WART v Cleveland Police Prosecutions
[2024] QDC 33
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WART v Cleveland Police Prosecutions[2024] QDC 33
WART v Cleveland Police Prosecutions[2024] QDC 33
![WART v Cleveland Police Prosecutions [2024] QDC 33](/judgmentview/image?name=361411.001.jpg&id=361411)
QUEENSLAND COURTS AND TRIBUNALS
DISTRICT COURT OF QUEENSLAND
APPELLATE JURISDICTION
JUDGE SMITH
No 2824 of 2023
W.A.R.T. Appellant
and
CLEVELAND POLICE PROSECUTIONS Respondent
BRISBANE
10.07 AM, FRIDAY, 2 FEBRUARY 2024
DAY 1
RULING
HIS HONOUR: This is an appeal by the appellant against a sentence imposed on him in the Cleveland Magistrates Court. There is also an appeal against the length of a domestic violence order. It is alleged that the sentence was manifestly excessive, as was the period of the order. On the 27th of September 2023, the appellant pleaded guilty to two charges of contravening a domestic violence order. Because this was in the Magistrates Court, the maximum penalty was three years’ imprisonment.
HIS HONOUR: He was sentenced to 18 months’ imprisonment with a parole release date on the 21st of March 2024, that is, after six months and the domestic violence order was extended by 20 years. The appellant was 40 years of age and had a relevant two-page criminal history, including for 10 contraventions of domestic violence orders. He had previously been sentenced to probation and a suspended sentence which had been activated.
The facts of the previous offending, or at least some of it, are set out in the Crown’s submissions. On the 1st of June 2021, he received 18 months’ probation for a breach of a domestic violence order. On 22 November 2021, a one-month suspended sentence for a breach and he breached this and it was activated and he was given an immediate parole release date on 13 April 2023.
Turning to the present charges, the domestic violence order was made against him on 13 April 2023; it was varied, as I understand it, on 6 June 2023. Charge 1 alleged conduct between 16 June and 5 August 2023 and charge 2, conduct on 6 June 2023. As to charge 1, he sent a large amount of text messages, Facebook messages and made many phone calls and left voice messages to the complainant, in breach of a no contact condition. He also threatened to kill her.
As to charge 2, there was contact between them in breach of the order, but the evidence seemed to reveal that she had given consent to this, but it could not be said to be in writing. He had done a little over four days on remand by the time of sentence. The prosecution submitted for a head sentence of three months’ imprisonment to serve a-third. The Defence lawyer told the Magistrate he was 40 with two children, aged 10 and 12, he looked after them, he was attending counselling at Lives Lived Well, he had anger management, depression and anxiety, he worked full-time as a truck driver, he was remorseful, there was an early plea, his being in jail was a wakeup call.
As to charge 2, they were trying to work on their relationship, but alcohol was consumed and discussions broke down and she voluntarily met him. It was agreed that jail was within the range, but there should be an immediate parole release date. The Magistrate, in his decision, took into account the plea of guilty, the facts, the history, deterrence was important and imposed the sentences I referred to earlier.
The appellant submits that an error occurred here. The domestic violence order was not made on 6 June 2023, but on 13 April 2023. The charge was wrong. This is said to be a fundamental error. It is submitted also that 18 months’ imprisonment to two years’ imprisonment was too high. A number of comparable cases are relied on, referred to, in the submissions and I have had regard to those cases. It is submitted the range is in the order of nine to 12 months’ imprisonment. It is also submitted that 20 years is too long for this order. The prosecution, in fact, submitted for five years; that is appropriate here. It is pointed out he had no children with this particular aggrieved person and had not offended against her previously in the sense of breaches.
The respondent concedes the sentence is manifestly excessive but submits that the period of 20 years is not, in light of the facts of charge 1, in particular. The Crown submits – correctly, in my opinion – in light of the plea, his history and the fact that it was domestic violence, deterrence loomed large and 12 months’ imprisonment is appropriate and there is no error with the 20-year order.
Now, I have considered the comparable decisions relied on by the appellant. In JHL v Commissioner of Police [2016] QDC 346, the appellant pleaded guilty to three charges of contravening a domestic violence order and one charge of common assault. The offences involve sending text messages using offensive language, racist overtones and threats of violence. Twelve months’ imprisonment was imposed with release after a-third. He had an extensive history including 22 previous convictions for contravening the order and the current offending commenced the day after the DVO was made. The sentence was not excessive and the appeal was dismissed.
In NVZ v Queensland Police Service [2018] QDC 216, the appellant pleaded guilty to one charge of contravening a domestic violence order, aggravated offence. He received nine months’ imprisonment with immediate parole, with 36 days pre-sentence custody declared. He breached the temporary protection order by making threats to the aggrieved. He was 32 at the time, had a criminal history and seven previous offences of contravening a domestic violence order. The Court was not satisfied the sentence was excessive and dismissed the appeal.
In RGD v Queensland Police Service [2018] QDC 147, the appellant pleaded guilty to three counts of contravening a domestic violence order, aggravated offence. He was sentenced to 18 months’ imprisonment to be served concurrently and cumulatively on a 15-month sentence. A parole date was set after a-third. There was actually a physical altercation in that case, where the aggrieved was pushed against a lounge room window and then threatened to kill her and he abused her after the police arrived. He was 25, unemployed, with a significant criminal history for property and motor vehicle offences, breaches of bail, probation and community service orders. He had six previous like offences and was on probation and parole at the time. He had like offending against the same aggrieved. The sentence was held not to be excessive. I think that case is worse than the present one in light of the fact of his situation at the time and also as violence, actual violence was involved.
Having considered all of those matters, I do consider a sentence of 12 months’ imprisonment to be appropriate. I think 18 months is outside the range, bearing in mind the comparable decisions. Also, a fundamental error occurred in the charge sheet and there needs to be resentencing anyway. Bearing in mind his pleas of guilty, his domestic violence history, his previous convictions and the facts of the matter, I will impose 12 months’ imprisonment with an immediate parole release date.
The next issue is the length of the protection order. Section 42 of the Domestic Violence Act required the Magistrate to consider whether the order needed to be varied. In determining the issue of variation, a Court under section 92 is required to take into account a number of things. Also section 97 provides the order is to be for five years, but a Court may order it to be longer if it is necessary or desirable to protect an aggrieved person from domestic violence. It is difficult to see that the period of 20 years was based on any particular reason.
It is true the appellant had a domestic violence history, but on the other hand, this offending did not involve physical violence and he had not breached this order previously or offended against this aggrieved. There were also no children, which is a situation to be – which is relevant, because there is a likelihood of contact in the future. In all of the circumstances, I consider the 20-year period to be excessive. In my opinion, it should be for the period of five years from today.
In all of the circumstances, I make the following orders: (1) the appeal is allowed; (2) I set aside the sentence and orders made by the Magistrate; (3) on each count, a conviction is recorded; (4) on count 1, I sentence the appellant to 12 months’ imprisonment; (5) on charge 2, I sentence the appellant to one months’ imprisonment; (6) those sentences are to be served concurrently with each other; (7) I fix the date that he be released on parole as at today’s date, 2nd of February 2024;
HIS HONOUR: (8) I declare, pursuant to section 159A of the Penalties and Sentences Act the appellant has done 132 days’ pre-sentence custody. I state the dates are the 22nd of September 2023 until the first of February 2024 and I declare that time to be time already served under the sentence; (9) I vary the protection order by ordering it to last until the 1st of February 2029 on the conditions imposed by the Magistrate as varied by him. And Legal Aid, you will undertake to advise the appellant of the matters in section 1(6) of the Penalties and Sentences Act?
MS GIORGIO: Yes, your Honour.
MS SAMIOS: Yes, your Honour.
HIS HONOUR: And the lawyers for Legal Aid – from Legal Aid undertake to advise the appellant of the matters referred to in section 160G of the Penalties and Sentences Act.
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