LPA v The Commissioner of Police
[2023] QDC 142
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- Unreported Judgment
- LPA v The Commissioner of Police[2023] QDC 142
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LPA v The Commissioner of Police[2023] QDC 142
LPA v The Commissioner of Police[2023] QDC 142
DISTRICT COURT OF QUEENSLAND
CITATION: | LPA v The Commissioner of Police [2023] QDC 142 |
PARTIES: | LPA (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 75/2023 |
DIVISION: | Appeal |
PROCEEDING: | Appeal against sentence |
ORIGINATING COURT: | Magistrates Court Maroochydore |
DELIVERED ON: | 9 August 2023 (ex-tempore) |
DELIVERED AT: | Maroochydore |
JUDGE: | Cash DCJ |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND A NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESIVE OR INADEQUATE – where the appellant was the named respondent of a protection order – where the appellant subsequently breached the protection order on 13 occasions – where the learned magistrate sentenced the appellant to a combined prison probation order – where a declaration of the 48 days spent in pre-sentence custody by the appellant was made – whether the learned magistrate erred in imposing a term of imprisonment on the basis that it was the only appropriate sentence. |
ORDERS: |
|
APPEARANCES: | M Hynes instructed by Nyst Legal for the appellant E Bolam instructed by the Office of the Director of Public Prosecutions for the respondent |
- [1]HIS HONOUR: This is an appeal by LPA against a sentence imposed by a magistrate in respect of offences of contravening a protection order. The applicant for an extension of time within which to appeal is a man who is in his early 50s. He had been a police officer for many years but retired after developing post-traumatic stress disorder. Following his retirement, the applicant and his then wife successfully operated a chain of gymnasiums. By early this year, the applicant’s relationship with his wife had broken down.
- [2]On 11 January 2023, a temporary protection order was made against the applicant. Among other things, it restrained the applicant from contacting, attempting to contact or being within a specified distance of his wife, daughter or son. Exceptions were provided for some contact connected with custody matters and when the applicant was attending to business commitments at the gyms, in which case he was not to be closer than five metres from the aggrieved.
- [3]Within nine days of the order, the applicant breached it 11 times by messages and telephone calls to his wife, daughter and son. Some messages could be described as emotionally manipulative or even menacing. On 27 January 2023, the applicant was arrested, charged with contravening the order and released on bail. Three days later, contrary to the protection order and while on bail, the applicant attended his daughter’s place of work and then his wife’s, a gym in which the applicant had an interest. An extract from the statement of facts tendered at sentence is illustrative of the applicant’s conduct:
At 3.45 pm on 30 January 2023, police received a triple O call from the applicant, stating that he had attended the gym, where he had seen the aggrieved. The applicant told triple O that the aggrieved was breaching the domestic violence order by being within five metres of him and that he was in fear. Police arrived approximately five minutes later and did not observe the defendant upon entering the business. Police located the aggrieved inside the business. The aggrieved was observed to be visibly shaken by what had occurred.
- [4]Police exited the business and located the applicant on a grassed area to the left of the building approximately 50 metres from the entry to the gym. The applicant stated that he had attended the business to pay a painter. Police asked the applicant if he was aware of the current temporary domestic violence order and the conditions. The applicant stated that he was aware and that the aggrieved was breaching the last condition that she was not allowed within five metres of him. Police explained the conditions only applied to him and that he was not meant to be within five metres of the aggrieved. He disagreed and became argumentative with police, demanding that they apply for a domestic violence order because he was being intimidated by the aggrieved. The defendant was then arrested and transported to Maroochydore watch-house.
- [5]The applicant spent the next 48 days in prison on remand. On 17 March 2023, the applicant appeared before a magistrate at Maroochydore. He was represented by a legal practitioner and pleaded guilty to 13 charges of contravening the protection order. After hearing submissions, the magistrate sentenced the applicant to a combined prison probation order, pursuant to section 92(1)(b) of the Penalties and Sentences Act 1992 (Qld). The effect of the order was that the applicant was sentenced to imprisonment for 48 days, a declaration was made that the applicant had already served that time, and it was ordered that the applicant be released on probation for a period of two years.
- [6]The explanation for the magistrate’s determination that the applicant had spent 48 days in custody as opposed to the 46 recorded on the pre-sentence custody certificate is to be found in the submissions of the applicant’s representative, which were unchallenged by the prosecutor and accepted by the magistrate. The applicant challenges these orders, submitting that they are affected by a specific error – though that contention was withdrawn on the hearing – and, in any event, were impermissibly excessive in the circumstances.
- [7]I note the appeal is out of time. It was filed nearly a month late. There is little by way of an explanation in the notice of application for an extension of time, filed on 11 May 2023. The applicant states.
I only received legal advice about the possibility of an appeal on 9.5.23. I was not aware of the strict time limits prior to that date. Since receiving my sentence, I have undergone mental health issues associated with my incarceration.
- [8]It seems surprising that the applicant, who was represented by an experienced legal practitioner and who had been a police officer for many years, was unaware of the possibility of an appeal. Such concerns as exist about the sufficiency of his explanation for the delay may be put to one side as, in accordance with long-established authority, it is appropriate to consider the merits of the proposed appeal to decide whether an extension of time ought to be allowed to argue the two proposed grounds.
- [9]The applicant’s first ground, the suggestion as to specific error, may be dealt with briefly. In the written outline, he contended that:
The magistrate did not comply with the mandatory terms of section 159A(3)(a) by failing to state the dates between which the offender was held in pre-sentence custody.
- [10]A similar error was alleged in R v DAB [2022] QCA 268. That case turned upon the operation of section 159A(3B) and the decision of the Court of Appeal in R v Braeckmans [2022] QCA 25. In DAB, the sentencing judge failed to make any declaration about pre-sentence custody despite there being a period to which section 159A applied. The apparent intent of the sentencing judge, though based on a misunderstanding of the decision in Braeckmans, was to treat none of the time in pre-sentence custody as time served under the sentences imposed.
- [11]Such an approach was authorised by section 159A(3B), but in terms of the legislation, it required the judge to:
- state the dates between which the offender was held in pre-sentence custody; and
- calculate the time that the offender was held in pre-sentence custody; and
- declare the part of the time that is taken to be imprisonment already served under the sentence or declare that no time is taken to be imprisonment already served under the sentence.
- [12]In DAB, the applicant submitted that the sentencing judge erred in failing to make a statement about the pre-sentence custody not to be declared. The Court of Appeal, consisting of the President, Justice Dalton, and Justice North, rejected this argument, stating (at [7]):
By the second ground of appeal the appellant contended that a trial judge who fails to make a statement as to the dates between which an offender had been held in custody and who fails to calculate the time an offender had been held in custody before the sentence makes an error of law which required resentencing in terms of Kentwell v The Queen. The requirements of s 159A(3B) of the PSA are mandatory. If a trial judge fails to state those dates and calculate the relevant time, but nonetheless goes on to state what part of the time is in fact declared as time served under the sentence, it seems to us that the omission to comply with s 159A(3B)(a) and (b) would not of itself be an error which would compel this Court to resentence in accordance with the principles in Kentwell.
- [13]Here, the position is wholly analogous to DAB. Section 159A(3) and 159A(3B) are functionally the same and, in terms of paragraphs (a) and (b) in each provision, identical. Applying the statement of the Court of Appeal in DAB must have a result in this case that the magistrate did not err by making the declaration required by section 159A(3)(c) even though he did not comply with paragraphs (a) and (b). This was conceded by the appellant on the hearing of the appeal and, for the respondent, the concession made in the written outline was appropriately withdrawn.
- [14]I pause, though, to observe that despite my rejection of this ground of appeal, it is obviously desirable that sentencing courts comply with the terms of the legislation and in each case, where there is relevant pre-sentence custody, state the dates, calculate the time, and then make an appropriate declaration. The argument of the applicant as it concerns the second ground of appeal is distilled in his outline in paragraphs 33 through to 36. The effect of the argument is that, notwithstanding the seriousness of the applicant’s conduct, when seen in the context of his mental health and time in pre-sentence custody, ‘there was no warrant for considering that imprisonment should have formed any part of the sentencing order.
- [15]For the reasons which follow, I accept that the sentence imposed was excessive in the circumstances, such that this Court’s discretion to intervene is enlivened. It is correct, as the applicant observes, that his sentence was to be determined in accordance with the principles contained in sections 9(1) and (2) of the Penalties and Sentences Act. These include the sentencing purposes of deterrence and denunciation, which were important considerations. The principle in section 9(2)(a) was also engaged and an order for imprisonment could be imposed only if it was the only appropriate sentence, having regard to all of the circumstances. This, in turn, depended upon an assessment of the applicant’s criminal conduct in light of his personal circumstances. The facts outlined above revealed a concerning disregard for both the protection order and the wishes of his family. It is not to the point that the applicant was, as was submitted, “desperate to talk to his children.”
- [16]A Magistrate had determined that it was appropriate to restrain the applicant from such contact. If the applicant was unhappy about the conditions, his remedy was to be found in an application to Court, not in ignoring the conditions more than a dozen times including after being charged with contravening the order. I do not accept as entirely correct the applicant’s characterisation of his offending as being “toward the lower end of the spectrum for offences of this kind.” He may not have been violent, and he may not have overtly threatened his wife and daughter, noting a less generous view of the possible implications of his messages about financial matters and his daughter’s employment might be open, but the applicant’s persistent disregard for the protection order removes his case from those that might properly be described as low-level offences. Having said that, I acknowledge that the Courts frequently encounter more serious examples of breaching protection orders.
- [17]The applicant’s mental health was relevant, but it did not go beyond Professor Morris’ view that in late January 2023, the applicant was in the “hypomanic phase of a bipolar mood disorder” which clouded his judgment and limited his insight. The Magistrate had regard to this condition as diminishing, to a degree, the applicant’s criminality. The Magistrate was provided with no further insight as to the nature and the severity of the applicant’s condition. There was, in these circumstances, no basis for concluding that the hypomania associated with bipolar mood disorder was a serious psychiatric illness of the kind considered by the Victoria Court of Appeal in R v Tsiaras [1996] 1 VR 398. On the evidence presented to the Magistrate, the applicant’s condition was germane to the assessment of the applicant’s culpability but could have little relevance to considerations of deterrence and denunciation.
- [18]The applicant cooperated in the administration of justice and was apparently remorseful. He was of prior good character and enjoyed the support of friends who spoke of his contributions to the community. He had spent a month and a-half in jail in circumstances made more difficult by his mental condition and his prior employment as a police officer. These were matters considered by the Magistrate. The issue, ultimately, is whether the Magistrate erred in some unspecified manner by not determining these factors meant some sentence other than imprisonment was potentially appropriate. In my view, the Magistrate did err in that way. While the objective seriousness of the applicant’s persistent disregard for the protection order called for a sentence that both denounced his conduct and represented a deterrent to his and others, there was much in the applicant’s favour, some of which I have already mentioned.
- [19]The balance of section 9(2) of the Penalties and Sentences Act sets out factors to which regard must be had. These left much room for mitigation of the applicant’s sentence. Perhaps most important of these was the time he had spent in pre-sentence custody, which meant that by the time he came to be sentenced, he had already been substantially punished. These matters, collectively, meant in my view that a sentence which did not involve an order for imprisonment was one which was open in the circumstances. That being so, section 9(2)(a) prevented an order for imprisonment being made because such a sentence could not, in the circumstances, be considered the only appropriate sentence. In those circumstances, it is appropriate to grant the extension of time sought by the applicant to allow the appeal and to re-sentence him.
- [20]In having regard to all the matters that I have mentioned, the appropriate sentence is that the applicant be released on probation for a period of two years, having regard to the time spent in pre-sentence custody but without making an order for imprisonment or a declaration specifically in respect of that. Such an order enlivens the discretion of the Court to not record a conviction. This involves consideration of the factors in section 12 of the legislation. Those matters, in the circumstances of this case, favour not recording a conviction. I would, however, note that the sentence imposed by the Magistrate was one that, but for section 9(2)(a), was clearly open. It is only the principle in section 9(2)(a) that has the result that, in this case, the discretion miscarried because there were other options that might also have been appropriately imposed.
- [21]For these reasons, the orders will be one, the extension of time within which to appeal will be granted. Two, the appeal will be allowed. Three, the applicant is re-sentenced to probation for a period of two years on the same terms as that imposed by the Magistrate, and four, convictions are not recorded.
- [22]There will be the further order, then, that the respondent is to pay the costs of the appellant in the scale amount of $1800.