Singh v Queensland Police Service [2013] QDC 37

2. On the fourth day of November 2012 at Bundaberg in the Magistrates Court of Bundaberg ... (he) being a respondent against whom a domestic violence order had been made contravened the order, namely, the temporary protection order made on 26 September 2012 in the Magistrates Court at Bundaberg and (he) had been served with a copy of the order.

3. On the sixth day of October 2012 at Bundaberg ... (he) being a respondent against whom a domestic violence order had been made contravened the order, namely, the temporary protection order made on 26 September 2012 in the Magistrates Court at Bundaberg and (he) had been served with a copy of the order.

[2] In relation to count 1 her Honour Magistrate Vasta ordered that the appellant be convicted and not further punished. In relation to counts 2 and 3 she imposed concurrent sentences of nine months' imprisonment followed by two years' probation on each and declared 55 days to be time served. The declaration was not recorded in her Honour's reasons and was initially a ground of appeal. The declaration is endorsed on the bench charge sheet and, as such, has the force of law. In those circumstances, this ground was not pursued.

[3] The appeal is against only the sentence of imprisonment and the only ground argued is that the sentences were manifestly excessive. In oral argument the focus of the appeal was on whether or not her Honour had sufficiently taken into account the appellant's plea of guilty.

[4] Despite it being count 3, the first offence in time occurred on 6 October 2012. At that time, a temporary protection order dated 26 September 2012 had been made and served on the appellant. At 8.30 a.m. on that date police attended a unit in Bundaberg to hear loud shouting and banging occurring inside the unit. Whilst police were standing at the door they heard the appellant say, "You'd better look at me or I'll punch you in the head". Her Honour was informed as follows:

"On hearing this, police have entered the residence and viewed the defendant who, at the time, was standing over the aggrieved, pointing menacingly at her while she was sitting on the edge of the bed. The aggrieved appeared to be scared and fearful of the defendant and his actions. Police viewed approximately eight holes in the walls throughout the house which they believe was caused by the defendant punching the walls which was confirmed by the aggrieved. Police viewed a broken mirror in one of the bedrooms which had also been broken by the defendant.

The aggrieved stated that the defendant is a jealous type always trying to control her and not letting her go out alone, and that he is jealous of what she does. He was arrested and taken back to the watchhouse."

[5] On that day his bail undertaking contained a condition that he not have contact with AZ either directly or indirectly. No such non-contact condition was made to the temporary protection order.

[6] On 4 November 2012, at around 7.15 a.m., police received a Triple-O call. Her Honour was informed as follows:

"Police arrived and could see that - spoke to the aggrieved who said that the defendant was at the address and was breaking property and verbally abusing her, calling her a slut and a dog and a fuckhead, all whilst in the presence of their children and a witness.

The defendant also headbutted the informant before damaging further property. The defendant decamped the address after the police were called. Police located the defendant after contacting him on his mobile phone and asking him to return to the address, which the defendant, to his credit did so."

[7] After reciting the facts as set out above and referring to a presentence custody certificate, the Prosecutor tendered the appellant's criminal history, said he was 25 years of age and sat down. In other words he made no submissions as to the appropriate sentence and provided no assistance at all to her Honour in that regard. I was informed by counsel for the appellant that this is common, which is regrettable.

[8] At the date of sentence the appellant was 25 years of age. His date of birth is 4 July 1987. He had a relevant criminal history.

[9] All of his appearances had been in the Bundaberg Magistrates Court. On 21 September 2009 he was fined $250 for one count of wilful damage. On 26 October 2009 he was convicted of two counts of breaching a domestic violence order and was sentence to probation for a period of six months. On 23 March 2010 he appeared before the court and was found to have breached the probation order made on 26 October 2009 and also pleaded guilty to one breach of a bail condition and two further counts of breaching a domestic violence order and one count of possession of dangerous drugs, one count of contravening a direction and six counts of committing a public nuisance. In relation to the breaches of the domestic violence order he was sentence to short terms of imprisonment to be wholly suspended for a period of 12 months and was placed on probation for a period of 16 months. On 24 May 2011 he appeared before the court and was found to have breached the probation order made on 23 March 2010 and was fined $240. On 28 September 2012 he was convicted on his own plea of one count of entering premises and committing an offence, for which he was fined $400 and a conviction recorded.

[10] As I have noted the Prosecutor did not inform her Honour of the circumstances of any of this offending particularly the breaches of domestic violence which was highly relevant to the exercise of the sentencing discretion.

[11] The appellant was represented before her Honour by Ms Rowan, solicitor from Charltons Lawyers. On behalf of the appellant she positively accepted the facts relating to the 6 October incident but said nothing about the 4 November incident which entitled her Honour to proceed on the basis that there was no factual dispute. No reference was made to that on appeal.

[12] Ms Rowan informed her Honour that the parties had been in a de facto relationship for five years and had three children under the age of four. She told her Honour that the complainant had suffered post-natal depression after the birth of the first child which had "exacerbated" pre-existing mental problems.

[13] Having told her Honour that there was no dispute about the facts relating to the 6 October incident, Ms Rowan proceeded to provide background information based on her instructions. Although the transcript records that she told her Honour that the appellant returned to the home at 9 p.m. on 6 October 2012, it is accepted that is an error and that she meant to say 5 October 2012 as she then explains that when her client got home the children were there on their own. The solicitor told her Honour that her client located the complainant "some distance down the street" and an argument ensued which included reference to the complainant's mental state. There was no explanation as to how the two got back to the unit or when the damage observed by police was caused. It is clear that violence was occurring while the police were there but otherwise no explanation was given.

[14] Ms Rowan told her Honour that her client moved into a friend's house on 6 October after being released on bail, but that the complainant asked him to come back and assist with the children. Ms Rowan told her Honour that her client had informed the complainant that he could not because of the conditions of the domestic violence order. Her Honour was told that the complainant showed the appellant a copy of the order and when he saw that there were no "specific conditions", presumably as to residence, he then went home. A copy of the order was never tendered but it can be accepted that the only contact prohibition condition was on the 6 October bail undertaking. As her Honour noted, the appellant had apparently overlooked that condition when he decided to return home.

[15] Ms Rowan said that the 4 November incident was again triggered by discussions "about the mental health treatment", presumably of the complainant.

[16] She told her Honour that her client was remorseful, particularly because the children were present on both occasions. Ms Rowan also told her Honour that the domestic violence order breaches in his criminal history related to the complainant.

[17] At the time of sentencing, the appellant had been in custody for 31 days from 5 November 2012 - 5 December 2012. Ms Rowan told her Honour that he had arranged alternative accommodation upon his release and that he wanted to commence counselling at Lifeline. She explained that the "probation breach" in the history was as a result of the family relocating to New South Wales and his failure to report. I infer that she was referring to the breach dealt with on 24 May 2012 because of the modest fine imposed.

[18] Ms Rowan also told her Honour that the complainant had written to her client whilst he was in custody, advising him that she would be attending counselling and that she had attended appointments at the Mental Health Unit in Bundaberg. Unfortunately, Ms Rowan did not have the letter, however there was no dispute from the prosecution so her Honour was entitled to accept that submission.

[19] Ms Rowan then handed her Honour a copy of R v James [2012] QCA 256 and submitted that although the case was comparable the applicant's history in that case was more serious than her client's history.

[20] Ms Rowan then submitted that a prison probation order was the appropriate sentence in all the circumstances. An exchange then took place between her Honour and Ms Rowan which resulted in Ms Rowan conceding that a head sentence of between six and nine months was a "starting point".

[21] Her Honour acknowledged at the outset that it was an early plea which caused her to "reduce the penalty I would otherwise have imposed". She commented, correctly, that the presence of the children was a serious aggravating feature of the appellant's violence. She characterised the appellant's response as having "the feeling of blaming her". The letter from the complainant certainly suggests that the complainant has insight into her health issues and is hopeful of addressing those and restoring the relationship. Although there is certainly an element of "blaming her" in the appellant's approach below, I do not assess Ms Rowan's submissions on this issue as being a clear-cut attempt to excuse her client's appalling violence. Rather, it was an attempt to explain, but not excuse, what set him off. However, her Honour's approach does not amount to an error that would cause me to hold that the sentencing discretion had miscarried.

[22] Her Honour regarded James as of assistance but took into account that the offending in that case involved one punch albeit in a public place and that he had a more serious record of like offending.

[23] She correctly referred to the need for personal and general deterrence. In her remarks she did not specifically deal with the nature of the violence, but she certainly did so at 1-6 of the transcript. She described the violence as extensive, and the conduct on 6 October as having sadistic and controlling overtones. She described the case as "a really bad example of domestic violence". None of those descriptions can be disputed nor were they disputed by the appellant on appeal.

[24] As I noted in argument, it is already difficult for Magistrates dealing with large numbers of these cases, but that difficulty is compounded when the Prosecutor provides little or no assistance to the court as to the appropriate sentencing outcome.

[25] In this case the police have not alleged the previous convictions as a circumstance of aggravation so the maximum penalty was two years: s 177(2), (6) of the Domestic and Family Violence Protection Act 2012.

[26] In relation to James the maximum penalty at that time was 12 months because again the police had not alleged the previous convictions as a circumstance of aggravation.

[27] As I have noted, there are differences but ultimately the court did not interfere with a head sentence that was 75 per cent of the then maximum; stressing the need for personal and general deterrence in these cases.

[28] As I have noted, the only issue on the appeal was whether the sentence was manifestly excessive because her Honour had not given due weight to the plea of guilty.

[29] The sentence her Honour imposed is less than 50 per cent of the maximum. The maximum came into effect with the proclamation of the 2012 Act. These were acts which were particularly nasty and prolonged, involving domestic violence against an obviously vulnerable complainant by a mature man with four previous convictions for domestic violence committed against the same woman. The attacks were about a month apart and the second act of violence occurred whilst the appellant was on bail for the offence committed on 6 October 2012. He had also shown a disregard for court orders in the past and, on this occasion, he again showed complete disregard for a specific condition in the bail undertaking. In my view, as the President noted in James, the only mitigating factor in this case is the early plea of guilty.

[30] As I have noted, her Honour commenced her judgment by expressly referring to the early plea and stating that she had reduced the penalty that she would have otherwise imposed. It is correct that this was the first sentence of actual imprisonment for this appellant and that he had received suspended terms in the past for like offences which suspended sentences he had not breached. As against that, the offences are serious examples of domestic violence in the context described above and, although the sentences are severe, in my opinion they are not so severe as to hold that the sentencing discretion had miscarried in the way submitted.

[31] I did raise with counsel a decision of mine in CCR v QPS [2010] QDC 486 which involved an appeal from an overall sentence of three months followed by 12 months' probation for four offences of breach of a domestic violence order and one count of assault occasioning bodily harm which involved a fifth breach of a domestic violence order, imposed on a 60 year old offender with health problems who had pleaded guilty late. The appellant had an old conviction for violence but only one previous conviction for a breach of domestic violence order involving the same complainant, his wife. Although I found that in one respect her Honour had made an error of law, I nevertheless imposed the same sentences. After rereading the decision it is marginal of assistance because at that time the maximum penalty for these offences was 12 months.

[32] What is particularly relevant here is the doubling of the maximum penalty in 2012, undoubtedly reflecting the legislature's concern at the high incidence of domestic violence in the community and the need to strongly discourage such conduct. I was at first troubled by the effect of the nine month sentence coupled with two years' probation pursuant to s 92(1)(b) of the Penalties and Sentences Act 1992. The effect of that order is that the appellant must serve the whole nine months before being released on probation: R v B; ex parte Attorney-General [1997] 1 Qd R 523. Given the maximum penalty, and her Honour's express statement that she had reduced the sentence she had in mind to take into account the plea, there is no reason to doubt that she was alive to the actual effect of the order she made.

[34] On the 20th of February 2013 in Bundaberg, I dismissed an appeal against a sentence imposed in the Bundaberg Magistrates Court for two offences of breaching a domestic violence order. The only ground argued on appeal was that the sentence imposed was manifestly excessive in that her Honour had erred in not giving sufficient weight to the plea of guilty.

[35] Upon my return to Maroochydore last Friday, I read the decision of the Court of Appeal published that day, Miers v Blewett [2013] QCA 23. I took the view that had I been aware of the Court's reasoning, I might have decided the appeal differently, so I caused a copy to be forwarded to both counsel.

[36] This has prompted the applicant to file an application to re-open the appeal pursuant to rule 667(2)(e) of the Uniform Civil Procedure Rules. That rule applies to a section 222 appeal, because the proceedings are civil in nature. I commend Mr Stark the Prosecutor for consenting to the order dismissing the appeal being set aside pursuant to that rule, so that the effect of the Court of Appeal's judgment can be considered and argued as a new ground of appeal.

[37] I order that the notice of appeal be amended to include a new ground: "Her Honour erred in taking account the appellants' previous convictions for breach of domestic violence orders as an aggravating factor in imposing sentence".

[38] Although the wording of section 177 of the Domestic and Family Violence Act 2012 is different in terms to the previous section 80, the differences do not affect the application of the principle enunciated in Miers. In this case, there is no doubt that her Honour took into account the four previous convictions in imposing the sentence she did, as I did in dismissing the appeal.

[39] The reasoning of the Court of Appeal in Miers renders this approach flawed, as it is common ground that the appellant was never served with any notice pursuant to either section 47(4) or (5) of the Justices Act 1886.

[40] Mr Stark concedes all of this, but nevertheless argues the sentence imposed was not manifestly excessive. That submission cannot be accepted. The taking into account of the four previous convictions committed against the same woman, all of which occurred within five years, was clearly a significant aggravating feature taken into account by both her Honour and myself. When it is accepted that this was an error, as determined by the Court of Appeal in Miers, the doubling of the maximum penalty assumes much less importance in the exercise of the sentencing discretion.

[41] In those circumstances, the orders of the Court will be: the order made on the 20th of February 2013 dismissing the appeal is set aside; the appellant is granted leave to add a ground of appeal in accordance with the above reasons; the appeal is allowed; given that the appellant has already served more time than probably would have been imposed as a matter of justice, there is no utility in imposing a sentence that would either lead him to having to serve more time or to be under supervision, despite the desirability of that.

[42] As Fraser JA noted in Miers, the point argued before that Court was not argued in the R v James [2012] QCA 256, which was considered by both her Honour and I. As Fraser JA notes in Miers at [16], the Court in that case seems nevertheless to have taken what is described as the "narrower view" of section 47(5) of the Justices Act, which was not the view taken in Miers in which the point was argued.

[43] It follows that none of the lawyers involved can be criticised for not bringing to her Honour's attention or mine the decision of Washband v Queensland Police Service [2009] QDC 243, which was overruled by Miers, or the District Court decision the subject of that appeal, which, in any event, is not published on the Queensland Judgments web page.

[44] As I noted in argument, Mr Singh should count himself fortunate that he has the benefit of what is a principled analysis of the notion of punishment undertaken by Mr Justice Fraser. The QPS should now be on notice that if it wishes previous convictions to be taken into account, it is necessary for those previous convictions to be pleaded and/or notified to the alleged offender in accordance with section 47 of the Justices Act.

[45] As I indicated in argument, I will set aside the sentences imposed by her Honour; and in lieu thereof, I will impose for each offence concurrent terms of three months. I'll declare that he's been in presentence custody in relation to those sentences for 114 days from the 5th of November 2012 to the 1st of March 2013, and I declare that to be time already served. It would follow that he should be released immediately.