DFG v Queensland Police Service [2024] QDC 235

1-1 QUEENSLAND COURTS AND TRIBUNALS TRANSCRIPT OF PROCEEDINGS © The State of Queensland (Department of Justice and Attorney-General). Apart from any use permitted under the Copyright Act 1968 (Cth), all other rights are reserved. Providing a copy to a legal practitioner for the purpose of obtaining professional advice is considered fair use under section 43(2) of the Copyright Act 1968 (Cth) and does not require copyright release. For all other uses, you must not copy, modify or distribute this material without the written authority of the Director, Recording and Transcription Services, Queensland Courts. DISTRICT COURT OF QUEENSLAND APPELLATE JURISDICTION JUDGE KENT KC Appeal No 2 of 2024 DFG Appellant and QUEENSLAND POLICE SERVICE Respondent EMERALD 10.08 AM, THURSDAY, 8 AUGUST 2024 DAY 1 JUDGMENT Any rulings in this transcript may be extracted and revised by the presiding Judge. WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. -- 1 of 6 -- 08082024/EMR1/Kent DCJ __________________________________________________________________________________ 1-2 JUDGMENT HIS HONOUR: This is an appeal by DFG, pursuant to section 222 of the Justices Act, against the penalty imposed upon him in the Magistrates Court here at Emerald on the 11 th of March 2024 for contravening a domestic violence order. The sentence imposed by the magistrate was four months’ imprisonment wholly suspended, and in essence the contention by the appellant is that the sentencing process included a legal 5 and possibly partly factual error. But also an error of law is demonstrated in that, viewed objectively, in its circumstances and against the background of decided authority the penalty imposed is manifestly excessive. The appellant’s counsel, Ms Shaw, also contends for another identifiable error in 10 observations the magistrate made about his previous interactions shortly prior to that time in a committal hearing concerning unrelated offending. As discussed during the submissions I am not persuaded that those interactions do represent an appealable error. Nor would I even criticise them as being inappropriate. Indeed, in the circumstances one can understand His Honour’s degree of frustration. I am assisted 15 by the submissions of Ms Spiteri on behalf of the respondent who concedes that an error is demonstrated. She helpfully identifies some of the relevant authorities one of which is McDonald v Queensland Police Service. What the observations of the Court of Appeal in that case boil down to consistently 20 with other decided authority in the general area is that an appellant under section 222 must identify a legal, factual, or discretionary error. The errors conceded by the respondent include the non-declaration of the, it turns out, one day in pre-sentence custody or otherwise saying that it was taken into account but not declared because the penalty that was imposed involving a custodial component the legislation 25 required the Court to take one or other of those courses. Secondly, the Prosecution does, with respect, appropriately in my conclusion concede that the penalty was outside the appropriate range. It was indeed outside the range submitted for by the advocate on behalf of the Prosecution at the time. I have 30 given the Prosecution leave to appropriately tender a pre-sentence custody certificate. DFG was in custody for more than a day, but it did not reach two days so that the declarable time, were it appropriate to declare it, would be one day. As identified by the parties, DFG, was at the time a 24-year-old youthful offender who had pleaded guilty at an early stage. 35 He did have previous appearances in Court which were relevant but he had previously been convicted and not further punished and fined with a conviction being recorded. Therefore, to leap to a suspended sentence of four months imprisonment was a considerable leap and one not really justified in the circumstances of this case. 40 The circumstances were that in breach of a domestic violence protection order DFG had attended the premises of the aggrieved in contravention of a condition of his order which required him not to approach within 50 metres of the address here in Emerald. 45 Inferentially it seems that possibly the aggrieved contacted the police when the appellant was present outside the premises. Police did attend and they saw him at the -- 2 of 6 -- 08082024/EMR1/Kent DCJ __________________________________________________________________________________ 1-3 JUDGMENT front of the address. The aggrieved was seated out of the front of the address presumably, as I say, inferentially, perhaps having called the police. Paradoxically DFG’s response upon seeing the police arrive was to enter the dwelling; arguably aggravating his offending and then perhaps he may have run out the back door because when police looked for him they could not find him. He may be an athletic 5 young man. He was certainly athletic enough to escape from the police. Not much later the same evening he presented himself to the Emerald Police Station because of the offending. He declined to be interviewed as is his right. But it is very much to his credit that he presented himself in that way so that he was no more 10 trouble to investigating police or indeed to anyone else. The response, appropriately, was that he was arrested and, as I say, held in custody for something slightly less than two days. In all those circumstances and despite his limited criminal history, in my conclusion the respondent’s concession that the penalty was manifestly excessive is a concession rightly made. 15 Further, it is an identifiable error of law that in imposing that custodial penalty, which a suspended sentence is, the time served in pre-sentence custody was not declared. That is a fairly conventional conclusion. Namely, that the non-declaration represents a legal error. If any authority is needed for it there are a number but one 20 includes Jamieson [2016] QCA 11. Those being the circumstances; the appropriate orders are to set aside the penalty imposed in the Magistrates Court and re-exercise the sentencing discretion and sentence DFG afresh. I note that what was said on his behalf at the time of the sentence initially is that he 25 was employed with a company as a third-year apprentice in carpentry earning quite reasonable wages. He has two children with the aggrieved who is also pregnant. It is not really clear to me at the moment, but hopefully he contributes to the maintenance of the children. What was said was that he has commenced in a choosing change program, a 16-week behavioural program, to address his behaviour 30 in relation to domestic violence. He has also had sessions with drug and alcohol counselling. That is, he has, as was said at first instance, taken appropriate steps to pursue his rehabilitation. The orders on the appeal will be that the appeal is successful, and the orders below 35 set aside. As I have noted, it thus falls to this Court to resentence DFG and re- exercise the sentencing discretion afresh. Would you stand up, please, DFG. DFG, you have pleaded guilty previously and now you are to be sentenced in this process for the offence of contravention of domestic violence order. The 40 circumstances of your offending are set out in the transcript from the Magistrates Court, and I have touched on those circumstances during the hearing of the appeal and the enunciation of these reasons. You should understand the purposes for a sentencing proceeding such as this one has 45 devolved into. They include, pursuant to the Penalties and Sentences Act, punishing -- 3 of 6 -- 08082024/EMR1/Kent DCJ __________________________________________________________________________________ 1-4 JUDGMENT you to an extent and in a way that is just in all of the circumstances, that is, balancing competing factors to arrive at a just, that is, a fair sentence; secondly, providing conditions in the Court’s orders that will help you to be rehabilitated; thirdly, to deter you or others from committing the same or similar offences; fourthly, making it clear that the community, acting through the Court, denounces the kind of conduct in 5 which you were involved. Can I just note, DFG, this is not the most serious example of contravention of a domestic violence order, but domestic violence is a scourge on our community. People throughout the community, throughout the legal system, and throughout the 10 Parliamentary system are literally having conniptions trying to do something about this because it is a huge problem. Men, in particular, cannot be domestically violent to women, okay? Magistrate MacKenzie gave you a couple of lectures about this, and unfortunately, it falls for me to do as well. You cannot do this. If the order says you cannot go there, you cannot go there, okay? I know that you understand that 15 hopefully now - - - APPELLANT: Yes, your Honour. HIS HONOUR: - - - and it stands to your credit that once you realised once what 20 you have done and the implications, you went and saw police of your own – off your own bat. That stands to your credit. But do not apologise. Just do not do it in the first place, okay? The aggrieved does not want you there. You have just got to accept that and move on. It is extraordinarily serious and regarded very much so by Parliaments and the Courts. Okay. 25 I make it clear that the community, acting through this Court, denounces the kind of conduct in which you were involved. The fifth purpose of the process is to protect the Queensland community from any future misdeeds by you, a purpose, one hopes, best achieved by your successful rehabilitation. I take it you are still working now? 30 APPELLANT: Yes, your Honour. HIS HONOUR: How is your apprenticeship going? Okay? 35 APPELLANT: Really well. HIS HONOUR: Okay. What should be achieved by all this is that you continue to work, you continue to earn money, you continue to support your family. Yes? 40 APPELLANT: Yes, your Honour. HIS HONOUR: My inclination, as you have heard, is to offer you a probation order. In order to put you on probation, I have to get your consent to the requirements. In order to do that, I have to explain the requirements to you, okay? They are that you 45 must not commit another offence during the period of the order, which will be 12 months. You must report to an authorised corrective services -- 4 of 6 -- 08082024/EMR1/Kent DCJ __________________________________________________________________________________ 1-5 JUDGMENT officer, that is, a probation officer, at the time and place stated in the order, likely to be today at Emerald. You must report to and receive visits from your probation officer as they direct. You must take part in counselling and satisfactorily attend any other programs as directed by your probation officer during the period of the order. If they want you to do another domestic violence course, you have to do it. If they 5 want you to do another drug and alcohol course, you have to do it. I pause to note that there are some people that should not drink. It looks like you are one of them. Okay? The next requirement is that you must notify your probation officer of every chance of your residence or employment within two business days of 10 the change happening. You must not leave or stay out of Queensland without their permission. If they let you go to New South Wales for a week, you cannot stay for eight days, okay, you have got to come back, and you must comply with every reasonable direction of your probation officer during the period of the order. Do you understand those requirements? 15 APPELLANT: Yes, your Honour. HIS HONOUR: Will you comply with them? 20 APPELLANT: I do. HIS HONOUR: Okay. There is only one charge, isn’t there? MS SHAW: Just the one, your Honour. Yes. 25 HIS HONOUR: Okay. On the sole charge the subject of this appeal, you are released under the supervision of an authorised corrective services officer at Emerald for a period of 12 months. You must comply with the requirements set out in section 93, subsection (1) of the Penalties and Sentences Act 1992. You must report by 30 close of business today to an authorised corrective services officer at Emerald. I have considered the discretion confirmed by section 12 of the Penalties and Sentences Act as to whether or not a conviction should be recorded. The template in section 12 requires consideration of the nature of the offence, the offender’s, DFG’s, 35 character and age, and the impact that recording a conviction will have on his economic or social wellbeing or chances of finding employment. No specific material is placed before me in relation to employment prospects. However, consistently with previous observations in the Court of Appeal, including 40 from Justice of Appeal Keane as his Honour then was, such consequences may often be a matter of reasonable inference, and I do draw the inference that a recorded conviction does not aid DFG’s economic or social wellbeing and his chances of finding other employment in the future. The nature of the offence, as I had explained, is such that despite his limited criminal history, it is just not a very serious 45 example of contravention of such an order, particularly in the circumstances that he -- 5 of 6 -- 08082024/EMR1/Kent DCJ __________________________________________________________________________________ 1-6 JUDGMENT handed himself in a couple of hours later. His character and age do not tell against the exercise of the discretion in his favour. In all of the circumstances, I exercise my discretion to not record a conviction, particularly in the context that a 12-month probation order is directed largely at 5 producing the best outcome in terms of rehabilitation that may be possible for DFG. There will be an order in those terms. To make it clear, if I have not already, the orders are that the appeal is allowed, the penalty below set aside, and in the re- exercising of the discretion, there will be a 12-month probation order in the terms that I have described without a conviction being recorded. I think they have to 10 prepare the order here in the registry and DFG will have to enter into it, and then go off to Emerald Community Corrections with it - - - MS SHAW: Yes, I think so, your Honour. 15 HIS HONOUR: - - - before he goes back to work or whatever he is doing today. MS SHAW: Yes. HIS HONOUR: I am not sure what – where that is, but it is not far away. 20 MS SHAW: No. HIS HONOUR: Okay. Those remarks, when transcribed, will be the reasons for the decision. It is not a case where I find it necessary to reserve the judgment and write a 25 more formal one. Okay, anything else? MS SPITERI: No. Thank you. MS SHAW: No. Thank you, your Honour. 30 HIS HONOUR: I think I did say that the pre-sentence custody is to – Exhibit 1. MS SPITERI: Yes. 35 MS SHAW: Yes. HIS HONOUR: It will be marked as such. Okay. Thanks for your help. MS SHAW: Thank you, your Honour. 40 HIS HONOUR: Are we ready to proceed with the sentence or not? Are we still trying to get a link? Still trying to get a link. So – okay. We will adjourn in the appellate jurisdiction and we will resume in the crime as soon as it seems that we can talk to someone in Darwin. 45 ______________________ -- 6 of 6 --