KJP v Commissioner of Police[2023] QDC 97

DISTRICT COURT OF QUEENSLAND

1. [1]
   This appeal concerns two files – D111/2022 and D112/2022 – reflecting that the appellant was sentenced by a Magistrate for offences on two different dates in July 2022. As a result of the final orders made, the appellant was sentenced to imprisonment for three months, but served that period of imprisonment in the community on parole. The appellant is dissatisfied with the sentences imposed. She appeals pursuant to section 222 of the Justices Act 1886 (Qld) against the sentences imposed on three grounds. First, that the Magistrate erred by not having regard to section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld). Secondly, that the sentence has miscarried because the Magistrate did not give adequate reasons for his decision. Thirdly, the sentences are in any event excessive.
2. [2]
   I note that in D112/2022 the appellant requires an extension of time within which to appeal. The delay in commencing the appeal was short and there is some explanation for it. In accordance with established authority, it is appropriate to consider the merits of the proposed appeal to decide if an extension of time should be allowed. Before dealing with the grounds of appeal it is helpful to set out the circumstances of the appellant’s offences and how they were deal with by each Magistrate.

The offences and sentence hearings

3. [3]
   In July 2022 the appellant was 58 years old. She is an alcoholic. Her marriage of many years ended, and there was a protection order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld).^[1] By this order, the appellant was restrained from going to her ex-husband’s home unless she had his written permission and was not drunk. The appellant had already breached this order three times in March and April 2022. She was convicted of offences of breaching a protection order and was ordered to undertake probation. The appellant was on probation when she committed the first offence that is the subject of this appeal.
4. [4]
   At around 2.30 am on 4 July 2022 the appellant was drunk. She went to her ex-husband’s house in breach of the protection order. Because of her state, her ex-husband allowed the appellant into the house where she slept. When day broke and she woke up, the appellant verbally abused her ex-husband and left the house driving his car and with his mobile phone. The ex-husband told the police what had happened. He tracked the location of his phone and police found the car and appellant at the Twin Waters Resort where she had been staying. The appellant was still drunk. The appellant was charged with breaching the protection order.
5. [5]
   She appeared before a Magistrate later the same day, represented by a duty lawyer. The hearing was, understandably, brief. The police prosecutor noted the appellant’s prior convictions and that she was on probation. It was submitted by the prosecutor that a short period of imprisonment, wholly suspended, was appropriate. The duty lawyer commenced submissions by saying, ‘I’ve listened carefully to my friend’s submission, and my submissions are along the same line.’ He alluded to some difficulty the appellant might face from the recording of a conviction because she was a real estate agent but made no actual submission against the recording of a conviction. Neither the prosecutor or duty lawyer mentioned section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld).
6. [6]
   The Magistrate’s sentencing remarks were similarly brief. This is unsurprising considering the short submissions of the prosecutor and duty lawyer, and the apparent concession of the appellant’s duty lawyer. The Magistrate said that he took into account the appellant’s plea of guilty and the fact that she offended while on probation. He ordered that the appellant be imprisoned for three months but immediately suspended the sentence for an operational period of nine months. Necessarily, a conviction was recorded.
7. [7]
   Less than a week later, on the afternoon of 8 July 2022, the appellant went to her ex-husband’s house on contravention of the protection order. She was drunk again. Her conduct on this occasion was less serious and involved her walking across the driveway. Still, this was a breach of the protection order and as a consequence the appellant was arrested. She spent three days in custody before appearing before a different Magistrate. The same duty lawyer represented the appellant. The duty lawyer appropriately conceded that the suspended sentence ordered just a week before should be activated and submitted that the court should ‘fashion an order in such a way that she’s released from imprisonment today’. The Magistrate ordered that the appellant be imprisoned for three months and ‘activated’ the suspended sentence.^[2] The Magistrate further ordered that the appellant be released immediately to parole.

The nature of the appeal

8. [8]
   The appeal is brought pursuant to section 222 of the Justices Act 1886 (Qld). Section 222(2)(c) provides that if a person pleads guilty in the proceeding before the Magistrate, they may only appeal on the ground that the ‘fine, penalty, forfeiture or punishment was excessive’. Pursuant to section 223 of the Justices Act, the appeal is by way of rehearing on the evidence given in the proceeding before the Magistrate (and any further evidence that might be admitted with leave). I am required to conduct a real review of both the evidence before the Magistrate, and the Magistrate’s reasons for imposing the sentence, to determine whether the decision was affected by error. As this is an appeal against the exercise of the sentencing discretion, it must be determined in accordance with the well-known principles in House v The King (1936) 55 CLR 499.^[3] If I find that the sentence imposed was ‘unreasonable or plainly unjust’, or if the Magistrate erred in law, acted upon a wrong principle, took into account irrelevant matters, failed to take into account relevant matters, or mistook the facts, then I can exercise the sentencing discretion afresh.

The appellant’s arguments

9. [9]
   In each matter the appellant submits the Magistrate erred by not specifically referring to the principles in section 9(2)(a) of the Penalties and Sentence Act 1992 (Qld). A separate argument concerning the adequacy of the reasons in respect of each sentence was subsumed into this complaint.^[4]
10. [10]
    Section 9(2)(a) provides:

3. (2)
   In sentencing an offender, a court must have regard to—

1. (a)
   principles that—

1. (i)
   a sentence of imprisonment should only be imposed as a last resort; and

2. (ii)
   a sentence that allows the offender to stay in the community is preferable

11. [11]
    This statutory principle was relevant to the appellant’s sentence in each proceeding. In each case a sentence of imprisonment, whether the appellant was required to serve time actually in custody or not, could only be imposed ‘as a last resort’. Ordinarily, this principle would require a Magistrate to expressly consider the provision and, if imprisonment were to be imposed, to articulate why that was the only appropriate sentence. But a failure to specifically address section 9(2)(a) will not be an appealable error in every case. Sometimes it will be obvious to all involved that imprisonment is the only appropriate sentence. Sometimes the submissions of the parties will frame the case in a way that implies that imprisonment is the only appropriate sentence. This case is an example of the latter. Both the police prosecutor and the duty lawyer representing the defendant made submissions in each proceeding that implicitly acknowledged imprisonment was the only appropriate sentence. So much is made clear by the duty lawyer’s first submissions to the Magistrate on each occasion.
12. [12]
    I do not accept the submission of the appellant that, considering the way in which the parties conducted the hearing before the Magistrate, there was still an overriding obligation on the Magistrate to mention and explore the ramifications of section 9(2)(a). Courts are entitled to expect the assistance of those who appear as advocates. Our system relies upon Court being able to rely upon the submissions of the parties in order to efficiently discharge the Court’s duties. Where experienced practitioners make submissions that are not obviously wrong, there is no error in a Court failing to challenge or question the submission. That is what happened here.
13. [13]
    The appellant relies upon the decision of the Court of Appeal in R v Volkov^[5] and submits that ‘the concession by the applicant’s counsel before the sentencing judge has no bearing upon whether the sentence should be held to have been manifestly excessive.’^[6] This proposition may be accepted as being correct, and I will come to the appellant’s arguments about whether the sentences imposed were excessive, but it is not relevant to the first argument the appellant advanced. In Volkov the Court of Appeal identified that it was always the responsibility of a sentencing judge to sentence in accordance with the applicable statutory and common law principles. A positive submission made by an appellant’s advocate at a sentence hearing cannot displace or qualify the relevant law. A concession by a defence advocate at sentence that a particular sentence should be imposed is of no assistance to an appellate court in deciding whether the sentence is excessive in a manner that betrays the process was affected by error. But that is not the issue presented by the appellant in her first ground where it is argued that there was specific error because neither Magistrate mentioned section 9(2)(a) in sentencing the appellant.
14. [14]
    It could not be argued that either Magistrate, who each have considerable experience, were unaware of section 9(2)(a). In circumstances where the submissions on behalf of the appellant in each proceeding were framed in a manner that accepted imprisonment was the only appropriate sentence, the Magistrates did not err in failing to specifically mention the provision.
15. [15]
    A further point that emerged in oral submissions can be dealt with briefly. The submission of the appellant was to the effect that the duty of the Magistrate to impose a sentence that was just in all the circumstances^[7] also obliged the Magistrate to investigate or inquire about matters not raised by the appellant.^[8] I do not accept that submission. There may be occasions when the information placed before a sentencer is so obviously inadequate that it is necessary to require the parties to provide further information. But it is not the obligation of the sentencer to inquire about matters not raised by the parties or to investigate for themselves the offender’s circumstances.
16. [16]
    That leaves the appellant’s second argument, that the sentences were in any event excessive. The appellant’s real challenge is to the suspended sentence imposed on 4 July 2022. If that sentence was excessive and should not have been imposed, the subsequent sentence of 8 July 2022 must also be set aside. Conversely, if the sentence of 4 July 2022 was not excessive, it is difficult for the appellant to argue that the sentence of 8 July 2022 was inappropriate.
17. [17]
    It is to be remembered that by the time of the appellant’s appearance on 4 July 2022 she had already breached the protection order three times. She had been convicted of these offences and was on probation. This was a very relevant matter which indicated personal deterrence was of considerable importance. It is true that the conduct on 4 July 2022 did not involve violence or threats of harm to any person or property. But it was not trivial offending. It was appropriate for the Magistrate to conclude that the purposes for which a sentence might be imposed could only be achieved through a sentence that would act as a real deterrent to the appellant while promoting her rehabilitation by allowing the probation order to continue. In those circumstances an order for further supervision on probation, or some other sentence not involving imprisonment, would not have been a sufficient deterrent to the appellant. There is no error in the orders made on 4 July 2022.
18. [18]
    It is regrettable for all concerned that the orders did not have the desired effect, and that the appellant breached the protection order again less than a week later. Confronted with those circumstances, the second Magistrate was right to order the appellant serve the whole of the suspended imprisonment and to impose a concurrent term of imprisonment for the later offence. It was also right to give effect to the principle in section 9(2)(a)(ii) of the Penalties and Sentences Act 1992 (Qld) by ordering the appellant be released immediately on parole. Such an order balanced the competing purposes of deterrence and rehabilitation.
19. [19]
    The appellant relied upon a discussion of the sentences imposed in other cases to be found in HFC v Commissioner of Police (Qld).^[9] These do not assist the appellant. All that the discussion shows is that there is a wide range of sentences that might be available when sentencing for contravention of a protection order. The cases mentioned in HFC provide no basis for concluding that the sentences imposed were so outside the range of permissible orders as to indicate the sentencing discretion miscarried.

Further evidence

20. [20]
    During submissions on the appeal, I raised whether further material might be filed to show the appellant’s progress since the sentences were imposed, a matter potentially relevant if the orders were set aside and I were to re-sentence the appellant. At my invitation, such material was filed by the appellant and responded to by the prosecution. While the evidence might be admitted with the leave of the court,^[10] as I have concluded the sentences were not affected by error and the appeals should otherwise be dismissed, leave to rely upon that material should be refused.

Conclusion and orders

21. [21]
    The appeals in each proceeding are dismissed. There being no application for costs by the respondent, there will be no order as to the costs of the appeal.