G v Commissioner of Police[2022] QDC 303

Introduction

1. [1]
   The appellant pleaded guilty on 27 September 2022 in the Magistrates Court at Maroochydore to one count of contravention of a domestic violence order. She was sentenced to six months imprisonment and given a parole eligibility date as at the date of sentence. She now appeals the severity of that order pursuant to section 222 of the Justices Act 1886 on the basis that it is excessive.

Particulars

2. [2]
   The particulars of that ground of appeal are that the learned sentencing Magistrate:

1. Sentenced the appellant on an erroneous factual basis;
2. Failed to sufficiently particularise the factual basis upon which the appellant was to be sentenced, giving rise to a substantial miscarriage of justice; and
3. Sentenced the appellant on the basis of a circumstance of aggravation that was not proven pursuant to section 47 of the Justices Act 1886.

3. [3]
   The respondent has conceded in written submissions and before the Court today that the appellant was sentenced on an erroneous factual basis and that the sentence imposed was manifestly excessive in all of the circumstances. The respondent also does not cavil with the suggested sentence as proposed by the appellant. Given that this is an appeal, which, on that ground, is not opposed, I need not go through the relevant law when this Court is dealing with matters pursuant to section 222 of the Justices Act. Nevertheless, I should place some details about the matter on the record.

Facts

4. [4]
   At the time of the offence, the appellant was 37 years of age. She has a relevant and lengthy criminal history. She has been sentenced to imprisonment on six occasions, four of which involved actual imprisonment, and she has been convicted prior to the subject matter of contravening a domestic violence order on 12 occasions. Relevantly, she appeared on 17 December 2021 in the Magistrates Court and was sentenced for two counts of serious assault of a person over 60 years of age. The complainants in each of those matters were persons who were also referred to as named persons on the protection order that is the subject of the charge before the Court. The sentence imposed on that occasion in relation to those matters was 12 months imprisonment and nine months imprisonment respectively, to be served concurrently with each other, but with parole after serving a period of four months. The offence that this matter relates to was therefore committed whilst she was on parole for those matters.
5. [5]
   The relevant facts for the current matter are that at the relevant time the appellant was subject to a domestic violence order and one of the conditions of that order prevented her from approaching within 100 metres of, or being at a place where, the aggrieved person lived or worked. On 26 September 2022, police attended the aggrieved’s address in relation to an argument and upon arrival saw the appellant there. The appellant had arrived the previous day seeking assistance and had stayed the evening. When questioned, she could offer no lawful reason for being there.

Submissions on sentence

6. [6]
   On sentence, the Prosecutor in the Court below submitted that a sentence of imprisonment of between six and nine months would be appropriate when combined with a parole eligibility date. During the course of submissions on sentence, the Prosecutor however, placed some material before the Court which potentially led the Magistrate into factual error. When referring to the fact that the appellant had been sentenced for those assault charges that I referred to earlier in this decision, he spoke of the fact that the complainants for each of those two charges were named people on the domestic violence order, the subject of the charge before the Court and that they were fearful of the appellant and were entitled to the protection of the Court. He said this:

That’s why I say six to nine months with a parole eligibility date, considering she committed this offending whilst on parole for offending not only of a like nature in relation to some of the breaches, but also the same location and involving the same people.

7. [7]
   It is accepted that was factually incorrect because the subject offending did not involve the same people. There is no evidence before the Court that those two persons lived at the address of the aggrieved and there is no other material before the Court. That error was not corrected by the appellant’s legal representative. The Magistrate made no inquiries as to clarification and the matter proceeded to sentence shortly thereafter. It is a clear and demonstrative misstatement of fact and may very well have led the Magistrate into error.
8. [8]
   The appellant’s legal representative on sentence in the Court below acknowledged that the appellant had a poor history for contravening domestic violence orders. It was submitted on her behalf that the period of parole had a positive impact upon her and reasons for that were given. Reference was made to some mental health issues that it was suggested she suffered from and that she was still struggling as a consequence of the loss of two children. It was submitted on her behalf that an appropriate order was one of six months imprisonment, but that the term of imprisonment should be wholly suspended.

Sentence imposed

9. [9]
   On sentence, the learned Magistrate noted the appellant’s plea of guilty, but also commented upon her significant criminal history for offences that included offences of relevance, and imposed the sentence that I have already indicated. The learned Magistrate’s sentencing remarks were extraordinarily brief and gave no detail as to the factual basis upon which he sentenced. As I say, this appeal is conceded on that point, quite properly so, and I agree with the submission on sentence that has been made by the appellant’s representative here today and that is agreed to by the respondent.

Circumstance of aggravation

10. [10]
    Before making that order, though, I should turn to one other issue, that is raised in the third particular of the ground of appeal that I referred to earlier in these remarks. It was submitted in writing that, notwithstanding that the appellant had been charged on a bench charge sheet with the offence of contravening a domestic violence order aggravated offence (the circumstance of aggravation being that she had previously been convicted of an offence or offences of contravening a domestic violence order in the previous five years), when arraigned, she was arraigned on the offence simpliciter only. That was a clear and obvious error on the part of the Magistrate.
11. [11]
    The Police Prosecutor did not correct the error, as one would expect any competent Prosecutor to do. There is no onus on the defence representative to correct that error and the consequence of that is that the appellant was convicted of the offence simpliciter. The learned Magistrate went on, of course, to consider the appellant’s criminal history, which included those prior convictions of relevance, which, as I have already indicated in a decision that I gave earlier this year, in HCF v Commissioner of Police [2022] QDC 139, he was entitled to do. But, as I indicated in that decision as well, in such circumstances, it is incumbent upon the sentencing Court to identify the correct maximum penalty that applies in that particular case.
12. [12]
    In that matter, as in this matter, the maximum penalty was that which attaches to the simpliciter charge. That is one of three years imprisonment. But in this matter, as occurred in that previous matter, no such indication was given by the Magistrate and it is unknown whether the Magistrate in this matter acted upon the correct maximum penalty, as he was required to pursuant to section 9(2)(b) of the Penalties and Sentences Act 1992. Now all of that is rather moot given that the appeal is conceded on the first ground. Were it not, the appeal would have been successful on this ground in any event, but I raise it for a very specific reason. I note that the Verdict and Judgment Record and the appellant’s criminal history both have recorded this matter as her having been convicted of the offence of contravention of a domestic violence order aggravated. That is an error and needs to be corrected, and I order that those corrections take place.
13. [13]
    Insofar as the orders relevant to this appeal itself are concerned, they are as follows:

1. The appeal is allowed;
2. The Magistrate’s sentence imposed on 27 September 2022 is set aside; and
3. The appellant is resentenced to three months imprisonment suspended immediately for an operational period of nine months.