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CBC v Queensland Police Service QDC 3
DISTRICT COURT OF QUEENSLAND
CBC v Queensland Police Service  QDC 3
QUEENSLAND POLICE SERVICE
APPEAL NO: 217/18
Magistrates Court, Cairns
30 January 2019
11 & 12 December 2018
Morzone QC DCJ
CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 – conviction on own plea - contravention of domestic violence order (aggravated) – mode of hearing of appeal - whether sentence manifestly excessive.
Justices Act 1886 (Qld) ss 222, 223 & 227
Penalties and Sentences Act 1994 (Qld) ss 9, 160
Green v Queensland police Service  QDC 341.
House v The King (1936) 55 CLR 499.
Kentwell v R (2014) 252 CLR 60.
MH v Queensland police Service  QDC 124.
PFM v Queensland Police Service  QDC 210.
R Logan for the appellant
J Francis for the respondent
Aboriginal and Torres Strait Islander Legal Service for the appellant
Office of the Director of Public Prosecutions for the
- On 23 November 2018, the appellant was convicted on her guilty plea in the Magistrates Court held in Cairns, of contravention of a domestic and family violence order (aggravated), and was ultimately sentenced to 1 month imprisonment to be served cumulatively upon a pre-existing 3 year sentence, with immediate release on parole. The sentence was reopened on 26 November 2018 when the court fixed a parole eligibility date of 23 November 2018 in lieu of the parole release date.
- The appellant now appeals her sentence.
- The hearing of the appeal was expedited and I heard comprehensive submissions on the hearing of the appeal. I allowed the appeal and ordered that the appellant be convicted but not further punished after accounting for the declarable time spent in pre-sentence custody.
- These are the reasons for my decision.
- On 14 April 2016, the appellant, a 27 year old aboriginal woman, was convicted on her guilty plea to domestic violence related offences and received concurrent sentences, namely:
- Grievous Bodily Harm - 3 years imprisonment and 20 hours of community service;
- Assault occasioning bodily harm – 2 years imprisonment and 20 hours community service;
- Contravention of a Domestic Violence Order, and a further Contravention of a Domestic Violence Order (aggravated offence) – 6 months imprisonment.
- After declaring 45 days of presentence custody as time served, the court set a parole release date of 28 February 2017. The full time expiry date of the sentence was 7 March 2019.
- When the appellant was release on court ordered parole, she initially returned to Pormpuraaw before admission to Gindja Treatment and Healing Centre where she met and formed an intimate relationship with the aggrieved. The appellant moved to live with the aggrieved at his house in Mossman. After a while their relationship was marred by alcohol-fuelled domestic violent, and ultimately ended.
- A protection order naming the appellant as the respondent was ordered on 31 October 2018, which amongst other conditions, prohibited the appellant from “following or approaching the aggrieved when the aggrieved is at any place. The appellant’s parole was also suspended on that date pursuant to s 208B(2)(c) of the Corrective Services Act 2006 (Qld) on the grounds that ‘the prisoner poses an unacceptable risk of committing an offence’. On 1 November 2018, the Parole Board added a further ground that the appellant ‘has failed to comply with the parole order’ relating to abstinence from taking alcohol.
- On 1 November 2018, police were looking for the appellant to execute a return to prison warrant consequent on suspension of her parole order. When police went to the aggrieved’ s home to make inquiries, they arrived to find the appellant sitting on the ground in the carport area of the two-storey home, while the aggrieved was inside the first storey of the house.
- The proceeding initially came before the Magistrates Court in Cairns on 23 November 2018. During the hearing, the prosecutor was heard in respect of the factual basis of the offending, and comparative authorities. The magistrate was apparently inclined to impose a 1 month cumulative sentence with immediate suspension. The appellant’s advocate below was dissuaded from developing her submissions by the learned magistrate’s early indication of the course that was proposed for the sentence. Accordingly, the learned magistrate sentenced the appellant to 1 month imprisonment to be served cumulatively with the pre-existing sentences, and ordered that the sentence be suspended forthwith after taking account about 3 weeks of undeclarable time spent in pre-sentence custody. The appellant was released.
- After some communication by corrective services, the prosecutor applied to reopen the sentence on the grounds that a parole eligibility date was required by s 160C of the Penalty and Sentences Act 1992 (Qld) since the period of imprisonment was more than 3 years.
- The sentence was reopened at a further hearing on 26 November 2018, in the absence of the appellant, and without hearing further substantive submissions about of the offending conduct and mitigation circumstances. The learned magistrate amended the sentence by fixing a parole eligibility date of 23 November 2018 in lieu of a parole release date.
- On 29 November 2018 the appellant was arrested and returned to custody where she remained pending this appeal.
Grounds of Appeal
- The appellant appeals the sentence on the grounds that the sentence is manifestly excessive.
- Other grounds were raised during the course of submissions, including breach of natural justice and jurisdiction to reopen the sentence, however, it is unnecessary to decide those matters in the disposal of the appeal.
Mode of Appeal
- The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld). Section 222(1) relevantly provides:
“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”
- Pursuant to s 223 of the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. Section 223 provides:
- (1)An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
- (2)However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
- (3)If the court gives leave under subsection (2), the appeal is—
- (a)by way of rehearing on the original evidence; and
- (b)on the new evidence adduced.
- For an appeal by way of rehearing the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.
- The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.
- Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.
Appeal against Sentence
- The appellant also appeals against the sentence.
- This court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.
- The High Court held in House v. The King that:
“It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous 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 may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
- The High Court in Kentwell v Rheld:
“In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.”
- The decisions distinguished cases of specific error and manifest excess. Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed. By contrast, an error may not be discernible; but the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
- The appellant argues, and it is properly accepted by the respondent, that the sentence was manifestly excessive.
- The learned magistrate was not well assisted with vague facts constituting the offending coupled with the appellant’s plea. There was little factual context given to the presence of the appellant at the aggrieved’ s house, when on 1 November 2018, police arrived coincidentally to find her sitting on the ground in the carport area of the two-storey home, while the aggrieved was inside the first storey of the house. There was no other evidence of the appellant following or approaching the aggrieved.
- In this dearth of factual context, the prosecutor submitted that:
My submission probably falls somewhere in the middle of the three cases that I’ve provided: PMF, Green and Russell. That is to say, in the middle of theterms of one month, three and six for what are, in my submission, comparableauthorities, appeals against a no contact condition.-
- The prosecutor properly conceded that the decision of Russell was more serious, but relied particularly on the comparative cases of PFM v Queensland Police Service  QDC 210 and Green v Queensland Police Service  QDC 341. I was also referred to MH v Queensland Police Service  QDC 124. Each of those cases involved defendants breaching so called ‘no contact’ protection orders.
- The focus of the protection order in the current appeal was the prohibition of the appellant following or approaching the aggrieved. Unlike the other cases, the order did not impose a prohibition within a restricted distance, or in relation to place associated with the aggrieved.
- In order to understand the comparative value of those authorities apparently relied upon by the court below, I allowed fresh evidence to support the appellant’s submissions about the offending conduct and relevant mitigating circumstances. “Special grounds” are required before fresh, additional or substituted evidence (new evidence) may be admitted on appeal.The further evidence as to the nature and circumstances of the offending given the inadequacy of the facts relied upon by the prosecution, was available with reasonable diligence and would have been an important influence on the result of the case, but they were not adduced out of courteous deference to the magistrate’s proper indications. The appellant’s advocate below was dissuaded from developing her submissions by the learned magistrate’s early indication of the initial course that was proposed for the sentence. But that course was later altered significantly without further submissions provided at that juncture.
- I accept that by the date of the offending, the appellant had decided to move back to her community in Pormpuraaw. To that end, she went to collect her belongings from the aggrieved’ s- home. The home is a two-storey structure, with a carport on the ground below the living area on the upper floor. Upon arrival, she asked him to get and give her clothes. There is no evidence that the appellant at any stage moved toward the aggrieved who remained inside the upper floor of the house. While the complaint was retrieving her clothes and the appellant remained reacted in the ground level carport area, the police arrived on the scene.
- PFM was an appeal that came before me. PFM, while on parole arose from other offending of possessing a dangerous drug and a failure to appear, went to the aggrieved’ s residence one week earlier than as was permitted in accordance with the protection order in relation to child’s matters. The order was in specific and clear terms: “The respondent is prohibited from entering, attempting to enter or approaching to within 100 metres of where the aggrieved works or resides. Except for the purposes of having contact with children but only as set out in writing by the aggrieved or in compliance with an order of a court.”The offending conduct did not involve any physical violence, overt aggression or intimidation. However, PMF had a significant history of domestic violence and contravening court orders, which demonstrates a disregard for the orders and protection of the aggrieved. The circumstances warranted a sentence of imprisonment. After weighing up the impact of a parole eligibility date, uncertainty of release and actually custody, and totality, PFM was resentenced to a wholly suspended term for one month imprisonment to be served cumulatively upon the pre-existing. It seems to me that the appellant’s offending and circumstances were comparatively less serious than PFM, and in circumstances where there was sparse evidence of the appellant following or approaching the aggrieved.
- In Greenthe court substituted with a sentence of 3 months’ imprisonment. The defendant was previously sentenced to 15 months’ imprisonment with an immediate parole release date for several offences, including two charges of contravention of a domestic violence order. He committed the further contravention of a domestic violence order about two months later. Whilst subject of a temporary protection order with a no contact condition the defendant contacted the aggrieved 60 times on her mobile phone. The purpose of the contact was to get her to withdraw the complaint. There were no threats of actual violence. The defendant received mental health treatment in custody and suffered from developmental delay, autism spectrum disorder and attention deficit disorder. He had a poor and more serious history for domestic violence breaches. Whilst of relatively limited comparative value, this case serves as an indicator of more serious, determined, persistent, sustained and manipulative offending. It seems to me that the circumstances in Green are more serious and readily again distinguishable from the present.
- I also think MHis more serious and readily distinguishable. In breach of a protection order including that he must not go within 50 metres of the aggrieved’ s address, went to the address at the request of the aggrieved. After an argument at about 12.30am was locked out as he had a cigarette, and he angrily banged on the front door and tried to gain entry before police arrived. MH was also dealt with for obstructing police when he became aggressive and uncooperative. His criminal history mainly involved minor drug offending, with no previous conviction of the nature or seriousness of the subject offending. In the circumstances, the court resentenced MH to a 18 months’ probation order with conditions to address anger and domestic violence issues.
- It seems to me that the nature and extent of the offending, when properly considered in context of the appellant’s actual conduct, falls well short of these authorities, and falls within the lower end of this type offending and more in the sentencing range a good behaviour bond, fine and probation order. This is particularly so after taking into account undeclared time in pre-sentence custody from 1 November 2018 to 23 November 2018 and since 29 November 2018 pending this appeal, as well as the disproportionate and crushing impact of parole eligibility pursuant to s 160C(1) and (3) of the Penalties and Sentences Act 1994 (Qld).
- For these reasons, in my respectful view, the trial magistrate erred in exercising the sentencing discretion by initially mistaking the facts, then allowing erroneous or irrelevant matters to guide or affect him in re-opening the sentence without regard to matters of totality, and failing to take into account some material considerations as to the nature and extent of the offending. In my respectful opinion the resultant sentence was unreasonable and plainly unjust.
- Having made reached that conclusion, it was incumbent on this court to exercise the sentencing discretion. After an expedited hearing, I allowed the appeal and ordered that the defendant be convicted but not further punished after accounting for the declarable time spent in pre-sentence custody.
- The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act 1992 (Qld) are to punish the offender to an extent or in a way that is just in all the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, make it clear that the community denounces the conduct in this offence, and protect the community. The relevant factors the court must have regard to are in s 9(2) of the Penalties and Sentences Act 1992 (Qld).
- It is trite to say that the appropriate sentence will depend on the particular circumstances of the offending and the degree of culpability of the offender. The nature of the penalty in the form of a fine provides little by way of rehabilitation. The gravity of the offending is also gleaned by the maximum penalties, with due regard to the factors of general and, as appropriate, personal deterrence. For this offending, it is also relevant that imprisonment should only be imposed as a last resort and a sentence that allows the appellant to stay in community is preferable.
- The maximum penalty for the aggravated offences is five year imprisonment. Further to what I have said above, the nature and serious of the appellant’s offending conduct is at the lowest end of the range. The case was wholly circumstantial, and her conviction was largely due to her co-operation and plea to the bare offending. The contravention of the order was minor as she arranged to retreat form the area.
- The appellant is a 27 year old aboriginal woman. Whilst she has relevant previous convictions for serious offences of violence, and she reoffended while on parole for those offences. However, her offending here was trivial by comparison and did not involve actual contact with or any violence towards the aggrieved.
- Personal and general deterrence are particularly important having regard to the prevalence of domestic violence and contravention of protection orders. This is also reflected in the aggravated offence and the higher maximum penalty. The fidelity by offenders to adhering to order assures the paramount need for the protection an aggrieved from domestic violence where a court found it necessary or desirable to meet that need.
- The circumstances of the offending, and the management of the case in the criminal justice system, have been unusual. Clearly enough the parole authorities are concerned about the appellant’s performance while on parole. She has found herself in two bouts of imprisonment as a result of her ongoing alcohol mismanagement despite her parole conditions, and she has been returned to custody after her resentence and pending this appeal. The current offending is at the lowest end of the range; it seems to me that imprisonment will be disproportionate to the seriousness of the offending and too crushing on the appellant. I have taken into account the significant undeclarable period of pre-sentence custody.
- For these reasons, I allowed the appeal, set aside the orders made by the Magistrates Court and substituted the order that the appellant is convicted but not further punished for the offence.
Judge Dean P Morzone QC
Allesch v Maunz (2000) 203 CLR 172,  –  followed in Teelow v Commissioner of Police  QCA 84, ; White v Commissioner of Police  QCA 121, , McDonald v Queensland Police Service  QCA 255, ; contrast Forrest v Commissioner of Police  QCA 132, 5.
Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police  QCA 132, 5 and McDonald v Queensland Police Service  QCA 255, .
White v Commissioner of Police  QCA 12, -; Forrest v Commissioner of Police  QCA 132, 5 & 6; McDonald v Queensland Police Service  QCA 255, .
House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519.
(1936) 55 CLR 499, 504 and 505.
Kentwell v R (2014) 252 CLR 60, , adopting AB v R (1999) 198 CLR 111,  per Hayne J (minority).
Justices Act ((1886), s 223(2).
PFM v Queensland Police Service  QDC 210 .
Green v Queensland police Service  QDC 341.
MH v Queensland police Service  QDC 124.
- Published Case Name:
CBC v Queensland Police Service
- Shortened Case Name:
CBC v Queensland Police Service
 QDC 3
30 Jan 2019