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[2015] QDC 152
General information, not legal advice.
District Court of Queensland
2015-06-02
Original judgment source is linked above.
The Office of Director of Public Prosecutions for the respondent
[1] On 28 January 2015 the appellant was convicted on his plea of guilty in the Magistrates Court held in Cairns, of eleven offences.
[2] The appellant now appeals on the ground that the sentences imposed were manifestly excessive.
[3] Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered.
[4] The facts relevant to the sentence were agreed and reduced to a written schedule. Both parties made submissions at sentence, but neither the prosecution nor the defence provided authorities to the sentencing magistrate.
[5] The appellant was born on 10 February 1973; he was aged 41 years during the period of his offending and at the time of sentencing.
[6] The appellant's criminal history is lengthy, significant and concerning; and includes previous terms of imprisonment; however, the appellant has no prior convictions for violence or contravention of domestic violence orders.
[7] At the time of sentence the appellant had served 61 days in pre-sentence custody.
[8] The reasons of the sentencing magistrate took the following factors into account:
(a) The plea was timely but not made on the earliest occasion;[1]
(b) The appellant's criminal history - in particular the prior breaches of bail undertakings;[2]
(c) Submissions for the appellant about the offences and his antecedents;[3]
(d) The need for specific deterrence;[4] and
(e) The need for general deterrence particularly in relation to the offences in the licensed establishment and the breaches of domestic violence orders.[5]
(f) In considering the penalty for breaches of domestic violence orders the sentencing magistrate referred to R v Francis [1996] QCA 160 and R v Fairbrother; ex parte Attorney-General of Queensland [2005] QCA 105, particularly paragraph 23 of the judgment of McMurdo, J.
[9] The sentences and their respective penalties can be summarised in this table:
Commit public nuisance in licensed premises or in the vicinity of licensed premises on 5 Oct 2014
s 6(1)(a) Summary Offences Act 2005
Drunk or disorderly in premises to which a permit/license relates on 5 Oct 2014
s 164(1)(a) Liquor Act 1992
Contravention of a domestic violence order on 22 Oct 2014
s 177(2) Domestic Family Violence Protection Act 2012
Fraud - dishonestly gain benefit/advantage on 28 Oct 2014
Contravention of a domestic violence order on 30 Oct 2014
s 177(2) Domestic Family Violence Protection Act 2012
Contravention of a domestic violence order 1 Nov 2014
s 177(2) Domestic Family Violence Protection Act 2012
Contravention of a domestic violence order 4 Nov 2014
s 177(2) Domestic Family Violence Protection Act 2012
Contravention of a domestic violence order on 23 Nov 2014
s 177(2) Domestic Family Violence Protection Act 2012
[10] The sentencing magistrate ordered that all terms of imprisonment served concurrently. A parole release date was set at 28 February 2015 and 61 days of pre-sentence custody was declared as time already served.
[11] The appellant argued that the sentences imposed by the magistrate were beyond the acceptable scope of judicial discretion so as to render them unfair.[6] It was further submitted that the sentences imposed were outside of the range of sentences that could have been imposed in the circumstances.[7]
[12] This court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature6 or there is otherwise a miscarriage of justice.
[13] A mere difference of opinion about the way in which the sentencing discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.[8]
[14] The High Court held in House v The King[9] that:
"It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge 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 erroneous 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. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance."
[15] The appeal particularly focused on the sentences in relation to the convictions for contravention of domestic violence order and wilful damage.
[16] The appellant argued that the sentence of 12 months imprisonment for the contravention of the domestic violence order of 22 October 2014 (charge 3) is manifestly excessive in light of the maximum sentence, the particulars of the conduct, the appellant's lack of prior similar convictions and his personal circumstances.
[17] As particularised above, charge 3, which occurred on 22 October 2014 and was the most serious of the contravention offences, carried the head sentence of 12 months imprisonment. The salient facts were that on 22 October 2014 at approximately 7 pm, the appellant and the aggrieved were at their home. Both became involved in a verbal argument in front of the home. At one point the victim entered her car in an attempt to leave, resulting in their argument escalating to physical violence. The appellant punched the aggrieved through the window and then grabbed her by her throat. At that time, a child (named in the order) was in the rear seat of the car. A witness approached the car upon hearing and seeing the argument in an attempt to intervene and stop the altercation. The appellant then threatened the witness, by turning and walking towards her. The aggrieved then drove away from the address.
[18] The appellant relied on the decision of R v James [2012] QCA 256 as supporting a lesser head sentence for Charge 3. In that case the appellant waited for his de facto partner outside a toilet door at a hospital where the aggrieved was receiving treatment necessitated by an earlier assault by the appellant. The appellant punched her in the face causing pain, discomfort and swelling. The appellant had six prior breaches of domestic violence as well as convictions for offences of violence. A head sentence of 9 months imprisonment was upheld by the Court of Appeal. The maximum penalty applicable at the time was 12 months imprisonment, which was increased to 2 years and (3 years if previous convictions) on 17 February 2012.[10]
[19] In TND v Queensland Police Service [2014] QDC 154 a 20 year old appellant became agitated and accused the aggrieved of 'getting smart' with him. He punched her to the left side of her face, causing a tooth to cut the inside of her cheek. The aggrieved threw a work boot at the appellant and left the room. During the arrest the appellant continued to threaten violence to the police, the aggrieved and a 12 year-old boy. As a consequence of appellant's previous like offending, he was dealt with on the basis that the higher maximum penalty of 3 years imprisonment applied. The sentence of 6 months imprisonment with immediate release on parole was upheld.
[20] In PMB v Kelly [2014] QDC 301 the appellant was asked by the aggrieved to fix a washing machine. The appellant opened and slammed shut the metal lid until it snapped off the machine. He then started banging the lid against the machine. He picked up an unopened can of Pepsi, threw it at the kitchen wall, causing it to spray Pepsi over the kitchen. He then grabbed a steak knife, held it in a threatening manner and said to the aggrieved, "Are you scared now?" He then stabbed a loaf of bread and threw the knife across the kitchen. He then grabbed the aggrieved and threw her onto the lounge. He attempted to take her phone from her, but she refused. He placed his hands around her neck and started choking her. She couldn't breathe and bit the appellant on the forearm. The appellant then threw the aggrieved onto the lounge room floor and, with a closed fist, punched her on the top of her head approximately 4 times. He then picked her up off the floor and slammed her into the tiled floor twice, causing her right temple to bang on the floor. He then placed his knee in her back and put her in a headlock. The aggrieved struggled to breath and again bit him on the fingers. She managed then to run out of the home and call police. An ambulance attended and she was transported to the Gold Coast University Hospital where she was treated. She suffered a swollen and bruised right eye, a bleeding upper lip and scratches on her arms. The appellant had 2 previous contravention convictions, which enlivened the higher maximum penalty of 3 years. The appeal judge found that the 12 months imprisonment with an "effective non-parole period [of] ... about three months" was not manifestly excessive.
[21] In Singh v Queensland Police Service [2013] QDC 037 the appeal was against concurrent periods of 9 months imprisonment and 2 years probation for two charges of contravening a domestic violence order and one of breaching a bail undertaking. The more serious of the domestic violence order contraventions involved the appellant verballing abusing the victim and damaging property in the presence of their children. The appellant also head butted an informant. The sentences were reduced on appeal to 3 months imprisonment.
[22] Having regard to the circumstances of charge 3 in the present case, whereby the appellant punched the aggrieved through a car window, then grabbed her by her throat (all in the presence of a child) and also threatened a witness who attempted to intervene in the assault, I would categorise the appellant's conduct at a similar level of seriousness as that considered in R v James[11] and TND v Queensland Police Service[12]. However, unlike in R v James, the appellant in the present case is older with no prior similar offending, but the totality principle is relevant. The appellant's conduct in the present case is more serious than in Singh v Queensland Police Service[13] but significantly less serious than the conduct of the appellant in PMB v Kelly[14].
[23] It seems to me that the nature and serious of the conduct constituting charge 3 would warrant a penalty within the range of 6 to 9 months, subject to matters of mitigation and consideration of the totality principle.
[24] This then draws sharp focus on the other contravention offences which were of a lower order and occurred when the appellant was prohibited from using the internet or other communication devices (including social networking sites) to communicate with, publish pictures of or make comments concerning the aggrieved or the named relatives or associates of the aggrieved.
[25] Charge 6 involved the appellant sending 2 text messages to a friend of the aggrieved (who showed the messages to the aggrieved) containing degrading remarks about the both informant and the aggrieved. Charge 8 involved the defendant telephoning the aggrieved and threatening her with the words "You're fucking dead slut", and then terminating the call. Charge 9 involved the defendant sending a text message to a friend of the aggrieved remarking about conduct of the aggrieved's son. Charge 11 involved the appellant in relation to charge 10 filming those persons named in the order.
[26] Singh v Queensland Police Service[15] may be of some assistance when considering those other contravention charges. It seems to me that the nature and serious of the conduct constituting charges 6, 8, 9 and 11 would warrant various penalties between the middle to low end of the range of 1 to 3 months imprisonment.
[27] It was further submitted by the appellant that the sentence imposed by the magistrate in respect of charge 10, wilful damage, was manifestly excessive in light of the maximum sentence, the actual damage incurred and the appellant's minor criminal history for like offending.
[28] The offending in relation to charge 10 arose this way. The complainant, the appellant's step-daughter, was the driver and owner of a car, which was also occupied by the complainant's brother, uncle and friend. While the complainant was inside the supermarket her passengers remained in the car. The appellant approached the car and used a sharp silver metal object to scratch the passenger side of the car from the front passenger door to the bumper bar. For this offence the magistrate imposed a sentence of 9 months imprisonment.
[29] The appellant relies on the authority of R v Hazelgrove [2013] QCA 243 where the appellant did not challenge the initial sentence of 12 months imprisonment for a wilful damage in the amount of $2,500. The appellant in that case, while on parole, gained entry to a building and damaged the security system by pulling it off the wall and cutting its cables. He also threw two radios and a car DVD player through a window that smashed. The offending was significantly more serious than the present case, and is therefore not a useful comparative.
[30] A better comparative is R v Gibb [2007] QCA 191. After a trial, the appellant was convicted of wilful damage and assault occasioning bodily harm whilst armed. The appellant threw a brick at the victim's car during the course of a neighbourhood dispute and caused $1,507.25 of damage. The trial judge found the conduct was reckless behaviour. The Court of Appeal did not disturb the sentence of 9 months imprisonment for wilful damage.
[31] The present case proceeded on a plea of guilty and involved lesser violence and damage valued between $947 and $1,196. The conduct was deliberate and could not be described as reckless behaviour (as was the case in R v Gibb[16]). The appellant has previous convictions involving wilful damage. In my view, the nature and seriousness of the conduct constituting charge 10, wilful damage, calls for a penalty between the middle to low-end of the range of 6 to 9 months imprisonment.
[32] The appellant was before the Magistrates Court with a multiplicity of offences. The magistrate was required to, and did, consider the totality principle to arrive at a just and appropriate sentence.
[33] In Mill v The Queen, [1988] HCA 70; [1988] 166 CLR 59 the High Court referred with approval to the passage in Thomas, Principles of Sentencing 2nd Edition, page 56 to 57:
"The effect of the totality principle is to require a sentencer who has passed a series of offences, each properly calculated in relation to the offence for which it is imposed, and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and to consider whether the aggregate is, 'just and appropriate.'. The principle has been stated many times in various forms. 'When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the Court to take a last look at the total, just to see where it looks wrong.'; when cases of multiplicity of offences have come before the Court, the Court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences?'".
[34] In The Queen v Crofts [1998] QCA 60; [1999] 1 Qd R 386 at 387, the Court of Appeal said:
"Of course sentences of imprisonment for a number of offences often ought to reflect that the offences were not committed in isolation. This is commonly referred to as the totality principle. The totality principle requires a Judge who is sentencing an offender for a number of offences, to ensure the aggregation of sentences of imprisonment is a just and appropriate measure for the total criminality involved. When an appropriate sentence imposed for the most serious offence is adequate to punish the total criminality involved other sentences are made concurrent. When the sentence for the most serious offence is inadequate for that purpose, and cumulative sentences are imposed for one or more other offences, lower sentences than would otherwise be called for, can be imposed to achieve a suitable total punishment over all.".
[35] Having regard to the discussion above, I have formed the view that the aggregate of the various sentences imposed by the magistrate would have been too crushing and disproportionate to the overall criminality. This was an appropriate case, as apparently recognised by the magistrate, to reflect the total criminality in the sentence attached to most serious offence and order that the sentences be served concurrently. The most serious offending was the contravention of the domestic violence order constituting charge 3.
[36] In ordering an early parole release date of 28 February 2015 His Honour correctly recognised that appellant's the plea of guilty and that the applicant had no previous relevant convictions. The appellant does not seek to disturb that.
[37] However, a consideration of the authorities indicates that the sentences imposed for charges 3, 6, 8, 9, 10 and 11 were outside the appropriate range. This may have been avoided if the advocates provided better assistance to the court with comparative guidance as to sentence. Further, in my respectful view, the head sentence imposed for charge 3 to reflect the total criminality for multiple offending was outside the appropriate range such that the sentence is manifestly excessive, unreasonable or plainly unjust.
[38] In those circumstances, this Court is required to allow the appeal and to re-exercise the sentencing discretion.
[39] The appellant was aged 41 during the offending period and at the time of sentencing.
[40] The appellant has a long and disturbing criminal history spanning from 1987, when he was only 14 years of age, until 2012, when he was dealt with for a breach of suspended sentence. On my reckoning he has been convicted of multiple offences including: unlistening driving; unlawful use of a motor vehicle; break, enter and steal; attempted break & enter with intent; stealing; wilful damage; receiving; escaping custody; breaches of probation and community service order; breach of bail; possession of dangerous drug and tainted property; dangerous driving; burglary; and breach of suspended sentence. Whilst the appellant has two convictions involving wilful damage, he has no previous convictions of personal violence in contravention of domestic violence orders.
[41] The facts and circumstances of the offending are in the agreed schedule of facts, and summarised above in relation to the more serious offending. There is no victim impact statement, however the nature and extent of the violent and threatening conduct was likely to cause pain, suffering and emotional anguish on the victims, especially the aggrieved and her child. The offending occurred in the context of an acrimonious marriage breakdown, including a child custody dispute. The appellant's criminal conduct was apparently triggered (unjustifiably) in response to the aggrieved's retaliation against the appellant and his new partner. The appellant properly accepted full responsibility and blameworthiness by his plea of guilty.
[42] The prevalence of the offending, especially in the nature of repeated domestic violence, cannot be understated. The magistrate referred to the appropriately strong remarks of McMurdo P in R v Fairbrother; ex parte Attorney General (Qld) [2005] QCA 105 at [23] that 'domestic violence is an insidious, prevalent and serious problem in our society' and her remarks of its consequences and impact in the victims. Sadly, those remarks remain true 10 years later in contemporary society. Whilst this is clearly relevant and militates for personal and general deterrence, it ought not overwhelm proper consideration of other proper principles.
[43] The purpose and guidelines of sentences are those particularised in the Penalties and Sentences Act 1992 (Qld). The sentence must be appropriate punishment in the circumstances, facilitate avenues of rehabilitation, deter others from committing a similar offence, make it clear that the community denounces the conduct in this offence, and protect the community. The appellant is a violent offender and the considerations in s 9(3) of the Penalties and Sentences Act 1992 (Qld) are also relevant, including the circumstances, injuries and protection of the victims of his violence.
[44] The appellant was educated to year 10 and then undertook computer studies and health science for 2 years at TAFE. He was a professional fighter and trainer in fitness and kick-boxing.
[45] Having regard to the comparative cases discussed above, the circumstances of charge 3 warrant a penalty within the range of 6 to 9 months. Having further regard to matters of mitigation, aggravation and the totality principle, it is appropriate that the penalty fall in the higher end of the range. The conduct constituting charges 6, 8 and 9 warrant various penalties in the range of between 1 to 3 months imprisonment. Finally, the conduct constituting charge 10 of, wilful damage, calls for penalty between the middle to low end of the range of 6 to 9 months imprisonment. I do not propose to, nor am I asked to, disturb the sentences imposed by the magistrate for counts 1, 2, 4, 5 and 12.
[46] Having regard to the totality principle, the total effective sentence imposed on the appellant must bear a proper relationship to the overall criminality involved, viewed in its entirety, having regard to all relevant circumstances and sentencing considerations. The total effective sentence should not be too crushing or disproportionate; that is, it should not destroy any reasonable expectation of useful life after release from custody.
[47] In my view the head sentence imposed for charge 3 ought reflect the total criminality for appellant's multiple offending, and the sentences ought be served concurrently.
[48] I do not propose to disturb the order setting the early parole release date of 28 February 2015 which takes account of the appellant's the plea of guilty and that the appellant has no previous relevant convictions.
2. The orders of the Magistrates Court made on 28 January 2015 are set aside only to the extent that the sentences in respect of charges 3, 6, 8, 9, 10 and 11 are substituted as follows:
(a) For charge 3, Contravention of a domestic violence order on 22 Oct 2014, 9 months imprisonment;
(b) For charge 6, Contravention of a domestic violence order on 30 Oct 2014, 1 month imprisonment;
(c) For charge 8, Contravention of a domestic violence order on 1 Nov 2014, 2 months imprisonment;
(d) For charge 9, Contravention of a domestic violence order on 4 Nov 2014, 1 month imprisonment;
(e) For charge 10, Wilful damage on 23 Nov 2014, 7 months imprisonment;
(f) For charge, 11 Contravention of a domestic violence order on 23 Nov 2014, 3 months imprisonment;
3. Otherwise, the orders of the Magistrates Court made on 28 January 2015 are affirmed.
[2] Transcript of decision p4 l.5 - 25; p6 l. 2-3
[6] R v Jackson [2011] QCA 103 per Chesterman J at [35]
[7] Hill v The Queen (2010) 242 CLR at [60]
[9] (1936) 55 CLR 499 at 504 and 505
Smith
Queensland Police Service [2015] QDC 152
(1981) 148 CLR 170
(1986) 161 CLR 513
(1936) 55 CLR 499