GHN v Commissioner of Police[2022] QDC 86

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 19 March  2021 in the Magistrates Court at Pine Rivers, the appellant pleaded guilty to four offences and was sentenced as follows:

   1. (a)
      Using a restricted computer without consent and gaining a benefit, s 408E(1)(2) Criminal Code – three months imprisonment wholly suspended for an operational period of 18 months;
   2. (b)
      Contravention of domestic violence order, s 177(2)(b) Domestic and Family Violence Protection Act 2012 – one month imprisonment wholly suspended for an operational period of 18 months.
   3. (c)
      Contravention of domestic violence order (aggravated offence), s 177(2)(a) Domestic and Family Violence Protection Act 2012 – one month imprisonment wholly suspended for an operational period of 18 months.

It was declared that 15 days spent in presentence custody from 4  March  2021 to 18 March 2021 be imprisonment already served under the sentences in respect of those offences.

4. (d)
   Using a carriage service to harass, s 474.17(1) Commonwealth Criminal Code – one month imprisonment to be released forthwith pursuant to s 20(1)(b) Crimes Act upon giving security by recognizance in the sum of $500 conditioned that the appellant be of good behaviour for 18 months. There was no presentence custody declaration made in respect of this offence.

2. [2]
   By notice of appeal filed 6  April  2021 the appellant has appealed against the sentences on the ground that the magistrate erred by imposing a sentence of imprisonment.  The appellant’s outline of submissions expands the grounds of appeal to assert specific errors in that the magistrate failed to give proper consideration to the appellant’s rehabilitation and erred by making a presentence custody declaration pursuant to s 159A Penalties and Sentences Act 1992 when imposing wholly suspended sentences of imprisonment.
3. [3]
   At the hearing of the appeal, it was common ground that the appellant had been held in presentence custody only in relation to the contravention of domestic violence order (aggravated offence) and not the other offences.  It follows that a presentence custody declaration should not have been made in relation to the offence of using a restricted computer without consent and the first contravention of a domestic violence order. 
4. [4]
   A presentence custody declaration was appropriately made in respect of the contravention of domestic violence order (aggravated offence).  However, s 159A(2)(c) Penalties and Sentences Act 1992 provides that subsection (1) does not apply to wholly suspended sentences of imprisonment.  Accordingly, the sentence for that offence should have been partly suspended after the period of 15 days that the appellant had already served.^[1]
5. [5]
   The appellant submitted that these errors and the failure of the magistrate to have regard to his prospects of rehabilitation necessitated that he be resentenced.  On resentencing it was submitted that a combination of orders including probation should be imposed.  It was also submitted that the sentence was manifestly excessive.
6. [6]
   The Commonwealth Director of Public Prosecutions submitted that there was no error in the sentence for using a carriage service to harass.  The Queensland Director of Public Prosecutions submitted that the sentences for the State offences were not manifestly excessive but accepted that the errors in the presentence custody declaration should be corrected.
7. [7]
   For the reasons that follow, I would allow the appeal to the limited extent of amending the orders that result from the erroneous declaration of presentence custody.  The 15 days in presentence custody was not declarable in relation to the offence of using a restricted computer without consent but it should have been taken into account by reducing the head sentence by 15 days.  The same approach should be taken in relation to the first contravention of a domestic violence order.
8. [8]
   In relation to the contravention of domestic violence order (aggravated offence), the sentence should have been suspended after 15 days rather than wholly suspended.  It was appropriate that a declaration be made that the appellant had already served 15 days in presentence custody from 4 March 2021 to 18 March 2021.
9. [9]
   In respect of the offence of using a carriage service to harass, the period of presentence custody, although not declarable as imprisonment already served, should have been taken into account by reducing the sentence by a period of 15 days.

The appellant’s antecedents

10. [10]
    The appellant is 46 years of age.  He was 45 years of age at the time of sentence.  He was 44 – 45 at the time of the offences.  The appellant’s criminal history consists of one offence of contravention of a domestic violence order which was dealt with in the magistrates Court at Pine Rivers on 30 November 2020.  A conviction was not recorded, and the appellant was released on a recognisance in the amount of $500 to be of good behaviour for six months.  That offence involved the same complainant.  The appellant breached a temporary protection order by approaching the complainant’s residence.  He was approached by the complainant and left the premises.  The appellant was captured on close circuit television approaching the residence.
11. [11]
    The appellant was a police officer having been sworn in as a Constable of Police in 2013.  Prior to joining the police service, the appellant was employed by Queensland Corrective Services.

Circumstances of the offences

12. [12]
    The circumstances of the offences were outlined in an agreed statement of facts.^[2]  The appellant was a current serving police officer.  He had been in a de facto relationship with the complainant for almost 11 years.  They had two sons together. They separated on 17 October 2019.
13. [13]
    On 7 August 2020 the complainant was visited by a male friend who stayed at the home until just after 10.00 pm.  While he was visiting the premises the male friend’s motor vehicle was parked directly in front of the complainant’s unit.

Using a carriage service to harass

14. [14]
    On the night of 7 August 2020 the complainant received four phone calls from a private number at 10.12 pm, 10.13 pm, 10.27 pm and 10.28 pm.  The complainant answered the 10.28 pm call but there was no response.  She received a further call at 2.51 am and two calls at 2.52 am.  She answered the two calls at 2.52 am but there was no response.
15. [15]
    In the hours that followed, the complainant received two emails.  The first email which was from an unfamiliar address was sent on 8 August 2020 at 12.27 am.  The email stated: “Oh my god, you are a disgrace, those poor little boys, was that the best you can get, you should hang your head in shame, you are an embarrassment, everyone was right about you …”.  The second email received on 8 August 2020 at 6.56 am stated: “Do you take it from anyone, your bloke is a fat, mongolide [sic] looking retard … fancy letting him jump all over you … gee you must have been hard up”.
16. [16]
    On 26 August 2020 the appellant and the complainant met to exchange the children and the appellant referred to the complainant’s male friend by his first name.  He made comments including that he would “kick his teeth in” if the male friend did anything to the children.  He referred to the male friend as a “retard” and “spastic” and asked the complainant was this the best she could get and told her that she wasn’t fussy when it comes to men.
17. [17]
    On 31 August 2020 the complainant received an email which had a picture attached of a house which she recognised as the current residence of her male friend.
18. [18]
    On 11 September 2020 the complainant received an email which had no content, but the email address used was a combination of the male friend’s first name, year of birth and surname initial.
19. [19]
    Telecommunication enquiry results revealed that the calls and emails were linked to the appellant.

Using a restricted computer without consent and gaining a benefit

20. [20]
    The appellant was on duty on 7 August 2020 working a shift from 2.00 pm to 10.00 pm.  He was in possession of a QLiTE mobile device issued by the Queensland Police Service.  A QLiTE device is an Apple iPad which provides officers with mobile access to Queensland Police Service systems and databases.  The appellant used his QLiTE device to make searches in relation to the complainant’s male friend and his former partner.  A similar search was conducted on 9 August 2020.
21. [21]
    On 4 and 5 October 2020 the appellant searched the address that he previously shared with the complainant, a neighbour’s address and his mother-in-law’s address.  The appellant was not working at the time.  On 6 October 2020 he conducted further searches of various addresses.
22. [22]
    On 12 November 2020 the appellant changed his residential address on Q Prime while working his shift.

Contravention of domestic violence order

23. [23]
    On 28 August 2020 the complainant filed an application for a domestic violence order.  The matter was listed for mention in the Magistrates Court on 16 September 2020.  On that date a magistrate issued a temporary protection order which included a condition that the appellant be of good behaviour towards the complainant and not commit domestic violence against her.
24. [24]
    Between 17 September 2020 and 4 October 2020, the complainant received five harassing emails that were sent from ghost email accounts and which contained allegations relating to the complainant’s sexual activity.
25. [25]
    The first email received on 17 September 2020 stated: “Who are I will open up for anyone to ride it, I’m a disgusting embarrassment” followed by coffin and gun emojis.  The second email received on 19 September 2020 said: “Who are you opening them up for your friend in the black car tonight, do you open them up for anyone and everyone” followed by coffin and gun emojis.  The third email received on 4 October 2020 stated: “Who are you open up for fat, little, ugly, old you know what’s you must get sick doing that unless if it’s in the dark, you must really feel ashamed about what you are doing and what you have done, its so funny to see you where you are, everyone is laughing at you”.  The fourth email received on 4 October 2020 stated: “Who are you staying with tonight or will you be home today you have to be repaid for what you are doing and done it won’t ever be forgotten always remember that”.  The fifth email also received on 4 October 2020 stated: “Who are you home with anyone or by yourself did you have fun last night must have made you feel sick doing that again but that might be the best you can get pretty funny everyone knows your sick secret”.
26. [26]
    Telecommunication results showed that the emails were linked to the appellant.

Contravention of domestic violence order (aggravated)

27. [27]
    The offence was aggravated because within five years before the commission of the offence, the appellant had been previously convicted of a domestic violence order.
28. [28]
    On 23 January 2021, the complainant received an email that stated: “Like I told you previously I would rather get a shotgun & blow my head off then ever see you again, anywhere at anytime”.  The complainant described the email as intimidating and threatening.
29. [29]
    On 2 March 2021 the appellant spoke to his sons on the phone while the phone was on speaker.  The complainant was in the room during the phone call.  The appellant made demeaning statements about the complainant knowing that she was listening to the conversation.  The appellant described the complainant as “an evil little person, she needs to get a life”.  The appellant made statements such as: “I’m going to do something very shortly and that will be it.”  He described the complainant as stupid and told his sons that “the last thing you wanna be is hanging around some flog, a flog of a person when you can come and see your father is that right.”

The magistrate’s reasons

30. [30]
    The magistrate referred to the applicable maximum penalties: using a restricted computer without consent and gaining a benefit namely information – five years imprisonment; using a carriage service to harass – three years imprisonment; contravention of a domestic violence order – three years imprisonment; and contravention of a domestic violence order (aggravated) – five years imprisonment.
31. [31]
    The magistrate took into account the appellant’s plea of guilty and stated that the penalty was being reduced. The magistrate referred to the principles in s 9 Penalties and Sentences Act 1992. The magistrate noted that after the appellant had been refused bail by the Supreme Court on 11 March 2021, his solicitors requested that the matter be listed for sentence as a matter of urgency. The magistrate summarised the circumstances of the offences. Her Honour regarded the offence of using a restricted computer as being the most serious charge.
32. [32]
    The magistrate referred to the written submissions for the prosecution which sought the imposition of a probation order for a period of 18 to 24 months.^[3] The magistrate referred to the outline of submissions for the appellant which sought the imposition of a good behaviour bond for the State offences having regard to the time the appellant had spent in presentence custody.^[4] In the alternative, it was submitted that a fine or probation order of between six and 12 months was appropriate.^[5] It was submitted that convictions should not be recorded.^[6] In respect of the Commonwealth charge, it was submitted that the appellant should be discharged upon entering into a recognizance  pursuant to s 19B(1)(d) Crimes Act (Cth).^[7]
33. [33]
    The magistrate did not accept the submissions of the prosecutor and the solicitor for the appellant. Her Honour stated that she intended to impose a sentence of three months imprisonment wholly suspended for an operational period of 18 months for the offence of using a restricted computer and lesser concurrent sentences for the other State charges. In respect of the Commonwealth offence, the magistrate indicated that a sentence of imprisonment with an order for release upon recognizance would be made pursuant to s 20(1)(b) Crimes Act 1914.
34. [34]
    The magistrate referred to the appellant’s personal circumstances that he was 45 years of age and had been in a de facto relationship with the complainant for almost 11 years. The relationship ended in mid-2019. The temporary protection order was made on 16 November 2020.
35. [35]
    The magistrate referred to the fact that the Family Court had ordered that the complainant and the appellant have equal shared parental responsibility for the children with each parent caring for the children on alternate weekends. Despite those orders, the appellant had only seen his children in person once in the previous seven months.
36. [36]
    The magistrate noted that the appellant had spent 16 days in presentence custody and as a result of being a serving police officer was placed in protective custody, which amounted to extra curial punishment.
37. [37]
    The magistrate referred to the appellant’s employment as a Corrective Services Officer since 1999 and that he commenced with the Queensland Police Service in 2013.
38. [38]
    The magistrate made reference to the submission for the appellant that although he had not been formally diagnosed with any mental health issues, he was experiencing undiagnosed anxiety and depression. A work capacity certificate from a doctor dated 7 December 2020 stated that the appellant had anxiety and depression for which he required counselling from 7 December 2020 to 5 January 2021.
39. [39]
    The magistrate referred to a character reference provided by a former work colleague at Corrective Services which stated that the appellant is well liked and respected, that he is a devoted father, and served the community well over a period of two decades.
40. [40]
    Her Honour referred to the appellant’s remorse and embarrassment. The appellant had experienced trauma in connection with his employment with Queensland Corrective Services and the Queensland Police Service. The magistrate accepted the appellant was a devoted father to his sons and that frustration in the acrimonious relationship with his former partner had cause him a degree of stress. However, her Honour expressed the view that the stress was no different to any party in Family Court proceedings. Nevertheless, her Honour accepted that the appellant found it difficult to deal with his personal situation.
41. [41]
    Having regard to the appellant’s length of service in the Queensland Police Service, her Honour did not accept that the appellant did not understand issues in relation to domestic violence and the illegality of accessing his QLiTE device to obtain information for his benefit, would cause serious consequences for him.
42. [42]
    The magistrate referred to the detailed submissions that had been made in relation to the comparable decision in Punchard v Commissioner of Police.^[8] The parties had made extensive submissions in relation to that decision. However, subsequent to the imposition of sentence in this matter on 19 March 2021 the Court of Appeal set aside the orders made by the District Court.^[9] The magistrate found that the facts in Punchard were distinguishable because the offender in that case acted out of misguided loyalty whereas the appellant accessed information in relation to the complainant’s current partner and the complainant’s mother contrary to the parameters of his employment.
43. [43]
    The magistrate referred to 18 comparable sentences relied upon by the appellant’s solicitor in relation to offences of computer hacking to gain a benefit. The magistrate found the comparable cases to be of little use because none involved offences committed in the context of domestic violence.
44. [44]
    The magistrate referred to the serious nature of offences of domestic violence by reference to the judgment of the Court of Appeal in R v Fairbrother; ex parte Attorney-General^[10].
45. [45]
    The magistrate referred to the sentencing principles of punishment, personal and general deterrence, denunciation, that a sentence of imprisonment should be imposed as a last resort and that a sentence that allows the offender to remain in the community is preferable.
46. [46]
    The magistrate referred to a reference from the appellant’s mother which stated that he was a devoted and caring family man and had experienced stress since the breakdown of his relationship.
47. [47]
    The magistrate took into account that the offence of contravention of a domestic violence order (aggravated) was committed while the appellant was on bail for the other offences.
48. [48]
    In respect of the Commonwealth offence, the magistrate had regard to the sentencing principles in s 16A Crimes Act 1914. Her Honour had regard to the nature and circumstances of the offence and the appellant’s plea of guilty.

The nature of the appeal

49. [49]
    The Justices Act 1886 provides in s 222(2)(c) that where a defendant pleads guilty, a person may only appeal on the sole ground that the penalty was excessive or inadequate. The ground of appeal in the notice of appeal is that the sentence is manifestly excessive in all the circumstances. The appeal is against the exercise of discretion, so the principles in House v The King^[11] are applicable.^[12]
50. [50]
    Where error is established the appellate court must form its own view of the appropriate sentence and sentence afresh unless it concludes that in the exercise of its own independent sentencing discretion, no different sentence is warranted.^[13]

The appellant’s submissions

51. [51]
    The appellant submits that in circumstances where the offending occurred in the context of the breakdown of his long-term relationship with his de facto wife, rehabilitation was in the interests of the community, not simply the individual.  It is submitted that while the magistrate had regard to the appellant’s antecedents, there is no indication that her Honour took into account his rehabilitation.  It was submitted that in circumstances where the appellant’s prior offence occurred during the period of offending for which he was being sentenced on 19 March 2021, the sentencing discretion miscarried because proper regard was not had to structuring a sentence that would have assisted in the appellant’s rehabilitation, while at the same time balancing the other factors in s 9(1) Penalties and Sentences Act 1992.
52. [52]
    The appellant also submits that the imposition of wholly suspended sentences coupled with a declaration as to presentence custody is incompatible with s 159A(2) Penalties and Sentences Act 1992 which states that subsection (1) does not apply to imprisonment that has been wholly suspended.
53. [53]
    The appellant submits that having regard to the nature of the appellant’s offending and the context in which it occurred, the sentence is manifestly excessive.  It was pointed out that the simpliciter offence of contravention of a domestic violence order and the offence of using a carriage service to harass predated the charging of the appellant with the offence for which he was placed on a good behaviour bond on 30 November 2020.  The appellant had no prior criminal history at the time he committed those offences.  It was therefore submitted that having regard to the circumstances of the contravention of a domestic violence order, a fine or possibly an intermediate order would have been just and appropriate.  It was submitted that in relation to the offence of using a carriage service to harass, a monetary order or bond would have been just and proportionate in the circumstances.
54. [54]
    In relation to the offence of using a restricted computer without consent, it was submitted that having regard to the facts surrounding the offence and the appellant’s personal circumstances, a sentence of probation of between 18 months and 24 months was appropriate.
55. [55]
    In relation to the offence of contravention of a domestic violence order (aggravated), it was accepted that the appellant was on bail at the time and subject to the good behaviour bond imposed on 30 November 2020.  However, it was submitted that the appellant’s conduct involved a single email and a single phone call where he demeaned his former partner and belittled her to their sons.  It was submitted that while the appellant’s words were abhorrent, his conduct did not involve violence nor the threat of violence.  It was submitted that the offence occurred in circumstances where the appellant had not had the care of his children, because they had been withheld from him for approximately seven months.  It was therefore submitted that a sentence of imprisonment was manifestly excessive.  The appellant submitted that an intermediate order or a substantial fine would have properly reflected the seriousness of his conduct while still balancing the purposes of sentencing and the desirability of the appellant’s rehabilitation.

Consideration

The issue of rehabilitation

56. [56]
    The fact that the magistrate imposed suspended sentences of imprisonment does not mean that her Honour disregarded the appellant’s prospects of rehabilitation.  In respect of the State offences the magistrate referred to the principles in s 9 Penalties and Sentences Act 1992.  In respect of the Federal offence the magistrate referred to the principles in s 16A Crimes Act 1914 (Cth).  Although her Honour did not expressly mention that a purpose of sentencing for the State offences was to provide conditions that will help the offender to be rehabilitated^[14] and for the Federal offence the requirement to take into account the prospect of rehabilitation,^[15] does not mean that these factors were overlooked.
57. [57]
    The magistrate received detailed written submissions from the prosecutor and the appellant’s solicitor.  The prosecutor made the following submission:^[16]

“The defendant has a prior conviction for similar offending and was subject to a recognisance order at the time of these offences.  For this sentence, there is a need to impose an order that deters the defendant from committing the same type of offences.  An order than [sic] rehabilitates the defendant would also build upon reducing the likelihood of recidivism.  It is submitted that an order of probation would assist in achieving these principles and capture the criminality of the matter.”^[17]

58. [58]
    The magistrate set out the appellant’s mitigating factors in detail and rejected the submission made by the prosecutor and defence solicitor that a probation order was appropriate.^[18]  The magistrate’s sentencing remarks sufficiently explain her Honour’s reasons for imposing suspended sentences.  The failure by the magistrate to specifically mention rehabilitation as a mitigating factor does not mean that it was not taken into account.^[19]

Is the sentence manifestly excessive?

59. [59]
    While acknowledging that the sentencing court was free to accept or reject the submissions made by the parties in relation to penalty, the appellant submitted that there were good reasons why the magistrate should have acceded to the submission made by the prosecution that a probation order was appropriate.^[20]  However, the position taken by the prosecutor before the Magistrates Court was largely influenced by the judgment of the District Court in Commissioner of Police v Punchard^[21] delivered on 1 September 2020. 

60. [60]
    The prosecutor made the follow submission:

“Your Honour, the prosecution came to the conclusion that probation would be a sufficient penalty today, and not any period of imprisonment.  Based heavily on the decision of Punchard which has been provided to the Court.  That decision emphatically put the ceiling on that type of conduct with regards to computer hacking on community-based orders and not on periods of imprisonment.”^[22]

61. [61]
    On 13August 2021 the Court of Appeal delivered judgment on the application for leave to appeal by the Commissioner of Police in the matter of Punchard.^[23]  The Court of Appeal granted leave to appeal, allowed the appeal and set aside the orders made by the District Court.  The effect of those orders was to leave in place the sentence imposed by the Magistrates Court which was two months imprisonment wholly suspended for an operational period of 18 months.  In those circumstances the concession made by the prosecution before the Magistrates Court that probation was the appropriate sentence cannot carry very much weight.
62. [62]
    In the proceeding before the Magistrates Court the parties made submissions in relation to what they considered to be the appropriate sentence as permitted by s 15(1) Penalties and Sentences Act 1992.  The prosecution was represented by a Sergeant of Police in respect of all charges including the Federal offence of using a carriage service to harass.  The police prosecutor was not constrained by the principle in Barbaro v The Queen^[24] that the prosecution should not be permitted to make a submission to a sentencing judge in relation to the available sentencing range.  On the hearing of the appeal before this court, the Commonwealth Director of Public Prosecutions appeared in relation to the Federal offence.  A sentencing submission that is put forward on an incorrect basis can have little weight.^[25]
63. [63]
    In Punchard the respondent was a Senior Constable of Police aged 47 – 48 at the time of the offences.  He had no previous criminal history.  He pleaded guilty to nine counts of using a restricted computer without consent and gaining a benefit.  In respect of each offence, he was sentenced to two months’ imprisonment wholly suspended for an operational period of 18 months.  However, on appeal to the District Court he was resentenced to a total of 140 hours community service and convictions were not recorded.  The learned judge in the District Court concluded that a wholly suspended sentence of imprisonment was excessive having regard to the circumstances of the offences, the mitigating factors and sentences imposed by magistrates in other cases.^[26]  The circumstances of the offences in Punchard were that, after the breakdown of the marriage of a close friend, he obtained confidential information relating to the friend’s former wife and her new partner.  The offending occurred over a 12-month period.  The Court of Appeal considered that there were two factors that informed the sentence imposed by the magistrate: the significant risk of harm to which he exposed the friend’s former wife, and his breach of public trust as a police officer.^[27]
64. [64]
    The ultimate outcome in Punchard supports the conclusion that in the present case suspended sentences were appropriate rather than probation and any other combination of orders. The appellant in the present case and the respondent in Punchard have both experienced and witnessed traumatic events. Although there were nine charges in Punchard, there were six separate particulars involved in the appellant’s conduct. The respondent in Punchard had not engaged in the type of repeated harassment committed by the appellant.
65. [65]
    The offence of using a restricted computer without consent and gaining a benefit committed by a police officer involves a significant breach of public trust.  The appellant’s misuse of his QLiTE device included conducting searches relating to his former partner, her male friend and his former partner’s mother.  The searches involved viewing information and images.  The vehicle belonging to the former partner’s friend was the subject of searches on 7 and 9 August 2020.
66. [66]
    The appellant’s submission that his use of his QLiTE device is consistent with “idle wondering about his ex-wife and those associated with her” cannot be accepted.^[28] The appellant used his position to search for personal information about the complainant’s new partner and the complainant’s mother. The confidential information was utilised to taunt and humiliate the complainant. The Queensland Police Service has the responsibility of protecting victims of domestic violence. The misuse of confidential information involves a significant breach of trust.
67. [67]
    The Federal offence of using a carriage service to harass had serious features.  The appellant placed seven phone calls to the complainant late at night and in the early hours of the following morning and gave no response when some calls were answered.  This conduct was clearly aimed at unsettling the complainant.  The appellant subsequently used four different email accounts to send harassing emails to the complainant over three separate dates indicating a degree of calculation and persistence.  Two of the emails which were sent the morning after the complainant had been visited by her male friend contained statements such as “was that the best you can get” and “fancy letting him jump all over you” which convey the distinct impression of intrusive monitoring.  That impression is reinforced by a subsequent email which attached a picture of what appeared to be the male friend’s house.
68. [68]
    The first contravention of domestic violence order related to breaches of a temporary protection order made by the Magistrates Court at Pine Rivers on 16 September 2020.  The conditions of the temporary protection order included that the appellant be of good behaviour towards the complainant and not commit domestic violence against her and prohibited contact by any means whatsoever.  The first email was sent by the appellant the very next day on 17 September 2020.  The emails made reference to the complainant’s sexual activity and contained highly offensive statements.  The inclusion of coffin and gun emojis in the first two emails is disturbing conduct.
69. [69]
    The second contravention of domestic violence order (aggravated) related to the appellant’s conduct on 23 January 2021 and 2 March 2021.  The email on 23 January 2021 said: “Like I told you previously I would rather get a shot gun & blow my head off then ever see you again, anywhere at any time”.  The complainant understandably regarded the email as intimidating and threatening.  In the recorded telephone conversation on 2 March 2021 the appellant made demeaning comments regarding the complainant knowing that she was listening.  This offending occurred while the appellant was on bail for the other offences and while he was subject to the good behaviour bond imposed on 30 November 2020.
70. [70]
    The sentences imposed by the Magistrates Court are not manifestly excessive.  The sentences were appropriate except in relation to an issue raised on the hearing of the appeal concerning the magistrate’s treatment of presentence custody. The appellant is presently in custody on other matters, so he does not have the present ability to comply with the conditions of probation in any event.

Presentence custody

71. [71]
    The submissions of the parties on the hearing of the appeal proceeded on the basis that 15 days presentence custody had been declared as imprisonment already served on the three State charges, but was actually only declarable in relation to the offence of contravention of domestic violence order (aggravated).  It was common ground that presentence custody had not been declared, and was not declarable on the Federal offence.
72. [72]
    The magistrate’s sentencing remarks are not entirely clear on whether the period of 15 days in presentence custody was intended to apply to all State charges.  When imposing sentence her Honour said:

“In relation to the State sentences, the head sentence will attach to the computer hacking charge.  I’m satisfied that it’s appropriate [indistinct] in the circumstances that you be sentenced to a term of imprisonment.  Your conviction is recorded.  You’re sentenced to a term of three months’ imprisonment.  I’m satisfied that it would be appropriate in the circumstances that you be imprisoned for a period of three months.  I order that the whole of that term of imprisonment be suspended forthwith.  The operational period during which you must not commit another offence by imprisonment if you are to avoid being dealt with under section 146 of the Penalties and Sentences Act is 18 months for that count.  Concurrent sentences will attach to charge 3, which is the domestic violence order from 6 August 2020 to 5 October 2020.  That will be a concurrent sentence of one month, suspended for 18 months and similarly the Bench charge sheet from 22 January 2021 to 3 March 2021 will be one month, suspended for 18 months.

I declare that pre-sentence custody has been served from 4 March 2021 to 18 March 2021, namely 15 days.  And that is time served under this sentence.  In relation to the Commonwealth charge of again, section 474(1)(7), you were convicted.  You were sentenced to a term of imprisonment of one month.  I order that you be released forthwith, upon giving security and reconnaissance [sic] in the sum of $500 to comply with the condition that you be of good behaviour for 18 months.”^[29]

73. [73]
    The endorsement on the bench charge sheets and the verdict and judgment record indicate that presentence custody was declared on all State charges and not the Federal charge.
74. [74]
    The submission made by all parties that the period of 15 days presentence custody was declarable only in relation to the contravention of domestic violence order (aggravated) offence is correct.  The appellant was remanded in custody for that offence following his arrest on 4 March 2021.  He remained on bail for the other offences.
75. [75]
    The relevant provisions in s 159A Penalties and Sentences Act 1992 are as follows:

“159A Time held in presentence custody to be deducted

3. (1)
   If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.
4. (2)
   Subsection (1) does not apply to—

…

3. (c)
   imprisonment that has been wholly suspended; or

…

3. (4)
   If—

1. (a)
   an offender is charged with a number of offences committed on different occasions; and
2. (b)
   the offender has been in custody since arrest on charges of the offences and for no other reason;

the time held in presentence custody must be taken, for the purposes of subsection (1), to start when the offender was first arrested on any of those charges, even if the offender is not convicted of the offence for which the offender was first arrested or any 1 or more of the number of offences with which the offender is charged.

…

3. (10)
   In this section—

…

proceedings for the offence includes proceedings that relate to the same, or same set of, circumstances as those giving rise to the charging of the offence.“

76. [76]
    In respect of Federal sentences, s 16E(2) Crimes Act 1914 (Cth) operates to pick up and apply the laws of the States and Territories in relation to presentence custody.  However, in this case there was no declarable presentence custody in relation to the Federal offence.
77. [77]
    Where there is non-declarable presentence custody, the period should be taken into account by reduction of the head sentence.^[30]  In the present case, the fact that presentence custody was declarable only in relation to the contravention of domestic violence order (aggravated) offence means that the other sentences should be adjusted to take into account the non-declarable period of 15 days in respect of those offences.
78. [78]
    The present circumstances are not affected by the amendment to s 159A(1) made by s 164 Justice and Other Legislation Amendment Act 2020 which deleted the requirement that the period in custody in relation to proceedings for the offence be for no other reason.  The effect of the amendment is to give sentencing courts increased flexibility in relation to presentence custody.^[31]
79. [79]
    The requirement in s 159A is that the period the offender has been held in presentence custody in relation to proceedings for the offence be taken to be imprisonment already served unless the sentencing court otherwise orders.
80. [80]
    The sentences imposed were appropriate having regard to the circumstances and should be adjusted only to the extent of reducing the sentences by 15 days where there was non-declarable presentence custody, and by varying the sentence for contravention of domestic violence order (aggravated) to a partly suspended sentence.

Orders

81. [81]
    For these reasons the following orders were made on 7 April 2022:

1. Appeal allowed.
2. The sentences imposed by the Magistrates Court at Pine Rivers on 19 March 2021 are varied to the extent only of:
   1. (a)
      varying the term of imprisonment of three months wholly suspended on the charge of using a restricted computer without consent and gaining a benefit to two months, 15 days’ imprisonment wholly suspended for an operational period of 18 months and deleting the presentence custody declaration in respect of that offence;
   2. (b)
      varying the term of imprisonment at one month wholly suspended on the charge of contravention of domestic violence order to 15 days’ imprisonment wholly suspended for an operational period of 18 months and deleting the presentence custody declaration in respect of that offence;
   3. (c)
      varying the sentence of one month imprisonment wholly suspended on the charge of contravention of domestic violence order (aggravated offence) to one month imprisonment suspended after 15 days for an operational period of 18 months.  The presentence custody declaration of 15 days from 4 March 2021 to 18 March 2021 remains; and
   4. (d)
      varying the term of imprisonment of one month on the charge of using a carriage service to harass to 15 days’ imprisonment.  The order that the appellant be released forthwith pursuant to s 20(1)(b) Crimes Act 1914 (Cth) upon giving security by recognizance in the sum of $500, conditioned that the appellant be of good behaviour for 18 months, is to remain.