APL v Queensland Police Service
[2022] QDC 214
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- APL v Queensland Police Service[2022] QDC 214
- Add to List
APL v Queensland Police Service[2022] QDC 214
APL v Queensland Police Service[2022] QDC 214
DISTRICT COURT OF QUEENSLAND
CITATION: | APL v Queensland Police Service [2022] QDC 214 |
PARTIES: | APL (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 1/22 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | Toowoomba Magistrates Court |
DELIVERED ON: | 31 March 2022 (ex tempore) |
DELIVERED AT: | Brisbane District Court |
HEARING DATE: | 31 March 2022 |
JUDGE: | Dearden DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant convicted of two charges of contravention of a domestic violence order (aggravated) – where appellant sentenced to four months imprisonment in respect of charge 1 – where the appellant sentenced to 12 months imprisonment in respect of charge 2 – where sentences were concurrent – whether the sentence imposed was manifestly excessive |
LEGISLATION | Justices Act 1886 (Qld) ss 222, 223 |
CASES | ETB v Commissioner of Police [2018] QDC 26 Forrest v Commissioner of Police [2017] QCA 132 Hili v R; Jones v R [2010] 272 ALR 465 House v the King [1936] 55 CLR 499 JHL v Commissioner of Police [2016] QDC 346 McDonald v Queensland Police Service [2017] QCA 255 R v Hill, Bakir, Grey and Broad; Ex parte (Cth) (DPP) [2011] QCA 306 R v James [2012] QCA 256 R v Morse [1979] 23 SASR 98 SAE v Commissioner of Police [2017] QDC 254 Veen v R (No.2) [1988] 164 CLR 465 |
COUNSEL: | J Goldie for the appellant E Coley for the respondent |
SOLICITORS: | Bouchier Khan for the appellant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]This is an appeal against sentence by the appellant, APL, in respect of two offences of contravention of a domestic violence order (aggravated), for which he was sentenced at the Toowoomba Magistrates Court on 26 January 2022. The appellant was sentenced to four months imprisonment in respect of charge 1; and 12 months imprisonment, concurrent, on charge 2, with a parole release date on the day of sentence (26 January 2022).
Grounds
- [2]The sole ground of appeal is as follows:
“The sentence was manifestly excessive in all the circumstances.”
The law – appeals
- [3]
- [4]
“It is well established that, on an appeal under [JA] s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.” [Citations omitted]
- [5]
“…an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case.”
- [6]In respect of an appeal against sentence, the appellant relies on the principles set out in House v the King [1936] 55 CLR 499, 504:-
“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
- [7]
“…arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it.”
- [8]
“To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.”
- [9]
“…proportionate to the gravity of the offence … by reference to all the circumstances of the case.”
- [10]Further, in Veen v R (No.2) [1988] 164 CLR 465, 477, per Mason CJ, Brennan, Dawson and Toohey JJ:-[8]
“…the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it 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 (1979) 143 CLR at p.495.”
Facts
- [11]The appellant, on 25 January 2022, drove the aggrieved to the Toowoomba Courthouse, walked into court with her and sat with her during the process of court (charge 1); then accompanied the aggrieved to the Toowoomba Police Station, got angry with her at the front counter, threw a key card at her, which caused her to cry, then followed her up the street when she left the police station after him, placed his arm around her and escorted her back to his vehicle, where she sat in the front passenger seat, crying, and the appellant was speaking over her when police tried to speak to her (charge 2).[9]
- [12]The appellant’s actions in respect of both counts was in breach of provisions of a then current domestic violence order, which included the following conditions read out by the police prosecutor to the learned magistrate at the sentencing court on 26 January 2022:- [10]
“There is a current domestic violence order … in place, issued at the Brisbane District Court. Multiple conditions (1) that he be of good behaviour towards the aggrieved, not commit an act of domestic violence against the aggrieved (3) the respondent prohibited from locating, attempting to locate or asking someone else to locate the aggrieved, and (5) prohibited from following or approaching to within 200 metres of the aggrieved when the aggrieved is at any place. No children present in any of these occasions.”
- [13]I note that the full text of the protection order was before the learned magistrate and marked as sentence exhibit 2.
- [14]The appellant spent overnight in the watchhouse before being dealt with on 26 January 2022.[11]
- [15]The appellant’s criminal history included nine convictions for contravention of a domestic violence orders, from 9 September 2014, through to 9 July 2021, as well as other domestic violence related offences, primarily wilful damage but also notedly an assault occasioning bodily harm.[12] The appellant had previously served periods of imprisonment of up to 12 months for all but one of these convictions (the first contravention on 9 September 2014, for which he was sentenced to 12 months probation).
- [16]The most recent conviction for contravention of a domestic violence order was on 9 July 2021, in respect of an offence occurring on 12 May 2021, for which he was sentenced to six months imprisonment.
- [17]None of the details of that previous domestic violence offending was placed before the learned Magistrate, other than the criminal history, which is exhibit 1, and in particular, there was nothing to indicate the identity of the aggrieved person in respect of each of those previous contraventions of domestic violence orders.
- [18]The appellant identifies a specific factual error by the learned magistrate in his recitation of the facts in respect of charge 2 – the magistrate stated in respect of that charge that it was “in the street” and that the appellant “outran her and brought her back to the police station”.[13] There was, in fact, no allegation in the prosecution recitation of the facts in respect of charge 2 that the appellant had “outrun” the complainant – it was, presented to the court that the appellant:-
“…followed the aggrieved up the street … placed his arm around the aggrieved and escorted her back to the police station to his vehicle.”[14]
- [19]The appellant’s submission is that, in addition to that factual error just identified, the learned magistrate has placed too much weight on the appellant’s criminal history and did not impose sentences appropriate and proportionate to the gravity of the offending itself.[15]
- [20]The respondent concedes that the penalty imposed by the learned magistrate was manifestly excessive in all of the circumstances,[16] noting that although the appellant’s criminal history was aggravating, the offending on the occasion of these two charges was towards the lower level of seriousness for offences of this nature. In particular, the respondent acknowledges that charge 1 was a breach of the “no contact” provision of domestic violence order, and charge 2 involved the appellant getting angry at the aggrieved and throwing a key card at her, which was at some level an element of violence.[17]
- [21]With respect, it is clear that both charges were relatively minor examples of domestic violence order breaches, and the “violence” in respect of charge 2 was a very low-end example of violence, in that particular context.
- [22]The appellant relies on the following appeal decisions of this court, and of the Court of Appeal, in respect of contraventions of domestic violence orders, namely: ETB v Commissioner of Police [2018] QDC 26; R v James [2012] QCA 256; SAE v Commissioner of Police [2017] QDC 254. Summaries of these cases are contained at paragraphs [17] – [20] of the appellant’s outline of submissions.[18] The respondent refers, further, to a decision of mine on appeal, JHL v Commissioner of Police [2016] QDC 346 and provided a helpful summary.[19]
- [23]The appellant’s counsel submits that the appellant should be resentenced to no more than three months, or to a prison probation order;[20] the respondent submits that the resentence should be no less than four months and no more than six months.
- [24]Objectively, the most significant aspect of the appellant’s criminality in respect of both charges was his breach of the “no contact” provision of a domestic violence order, aggravated in respect of charge 2 by the throwing of the key card (clearly, as identified, a very low-level act of violence) and the expression of anger (a breach of the condition to be “of good behaviour”).
- [25]In the context of the appellant’s significant criminal history, which identifies repeated contraventions of domestic violence orders, short prison sentences are clearly appropriate in respect of the current charges, but because of the differing conduct in respect of each charge, those penalties should be distinguished, in my view, by a slightly higher penalty in respect of charge 2.
- [26]In all of the circumstances, the appropriate and proportionate penalty, in the light of the cited comparatives, which I have found useful, as guides or benchmarks, is a sentence of three months imprisonment on charge 1; and four months imprisonment, concurrent on charge 2.
- [27]The appellant has now spent 64 days in custody since his sentence on 26 January, 2002, all of which is declarable, and the respondent concedes (entirely appropriately, in my view) that an immediate parole release date can be ordered, although he will at least in the short term remain in custody as a result of other offences which breach his parole shortly after this sentence occurred in the Toowoomba Magistrates Court on 26 January 2022. It will be appropriate to declare that time served as part of the final order.
Order
- [28]I make the following orders:
- (1)Appeal granted;
- (2)Set aside the sentences imposed at the Toowoomba Magistrates Court on 26 January 2022 in respect of charge 1 (four months imprisonment) and charge 2 (12 months imprisonment, concurrent);
- (3)Substitute sentences of three months imprisonment (charge 1) and four months imprisonment (charge 2), concurrent;
- (4)Fix a parole release date at 31 March 2022;
- (5)Declare the period between 26 January 2022 and 30 March 2022, a total of 64 days, as time served in respect of each of the sentences of imprisonment;
- (6)No order as to costs.
Footnotes
[1] Justices Act 1886 (Qld) s 223.
[2] McDonald v Queensland Police Service [2017] QCA 255 [47].
[3] Forrest v Commissioner of Police [2017] QCA 132, 5.
[4] R v Hill, Bakir, Grey and Broad; Ex parte (Cth) (DPP) [2011] QCA 306 [26] (Muir JA).
[5] Hili v R; Jones v R [2010] 272 ALR 465 [60] (French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ).
[6] R v Morse [1979] 23 SASR 98, 99.
[7] Veen v R (No.2) [1988] 164 CLR 465, 472.
[8] Veen v R (No.2) [1988] 164 CLR 465, 477 (Mason CJ, Brennan, Dawson and Toohey JJ).
[9] T1-3, 1-4.
[10] T1-3, ll 26-31.
[11] T1-6, ll 27-29.
[12] Sentence Exhibit 1.
[13] D1-3, 1 5.
[14] T1-4, ll 7-10.
[15] Exhibit 1 – Outline of submissions of appellant [13].
[16] Exhibit 2 – Outline of submissions of respondent [4.1].
[17] Exhibit 2 – Outline of submissions of respondent [4.3], [4.3.1], [4.3.2].
[18] Exhibit 1 – Outline of submissions of appellant [17]-[20].
[19] Exhibit 2 – Outline of submissions of respondent [4.6].
[20] Exhibit 1 – Outline of submissions of appellant [22].