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LPN v Queensland Police Service[2021] QDC 276

LPN v Queensland Police Service[2021] QDC 276

DISTRICT COURT OF QUEENSLAND

CITATION:

LPN v Queensland Police Service [2021] QDC 276

PARTIES:

LPN

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO:

Appeal No 7 of 2021

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Mt Isa

DELIVERED ON:

22 October 2021

DELIVERED AT:

Mt Isa

HEARING DATE:

19 October 2021

JUDGE:

Morzone QC DCJ

ORDER:

  1. Appeal allowed.
  2. The sentence and orders made by the Magistrates Court on 22 July 2021 are set aside and in lieu:
    1. (a)
      For charge 1 - Contravention of a domestic violence order (aggravated offence) on 15/06/2021, a conviction is recorded but not further punished.
    2. (b)
      For charge 2 - Contravention of a domestic violence order (aggravated offence) on 27/06/2021, a conviction is recorded but not further punished.
  1. The Domestic Violence Order made on 12 April 2021 in the Magistrates Court in Mt Isa is varied in terms of the draft order initialled by the judge and placed on the file.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – review appeal pursuant to s 222 Justices Act 1886 – contravention of domestic violence order aggravated offence – account of pre-sentence custody – effect of partially suspended sentence – effect of automatic parole cancellation – effect of existing sentence – totality principle and related statutory consideration – regard to proposed sentence and current sentence for period of imprisonment – whether sentence manifestly excessive – resentence – variation of protection order.

LEGISLATION:

Bail Act 1980 (Qld) s 16(3)

Corrective Services Act 2006 (Qld) s 209

District Court of Queensland Act 1976 (Qld), s .113

Justices Act 1886 (Qld) ss 222, 223(1), 225 & 227

CASES:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170.

Allesch v Maunz (2000) 203 CLR 172.

Dwyer v Calco Timbers (2008) 234 CLR 124.

Forrest v Commissioner of Police [2017] QCA 132.

Fox v Percy (2003) 214 CLR 118.

Gronow v Gronow (1979) 144 CLR at 519.

House v The King (1936) 55 CLR 499.

Kentwell v R (2014) 252 CLR 60.

Lovell v Lovell (1950) 81 CLR 513.

Lowe v The Queen (1984) 154 CLR 606.

McDonald v Queensland Police Service [2017] QCA 255.

Mill v The Queen [1988] 166 CLR 59.

Norbis v Norbis (1986) 161 CLR 513, 517-519

R v Lomass (1981) 5 A Crim R 230.

R v Margaritis; Ex parte Attorney-General (Qld) [2014] QCA 219.

R v McIntosh [1923] St R Qd 278.

R v Morse (1979) 23 SASR 98.

Teelow v Commissioner of Police [2009] QCA 84.

The Queen v Baker [2011] QCA 104.

The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 206.

The Queen v Crofts [1999] 1 Qd R 386.

The Queen v Kendrick [2015] QCA 27.

Veen v The Queen (No. 2) (1988) 164 CLR 465.

Warren v Coombes (1979) 142 CLR 531.

White v Commissioner of Police [2014] QCA 121.

COUNSEL:

T Lawrence for the respondent

SOLICITORS:

Aboriginal & Torres Strait Islander Legal Service (Mt Isa) for the appellant

The Office of Director of Public Prosecutions for the respondent

Summary

  1. [1]
    On 22 July 2021, the appellant was convicted on his own plea of guilty in the Magistrates Court held in Mt Isa, of two offences of contravention of a domestic violence order (aggravated offence) and he was sentenced to concurrent sentences of 3 months imprisonment partly suspended after serving 25 days of declared pre-sentence custody, for an operational period of 9 months.
  2. [2]
    The learned magistrate further ordered that those sentences would be served cumulatively on the pre-existing sentence of about 10 months and 6 days, being the remainder of the unserved period of the suspended sentences imposed on 30 April 2020, which were fully activated on 1 June 2021 with an immediate release on parole.  By operation of law, that court ordered parole order was automatically cancelled by operation of s 209 of the Corrective Services Act 2006 (Qld) upon the imposition of the sentence of 22 July 2021.
  3. [3]
    The appellant appeals his sentence on the grounds that it is manifestly excessive because:
  1. The sentencing magistrate placed undue weight on the appellant’s criminal history.
  2. The sentencing discretion was infected by uncertainty as to how the parole board would act on the automatic cancellation of the appellant’s court ordered parole.
  3. The implications flowing from the automatic cancellation of the pre-existing court ordered parole subjected the appellant to significant inordinate parole delays in his release.
  1. [4]
    The appeal is opposed.  The respondent argues that the sentence in its terms and mode of service are within the permissible range for the whole of the offending.
  2. [5]
    On my review, I found that the learned magistrate gave undue weight to the appellant’s criminal history and allowed it to overwhelm considerations of totality.  The imposition of the partially suspended sentence triggered an automatic cancellation of the court ordered parole order so that the aggregated cumulative sentences resulted in an overall period of imprisonment of about 13 months, which is unjustly disproportionate to the gravity of the instant offence.   I respectfully consider that the sentence which was imposed did not sufficiently recognise the very minor nature of the offending which occurred as distinct from the appellant’s past criminal conduct.
  3. [6]
    In my respectful opinion, the sentence manifestly exceeded the permissible range having regard to the appellant’s youthful age of 19 years, cultural and disadvantaged background, the context, nature and seriousness of the instant offending, his relevant criminal history and the need for personal and general deterrence and denunciation in breaching orders. 
  4. [7]
    The appellant’s past violent offending in breach of the domestic violence order, especially being against the same complainant, is plainly relevant to the instant offences.  However, it was of a very different violent character and seriousness to the instant offending.  The instant offending was not marked by any verbal or physical threats or actual violence, or intoxication, or even preceded by any complaint, rather, the couple were merely passively walking together with a child albeit in breach of the no contact conditions in the protection order.  In that regard, it was uncontested that the appellant and the complainant were on a reconciliation pathway, having just taken advice about removing the no contact provisions conditioned on the appellant’s sobriety. 
  5. [8]
    Taken in its proper context, the appellant’s offending in this instance is uncharacteristic of his past dangerously violent propensity which is gleaned from his antecedent criminal conduct.  Nevertheless, this offending like his criminal history, does bear out his continuing attitude of indifference in disobedience of the orders.  In that regard, certainty in sentencing, denunciation, personal and general deterrence and protection of the complainant and the community, all indicate that a more severe penalty and a condign punishment is warranted to deter the appellant from committing further contravention offences of a like kind.  But in doing so, the court must still be cognisant of the appellant’s 25 days served in presentence custody, that a sentence of actual imprisonment will automatically trigger parole cancelation, and that he will likely endure extended incarceration due to the inordinate delays of the parole authority.
  6. [9]
    In my respectful opinion, the proper balancing of these competing considerations support the imposition of concurrent sentences for each offence of 1 month imprisonment wholly suspended and cumulative on his current sentence, as being just and appropriate.
  7. [10]
    However, the appellant has now served 25 days of pre-sentence custody, he has languished in prison for a further 3 months since his sentence, and faces a likely delay in the consideration of his parole eligibility.  In my respectful opinion, having regard to these unusually harsh and unjust circumstances it is warranted that the sentence ought be set aside, and in lieu the appellant ought not be punished for the instant offences
  8. [11]
    Accordingly, on 22 October 2021, I allowed the appeal, set aside the sentence and orders of the Magistrates Court made on 22 July 2021, and instead I substituted my order that convictions will be recorded for each separate charge of contravention of a domestic violence order, but the appellant is not further punished.  I also heard from the parties about the currency of the protection order.
  9. [12]
    These are my detailed reasons.

Appeal

  1. [13]
    The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).  Pursuant to section 223 of the appeal is by way of rehearing on the original evidence. 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.  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.[1]  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.[2]
  1. [14]
    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,”[3] and thereby resulted in a manifestly excessive sentence.
  2. [15]
    This court ought not interfere with a sentence unless it is manifestly excessive, that is, “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”.[4] 
  3. [16]
    Even if the appellate court finds that the sentence was at the extreme end of a permissible range, or has a different opinion about the way in which the discretion should be exercised, these are not sufficient justifications for review; it must be shown that the discretion miscarried resulting in a manifestly excessive sentence.[5]  In that context, it may be vitiated by an error of principle, where there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.[6]
  4. [17]
    The decisions of House v The King[7] and Kentwell v R[8] 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.

Sentence Proceedings

  1. [18]
    The appellant pleaded guilty to two charges of contravention of a domestic violence order (aggravated offence), which he committed on 15 and 27 June 2021, respectively.
  2. [19]
    The appellant was 19 years old at the time of offences.  He had just turned 20 years old at the time of his sentence, and he is still 20 years old.  He was in an intimate personal relationship with the complainant with whom he has one child.
  3. [20]
    The sentence proceeded on an agreed statement of facts, backgrounded by the appellant’s criminal history, and contraventions of the domestic violence protection order.
  4. [21]
    He reoffended while subject of a court ordered parole order which was imposed as a result of an activation on 1 June 2021 of his suspended sentence of about 10 months and 6 days, being the unserved period imposed on 30 April 2020, with an immediate release on parole on 1 June 2021. The appellant was subject of a domestic violence protection order that was made on 12 April 2021, which prohibited him from contacting or attempting to contact or asking someone else to contact the aggrieved, and prohibited him from following or approaching the aggrieved when the aggrieved is at any place.
  5. [22]
    On 15 June 2021, 15 days after his release, police saw the appellant and complainant walking with a child on a street in Mount Isa (charge 1).  The complainant ducked behind a parked car to avoid police seeing them together.  Police stopped and spoke with them and confirmed the no contact condition of the protection order.  When questioned as to why the appellant and complainant were together, they both stated they had just attended DV Connect about varying the protection order.
  6. [23]
    The appellant was arrested and taken to the Mount Isa watchhouse.  He was co-operative and compliant with police.  He was released on bail to appear in court on 21 June 2021. On that day be his bail was enlarged on his own undertaking.
  7. [24]
    Seven days later on 27 June 2021, the appellant and the complainant were again seen by police walking with their child on another street in Mount Isa (charge 2).  As police approached them, the appellant began walking in the opposite direction and then ran from police. When police caught up with him, he explained that the complainant had approached him at his residence and they were looking for cigarette butts.  The complainant separately told police that she was trying to have the no contact conditions changed to allow contact with the appellant when sober.  She said that with the assistance of DV Connect, she had lodged a variation application. She told police that she would be protected by the remaining conditions if she was able to have contact with the appellant.
  8. [25]
    The cooperative appellant was again arrested and transported to the Mount Isa watchhouse, but he was refused bail.  Despite applying for bail at the next court date on 28 June 2021, the application was refused because he did not show cause why his remand in custody was unjustified pursuant to s 16(3) Bail Act 1980 (Qld).
  9. [26]
    The prosecutor relied upon the appellant’s relevant criminal history, highlighting the past offending against the same complainant comprising domestic violence offences and contraventions of the domestic violence order including the no contact condition.  However, the prosecutor accepted that the current offending in breach of the no contact provision did not involve physical violence, but it was reoffending while the appellant was subject to a court ordered parole order in relation to a sentence that expires on 16 April 2022.  The prosecutor relied upon on a comparative case of PFM v Queensland Police Service [2017] QDC 210 to contend for a sentence of 3 months for each offence to be served cumulatively on the existing sentence with a parole eligibility date.
  10. [27]
    The appellant’s solicitor highlighted the appellant’s antecedents.  The appellant is a young man, aged 19 at the time of the offending and 20 years old at sentence.  He has one child with the complainant.  His mother died when he was six years old and his father was gaoled for life having been convicted of murder.  Consequently, the appellant was grown up with other family members where he was exposed to domestic and family violence.  He then came under the care of Child Safety and lived in a boys home in Mount Isa.  His plea of guilty is early.  The solicitor also referred to the ‘current delays in the Parole Board assessing applications and that the appellant is ‘a real risk…serving if not all, then most of the period of his current parole.’  The appellant’s representative conceded that: “He does have a relevant criminal history with serious entries of domestic violence. The current offending is, of course, domestic violence offending in breach of the current order and it is against the same aggrieved and he was on parole at the time of the offending.”  However, he emphasised that the appellant’s ‘history cannot overwhelm the sentencing process today’ whilst continuing to highlight the ‘current delays in the Parole Board.’  He contended for a wholly suspended sentence.
  11. [28]
    During the course of her sentencing reasons, the learned magistrate highlighted the factual basis, and nature and seriousness of the offending while on parole against a relevant and persistent criminal history involving domestic violence.  Her Honour acknowledged the ‘prejudicial effect’ of the appellant’s ‘early childhood trauma, his early plea of guilty and his youth.  It was noted that a sentence of imprisonment is of last resort and that consideration must be given to the prospects of rehabilitation.  Her Honour highlighted the need for personal deterrence and to remind the appellant that he must comply with Court orders.  In this regard her Honour remarked about the appellant’s history of breaching the protection orders, his reoffending 15 days after being released on court ordered parole, and his continued contact with the complainant in breach of the order in place to protect her.  Her Honour remarked that the appellant’s criminal history, whilst accepting that it cannot overwhelm the sentencing process, can be used to assess the prospects of rehabilitation.  Her Honour took account of the steps taken by the appellant to obtain referrals for domestic violence counselling and the impact that could make on the Parole Board.  It was also anticipated that the imposition of a sentence would result in the appellant’s ‘current Court ordered parole release date [being] cancelled or may be cancelled.’
  12. [29]
    For the two offences of Contravention of a domestic violence order (aggravated offence), the learned magistrate imposed concurrent sentences of 3 months partly suspended after serving 25 days of declared pre-sentence custody, for an operational period of 9 months.  Her Honour further ordered that the sentences will be served cumulatively on the pre-existing sentence of about 10 months and 6 days being the remainder of the unserved period of the fully activated suspended sentences.

Criminal History

  1. [30]
    It is trite law that the appellant’s criminal history is a relevant matter for the proper exercise of the sentencing discretion.  In particular, since the offences were ones involving violence within the meaning of s 9(2A) of the Penalties and Sentences Act 1992 (Qld), the learned magistrate was required to have regard to the matters set out in s 9(3).  In particular, s 9(3)(g) required the court to have regard to “the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed”.  Further, s 9(10) provides:

“In determining the appropriate sentence for an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to –

  1. (a)
    the nature of the previous conviction and its relevance to the current offence;
  1. (b)
    the time that has elapsed since the conviction.
  1. [31]
    Subsection (11) provides:

“Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence.”

  1. [32]
    Clearly enough, the provisions reflect the common law as it stood and proclaimed in Veen v The Queen (No. 2)[9] as follows:

“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences; Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.  Applied by Cooper J (with whom Kneipp and Shepherdson JJ agreed) in R v Aston [No 2] [1991] 1 Qd R 375.”

  1. [33]
    The appellant has an extensive criminal history with prior like and relevant convictions.  He has committed six contraventions of a domestic violence order, five of those being aggravated, and all contraventions were committed against the same complainant subject to the appeal.  Relevant domestic violent offending against the same complainant include:
  1. (a)
    Deprivation of liberty (domestic violence offence) on 22 February 2020, where he was sentenced to 12 months imprisonment, suspended after serving 55 days, for an operational period of two years.
  2. (b)
    Common assault (domestic violence offence) on a date unknown between 22 February and 25 February 2020, where he was sentenced to three months imprisonment, suspended after serving 55 days, for an operational period of two years.
  3. (c)
    2 x Assault occasioning bodily harm (domestic violence offence) on a date unknown between 22 February and 25 February 2020, where he was sentenced to nine months imprisonment, suspended after serving 55 days, for an operational period of two years.
  4. (d)
    Assault occasioning bodily harm (domestic violence offence) on 18 June 2020, where he was sentenced to 191 days imprisonment, to be immediately released on parole in conjunction with the fully invoked suspended sentence.
  1. [34]
    During the course of the submissions of the appellant’s representative, the learned magistrate expressed her concern about the appellant’s criminal history, saying that:

“Yes but it’s concentrated. … And the problem is the court has tried a number of different avenues to try and bring home to Mr Neal the seriousness of his conduct. It seems that the court has offered him probation, has sentenced him to terms of imprisonment, has suspended those terms of imprisonment…has released him on parole at an early time on court-ordered parole, all of which was designed to give him an opportunity for supervision or rehabilitation, and it seems that those sorts of diversion are generally to try and bring home to a defendant the seriousness of their conduct and yet, despite that, he’s back …”

“It just seems that Mr Neal is showing a callous disregard for the order.”

  1. [35]
    This is consistent with the learned magistrate’s sentencing remarks as follows:

“I have had regard to the circumstances of the offending and what makes the offending more serious, Mr Neal, is that you have a history of breaching the orders of the court. You have been offered probation. You have been offered suspended sentences. And, in fact, at the time of these offences, you had been released on court ordered parole only 15 days before the first offence occurred. That parole was because of breaching domestic violence orders because of acts of violence and yet even knowing that you had an opportunity to serve a term of imprisonment in the community, that you had an order that required that you have no contact with (the aggrieved), you continued to have contact with her.

She has been your intimate personal partner and the victims of your violence on a number of occasions. Your criminal history is one part of a sentencing process. It cannot overwhelm it but it can inform it. It can assist me to give consideration to whether you have prospects of rehabilitation.”

  1. [36]
    In my respectful opinion, it seems to me that her Honour allowed this characterisation of the appellant’s past offending and past attempts of correction as indicia of prospects of rehabilitation, to overwhelm considerations of the very minor nature of the offending, as well as considerations of totality.
  2. [37]
    The appellant’s past violent offending in breach of the domestic violence order, especially being against the same complainant, is plainly relevant to the instant offences.  But it was of a very different violent character and seriousness to the instant offending.  The instant offending was not marked by any verbal or physical threats or actual violence, or intoxication, or even preceded by any complaint, rather, the couple were merely passively walking together with their child albeit in breach of the no contact conditions in the protection order.  In that regard, it was uncontested that the appellant and the complainant were on a reconciliation pathway having just taken advice about removing the no contact provisions conditioned on the appellant’s sobriety.  Taken in its proper context, the appellant’s instant offending is uncharacteristic of his past dangerously violent propensity gleaned from his antecedent criminal conduct. 
  3. [38]
    Nevertheless, this offending like his criminal history does bear out his continuing attitude of indifference in disobedience of the orders.  In that regard, certainty in sentencing, denunciation, personal and general deterrence and protection of the complainant and the community, all indicate that a more severe penalty and a condign punishment is warranted to deter the appellant from committing further contravention offences of a like kind.  But in doing so, the court must still be cognisant of considerations of totality.
  4. [39]
    In Mill v The Queen,[10] the High Court referred with approval to the passage in Thomas, Principles of Sentencing 2nd Edition, page 56 to 57:

“The effect of the totality principle is to require a sentencer who has passed a series of offences, each properly calculated in relation to the offence for which it is imposed, and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and to consider whether the aggregate is, 'just and appropriate.'  The principle has been stated many times in various forms. 'When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the Court to take a last look at the total, just to see where it looks wrong.'; when cases of multiplicity of offences have come before the Court, the Court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces.  It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences?”

  1. [40]
    In The Queen v Crofts[11], the Court of Appeal said:

“Of course sentences of imprisonment for a number of offences often ought to reflect that the offences were not committed in isolation. This is commonly referred to as the totality principle. The totality principle requires a Judge who is sentencing an offender for a number of offences, to ensure the aggregation of sentences of imprisonment is a just and appropriate measure for the total criminality involved. When an appropriate sentence imposed for the most serious offence is adequate to punish the total criminality involved other sentences are made concurrent. When the sentence for the most serious offence is inadequate for that purpose, and cumulative sentences are imposed for one or more other offences, lower sentences than would otherwise be called for, can be imposed to achieve a suitable total punishment over all.”

  1. [41]
    The ambit of the totality principle has been has been extended as explained in The Queen v Beattie, ex parte Attorney-General (Qld)[12] by Philip McMurdo J (as he then was) as follows:

“The principle has also been extended in the sentencing of an offender who is then serving an existing sentence. In such a case, ‘the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable’.”

  1. [42]
    In The Queen v Kendrick,[13] Morrison JA (with whom Fraser JA and Henry J agreed) provided a superb analysis of the relevant authorities.[14]  I don’t propose to repeat all that was said by His Honour, with which I, of course, agree.  At paragraph [56], His Honour distilled the approach as follows:

“The preferable approach, derived from Mill and Johnson, is that a sentence is fixed for each offence, then aggregated before taking the next step of determining concurrency or accumulation, and to consider what is an appropriate non-parole period.  However, Johnson recognised that it was not an immutable practice.”[15]

  1. [43]
    When sentences are required to be served cumulatively, as was ordered here, consideration of the aggregate of current sentences and the sentence to be imposed is a necessary precursor to the application of the totality principle to ensure there is an appropriate relativity between the whole criminality and the length of the sentences imposed.  In R v Margaritis; Ex parte Attorney-General (Qld),[16] Muir JA explained:

“[12] The application of the totality principle does not require that there must invariably be some reduction in the accumulation of otherwise appropriate sentences to avoid the so called “crushing” effect.  The appropriate course is to arrive at an appropriate sentence and then assess the cumulative effect to gauge whether the overall sentence is disproportionate to the offender’s criminality.”

  1. [44]
    It is common ground that the defendant committed the subject offending while released on parole.  The imposition of the partially suspended concurrent sentences of 3 months triggered the automatic cancellation of the court ordered parole order by operation of s 209 of the Corrective Services Act 2006 (Qld).  This rendered the appellant liable to serve out 10 months and 6 days being the unserved period of the suspended sentences imposed on 30 April 2020, which was fully activated on 1 June 2021.  Therefore, the effective period of imprisonment started from the appellant’s return to imprisonment on 7 June 2021.
  2. [45]
    The learned magistrate ordered that the concurrent terms of 3 months imprisonment for the instant offending would be served cumulatively with that unserved portion of the previous sentence of imprisonment of 10 months and 6 days.  The cumulative order resulted in the aggregate effective overall sentence of 13 months.  The absence of any appreciable moderation of the instant sentence, and absence of explicit consideration of the aggregate sentence in order to determine whether a total sentence is just and appropriate bespeaks an error in the exercise of the sentencing discretion.[17]   Further, in my respectful opinion, the effective sentence is too harsh and unjust, and not a just and appropriate measure for the total criminality involved, and thereby outside the permissible range.
  3. [46]
    In my respectful opinion, the proper balancing of the relevant competing considerations indicate concurrent sentences for each offence of 1 month imprisonment wholly suspended and cumulative on his current sentence, would be just and appropriate in all the circumstances.[18] 

Resentence

  1. [47]
    Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion, including having regard to the appellant’s current circumstances.
  2. [48]
    The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act 1992 (Qld) is to punish an offender to an extent or in a way that is just in all of the circumstances, facilitates avenues of rehabilitation, deters the offender and others from committing a similar offence, makes it clear that the community denounces the conduct in the offending and protects the community.  The relevant factors to which the court must have regard are in the subsequent subsections of section 9 of the Penalties and Sentences Act 1992 (Qld).
  3. [49]
    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 appellant.  The gravity of this offending can also be gleaned by the relative minimum and maximum penalties, with due regard to the factors of general and, as appropriate, personal deterrence.  I have already remarked about the context, nature and seriousness of the instant offending.  The appellant’s instant offending is comparatively minor and different to his antecedent criminal historyThere is a particular need for personal and general deterrence and denunciation in breaching orders.  The appellant is a 19 year old aboriginal man who has endured a disadvantaged childhood.  He has a child with and remains in a relationship with the complainant which is curtailed by the current terms of the protection order.  For this offending, in the absence of actual violence, it is relevant that imprisonment should only be imposed as a last resort and a sentence that allows the appellant to stay in the community is preferable. 
  4. [50]
    I have also highlighted the considerations of totality, including the aggregate of cumulative sentences and the appellant’s incarceration due to his sentence.  He has endured 4 months in actual custody as a consequence of his sentence below.  He served 25 days of pre-sentence custody by the time of sentence the appellant.  He has languished in prison for a further 3 months since his sentence pending this appeal.  He is likely to endure extended incarceration due to the inordinate delays of the parole authority.  It seems to me that the appellant has endured a greater sentence than is warranted or reasonable.
  5. [51]
    In my respectful opinion, taking into account the appellant’s presentence custody and the unusually harsh and unjust circumstances consequent on his sentence, the sentence and orders of the Magistrates Court will be set aside, and substituted with an order that that he be not further punishment for each of the instant offences.

Orders

  1. [52]
    In the disposal of the appeal this court has the same powers as the Court of Appeal on an appeal.[19]  Subsections 225(1) and (3) Justices Act 1886 (Qld) empower this court to confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just by exercising the same powers of the Magistrates Court.
  2. [53]
    On 22 October 2021 I allowed the appeal, set aside the sentence and orders of the Magistrates Court made on 22 July 2021, and instead in substituted my order that convictions will be recorded for each separate charge of contravention of a domestic violence order, but the appellant is not further punished.  The appellant is entitled to immediate release to parole subject to the order made on 1 June 2021.
  3. [54]
    I also heard further from the parties about any matters relevant to the Domestic Violence Order made on 12 April 2021 in the Magistrates Court in Mt Isa.  Both the appellant and the complainant were present that the hearing.  I found that a varied protection order for the protection of the complainant, and naming the child, was necessary and desirable.   Accordingly, I made orders in terms which removed the prohibited contact provision, and instead allowed the reunification of the appellant with is partner and family subject to demonstrated sobriety upon police testing. 

Judge DP Morzone QC

Footnotes

[1]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 [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255, [47].

[2]White v Commissioner of Police [2014] QCA 121, [5]-[8]; Forrest v Commissioner of Police [2017] QCA 132, 5 & 6; McDonald v Queensland Police Service [2017] QCA 255, [47].

[3]Allesch v Maunz (2000) 203 CLR 172, [22] – [23] followed in Teelow v Commissioner of Police [2009] QCA 84, [4]; White v Commissioner of Police [2014] QCA 121, [8], McDonald v Queensland Police Service [2017] QCA 255, [47]; contrast Forrest v Commissioner of Police [2017] QCA 132, 5.

[4]R v Morse (1979) 23 SASR 98; R v Lomass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v The Queen (1984) 154 CLR 606.

[5]Lovell v Lovell (1950) 81 CLR 513 at 519 per Latham CJ, 533-534 per Kitto J; see also Gronow v Gronow (1979) 144 CLR at 519, 525, 534 and 537.

[6]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

[7]House v The King (1936) 55 CLR 499, 504 and 505.

[8]Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111, [130] per Hayne J (minority).

[9]Veen v The Queen (No. 2) (1988) 164 CLR 465 at [14].

[10]Mill v The Queen [1988] 166 CLR 59.

[11]The Queen v Crofts [1999] 1 Qd R 386 at 387.

[12]The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 2006 at [19].

[13]The Queen v Kendrick [2015] QCA 27.

[14]The Queen v Kendrick [2015] QCA 27 at [31]-[41].

[15]See for example, R v Coleman [2015] QCA 176 Ann Lyons J (with whom Fraser JA and Gotterson JA agreed) had regard to the whole of the existing sentence (not just the remainder) and the cumulative sentence.

[16]R v Margaritis; Ex parte Attorney-General (Qld) [2014] QCA 219, per Muir JA (PD McMurdo J and P Lyons J agreed).

[17]The Queen v Baker [2011] QCA 104 at [47] Atkinson J (with whom the President and Lyons J agreed), affirmed by The Queen v Kendrick [2015] QCA 27 at [54].

[18]Cf. PFM v Queensland Police Service [2017] QDC 210.

[19]District Court of Queensland Act 1976 (Qld) s 113.

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Editorial Notes

  • Published Case Name:

    LPN v Queensland Police Service

  • Shortened Case Name:

    LPN v Queensland Police Service

  • MNC:

    [2021] QDC 276

  • Court:

    QDC

  • Judge(s):

    Morzone QC DCJ

  • Date:

    22 Oct 2021

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