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HFC v Commissioner of Police (Queensland)[2022] QDC 139

HFC v Commissioner of Police (Queensland)[2022] QDC 139

DISTRICT COURT OF QUEENSLAND

CITATION:

HFC v Commissioner of Police (Queensland) [2022] QDC 139

PARTIES:

HFC

(appellant)

v

COMMISSIONER OF POLICE (QUEENSLAND)

(respondent)

FILE NO:

2195/21

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

21 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2022

JUDGE:

Farr SC DCJ

ORDER:

The application for an extension of time to file the notice of appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL – PROCEDURE – POWER TO BRING APPEAL – POWERS OF COURT ON APPEAL – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the appellant’s notice of appeal was filed late – where the respondent opposes the extension of time sought – whether there is an good reason for delay – whether it is in the interests of justice to grant the extension sought

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – whether the learned Acting Magistrate erred by considering the circumstance of aggravation that the appellant had been previously convicted of a domestic violence offence within five years before the commission of the subject offence – whether the sentence imposed of two months’ imprisonment suspended immediately with an operational period of eight months was outside the appropriate range when compared with the sentences imposed in other similar matters

LEGISLATION:

Criminal Law Amendment Act 2014 (Qld) s 58

Domestic Violence and Family Protection Act 2002 (Qld) ss 177(1), 177(2)(a), 177(2)(b)

Justices Act 1886 (Qld) ss 47, 222(1), 222 (2)(c), 224(1)(a)

Penalties and Sentences Act 1992 (Qld) s 9(2)(b)

CASES:

Constable S J Miers v Blewitt [2013] QCA 23

CTC v Commissioner of Police [2019] QDC 250

EAV v Commissioner of Police [2016] QDC 237

ETB v Commissioner of Police [2018] QDC 26

JMM v Commissioner of Police [2018] QDC 130

MH v Queensland Police Service [2015] QDC 124

Miers v Blewett [2013] QCA 23; [2014] 1 Qd R 318

NEG v Commissioner of Police [2017] QDC 302

R v Pham (2015) 256 CLR 550

R v Tait [1998] QCA 304

RAS v Commissioner of Police (No. 2) [2012] QDC 239

RMP v Buley [2021] QDC 228

The Queen v De Simoni(1981) 147 CLR 383

TND v Queensland Police Service [2014] QDC 154

APPEARANCES:

I A Munsie, instructed by Russo Lawyers for the Applicant

E V Duncan on Behalf of the Commissioner of Police instructed by the Office of the Director of Public Prosecution for the Respondent

Introduction

  1. [1]
    The appellant was convicted in the Brisbane Magistrates Court on 15 June 2021 of one charge of contravening a domestic violence order pursuant to s 177(2) (b) of the Domestic Violence and Family Protection Act 2002 (Qld) (the “DVFPA”).  He was sentenced to two months’ imprisonment suspended immediately with an operational period of eight months.
  2. [2]
    He now seeks to appeal against that sentence on the ground that it is excessive.  He also makes application for leave to appeal out of time, given that the notice of appeal was filed 38 days after the 28-day time period had elapsed.
  3. [3]
    The respondent has submitted that both the appeal and the application for the extension of time should be dismissed.

The facts

  1. [4]
    On 30 March 2021, a Temporary Protection Order was made naming the appellant as the respondent.  It included five conditions.  Relevantly Condition 3 stated: “The respondent is prohibited from remaining at; entering or attempting to enter; approaching to within 100 metres of the premises where the aggrieved lives.”
  2. [5]
    On 14 June 2021, at approximately 2.50 pm, the appellant engaged in a series of messages with the aggrieved.  At one point, the aggrieved sent a text to the appellant asking him to “PLEAE LEAVE (sic)” to the appellant to which he responded with “FUCKING NO, I AM GOING TO KILL MYSELF IF YOU MAKE ME GO YOU LOVE HOM (sic)” and “WHY THE FUCK CANR (sic) I COME IN”.
  3. [6]
    At 4.06 pm the aggrieved called triple zero stating that the appellant was knocking on her front door and was refusing to leave.
  4. [7]
    At 4.22 pm, police arrived at the aggrieved’s address and located the appellant sitting on the front patio of the apartment.  The police identified that the appellant was in breach of Condition 3 of the Temporary Protection Order.  The appellant was placed under arrest.
  5. [8]
    The appellant was charged that day and the matter proceeded to sentence in the Brisbane Magistrates Court the following day.

The arraignment

  1. [9]
    The appellant was arraigned on the simpliciter offence under s 177(2)(b) of the DFVPA rather than the aggravated offence under s 177(2)(a).[1]

The appellant’s antecedents

  1. [10]
    The appellant was 35 years old at the time of the offence and at sentence.
  2. [11]
    He has a criminal history that dates back to 2017.  He was convicted on 5 May 2017 of one charge of contravention of a domestic violence order and was fined $2,000 with no conviction recorded.  That offence involved the appellant:
    1. (i)
      yelling at the aggrieved to let him in a car;
    2. (ii)
      once in the car, involving himself in pushing and shoving by both parties; and
    3. (iii)
      reacting by punching the aggrieved in the face.
  3. [12]
    The aggrieved on that occasion was a different woman to the aggrieved for the subject offence.
  4. [13]
    He next appeared in the Brisbane Magistrates Court on 27 September 2017 where he was convicted of one charge of possession of a dangerous drug and was placed on a $300 four-month drug diversion recognisance with no conviction recorded.
  5. [14]
    He was next sentenced on 28 May 2021 in the Brisbane Magistrates Court for three charges of contravening a domestic violence order, one charge of possession of a dangerous drug and one charge of possession of utensils or pipes etc for use.  In relation to the contravention offences, the aggrieved is the same aggrieved person as in the subject charge.  One contravention was constituted by the appellant attending at the aggrieved’s address.  The second involved him again attending at her address and being verbally abusive towards her.  The third involved him telephoning her on several occasions.  These three offences occurred over a seven-week period of time.  For all offences he was ordered to undergo probation for a period of 18 months and no convictions were recorded.

Law with respect to extension of time

  1. [15]
    Pursuant to s 222(1) of the Justices Act 1886 (Qld), the time limit for filing a notice of appeal is 28 days.
  2. [16]
    A District Court Judge has the power to extend the time for filing a notice of appeal pursuant to s 224(1)(a) of the Justices Act 1886.
  3. [17]
    In R v Tait,[2] the Court of Appeal espoused two principles to be applied when determining whether an application to extend time for filing an appeal should be granted:
    1. (i)
      whether there is any good reason shown for the delay; and
    2. (ii)
      whether it is in the interests of justice to grant the extension.[3]
  4. [18]
    In determining whether it is in the interests of justice to grant the extension, there also must be a provisional assessment of the general merits of the appeal along with a consideration of prejudice to the respondent.

Standard to be met on appeal

  1. [19]
    Section 222(2)(c) of the Justices Act 1886 states:

“That if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.”

  1. [20]
    The term “excessive” is not defined in the Act and thus takes on its ordinary meaning.
  2. [21]
    The task of a court conducting an appeal by way of rehearing was described in R v Pham,[4] by French CJ, Keane and Nettle JJ as follows:

appellate intervention on the ground/grounds of manifest excess/excessiveness … is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.

  1. [22]
    Section 225(1) of the Justices Act 1886 states that the District Court “may confirm, set aside or vary the appealed order or make any other order in the matter that the judge considers just.”

Particulars of the ground of appeal

  1. [23]
    There are two bases for the appellant’s claim that the sentence was excessive:
    1. (i)
      that the learned Acting Magistrate erred by taking into account the circumstance of aggravation that the appellant had been previously convicted of a domestic violence offence within five years before the commission of the subject offence; and
    2. (ii)
      that alternatively, the sentence imposed was outside the appropriate range when compared with the sentences imposed in other similar matters.

The sentence submissions

  1. [24]
    The prosecutor in the Court below submitted that a suspended sentence should be imposed.  The appellant’s criminal history and a copy of the Temporary Protection Order were tendered by the prosecution.
  2. [25]
    The defendant’s solicitor submitted that a community-based order should be imposed which would in turn, enliven the discretion to not record a conviction.
  3. [26]
    In support of that outcome, the appellant submitted:
    1. (a)
      the appellant’s criminal history was aggravating because of the prior offences;
    2. (b)
      in mitigation, the threats made were to himself and not to the aggrieved; there was no violence and there was no attempt of entry to the house;
    3. (c)
      there was another person residing at the residence who the aggrieved was having difficulty evicting.  The appellant was contacted by the aggrieved in relation to this person and for that reason he attended at the house.  The appellant was confused about the mixed messages he received from the aggrieved given that she had asked him to help evict this person but also to not approach the front door;
    4. (d)
      it’s a breach by virtue of his contact with the aggrieved;
    5. (e)
      the antecedents were that the appellant was 35 years of age, had completed Grade 12 and went on to study data communications and software engineering.  In 2008/2009, he started an IT company called Connect Assist with two friends.  The majority share of the company was bought out in 2017, and the appellant remains a shareholder and receives dividends which are his income.  The company is selling the remaining $1.5 million worth of shares.  In terms of his share of the $1.5 million, he is under a morality clause and that a recorded conviction would have a severe impact on any settlement;
    6. (f)
      that he had engaged in probation.
  4. [27]
    In relation to the submission about the morality clause, the defendant’s solicitor noted that the submission was based on instructions and he was not able to tender any documents in support.[5]

The sentencing remarks of the Acting Magistrate

  1. [28]
    The Acting Magistrate took into account the following when sentencing:
    1. (a)
      it was an early plea of guilty;
    2. (b)
      the appellant cooperated whilst the charge was investigated;
    3. (c)
      the appellant used threatening language which amounted to intimidation;
    4. (d)
      the Temporary Protection Order was contravened in three ways;
    5. (e)
      the offence was committed whilst the appellant was subject to the probation order made on 28 May 2021;
    6. (f)
      the appellant had committed similar offences in 2017, whilst noting no convictions were recorded;
    7. (g)
      that he had taken submissions in respect of the recording of a conviction into account but that there was no material before the Court to substantiate those submissions; and
    8. (h)
      that a fine or a probation order with no convictions recorded would fail to act as an appropriate deterrent.

Re the application for leave to appeal out of time

  1. [29]
    The appellant has attempted to explain the delay in prosecuting the appeal, for the following reasons:
    1. (a)
      he was awaiting the provision of a statutory declaration from the aggrieved;[6]
    2. (b)
      he has an ongoing addiction to methylamphetamine;[7]
    3. (c)
      he suffers from depression and post-traumatic stress disorder;[8]
    4. (d)
      his mental health issues and drug addiction make it difficult for him to leave his home;[9]
    5. (e)
      at the time of the sentence he was involved with the sale of his share of company, which was time consuming[10]; and
    6. (f)
      he had a number of matters before the court which he was required to deal with.[11]

Reliance on circumstance of aggravation not alleged

  1. [30]
    The appellant’s principal argument is that the Acting Magistrate ought not to have relied on the appellant’s prior convictions for contravening domestic violence orders because such convictions constitute a circumstance of aggravation which ought to have been charged if the prosecution wished to rely on them.
  2. [31]
    The appellant was originally charged under s 177(2)(a) of the DFVPA which alleged that he within five years prior to the commission of the offence the subject of the current charge, had been previously convicted of a domestic violence offence.  That offence carried a maximum penalty of 240 penalty units or five years’ imprisonment.
  3. [32]
    However, for unknown reasons, the appellant was only arraigned and entered a plea of guilty with respect to the simpliciter offence[12] which carried a maximum penalty of 120 penalty units or three years’ imprisonment.
  4. [33]
    In The Queen v De Simoni,[13] the Court was concerned with an indictable offence committed in Western Australia.  That meant that s 582 of the Criminal Code (WA) had effect.  It contained the following provision:

If any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment.”

  1. [34]
    I note though, that Gibbs CJ recognised that at common law the principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge appears to have been recognised as early as the 18th century.[14]
  2. [35]
    Relevantly, his Honour said:[15]

“In the present case, whether s 582 be construed according to its own terms, or with the assistance provided by the common law, it has, in my opinion, the effect that a judge, in imposing sentence, may not have regard to a circumstance of aggravation which should have been charged in the indictment if it was intended that reliance should be placed upon it.  He may, of course, have regard to facts which might ordinarily be described as circumstances of aggravation, but which do not fall within the definition of that expression in the Code, because they do not render the offender liable to a greater punishment.”

  1. [36]
    Mason and Murphy JJ agreed with this statement of principle.
  2. [37]
    In relation to simple offences in Qld, s. 47 of the Justice Act 1886 (Qld) is somewhat analogous to s. 582 of the Criminal Code (WA).  With s. 47 of the Justice Act 1886 (Qld) in mind, the appellant has relied heavily on the similar case of Constable SJ Miers v Blewett,[16] where Fraser JA (with Holmes JA, as her Honour then was and Atkinson J agreeing) held that the requirement to give notice in s 47(5) of the Justices Act 1886 is enlivened where the existence of a past conviction itself renders a defendant liable to a greater penalty than he or she would otherwise be liable.  His Honour also held that where the prosecution fails to give a notice under s 47(5) in respect of convictions which render a defendant liable to greater penalty, the sentencing court is precluded from taking those convictions into account for any purpose.”
  1. [38]
    At the time of that decision, s 47(4) and (5) of the Justice Act 1886 (Qld) stated:

“(4) Unless otherwise expressly provided, if, for the purpose of the assessment of penalty in respect of a simple offence, it is intended to rely upon a circumstance which renders the defendant liable, upon conviction, to a greater penalty than that to which the defendant would otherwise have been liable, that circumstance shall be expressly stated in the complaint made in respect of that offence.

  1. (5)
    However, if the circumstance is that the defendant has been previously convicted of an offence, the alleged previous conviction must be stated in a notice served with the complaint.”
  1. [39]
    However, section 47 of the Justices Act 1886 (Qld) was amended by s 58 of the Criminal Law Amendment Act 2014 (Qld) by substantially changing sub-section (5), deleting the former sub-section (6) and adding sub-sections (7) and (8).  Section 47 now reads:

What is sufficient description of offence

  1. (1)
    The description of any offence in the words of the Act, order, by- law, regulation, or other instrument creating the offence, or in similar words, shall be sufficient in law.
  1. (2)
    Where a person is convicted of an offence by a magistrates court other than the Childrens Court and it is proved to the satisfaction of the court on oath or as prescribed by sub-section (3) that there has been served upon the defendant with the complaint or a reasonable time before the time appointed for the appearance of the defendant a notice specifying any alleged previous conviction of the defendant for an offence proposed to be brought to the notice of the court in the event of the defendant’s conviction for the offence charged and the defendant is not present in person before the court, the court may take account of any such previous conviction so specified as if the defendant had appeared and admitted it.
  1. (3)
    Any person who serves a notice specifying any alleged previous conviction of the defendant may serve, and document service of, the notice in the same way as is provided for the service and documenting of service of a notice to appear under the Police Powers and Responsibilities Act 2000.

Note —

For documenting service, see the Police Powers and Responsibilities Act 2000, s 389(2).

(3A) Without limiting s 56, a document of service of a notice under sub-section (3) is, on production to the court—

  1. (a)
    evidence of the matters contained in the documents; and
  1. (b)
    sufficient proof of the service of the notice on the defendant.
  1. (4)
    Unless otherwise expressly provided, if, for the purpose of the assessment of penalty in respect of a simple offence, it is intended to rely upon a circumstance which renders the defendant liable, upon conviction, to a greater penalty than that to which the defendant would otherwise have been liable, that circumstance shall be expressly stated in the complaint made in respect of that offence.
  1. (5)
    However, if the circumstance is that the defendant has been previously convicted of an offence, the alleged previous conviction must be stated in a notice—
  1. (a)
    served with the complaint; or
  1. (b)
    served before the day appointed for the defendant’s appearance; or
  1. (c)
    given to the defendant on the day appointed for the defendant’s appearance.
  1. (6)
    For sub-section (5)(c), if the notice of an alleged previous conviction is given to the defendant on the day appointed for the defendant’s appearance, the court may, if the court is satisfied it is in the interests of justice to do so, adjourn the hearing of the proceeding to allow the defendant to consider the notice.
  1. (7)
    Subject to sub-section (2), the circumstance that the defendant has been previously convicted of an offence may be relied on for the assessment of penalty for a simple offence whether or not a notice has been served or given under sub-section (5).
  1. (8)
    If a notice has not been served or given under sub-section (5), reliance on the circumstance that the defendant has been previously convicted of an offence does not render the defendant liable to a greater penalty than that to which the defendant would otherwise have been liable.
  1. (9)
    A complaint for an offence may state the offence is also a domestic violence offence.”
  1. [40]
    So, s 47(4) requires that if a circumstance, that renders a defendant liable upon conviction to a greater penalty than would otherwise apply, is intended to be relied upon, that circumstance shall be expressly stated in the complaint, unless otherwise expressly provided.
  2. [41]
    Section 47(5) is such an express exception, in that it requires a notice alleging such previous conviction to be served on the defendant.
  3. [42]
    Section 47(7) nevertheless allows a court to take a previous conviction that would constitute a circumstance of aggravation[17] into account for the assessment of penalty whether or not such a notice has been served or given.
  4. [43]
    But if no such notice has been served or given, then s 47(8) provides that the defendant would not be liable to a greater penalty than that to which the defendant would otherwise be liable.  In other words, the prior conviction does not, in such circumstances, increase the maximum penalty that applies.
  5. [44]
    It is quite clear that the effect of s 47(7) and (8) is that the learned Acting Magistrate in this matter, notwithstanding that no s 47(5) notice was served or given, was nevertheless entitled to take the appellant’s prior convictions for contravening domestic violence orders into account when assessing penalty.  However, such convictions did not result in an increase in the maximum penalty.
  6. [45]
    The amendments to s 47 have thus overcome the hurdle that was identified by Fraser JA in Constable S J Miers v Blewitt.
  7. [46]
    However, such a conclusion gives rise to a further issue, that being whether the learned Acting Magistrate approached sentence on the understanding that the maximum penalty was only three years’ imprisonment.[18]  No submissions on the subject were made from the bar table and no comment on the issue was made by the bench.
  8. [47]
    Pursuant to s 9(2)(b) of the Penalties and Sentences Act 1992 (Qld), the Acting Magistrate was required to have regard to the maximum penalty prescribed for the offence.  There is nothing in the record though to indicate if the Magistrate in fact did that.  In my view, the absence of clarification in relation to that issue is an oversight such that I cannot be satisfied that the learned acting Magistrate had the correct maximum penalty in mind when assessing penalty.  In other words, I cannot be satisfied that an error of the type identified in House v R[19] has not occurred.  It therefore is an oversight that would enliven the discretion of this Court to sentence afresh unless I arrive at the same view on sentence as the Acting Magistrate.

Comparable cases

  1. [48]
    The appellant has referred the court to the following cases:
  1. JMM v Commissioner of Police [2018] QDC 130.

The offender appealed against the sentence imposed on a plea of guilty of three months’ imprisonment, wholly suspended for 12 months.

The circumstances of the conduct giving rise to the offence involved verbal abuse to a child named on the domestic violence order, following a verbal provocation by the child.  The domestic violence order contained the standard conditions, including a condition that the appellant must be of good behaviour towards the child, must not commit associated domestic violence against the child and must not expose the child to domestic violence.  It did not contain a “no contact” condition.  The charge was an aggravated offence under s 177(2)(a) and occurred while the appellant was on probation.

The court allowed the appeal and set aside the three months’ term of imprisonment and ordered that the appellant be released under supervision of a Corrective Services officer for a period of six months.  The recording of the conviction was not appealed against and not varied.

  1. EAV v Commissioner of Police [2016] QDC 237

The appellant appealed against the sentence of three months’ imprisonment, wholly suspended with an operational period of 12 months.

The appellant and the complainant were each subject to domestic violence protection orders.  On 20 November 2015, police attended at their unit, following a dispute.  EAV told police that he attempted to stand up from his seat when he bumped into the complainant, causing her to stumble onto the bed.  The complainant slapped the appellant.  EAV grabbed the complainant, threw her on the bed, placed his weight on top of her, and restrained her until able to stand up and walk downstairs from their apartment.  The argument continued until police arrived.  The prosecutor informed the Magistrate that EAV had been helpful and co-operative with police; had made admissions regarding the physical side of the incident; and appeared remorseful for his actions.  The breach of the protection order was the second breach within a short period.  EAV pleaded guilty to the charge.

He was re-sentenced to 18 months’ probation with special conditions and no conviction was recorded.

  1. MH v Queensland Police Service [2015] QDC 124

The appellant appealed against the sentence of three months’ imprisonment, wholly suspended with an operational period of 12 months.  He had been charged with breaching a domestic violence order and obstructing police.

On 2 February 2014, a resident contacted police and reported the appellant was outside a unit, banging on the front door and attempting to gain entry.  Police attended the unit and spoke to the aggrieved who advised the police that the appellant had called her.  During the course of this conversation, the appellant told her he was outside her unit.  He then jumped her front fence and knocked on the side door.  She let him inside, where he remained for some time.  At about 12.30 am the aggrieved suggested they go outside to have a cigarette, and once outside the appellant was locked out of the property.  This made him angry, and he started to bang on the door to gain entry.  The defence solicitor submitted to the court that he banged on the door to be let back in to get his keys and mobile phone which he had left inside before he was locked out.  The Court allowed the appeal and imposed an 18-month probation order and convictions were recorded.  The appellant’s criminal history involved predominantly relatively minor street-type offences apart from a conviction for dangerous operation of a motor vehicle causing death some eight years earlier which involved him deliberately driving at someone he was in dispute with, expecting that person to jump out of the way.  He was sentenced to five years’ imprisonment for that offence.  He had no prior convictions for breaching domestic violence orders.

  1. RAS v Commissioner of Police (No. 2) [2012] QDC 239.

The appellant appealed against the recording of a conviction for contravening a protection order.  He was also fined $1,200.

The appeal was allowed on the basis that no submission had been invited from the defendant before convictions were recorded.  The appellant was a security officer and a conviction would put his licence in jeopardy.  The appellant had two previous breaches for contravention of protection orders and a breach of bail.  These offences all related to breaches involved in contacting the aggrieved about custody matters and arranging the delivery of flowers.

The court removed the recording of a conviction.

  1. [49]
    The appellant also referred the court to RMP v Buley [2021] QDC 228, but in my view, it is a matter that has no comparable value. 
  2. [50]
    The respondent has referred the court to the following cases:
  1. TND v Queensland Police Service [2014] QDC 154

The defendant was convicted of one charge of contravening a domestic violence order and was sentenced to six months’ imprisonment with an immediate parole release date.  He was 20 years of age, had a prior conviction for contravening a domestic violence order (hence the maximum penalty was three years’ imprisonment) and was the subject of both a probation order and a community service order when the offence was committed.  He committed the offence by punching the complainant to the face causing a tooth to cut the inside of her cheek.

  1. CTC v Commissioner of Police [2019] QDC 250

The defendant was sentenced to three months’ imprisonment wholly suspended for two years after pleading guilty to one charge of contravening a domestic violence order.  The offence involved actual violence and the complainant suffered a swollen upper lip and a cut to the bottom lip.  The violence was unprovoked and the complainant was 23-weeks pregnant at the time.  The defendant had no prior convictions for breaching domestic violence orders but did have a previous conviction for assault occasioning bodily harm while armed.

  1. ETB v Commissioner of Police [2018] QDC 26

The defendant entered early pleas of guilty to two charges of contravening a domestic violence order and one charge of common assault.  He was sentenced to three months’ imprisonment for the first contravention offence, nine months’ imprisonment for the second and nine months’ imprisonment for the common assault.  All sentences were to be served concurrently.  These offences were also committed in breach of an operational period for a seven-day suspended term of imprisonment which was activated and ordered to be served cumulatively.  In relation to the first contravention offence, the defendant attended at the complainant’s residence and was verbally abusive towards her and threatened to get a knife to use on himself.  The second such offence took place two and a half months later and involved verbal abuse by the defendant towards the complainant, followed by the delivery of a punch to the complainant’s left wrist and two punches to the right ear.  He had four prior convictions for contravening domestic violence orders.  On appeal the sentence for the second contravention offence was reduced to three months’ imprisonment and the sentence for the common assault was reduced to six months’ imprisonment.

  1. [51]
    Finally, the respondent also referred the court to NEG v Commissioner of Police [2017] QDC 302, but it also was of no comparative value.

Consideration

  1. [52]
    The comparable decisions demonstrate that a range of sentencing options may be wide for a matter such as this.  ETB v Commissioner of Police, whilst involving actual violence, resulted in a sentence of actual imprisonment.  The most similar comparable decision is MH v Queensland Police Service, although that offender did not have prior convictions for contravening domestic violence orders.  He did have prior convictions though.
  2. [53]
    In my view, the most important mitigating features in the present matter are:
  1. the very early plea of guilty;
  2. the lack of any physical violence towards the aggrieved;
  3. the threats made were threats to harm himself; and
  4. the appellant attended at the residence initially at the aggrieved’s request.
  1. [54]
    However, counter-balancing those considerations are:
  1. the fact that the appellant has four previous convictions of a similar nature, three of which involve the same complainant, is a significant aggravating circumstance;[20]
  2. the appellant committed the offence in breach of a probation order which was imposed for similar offending only three weeks earlier;
  3. the incident the subject of the charge was protracted and involved intimidatory behaviour by the appellant;
  4. the appellant’s behaviour would have been frightening for the complainant; and
  5. the offence is a domestic violence offence.[21]
  1. [55]
    Taking all of these considerations into account, I am of the view that a community-based order or a fine would inadequately reflect considerations such as general and personal deterrence and community denunciation.
  2. [56]
    The authorities demonstrate that a two month fully suspended term of imprisonment is within the appropriate sentencing range and in my view properly reflects all relevant considerations.
  3. [57]
    Accordingly, I do not disagree with the sentence imposed at first instance. 

Order

The application for an extension of time to file a notice of appeal is refused.

Footnotes

[1]Transcript, pp 1-3, ll 1-3.

[2][1998] QCA 304.

[3]At [5].

[4](2015) 256 CLR 550 at [28].

[5]Transcript, pp 1-6, ll 25-26.

[6]Appellant’s affidavit at [4](a).

[7]Appellant’s affidavit at [4](b).

[8]Appellant’s affidavit at [6].

[9]Appellant’s affidavit at [7].

[10]Appellant’s affidavit at [8].

[11]Appellant’s affidavit at [9].

[12]Sentencing submissions, p 3, ll 1-5.

[13](1981) 147 CLR 383 at [388].

[14]Ibid at 389.

[15]Ibid at 392.

[16][2013] QCA 23; [2014] 1 Qd R 318.

[17]As defined in s 1 Criminal Code (Qld): as per Fraser JA in Constable S J Miers v Blewitt [2013] QCA 23 at [17].

[18]Noting s 552H(1)(b) of the Criminal Code (Qld) that limits a magistrate’s jurisdiction on sentence for an indictable offence to three years’ imprisonment.

[19](1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.

[20]Section 9(10) of the Penalties and Sentences Act 1992 (Qld).

[21]Section 9 (10A) of the Penalties and Sentences Act 1992 (Qld).

Close

Editorial Notes

  • Published Case Name:

    HFC v Commissioner of Police (Queensland)

  • Shortened Case Name:

    HFC v Commissioner of Police (Queensland)

  • MNC:

    [2022] QDC 139

  • Court:

    QDC

  • Judge(s):

    Farr SC DCJ

  • Date:

    21 Jun 2022

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