IFM v Queensland Police Service [2016] QDC 140

1. Contravene DVO 13 March 2015, 6 months imprisonment;

2. Contravene DVO 13 May 2015, 15 months imprisonment;

3. Breach bail condition 13 May 2015, one month imprisonment;

4. Breach bail condition 30 May 2015, convicted but not further punished;

5. Contravene requirement 30 May 2015, convicted but not further punished.

The sentences of imprisonment were concurrent. The Magistrate fixed a parole release date of 30 December 2015 and 116 days pre-sentence custody was declared as imprisonment already served. Convictions were recorded.

[3] The Appellant served the non-parole period and was released from custody. The parole release date fixed meant that the appellant in fact served half of the fifteen month sentence: that is, the pre-sentence custody of 116 days and the 98 days of non-parole period, a total of 214 days (about 31 weeks or 7 and a half months).

[4] The grounds of appeal are in respect of the term of 15 months imprisonment imposed on the second charge and are as follows:

2. The Magistrate did not take into account the principles in section 9 of the Penalties and Sentences Act 1992 in making the sentence (that is, there was a failure in the sentencing process); and

3. The Magistrate did not properly take into account the Appellant's pleas of guilty to the charges (in other words, he did not specifically say so).

[5] The maximum punishment for a breach of a Domestic Violence Order in charge 2 was, at the time of sentence, 3 years imprisonment: section 177(2)(a) Domestic Violence and Family Protection Act 2012 ("the Act") (the Appellant having been previously convicted in respect of a breach of a Domestic Violence Order, that is what is charge 1).

[6] The Appeal is conducted as a hearing de novo, on the evidence that was before the Magistrate: sections 222 and 223 Justices Act 1886.

[7] The material principle to be applied in an Appeal against sentence is that some error in the exercise of the sentencing discretion must be identified: House v The King (1936) 55 CLR 499. Dixon, Evatt and McTiernan JJ, at 505 wrote:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the Judges comprising the appellate court consider that, if they had been in the position of the primary court they would have taken a different course. It must appear that some error has been made in exercising their discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."

[8] The principles governing Appeals against the exercise of discretion on sentencing are well established. In Hughes v Hopwood (1950) QWN 21 at 31, Macrossan CJ stated that an Appeal Court is not entitled to interfere unless it "... can find that the sentence is manifestly excessive or that there are some circumstances which show that the Magistrate acted under a misapprehension of fact or on some wrong principle in awarding a sentence".

[9] For a sentence to be 'excessive' it must be "beyond the acceptable scope of judicial discretion" or "so outside the appropriate range as to demonstrate inconsistency and unfairness: R v Morse (1979) 23 SASR 98; R v Lomass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606.

[10] In charge 1 the Appellant pushed the Complainant over and punched her to the jaw. This occurred on 18 March 2015. No physical injury was alleged. The Appellant was on bail after he was arrested and charged.

[11] In charge 2, on 30 May 2015, the Appellant grabbed the Complainant by the throat and hit her, knocking her to the ground. He kicked her in the body, dragged her to her feet and verbally abused her. He then dragged her (that is, on her feet) to a nearby park, knocking her to the ground whilst en route, hit her in the head, picked her up and continued to drag her with him. Each of the Complainant and Appellant ran away when, it seems, neighbours said that the police had been called. No physical injury was alleged.

[12] I do not need to refer to the facts and circumstances of charges 3, 4 and 5.

[13] His Honour said the maximum penalties for domestic violence breaches, in the circumstances of this case, were 3 years imprisonment. He said that pleas had been indicated some time ago and that he would take them into account in the Appellant's favour. He said that one of the pleas came after the entry of a plea of not guilty, and thus was a delayed plea, but was prepared to accept it nevertheless as a timely plea.

[14] His Honour referred to the Appellant having minimised or given a reason for his violent conduct, "... in a fashion that I have never heard before in a long time... [that is] the notion that being called Jesus Christ is the most upsetting or offensive name that an Aboriginal can be [called]. I just think it is fiction."

[15] His Honour said that the community "... cannot tolerate this sort of violence against partners of violent men. That is clear in the current climate, that domestic violence simply cannot be tolerated. It is a view that I completely endorse. I need to provide conditions that I consider will help you be rehabilitated. I note with some interest that whilst you were on parole, you did not commit offences, so there is a benefit to you being on parole that seems to have some break or some restraint on your continued offending ... there must be a deterrent effect when these sentences are imposed on you - to you personally, because you continue [to] offend, and to the wider general community who must be alert to the fact that if they intend to beat up on their partners, they can expect a significant penalty to be imposed."

[16] His Honour continued by reference to criminal history in the following terms: "... given your terrible criminal history, there is a significant need for the community to be protected from your continuing criminal activity. I refer in that instance to exhibit 2 which reflects a criminal history extending back to the point that you were a child. That being said, I acknowledge, as a consequence of accepting that criminal history, that your youth was not an untroubled one and I am prepared to accept that you suffered some difficulties in your childhood which should be reflected in the sentence. I have regard to the serious nature of the offence and the number of offences, your previous criminal history for similar offences and any number of other offences. I have mentioned the degree of remorse that you have shown. I accept that there is a detrimental effect on the victim; it must be the case where a partner is beaten by a partner. I take into account the prevalence of the offence in the community. I take into account that the second and more serious of the offences was committed whilst you were on bail."

[17] His Honour continued with respect to the latter offence in the following terms: "with respect to the contravention of the domestic violence order on 30 May, that is the offence that occurred some short time after you were placed on bail with stringent bail conditions that you chose to ignore. In relation to that offence, you are convicted, a conviction is recorded, you are sentenced to 15 months imprisonment."

[18] With respect to any discount on this sentence of imprisonment imposed on charge 2 in the circumstances of a plea of guilty having been made, His Honour said: "... having regard to those matters outlined in R v James, it gives me some comfort that you should serve a little longer, more than 1/3, which is not an expectation you should have, it is normal that you would, but given that you continue to offend immediately after being put on bail, I think there is still a need to have the community protected for longer by your actual custody." His Honour then extended the protection order made on 20 April 2014 to the 22nd of September 2017.

[19] The Appellant's lawyer conceded to the Magistrate that the Appellant's offence [in charge 2] was more 'severe' than that in R v James [2012] QCA 256 and submitted that a sentence of 12 months imprisonment with a release after 4 months was appropriate. The Appellant's lawyer on this Appeal now relies on other authorities (to which the Magistrate was not referred), namely: PMB v Kelly [2014] QDC 301 and Singh v QPS [2013] QDC 37.

[20] However, I do not consider that those further two cases are really comparable in the circumstances of the Appellant's conduct. In Kelly the defendant had two previous convictions for breach of a Domestic Violence Order. The conduct was more serious and more sustained than that in James. In Singh prior contraventions of Domestic Violence Orders were not permitted to be relied upon by the Prosecution on a basis of a technical omission and hence the term of imprisonment imposed did not reflect such aggravating circumstances.

[21] The Respondent had submitted that the Appellant's conduct in this case involved significant aggravating circumstances, namely that the first breach of Domestic Violence Order was committed about two weeks after the expiration of a sentence imposed for a contravention of a condition of release; the offending in the second domestic violence offence was committed whilst the Appellant was on bail for the former offence; and the Appellant had previously been convicted of breaches of Domestic Violence Order including one committed upon the same complainant. Those are matters open for consideration on sentence.

[22] The conduct of the Appellant in the second charge was sustained and patently violent. He knocked the Complainant to the ground with a blow and kicked her, picked her up and dragged her on her feet, knocking her down again with another blow and picking her up. Hence the conduct occurred not only in a residence but also in a public area. Intervention by neighbours was required in order for the police to be called to the scene.

[23] Every case depends very much upon its own circumstances and comparative sentences are only useful as a guide to a sentencing judicial officer if they reflect similar circumstances, similar conduct, similar antecedents and are truly comparable. Comparative sentences may have the function of indicating a range of sentencing or provide statements of principle stated by a Court of Appeal or another higher court. However, they do not mandate a particular sentence to be imposed by a Magistrate, who has a discretion which if exercised judicially provides him or her, as the case may be, to take account of the criteria to which I have referred. Provided there is an explanation for the sentence imposed which is capable of understanding by an appellate court, judicial discretion allows that judicial officer to impose a sentence which he or she thinks fits the circumstances and reflects all of the matters that are required to be taken into account on a sentencing proceeding.

[24] The Appellant's criminal history did not favour him and His Honour clearly considered that that history was a very relevant factor. It was open for him so to do: Veen v the Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. Insofar as the ground alleging a manifestly excessive sentence is concerned, I do not consider that His Honour has erred in any way and certainly I do not consider that the head sentence of 15 months imprisonment, imposed of course in respect of charge 2, was excessive when one considers the facts and circumstances and applies the principles to which I have referred in this judgment

[25] However, that is not the end of the matter and I need to deal briefly with the other 2 grounds of appeal.

[26] The offence in charge 2 was committed whilst the appellant was on bail. His Honour took that into account as he was entitled to do. I do not consider that His Honour has acted in a way contrary to the principles of sentencing set out in section 9 of the Penalties and Sentences Act 1992 or that his reference to the 'reason' for the conduct of the Appellant was anything more than simply reciting the factual circumstances and the Appellant's view of them, in the course of his decision. It does not seem to me that he has punished the Appellant for advancing a rationale for his conduct, a rationale which the Magistrate, quite clearly, regarded as being risible.

[27] Did the Magistrate take into account the pleas of guilty? He said he did in the decision, but that is not always indicative of pleas of guilty having in fact been taken into account because the latter must be measured against the sentence imposed and the other sentencing remarks made by a judicial officer in the sentencing process. In other words, paying lip service to taking something into account by merely stating it is not enough. That appears to be the thrust of the submissions made on behalf of the Appellant on this ground of appeal.

[28] However, I do not see how that submission is supported when one looks at the terms of the Magistrate's decision, to which I have referred above. His Honour referred to the pleas of guilty, that they were indicated at an earlier time and said that the pleas were timely despite the fact that a plea of not guilty had at an even earlier time been made. The only basis upon which it might be submitted that the pleas of guilty were not taken into account is the sentence actually imposed and the period of actual imprisonment.

[29] When timely pleas of guilty are made, the general rule is that a defendant is prima facie entitled to a discount, that is a reduction, of actual prison time to be served, of one third of the head sentence. That 'one third' might be reduced for a number of reasons, including a demonstrated lack of remorse, or the lateness of a plea of guilty where the expense of a trial has already been incurred or witnesses, particularly vulnerable witnesses, have been exposed to court proceedings and particularly to cross-examination. There are, of course, other reasons which may impact on the quantum of any discount.

[30] In this case the sentence of 15 months imprisonment was one half of the maximum penalty that then applied. I have already found that the head sentence was not manifestly excessive. Hence the question now is really whether by requiring the Appellant to serve about one half of the sentence means that the pleas of guilty were not taken into account. That is an issue which has been properly raised by the Appellant's lawyers because his Honour made reference to the fact that the appellant might benefit further from parole, having already been through a previous parole period without any offending behaviour. The implication in that statement is that a shorter term of actual imprisonment would have resulted in a longer period of parole and hence benefit the Appellant in a way that the Magistrate postulated. However, his Honour may have been weighing up parole against a suspended sentence.

[31] But for the fact that the Appellant has, as a matter of fact, already served the approximate 7 months imprisonment imposed by His Honour, I might have been minded to fix an earlier parole release date and thereby enable the Appellant to have a longer parole period. That would, it seems to me, have reflected what I understood the Magistrate to mean when he referred to the benefit of parole, even if he was also or alternatively weighing it up against a suspended sentence.

[32] However, the reality is that the Appellant has served not only the pre-sentence custody period of course, but also the non-parole period that was imposed. In other words, he has been released after serving that approximate one-half of the head sentence of 15 months. It is now of no benefit to him and of little benefit to the interests of justice or the interests of the community to allow an Appeal and order an earlier parole release date which now would technically, but not in reality, provide a longer parole period. Fixing the parole release date at an earlier date will be of no practical utility and would be of no benefit to the Appellant, save that the criminal history would reflect a shorter period of actual imprisonment and a longer period of parole, in what is really now an artificial adjustment. However, these reasons provide an explanation for future reference of why the actual imprisonment remains extant.

[33] The best I can do in this Appeal is simply to make it clear that, in sentencing offenders, Magistrates ought to take into account the fact that a timely plea which is accepted to be of that character by a court should, unless there are sound reasons that are stated to the contrary, be reflected by the awarding of the full discount on the head sentence. It does not seem to me that it was done in this case. Whilst it may appear to be an error on the part of his Honour, I do not consider that in the circumstances I should interfere with the sentence imposed.

[34] The circumstances are such that the Appeal should be dismissed.

1. Appeal dismissed.
2. The sentence made in the Magistrates Court at Townsville on 23 September 2015 is confirmed.