JRB v Bird [2009] QDC 277

Ms Litchen, who has appeared for the respondent, submits that the appeal should be allowed. The issue in contention with Mr Lynch, who appeared for the appellant, at the commencement of the appeal was as to the sentence which should be imposed if I agree with the submission and proceed to set aside or vary the sentence imposed.

Mr Lynch submits that given the period of imprisonment the appellant should be convicted but not further punished with no conviction being recorded. Ms Litchen initially submitted that the sentence should be varied by being wholly suspended however for reasons which will become apparent during the course of argument while she maintained that a conviction should be recorded against the appellant, she conceded that the appropriate sentence to be imposed in lieu of the Magistrate's sentence is to convict but not further punish the appellant.

The appellant was 35 years of age at the time of committing the offence and when he was sentenced. He is now 36 years of age. At the time of the offence he was subject to a protection order which had been made on the application of the aggrieved person with whom the record shows he had been in a spousal relationship.

This order was made on the 6th of December 2007 and he had been served with a copy of it on the 21st of January 2008. It was to expire on the 5th of December 2009. One of the conditions of the order was that he was not to contact, try to contact or ask someone else to contact the aggrieved directly or indirectly by telephone or other means of communication except for contact with the children of the aggrieved as per written agreement or in accordance with the Family Court. This is a reference to the fact that there were three children of the relationship aged from 3 to 7 years.

The circumstance which caused the Magistrate to approach the exercise of his sentencing discretion in the manner that he did is that the appellant had been convicted of breaches of the same order on two previous occasions before the same court. His first breach was on 11 March 2008 about seven weeks after the order had been served on him. He was fined $400 with no conviction being recorded in relation to that breach.

His second breach was on 19 August 2008, about two and a half months after he had been dealt with by the court for the previous breach. On 29 September 2008 he was fined $1000 with a conviction recorded. In relation to these offences the default periods of imprisonment for non-payment of the fine were 16 days and three months respectively.

The offence for which he was sentenced on 21 November 2008 was committed on 7 October 2008. This was only eight days after he had been dealt with before the same court for a similar offence in relation to the second breach. This was a matter of particular concern to the Magistrate. Apart from these three breaches of protection orders the appellant had no criminal convictions.

It is relevant that after the offence the aggrieved sought to vary the order on 30 October 2008 so that only two conditions remained. Those are the conditions that are often referred to as the standard conditions that he be of good behaviour and not commit acts of domestic violence against her or any other person named in the order.

On 3 November 2008 the aggrieved succeeded in having the order revoked. This was the same day on which the appellant first appeared before the court and was granted bail on the present charge. The appellant and the aggrieved then resumed cohabitation with the children.

The facts relied on by the prosecution in respect of the most recent breach of the protection order were that at 7.30 A.M. the appellant sent the aggrieved approximately eight text messages over a period of approximately one hour. They were said not to have been threatening but were harassing and condescending in nature.

After the aggrieved reported this to the police the appellant admitted that he had sent the text messages and could not offer any reasonable or lawful excuse for doing so. He also said that he was aware of the order and the conditions of the order. He also said that he was aware of the consequence of his actions should he breach the order.

The prosecutor then tendered the appellant's criminal history and his SPER history. As a result of an inconsistency between these histories the Magistrate detected that the criminal history was not up to date. He stood the matter down until the up to date history was obtained.

The appellant's legal representative told the Magistrate after the court was resumed that the second breach occurred when the appellant attended at the workplace of the aggrieved to give her a telephone number. He submitted that there were probably six messages which would not have caused a breach because they related directly to the children. However, he conceded that there were two where the appellant had made comments about the aggrieved's ability to mother the children which would involve a breach of the order.

It was at this stage that the Magistrate intervened and said "Let's be honest and realistic. Let's get down to the fine points here. It's the third breach of a domestic violence order. How can I not impose a term of imprisonment. If you're going to make some submissions in mitigation of penalty as to actually what was the contents of the text messages by all means do so, but he has just appeared in this court some week prior and it's his third breach since May. How can any court not impose an actual term of imprisonment."

The appellant's legal representative went on to tell the Magistrate that shortly after these incidents the aggrieved was having some major difficulties. This was to the extent that with police approval he removed the children from her care because she was somewhat unstable. He took the children home. The parties had reconciled with the protection order being revoked. The appellant was assisting with the care of the children. He was forced to resign his employment to do this. There are now two employers prepared to employ him. He had not sought to take up this employment until the determination of this matter.

His legal representative also emphasised that there was no physical violence in relation to any of the offences and that the current text messages primarily related to taking care of the children. He submitted it was not a breach that required the appellant to be incarcerated. There was then an exchange between the Magistrate and the appellant in which the appellant agreed that he was previously informed by the court in very clear terms that if he came back a third time he would be facing a term of imprisonment.

The Magistrate asked why in these circumstances the appellant had breached the order eight days later. The appellant responded that the aggrieved person had contacted him first so he had her number and replied by saying "I'm allowed to talk to me kids."

The appellant said that the messages went on from there because she had a strange bloke in the house and his daughter was upset and worried. He said that he was very careful what he wrote because of his daughter and as he put it "my three kids."

He then may have indicated a lack of remorse to the Magistrate who had asked him "Why do you try and belittle the whole process, make light of it?" because the appellant's reply was "I don't think what I've done can really be classed as a breach." This resulted in the Magistrate saying "Because you just don't get the message at all, do you, sir. You don't understand what you've done wrong and that's the concerning part for this court today."

The appellant then responded, "Well she had problems. I rang the police. They know I had a DVO yet they allowed me to go over to the house unsupervised or anything. They know I'm a violent person and [indistinct] I just can't see why I'm being punished for trying to take care for my kids and [indistinct]."

Although the quote from the transcript contains a statement that the police knew that the appellant is a violent person, that is contrary to all of the balance of the evidence that was placed before the Magistrate and the basis on which argument has proceeded before me. In those circumstances I proceed on the basis that that was a misinterpretation by the transcriber of the transcript and that in fact the appellant, consistently with the material before the court and before me, was saying that they know that he is not a violent person.

The Magistrate again said that the appellant just did not understand and remanded him in custody. I observe that none of the factual propositions advanced by the appellant or his lawyer were contradicted by the prosecutor.

The Magistrate's reasons for the sentence imposed occupy a page of the transcript. He said "It was the third time the appellant had been before the court for this offence since the 30th of May 2008." He referred to the maximum penalty of a $3000 fine and 12 months imprisonment.

He then said, and I quote, "It's quite apparent that you do not appreciate the gravity of the legislation and the fact that you have breached the same piece of legislation within a short space of time. I've had regard to those matters stated in sections 9 and 11 of the Penalties and Sentences Act which clearly state that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows an offender to stay in the community is preferable. The circumstances of mitigation are such that I accept there has been no physical acts towards your partner. However, as it's your third offence within a six month period, I determine that the only appropriate penalty today is one of actual imprisonment." I note that it is more to appropriate to say that this was the third offence by the appellant within seven months.

This is an appeal under section 222 sub-section 2 paragraph (c) of the Justice Act 1886 on the ground that the punishment was excessive. An appellate court's interference with the Magistrate's sentencing discretion requires the appellant to demonstrate that as stated in House v The King (1936) 5 CLR 499 at 504, he "act[ed] upon a wrong principle...allow[ed] extraneous or irrelevant matter to guide or affect him...[mistook] the facts [or did] not take into account some material consideration."

The Court of Appeal of Queensland said in R v Melano;

ex parte Attorney-General [1994] QCA 523; 1995 2 Queensland Reports 186 at 189 that the operation accorded to section 669A sub-section 1 of the code dealing with Attorney-Generals appeals is generally consistent with these established principles relating to appeals against discretion. Section 699A is analogous to the right of a complainant aggrieved by a decision of a Magistrates Court on sentence to appeal on the basis that the sentence imposed is excessive.

In Melano the approach to appeals by a prosecuting authority, in that case an appeal by the Attorney-General to the Court of Appeal, was expressed by the endorsement of what was said by Justice Mason in Lowe v R [1984] HCA 46; 1984 154 CLR 606 at 612: "Unless the sentencing court has erred in principle either because an error is discernable or demonstrated by a manifest inadequacy or excessiveness, the sentence he or she has imposed will be proper. Variation by this court will not be justified in such circumstances unless perhaps in exceptional circumstances, for example to establish or alter a matter of principle or the sentencing range which is appropriate."

The court said at 190, "Support for the view that ordinarily this court should not allow an appeal under section 669A sub-section 1 unless the sentence is outside the sound exercise of the sentencing judge's discretion is to be found in factors that are material to the exercise of the court's discretion."

This decision has been subsequently cited with approval by Justice White in R v Dullroy and Yates; ex parte Attorney-General Queensland 2005 QCA 219 and in R v Sittczenko; ex parte Commonwealth DPP 2005 QCA 461 by Justice Keane at paragraphs 25 and 26 where he held that in respect of such appeals the court is required to undertake two tasks the first of which is to determine whether or not an error has occurred in the exercise of the discretion possessed by the learned sentencing Magistrate. And once that error has been identified to exercise the sentencing discretion afresh and to impose such sentence as to the court seems proper.

As it was put very succinctly in Melano, the question is whether the sentence appealed against was outside the sound exercise of the sentencing court's discretion. These and other authorities on this issue are usefully summarised by Dearden DCJ in Parry v Mayfield Holdings Queensland Proprietary Limited 2006 QDC250.

I consider that applying these principles, the Magistrate's sentencing discretion miscarried for a number of reasons. He acted on a wrong principle in stating that as it was the appellant's third offence of breaching a protection order within a six month period the only appropriate penalty was one of actual imprisonment. There is no such principle which is to be applied irrespective of the circumstances of the particular case. This is emphasised by reference to section 9 sub-section 1 paragraph (a) of the Penalties and Sentences Act 1992 which states that the only purpose for which sentences must be imposed on an offender include to punish the offender to an extent or in a way that is just in all the circumstances.

In addition, under section 9 sub-section 2, in sentencing an offender the court must have regard to (c) the nature of the offence and how serious the offence was including any physical or emotional harm to the victim, (d) the extent to which the offender is to blame for the offence, (e) any damage, injury or loss caused by the offender, (f) the offender's character, and (r) any other relevant circumstance.

Section 11 states that, "In determining the character of the offender, a Court must have regard to (a) the number, seriousness, date, relevance and nature of any previous convictions of the offender, and (c) any other matters that the Court considers are relevant".

Although the Magistrate stated that he had regard to sections 9 and 11 of the Penalties and Sentences Act, the manner in which he approached the sentence on the basis suggests that the circumstances of this case and the other information that he had received about the appellant's character were irrelevant to his considerations, or were irrelevant as compared to the principle that as it was his third offence within six months, the only appropriate penalty was one of actual imprisonment.

The only specific circumstance of mitigation that he referred to was the absence of physical violence towards his partner. He made no reference to the facts that the appellant had never threatened her; that the aggrieved person had initiated the contact; that there were two text messages only, which were conceded by his lawyer to be in breach of the noncontact condition of the order and his plea of guilty must be taken to have been made on that basis; that his conduct was in a context where he was concerned for the welfare of his children; and in circumstances where after this incident the police allowed him to go to the aggrieved person's house unsupervised and removed the children into his care; in circumstances where she was unstable and that he and the aggrieved subsequently reconciled and she had revoked the protection order, and further that he was living with her and caring for the children; he had employment available to him; he had no other criminal history and had never been sentenced to a term of imprisonment, and he cooperated with the administration of justice by his admission and his early plea of guilty.

The Magistrate, by not referring to any of these matters, placed too much emphasis on the principle of general and personal deterrence under section 9 subsection 1, paragraph (c) of the Penalties and Sentences Act, and did not give sufficient weight to these other circumstances. As such, not only did he act on a wrong principle, but he did not take material considerations into account.

I accept that the Queensland Court of Appeal has recognised the importance of general and personal deterrence in respect of persons who commit domestic violence. The outline of submissions on behalf of the respondent referred to R v Wood [1994] QCA 297 for the proposition that such breaches should be dealt with by appropriate severity, as stated by Justice of Appeal McPherson and Justice Ambrose at page 5 of the decision with which Justice of Appeal Pincus agreed, and I quote, "Domestic violence orders imposing restraints of the kind involved here are practically speaking the only available means of curbing in advance conduct in the domestic context that is violent or is likely to lead to violence.

Unless breaches of such orders are and are well known to be visited with appropriate severity, they will quickly lose their value in the minds both of those who obtain them and of those who are subject to them. Apart from the orders of that kind, the ordinary criminal law operating as it does only after the event arrives too late to be an effective deterrent. The wrong doer is liable to prosecution and punishment, but only after the injury has, sometimes with fatal consequences, already been inflicted." However, in that case, as is conceded in the submission, this statement of principle is concerned with breaches resulting in violent conduct.

In that case Wood had been convicted of assault occasioning bodily harm and deprivation of liberty, for which he was admitted to probation and community service in contravention of domestic violence orders. Seven days later he committed an unlawful use of a motor vehicle and deprivation of liberty in respect of the same victim, who had previously been in a relationship with him. Again this occurred in breach of domestic violence orders.

The Court of Appeal agreed in these circumstances with the comments of the sentencing Judge that general and personal deterrence were important and said that, "Behaviour like stalking and violence related to a domestic relationship was the type of conduct that was not tolerated by Courts".

He was sentenced to two years' imprisonment, suspended after six months for five years. The Court of Appeal set aside a five year operational period and in lieu thereof, recommended that he be considered for parole after serving six months.

More recently in R v Fairbrother; Ex parte Attorney General [2005] QCA 105, the President of the Court of Appeal, with whom Justice of Appeal Jerrard and Justice Cullinane agreed at paragraphs 23 to 24, made the following statement of principle, "Domestic violence is an insidious, prevalent and serious problem in our society. It is not solely a domestic issue. It is a crime against the State, warranting salutary punishment. Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour. They can expect the Courts to impose significant sentences of imprisonment, involving actual custody to deter not only individual offenders, but also others who might otherwise think they can commit such acts with impunity."

In that case, the Court of Appeal held that a sentence of two and a half years' imprisonment wholly suspended with an operational period of four years for assault occasioning bodily harm caused by scalding with hot water during a domestic argument was not manifestly inadequate. However, in that case the sentence was on the basis that this was not a preconceived intention, but rather the sentence proceeded on the basis that the possibility of criminal negligence during a struggle was not rejected.

Therefore that was also a statement of principle in a case involving much more serious conduct than in the circumstances of this case. Further, despite the Magistrate also stating that he took into account those matters in sections 9 and 11 of the Penalties and Sentences Act, which clearly state that a sentence of imprisonment should only be imposed as a last resort and a sentence that allows an offender to stay in the community is preferable, the approach by the acting Magistrate strongly suggests that he did not give sufficient emphasis to this principle in a case where there was no violence or physical harm involved towards the aggrieved person.

This particularly arises from his statements to the appellant's legal representative in the course of his plea of mitigation which on two occasions raised the issue as to how a Court could not impose a term of imprisonment. I have already made reference to that passage from page 5 of the transcript of proceedings before the Magistrate.

This gives rise to the apprehension that the Magistrate had at this stage closed his mind to any other consequence than imposing a sentence of actual imprisonment. This is supported by the absence of any other factors of mitigation in his sentencing remarks other than the reference to the absence of physical acts towards his partner. Further, he made no reference to any alternative non-custodial options.

In these circumstances, I consider that he gave too much weight to the principles of deterrence and insufficient weight to the principle that imprisonment is the last resort and a sentence allowing the person to remain in the community is preferable. Again, he acted on the wrong principle and failed to take material considerations into account.

In addition, as I have said, he makes no reference to the early plea of guilty. This is a breach of section 13 subsection 3 of the Penalties and Sentences Act that when imposing sentence the Court must state in open Court that it took the plea of guilty into account in determining the sentence imposed as required by section 13 subsection 1 of that Act. The absence of any reference to the plea of guilty suggests that either the Magistrate did not take it into account or he did not give it sufficient weight in determining the sentence to be imposed. In these circumstances, it has been demonstrated that the Magistrate's sentencing discretion miscarried. I am therefore entitled to exercise the sentencing discretion afresh. In doing so, it will become apparent that I am satisfied that the sentence imposed was manifestly excessive, being outside the scope of a sound exercise of the sentencing discretion.

I am therefore in the position, that under section 225 subsection 1 of the Justice's Act, I am able to set aside or vary the sentence appealed and under section 225 subsection 3 exercising any power which could have been exercised by the Magistrate. I proceed under section 223 subsection 1 on the evidence which was before the Acting Magistrate.

It is submitted for the appellant, that having regard to the facts, that the offence did not involve violence, the aggrieved had instigated the contact, that no violence had been inflicted in the past breaches, that the order had since been revoked at the aggrieved's insistence, that the appellant and the aggrieved has resumed their relationship and that the appellant was not supporting the aggrieved and their three children, the appellant having served one month imprisonment, the appeal should be allowed and the sentence varied to the appellant being convicted and not further punished. On the other hand, the respondent initially submitted that a term of imprisonment is within range in the circumstances where the appellant was undeterred by the order and his previous dealings with the Court. Further, it was submitted that a suspended sentence offers appropriate deterrence to the appellant from further offending for an extended period of time.

It was conceded that in the circumstances where there was no violence, actual or threatened, and the contact was by text message only and in the context of concern over the children, it was manifestly excessive to order actual custody. The respondent accepts that the Magistrate did not take into account the personal circumstances of the appellant as he was reunited with his family at the time of the sentence.

Accordingly, it was submitted, as I have indicated, in the outline of submission that the appeal be allowed and the sentence varied so that it is wholly suspended taking into account the time spent in custody. Although, as I have also indicated, it is now conceded that in the special circumstances of this case subject to a conviction being recorded, the appropriate sentence to be imposed at this stage is that the appellant be convicted and not further punished.

In exercising the sentencing discretion afresh, I agree that the principle of personal and general deterrence is of significance in the present case, although not to the same extent as this principle was given weight by the Magistrate. I come to this view because, to again quote from page 5 of the decision in Wood, "Unless breaches of such orders are and are well known to be visited with appropriate severity, they will quickly loose their value in the minds both of those who obtain them and of those who are subject to them".

However, the issue in the present case is what is the appropriate severity where the defendant, as he then was, was charged without an allegation of a circumstance of aggravation under paragraph (a) of the penalty provision of section 80 and where he is now 36 years of age, entered an early plea of guilty, cooperated with the administration of justice in the form of making admissions, texted the aggrieved person after she had made initial contact, entered the plea guilty on the basis that two of the text messages were not within the exception to the non-contact condition of the order, the texts were made by him in circumstances where he was concerned for the wellbeing of his three children, subsequently, these concerns were accepted by the police who allowed him to go unsupervised to remove the children from his wife's care into his care, there had subsequently been a reconciliation with her and she had taken steps to revoke the protection order as a result of which they were reunited and he is now involved in caring for his family and also where he had employment available.

I note that the exhibits tendered from Middlemount Coal Project show that he is a reliable person of good character who has natural talent to be a leader. Further he has no criminal history other than the three breach offences and none of the offences involve physical violence or threats of physical violence. In these circumstances, the facts are distinguishable from Wood and Fairbrother and a sentence of appropriate severity does not involve a period of imprisonment, actual or otherwise.

This is particularly so where I am dealing with the appellant in circumstances where he has served 22 days imprisonment.

This is a circumstance which is also relevant to the sentence that I impose.

In normal circumstances, if I had been sitting in the position of the Magistrate, I would not have considered that the need for general and personal deterrence is properly reflected by convicting but not further punishing him, particularly where the observations made by him to the Magistrate suggested a lack of remorse to the extent that he said that he did not think that he had really breached the order. Further, he had told the investigating police that he was aware of the order and its conditions and the consequence of his actions should he breach the order.

I accept that in light of the fact that the order has been revoked that it is general deterrence rather than personal deterrence which is important here. The Magistrate effectively placed him on five months parole. In doing so, he obviously had in mind imposing a sentence which he would remain subject to whilst in the community for that period of time. It would effectively keep the sentence hanging over his head as a reminder.

In these circumstances, if not for the matter to which I will refer, I would have set aside the sentence of the Magistrate and in lieu thereof, pursuant to section 30 of the Penalties and Sentences Act 1992, released the appellant upon his entering into a recognisance in the sum of $750, conditioned that he would keep the peace and be of good behaviour for a period of five months.

However, it is relevant that I take into account what has happened since the sentence by the Magistrate. As I have observed, since that time he has served 22 days in custody in a case in which I consider that neither actual custody nor a wholly suspended term of imprisonment would be a sound exercise of the sentencing discretion.

In these unusual circumstances, the Crown concedes, as I have noted, that the appropriate exercise of my sentencing discretion is to convict but not further punish the appellant. That is the approach that I intend to take. However, this sentence should not be regarded as a precedent for the future having regard to these unusual circumstances.

In relation to the issue as to whether or not a conviction should be recorded against the appellant, as the Magistrate did, section 12 sub-section 2 of the Penalties and Sentences Act provides that in considering whether or not to record a conviction a court must have regard to all the circumstances of the case including the nature of the offence and the offender's character and age and the impact that recording a conviction will have on the offender's economic or social wellbeing or chances of finding employment. This is an inclusive and not an exhaustive definition.

In exercising my discretion as to whether to record or not record a conviction, having regard to those circumstances, amongst others, I have regard to the nature of the offence which for the reasons I have given did not require a term of imprisonment, actual or wholly suspended, to be imposed.

However, while having regard to the particular circumstances of that offence, I also must have regard to the need for general deterrence and the apparent lack of remorse by the appellant in circumstances where it is nonetheless relevant that this was his third offence in a seven month period, and that this offence was committed within eight days of his last appearance before the court for such an offence.

A conviction had been recorded against him on that previous occasion and nothing which has been placed before the Magistrate or myself suggests that within section 12 sub-section 2 sub-paragraph (c) of the Penalties and Sentences Act that the recording of a conviction will have any impact of an economic or social nature on his wellbeing or on his chances of finding employment.

Although the appellant is otherwise of good character, he is a mature man who should have known better than responding to the aggrieved person who had originated the communications with him by text message in circumstances where he had twice previously appeared before the Magistrates Court for a breach of the same order. And he admitted that he was aware of the consequences of breaching that order. In those circumstances, I exercise my discretion to record a conviction.

Accordingly, the order of the court is as follows: The appeal is allowed. The sentence of the learned Magistrate is set aside and in lieu thereof the appellant is convicted but not further punished. A conviction is recorded. And further, the respondent pay the appellant's costs of and incidental to this appeal as agreed between the parties or to be assessed.

Unless there's anything further, that is the decision of the court.