CXS v Commissioner of Police [2017] QDC 205

DISTRICT COURT OF QUEENSLAND CITATION: CXS v Commissioner of Police [2017] QDC 205 PARTIES: CXS (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: D9/2017 DIVISION: Appellant PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Mount Isa DELIVERED ON: 7 August, 2017 DELIVERED AT: Brisbane HEARING DATE: 27 July 2017 JUDGE: Dearden DCJ ORDER: 1. Appeal granted. 2. Set aside the sentence of 15 months imprisonment imposed in respect of the offence of assault occasioning bodily harm whilst armed (9/11/2015) and substitute a sentence of 12 months imprisonment, with a parole release date of 24 August, 2017. 3. Otherwise confirm the orders made by the learned magistrate on 22 May 2017. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty to a number of charges on 22 May 2017 – where the appeal relates only to the offences of assault occasioning bodily harm whilst armed and the contravention of a domestic violence order – where the appellant was sentenced on 22 May 2017 to 15 months imprisonment for the offence of assault occasioning bodily harm whilst armed, and 3 months imprisonment for the contravention of a domestic violence order, cumulative – where a parole release date was set at 24 September 2017 – whether the learned magistrate fell into error – whether the sentence imposed was manifestly excessive – whether the learned magistrate erred by failing to have proper regard to principles of totality – -- 1 of 10 -- 2 LEGISLATION: CASES: whether the learned magistrate erred by failing to adequately consider the circumstances of mitigation Justices Act 1886 (Qld), s 222 House v The King (1936) 55 CLR 499 Mill v R (1988) 166 CLR 59 Moodoonuthi v QPS (unreported, Butler SC DCJ, 21 November 2016) NAS v Queensland Police Service [2017] QDC 173 R v Matamua; ex parte Attorney-General (Qld) [2000] QCA 400 R v Pierpoint [2001] QCA 493 R v Von Pein [2002] QCA 385 Tierney v Commissioner of Police [2011] QCA 327 COUNSEL: Ms P Hallam for the appellant Ms D Orr for the respondent SOLICITORS: Aboriginal and Torres Strait Island Legal Service for the appellant Office of the Director of Public Prosecution for the respondent Introduction [1] This is an appeal from the sentences imposed by the learned magistrate at Mount Isa on 22 May 2017 in respect of one offence of assault occasioning bodily harm whilst armed (15 months imprisonment) and a contravention of a domestic violence order (3 months imprisonment – cumulative). A parole release date was set at 24 September 2017. Grounds of appeal [2] The notice of appeal identifies the following grounds: (1) The sentence imposed was manifestly excessive; (2) The learned sentencing magistrate erred by failing to have proper regard to principles of totality; (3) The learned sentencing magistrate erred by incorrectly applying relevant case law; and (4) The learned sentencing magistrate erred by failing to adequately consider circumstances of mitigation. -- 2 of 10 -- 3 The law [3] As Margaret Wilson AJA outlined in Tierney v Commissioner of Police:1 “An appeal from a Magistrates Court to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) is a rehearing on the evidence given at trial and any new evidence adduced by leave. In other words, it involves a review of the record of proceedings below, subject to the District Court’s power to admit new evidence. To succeed, an appellant needs to show some legal, factual or discretionary error.” (citations omitted) The sentences [4] The appellant pleaded guilty to a number of charges on 22 May 2017, but the appeal relates only to the offences of assault occasioning bodily harm whilst armed and the contravention of a domestic violence order. Offence Date Result Assault occasioning bodily harm whilst armed 9/11/2015 15 months imprisonment Contravention of domestic violence order 9/11/2015 3 months imprisonment – cumulative Contravention of domestic violence order 6/4/2016 2 months imprisonment – concurrent Creating public nuisance 5/5/2016 1 month imprisonment – concurrent Assault or obstruct police in performance of duties whilst adversely affected by intoxicating substance 5/5/2016 1 month imprisonment – concurrent Possess utensils or pipes that had been used 5/5/2016 1 month imprisonment – concurrent Possess utensils or pipes that had been used 6/8/2016 1 month imprisonment – concurrent Failure to appear in accordance with undertaking 17/8/2016 Convicted and not further punished 1 [2011] QCA 327, [26]. -- 3 of 10 -- 4 Facts [5] Relevantly, in respect of the two charges the subject of appeal, the following facts were placed before the learned sentencing magistrate: “…between 7 and 8am [on 9 November 2015] an argument over infidelity [occurred] and then it escalated to the defendant using a sharpened stick to stab towards the victim’s face. The victim raised their left arm and received what was described as a wound and again, stabbed the victim in the left leg. The victim of HIK. The contravention of domestic violence order, which obviously was the same time and date in place, basically was the defendant having the victim remain with him and not allowing…her…to received…medical treatment…until 4 or 5pm that afternoon and then eventually she found her opportunity to actually seek assistance with making a complaint of assault.”2 [6] In respect of the assault occasioning bodily harm whilst armed and contravention of domestic violence orders, the appellant’s counsel made the following submissions: (1) The appellant did not recall the details of the offence, perhaps due to alcohol consumption, but did recall accompanying the complainant (his partner) to the hospital. (2) Although the complainant did attend the hospital, there were no details as to any injuries that the complainant sustained apart from reference to a wound (and the charge did not proceed as a wounding). On defence counsel’s instructions, the complainant didn’t require stitches for the laceration that she received.3 (3) Further, the learned sentencing magistrate was told that the appellant came from a disadvantaged background;4 that the appellant had struggled with depression and suicidal ideation;5 that the appellant was aware that he had personal issues that he needed to deal with; had a family with the aggrieved, sharing two young children, was extremely remorseful; and that his partner was supportive, had written letters to him while he was in custody and the appellant was looking to return to his family upon release.6 Magistrate’s decision [7] In respect of the assault occasioning bodily harm whilst armed with an offensive instrument charge, the learned magistrate noted that the appellant “struck the aggrieved in a stabbing motion with a sharpened stick on two occasions…in the arm and also in the leg, below the knees”.7 The learned magistrate accepted the submission on behalf of the appellant that “the injuries suffered – was [sic] not an 2 Exhibit 2 (sentencing submissions) 1-5 – 1-6. 3 Exhibit 2 p 1-8. 4 Exhibit 2 p 10, 1-10. 5 Exhibit 2 p 1-10. 6 Exhibit 2 p 1-10. 7 Exhibit 3 p 2. -- 4 of 10 -- 5 extensive one; however one must view that offence seriously in terms of the fact that the injury to the arm of the aggrieved, or victim, was as a result of you [the appellant] preventing you from striking her in the head with the wooden stick”.8 [8] In respect of the contravention of domestic violence order offence from the same date, the learned magistrate noted that this was the appellant “not allowing the aggrieved to attend upon a medical service to have the injuries attended to, and [in the learned magistrate’s view] was a blatant attempt on [the appellant’s] part to avoid police detection with respect to that matter”. [9] The learned magistrate then stated: “I can flag, at the outset, that the making of cumulative sentences of imprisonment is a very rare occurrence, as was rightfully conceded by Sergeant Whiting [the prosecutor], in terms of that the court must always be careful not to impose sentences which are unduly harsh in the circumstances. But I think, in this instance, that a cumulative period of imprisonment is appropriate given, as I said, there was a blatant attempt on you part, in my view, to avoid police detection with respect to this matter, and obviously the aggrieved was placed in a circumstance where the medical attention that she required was delayed for an extended period of time, and I think there needs to be, in my view, a message of deterrence in terms of that behaviour on your part, which is appropriate in all the circumstances.”9 [10] The magistrate imposed concurrent sentences for the other matters before the court, which are not the subject of this appeal. [11] The learned magistrate noted, in terms of penalty, the following: “…I must have regard to the criminal history. Your criminal history, CXS, of note, are those matters from the Northern Territory, for which you were dealt with in the Katherine Court in the Borroloola Court. I note, in 2013, you received an order for imprisonment of 6 months, and that in 2014, when one takes into consideration the cumulative aspects of the sentences, you received a lengthier term of imprisonment on that occasion. Each of those offences were clearly related to offences of domestic violence, as you were charged with breaching those orders in the Northern Territory. So despite receiving those orders for imprisonment, you have returned to the state of Queensland and the community of Doomadgee, and continue to commit offences of like nature. Clearly, lengthier terms of imprisonment are appropriate in all the circumstances. 8 Exhibit 3 p 2. 9 Exhibit 3 p 2. -- 5 of 10 -- 6 I note what Ms Hallam (counsel at the sentence) has [said] in respect of the sentence of 9 months, cumulative, with a sentence for 3 months, with respect of the contravention of domestic violence orders. I cannot agree, in all the circumstances. The authority which was tendered to the court by the prosecution of Moodoonuthi seems to indicate that a head sentence of 18 months is appropriate in all of the circumstances, and I have framed (sic), when one views your criminal behaviour or criminal offending and considers the principle of totality, I think that 18 months of imprisonment properly reflects your criminal behaviour. So I frame the sentence in this manner. With respect to the assault occasioning bodily harm whilst armed, you are convicted and that conviction is recorded. You are sentenced to 15 months imprisonment. With respect to the contravention of domestic violence order on the same date, you are convicted and a conviction is recorded, and sentenced to 3 months imprisonment, which will be cumulative on the 15 months, in other words, a total sentence of 18 months. With respect to all other matters, whilst I have made orders for imprisonment, they will be concurrent, in other words, will not be added to that 18 months of imprisonment.” [12] The learned magistrate then went on to impose various concurrent sentences and other orders.10 Comparatives [13] R v Pierpoint11 involved an assault occasioning bodily harm in a de facto relationship, for which the appellant was sentenced to imprisonment for 18 months at first instance. The violence did not involve the use of a weapon, and commenced after the complainant had struck the appellant. The violence did, however, involve partially choking the complainant, punching her, and included covering the complainant’s face with a pillow. The attack was protracted and only ceased upon attendance by police. The complainant had bruising to her neck and bumps on her head, was generally sore about the upper part of her body and face but did not suffer any serious injuries. [14] On appeal, the original sentence of 18 months with a parole recommendation after 6 months was set aside and a sentence of 12 months imprisonment suspended after approximately 3 months was imposed. [15] R v Pierpoint refered in turn to a decision of R v Matamua; ex parte Attorney-General (Qld),12 where at first instance a wholly suspended sentence of 18 months imprisonment was imposed for an assault occasioning bodily harm whilst armed with 10 Exhibit 3 p 3. 11 [2001] QCA 493. 12 [2000] QCA 400. -- 6 of 10 -- 7 an offensive instrument. This involved an assault committed by a man upon his de facto wife: “The assault occasioning bodily harm in Matumua involved an assault committed by a man upon his de facto wife; it arose out of a domestic argument during which the offender, at one stage in the course of a drinking spree with others, threatened to slice the complainant with a broken bottle. When the argument resumed, he picked up an axe; swinging it at her. He hit her on the back of the head with the axe handle and knocked her to the ground, and then swung the axe towards her imbedding it in the ground beside her head; he then applied further force to her while on the ground and threatened to kill her. There was a series of other acts of violence which it is unnecessary to detail. [53] The complainant in that case suffered severe pain in the rib area and had trouble breathing; she received hospital treatment when she started to cough up blood; she suffered headaches and muscular pain, and it took eight or nine weeks for the pain in her ribs to subside although she suffered no permanent physical injury. The attack upon her had a significant psychological impact. With respect to the most serious offence committed upon the complainant, a sentence of 18 months imprisonment was imposed to be served concurrently with lesser penalties for other offences arising out of the same incident, and this sentence was wholly suspended with an operational period of 2 ½ years. In the course of his judgment, Pincus JA observed that the degree of violent behaviour was of such a character and involved such a danger to others as to require part of the imprisonment to be served. The Court of Appeal did not interfere with the sentence of imprisonment but in lieu of the suspension, made a recommendation for parole after 6 months.”13 [16] Clearly, the circumstances of the offending in Matumua were significantly more serious than the offending in this appeal, although with some quite striking similarities. [17] In NAS v Queensland Police Service,14 the appellant pleaded guilty to one count of assault occasioning bodily harm whilst armed. The appellant was originally sentenced to 15 months imprisonment, suspended after 2 months, with an operational period of 3 years. [18] The factual background was described in the appeal judgment as follows: “[3] On the night of the offence the police attended the address and the complainant told them what had occurred. She said, and it was not disputed that, the appellant was angry, presumably as a result of an 13 R v Pierpoint [2001] QCA 493, [52]-[53]. 14 [2017] QDC 173. -- 7 of 10 -- 8 argument with the complainant, and threw an apple, which struck the wall near where she was standing with the baby. The appellant then picked up a broomstick and struck her across the back while she was carrying the baby. The complainant attempted to leave the premises with the baby. The appellant grabbed her by her hair and struck her numerous times to the back of the head while she was curled over, attempting to shield the baby. While striking the complainant, the appellant told a witness to hold the baby so he could hit the complainant. The complainant had said ‘not in front of the children.’ The complainant attempted to contact the police but the appellant prevented her from using her mobile phone. [4] The appellant then left the address and went to a nearby park where the police located him. He voluntarily participated in a record of interview where he made full admissions. He entered a plea of guilty on the following day and was immediately sentenced.”15 [19] The appellant in NAS had no criminal history (which is in contra-distinction to the appellant in these proceedings). On appeal, the sentence was reduced to 9 months imprisonment, wholly suspended (the appellant having served 2 months). [20] In R v Von Pein,16 the applicant assaulted the complainant in her bedroom, then moved to the lounge room where “the applicant struck the complainant with a belt on approximately six occasions, as a result of which she sustained contusions on her left leg. That was the substance of the offence of the assault occasioning bodily harm whilst armed”.17 A common assault followed in a public telephone box when the complainant went to call police. [21] The appellant was originally sentenced to 18 months imprisonment after being found guilty at trial. On appeal, the sentence imposed was suspended after serving 6 months imprisonment. The applicant in Von Pein had what was described as an “adverse criminal history” which “included prior acts of violence against the complainant and the same police officer [the applicant was found guilty of two offences of serious assault against the police officer]”.18 [22] In Moodoonuthi v QPS (unreported, Butler SC DCJ, 21 November 2016) (referred to by the learned magistrate in the sentencing of CXS), the appellant was sentenced in respect of seven offences including a sentence of 12 months imprisonment on an offence of assault occasioning bodily harm whilst armed. He was also sentenced to an effective cumulative sentence of 3 months for failing to appear (Bail Act) offences which were cumulative on each other and on the 12 months: 15 NAS v Queensland Police Service [2017] QDC 173, [3]-[4]. 16 [2002] QCA 385. 17 R v Von Pein [2002] QCA 385, p 3. 18 R v Von Pein [2002] QCA 385. -- 8 of 10 -- 9 “The appellant had struck another man, who was walking away from him, following an argument with a family member of the appellant, to the back of the head with a piece of wood. The magistrate noted that there were no lasting injuries and that he should only be sentenced on the basis of the injury that he had sustained.”19 [23] Judge Butler referred to the requirement for a sentencing court to have regard to the consequences of a cumulative sentence (mandatory in respect of Moodoonuthi) and after reviewing a range of decisions, concluded that “a period of actual imprisonment in the order of two to six months seems to be usual for sentencing for offences of assault occasioning bodily harm with a circumstance of aggravation”.20 Discussion [24] In the context of offending by an appellant with an extensive criminal history involving violence (including in a domestic setting); involving as it did the use of a weapon, but in a context where no injuries were specifically identified, and with clear evidence of remorse, even allowing for the cumulative sentence on the contravention of domestic violence order, given that it involved the appellant seeking to prevent the complainant from obtaining medical assistance, the effective sentence of 18 months clearly indicates that the learned magistrate has, at the least, failed to take into account a material consideration (the fact that although a weapon was used, and the police prosecutor asserted that a “wounding” had occurred, there was no medical evidence whatsoever to identify the nature of the injuries). Upon the facts alleged, I consider that the effective head sentence of 18 months was clearly “unreasonable or plainly unjust”.21 In the light of the comparative sentences which I have reviewed, I have no hesitation in concluding that the sentence was manifestly excessive. [25] Further, the learned magistrate placed insufficient regard on the circumstances of mitigation, in particular the expressed remorse and the particular matters in mitigation including the applicant’s suicidal ideations, suicide attempt, disadvantaged upbringing and alcohol misuse. Although as I have indicated below, I consider that the learned magistrate was entitled to impose, in the circumstances of this case, a cumulative sentence on the contravention of domestic violence, it was still necessary to consider the effect of that cumulative sentence on the overall penalty.22 To the extent that the learned magistrate started at too high a penalty in respect of the assault occasioning bodily harm whilst armed sentence, he fell into error in respect of totality. Conclusion [26] In all of the circumstances, I consider that the appropriate effective head sentence is one of 15 months, which should be achieved by reducing the head sentence on the 19 Moodoonuthi v QPS (unreported, Butler SC DCJ, 21 November 2016), p 2. 20 Moodoonuthi v QPS (unreported, Butler SC DCJ, 21 November 2016), p 7. 21 House v The King (1936) 55 CLR 499, 504-505 (per Dixon, Evatt and McTiernan JJ). 22 Mill v R (1988) 166 CLR 59. -- 9 of 10 -- 10 assault occasioning bodily harm whilst armed to a sentence of 12 months imprisonment. [27] For the reasons identified by the learned sentencing magistrate, the penalty imposed for the contravention of domestic violence order on 9/11/2015 should remain as a cumulative sentence, with the consequence being an effective head sentence of 15 months imprisonment. Orders [28] I make the following orders: 1. Appeal granted. 2. Set aside the sentence of 15 months imprisonment imposed in respect of the offence of assault occasioning bodily harm whilst armed (9/11/2015) and substitute a sentence of 12 months imprisonment. 3. Otherwise confirm the orders made by the learned magistrate on 22 May 2017. [29] I set the parole release date at 24 August, 2017. -- 10 of 10 --