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- Unreported Judgment
RMP v Buley QDC 228
DISTRICT COURT OF QUEENSLAND
RMP v Buley  QDC 228
JAMIE ANTHONY PETER BULEY
3525 of 2020
Appeal pursuant to section 222 of the Justices Act 1886
17 September 2021
17 August 2021
Loury QC DCJ
CK Copley for the appellant
R Swanwick for the respondent
RB Lawyers for the appellant
The Office of the Director of Public Prosecutions for the respondent
- On 27 November 2020 the appellant pleaded guilty to an offence of contravention of a domestic violence order (aggravated) and was sentenced to nine months imprisonment wholly suspended for 18 months. He was also ordered to pay costs in the amount of $1,362.68.
- The appellant appeals against the sentence imposed on the grounds that:
- 1.The learned Magistrate imposed a sentence that was manifestly excessive;
- 2.The learned Magistrate took into consideration or gave too much weight to irrelevant matters;
- 3.The learned Magistrate failed to take into consideration or gave too little weight to relevant matters; and
- 4.In imposing a costs order pursuant to section 157 of the Justices Act 1886, the learned Magistrate:
- (a)Took into consideration or gave too much weight to irrelevant matters; and/or
- (b)Failed to take into consideration or gave too little weight to relevant matters.
The circumstances of the offending
- At 3.30 pm on 11 November 2019, the appellant picked up the aggrieved from an address and proceeded to drive her to her home. In the car, the appellant and aggrieved were involved in a heated verbal argument which progressed to a “physical interaction”.
- A protection order had been made on 23 April 2019. It contained the standard condition that the appellant be of good behaviour towards the aggrieved and not commit domestic violence against her, together with conditions that: prohibited him from approaching within 100 metres of her home or work or other places she frequented; prohibited him from contacting her by any means; and prohibited him from approaching within 100 metres of her person.
- A series of four black and white images said to depict injuries sustained by the aggrieved in the “physical interaction” were tendered without objection. The images received from the Magistrates Court are of such poor quality that I cannot determine what injuries they are said to depict. The prosecutor when questioned about the injuries ultimately said the injuries resulted from a “physical interaction” between the parties however he was not intending to particularise the mechanism/s by which they were sustained.
- The appellant’s counsel informed the court that the appellant collected the aggrieved after she had undergone a termination of a pregnancy. He had offered to take her to, and collect her from, the address where the termination was to take place, however she had declined his offer. During the morning, the aggrieved made five to ten phone calls to the appellant ultimately requesting that he take her to the facility and pick her up from the facility where the procedure was to take place. He agreed to do so.
- On the journey home the aggrieved was upset and the appellant attempted to console her by rubbing her back. His conduct was met with silence. What followed was then “an eruption – a torrent of verbal and physical abuse from the aggrieved” which was captured in a five minute recording. The appellant was twice called an “evil bastard” and invited to suicide. The aggrieved struck the appellant on nine occasions. On at least 15 occasions the appellant can be heard on the recording telling the aggrieved to stop attacking him with her screaming “no”. On seven occasions, he invited her to get out of his car and she refused. She said that she wanted the appellant dead, that she would have him “bashed” and that she hoped he would be killed. She used profanities towards him.
- It was submitted, and not disputed by the prosecutor, that the appellant also suffered a number of physical injuries as a result of the assaults inflicted on him by the aggrieved. A series of 12 black and white images were tendered. Again those images are of a poor quality. It is difficult to ascertain what injuries the images in fact depict. It was submitted that the appellant sustained a bite mark to his arm and that he came off “second-best physically”. It was disputed by the appellant that he hit the aggrieved at any time.
The appellant’s antecedents
- The appellant was 30 at the time of the offence and at sentence. He had a criminal history which revealed that on 1 May 2019 he was convicted of an offence of wilful damage which was recorded as a domestic violence offence. He was fined $750 and ordered to pay restitution in the amount of $500. No conviction was recorded. The damage was occasioned to a taxi. The aggrieved was not the complainant in that matter although the offence was characterised as a domestic violence offence pursuant to section 12A of the Penalties and Sentences Act 1992.
- The appellant’s counsel informed the learned Magistrate that the appellant was seeing the aggrieved for a period of time when he was separated from his wife. He had subsequently reconciled with his wife which was submitted to be a protective factor against his re-offending. The appellant had completed an apprenticeship and worked since school in the air-conditioning industry. For the past five and one-half years he has owned his own successful air-conditioning business which employed 11 people. The appellant’s recent work had involved installing air conditioning in seven State schools.
The learned Magistrate’s reasons
- The learned Magistrate indicated that he had taken into account the nature and circumstances of the charge before him. He took into account that the appellant pleaded guilty. He indicated that the offence was not alleged to have involved actual violence but that there was an inference open that it did involve actual violence. Accordingly he said that he took into account the relevant matters in section 9(2A) of the Penalties and Sentences Act 1992 (that a sentence of imprisonment was not a sentence of last resort). He indicated that the restrictions placed on the domestic violence order were designed to prevent a physical altercation. He said that the only inference that he could make based on the injuries depicted to the aggrieved in the photographs tendered were that they were sustained by a physical altercation that took place between the two of them. He made specific reference to Commissioner of Police v RTC where Her Honour Judge Richards said:
“On a consideration of a breach of a domestic violence order the court is required to take into account the acts that constitute the breach. The terms of a domestic violence order include a condition that the respondent spouse must be of good behaviour and must not commit acts of domestic violence or associated domestic violence. Domestic violence is defined as including wilful damage to the spouse’s property, wilful injury, intimidation or harassment of the spouse. The fact that an assault or damage to property may have occurred whilst breaching the domestic violence order simply forms part of the narrative of the act of domestic violence constituting the breach in the way that actual violence performs part of the elements of robbery. The respondent could have been charged with assault or wilful damage as a result of this offending but it does not mean in my view that the learned magistrate is required to ignore those facts on sentence. That is not what was decided in R v D or followed in R v Forester. To exclude those acts from the sentencing process was to adopt an unnecessarily artificial view of matters which affected the weighing of all relevant factors in the exercise of the sentencing discretion.”
- The learned Magistrate inferred that the injuries suffered by the aggrieved were the result of the physical interaction between the appellant and her. The learned Magistrate referred to the appellant’s conviction for a domestic violence offence only five months earlier. He made specific reference to the impact that the sentence would have on the appellant’s business. He considered that there was a need for specific and general deterrence. He considered that the injuries suffered by the aggrieved were significant and painful. He rejected the submission made to him that the injuries were caused when the aggrieved got out of the vehicle and found that they were the result of the physical interaction between the appellant and aggrieved. He considered that the appropriate sentence was a wholly suspended term of imprisonment.
- The appeal is pursuant to section 222 of the Justices Act 1886. Such an appeal is to be conducted as a rehearing on the evidence below, that is, a review of the record of proceedings rather than a fresh hearing, together with any new evidence that I allow to be admitted. I am required to conduct a real review of the evidence and the learned Magistrate’s decision and make my own determination giving due deference to and placing a great deal of weight on the Magistrate’s view. In order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.
- Sentencing involves the exercise of a discretion. Accordingly, the principles referred to in House v The King are apposite. If it appears that some error has been made in the exercise of the Magistrate’s discretion because he has allowed irrelevant matters to affect him, mistaken the facts or failed to take into account some material consideration, then his decision should be reviewed and it is open for me to exercise the discretion afresh.
The appellant’s contentions
- The appellant argues that the learned Magistrate failed to take into account that the aggrieved was in the appellant’s presence of her own volition and indeed at her behest. The circumstances in which she came to be in his presence involved a highly emotionally charged situation for both parties. It was the aggrieved who turned on the appellant with a torrent of abuse, a fact not disputed by the prosecutor. That included her hitting him on at least nine separate occasions and his suffering injuries which included an injury to his right eye and a bite mark to his arm.
- The appellant contends that the learned Magistrate sentenced the appellant on the basis that he caused bodily harm to the aggrieved despite the prosecution having discontinued a charge of assault prior to the entry of the plea of guilty to the contravention of a domestic violence order. The appellant contends that the learned Magistrate ought to have made factual findings as to the defences of provocation, self-defence and maintaining good order and discipline in a vehicle or prevention of repetition of insult or consent to fight.
- It is argued that whilst a Magistrate ought to take into account aggravating circumstances of a breach of a protection order that otherwise would be elements of other offences, the corollary of that must be to exclude circumstances that otherwise would ground (or at least go a substantial way to grounding) defences to those other offences or the sentencing process would be “to adopt an unnecessarily artificial view of matters which affected the weighing of all relevant factors in the exercise of the sentencing discretion”.
- It is further contended that it was an error for the learned Magistrate to take into account the severity of the injuries suffered by the aggrieved as it was not submitted by the prosecutor that they were severe and that in any event no inference could be drawn from the poor quality photographs tendered as to the severity of the injuries. The appellant’s injuries, it is contended, were ignored.
- The appellant also argues that the learned Magistrate failed to take into account the circumstances of the earlier conviction for a domestic violence offence. It is argued that the learned Magistrate gave the appellant’s antecedents little weight. As a conviction was recorded, it is argued that the effect of that on the appellant’s business was given insufficient weight. It is also argued that the learned Magistrate failed to identify why there was a need for specific deterrence in his reasons.
The respondent’s position
- The respondent concedes that there were compelling mitigating features which were disregarded by the learned Magistrate. Those features related to the circumstances in which the offence was committed, being a highly emotional atmosphere.
- The respondent submits that the bare facts of the breach as presented by the prosecutor were “marvellously economical” and afforded an insufficient basis upon which a sentence of imprisonment could be imposed. He submits that both the appellant’s counsel and the prosecutor were “cautious and cagey” in circumventing the presentation of any detail or particular of just how the aggrieved’s injuries were sustained so that what was left was “vague, ambiguous and lacking in meaningful content”.
- It is further submitted that the absence of precision or guidance as to the way the aggrieved’s injuries were sustained and the refusal by either party to fill the factual void, left the court with no basis upon which to draw reasonable inferences and no basis upon which to pass sentence.
- In the decision of R v RBE Burns J (with whom Morrison JA and McMurdo JA agreed) said as to sentencing hearings, that the essential character of them is accusatorial and that where some aspect of what is submitted by way of allegation is disputed by the offender, it is for the prosecution to prove all matters of fact on which it relies that are adverse to the interests of the offender.
- The parties at sentence adopted the unhelpful expression “physical interaction” to explain what took place inside the car. That was due to the appellant disputing any suggestion that he assaulted the aggrieved in the car. It seems to me that the parties wanted to avoid the necessity for the learned Magistrate to make any findings about what occurred inside the car so adopted this unhelpful expression to explain matters. It served only to create ambiguity.
- If the appellant was to be sentenced on the basis that he assaulted the complainant in the car that would impact upon the nature and severity of the sentence that would be imposed. As it was disputed that the appellant assaulted the complainant, it was necessary for the prosecution to prove the matters of fact upon which it relied. The prosecutor disavowed proving such facts when he stated that he did not intend to particularise the mechanism by which the aggrieved’s injuries were sustained.
- At the time of sentence reliance was placed on the decision of Judge Richards in Commissioner of Police v RTC to suggest that the learned Magistrate could take into account that the aggrieved sustained injuries inside the vehicle at the appellant’s hand as being part of the narrative of the act of domestic violence constituting the contravention of the domestic violence order. However, the appellant made clear through his counsel that he did not accept that he had assaulted the aggrieved in the car but rather was submitting that she assaulted him and caused him injury.
- Domestic violence is defined in the legislation as meaning behaviour by one person towards another with whom they are in a relevant relationship that:
- (a)is physically or sexually abusive; or
- (b)is emotionally or psychologically abusive; or
- (c)is economically abusive; or
- (d)is threatening; or
- (e)is coercive; or
- (f)in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.
- Domestic violence is further stated to include, relevantly here, behaviour that causes personal injury to a person.
- It can be seen that the offence of contravening a domestic violence order can include a wide variety of conduct from contravening a condition to not contact an aggrieved to and including, physically abusive behaviour that causes personal injury. A Magistrate sentencing for this offence would be entitled to have regard to the violence used by the offender and the injuries sustained by the aggrieved in sentencing if those facts were proved or admitted to be what constituted the contravention.
- Where an allegation of fact is admitted or not challenged, the learned Magistrate may act on that allegation of fact (although they are not obliged to) however where the allegation of fact is not admitted or is challenged the learned Magistrate may act on the allegation if satisfied on the balance of probabilities that it is true. The degree of satisfaction required varies according to the consequences adverse to the person being sentenced, of finding the allegation to be true.
- In GAS v The Queen; SJK v The Queen the High Court said:
“… it is for the sentencing judge, alone, to decide the sentence to be imposed. For that purpose, the judge must find the relevant facts. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge’s capacity to find potentially relevant facts in a given case.…
… there may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge’s capacity to find facts will be effected by the evidence and the admissions” (footnotes omitted)
- In the circumstances of this case the prosecutor specifically indicated that he did not intend to make any submissions as to the mechanism by which the aggrieved’s injuries were sustained. By his comment I take that he was not intending to prove that the aggreived’s injuries were caused by physically abusive behaviour on the part of the appellant. My finding in that regard is confirmed by the fact that the prosecutor did not dispute defence counsel’s summary of what was recorded as having occurred in the car.
- There was, as such, no relevance to the tender of the photographs of the aggreived’s injuries. In circumstances where the prosecutor did not intend to prove that the injuries were caused by physically abusive behaviour on the part of the appellant towards the aggrieved he ought not have tendered them or at least objection should have been taken to their tender.
- The tender of the photographs clearly left the learned Magistrate with a sense that he was being asked to sentence on an artificially restricted basis however that was because of the way in which the parties agreed to characterise whatever it was that occurred in the car by the unhelpful expression of “a physical interaction”.
- It is clear to me that the prosecutor did not submit, or seek to prove, that the appellant’s contravention of the order involved his engaging in physically abusive behaviour towards the aggrieved which caused her physical injury. The learned Magistrate has therefore taken into account an irrelevant matter in determining the appropriate sentence and has erred in the way described in House v The King.
- Whilst it may appear that I too am re-sentencing on an artificially restricted basis that is the consequence of the prosecutor failing to prove to the requisite standard that the contravention of the domestic violence order was constituted by the appellant behaving in a physically violent way towards the aggrieved, causing injury.
- It is necessary for the purposes of the sentence to articulate the basis upon which the appellant ought to be sentenced. The contravention of the order is only constituted by the appellant having contact with the aggrieved and being in her company in the circumstances set out at paragraph  of this judgment.
- It is common ground between the parties that a fine or a community based order is the appropriate penalty. I have been referred to SH v Queensland Police Service where a fine of $750 was imposed; RMR v Sinclair where two years probation was ordered; EAV v Commissioner of Police where 18 months probation and 100 hours of community service were ordered; and RAS v Commissioner of Police where a $1200 fine was imposed.
- The appellant runs his own business in which he employs a number of staff. It seems unlikely to me that he would be in a position to complete unpaid community service in the community. His relationship with the aggrieved is at an end and he has resumed his relationship with his wife. That is said to be a protective factor. There is no suggestion that relationship has involved domestic violence. It is unnecessary in those circumstances for the appellant to be supervised in the community. Whilst the appellant has pleaded guilty to an aggravated offence of contravening a domestic violence order, his previous conviction is not for a contravention of a domestic violence order but rather for an offence of wilful damage. The aggrieved was not the complainant in that matter although the offence has been recorded as a domestic violence offence. Given the circumstances in which this offence was committed, involving as it did a highly emotional event for both parties, I consider that a fine of $500 to be appropriate.
- Submissions have been made as to the recording of a conviction. The respondent concedes that a conviction should not be recorded. The appellant’s business has undertaken work in State schools. He is required to hold a Blue Card. Under the relevant legislation contravening a domestic violence order is not a disqualifying offence or a serious offence which automatically prohibits the appellant from holding a Blue Card. Matters which will impact upon a review of the appellant’s Blue Card include when the offence was committed; the nature of it and its relevance to the work of the appellant; and the penalty imposed. The appellant’s conviction for this offence is a disclosable court outcome for the purposes of that Act. In the period between the appellant’s conviction and his appeal hearing The Department of Justice and Attorney-General has withdrawn his Blue Card application. The appellant is not presently permitted to work in a regulated business, which includes schools.
- As indicated, in determining whether to issue a Blue Card, the penalty imposed, which includes whether a conviction is recorded, is relevant to such a consideration by the appropriate authorities. In that sense the recording of a conviction will have an impact on the appellant’s economic well-being. As much is demonstrated by the withdrawal of the appellant’s Blue Card application.
- The prospects of the appellant’s rehabilitation, given the now protective relationship he is in with his wife is furthered by his being able to continue to operate a successful business. The offence, whilst it is a serious one, has a background involving much emotional turmoil for both parties at the time of its commission. The need for public denunciation of this offence, which is the purpose to recording a conviction is not such that it needs to be achieved to the detriment of the appellant’s prospects of rehabilitation. The balance in my view, favours the non-recording of a conviction.
Appeal against costs order
- The appellant was initially charged with one count of assault occasioning bodily harm and one count of contravention of a domestic violence order (aggravated). The matter was listed for summary trial commencing 27 November 2020. On the morning of the trial the prosecutor discontinued the assault occasioning bodily harm charge. The appellant pleaded guilty to the contravention offence.
- The prosecutor applied for a costs order in respect of the cost of securing the attendance of one witness from Launceston (not the aggrieved) for the trial. The prosecutor made the following submissions which were not disputed: the brief of evidence was delivered four months earlier in July 2020; the prosecutor had engaged in discussions with appellant’s legal representative with a view to resolving the matter; to that end he had indicated a willingness to accept a plea of guilty to the single count of contravention of a domestic violence order; and he had indicated that it was necessary to produce a witness from Launceston for the trial; the prosecutor had sought the attitude of the appellant’s legal representative to calling that witness by telephone and that request was rejected.
- Defence counsel submitted that whilst the prosecutor had offered to call the witness by telephone they had not offered to call the witness by audio-visual link. It was important that the demeanour of the witness be observed by the learned Magistrate. That would be achieved if he/she were called audio-visual link.
- Defence counsel further submitted that on the morning of the hearing he supplied the prosecutor with a copy of the recording of the events that took place in the car. It was not unreasonable to wait until the morning of trial to do that because it was unclear whether the aggrieved would attend at court as she had not provided a formal statement to police, although she did provide a statement in a police notebook.
- The learned Magistrate considered that it was reasonable for the defence to have operated differently from the manner in which they did. He considered that the costs associated with the expense of producing the witness should be borne by the defendant. He made an order pursuant to section 157 of the Justices Act 1886 for the payment of $1,362.68 in costs.
- Neither party has established the jurisdiction of this court to entertain an appeal against a costs order. Whilst section 222(c) suggests that there is no jurisdiction as an order for costs is not a “fine, penalty, forfeiture or punishment”, in Smith v Ash the Court of Appeal held that section 222(c) should not be construed as prohibiting appeals to the District Court from a Magistrate’s costs order in those circumstances. I will therefore determine this matter on the basis that I have jurisdiction.
- The learned Magistrate’s discretion was a broad one. He was required to consider whether the costs were just and reasonable. The appellant could have entered his plea of guilty at a much earlier time than the morning of his summary trial. The prosecutor had given a clear indication that he would accept such a plea. He also gave a clear indication that costs would be incurred in arranging transport for a witness from Launceston for the trial. That the appellant decided to wait until the morning of trial to see if the aggrieved attended was a decision for him to take knowing that there were potential cost implications. He bargained on the aggrieved not attending for the trial. She did so attend. The consequences of his taking that course involved considerable unnecessary costs being incurred given the way in which the matter resolved. There was no disentitling conduct on the part of the prosecutor. Costs are not awarded by way of punishment. They are compensatory in that they are intended to indemnify the successful party against the expense to which the person has been put. The ordering of costs to cover the travel required for the witness was just and reasonable in the circumstances.
- There was no error in the exercise of the learned Magistrate’s discretion.
- My orders are:
- 1.The appeal is allowed.
- 2.Set aside the sentence imposed.
- 3.The appellant is convicted and fined $500.
- 4.A conviction is not recorded.
- 5.The appeal against the costs order is dismissed.
  QDC 376
  QDC 376 at 
 Justices Act 1886 s 223.
 Robinson Helicopter Co Inc v McDermott (2016) 90 QLJR 679, 686 at .
 Allesch v Maunz (2000) 203 CLR 172 at -.
 (1936) 55 CLR 499.
  QCA 146 at 
  QDC 376
 Section 8 Domestic and Family Violence Protection Act 2012
 R v RBE at 
 Section 132C Evidence Act 1977
 (2004) 217 CLR 198 at 211
 (1936) 55 CLR 499
  QDC 247 (a decision of Clare SC DCJ)
  QDC 204 (a decision of Devereaux SC DCJ, as he then was)
  QDC 237 ( a decision of Dearden DCJ)
  QDC 366 (a decision of Dearden DCJ)
 Working with Children (Risk Management and Screening) Act 2000
 See sections 221, 226 and 294
  2 Qd R 175
- Published Case Name:
RMP v Buley
- Shortened Case Name:
RMP v Buley
 QDC 228
Loury QC DCJ
17 Sep 2021