AMD v Commissioner of Police [2019] QDC 22

DISTRICT COURT OF QUEENSLAND CITATION: AMD v The Commissioner of Police [2019] QDC 22 PARTIES: AMD (Appellant) v THE COMMISSIONER OF POLICE (Respondent) FILE NO/S: DC 2703 of 2018 DIVISION: District Court PROCEEDING: Appeal against Sentence ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 1 March 2019 DELIVERED AT: District Court at Brisbane HEARING DATE: 8 February 2019 JUDGE: Loury QC DCJ ORDER: 1. Appeal is allowed. 2. The sentences imposed are set aside. 3. I re-sentence the appellant as follows: (a) Contravene Domestic Violence Order (aggravated) on 15 April 2016 – six months imprisonment (b) Contravene Direction or Requirement of Police on 15 April 2016 – convicted and not further punished (c) Assault or obstruct police on 15 April 2016 – 21 days imprisonment (d) Breach of bail condition– Domestic Violence Offence on 16 April 2016 - one month imprisonment (e) Trespass on 3 June 2018 – Convicted and not further punished (f) Assault or Obstruct Police on 3 June 2018 – seven days imprisonment (g) Resentence for Contravene Domestic Violence Order x 6: on each charge – two months imprisonment 4. All sentences are to be served concurrently. 5. I order that the appellant be released on parole after he has served three months of that sentence. 6. I order that 40 days spent in pre-sentence custody be declared as time served under these sentences -- 1 of 9 -- 2 (from 15 April 2016 to 16 April 2016 and from 3 June 2018 – 9 July 2018). CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant was sentenced in Magistrates Court for 12 offences – where the appellant has criminal history in both New South Wales and Queensland – whether time served in New South Wales should have been taken into account – whether the sentence was manifestly excessive SOLICITORS: Legal Aid Queensland for the Appellant Director of Public Prosecutions for the Respondent [2] The appellant was sentenced on 10 July 2018 in the Magistrates Court as follows: The sentence imposed for the offence of breach of bail condition was ordered to be served cumulatively upon the nine month term of imprisonment. The appellant was ordered to be released on parole on 18 September 2018. Forty days in pre-sentence custody were declared as time served under those sentences (from 15 April 2016 to 16 April 2016 and from 3 June 2018 – 9 July 2018). The appellant was required to serve three months and eighteen days in custody before being released upon parole. [3] The appellant has appealed the sentences pursuant to section 222 of the Justices Act 1886 (Qld). Such an appeal is by way of rehearing on the evidence given in the proceeding in the Magistrates Court together with any new evidence for which leave to adduce is given.1 [4] The High Court in Robinson Helicopter Company Inc v McDermott said as to the task of an appellate court conducting a rehearing: “A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to 1 Justices Act 1886 (Qld) section 223. Contravene Domestic Violence Order (aggravated) on 15 April 2016 9 months imprisonment Contravene Direction or Requirement of Police on 15 April 2016 Fined $380 Assault or obstruct police on 15 April 2016 21 days imprisonment Breach of bail condition– Domestic Violence Offence on 16 April 2016 1 month imprisonment Trespass on 3 June 2018 Convicted and not further punished Assault or Obstruct Police on 3 June 2018 7 days imprisonment Resentenced for Contravene Domestic Violence Order x 6 6 months imprisonment -- 2 of 9 -- 3 formulate its own reasoning based on those findings.” (Footnotes omitted.)2 [5] As this is an appeal against the exercise of the sentencing discretion, it must be determined according to the principles found in House v The King.3 “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 such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” Circumstances of offences [6] A domestic violence order was made on 1 July 2015. It contained the following conditions: (1) the appellant was to be of good behaviour towards the aggrieved and not commit domestic violence against her; (2) the appellant was prohibited from remaining at the premises of the aggrieved; and (3) the appellant was prohibited from following or remaining or approaching to within 100 metres of the aggrieved when the aggrieved was at any place (except when appearing before a Court or Tribunal and except when attending an agreed conference, counselling, or mediation for the purposes of having contact with their children). [7] The aggrieved was staying at a safe house for victims of domestic violence. The appellant had been at the safe house for one week when, on 15 April 2016, he and the aggrieved had an argument over music. The appellant was intoxicated and the aggrieved tried to leave the house. The appellant refused to allow her to leave the house. He told others who came to her assistance that she was his property and that he owned her. Police were called. The appellant told the aggrieved to not tell the police what had occurred. [8] The appellant refused to provide police with his name and address. The appellant was handcuffed. He began violently resisting. He was removed from the house with force. He used a racial profanity towards one of the police officers. [9] The following day the appellant entered into a bail undertaking conditioned that he was to have no contact whatsoever with the aggrieved. At 5.48 pm the appellant sent a text message to the aggrieved. He continued to have a conversation with her via text message through until the following day. [10] On 3 June 2018, the appellant was asked to leave a McDonald’s restaurant after he fell asleep at a table at 4.20 am. He refused to do so. Police were called. Again he refused to leave the restaurant when asked to do so by police. The appellant was 2 (2016) 90 ALJR 679, 686-687 at [43]. 3 (1936) 55 CLR 499 at 505. -- 3 of 9 -- 4 arrested and handcuffed. As police attempted to remove him from the restaurant he resisted physically, swearing and shouting aggressively at police. Circumstances of offences for which the appellant was resentenced [11] On 21 May 2015, a temporary domestic violence order was granted. It contained a condition that the appellant was prohibited from following or remaining or approaching to within 100 metres of the aggrieved. On 2 June 2015, the appellant contravened that order by entering the home of the aggrieved. On 9 June 2015, police attended the home of the aggrieved and located the appellant in the loungeroom in contravention of the order. The appellant acknowledged that he knew that he was not to be within 100 metres of the aggrieved. On 16 June 2015, police attended at the home of the aggrieved. The appellant was asleep in the bedroom, again in contravention of the order. [12] The remaining three contraventions for which the appellant was re-sentenced involved the same domestic violence order imposed on 1 July 2015 as referred to in paragraph [6]. On 23 September 2015, police attended at the home of the aggrieved and located him at that address in contravention of the order. On 17 January 2016, the appellant was invited inside the home of the aggrieved in order to visit their daughter. Upon being asked to leave the appellant indicated he would do so. Sometime later the aggrieved found the appellant still at her home. She told him to leave. He refused. Police were called. The appellant told police that there was no domestic violence order in place and that he was allowed to be at the home of the aggrieved. On 18 January 2016, the appellant entered the house of the aggrieved without her permission, again in contravention of the Domestic Violence Order. [13] On 25 February 2016, the appellant was sentenced in respect of these six offences to probation for a period of nine months. The appellant breached that order by failing to report at all to the Probation and Parole service. [14] On the same date, that is 25 February 2016, the appellant was also sentenced in relation to offences of possessing dangerous drugs, possessing utensils, assaulting or obstructing police, disqualified driving and failing to have proper control of a vehicle. For those offences the appellant was sentenced to two months imprisonment with forty days of pre-sentence custody having been declared from 18 January 2016 to 25 February 2016. The appellant was ordered to be released on parole on 25 February 2016. A warrant was issued for the arrest of the appellant for failing to report on parole. He was held in custody from 10 March 2016 until 24 March 2016. Following his release from custody he again failed to report to the Probation and Parole service when required to do so as he was subject to a probation order. The appellant’s criminal history [15] The appellant’s criminal history in Queensland prior to 2016 includes convictions for contravening a police direction or requirement, failing to appear and contravening a domestic violence order. The contraventions of a domestic violence order were committed in January 2016 and resulted in the appellant being sentenced to a period of probation for six months. [16] In addition, the appellant has a criminal history in New South Wales. It commences in 2011 with driving offences. In 2012, the appellant was convicted of common assault and wilful damage for which he was fined. In 2013, the appellant was -- 4 of 9 -- 5 convicted of common assault, destroying or damaging property and stalking for which he was sentenced to a bond. In 2013, the appellant was first sentenced to a suspended term of imprisonment of three months for an affray. He otherwise was convicted of driving offences and resisting police in 2014. [17] Significantly, sometime after being released from custody in Queensland on 24 March 2016, the appellant moved to New South Wales. On 21 February 2017, the appellant was sentenced in relation to an offence of common assault committed on 9 August 2016. He was also convicted of two counts of contravening an apprehended violence order (domestic) between 1 January 2017 and 18 February 2017. The appellant was sentenced by an appellate court to a head sentence of 9 months imprisonment of which he was required to serve seven months. Those sentences commenced on 14 March 2017. Also on 14 March 2017, the appellant was convicted of resisting an officer, assaulting an officer and contravening an apprehended violence order where the contravention was committed on 13 March 2017. The appellant was sentenced (by an appellate court) to 10 months imprisonment with a non-parole period of four months, which commenced on 14 June 2017. The appellant was released on parole on 13 October 2017 after having served seven months in gaol. The contraventions of the apprehended violence order in New South Wales related to a different woman to the aggrieved referred to in the Queensland orders. Proceedings in the Magistrates Court [18] The learned Magistrate took into account the pleas of guilty. She said that it was not an early plea as the appellant had failed to attend court but nonetheless she indicated that she had reduced the penalty that she would otherwise impose to take into account the pleas of guilty. The appellant was 27 years of age and had lost both his parents in the war in Liberia. The appellant had been educated to year 12 equivalency and had worked in New South Wales as a sheet metal worker from 2011 through to 2014. The appellant had a child who was six years of age living in New South Wales. The appellant moved to Queensland where he entered a relationship with the aggrieved and had two children with her. His daughters were born in 2015 and 2016. [19] The learned Magistrate indicated that she accepted the submissions made on the appellant’s behalf that he had spent a number of periods in custody in relation to criminal offences for which he was sentenced in New South Wales and in Queensland, which included offences of violence. [20] The learned Magistrate considered it of significance that the appellant’s criminal history included convictions for breaching a domestic violence order on 5 and 6 January 2016, for which a probation order had been made. The learned Magistrate noted that the appellant had failed to report at all in relation to the probation order imposed on 25 February 2016. She considered that the appellant’s failure to respond to the opportunity afforded by either of the probation orders meant that a community based order was not appropriate and that a sentence of imprisonment was the only appropriate sentence. [21] In relation to the offences involving the police on 15 April 2016, she took into account that the appellant’s conduct involved racial vilification of one of the officers who had attended to assist the aggrieved who was being held against her will. [22] The learned Magistrate took into account that the temporary protection order was made on 21 May 2015 and that the appellant breached it within a very short time. She -- 5 of 9 -- 6 noted that in relation to the offence which occurred on 18 January 2016, it was the aggrieved who had made known to the appellant, her location. Ground of appeal [23] The appellant’s ground of appeal is that the sentences imposed were excessive when considered against other comparable cases. The appellant asserts that the learned Magistrate erred in failing to take account of a previous term of imprisonment served by the offender in New South Wales as required by section 9(2)(k) of the Penalties and Sentences Act 1992 (Qld) and in accordance with the totality principle.4 Considerations [24] Section 9(2)(k) requires the court to have regard to sentences imposed on and served by the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing. Section 9(2)(k) does not mandate how that should be done. The first of the offences committed in New South Wales was within four months of the offences committed in Queensland on 15 April 2016. The remainder of the offences committed in New South Wales were within nine to eleven months of the offending in Queensland. [25] In R v Beattie; Ex parte Attorney-General,5 McMurdo J (now McMurdo JA) said of the totality principle, “The ambit of the totality principle has been extended in at least two ways. The first, which is illustrated by Mill v The Queen, is where an offender commits a number of offences within a short space of time but in more than one State. Upon being sentenced to a term of imprisonment in one State, the offender cannot be sentenced in the other State until he is released from custody under the first sentence. In such a case, it is necessary for the second sentencing judge to consider in aggregate the sentences and if necessary to moderate the sentence then to be imposed. The principle has also been extended in the sentencing of an offender who is then serving an existing sentence. In such a case, ‘the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable’.” [26] The learned Magistrate queried the appellant’s legal representative as to why the time spent in custody in New South Wales should be taken into account during the course of submissions. She was not referred to section 9(2)(k) of the Penalties and Sentences Act 1992 (Qld) nor the totality principle by either party. A submission was made to her that the significance of the period of time that the appellant had spent in custody in New South Wales was that it acted as a deterrent to the appellant as he had not contravened a domestic violence order or equivalent since 2016. It was submitted that it provided evidence of change and rehabilitation. Quite contrary to that submission, the fact that the appellant had been convicted of similar offences committed in New South Wales not long after his commission of the offences in Queensland, indicated that the appellant was undeterred from offending and had not demonstrated any rehabilitation. 4 Mill v The Queen (1988) 166 CLR 59. 5 (2014) 244 A Crim R 177 at 19. -- 6 of 9 -- 7 [27] The sentencing remarks do not indicate how the time spent in custody in New South Wales was taken into account. That is likely due to the shortcomings in the submissions made to the learned Magistrate. [28] As the Magistrate was not referred to section 9(2)(k) of the Penalties and Sentences Act 1992 (Qld) or the totality principle and given the incorrect submission made as to the significance of the offending in New South Wales, I consider that error has been demonstrated in the exercise of the discretion and that it is necessary for me to sentence afresh. [29] The first of the offences committed by the appellant in New South Wales was four months after the offending in Queensland on 15 April 2016. The remainder of the offences committed in New South Wales were between nine and eleven months after the offending on 15 April 2016. It can’t be said that, in relation to the New South Wales offending, there is no temporal proximity to the Queensland offending. It is not the case, therefore that section 9(2)(k) or the totality principle had no application. [30] The effect of the sentences imposed on the appellant in New South Wales was that he was subject to a term of imprisonment which commenced on 14 March 2017 and ended on 13 April 2018 (13 months). Of that period he served seven months in actual custody. In addition to that seven month period, he also spent 40 days in pre-sentence custody prior to his sentencing on 10 July 2018 making a total period of approximately eight and one-half weeks in custody. [31] Had I been sentencing the appellant for all of the offending in Queensland in April 2016 and the offending in New South Wales, I would have imposed cumulative sentences, in light of the separate and distinct offending involving different women with whom he was in a relationship. Comparable decisions [32] ETB v Commissioner of Police6 – The appellant was resentenced by a District Court judge to a head sentence of six months imprisonment for offences of common assault and two counts of contravening a domestic violence order. The first contravention involved the appellant abusing the aggrieved by the use of profanities. The second contravention and associated common assault was committed three months later when the appellant was on bail. Again the appellant abused the aggrieved. She slapped the appellant and he responded by punching her three times. The appellant had four previous convictions for offences of a like nature; three of those offences related to the same aggrieved. Those offences involved threats with a knife. In the appellant’s favour he had expressed remorse and shame and had been spoken of highly by the Community Justice Group. The learned District Court judge considered the circumstance that the aggrieved had first assaulted the appellant was a mitigating factor. [33] This appellant has been convicted of an offence which carries a higher maximum penalty than the offences of which ETB was convicted. The aggravated offence of contravening a domestic violence order carries a maximum penalty of five years imprisonment as opposed to three years in ETB. Also, this appellant has a much more significant criminal history for breaching domestic violence orders. Further, he was subject to probation at the time of his offending and cannot be said to be remorseful 6 [2018] QDC 26. -- 7 of 9 -- 8 for his conduct. Indeed his continued breaches of domestic violence orders tends to suggest that he is unaware of the seriousness of his offending. Whilst there was no actual violence directed at the aggrieved in this case, the circumstances of the offending were nonetheless serious in that it occurred at a safe house for victims of domestic violence, involved refusing to allow the aggrieved to seek help from others including police and involved violence being directed at the police. On balance, I would consider that a higher sentence than that imposed in ETB v Commissioner of Police is appropriate. [34] Day v Commissioner of Police7 – the appellant was sentenced by a District Court judge to a head sentence of six months imprisonment suspended after serving two months for an operational period of eighteen months for nine offences of breaching a domestic violence order and nine associated offences of breaching the Bail Act 1980 (Qld). A temporary protection order was made which prohibited the appellant from contacting or attempting to contact his wife. Upon being released from the watchhouse, the appellant immediately contacted his wife in breach of both the protection order and the conditions of a bail undertaking. The remaining offences also involved contacting his wife in breach of the orders. The most serious offence involved the appellant abusing the aggrieved by the use of profanities. The appellant had no previous convictions for breaching a domestic violence order. His criminal history was otherwise described as unremarkable. Whilst all the contact with the appellant’s wife was consensual, it was said that this did not excuse his conduct but rather showed a complete disregard for the conditions of both orders. The persistent nature of the offending over a longer period of time and the disregard for the conditions of both orders considered against a maximum penalty of three years imprisonment and taking into account the mitigating facts justified, it was said, an overall sentence of six months imprisonment. [35] Considering this appellant’s commission of an offence carrying a greater maximum penalty and considered against the persistent nature of his offending in breach of a probation order, I consider a head sentence higher than that imposed in Day v Commissioner of Police is warranted. [36] I was referred additionally to a decision of W v Queensland Police Service.8 I do not consider that this decision is comparable as it involves sentences imposed for offences of assault occasioning bodily harm and associated offences of breaching a domestic violence order. W did not have the persistent level of offending present in this case involving breaching domestic violence orders. He had demonstrated remorse and made efforts at rehabilitation. A sentence of nine months imprisonment was imposed for the assault with a concurrent term of three months for the breach of the domestic violence order. He was ordered to be released on parole after serving three months of that sentence. [37] If I was sentencing the appellant for only those offences which were committed on the 15 and 16 April 2016 and re-sentencing for the offences, the subject of the probation order, I would consider the appropriate sentence taking into account all of that offending to be one of nine months imprisonment. Had I been sentencing the appellant in relation to the offences committed in New South Wales I would have imposed a cumulative sentence consistent with that imposed in New South Wales. I 7 [2018] QDC 3. 8 [2013] QDC 87. -- 8 of 9 -- 9 consider cumulative sentences to be appropriate given that the offences represent separate episodes of offending in relation to different aggrieved women. The effective sentence that I would have imposed if I were dealing with all matters at the one time is a sentence of 19 months imprisonment which would ordinarily require the appellant to serve one third of it to reflect the pleas of guilty. [38] It is necessary to moderate the sentence to be imposed to particularly take into account the fact that the appellant served seven months of the sentence in New South Wales and a period of forty days in pre-sentence custody in Queensland, which amounts to a period of almost eight and one-half months imprisonment. [39] In order to take account of totality considerations I reduce that nine month period to one of six months imprisonment. [40] The appellant served three months of the term ordered by the learned Magistrate before he was released on parole. Accordingly, I will order that he be released on parole after serving three months of that sentence. I will further reflect the totality principle and section 9(2)(k) of the Penalties and Sentences Act 1992 (Qld), by ordering all other sentences be served concurrently. That also properly reflects the earlier forty days in pre-sentence custody which the appellant served prior to being released on probation. [41] Accordingly my orders are as follows: 1. Appeal is allowed. 2. The sentences imposed are set aside. 3. I re-sentence the appellant as follows: (a) Contravene Domestic Violence Order (aggravated) on 15 April 2016 – six months imprisonment (b) Contravene Direction or Requirement of Police on 15 April 2016 – convicted and not further punished (c) Assault or obstruct police on 15 April 2016 – 21 days imprisonment (d) Breach of bail condition– Domestic Violence Offence on 16 April 2016 - one month imprisonment (e) Trespass on 3 June 2018 – Convicted and not further punished (f) Assault or Obstruct Police on 3 June 2018 – seven days imprisonment (g) Resentenced for Contravening a Domestic Violence Order x 6: on each charge – two months imprisonment. 4. All sentences are to be served concurrently. 5. I order that the appellant be released on parole after he has served three months of that sentence. 6. I order that 40 days spent in pre-sentence custody be declared as time served under these sentences (from 15 April 2016 to 16 April 2016 and from 3 June 2018 – 9 July 2018). -- 9 of 9 --