BEV v Commissioner of Police [2025] QCA 182

SUPREME COURT OF QUEENSLAND CITATION: BEV v Commissioner of Police [2025] QCA 182 PARTIES: BEV (applicant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: CA No 156 of 2022 DC No 1150 of 2022 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Criminal) ORIGINATING COURT: District Court at Brisbane – Unreported, 7 July 2022 (Wooldridge KC DCJ) DELIVERED ON: 26 September 2025 DELIVERED AT: Brisbane HEARING DATE: 10 February 2025 JUDGES: Bond and Brown JJA and Williams J ORDER: The application for leave to appeal against sentence is refused. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to contravention of a domestic violence order – where evidence revealed multiple previous contraventions of such orders in respect of the same aggrieved – where the applicant was sentenced in the Magistrates Court to three months’ imprisonment to be followed by two years’ probation – where the applicant successfully appealed the sentence to the District Court pursuant to s 222 of Justices Act 1886 (Qld) – where the applicant was re-sentenced to 2 months’ imprisonment with a conviction recorded – where the applicant sought leave to appeal to the Court of Appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – where the applicant contended that any form of sentence which involved the imposition of a period of imprisonment and therefore the mandatory recording of a conviction was manifestly excessive – where an application for leave to adduce further evidence was rejected because the appeal was a strict appeal – where the sentence imposed was not manifestly excessive -- 1 of 6 -- 2 COUNSEL: P J Wilson for the applicant M A Green for the respondent SOLICITORS: Gilshenan & Luton Legal Practice for the applicant Director of Public Prosecutions (Queensland) for the respondent [1] BOND JA: For reasons which follow, the applicant’s application pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) for leave to appeal from a sentence imposed in the District Court on appeal from the Magistrates’ Court should be refused. [2] As at 1 May 2022, the applicant was the subject of a domestic violence order which had originally been made on 10 March 2020, but which had been varied on 1 March 2022. The applicant had been present when the order was made. The aggrieved party named in the order was the applicant’s ex-partner. [3] On 1 May 2022, the aggrieved had attended at the applicant’s home in the context of returning the two children of the relationship. Once there, the aggrieved had raised with the applicant concerns that she had around the child contact arrangements, and the need she felt for the children to have a stable routine. She also mentioned that one of the children had reportedly not wanted to stay with the applicant that day. [4] This upset the applicant and he began a verbal argument with the aggrieved. The children were present in the house at the time. The aggrieved indicated that she intended to leave the premises due to the applicant’s behaviour. This caused the applicant to become more enraged, and he beat his hands on his chest in anger, in front of the aggrieved. When the aggrieved attempted to leave, the applicant stood in front of her to prevent her from doing so. [5] Police received reports of an argument, and the sound of the punching of something, and attended at the address. Once there, the police spoke with the aggrieved who was upset and crying. She reported that there had been an argument and that the applicant was inside the house. Police located the applicant in the dwelling and took him into custody. He remained in custody until he appeared in the Magistrates’ Court on 3 May 2022. [6] On 3 May 2022 the applicant faced a bench charge formulated as follows: “DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT 2012 177(2)(A) CONTRAVENTION OF DOMESTIC VIOLENCE ORDER (AGGRAVATED OFFENCE) That on the 1st day of May 2022 at Tingalpa in the State of Queensland [the applicant] being a respondent against whom a domestic violence order had been made contravened the order namely the varied protection order made on the 1st day of March 2022 in the Magistrates Court at Wynnum and [the applicant] was present in court when the order was made” [7] On that day the applicant was convicted on his own plea of guilty to that charge. -- 2 of 6 -- 3 [8] During the sentencing proceeding, the Magistrate’s attention was drawn to the applicant’s history of being dealt with in the Magistrates’ Court for previous breaches of domestic violence orders in respect of the same aggrieved, namely: (a) On 1 September 2021, in respect of a contravention on 31 August 2021 of a domestic violence order, he was placed on a recognisance to be of good behaviour for a period of 12 months, no conviction being recorded. (b) On 8 November 2021, in respect of a contravention on 9 September 2021 (being an aggravated offence), he was fined $800, no conviction being recorded. (c) On 1 March 2022, in respect of a contravention on 25 February 2022 (being an aggravated offence), he was sentenced for the new charge and resentenced for the 1 September sentence. The recognisance was forfeited, and he was placed on probation for 12 months, no conviction being recorded. (d) On 28 March 2022, in respect of two contraventions in March 2022, he was sentenced to 60 hours community service to be completed within one year, no conviction being recorded. [9] At the time of committing the offence on 1 May 2022 and of appearing before the Magistrates’ Court on 3 May 2022, the applicant was therefore subject to a probation order and a community service order. His offending on 1 May 2022 would apparently have given rise to a breach of the probation order, and a breach of a community service order. As at the time of sentencing on 3 May 2022, no breach proceedings had been commenced. [10] Counsel for the prosecution submitted that the appropriate sentence for the charge before the Court was 6 to 9 months’ imprisonment. [11] The applicant’s legal representative advanced the following submissions: (a) this offending all came in the context of the applicant’s own trauma and his past childhood trauma; (b) he grew up in Lebanon and he was witness to the turmoil that was going on in that country during that time; (c) he had mental health issues as a consequence of being exposed to associated domestic violence in his own home when he was child; (d) he had been diagnosed with past childhood trauma, depression, anxiety, and panic attacks; was currently seeing psychologists and taking medication; (e) there were underlying issues with respect to deportation from Australia, because he was “currently on a partner’s visa”; (f) he could not submit that the prosecution submission of 6 to 9 months’ imprisonment was outside the appropriate range; (g) an appropriate sentencing disposition might be to impose a period of imprisonment between six to nine months, release the applicant immediately upon parole, fined and then allow the probation order to continue with that ongoing support. -- 3 of 6 -- 4 [12] The magistrate sentenced the applicant to three months’ imprisonment to be followed by two years’ probation. As part of the sentence, the learned magistrate revoked the previously imposed orders for community service and probation and resentenced the applicant for the offences for which those orders had been imposed. A conviction was recorded. [13] On 18 May 2022 the applicant appealed the sentence pursuant to s 222 of Justices Act 1886 (Qld) on the ground that the sentence was manifestly excessive. The appeal was heard in the District Court at Brisbane on 7 July 2022. [14] The learned District Court judge noted that the appeal before her was an appeal by way of rehearing. It was common ground before her Honour that the magistrate should not have re-sentenced in the way he had absent the commencement of proceedings alleging breach of the previous orders. Accordingly, her Honour accepted that discretionary error by the magistrate had been established. The question which remained was what sentence ought to be imposed for the offending which had taken place on 1 May 2022. [15] The applicant’s submission was that his offending did not warrant the imposition of a term of imprisonment. The respondent submitted that, taking into account the time spent in custody by the applicant to the date of the hearing (1 May 2022 – 7 July 2022), the applicant should be re-sentenced to a sentence in the order of 6 months’ imprisonment with immediate release on parole, or alternatively, that period of imprisonment should be wholly suspended for an operational period of 18 months. [16] Her Honour’s sentencing remarks reveal that her Honour noted and took into account: (a) the circumstances of the offending; (b) the fact that even though there was no actual or threatened violence towards the aggrieved, she must have been intimidated and distressed; (c) the following circumstances of aggravation: (i) the fact of the charge itself (namely the aggravated offence under s 177(2)(a)), revealed a circumstance of aggravation, namely that the applicant had previously been convicted within the relevant period of the offence of contravention of a domestic violence order; (ii) the occasions in the months leading up to the offence in which the applicant had appeared before the Court and been dealt with for other offences of contravention of a domestic violence order concerning the same aggrieved; (iii) the applicant was the subject of probation and community service orders at the time of the offending; (d) the terms of s 9 of the Penalties and Sentences Act, including in particular ss 9(1) and 9(10A); (e) the various matters in mitigation which had been placed before the magistrate at first instance, and identified in the submissions before her, including, but not limited to the applicant’s plea of guilty and the steps the applicant had taken towards rehabilitation; and -- 4 of 6 -- 5 (f) the fact that as a result of the sentences that were imposed upon the applicant on 3 May 2022, the applicant had been in custody for a period of two months and four days. [17] Her Honour concluded that a sentence of imprisonment was well within the proper exercise of her sentencing discretion. Her Honour set aside the orders made in the Magistrates’ Court; sentenced the applicant to 2 months’ imprisonment for the offending on 1 May 2022 with the 67 days already served declared as time served under that sentence. Her Honour recorded a conviction. [18] As has been mentioned, pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) the applicant now seeks leave to appeal to this Court from the sentence imposed by the learned District Court judge. The application relies on a single proposed ground of appeal, namely that the sentence was manifestly excessive. The application put the ground in this way: “Sentence is too excessive based on evidence provided during the trial on 3 May 2022 and further supporting evidence to be adduced in this matter, regarding the mental health of the defendant at the time of the offence and trial.” [19] The “further supporting evidence” to which reference was there made was contained in an affidavit by the applicant and an affidavit by a psychologist which exhibited a psychological report. That evidence was the subject of an application for leave to adduce further evidence. However, that application must be rejected. The principles which apply to appeals to this Court from judgments of the District Court in its appellate jurisdiction are not in doubt, are summarised in McDonald v Queensland Police Service [2017] QCA 255 at [39] and have been applied in many cases since. Relevantly, if leave to appeal were to be granted, the appeal would be an appeal in the strict sense and not an appeal by way of rehearing, with the result that this court’s sole duty would be to determine whether error had been shown on the part of the District Court, on the basis of the material before the District Court: see McDonald v Queensland Police Service at [39(e)]. Accordingly, the applicant could not rely on the alleged further supporting evidence to demonstrate manifest excess. [20] It remains to assess the application for leave to appeal having regard to the principles summarised in McDonald v Queensland Police Service. First, this Court’s discretion to grant or refuse leave to appeal is unfettered, exercisable according to the nature of the case, but leave to appeal will not be given lightly, given that the applicant has already had the benefit of two judicial hearings. Second, the mere fact that there has been an error, or that an error can be detected in the judgment is not ordinarily, by itself, sufficient to justify the granting of leave to appeal – leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected. [21] The applicant advanced two grounds in support of the contention that the sentence imposed was manifestly excessive. [22] First, the applicant raised a ground not previously advanced, which if it had merit should have been raised as a ground of specific error. He argued that there was no evidence that a notice alleging the fact of prior convictions had been provided to the applicant before the initial Magistrates’ Court hearing in compliance with s 47(5) of -- 5 of 6 -- 6 the Justices Act. On that basis of non-compliance, he sought to argue that it was wrong to characterise the offence as an aggravated offence. There was no merit in this argument. If the point was ever to be taken, it had to be taken below and by reference to evidence which established the relevant non-compliance. There was no such evidence before either the magistrate or the District Court judge. Accordingly, the point cannot now be agitated on a strict appeal. The applicant sought leave to adduce an affidavit by him that sought to prove that he had not been given the requisite notice, but for reasons already expressed, that affidavit could not be received on a strict appeal. [23] Second, the applicant also sought to justify the conclusion of manifest excess in the more conventional way by suggesting that any form of sentence which involved the imposition of a period of imprisonment and therefore the mandatory recording of a conviction was unreasonable or plainly unjust. But in the present case it does not seem to me that there is a reasonable argument in support of that proposition. The seriousness of continued domestic violence offending has been explicitly recognised in this court: see CDL v Commissioner of Police [2024] QCA 245. Having regard to the considerations which were relevant to sentence and shown on the material before the learned District Court judge, her Honour was correct to regard the imposition of a period of imprisonment as within the proper exercise of her discretion. The argument to the contrary before this Court relied heavily on the reception of the impermissible further evidence. Once it is appreciated that the further evidence could not be received with a view to identifying error, the argument became hopeless. There is no basis to regard the sentence imposed by the learned District Court judge as manifestly excessive. [24] The application for leave to appeal against sentence should be refused. [25] BROWN JA: I agree with Bond JA. [26] WILLIAMS J: I have read the reasons of Bond JA and agree with those reasons and the proposed order. -- 6 of 6 --