WAA v QPS [2014] QDC 297

[2] I should have observed that the sentences imposed for the contravention of the domestic violence order on the 22nd of May 2014 was a term of 18 months, not 27 months as it appeared in the notice of appeal, and the sentence imposed for the assault occasioning bodily harm whilst armed was 27 months, not 18 months. I should also note there was an error in the notice of appeal when it was stated that the parole release date was the 22nd of May 2015, something I've just repeated. In fact, the parole released date is the 22nd of February 2015.

[3] Before turning to the grounds of appeal, I note that on this matter, the Crown made the same submissions to me in this case as it did in the appeal in the case of JKT, that is, that the scope of the appeal is limited by section 222(2)(c) to the sole ground that the sentence is excessive. I reject that argument for the same reasons I gave in JKT's appeal, that is, that I do not consider section 222 sub (2) sub (c), properly interpreted, constrains me in the way contended for by the respondent.

[4] I need to deal with an issue about the scope of my jurisdiction on an appeal against sentence brought pursuant to section 222(2)(c) of the Justices Act. The Queensland Police Service relied on a decision by my brother Judge, Judge Dorney QC in the case of Berner v MacGregor (2013) QDC 33. Ms Orr argued this case as authority for the proposition that the appeal cannot succeed on an error of law; it can only be brought on the basis that the sentence is excessive. Respectfully, I decline to follow his Honour's reasoning and I prefer the reasoning of my brother, Judge Long SC in the case of Pullen v O'Brien [2014] QDC 92, which I note Judge Bradley also preferred in a case earlier this year of TND v Queensland Police Service [2014] QDC 154.

[5] Respectfully, I agree with Judge Dorney's conclusion that the specific wording of section 222(2)(c), which is the section relevant to this appeal, was not considered squarely in a Court of Appeal decision I was taken to of Teelow v the Commissioner of Police (2009) QCA 84. However, it is apparent to me that all three judges on the appeal acted on the basis that the principles that apply to a Court hearing an appeal against an exercise of discretion espoused in House v The King (1936) 55 CLR 499 applied when a District Court Judge was determining an appeal against sentence from a Magistrate. Of course, the precise argument that was considered by Judge Dorney QC wasn't placed squarely before the Court of Appeal in Teelow's case. In Teelow's case, ultimately the appeal turned on whether there was an error of law due to the failure to record the Magistrate's reasons for sentence.

[6] In my view, there would be a significant anomaly if a defendant's scope for appealing against sentence were severely constrained if they pleaded guilty, but not so if they were sentenced after conviction. It also seems perverse that an error, whether of fact or law, on sentence could only be corrected if it produced an outcome that was excessive in the circumstances. Such a proposition, in my view, is at odds with the tenant that justice should not only be done but be seen to be done. In the absence of a specific power to ignore an error such as the power conferred on the Court by the Criminal Code section 668E (in relation to appeals against conviction after trial), I would be loath to interpret section 222(2)(c) as necessarily precluding an appeal on the ground of identified error by the Magistrate.

[7] As well as arguing the sentences imposed were excessive, the appellant's representative, Mr Castor - or representatives, as there were two authors of the submissions that I received - alleged a number of errors in either the original or supplementary outlines. At the hearing, Mr Castor, for the appellant, abandoned the allegation that his Honour placed insufficient weight on the defendant's age. He was 24 years of age at the time of the offence.

[8] Although Mr Castor did not vigorously argue a number of other errors alleged in the original outline, of which I note he was not the author, because he did not abandon them, it is still necessary for me to address them; but I will do so briefly. The ones that fall into that category are that the learned Magistrate failed to outline how the plea of guilty was taken into account and gave no or inadequate weight to the principle set out in Section 9(2)(o) of the Penalties and Sentences Act.

[9] There is no merit in the ground that his Honour did not properly take into account the plea of guilty. He expressly stated that he did so within the first few sentences of his remarks. He told the defendant that he would get credit for his plea in the date that was fixed for his release to parole. I reject the argument made by Mr Castor that the Court must give reasons why, if it does not reflect a plea of guilty by reducing the length of the term of imprisonment, that is, by reducing the head sentence itself.

[10] The argument based on Section 9(2)(o), in my view, is misconceived, as no report was tendered on this offence, although his Honour did say that he had considered a Justice Group report that had been provided on an earlier occasion when he imposed the probation order. That is the probation order that the defendant had breached and which he was being dealt with for on this subject sentence.

[11] Mr Castor accepted an observation that I made in relation to the other three alleged errors, that they really related to his primary submission that the sentence was excessive: that is, he placed excessive weight on the principle of deterrence; that he considered an irrelevant fact and used it as an aggravating, not a mitigating factor; and that he failed to have regard to the relative risk of harm if imprisonment was not imposed when he fixed the parole release date.

[12] Before turning to those arguments and, more generally, whether the sentence was excessive, there are two further alleged errors that Mr Castor did maintain strongly that I must consider, and they are that his Honour failed to have regard to the complainant's assault of the defendant immediately before the offence and that he made findings about the injury which were not open on the evidence.

[13] Firstly, looking at whether his Honour failed to have regard to the complainant's assault of the defendant immediately before hand. During submissions, the lawyer who appeared for the appellant on the sentence hearing said:

Your Honour, it wasn't a pleasant situation, my instructions are. And he doesn't seek to excuse his actions in this way, but the instructions are that there was - well, the relationship itself had been, over quite a period of time, quite a volatile one between the two of them, and that's really very much reflected when one looks at the previous list of convictions and like convictions, that in this case there was an argument. In this case, he said that he was also attacked by the aggrieved. And I can say, your Honour, when he appeared before court on Friday, he very clearly had a distinctly fat lip and a swollen face, which I have no - which he says he received in the course of that altercation. But having said that, he accepts and I - and, clearly, has accepted by his early plea of guilty that whatever might have led to it, it did not justify or warrant the production of a knife and the use of a knife by him on her. Clearly, she was unarmed at all times and he accepts that whatever might have gone on before, it didn't justify his actions that led to this offence.[1]

[14] That representation of the circumstances was not challenged by the prosecutor. His Honour did not respond to it during the hearing and in his sentencing remarks he did not expressly state what view he had taken of it. He did, however, when discussing the defendant's plea, say that:

The fact that you were both probably affected by alcohol at the time and both very angry with another would have made any hearing in that respect difficult.[2]

[15] It seems to me that that passage is a reference to the facts as outlined by the appellant's representative, not by the police prosecutor, who did not say that the complainant was angry. He later referred to the defendant and complainant's relationship as toxic. In its context, this description implies that he accepted the relationship was toxic for the defendant as well as for the complainant. I do not accept that his Honour's failure to specifically state what he made of the fact that the defendant also sustained some injuries amounts to an error.

[16] The lawyer's submission was that the defendant was also attacked by the aggrieved and told the learned Magistrate of what he had observed when he appeared in Court and his instructions that he'd received the injury in the course of the altercation. Importantly, he did not make the submission that the physical altercation between the two was started by the complainant, nor did he argue that this was a factor that his Honour should regard as mitigating the defendant's conduct. His Honour clearly accepted the relationship was a volatile one. He referred to the history of the defendant's contraventions of the domestic violence order. Given it was not argued that the complainant had started a fight with the defendant, I see no error in his Honour failing to say what he made of the defendant's own injuries. In the context of the facts as they were put to him by the lawyer and given the past history of repeated contraventions of the domestic violence order - a number of those contraventions were acts of violence against the same complainant - his Honour was entitled to consider that information had little significance in the overall sentencing exercise. I am not persuaded his Honour erred in that respect.

[17] Turning to the question of making findings about the injury, I'm not persuaded that his Honour made the findings of fact that Mr Castor argued he had. Mr Castor has seized on the following passage as indicating that his Honour had made a finding about the nature of the wound in the absence of evidence to support it and that he wrongly found it was close to a wounding:

I gather from what I've been told the police have no medical information about that injury, but it was probably, looking at the photo - whilst it's not the worst stabbing photo I've ever seen, it's probably close to being a wounding or something worse for you.[3]

[18] However, that statement should be read in its context.

When I sentence you today, I consider the circumstances of this incident. Any incident involving a knife does involve additional penalty or consequence for you from the court. Those photos, to the extent that they are useful, certainly reveal a stab wound which could have been a lot more - could have had a lot more tragic consequences. Yes. Where it was, there are probably no major organs, but my experience with such matters is it's not just the organs you need to worry about, it's the blood flow and the veins and those things which go near them. I gather, from what I've been told, the police have no medical information about that injury, but it was probably - looking at the photo, whilst it's not the worst stabbing photo I've ever seen, it's probably close to being a wounding or something worse for you.

Today, however, I'm sentencing you on the basis of an assault occasioning bodily harm.

[19] When the statement that Mr Castor relies upon is read in its context, it is my view that his Honour was saying that, by his actions, the defendant came very close to being charged - well, committing and being charged with a wounding or something worse for him, that is, an offence that had a serious or tragic outcome. He was adverting to the risk of using a knife; that more serious injuries might have been sustained. I do not accept that he was proceeding to sentence on an incorrect factual basis. He expressly stated that he was sentencing on the basis that it was an assault occasioning bodily harm.

[20] Turning to the submission that the sentence was manifestly excessive. Firstly, to state the relevant principle, it is not enough that the judge comprising the appellate Court consider that if they had been in the 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. Sometimes error will not be manifest, except by the result itself, which will appear unreasonable or plainly unjust, in which case the appellate Court may infer that there has been a failure to properly exercise the discretion. Although the nature of the error may not be discoverable, the exercise of discretion is reviewed because a substantial wrong has in fact occurred.

[21] For reasons that follow, I'm not satisfied that a substantial wrong has in fact occurred. I've had regard to the authorities to which I've been referred in reaching that conclusion and I will briefly state the view I take of them. Firstly, I'll refer to the single judge decisions, both of which I consider to be distinguishable on the facts. The first is The Queen v Murphy, a decision of Judge Jones in 2013. The sentence was two years suspended after six months for an assault occasioning bodily harm while armed which occurred in the street after the defendant had pursued a couple making noise outside his premises. There was some aggression in response by the male of the couple. The defendant lunged at him with a screwdriver and in the course of the struggle he injured the complainant's left eye, luckily not seriously. Although the defendant did have a criminal history, the significant offences for the purpose of that sentence were very dated entries for a common assault and an obstruct police. The sentencing judge considered acts of violence were out of character for this man. The same cannot be said of the appellant, at least in relation to this complainant.

[22] The second single judge decision I have regard to is the case of The Queen v LeBlanc, a decision of Judge Britton in September of 2012. He imposed a sentence of two and a half years with the defendant released to parole immediately, having served almost a year, it seems to me, in pre-sentence custody. The defendant was a 29 year old man when he committed the offences. He had criminal history, but none for violence. He stabbed someone in the course of helping his brother in a fight. That case is distinguishable again on his lack of history of violence, although there were more serious injuries. I do note the sentence of two and a half years in that case.

[23] Turning to the Court of Appeal decisions, and dealing with them in order of their oldest to most recent. In R v Ball [1998] QCA 369, a sentence of three years suspended after eight months was not disturbed on appeal for a more mature man charged with an assault occasioning bodily harm while armed during a dispute about arrangements for rent in a caravan park, with some background of conflict on the day of the incident. The Court observed that he had shown no remorse but took into account a psychologist's report about his childhood experiences. He had a more significant history including two offences of violence, one of them of grievous bodily harm involving use of a knife. I find this case helpful in identifying that two to three sentences have been imposed in a number of cases involving assault occasioning bodily harm while armed.

[24] The next case is R v Shillingsworth [2001] QCA 172. This involved a sentence imposed on a 25 year old man who committed an offence of unlawful wounding and related offences while on parole. The offence occurred in domestic circumstances and the weapon was a pair of scissors. The judges accepted it was not premeditated, but there were a number of injuries. The sentence of three years was disturbed on appeal, but only because, in the circumstances, the Court was required to impose a cumulative sentence and therefore the principle of totality had to be applied. In fact, Justice Williams indicated a starting point of no more than three years was appropriate for an offence of this kind. Bearing in mind this is wounding, not assault occasioning bodily harm while armed, it does nevertheless provide some guidance.

[25] The next case is R v Friday [2005] QCA 440. This again was an unlawful wounding and involved a cumulative sentence. The complainant was his de facto and the offence occurred when they were arguing because he was jealous. The wounds were more significant than in this case. He had a limited history of violence and does not appear to have been on a domestic violence order at the time of the offence. The Court allowed the appeal to take the impact of the cumulative sentence into account by fixing a suspension after nine months instead of 12 months on a three year term.

[26] The next case I considered was R v Clark [2008] QCA 51. This was an appeal by the defence against an 18 month term suspended after four months for an unlawful wounding. It was not disturbed on appeal. The defendant was 55, much older than the appellant, and the offence occurred during a dispute about a car park. The wounds were more serious, however Mr Clark had no prior history, a point of distinction from the appellant.

[27] Finally, I have considered the case of the R v Cui [2009] QCA 334. A sentence of two years suspended after six months for a minor wounding was reduced to 18 months with parole release on delivery of the appeal judgment, by which time he had served about two months. The defendant was a 24 year old first offender. The wounding was very minor. The defendant was remorseful and it occurred in the context of a fight between friends over money. Again, this defendant's lack of prior history and, I believe, remorse, is a point of distinction from the appellant.

[28] Before I move from the question of remorse, I should observe that it seems to me that his Honour did take into account the appellant's cooperation and his willingness to plead guilty at a very early stage of the proceedings, and observed that he had avoided any further trauma for the complainant because she was not required to give evidence, accepted that that was one of the ways in which the appellant had said he was sorry and admitted what he had done was wrong.

[29] The cases of Ball, Shillingsworth and Friday, or at least the observations about appropriate sentences made by the Court of Appeal in those decisions, gives support to the view taken by his Honour that a sentence in the order of two to three years was appropriate. In my view three years would have been well and truly the upper limit given the minor nature of the injuries; so those observations by the Court of Appeal I've referred to would suggest that a sentence of 27 months with release to parole was not, on the face of it, excessive. But I will turn to the specific submissions made on the appellant's behalf that might influence that consideration.

[30] Firstly, that the learned Magistrate placed excessive weight on the principle of deterrence. I reject this argument. Principles of both general and personal or specific deterrence had great significance on the sentence. The appellant pleaded guilty to an offence of violence against his partner involving the use of a knife in breach of a domestic violence order imposed because of past violence towards her; on one occasion involving a threat to stab her. He was also on a probation order at the time, which was imposed because of past offending against her. Both those offences that led to the probation order were offences of violence.

[31] Courts are required to consider how the sentence they impose might deter others from committing similar offences, and it was proper for his Honour to observe that the sentence needed to support the protective purpose of domestic violence orders by adequately punishing contraventions of them, particularly when the contraventions involve acts of violence. This is consistent with the observations of the Court of Appeal in the case of the R v Wood [1994] QCA 297, where the Court said:

We agree with his Honour's approach to offences of this kind. 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 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 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 wrongdoer is liable to prosecution and punishment, but only after the injury has, sometimes with fatal consequences, already been inflicted.[4]

[32] This passage reinforces the importance of general deterrence for offences of this nature. Further, specific or personal deterrence of the appellant was also an important consideration on this sentence given his history of offending against this complainant. Indeed, other than breaches of Court orders, his only offences appear to be against her. His Honour was entitled to regard the assault occasioning bodily harm while armed as an escalation in offending, particularly as he had specifically counselled The appellant on a previous sentence for an offence of this nature; that is, of contravention of a DVO; and about the risk of using a knife.

[33] I consider this also disposes of the argument that his Honour failed to have regard to the relative risk of harm of imprisonment - if imprisonment was not imposed when fixing the parole release date. He made specific mention of his prior history of offending and that previous sentences had not deterred him in the past.

[34] Finally, I do not accept that his Honour regarded the appellant's prior performance on an indigenous sentencing order or on a probation order as an aggravating rather than a mitigating feature. He did note that the probation order had both a rehabilitative component as well as a requirement not to commit further offences. He noted that he had previously counselled the appellant to live up to the commitments he had made when he was on the indigenous sentencing order, something the appellant had plainly not done. Finally, he noted that if probation and parole were aware that the appellant and the complainant were still in a relationship, they could have assisted him with other strategies to avoid this type of situation occurring.

[35] It seems to me that his Honour was very well acquainted with the appellant's prior offending and his history of performance on previous orders, both positive and negative. In determining the appropriate sentence, his Honour was required to take this into account in considering, as he was required to do, the prospects of rehabilitation. It is an aggravating factor that these offences occurred whilst the appellant was on both a probation order and a domestic violence order that he had repeatedly breached in a violent way.

[36] In light of the observations by the Court of Appeal about appropriate sentences and the cases of Ball, Shillingsworth and Friday, a sentence of 27 months with release to parole at nine months is not manifestly excessive, in my view, for a 24 year old man who used a knife, luckily with minimal consequences given the location of the injuries, when the victim was a woman towards whom he had been violent in the past and in breach of orders designed to protect her from his violence. In case there is any doubt about that, that is my view, even accepting that in the course of the incident, there was some aggression towards the defendant by the complainant during which he himself sustained injuries.

[37] No specific submissions were made in relation to the other sentences. The appeal against all sentences is refused.

[1] Transcript of sentencing hearing before Magistrate Madsen on 27 May 2014, Page 4, line 39 - page 5, line 4.

[2] Sentencing remarks of Magistrate Madsen. Page 2 line 7 - line 10.

[3] Sentencing remarks of Magistrate Madsen, Page 3, line 12.

[4] R v Wood [1994] QCA 297, 301.