SAE v Commissioner of Police [2017] QDC 254

[2] The appellant was dealt with at the Normanton Magistrates Court on 10 April 2017 for the contravention of a domestic violence order and an obstruct police officer offence, for which he was convicted and not further punished.

[3] The appellant was, however, also dealt with for the breach of a sentence of six months, wholly suspended, imposed in the Normanton Magistrates Court on 13 March 2017 and subject to an 18-month operational period. The six months of that sentence was activated and ordered to be served cumulatively on the nine-month sentence for the contravention of the domestic violence order, which resulted in an effective head sentence of 15 months, with parole after five months.

[4] (1) The sentence imposed was manifestly excessive;

(2) The learned sentencing magistrate erred by failing to have proper regard [to] principles of totality.

[5] Leave was granted at the hearing to add a further ground of appeal, as follows: -

(3) That the learned sentencing magistrate failed to give due weight to the appellant's mitigating circumstances.

[6] As Margaret Wilson AJA stated in Tierney v Commissioner of Police [2011] QCA 327, para 26: -

An appeal for the Magistrates Court to the District Court pursuant to s. 222 of the Justices Act 1886 (Qld) is a rehearing on the evidence given at trial and any new evidence adduced by leave. In other words, it involves a review of the Court of pro - record of proceedings below, subject to the District Court's power to admit new evidence. To succeed, an appellant needs to show some legal, factual or discretionary error.

[7] I gratefully adopt the appellant's outline in respect of both the facts and the defence submissions as per paragraphs 9, 10 and 11 of exhibit 1: -

[8] The agreed set of facts was read aloud by the prosecutor:

Your Honour, in relation to the contravention of the domestic violence order aggravated offence, on the 13th of February 2017, a domestic violence protection order was made by the Normanton Magistrates Court, naming KEP as the aggrieved and the defendant as the respondent. At approximately 4 pm on Wednesday, the 15th of March 2017, police attended ARF, Normanton. Police located the aggrieved, and the aggrieved stated to police that at approximately 3.45 pm, she was asleep in the rear donga at ARF.

The aggrieved was then woken up by a punch to her head. The aggrieved stated that she recognised the voice of her ex-partner, the defendant in the matter. The punch caused immediate pain to her. The aggrieved opened her eyes and observed that the defendant was standing across room. The aggrieved was very fearful of her safety and started shaking. The defendant began yelling and swearing at the aggrieved, calling her a "motherfucker". The aggrieved got up off the bed and tried to run out the door. The defendant closed the door, and the aggrieved went to the other side of the room. The defendant rushed at the aggrieved and continued to assault the aggrieved, punching her in the head and ribs, which was extremely painful for her.

The defendant then grabbed the aggrieved's hair. The aggrieved yelled out "Let me go. Let me out." The defendant said, "You're not going anywhere", and said something similar to "I'm going to kill you". The aggrieved got out of the room and ran into the neighbour's room. The neighbour let the aggrieved into his room. The aggrieved had her mobile phone in the room at the time of the offence. Then when the aggrieved left the neighbour's room, she observed that her black mobile phone had been smashed on the grass outside the donga. The defendant fled prior to police arriving.

Whilst police were at ARF, police observed the defendant walk into ARG, across the road. Police walked over and had a conversation with the defendant and observed that the defendant was swaying and slurring his words.

The defendant was arrested in relation to this matter, and the defendant declined to be interviewed in relation to it as well. In relation to the obstruct police, the defendant, when transported to the watch-house, on entering the watch-house, the defendant was handcuffed, and Constable Matthew Boswell was holding the handcuff to control the defendant. The - Constable Boswell asked the defendant to stop. The defendant pulled both hands away, trying to break free from his grip. As a result, the police had to use force to gain control of the defendant to prevent any injury to the defendant or police. They're the facts on the matter, your Honour.

[9] The prosecution made several submissions regarding sentence: -

• It was submitted that the last entry on SAE's history was probably the most relevant, as it occurred just two days before this incident, when he was given a suspended sentence.

• The charge dealt with then was an AOBH against the same aggrieved;

• It was conceded that even though there was a criminal history there was no previous acts of violence except for that one in 2016, which was a like offence; and

• The ultimate submission was for a period of at least 12 to 15 months' imprisonment.

[10] The following submissions in mitigation were made on behalf of the appellant: -

• Earlier that night, the aggrieved had invited the appellant to attend the address, but he did not arrive at the home until after she had fallen asleep;

• It was conceded that the appellant entering the aggrieved's bedroom whilst she was asleep was an aggravating feature;

• Apart from the initial pain, there were no injuries caused;

• The appellant felt embarrassed and remorseful for his offending;

• Both his mother and father were chronic alcoholics and did not care for him as a child;

• He was not exposed to any domestic violence in the home, but he certainly saw violence in the wider community, where it was prevalent;

• He then commenced working at Delta Downs Station. Before this offending and the earlier offending, he had been home for the wet season, which commenced late last year. Then in February, he broke his hand. This had stopped him working altogether;

• On behalf of the appellant, it was conceded that imprisonment was the only appropriate penalty, and it was not unjust to activate the suspended term of imprisonment;

• It was submitted that the appropriate head sentence was one of nine to 12 months. (Citations deleted from the original).

[11] The appellant's counsel at sentence conceded that the whole of the six-month suspended sentence, imposed on 13 March 2017, should be activated, given that it was imposed in respect of an offence of assault occasioning bodily harm while armed, and it was a domestic violence offence in respect of the same complainant as the subsequent contravention of domestic violence order offence, and the subsequent offence occurred only two days after the suspended sentence was imposed. With respect, that was an entirely appropriate decision for the learned magistrate.

[12] It was then submitted that the learned magistrate could either impose a concurrent sentence for the breach of the domestic violence order, or a cumulative sentence, but in either case, arrive at an effective head sentence of nine to 12 months (exhibit 2, p. 1-14).

[13] The learned magistrate, in an exchange with the appellant's counsel during the course of submissions, indicated that he saw merit in making the activated six months from the suspended sentence cumulative, then reducing the sentence for the contravention of the domestic violence order from 12 months to nine months, in order to moderate the effective overall sentence (exhibit 2, p. 1-20).

[14] The learned magistrate then, in his sentencing remarks, identified the serious aspects of the contravention of the domestic violence order in these terms:

(1) it involves physical violence, including striking the aggrieved in the head more than once; (2) it was protracted, the subsequent punches to the head and the ribs although no injury was suffered other than pain and suffering; (3) the offence occurred only two days after the appellant was sentenced to six months' imprisonment for assault occasioning bodily harm whilst armed (a domestic violence offence); and (4) the appellant was intoxicated at the time of the contravention of domestic violence offence (exhibit 3, p.2).

[15] The learned magistrate then took into account the following matters in mitigation:

(1) The appellant's early plea of guilty; (2) the appellant's age (29); (3) the appellant was still in a relationship with the aggrieved at the time of the subsequent offence, but the relationship had subsequently ended; (4) that the appellant's parents were chronic alcoholics, and that he was not exposed to domestic violence at home but was exposed to domestic violence in the wider community; (5) that the appellant was educated to year 9; (6) that the appellant had been working on a station, but had returned to Normantan due to a broken hand and took up drinking (exhibit 3, p.3).

[16] After reviewing comparative decisions of Smith v QPS [2015] QDC 152, R v James [2012] QCA 256 and Toby v QPS (Harrison, DCJ, Mount Isa District Court, 22 September 2016), the learned magistrate concluded that, given the nature of the charges; the relevant maximum penalties applicable to the offences of the comparative sentences; and the circumstances of the appellant's contravention of the domestic violence order offence particularly in the context of it having occurred two days after being placed on a suspend sentence, that a term of 12 months' imprisonment was warranted (exhibit 3, p.4).

[17] The learned magistrate specifically identified general deterrence and, in the circumstances, specific deterrence as well as proportionality relevant to the appellant's sentence in the circumstances (exhibit 3, p.4).

[18] The learned magistrate then identified what he considered to be the appropriate basis for that sentence to be imposed cumulatively on the activated six month sentence, namely:

(1) That it involved the same aggrieved; (2) it was offending of a like nature; (3) it was committed within days of the appellant's previous sentence (exhibit 3, p.5).

[19] The learned magistrate then identified the need to moderate the effect of the head sentence, given the issues of totality and to arrive at a sentence that was not crushing. The learned magistrate accordingly sentenced the appellant to nine months imprisonment for contravention of domestic violence order offence, cumulative on six months' activated suspended sentence, having started at a nominal head sentence of 12 months for the contravention of domestic violence order offences.

[20] In Smith v QPS [2015] QDC 152, the appellant pleaded guilty to a range of offences including significantly five offences of contravention of a domestic violence order, for which an effective head sentence of 12 months was imposed, which was reduced to nine months on appeal.

[21] The most serious charge involved a verbal argument, a punch to the aggrieved through a car window, grabbing of the complainant's throat, and a threat. Smith was 41, had an extensive criminal history, including in Brisbane, but with no convictions for violence or breach of domestic violence order. Smith was not subject to any court orders when he offended.

[22] In Toby v QPS (Harrison, DCJ, Mount Isa District Court, 22 September 2016), the original sentence of 14 months was reduced to 11 months on appeal, with a cumulative one month sentence for a fail to appear.

[23] The conduct in Toby included chasing the complainant, dragging her to the ground by the hair, and kicking and punching her in the face, leaving bruises and lacerations. The appellant had a criminal history, including violence and contravention of the domestic violence order and again was not subject to a court order at the time of the offending.

[24] In my view, the conduct of SAE is more serious than the conduct in Smith, is at least as serious as the conduct in Toby, and was committed just two days after being placed on a six month suspended sentence for assault occasioning bodily harm whilst armed, in respect of the complainant.

[25] With respect, neither of those two decisions, nor the decisions in IFM v QPS [2016] QDC 140 and Gibuma v QPS [2016] QDC 183 referred to on appeal, indicate that the learned magistrate fell into the error identified in House v R [1936] 55 CLR 499 per Dixon, Evatt and Tiernan, JJ, pp. 504-505 (the oft-quoted excerpt, which is as follows):-

"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 appellant court consider that, if they had been in a position on the primary court they would have taken a different course. It must appear that some error has been made in exercising the 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."

[26] The learned magistrate's identification of 12 months, cumulative on the activated six-month suspended sentence, in my view demonstrates no error in the sense understood in R v House. Ground 1 of the appeal accordingly fails.

(2) Did the learned magistrate err in not giving enough consideration of the totality principle?

[27] As I have identified earlier in these reasons, the learned magistrate was appropriately cognisant of the issue of totality and, starting from a position of 12 months, which in my view demonstrated no sentencing error, then reduced that to nine months, to take account of totality.

[28] With respect, the learned magistrate has clearly given appropriate consideration to the totality principle, moderating the effective head sentence in the light of the cumulative effect of that sentence. Ground 2 of the appeal accordingly also fails.

(3) Did the learned magistrate fail to give due weight to the appellant's mitigating circumstances?

[29] The learned magistrate had the benefit of a comprehensive and appropriate plea in mitigation from the appellant's counsel, in which emphasis was placed on various issues, including the fact that his parents were chronic alcoholics; that he was raised by his grandparents; was exposed to domestic violence, not at home but in the wider communities; he was only educated to year 9; and that breaking his hand meant that he had to leave his station job, had returned to Normanton, and took to drinking to fill in his days. (Exhibit 2, pp 1-12 - 1-13.)

[30] These matters were clearly acknowledged in the learned magistrate's sentencing remarks (exhibit 3, p.3) but, of course, had to be balanced against the facts of the offending, that the offending occurred just two days after the imposition of a suspended sentence for assault occasioning bodily harm whilst armed in respect of the same complainant, and in relation to an offender with an extensive criminal history ranging over a 12-year period, who had received community-based orders, fines, suspended sentences and actual imprisonment.

[31] With respect, it is clear that the learned magistrate took into account all of the mitigating circumstances, appropriately weighed them against the various aggravating circumstances that I previously identified, and arrived at an appropriate sentence in all of those circumstances.

[32] Again, I consider that no error has been demonstrated in respect of any failure to give due weight to the appellant's mitigating circumstances, and accordingly ground 3 of the appeal also fails.

[33] The appeal against sentence of nine months imprisonment, cumulative, in respect of a contravention of a domestic violence order, is dismissed.