DAY v Commissioner of Police [2018] QDC 3

DISTRICT COURT OF QUEENSLAND CITATION: DAY v Commissioner of Police [2018] QDC 3 PARTIES: DAY (appellant) v THE COMMISSIONER OF POLICE (respondent) FILE NO/S: D97/17 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Maroochydore DELIVERED ON: 29 January 2018 DELIVERED AT: Maroochydore HEARING DATE: 8 December 2017 JUDGE: Robertson DCJ ORDER: Appeal allowed. Orders made below set aside. The appellant is sentenced to 6 months imprisonment on Charge 7, and on each of the remaining 8 charges of breach of a domestic violence protection order, 2 months imprisonment. The term of 6 months is suspended after serving 2 months for an operational period of 18 months and I declare that the appellant has served 42 days in pre-sentence custody, as ordered by the Magistrate. In relation to all 9 Bail Act offences, I order that the appellant be convicted and not further punished. CATCHWORDS: APPEAL AGAINST SENTENCE: Where appellant pleaded guilty to 9 breaches of conditions of a protection order and 9 breaches of Bail undertaking based on same facts, where his Honour had access to a statement of complainant in support of a more serious offence to which he had not pleaded; whether sentencing discretion miscarried, where appellant sentenced to 6 months suspended after 3, where his Honour did not give the appellant notice of his intention to suspend at half way point; whether s16 Criminal Code applied. Legislation Acts Interpretation Act 1954 32C(a) -- 1 of 19 -- 2 Bail Act 1980 s 29(1) Criminal Code (Qld) s 16 Domestic and Family Violence Protection Act 2012 s 177(2A) Justices Act 1886 s 222 Penalties and Sentences Act 1992 ss 12(4), 13 Cases Smith v QPS [2015] QDC 152 Fox v Percy (2003) 214 CLR 118 Teelow Commissioner of Police [2009] 2 Qd. R 489 House v R (1936) 55 CLR 499 Pearce v R (1998) 194 CLR 610; 103 ACrimR 372 R v Tricklebank (1994) 1 Qd.R. 330 R v Sheppard (2001) 1 Qd.R. 504 R v Barlow [1997] 108 CLR 1 R v Crofts [1999] 1 Qd.R. 36 R v DeSimone (1981) 147 CLR 383 R v Cooksley [1982]1 Qd.R. 405 at 407 R v D [1996] 1 Qd.R. 363 R v Nagy [2004] 1 Qd.R. 63 SOLICITORS: Legal Aid Queensland for the appellant (Ms Creedy) Office of the Director of Public Prosecutions for the respondent (Ms Howard) [1] On the 8 December 2017 I heard this appeal in which it was conceded by the respondent that the Magistrate had made legal errors which required the appeal to be allowed. I agreed with those concessions and allowed the appeal and by consent the matter was adjourned until today so that I could in effect resentence the appellant for all the offences dealt with by the Magistrate and for the more serious indictable offence to which he has pleaded guilty this morning. Introduction [2] On 9 June 2017 the appellant pleaded guilty by video-link from the Maryborough Correctional Centre to 18 summary offences before the Maroochydore Magistrates Court. There were nine beaches of s 177(2A) of the Domestic and Family Violence Protection Act 2012, and nine breaches of s 29(1) of the Bail Act 1980. A lengthy sentence hearing was conducted before his Honour Magistrate Stjernquist on 21 June 2017. The appellant appeared again by video-link and was represented by Miss Hehir a solicitor with Smith Criminal Law. The Magistrate imposed sentences of six months for each of the domestic offences, and five months for the Bail Act offences to be served concurrently, and suspended the overall sentence after the appellant had served -- 2 of 19 -- 3 three months with an operational period of 18 months, and His Honour declared 42 days in pre-sentence custody. [3] A notice of appeal was filed on 17 July 2017 in which four grounds were pleaded: 1. The sentencing Magistrate erred when imposing the sentence and the sentence is manifestly excessive. 2. The Magistrate did not give appropriate weight to the timely plea of guilty and the lack of prior relevant criminal history when ordering the suspension date at one half of the sentence. 3. The Magistrate did not [sic] adequate reasons for setting a suspension date at one half of the total sentence. 4. The Magistrate gave weight and consideration to charges that the defendant has not been convicted [sic] when determining the sentence [4] By the time the appeal was heard on 8 December 2017, the appellant had served the sentences imposed by the Magistrate, but was on remand for an indictable offence being an offence of choking or strangling in a domestic violence setting which offence took place on 21 February 2017 at Bli Bli prior to the period of offending covered by the offences before the Magistrate. The appellant did not apply for bail on 8 December 2017 and has been remanded in custody since that time. The proceedings below [5] His Honour had an agreed schedule of facts in relation to the summary offences. He also had a statement from the complainant, the appellant’s ex-wife, in relation to the indictable offence from which he read extensively in relation to an application for bail made by Miss Hehir on his behalf after the sentences were imposed for the summary matters. This has led to a plea that in imposing sentence His Honour took into account an irrelevant matter (ground 4). [6] From the schedule of facts (Exhibit 1) the facts upon which the appellant was to be sentenced can be summarised in the following manner. Domestic Violence Protection Order Offences [7] The appellant was the respondent to a temporary protection order (TPO) made on 22 February 2017 in the Caloundra Magistrates Court which has a standard condition that he was prohibited from contacting or attempting to contact his ex-wife. This order was in force until 2 April 2017. I infer that the TPO was based essentially on the facts alleged in relation to the Indictable offence of choking in a domestic violence setting committed the day before. Generally it was alleged that he breached that condition by contacting her on multiple occasions during that period. The schedule specifies the first contact was on the day he was released from the watch house and it was accepted that he contacted his ex-wife on numerous occasions between that day and 13 March 2017 by picking her up from her residence in the Riverside Caravan Park in her own vehicle, and having her drive him into Nambour. On at least one occasion they spent the day together and had consensual sexual intercourse. [8] Charge 1 occurred on 28 February 2017 when the appellant contacted his ex-wife on her mobile phone and asked if he could meet her at Nambour. This was the day he was released from police custody at the Maroochydore Watch House. She agreed and -- 3 of 19 -- 4 later she and the defendant travelled to the rock pools where they conversed with each other for a period before she dropped him back in town and left for home. [9] Charge 2 related to one of numerous unspecified occasions between the 27.02.2017 and 13.03.2017 when the appellant got a lift to Nambour where his ex-wife collected him at around about 3:30 in the afternoon and took him back to her address at the caravan park. They spent the entire day together and had sexual intercourse during this time. [10] Charge 3 was on occasion between 27 February 2017 and 2 April 2017 when the appellant stayed with his ex-wife at her address at Cabin 41, Riverside Caravan Park at Bli Bli. He would hide from the park management as they were aware of the protection order and had made it clear that he was not welcome there. It is clear from the schedule that the appellant’s ex-wife was attempting to hide his presence from park management who were constantly suspicious. [11] Charge 4 relates to an occasion between 20 April 2017 and 9 May 2017 which was a time after 3 April 2017 when a full protection order containing the same conditions as the TPO was issued in the Caloundra Magistrates Court when he was present. During that period he visited his ex-wife at her then home address situated at Fern Street, Gympie and on numerous occasions stayed with her. She recalls him performing community service at this time and undertaking a counselling service and she made lunches for him and drove him to his numerous commitments around town. [12] Charge 5 is an offence which occurred on 3 May 2017. This involved a breach of a condition of the protection order to the effect that the appellant be of good behaviour towards his ex-wife and not commit domestic violence. On this occasion he had been collected the previous day by his ex-wife at the Uniting Church at Gympie and she took him back to her address at Fern Street Gympie where they watched DVDs, had dinner and spent the night together. On the morning of the offence she took him to the Gympie Police Station to sign in as part of his bail undertaking and then took him to his community service. She told him she intended to leave him for good at which time he threatened to kill himself. It was accepted that he did that to manipulate her into maintaining the relationship with him. [13] Charge 6 related to an offence committed on 5 May 2017. On this occasion his ex- wife met him at approximately 1 o’clock after they had arranged to meet at Centrelink in Gympie, Queensland. She gave him ten dollars at the time and he told her that he was travelling down to the Sunshine Coast to be with his mother. [14] Charge 7 related to an offence committed on 8 May 2017. On that day she had attended at the Gympie Police Station and made a complaint in relation to the appellant committing offences during the period from 27 February 2017 until that date. On that occasion police advised her that ongoing contact could not continue “as it was facilitating the defendant contravening his current protection order.” On advice from police she texted his mother in relation to him collecting his possessions. After she had sent that text he called her on her mobile phone and said “police are coming to both our houses. You’re a dog”. He then telephoned her again approximately a minute later and said to her “you’re an absolute dog. My mum has called the police and they’ll be coming around. You’re a paid whore. You like sucking dick. You’re on parole and you’re going back to jail.” -- 4 of 19 -- 5 [15] Charge 8 was also an offence committed on the 8 May 2017. This occurred very soon after the offence in charge 7 when the appellant texted his ex-wife’s daughter who was also a named person in the protection order. The terms of the texts were set out in the schedule of facts. It was not a threatening text but in effect said he was running because he didn’t want to get locked up. [16] Charge 9 related to the appellant sending a total of 154 text messages to his ex-wife between 27 April 2017 and 9 May 2017 which either breached a condition of the TPO or the protection order. It was not alleged that these text messages were abusive or threatening “as this was clearly when the aggrieved was happy to maintain some sort of relationship with the defendant. The defendant and aggrieved have clearly maintained a sexual relationship judging by most of the contact observed and the numerous sexually explicit videos and images shared.” Bail Act offences [17] On the 27 February 2017 prior to his release from the watch house the appellant entered into a bail undertaking (I infer) in relation to the indictable offence which contained a condition that he not have contact direct or indirect with his ex-wife. [18] Exhibit 1 specified the factual basis on which the appellant was to be sentenced for the bail act offences and was in the following terms. Charge 10. Facts for this offence are the same as charge 1. Charge 11. Facts for this offence are the same as charge 2. Charge 12. Facts for this offence the same as charge 3. Charge 13. Facts for this offence are the same as charge 4. Charge 14. Facts for this offence are the same as charge 5. Charge 15. Facts for this offence are the same as charge 6. Charge 16. Facts for this offence are the same as charge 7. Charge 17. Facts for this offence are the same as charge 8. Charge 18. Facts for this offence are the same as charge 9. [19] The proceedings below were brief occupying nine pages of transcript. The prosecutor acknowledged the early plea. The appellant’s criminal history was admitted. He was born on 6 May 1983 so was between 33 and 34 at the time of the offending. He had no previous convictions for breaching a domestic violence protection order. He had one breach of the Bail Act on the 11 August 2009 where he failed to appear in accordance with an undertaking and was fined $150 with a conviction recorded. He had been convicted in 2010 and 2015 of minor drug offences which attracted a fine and/or a good behaviour bond. On 26 September 2016 he was convicted of trespass, on 17 September 2016 for which he was fined $300, and on 24 April 2017 for an offence convicted on 28 March 2017 at (i.e. during the currency of these charges) he was committed of committing public nuisance and assaulting or obstructing police in a public place while adversely affected by intoxicating substance. His traffic history -- 5 of 19 -- 6 was also tendered and it is not suggested that it had any relevance to the sentencing outcome. [20] The prosecutor submitted that the ongoing nature of the offending, which commenced on the day he was released from the watch house, was an aggravating feature. He characterised the appellant’s criminal history as “limited” and that he had not been convicted previously of breaches of the Domestic Violence and Family Protection Act. No details of the conviction on 12 October 2009 for breach of the Bail Act was provided to the court nor was His Honour given nor did he request any details of the entry in the Nambour Magistrates Court on 24 April 2017. [21] The prosecutor fairly acknowledged that there was no alleged physical violence. He submitted that the appellant’s actions showed “complete disregard” for both the protection orders and the conditions of the bail undertaking. He placed only one comparable decision for his Honour a decision of Judge Morzone QC in Smith v QPS [2015] QDC 152, however his Honour refers to a number of decisions in his judgment all of which (except TND v QPS [2014] QDC 154 which contained a circumstance of aggravation) were at a time when the domestic violence offence simpliciter carried a maximum of two years whereas at the time these offences were committed the maximum was three years’ imprisonment. [22] The prosecutor submitted that personal deterrence was “significantly important due to the nature and prevalence” of the offending. [23] He submitted that the “range” was nine to 12 months. He acknowledged that it was within the bounds of the proper exercise of the sentencing discretion to make an immediate parole release date given that the appellant served 42 days, but he submitted that if he was to serve more time, he could be released after serving one third of the head sentence. He submitted by reference to Smith v QPS [2015] that sentences could be cumulative. [24] Miss Hehir tendered a reference from his client’s mother who was in court. She pointed out to His Honour that there was no violence or aggression alleged and that the complainant was apparently happy (until going to police on 8 May 2017) to have contact including extensive intimate contact with the appellant. She referred to the appellant’s work history and that at the present time he was unemployed. She made reference to his criminal history and to Smith v QPS [2015] pointing out that the offence which attracted the heaviest penalty in that case was the one involving significant violence whereas for the remaining five domestic violence offences in that case the sentences ranged between one to three months. She submitted that the plea was timely. She submitted that this was not a proper case for cumulative sentences. This submission provoked a strong reaction from His Honour that has some bearing on one of the appeal grounds. His Honour observed: “BENCH: Well, there’s some utility in the argument that they be cumulative. This is a contempt of the – putrid qualities. The domestic violence order was made on 22 February. That’s as a result of the strangulation offence. MS HEHIR: Yes Your Honour. -- 6 of 19 -- 7 BENCH: He gets bail on that [indistinct] like, why and how? It’s beyond me. But anyway, someone saw fit to find that he’d be an acceptable risk of not re-offending and commit – he immediately embarked on daily breaches of both the bail conditions and domestic violence order. So little regard did he have for the tenor of the orders, for the importance of the orders, for the effect of the orders and the purpose of the order. He’s a controller, a possessive controller. So there is some utility here in making those – what is – between the offences that are the breaching the bail conditions – it may well be the same – it may well be the same facts for each breach. But he started breaching it the day he’s released. He was never going to comply because he’s a controller. MS HEHIR: Your Honour, the highest I can take it, that is on my instructions, the contact, initially, was reciprocated. I do understand that it does breach the order. BENCH: I’ll be talking to the prosecutor about talking – getting someone to go and talk to her about that but it’s quite clear in the material that she’s attempted to break it without success, including calling the mother. MS HEHIR: Yes Your Honour. BENCH: And that the real Mr DAY appeared as the result of that, through the text messages. What do I mean by that? As a result of the aggrieved contacting the mother after talking to police first about whether it’s alright to do it and they said yes so she’s even checked that box off covering herself. Thank you and the police are happy to [“indistinct”]. The defendant called the aggrieved on her mobile phone from his mobile phone and said: Police are coming to both our houses. You’re a dog. The defendant then hung up the aggrieved. That’s – at 11.07 now, the defendants again called the aggrieved and said: You’re an absolute dog. My Mum has called police and they’re coming around. You’re a -- 7 of 19 -- 8 paid whore. You like sucking dick. You’re on parole and you’re going back to fucking jail. And then he hung up. So your submissions is whilst a period of imprisonment might be the appropriate sentence here today, taking into account the facts, the comparative, it’s between 1 and 3 and that it should be concurrent. MS HEHIR: Yes Your Honour. BENCH: Do you want to talk to me about the other matter at the moment? MS HEHIR: Your Honour, my instructions in relation to the other matter, do you mean the group of 3 charges? My instructions are that Mr DAY intends to contest that charge. BENCH: Does he really? MS HEHIR: He does, Your Honour, yes, yes. BENCH: That’s a further commission of domestic violence. In my [indistinct] I also took the available time that I had today to have a look at the statement made by XY in respect of that which is very detailed and it’s contemporary at the time and, in my view, that’s a very strong case because most of that statement is about what happened for some of the matters here but a part of it deals with that choking strangulation part. Now, that’s not a lie in isolation. You can’t just drop something like that into an otherwise fairly detailed document without there being some significant substance to it. MS HEHIR: In my instructions, there were some issues in the relationship at the time that that particular complaint and statement was made to the police. My instructions are that he intends to contest that charge and --- BENCH: That’s OK. He can take that course if he wants but I’m talking about what do you want to do with that matter? His Honour’s decision [25] It is instructive to set His Honour’s reasons in full: “Like I said, you are a controller and you are possessive and you are recalcitrant. You have got absolutely no regard for orders made by -- 8 of 19 -- 9 courts, no regard for the law, no regard for the protection this order afforded the aggrieved, and no regard for the bail conditions that you had entered into and undertook to abide by in protection of aggrieved, in an attempt to prevent you from committing further offences. You, when you signed that document, had no intention of abiding by the conditions. That is demonstrated in your immediate breaching of both that document and the domestic violence order that was made on 22 February 2017. And then, almost on a daily basis, you were breaching that without any compunction whatsoever, right through to into and including the dates in May. So you are eventually talked to by police about the incessant offending, on 11 May, remanded in custody in the Gympie Court and sent here. Another example of something coming from another court to Maroochydore for a plea of guilty on all those matters. That is indicated by you to the court through either the video- link or someone acting for you in the Gympie Court on 5 June. So I take into account your pleas of guilty. Otherwise, in respect of your history, there is a public nuisance and obstruct/assault police charge earlier this year, and before that, quite unremarkable. That is not going to be the case when all of these matters drop onto your history, but I am taking into account your history as at the date of the sentence here today for the 18 offences. There are 18 offences. There are 9 different dates. That is brought about, as I said, by you breaching both the domestic violence order and the bail conditions immediately you are released. Now, there is a document here from your mother, urging me to accept that you were – are not a person that would resort to personal violence, and you, through your solicitor, you intend to contest the issue of the strangulation offence. I will talk about that in a minute, after the committal for the – for that matter that is going to occur after this. But the sentence today is going to be a period of imprisonment. And that is going – and that is appropriate in a lot of respects, namely that you need to be deterred from re-offending in the ways that you have regularly since granted bail for the serious choking/strangulation offence. So personal deterrence is a very big factor, and the – and deter, generally, others in the community to commit these sorts of offences. You know there has been some submission that – from Ms Hehir that the contact was mutual. Well, it could have been, out of some blind allegiance, but basically, this aggrieved was ferrying you around the place and hiding you. It is not the case that she was coming to where you were; you were going to where she was. 154 text messages, and possibly more, to her phone. She has indicated to you on at least two times, from my reading of the facts, that the matter is over and does not want anything more to do with you. There are significant issues to do with money that is talked about through the offending period. -- 9 of 19 -- 10 She, at some stage, is resilient enough to call the police and say, is it alright to contact your mother? Which she does, and says, ‘He’s been playing both of us. He’s been staying here. He’s not been staying at Johnno’s place. I want you to come and get him. I want you to come and get his property.” Well, that brought out the hatred, if you like, in you. I have read that into the record today. And whilst there is no allegation in these offences of any physical violence, that is certainly not the case for the other matters for which you are going to be committed here today through a hand-up committal. And then there is some contact with the aggrieved daughter that is fairly deplorable at the end of all that. So, Mr DAY the appropriate sentence, in my view taking into account all of those, including what is a very serious demonstration of a contempt for the Court, in a lot of ways, through the immediate disobedience of the many bail conditions that were imposed upon you, and, of course, the domestic violence order that was in place to protect the aggrieved. On each of those the offences – what is the maximum for that, now, for that offence, at that time? It was three years isn’t it? MR LYDFORD: Three, yes. BENCH: Well, on aggravated that is the question mark? MR LYDFORD: Five aggravated. BENCH: It is five years? MR LYDFORD: Yes. BENCH: So that is a five year offence. MS HEHIR: Your Honour he does not have the circumstance of aggravation in relation to these. He has no prior convictions on his record. BENCH: Well they are charged as an aggravated offence. MR LYDFORD: Yes, I think the first offence technically, would be the simpliciter, but everything else, once he’s convicted for that, would be the aggravated feature, being the fact that he has a previous, then BENCH: Yes -- 10 of 19 -- 11 MR LYDFORD: So be the argument, so three would be the first, and the rest of the eight would be technically the aggravated. BENCH: Yes. MS HEHIR: My understanding was, if he was sentenced at the one time for all of the offences, it could not be separated into one and then the remainder. He would need to be sentenced on two separate occasions for the allegations. BENCH: 177? MS LYDFORD: Yes. BENCH: Previous convicted. So it would be two like the breach of bail conditions wouldn’t it? MR LYDFORD: Three – it would be three now for the simpliciter, two for breach of bail certainly. Five it was the aggravated offence. There were some discussions we had in the office in relation to that argument, the first being the simpliciter then everything else being aggravated by the fact he is .. BENCH: That is how I would have. This [indistinct] the breaches. In any event it would be at least three. MR LYDFORD: Yes, three would be the starting point. Yes. BENCH: And I have not got my ipad in front of me. It is hard to know these [indistinct] and what is the breach of bail conditions, too? OK. So in respect of each of the breach of the bail – breach of the domestic violence orders, Mr DAY, you are convicted and sentenced to six months imprisonment. And for all nine – each of the nine breaches of the bail conditions, convicted and sentenced to five months imprisonment. They are all to be served concurrently. It is a total period of six months imprisonment. Now, because of the immediate and calculated, if you like, premeditated contempt, you are ordered to – going to effectively serve half of that with a declaration of the pre- sentence custody and so it is suspended after -- 11 of 19 -- 12 serving three months, for an operational period of 18 months. I declare the pre- sentence custody, 42 days, between 10.5 and 20.6.17 to be time already served under the sentence. So you have got some 18 days left on that sentence, by my calculation. There is no need to make any order under s 42. The order is complete. It is brand new, still. It has got a lot of time left in it, and, in fact, through to 2019.” The relevant law [26] An appeal against sentence pursuant to s 222 of the Justices Act 1886 requires this Court to conduct a re-hearing, in the technical sense of a review of the record of proceedings below, rather than a completely fresh hearing.1 Neither party has placed new evidence before the Court. As this appeal is against sentence only, where the appellant pleaded guilty, the sole ground is that “the punishment was excessive or inadequate”.2 The well-known dictum of the High Court in House v R3 applies, and a mere difference of opinion is not sufficient justification for review; it must be shown that the judicial discretion miscarried. It is convenient therefore to consider all the pleaded grounds under the rubric of the “excessive” ground. Discussion [27] As is noted above, the Magistrate imposed six month terms for each of the domestic violence offences and five months on each of the Bail Act offences. The agreed Schedule of Facts (Exhibit 1) constituted the factual basis for the imposition of sentence. All nine Bail Act offences are said to rely on the same facts for the known breaches of the domestic violence protection order in Counts 1 to 9. However, as the appellant points out Counts 1 -3, 6 – 7 and 9 were all breaches of the condition of either the TPO or the protection order that he not have contact with his ex-wife (the same condition in its term said to be breached in all nine Bail Act offences). Count 4 involved the breach of the condition in the TPO that prohibited the appellant from entering the premises where his ex-wife lived; Count 5 is said to be a breach of condition 2 of the protection order that the appellant “be of good behaviour towards” his ex-wife and Count 8 involved him contacting the daughter. The submission now made is that in relation to those offences under the Bail Act which involved “the same act or omission”,4 His Honour should have convicted and not further punished. That submission was not made below. [28] In Pearce v R5 the Court noted: [40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong 1 Fox v Percy (2003) 214 CLR 118 at [22]; Teelow v Commissioner of Police [2009] 2 Qd. R 489 at [3]. 2 Section 222(2)(C) Justices Act 1886. 3 (1936) 55 CLR 499 at 504 and 505 4 Section 16 Criminal Code (Qld). 5 (1998) 194 CLR 610; 103 ACrimR 372. -- 12 of 19 -- 13 to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts. … [43] The trial judge sentenced the appellant to identical terms of imprisonment on Counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act. [44] Does that matter if, as was the case here, the order was made that the sentences be served concurrently? [45] To an offender, the only relevant question may be “How long”, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.” [29] It is not contended that either the Domestic Violence Family Protection Act or the Bail Act provide any “contrary legislative intention”. In my opinion the submission made by the appellant can be dealt with by reference to a number of decisions of the Queensland Court of Appeal dealing with s 16: In R v Trickelbank,6 the argument was that because the applicant had been convicted previously on his plea of what was then a breach of the Traffic Act, namely drink-driving, the District Court Judge could not in sentencing for dangerous driving causing death whilst intoxicated take into account the intoxication as a circumstance of aggravation of the indictable offence. All three members of the court approached the application of s 16 of the Criminal Code in slightly different terms, but all concurred that it had no application in that case. The question here is whether (in relation to the offences under the Bail Act where the same facts were relied upon to support offences under the Domestic Violence Family Protection Act) “the same act or omission” was involved in each. It is not necessary to discuss in any detail the different approaches in Trickelbank. Pearce dealt with the common law position but it cannot be doubted that the principle referred to above “is 6 (1994) 1 Qd.R. 330 (decided before Pearce). -- 13 of 19 -- 14 at least included in s 167; and is “the principle underlying (s 16) in the Code”8 In Trickelbank, Demack J approached the matter on the basis of a construction of relevant definitions in the Code itself. In the circumstances here, it is only necessary to have regard to the definition of “offence” in s 2: “2. An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.”9 [30] Section 32C(a) of the Acts Interpretation Act 1954 extends the meaning of “act or omission” to the plural i.e. “a series of acts or omissions”. When that is taken into account, and bearing in mind the clear application of the principle in Pearce in binding authority dealing directly with s 16, it does not matter (in the circumstances here) that in some of the DVO breaches (Counts 4 and 8) the appellant breached a condition other than the “no contact” provision which is common to all Bail Act where the same facts offences, as the nine domestic violence offences were based on the same “series of acts or omissions” as the nine Bail Act offences (as Exhibit 1 tendered by the prosecution acknowledges); therefore, it was an error to “punish” the appellant “twice” as occurred here. His Honour cannot be criticised because this point was not taken before him, however it is clear error of principle that will require this Court to re-sentence the appellant for all the offences. [31] The next issue concerns the contention that when sentencing the appellant for the Bail Act offences, His Honour erred in imposing one term of imprisonment for all the Bail Act offences.10 [32] In my opinion, His Honour in the words set out above did not sentence the appellant to one period of imprisonment for all nine offences. He clearly imposed a separate term of five months on each which is confirmed by the endorsement on each of the Bench Charge Sheets for Charges 10 – 18. [33] The appellant submits that His Honour has taken into account an irrelevant matter in the exercise of the sentencing discretion. This submission focusses on the sentencing remarks by reference to the agreed facts in relation to Charge 7: “Well, that brought out the hatred, if you like, in you. I’ve read that into the record already. And whilst there is no allegation in these offences of any physical violence, that is certainly not the case for the other matters for which you are going to be committed here today, …” [34] As I have noted, His Honour had the statement of the complainant in relation to the indictable offence before him i.e. the choking or strangulation offences which is to be heard in this Court on 29 January 2018. During the prosecutor’s submission11 His Honour said: 7 Per Pincus JA in R v Sheppard (2001) 1 Qd.R. 504 at 508 [14]. 8 Ibid per Williams J (as His Honour then was) at 512 [33]. 9 R v Barlow [1997] 108 CLR 1 at 7 per Brennan CJ, Dawson and Toohey JJ. 10 R v Crofts [1999] 1 Qd.R. 36. 11 T 1-7 ll 20-23. -- 14 of 19 -- 15 “Well, there’s some utility in the argument that they be cumulative. This is a contempt of the – putrid qualities [sic]. The domestic violence order was made on 22 February. That’s as a result of the strangulation offence”. [35] In my opinion, from his remarks in his sentencing reasons set out above, His Honour has taken “into account circumstances of aggravation which would have warranted a conviction for a more serious offence”12; and/or has taken into account in punishing the appellant an offence for which he had not been convicted.13 [36] The appellant also argues that in setting the suspension at one half of the overall sentence of six months, His Honour did not give appropriate weight to the plea of guilty and the nature of the appellant’s criminal history. As noted above, the only reasons His Honour gave for not suspending the head sentence at the one third mark was “because of the immediate and calculated, if you like, premeditated contempt, you are ordered to – going to serve half of that.” If his intention was not to suspend the sentence at the usual one third mark His Honour at the very least should have given Ms Hehir the opportunity to make arguments to the contrary. Of course, as the sentencing remarks set out above record, His Honour had taken into account what he described as “a very serious demonstration of contempt for the court…through the immediate disobedience of (both orders)”; in imposing the sentences he did. Pursuant to s 13 of the Penalties and Sentences Act 1992, His Honour was obliged to take the pleas of guilty into account (which he expressly did), but he had a discretion to reduce the sentence in light of the plea of guilty. In my opinion, His Honour did not comply with s 12(4) of the Penalties and Sentences Act 1992 in that he has not exposed reasons for not “reducing” the sentence he imposed. For these reasons the appeal is allowed and the sentencing discretion must be exercised afresh. The appropriate response [37] The appellant was 34 at the time he was sentenced, his date of birth being 6 May 1983 at Gympie. His criminal history was described by His Honour as “unremarkable” and I agree with that. He was convicted on 12 October 2009 of a failure to appear on 11 August 2009 and fined but no details of that offence (the first in his history when he would have been 26) was given to the court below. In 2010 and 2015 he was convicted of a number of minor drug offences and fined and placed on a good behaviour order. In 2016 he was convicted of trespass on 7 September 2016 and fined $300. On 24 April 2017, he was convicted of public nuisance and assault/obstruct police whilst intoxicated on 28 March 2017 (during the currency of this offending) and ordered to perform 40 hours of community service. No details of any of that offending were placed before the court below. Significantly, he had no prior convictions for breach of domestic violence protection orders and no victim impact statement from his ex-wife was placed before His Honour. As Ms Hehir submitted below, on the basis of the agreed schedule of facts, all the contact was consensual until the complainant approached police on 8 May 2017. This does not excuse the appellant’s conduct, which did show a complete disregard for conditions of both orders, but in the absence of a victim impact statement, and in the light of the agreed 12 Per Gibbs CJ in R v DeSimone (1981) 147 CLR 383 at 389. 13 Per McPherson J (as His Honour then was), in R v Cooksley [1982]1 Qd.R. 405 at 407; see also R v D [1996] 1 Qd.R. 363. -- 15 of 19 -- 16 schedule of facts, his conduct (except in relation to Charge 7 on 8 May 2017) did not involve intimidation and it has to be seen as less serious than that of an offender who uses violence and intimidation in relation to a former partner in a domestic relationship. [38] Smith v QPS [2015] QDC 152 was a relevant and helpful comparable. That appellant was older. He was 41 and had a “lengthy, significant and concerning (criminal history)” which included terms of imprisonment, but he had no prior convictions for violence or contraventions of domestic violence protection orders. There were 11 offences including six contraventions of the domestic violence protection order from 22 October 2014 to 23 November 2014, and a number of breaches of the Bail Act (two). At the relevant time, the maximum penalty for the domestic violence offences was two years and as has been noted was three years when His Honour dealt with this appellant. The highest penalty imposed for a breach of domestic violence order on 22 October 2014 of 12 months was imposed by a Magistrate. His Honour Judge Morzone QC described the circumstances of that offending at [17]: “As particularised above, Charge 3, which occurred on 22 October 2014 and was the most serious of the contravention offences, carried the head sentence of 12 months imprisonment. The salient facts were that on 22 October 2014 at approximately 7.00 pm, the appellant and the aggrieved were at their home. Both became involved in a verbal argument in front of the home. At one point the victim entered her car in an attempt to leave, resulting in their argument escalating to physical violence. The appellant punched the aggrieved through the window and then grabbed her by her throat. At that time a child (name in the order) was in the rear seat of the car. A witness approached the car upon hearing and seeing the argument in an attempt to intervene and stop the altercation. The appellant then threatened the witness, by turning and walking towards her. The aggrieved then drove away from the address.” [39] His Honour then referred to a number of comparable decisions. [18] The appellant relied on the decision of R v James [2012] QCA 256 as supporting a lesser head sentence for Charge 3. In that case the appellant waited for his de facto partner outside a toilet door at a hospital where the aggrieved was receiving treatment necessitated by an earlier assault by the appellant. The appellant punched her in the face causing pain, discomfort and swelling. The appellant had six prior breaches of domestic violence as well as convictions for offences of violence. A head sentence of 9 months imprisonment was upheld by the Court of Appeal. The maximum penalty applicable at the time was 12 months imprisonment, which was increased to 2 years and (3 years if previous convictions) on 17 February 2012. [19] In TND v Queensland Police Service [2014] QDC 154 a 20 year old appellant became agitated and accused the aggrieved of ‘getting smart’ with him. He punched her to the left side of her face, causing a tooth to cut the inside of her cheek. The aggrieved threw a work boot at the appellant and left the room. During the arrest the appellant continued to threaten -- 16 of 19 -- 17 violence to the police, the aggrieved and a 12 year-old boy. As a consequence of appellant’s previous like offending, he was dealt with on the basis that the higher maximum penalty of 3 years imprisonment applied. The sentence of 6 months imprisonment with immediate release on parole was upheld. [20] In PMB v Kelly [2014] QDC 301 the appellant was asked by the aggrieved to fix a washing machine. The appellant opened and slammed shut the metal lid until it snapped off the machine. He then started banging the lid against the machine. He picked up an unopened can of Pepsi, threw it at the kitchen wall, causing it to spray Pepsi over the kitchen. He then grabbed a steak knife, held it in a threatening manner and said to the aggrieved, “Are you scared now?” He then stabbed a loaf of bread and threw the knife across the kitchen. He then grabbed the aggrieved and threw her onto the lounge. He attempted to take her phone from her, but she refused. He placed his hands around her neck and started choking her. She couldn’t breathe and bit the appellant on the forearm. The appellant then threw the aggrieved onto the lounge room floor and, with a closed fist, punched her on the top of her head approximately 4 times. He then picked her up off the floor and slammed her into the tiled floor twice, causing her right temple to bang on the floor. He then placed his knee in her back and put her in a headlock. The aggrieved struggled to breath and again bit him on the fingers. She managed then to run out of the home and call police. An ambulance attended and she was transported to the Gold Coast University Hospital where she was treated. She suffered a swollen and bruised right eye, a bleeding upper lip and scratches on her arms. The appellant had 2 previous contravention convictions, which enlivened the higher maximum penalty of 3 years. The appeal judge found that the 12 months imprisonment with an “effective non-parole period [of] … about three months” was not manifestly excessive. [21] In Singh v Queensland Police Service [2013] QDC 037 the appeal was against concurrent periods of 9 months imprisonment and 2 years probation for two charges of contravening a domestic violence order and one of breaching a bail undertaking. The more serious of the domestic violence order contraventions involved the appellant verballing abusing the victim and damaging property in the presence of their children. The appellant also head butted an informant. The sentences were reduced on appeal to 3 months imprisonment. [22] Having regard to the circumstances of charge 3 in the present case, whereby the appellant punched the aggrieved through a car window, then grabbed her by her throat (all in the presence of a child) and also threatened a witness who attempted to intervene in the assault, I would categorise the appellant’s conduct at a similar level of seriousness as that considered in R v James11 and TND v Queensland Police -- 17 of 19 -- 18 Service12. However, unlike in R v James, the appellant in the present case is older with no prior similar offending, but the totality principle is relevant. The appellant’s conduct in the present case is more serious than in Singh v Queensland Police Service13 but significantly less serious than the conduct of the appellant in PMB v Kelly.” (citations omitted) [40] At [23] His Honour noted that “the conduct constituting Charge 3 would warrant a penalty within the range of six to nine months, subject to matters of mitigation and consideration of the totality principle.” He described the other domestic violence protection order breaches as of “a lower order” warranting between one and three months imprisonment. [41] In re-exercising the sentencing discretion afresh, His Honour described Smith’s criminal history thus: “[40] The appellant has a long and disturbing criminal history spanning from 1987, when he was only 14 years of age, until 2012, when he was dealt with for a breach of suspended sentence. On my reckoning he has been convicted of multiple offences including: unlistening driving; unlawful use of a motor vehicle; break, enter and steal; attempted break & enter with intent; stealing; wilful damage; receiving; escaping custody; breaches of probation and community service order; breach of bail; possession of dangerous drug and tainted property; dangerous driving; burglary; and breach of suspended sentence. Whilst the appellant has two convictions involving wilful damage, he has no previous convictions of personal violence in contravention of domestic violence orders. ” [42] His Honour substituted a nine-month term for the most serious charge and lesser terms of imprisonment for the other offences. The Magistrate in that case had set a parole release date which was after serving three months of the 12 month term (taking into account two months pre-sentence custody) which His Honour did not disturb. [43] In my opinion, the persistent nature of the offending here over a longer period of time than Smith; and the complete disregard for the conditions of both the domestic violence protection orders and the Bail Act undertaking conditions, coupled with a recognition of the increase in the maximum penalty for the contravention offences from two to three years, and taking into account the mitigating factors justified an overall sentence of six months as being an appropriate response to the appellant’s overall criminality. I intend to take the approach mandated by the Court of Appeal in the R v Nagy [2004] 1 Qd.R. 63 at 72 per Williams JA at [39]. That is the approach adopted by the Magistrate in Smith that was endorsed by Judge Morzone at [35]. In my opinion the most objectively serious breach of the domestic violence protection order was Charge 7 and for that offence I would impose a sentence of six months. For all other breaches of that Act I would impose on each a term of two months imprisonment with all sentences to be served concurrently that is an overall sentence of six months imprisonment. For the reasons stated in relation to all nine Bail Act offences on each I would order that the appellant be convicted and not further punished. -- 18 of 19 -- 19 [44] As a recognition of his plea of guilty and other factors in mitigation I would suspend the sentence after two months and declare the 42 days and not interfere with the operational period imposed by His Honour. -- 19 of 19 --