CTC v Commissioner of Police [2019] QDC 250

[2019] QDC 250 DISTRICT COURT OF QUEENSLAND JARRO DCJ BD No 1435 of 2019 CTC Appellant AND COMMISSIONER OF POLICE Respondent BRISBANE FRIDAY, 29 NOVEMBER 2019 JUDGMENT JARRO DCJ: On 27 March 2019, the applicant was convicted on his own plea of guilty to one charge of contravention of a domestic violence order, pursuant to section 177(2) of the Domestic and Family Violence Protection Act 2012. The maximum penalty for this offence is three years imprisonment. The applicant was sentenced to three months imprisonment wholly suspended for two years. It was mandatory to record a conviction. The applicant filed a notice of appeal in relation to the sentence. His grounds of appeal are that: (a) the sentence was manifestly excessive; (b) the learned magistrate erred in failing to have proper regard to principles of ‘parsimony’; and, (c) the learned magistrate failed to give due weight to the appellant’s mitigating circumstances. -- 1 of 7 -- The facts of the offence (raised below at page 1, lines 17 to 27) can be briefly summarised as follows: The complainant and the applicant are married but do not permanently reside together. It would seem they have at least one child together, and at the time of the offending, the complainant was 23 weeks pregnant with their second child (see page 4, lines 20 to 22). At the time of the offending, there was a domestic violence order in place between the applicant and the complainant, with various conditions preventing the appellant being with the complainant or having any communication with her, except with her consent. On 8 January 2019, the police were called to a radiology clinic as a result of the complainant entering the clinic and advising the staff that her husband had assaulted her and injured her lip. The applicant had become enraged after checking the complainant’s phone and finding communications with another male. There was a verbal disagreement before the applicant struck the complainant with the back of his hand in the complainant’s mouth, causing her to bleed. Police observed lipstick on the back of the applicant’s hand. The applicant told police he was merely deflecting the complainant, who was trying to strike him. The assault left the complainant with a swollen upper lip and a cut on the underside of her lip, which bled. In his brief reasons for imposing the suspended sentence, his Honour stated as follows: “I think his personal prospects, whilst perhaps promising, are secondary to personal deterrence, which I think looms large in any factor here, and personal deterrence and community denunciation of domestic violence. The just punishment in the circumstances, also reflective of the plea of guilty and his past history, is that he is sentenced to three months imprisonment. I note I make three months in light of the limited nature of the injury, and the period of imprisonment will be suspended forthwith on the condition that he not be committed – not commit another offence during the period of the next two years, so three years imprisonment suspended for two years. If you commit another offence in the next two years punishable by imprisonment, then you will go to prison unless it is unjust. Do you understand that, sir?” The present appeal is brought under section 222 of the Justices Act 1899 (the Act). As the appeal relates to sentence only, section 222(2)(c) governs the appeal. The provision provides: “…if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.” Pursuant to section 223 of the Act, an appeal is by way of rehearing on the original evidence and any new evidence adduced by leave. Section 223 provides: “(1) An appeal under section 222 is by way of rehearing on the evidence (“original evidence”) given in the proceeding before the justices. (2) However, the District Court may give leave to adduce fresh, additional or substituted evidence (“new evidence”) if the Court is satisfied there are special grounds for giving leave. (3) If the Court gives leave under subsection (2) the appeal is: -- 2 of 7 -- (a) by way of rehearing on the original evidence; and (b) on the new evidence adduced.” In an appeal by way of rehearing: “…the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some factual, legal or discretionary error…”.1 In House v The King (1936) 55 CLR 499 at 404 – 405, the manner in which an appeal against an exercise of discretion should be determined as expressed by the majority is as follows: “It is not enough that the judges composing 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. If the judge acts upon a wrong principle, if he allows extraneous 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.” In Teelow v Commissioner of Police [2009] 2 Qd R 489, his Honour Justice of Appeal Muir at paragraphs 3 and 4 considered the principles to be applied on an appeal by way of rehearing under section 223 of the Act as follows: “A characteristic of an appeal “by way of rehearing” is that the appellate court, subject to its powers to admit fresh evidence, rehears the matter on the record of the court from which the appeal comes. In Scrivener v Director of Public Prosecutions, McPherson JA, referring to an appeal “by way of rehearing” under rule 765(1) of the Uniform Civil Procedure Rules 1999, observed: ‘It is well settled that a provision that characterises an appeal to this court as a “rehearing” ordinarily refers to a rehearing on the record, and not to what is sometimes called a rehearing de novo: see Powell v Streatham Manor Nursing Home [1935] AC 243, 263. On such a rehearing the appellate court has power to draw inferences from primary facts, including facts found and facts not disputed, which is as complete as that of the primary judge: see Warren v Coombes (1979) 142 CLR 531, at 537 to 541. On the other hand, an appeal under that form of procedure does not involve a rehearing of witnesses … Further evidence may be received on appeal, but only on special grounds: see rule 766(1)(c)…’ 1 See Allesch v Maunz (2000) 203 CLR 172 at 180. -- 3 of 7 -- It is a normal attribute of an appeal by way of rehearing that “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error … At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.” On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.” For the reasons that follow, I am of the view that the sentence imposed was not excessive. It was within range. I note the applicant was born on 22 January 1983. He was 35 years of age at the time of the offence. He is now aged 36. He was 36 at the time of sentence as well. At the time of sentence, the applicant had a Queensland criminal history containing a single entry for one charge of assault occasioning bodily harm while armed and one charge of deprivation of liberty. On 4 August 2017, the applicant was sentenced in the Cleveland Magistrates Court to 15 months probation, no conviction recorded. The probation order expired on 4 November 2018. The subject offence occurred two months later. At the hearing below, the prosecutor did not make any submissions or rely on any comparable authorities in relation to penalty. The applicant was legally represented at sentence. His solicitor placed his client’s personal antecedents and circumstances before the learned magistrate. At this appeal, the applicant himself identified that the learned magistrate was fully aware of the applicant’s background. The applicant’s solicitor advised the Court that: (1) The applicant had written consent from the complainant to drive her to and from the pregnancy scan. (2) The applicant conceded that he should not have swung his arm at a woman or any person, and there was no allegation on his behalf that the assault on the complainant was done in self-defence or the like. (3) His previous entry on his criminal history was different to the current offending and, in relation to a conviction being recorded, submitted that he had “excellent prospects. He is about to finalise a university degree. He had work lined up following that that may become, certainly, very difficult.” (4) It was accepted that the applicant’s actions were unprovoked and not in self- defence and were therefore excessive and unjustified. (5) There has been no further incidents in relation to domestic violence since the offence. In accordance with section 9 of the Penalties and Sentences Act 1992, the learned magistrate had specific regard to: -- 4 of 7 -- (1) The applicant’s personal “prospects of success” were promising; however, the learned magistrate stated they were secondary to general deterrence, which loomed “larger than any other factor here”. (2) Personal deterrence. (3) The community denunciation of domestic violence. (4) Early plea of guilty. (5) Criminal history. The learned magistrate remarked that the order of three months’ imprisonment was in light of the limited nature of the injury sustained by the complainant. During the hearing, the learned magistrate made the comment that a term of imprisonment wholly suspended would reflect the applicant’s guilty plea (see transcript of proceedings page 5, lines 27 to 30). Dealing with the three grounds of appeal. The first ground is that the sentence imposed was manifestly excessive. I note the applicant came before the Court with a relevant criminal history. He is a mature man. He used actual violence and a physical injury was sustained by the complainant, albeit of a limited nature. The offending was aggravated as the complainant was 23 weeks pregnant at the time and the violence was unprovoked. A relevant consideration for sentence is the prevalence of domestic violence in the community, and consequently, general deterrence needed to be reflected in the sentence. In the applicant’s favour, he entered an early plea of guilty, he cooperated with the authorities by remaining at the offence location, he has a limited criminal history, he seems to have good prospects of success, and he has not previously been dealt with for this offence. In balancing the applicant’s mitigating and aggravating features, and in light of the authorities of ETB v Commissioner of Police [2018] QDC 26, MEG v Commissioner of Police [2017] QDC 302, JMM v Commissioner of Police [2018] QDC 130, and Smith v Queensland Police Service [2015] QDC 152, I consider the sentence imposed was not beyond the acceptable scope of judicial discretion and was not so outside the appropriate range as to demonstrate inconsistency or unfairness – see, for example, IFM v Queensland Police Service [2016] QDC 140 at paragraph 9. I am therefore not satisfied the first ground of appeal has been made out. Regarding the second ground of appeal, the principle of ‘parsimony’ is not a governing principle used in the exercise of discretion in sentencing. The learned magistrate was not required to have regard to this principle pursuant to sections 9 to 13 inclusive of the Penalties and Sentences Act 1992. Therefore, there was no error in the application of the principle in handing down the sentence. Regarding the third ground of appeal, that is, failure to give weight to the appellant’s mitigating circumstances, I am not satisfied that this ground has been met. I do so in circumstances where the applicant’s personal antecedents, prospects of success, the nature of the injury sustained by the complainant, and his plea of guilty, were all appropriately considered and balanced against the personal and specific deterrence by the learned magistrate in accordance with section 9 of the Penalties and Sentences Act 1992. -- 5 of 7 -- I note the applicant has listed 16 dot points in his outline which he stated are mitigating circumstances in which the magistrate did not give due weight. In response to those dot points in order as they appear, the respondent submits, with which I agree, that: (1) The Prosecutor did not allege that the assault was premeditated. (2) The fact that the complainant was 23 weeks pregnant at the time aggravates the offending. It is not a mitigating feature. (3) The consent to be with the aggrieved did not extend to the applicant having consent to hit the complainant on her lip. The fact that the applicant had consent, in the context of a domestic violence order, demonstrates his lack of respect for the order that allows such a condition. (4) This is an irrelevant consideration. (5) This is inconsistent with the facts that the defendant freely and voluntarily pleaded guilty to. (6) The applicant’s plea of guilty was taken into account in wholly suspending the sentence. (7) The applicant’s early plea of guilty showed some remorse and it was reflected in wholly suspending the suspended sentence. (8) There is no allegation that the applicant had a history of offending against other women. (9) The applicant’s solicitor did not put any detail about the applicant’s background on the record. Therefore, the magistrate could not have regard to it. Having considered, though, the applicant’s attachments, which includes his curriculum vitae in particular, it is an unfortunate background. However, it does not justify his offending and, at best, serves as an explanation for his violence against a woman and a child who would not have provoked him. (10) This is correct. However, in the circumstances, a term of imprisonment wholly suspended was within range. (11) There was no evidence of this at the sentence, nor is there on the hearing of this appeal. (12) This point has already been addressed. (13) This information was not before the magistrate; however, it would not have been a mitigating factor, given the offending and his previous offence of violence. -- 6 of 7 -- (14) This was not before the magistrate; however, it, too, is not a mitigating factor as it has not affected the applicant in any positive way, given the nature of the offending. (15) This is not a relevant consideration. (16) The applicant’s prospects of success were considered by the learned magistrate. I have therefore formed the view that the sentence was not excessive or outside the appropriate range, or indeed failed to give due weight to the applicant’s mitigating features. Accordingly, the orders will be: (1) The appeal is dismissed; and, (2) The sentence imposed by the Magistrates Court on the 27th of March 2019 be confirmed. -- 7 of 7 --