Davis v Commissioner of Police [2025] QDC 217

[2025] QDC 217 DISTRICT COURT OF QUEENSLAND KENT KC DCJ Appeal No 1006 of 2025 STEPHEN JAMES DAVIS Appellant v COMMISSIONER OF POLICE Respondent BRISBANE FRIDAY, 16 MAY 2025 RULING HIS HONOUR: [1] In this matter the appellant, Mr Davis, appeals against the penalties imposed in the Magistrates Court at Brisbane in respect of breach of probation proceedings, whereby Mr Davis is being re-sentenced for the original offences and that is the original contraventions of the domestic violence order in late 2023. The Magistrate imposed a custodial sentence. The longest of the concurrent sentences imposed was four months, and his parole release date was set as at the 20th of May 2025, which I think is next Tuesday. He was fined for some other matters. The appellant appeals against that disposition, in essence, pointing to four separate errors which are said to have been made. [2] In the course of submissions, her Honour mentioned what are now said to be extraneous matters, including a, with respect, somewhat obscure reference to a report about the risks and outcomes associated with acts of domestic violence. Whilst domestic violence is -- 1 of 3 -- 2 of, no doubt, broad concern to all of the community and, sadly, represents a significant proportion of the work of this court, her Honour did not identify the matter to which she was referring or share it with the parties, and thus, no party present was in a position to be able to make submissions about it. It is also said along those lines that her Honour conflated some of the matters in the appellant’s criminal history with other matters. [3] It is also said that the imposition of a custodial sentence, which occurred on this occasion, was disproportionate to the offending, which was contraventions of a protection order not involving physical contact or violence, but rather, at least including a very large number of phone calls, but had taken place over a fairly short period something over 15 months prior. He only had one relevant entry in his criminal history, which was in 2006, so 19 years ago now. In further support of the disproportionality, Ms McKenzie identifies some comparable sentences. [4] It is also said correctly, with respect, that her Honour made no mention or gave no weight to the proposition that imprisonment is a last resort, and also did not advert to the reasonably well-accepted proposition that such short sentences, a bit over an actual month in custody, were of doubtful utility. That proposition holds true in my conclusion for older offenders as well as young offenders. True it is though that it has more work to do in the sentencing of youthful offenders, particularly youthful first offenders. [5] The appropriate disposition, according to the appellant’s counsel, is to set aside the sentences of imprisonment and impose a collective fine. It is also said that of her own motion and without hearing submissions, her Honour unilaterally made alterations to the protection order which were not informed by any of the material before her, other than the bald fact of the contraventions 15 months before, and it is said that those alterations should be set aside as well. [6] Ms Quadrio, on behalf of the respondent, does resist the appeal and has a number of matters which she advocates in resistance of the appellant’s advocated grounds. All of those submissions, in my view, are appropriately made and well pressed. [7] But, at the end of the day, my conclusion is that the Magistrate’s sentencing discretion did miscarry in the ways identified by the appellant. That means that appealable error is -- 2 of 3 -- 3 identified, which means, amongst other things, that the sentencing discretion is enlivened afresh. [8] Mr Davis does have a significant criminal history, but as I have noted, not a recent criminal history for domestic violence. The appellant presses for a moderate fine, particularly given that he has served over a month in prison at the moment, and in my view, that is the disposition that should replace the present orders. [9] Thus, in my conclusion, the appeal shall succeed. The sentences challenged should be set aside and in place, in respect of I think it is the four offences of contravention of a domestic violence order, a collective fine for all four charges of $750 should be imposed. Mr Davis will have one month to pay the fine, in default thereof, the issue of nonpayment should be referred to the State Penalties Enforcement Registry. Convictions are necessarily, in any case, recorded. [10] In respect of the appeal against the orders altering the original protection order, the information about the details of that is somewhat scant, but my conclusion is that, again, in the context of what seems to be a significant lack of procedural fairness, those orders should be set aside. I note that if the aggrieved or anyone else considers that further action will need to be taken in relation to the protection order, that jurisdiction, of course, exists in the Magistrates Court and an appropriate application can be made by the aggrieved or even by the police if that is considered necessary. Okay. Any others needed? MS McKENZIE: No. Thank you. MS QUADRIO: No. Thank you, your Honour. HIS HONOUR: Okay. Thanks for your assistance. ______________________ -- 3 of 3 --