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[2023] QDC 26
General information, not legal advice.
District Court of Queensland
2023-02-16
Original judgment source is linked above.
[1] The appeal before me at the present time is brought by the Commissioner of Police. The respondent to the appeal is KBH. The matter has been called. In fact, for the record, it has been before the Court on a number of occasions and there has been no appearance by the respondent in relation to the appeal filed and served upon him. I am asked to proceed with the appeal and, having been called today and there still being no appearance, I am of the view that the appropriate course is to proceed.
[2] The appeal, as I say, is by the Commissioner of Police and relates to a ground of appeal which is simply to the effect that the penalty imposed upon the defendant was manifestly inadequate in all the circumstances. The matter originally came before the Magistrates Court on the 25th of March 2022. At that time, Magistrate Wadley, in relation to hearing the matter, imposed a penalty of $300 in relation to counts 1 and 2 and for each of what the learned Magistrate referred to as "the remaining breaches" a fine of $200. There was also a fine in relation to a breach of probation, though that is not a matter which is the subject of these proceedings.
[3] The appeal which was filed in this matter was filed on the 26th of April 2022. Whilst on the face of it it might appear that that is out of time, I note of course that the 25th of April is Anzac Day - a public holiday - and that, therefore, the filing is within time.
[4] The position in relation to an appeal of this nature is dealt with pursuant to the provisions of section 222 of the Justices Act. It quite simply provides that a complainant, who is aggrieved by an order made by a justice in a summary way on a complaint for an offence, has the opportunity to appeal the order to a Judge of the District Court. It is further noted, pursuant to subsection (2)(c) of section 222, that if a person admits guilt, they may only appeal on the sole ground that the sentence was excessive or inadequate. As I have said, that is the basis upon which the appeal is filed here on behalf of the Commissioner of Police.
[5] The legal principles with regard to the purpose of an appeal are well settled and in fact, helpfully, have been detailed in the outline filed by the legal representatives for the appellant, which was filed on the 8th of June 2022:
8. In McDonald v Queensland Police Service[1], Bowskill J, as her Honour then was, stated at p. 627 [47]:
"It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate's reasons, and make its own determination of the relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate's view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error"
9. In respect of appeals against sentence and an appellate court's power to interfere with the exercise of the discretion of the sentencing court, in House v The King[2] the court stated at 404-405:
"But the judgement complained of, namely, sentenced to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. 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 composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. 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."
10. In respect of the sentencing discretion, and the issue of "excessive", which the appellant submits the principle applies also to the issue of "inadequate", in R v Jackson[3], Chesterman JJA, stated at [25]:
"The cases do suggest that the applicant has been punished severely. That, however, does not dispose of the application. To succeed the applicant must demonstrate that the sentence imposed was beyond permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no one "right" penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of fact or law."
11. In Bugmy v The Queen [2013] HCA 37 by reference to a different sentencing regime (that in New South Wales) the High Court, at [24], stated:
"...sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence. Plainly enough the Court of Criminal Appeal disagreed with the sentence imposed (below) and favoured a more severe sentence. The difference between the Court of Criminal Appeal's assessment of the appropriate sentence and (the court's below) assessment may be explained by saying that (the sentencing judge) gave too little weight to some factors and too much weight to other fators. However, within a range of sentences for this offence and this offender, the weight to be given to the evidence, and the various conflicting purposes of sentence, was a matter for (the sentencing judge). The authority of the Court of Appeal to substitute a sentence for that imposed by (the sentencing judge) was not enlivened by its view that it would have givn greater weight to deterrence and less weight to the appellant's subjective case. The power could only be engaged if the court was satisfied that (the sentencing judge's) discretion miscarried because in the result his Honour imposed a sentence that was well below the range of sentences that could be justly imposed for the offence consistently with sentencing standards."
12. In R v Pham [2015] HCA 39; (2015) 256 CLR 550, at [28]:
"Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle."
13. In Dinsdale v The Queen[4], Gleeson CJ and Hayne J at 325 stated:
"...in the absence of identifiable error, an applicant is required to demonstrate that a sentence is 'unreasonable or plainly unjust."
[6] What is clear, as set out in Bugmy v The Queen, is that the authority of the Court of Appeal to substitute a sentence for that imposed by the sentencing Judge was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant's subjective case. The power can only be engaged if the Court was satisfied that the sentencing Judge's discretion miscarried because, in the result, his Honour imposed a sentence that was well below the range of sentences that could be justly imposed for the offence consistent with sentencing standards.
[7] It is, if you like, exactly that situation that arises here, where the appellant contends that the sentence imposed was so lenient that it would be considered by an appeal Court as an erroneous exercise of the lower Court's jurisdiction, notwithstanding that there may have been no apparent error. With respect to the learned Magistrate, I am not necessarily even satisfied that there is no apparent error in the reasons that have been given by the learned Magistrate, and I shall come to that particular aspect of the matter in a moment.
[8] Insofar as the proceedings are concerned, as is clear from the principles that I have delineated above, the appeal proceeds pursuant to the provisions of section 222 by way of a rehearing and there is a requirement to conduct, as is described in the caselaw, "A real review of the trial and the Magistrate's reasons, and then to make a determination by the appeal Court of the relevant facts in issue from the evidence". To that end, again, I have been assisted in the outline that has been provided with a brief summary of the offending.
[9] I should note, however, that I have read the sentencing schedule that has been provided in relation to this matter relating to offending, said to have occurred on the 23rd of July 2021, as well as the 26th of August 2021 and, finally, the 3rd of January 2022. The summary provided in relation to the matter notes the offending conduct as follows:
15. The learned magistrate, in sentencing the respondent for the primary offences, summarised his offending conduct as follows:
[10] I note, with respect, that there does appear to be one error in that outline, in that it is suggested in 15(i) that the offending behaviour is offending on the 27th of July 2021, though I note that the sentencing schedule refers to the 23rd of July 2021. Otherwise, however, the summary that is provided is an accurate reflection of the sentencing schedule.
[11] What is then necessary is to consider the various matters that were put in relation to this matter, in particular, the submissions that were made by both prosecution and defence. To assist in that regard, I have been provided with a copy of the transcript of the matter which proceeded on the 25th of March 2022. There the prosecutor, a Sergeant Madsen, detailed the fact that the defendant had a three-page criminal history, including a significant number of contraventions of the domestic violence order previously made, and that those contraventions have occurred in the last two years.
[12] The prosecutor also made reference to the fact that the defendant was sentenced to a term of imprisonment, on the 5th of July 2021. There was then further offending in relation to contraventions which occurred on the very next day and that, as a result of that, the period of imprisonment was extended as well as the period of suspension. There was, therefore, 12 months in relation to the operation of the suspension, and the offending that now constitutes the offending before this Court by way of appeal, occurred during that period.
[13] It is clear that the respondent here has repeatedly breached the orders in relation to this matter. What is noteworthy - and it is detailed in the submissions made on behalf of the prosecution - is the following:
The difficulty for KBH is that, although on these occasions you have got the contravention of the 23rd of the 7th '21, he approaches her again, asks for a smoke. She tells him that he can't approach her. He then makes multiple more attempts to speak with her and then starts to disparage her by saying that she's a slut and a cunt and "go and spend time with the new man". He asked to come around. She knows the conditions of the order and tells him not to come around. However, when she arrives at her address later that night, the respondent is already in the house and wants to know what her plans are for the night.
[14] The learned prosecutor goes on to detail, as I have already indicated, the circumstances of the offending in relation to these particular matters and concludes in his summation before the Magistrate by noting that:
It couldn't be considered to be unjust to activate the suspended sentence, especially when there's a breach on top of a breach of the previously extended suspended sentence for like offending with the same group. What is contended is that a penalty of three months would be imposed and that it would be imposed cumulatively, so as to mean that the total would be a five-month period.
[15] It would then be the case, it was submitted, that this would have a deterrent effect upon the defendant if he were to continue to breach. And I should note, for the record, that it does appear that, at least to this time, there have been no further breaches, and that is a factor that I also take into account in relation to this matter.
[16] What then flowed were the submissions made on behalf of the respondent, and it included a submission that the offending was not the most serious examples of contraventions, and they'd occurred in the context of a recent separation between the parties. With respect, I cannot agree with such a submission in relation to this matter, particularly when consideration is given to the existing criminal history of the respondent, and of the fact that there have previously been multiple attempts to have him comply with the terms of the domestic violence orders and his failure to do so.
[17] I do note that the antecedents of the respondent had been detailed in the submissions, noting that at the time of submission he was 43 years of age, had entered early pleas in relation to the matters which were said to be indicative of remorse. There was an indication that he had been educated to year 9 and that he had to take on responsibilities of parenting early, as he became a father at 16,and, therefore, has at that time a 27-year-old daughter still living in Mount Isa.
[18] It is also noteworthy that there was tendered to the Court a reference from the Rowes Bay aged care facility, which indicated the lengthy period of employment of the respondent and of the continued support that they have for him in the performance of his duties. The legal representative for the respondent noted that there had not been further offending since the 3rd of January, though, in that regard, I note, as has been emphasised in submissions made to me here, that the suspended sentence remained active and, therefore, the requirements for compliance remained, at least until recent times, hanging over the respondent.
[19] Also, that what is submitted is that there has been some acceptance on the part of the respondent that the relationship is at an end, and that he no longer wishes to have any contact with the aggrieved but, rather, continues simply to communicate with his children of that relationship by way of mobile phone.
[20] The submissions that were then made in relation to the actual penalty are important considerations here because, with respect again to the learned Magistrate, they differ quite significantly from what was submitted both by prosecution and by the defence. In relation to those submissions, the following is said at page 17 of the transcript:
It's my submission that your Honour could activate the suspended sentences but place my client on parole immediately. In sentencing him for these four offences your Honour could impose a period of imprisonment between one to three months. I would submit that it be concurrent with the suspended sentence. It need not be cumulative. It's not mandatory, your Honour, under the Penalties and Sentences Act.
[21] The legal representative for the respondent then emphasised, perhaps understandably, the fact that employment continues and, as was submitted, that there had been a de-escalation in offending since the offences occurred and there may have been, though there does not appear to be evidence to that effect, impacts upon his employment should he be actually required to serve a period of imprisonment.
[22] The learned Magistrate then adjourned briefly to consider her decision in relation to this matter and, when she returned, commenced by noting that the time of the breaches had occurred in circumstances where there were a number of conditions which were required to be complied with, and that those breaches occurred notwithstanding his clear knowledge of the obligations that arose pursuant to the domestic violence order.
[23] With respect, her Honour then, in my view, erroneously considered circumstances which did not arise pursuant to the evidence that was before the Court. At line 7 on page 2 of the decision, her Honour says:
On the 27th of July, the aggrieved was at the stadium with her children watching a football game. You happened to be there and you approached the aggrieved and asked for a cigarette and some money. She told you to leave her alone. You made multiple attempts to speak with the aggrieved. The aggrieved told you to leave her alone and then you have used some derogatory language and at the end of the game you have approached the aggrieved and asked could you come over and she said, "No, you're not allowed at my house."
[24] That appears generally to be an accurate summation of the circumstances in relation to this particular matter, but what is noteworthy is that, as her Honour proceeds through her consideration of this matter, the actual nature of the offending becomes misconstrued. At line 43 on page 2 and onwards, her Honour says:
I accept that this conduct has occurred at the end of a breakdown of the relationship. You have children of the relationship. It is always an emotional time but you are clearly not heeding the orders of the Court and you are not taking it seriously. You are 43 years of age now, a single man, educated to grade 9. You have been in good employment for six years and I have regard to that letter which says that you have a good work ethic and ability to connect with residents. You are a person of good character and an asset to the team. I note that the letter does not refer to the offences before the Court.
It has been submitted, and it has been agreed to, that imprisonment is within range. I do not share that view because of the nature of the offences. They are minor breaches. The first one at the football match, you did not set out to see the aggrieved. You were just at the same place at the same time. The fourth one, you are invited over. You should not have gone. You knew you were not permitted. And the others are relatively minor, contacted through your daughter, spoke with the aggrieved, and the second one on the same day as the football match you let yourself into her residence.
[25] With respect, it is a total misunderstanding of the nature of domestic violence and the nature of control and dominion being exercised in relation to a former intimate partner. The fact that the respondent may have been at the football match is, with respect, neither here nor there. The respondent knew the obligations that arose in relation to not approaching the aggrieved, and yet did so. He then did so on a number of occasions, despite her protestations and direct indication to him that she did not wish to communicate with him. He also became derogatory and abusive in his communications with her.
[26] Subsequently, he asked if he could attend at her residence. She specifically directed that he should not, and yet at the time she returned home after the football match he was already present in her residence. With the greatest of respect, they are not minor breaches in relation to the nature of the domestic violence orders, particularly in circumstances where there have previously been breaches, explanations have been given, opportunities have been given to the respondent to change his ways and yet they were to continue.
[27] Similarly, the offending in relation to the approaches made by the respondent to the aggrieved through, for example, the telephone communications that he was having with his 15-year-old daughter, are not circumstances of a minor or inconsequential character. As I understand it, the respondent was properly entitled to speak with his daughter, but it was he who asked to speak with the aggrieved. That was the breach in itself. He then spoke to the aggrieved and accused her of drinking and seeing other males and the call was terminated. The respondent again then tried to contact her in breach of the orders and then, only a short time later, attended at the address of the aggrieved and entered the yard calling out before he then decamped.
[28] Again, these are by no means minor matters that arise in relation to the breaches. They are controlling. They are coercive and, most importantly, they are significant indications of a lack of appreciation or respect by the respondent of the orders previously made, and of the opportunities given to change the direction of his ways.
[29] Finally, the fourth of the charges is a little unusual in that there was an invitation to attend. But it came with conditions or requirements, not the least of which was that the respondent to this appeal was to attend the address for dinner but was to leave afterwards. He was asked to leave. He knew the terms of the invitation and yet did not leave. Other guests left the residence following the dinner. However, he did not leave and at that stage, sometime early in the hours of the 3rd of January 2022, the respondent became argumentative, at the very least, and started to question the aggrieved about who she might be texting. The aggrieved told the respondent to leave and then called the police. The respondent then left, which is perhaps the most direct indication of the fact that he was aware of the fact that he was acting contrary to the orders.
[30] With the greatest of respect to the learned Magistrate, these were not minor breaches by any stretch of the imagination. Rather, they were repeat instances of exactly the behaviour which had previously led to periods of imprisonment being imposed in relation to this matter.
[31] I set out at some length those particular issues in relation to this matter because, in my assessment, it is important that they be detailed so as to explain the reason why, in my assessment, this appeal must be upheld. It was not simply a situation where the penalty imposed was more lenient than might have been expected or, more particularly, more lenient than I might have imposed in relation to this matter. Rather, it was manifestly inadequate and, as indicated within the cases, an imposition in relation to the matter which simply indicates that it was unreasonable and inadequate in all of the circumstances; noting particularly, as I do, the acknowledgement on the part of the respondent himself, that imprisonment was well within range.
[32] I am satisfied, that, therefore, the imposition of a fine of a very lenient character in itself is simply outside the range of what might have been appropriate in relation to this matter. In that regard, I note particularly the more recent developments in relation to the domestic violence legislation, and of the very real need to accept that domestic violence is something far more than simply the imposition of physical force by one party to an intimate relationship upon another. There are a multitude of means by which there can be control exercised upon another and it is important, in fact, in my view, overwhelmingly so, that penalties imposed reflect the recognition of the importance of ensuring that such behaviours do not continue.
[33] As was indicated by President McMurdo, as her Honour then was. In R v Fairbrother; ex parte the Attorney-General [2005] QCA 105 the following was said:
Domestic violence has a deleterious on-going impact not only on the immediate victim but on the victim's wider family and ultimately on the whole of 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 near impunity.
[34] I would hasten to add here that this is not a serious act of domestic violence but it is a repeat act of domestic violence in circumstances where, clearly, the respondent to this appeal has failed to accept the opportunities previously given and, as such, more significant penalties are appropriately required to be imposed in relation to this matter. It is not a situation where the offending is minor or trivial, lacking in real impact. It has continued to impact upon the aggrieved and, as identified by President McMurdo in R v Fairbrother, is a situation where it is a crime against the State warranting salutary punishment.
[35] Here it is clear, in circumstances where the respondent had prior convictions, 10 it is submitted, - for domestic violence offences, all against this same aggrieved, and had previously been sentenced to various penalties, including terms of imprisonment subject to operational periods for suspended sentences, that it was a significant consideration, as well as the fact that the reoffending occurred only 21 days after the most recent sentence, prior to coming before the Court.
[36] In my view the imposition of a fine was unreasonable and unjust. It fell below what could even be considered the most lenient of penalties that might be imposed in relation to the matter and, as I have indicated, it is my view, therefore, that the appeal must be successful.
[37] What flows in relation to that, of course, is the need to consider what might be an appropriate penalty in relation to this particular offending and, in that regard, I have again been assisted by the provision of comparative sentences in the outline that has been provided to me. At paragraph 34 of the outline the following is said:
34. However, with consideration to the following cases, the appellant submits that the sentence imposed was so lenient that it should be considered an erroneous exercise of the court's jurisdiction, and it amounts to a manifestly inadequate sentence that ought to be corrected on appeal:
[38] What those particular cases show is that there are significantly greater penalties warranted in relation to offending, even where there are not direct indications of domestic violence of a physical character. As was clear in each of those cases, penalties can and should be imposed which reflect the continued and repetitive nature of offending and of the very real need to ensure that there is a clear indication, not only to the individual offender but also to the community at large, that such offending will be met with significant penalties.
[39] The comparative sentences identify that where a most lenient sentence has been imposed, in some instances a fine for a single contravention, then the penalties that are thereafter imposed in relation to such offending must escalate to reflect the need for such offending to be recognised as serious. It is submitted, therefore, that the penalty imposed in relation to a fine was so lenient that it amounts to an erroneous exercise of the sentencing discretion and, therefore, the need for there to be resentencing.
[40] Obviously, in that regard, there then needs to be consideration of the provisions of the Penalties and Sentences Act and of the particular matters that must be considered in relation to the imposition of a penalty. In that respect, as I have indicated, I am clearly aware of the circumstances of the offending here and of the antecedents that have been detailed in relation to this matter. But it is important, as indicated, that there be a proper recognition of the offending and of a penalty which reflects the continued and repetitive nature of the offending and of the need for there to be a clear deterrence, both to the individual and to the community at large.
[41] The appellant submits in that regard, after consideration then of the matters that are identified in respect of the purposes of sentencing set out in section 9(1) of the Penalties and Sentences Act, that a penalty which would appropriately recognise the repetitive nature of the offending and of the need for further supervision and assistance to the respondent is appropriate. I agree that that is the case and, in this matter, whilst it was submitted on the part of the respondent at the original hearing that he had accepted the relationship was at an end and had not reoffended subsequent to the last offending, assistance can and should be provided.
[42] Accordingly, being satisfied that the appeal should be allowed, the orders of the Court will be:
[43] I will fix a parole release date as at today and, in relation to the other offending, in respect of each impose one month's imprisonment, to be served concurrent with the head sentence and - though perhaps unnecessary in this instance - to be served concurrent with the suspended sentences previously made.
[44] I will also direct, noting that the respondent is not present here, that the respondent is to report to the officers of probation and parole in Townsville within 48 hours of notice being given to him of the making of the orders within this matter. And for the record I will also note, so that it can be provided to the respondent, that a failure to attend within the timeframe provided herein will of itself constitute a further offence on his part.
[5] PFM v QPS [2017] QDC 210 at [67].
Queensland Police Service
KBH [2023] QDC 26
(2015) 256 CLR 550
(2000) 202 CLR 321
(1936) 55 CLR 499