DDM v Commissioner of Police[2024] QDC 215

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal pursuant to section 222 of the Justices Act 1886 (Qld) (“JA”) against sentences imposed on the appellant by an acting Magistrate at Ipswich on 19 July 2024. 
2. [2]
   The appellant pleaded guilty to the following charges: 

(1) one charge of contravention of a domestic violence order (aggravated offence);

(2) one charge of use of a carriage service to make a threat to kill;

(3) one charge of going armed so as to cause fear;

(4) one charge of possess property suspected of having been used in connection with the commission of a drug offence; and

(5) one charge of failing to properly dispose of a needle and syringe. 

3. [3]
   The following sentences were imposed by the acting Magistrate. For the charge of going armed so as to cause fear, two years’ imprisonment suspended for 12 months.  For the charge of contravention of a domestic violence order (aggravated offence) imprisonment for 12 months, suspended for 12 months. For all of the other offences, the appellant was convicted and not further punished.
4. [4]
   The acting Magistrate made numerous errors in the exercise of his sentencing discretion. The respondent concedes that the appeal should be allowed and that I sentence the appellant according to law. I formally allow the appeal. The acting Magistrate did not have an accurate pre-sentence custody certificate before him. I therefore give leave to the appellant pursuant to section 223(2) of the JA to adduce an accurate pre-sentence custody certificate which is exhibit KB7 to the affidavit of Keeley Barnes, filed 1 October 2024.
5. [5]
   The relevant facts relating to the offending before the court are set out in exhibit 1 below which is a sentencing schedule. The offence of going armed so as to cause fear occurred at about 11.15 am on 20 December 2023 when a train pulled into Riverview train station and members of the public fled carriage number 2 in circumstances where there was an allegation that the appellant was on the train armed with a blowtorch and was threatening travellers with it. When police arrived at the scene a few minutes later, they located him. They observed that he had a backpack with a metal pipe with a handle sticking out of it. This was revealed to be a hose piece. There were no flammable liquids located in his possession, and he told police that he had it with him so he could “clean Springfield up.”
6. [6]
   The police detained the appellant and he was arrested in relation to this and other matters. He was found to have drug paraphernalia giving rise to the charge of possessing property suspected of having been used in connection with the commission of a drug offence. He was also charged with failing to properly dispose of a needle and syringe as a consequence of the search conducted by police at this time.
7. [7]
   Thereafter, when he was in custody, he telephoned his partner on various occasions between 1 January 2024 and 1 April 2024 and made threats to her and family members. This occurred in circumstances where on 13 September 2021 in the Ipswich Magistrates Court, a domestic and family violence protection order had been made, and his offending was in breach of that order. The telephone calls he made were recorded as is the case with all such calls. He made at least six threats to kill the complainant and these give rise to the separate charge of the Commonwealth offence of using a carriage service to make a threat to kill. He demanded repeatedly that his partner say that she – to him, “I will bow down to you.” He said to her, “I will fucking kill you,” and, “You are my fucking wife. You behave or I will take your life.” She was very distressed by this. Further, on occasions, he threatened to kill the grandmother and brothers of the complainant. At one point, he referred to annihilating a whole generation.
8. [8]
   As for the defendant’s personal circumstances, he has a simply appalling criminal history that extended at the time he was initially sentenced to 16 pages. It contains numerous entries for many types of offending from when he was a child to the present time. Serious property offending is mixed with offences of violence, domestic violence offending, drug offending, and there are entries for going armed so as to cause fear, and possession of a knife in a public place. He has spent lengthy periods of his life in prison. 
9. [9]
   As for the effects of his offending on the various victims, it is fair to say that although he did not actually have a blowtorch on the train, the people who exited the carriage who apprehended he did would have been very fearful. It is evident from the facts relating to his threats made from jail to his partner that she was terrified.
10. [10]
    I take into account in his favour his pleas of guilty. The purposes for which I am imposing the sentences are to punish him to an extent in a way that is just in the circumstances, to provide conditions which I consider will help him to be rehabilitated, although I am of the view this is an increasingly forlorn hope given his criminal history which evidences recidivism. I am also imposing the sentences to deter him and others from committing these or similar offences. Quite simply, these antisocial violent threats are such that considerations to both personal and general deterrence are most relevant in the exercise of my sentencing discretion. I am also imposing these sentences to make it clear that the community acting through the court denounces this sort of conduct in which he was involved. 
11. [11]
    In terms of an appropriate sentence for his domestic violence offending, I am guided by the decision of Judge Kefford in NVZ v Queensland Police Service [2018] QDC 216 where an aggravated breach of a domestic violence order by a recidivist 31-year-old offender who threatened his partner in a similar way whilst in court received a sentence of nine months with immediate release on parole which was upheld by her Honour on appeal. It needs to be pointed out that although the appellant before me pleaded guilty to the aggravated breach of a domestic violence order, the circumstances of aggravation were not made out, and the maximum penalty that can be imposed in respect of this offending is imprisonment for three years because the circumstance of aggravation has not been made out. It is also three years because it was proceeded with summarily.
12. [12]
    In terms of the charge of going armed so as to cause fear, I have been provided with R v Hayes [2008] QCA 236 and R v Lidbetter [2009] QCA 6. In Hayes, a 33-year-old with a relevant criminal history was sentenced to 11 months’ imprisonment after a road rage incident where he threatened the victim with a knife. This was upheld on appeal. In Lidbetter, a 23-year-old with a relevant criminal history was re-sentenced on appeal for going armed to cause fear in circumstances where he held a knife to the throat of a stranger. He received a sentence of 12 months with a parole release date after four months.
13. [13]
    I consider the conduct of the appellant giving rise to the relevant charge before me as less serious than that in either Hayes or Lidbetter in circumstances where he merely had a hose fitting, not a blowtorch, and on the facts before me has not actually claimed to have a blowtorch.
14. [14]
    Balancing all of these factors, in respect of the charge of breaching the domestic violence order, the appellant is convicted and sentenced to imprisonment for 12 months. I order that the term of imprisonment be suspended after serving a period of 30 days.  The operational period under the order is 12 months. The appellant must not commit another offence punishable by imprisonment within the operational period if he is to avoid being dealt with for the suspended term of imprisonment.
15. [15]
    In respect of the charge of going armed so as to cause fear, the appellant is convicted and sentenced to imprisonment for nine months to be served concurrently with the other sentence. I order that the term of imprisonment be suspended after serving a period of 30 days. The operational period under the order is 12 months. The appellant must not commit another offence punishable by imprisonment within the operational period if he is to avoid being dealt with for the suspended term of imprisonment.
16. [16]
    In respect of the Commonwealth offence of using a carriage service to make a threat to kill, the appellant is convicted and released without passing sentence pursuant to section 20(1)(a) of the Crimes Act 1914 (Cth) upon giving security by recognisance in the sum of $200 conditioned that he be of good behaviour for a period of 12 months. The appellant’s solicitor, Ms Oswald, has undertaken to explain the sentence to him pursuant to section 20(2) in circumstances where he is not present in court today.
17. [17]
    In respect of the other charges, I convict the appellant and do not further punish him. Each of the sentences I have imposed are also to be served concurrently with the sentences he was already serving. I declare 30 days from 19 June 2024 to 18 July 2024 inclusive spent in custody in relation to these offences is to be imprisonment already served under the sentences. I direct the registrar to inform the Commission of this declaration.