Published Case Name:
JWD v Commissioner of Police
- Shortened Case Name:
JWD v Commissioner of Police
 QDC 29
08 Mar 2019