EAV v Commissioner of Police [2016] QDC 237

DISTRICT COURT OF QUEENSLAND CITATION: EAV v Commissioner of Police [2016] QDC 237 PARTIES: EAV (appellant) v Commissioner of Police (respondent) FILE NO/S: 1291/2016 DIVISION: Appellant PROCEEDING: Appeal from Magistrates Court ORIGINATING COURT: Magistrates Court, Brisbane DELIVERED ON: 16 September 2016 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 16 September 2016 JUDGE: Dearden DCJ ORDER: 1. Appeal granted; 2. Set aside the sentence of three months’ imprisonment wholly suspended with an operational period of 12 months; 3. Re-sentence defendant to a combined order of: a. 18 months’ probation with a special condition that: i. The defendant submit to such medical, psychological, or psychiatric treatment and/or counselling, and/or programs, in respect of mental health issues, domestic violence, or any other matter considered relevant by an authorised corrective services officer, as directed by an authorised corrective services officer; and b. 100 hours community service to be completed within 12 months; 4. No conviction recorded; 5. That the Commissioner of Police pay Fisher Dore Trust Account the sum of $1800.00 in costs. -- 1 of 7 -- 2 CATCHWORDS: CASES: LEGISLATION: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was subject to mutual, cross-orders for domestic violence – where the appellant pleaded guilty to a breach of a domestic and family protection order – where the appellant was sentenced to three months imprisonment, wholly suspended with an operational period of 12 months - where the appellant was cooperative with police – where the appellant had taken part in an anger management program – where the appellant had previous breaches of the domestic violence protection order – whether imprisonment was the only appropriate sentence – whether community based orders were considered – whether the learned magistrate failed to take into account the particular circumstances of the offence – whether the sentence was manifestly excessive House v The King (1936) 55 CLR 499 MH v QPS [2015] QDC 124 R v Lawley [2007] QCA 243 RMR v Sinclair [2012] QDC 204 Tierney v Commissioner of Police [2011] QCA 327 Justices Act 1886 (Qld) s 222 Penalties and Sentences Act 1992 (Qld) ss 10, 96, 106 COUNSEL: Mr S Elliot (sol.) for the appellant. Mr M Slack (sol.) for the respondent. SOLICITORS: Fisher Dore for the appellant. Office of Director of Public Prosecutions for the respondent. Introduction [1] The appellant, EAV, pleaded guilty to one charge of a breach of a domestic and family violence protection order at the Brisbane Magistrates Court on 7 March 2016. [2] The appellant was sentenced to three months’ imprisonment, wholly suspended, with an operational period of 12 months. -- 2 of 7 -- 3 [3] The ground of appeal was that: The sentence imposed was manifestly excessive. The Law – Appeals [4] This appeal proceeds pursuant to Justices Act 1886 (Qld) s 222. As Margaret Wilson HAA observed in Tierney v Commissioner of Police1, such an appeal: “…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 failure to admit new evidence. To succeed, an appellant needs to show some legal, factual or discretionary error.”2 [5] In respect of an appeal on sentence, Keane JA, noted in R v Lawley3: “It is necessary to state that the sentence imposed by the learned sentencing judge involved the exercise of the discretion which this court may not interfere with unless an error of the kind identified in House v The King (1936) 55 CLR 499, 504 – 505, has occurred. It is not a sufficient basis for this court to intervene, that this court might have struck a different balance between the competing considerations which had to be weighed in the exercise of the discretion.”4 [6] In House v The King5, Starke J observed: “…the sentence imposed upon an accused person for an offence is a matter peculiarly within the province of the judge who hears the charge: he has a discretion to exercise which is very wide, but it must be exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion.”6 [7] Further in House v The King,7 Dixon, Evett, and McTiernan JJ stated: “But the judgment complained of, namely, sentenced to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way, there has been a failure properly to exercise the discretion which the law proposes in the court on first instance. In such a case, although the nature of the error may not be 1 [2011] QCA 327. 2 Tierney v Commissioner of Police [2011] QCA 327, para [26]. 3 [2007] QCA 243. 4 R v Lawley [2007] QCA 243, para [18]. 5 (1936) 55 CLR 499. 6 House v The King (1936) 55 CLR 499, p. 503. 7 (1936) 55 CLR 499. -- 3 of 7 -- 4 discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” 8 Facts [8] The appellant and the complainant were subject to a domestic violence protection order issued in the Brisbane Magistrates Court on 8 July 2015 for a period of two years. It became clear during submissions at the sentence that, in fact, there were cross-orders. [9] On 20 November 2015, police attended at an address at Water Street, Fortitude Valley, in respect of a dispute between the appellant and the complainant. [10] The appellant told police that he and the complainant were in a heated argument, which the complainant had initiated. The appellant said that he attempted to stand up from his seat when he bumped into the complainant, causing her to stumble onto the bed. The complainant slapped the appellant. The appellant grabbed the complainant, threw her on the bed, placed his weight on top of her, and restrained her until able to stand up and walk downstairs from their apartment. The argument continued until police arrived.9 [11] The prosecutor informed the learned magistrate that the appellant had been helpful and cooperative with police (I note that the bulk of the allegations against him appear to have come from his conversation with police); had made admissions regarding the physical side of the incident; and appeared remorseful for his actions.10 [12] The prosecution tendered the appellant’s then criminal history, which indicated the appellant, on 11 November 2015, in the Brisbane Magistrates Court, had been fined $500, with no conviction recorded, for a prior breach of the domestic violence order, that breach having occurred on 27 October 2015. [13] Ms Martin, who appeared for the appellant at the original sentence, submitted as follows: (1) The appellant worked in telemarketing and was subject to criminal history checks; (2) That the appellant and complainant were subject to cross-orders for domestic violence; (3) That the appellant was under the care of a Dr Kevin Calder-Potts, was medicated for agitated depression and was compliant with that medication. A brief letter confirming the appellant’s attendance on Dr Calder-Potts was tendered during the sentence; (4) The appellant had taken part in the Anglicare Living Without Violence Program. A letter tendered on sentence indicated that the appellant had attended three assessment sessions, four individual counselling sessions, one individual review session, and 10 of 16 group sessions, with an exit due on 8 March 2016. [14] Ms Martin advised the court that the appellant and complainant were still together as at the sentence date. Ms Martin also stressed that there had been no further offending between the date of the offence (20 November 2015) and the sentence date (7 March 2016). 8 House v The King (1936) 55 CLR 499, p. 504 – 5. 9 Sentencing Submissions before Magistrate Thacker (T1-2). 10 Sentencing Submissions before Magistrate Thacker (T1-2). -- 4 of 7 -- 5 [15] The learned magistrate, understandably, expressed significant concern in her exchanges with Ms Martin in respect of the chronology; relevantly, that the domestic violence order had been made in July 2015, breached by the appellant on 27 October 2015, he’d been sentenced for that breach on 11 November 2015; and he had then breached the domestic violence order again on 20 November 2015 (some nine days after the sentence for the previous breach). [16] The learned magistrate’s sentencing remarks were brief and, in the circumstances, I will quote them verbatim: “Stand up, please, EAV. I’ve gone through the chronology of events, and you’ve been given a number of opportunities to change your ways, and yet you – you failed to – to do that. You – you failed miserably in November. Well, you don’t get any credit for failing miserably in November, given it’s only March now. You’re still in the period where you need to prove yourself if you want to stay in this relationship, both to your partner and to the community, because if you cannot live with your partner in circumstances where there is no violence, then you can’t live with her, from the community’s point of view. An order will be made separating you. That’s the position the community has now reached. It’s, for some people, a radical position, but you’re in the age group where you must know that that’s what the community expects today, in this day and age. There are older people who can’t quite come at that idea, that the community would invade the privacy of a person’s home and stop them from being able to live together, but in the 21st century in Australia, in Queensland, that’s the position the community has reached. So you either change your ways, or you must be separated. Taking that aspect of the matter into account and, as I say, [indistinct] the chronology of the events, you must not commit any further offences of this nature. You’re convicted and sentenced to three months’ imprisonment, and it’s wholly suspended over your head for the next 12 months. I should think, if you can make your change of lifestyle over the next 12 months, you will have made a success of the changes that you’re putting in place. That completes the proceedings today. You’re free to go.”11 Submissions – Appellant [17] It is submitted, correctly, that the learned magistrate did not give reasons why the appellant was sentenced to a period of imprisonment.12 [18] However, by inference, it is submitted that the learned magistrate must have concluded that imprisonment was the only appropriate sentence, and conversely failed to consider the alternative of a community based order. [19] In particular, it’s submitted that the learned magistrate failed to take account of the circumstances in which the offence occurred – in particular, that the complainant initiated the violence aspect of the interaction (with a slap), to which the appellant responded with restraint, placing his weight on the complainant, which (in contradistinction to the submission made by the appellant) also constitutes an act of violence. 11 Sentencing Remarks by Magistrate Thacker (p. 2). 12 Penalties and Sentences Act 1992 (Qld) s 10. -- 5 of 7 -- 6 [20] The respondent submits, in contrast, that although there was, as it describes it, ‘an element of provocation’, the appellant did use actual physical violence (a submission which I accept), and this was more than was necessary to restrain the complainant; that the appellant had a previous entry on his criminal history for breaching the same domestic violence order (in respect of the same complainant); and although young, could not be described as a ‘youthful offender’. [21] The decisions of MH v QPS13 and RMR v Sinclair14 are each illustrations of members of this court, in its appellate role, cognisant of the restraints in granting appeals based on an argument that the primary sentence was manifestly excessive, nonetheless being persuaded, in the circumstances, that an original sentence of imprisonment should be set aside. Each is therefore an example of putting in play the principles set out in House v The King,15 as referred to by Keane JA in R v Lawley.16 Conclusion [22] With respect, the learned magistrate has, in this matter, in my view, failed to give appropriate recognition to a number of factors, which should have persuaded the learned magistrate to consider a different outcome, namely: (1) there were mutual, cross-orders for domestic violence in place at the time of the offending; (2) the initial violence in the incident was, in fact, the complainant slapping the appellant; (3) the appellant’s violence, in response, was relatively low level (although nonetheless unacceptable); (4) the appellant had been in receipt of medical care in respect of a significant mental health issue, and importantly, had undertaken the Anglicare Living Without Violence Program, which was a substantial program, indicating on his part a significant willingness to change; (5) the appellant had expressed his remorse to police immediately after the event. [23] I consider, in those circumstances, that the learned magistrate’s failure to consider, albeit for a second domestic violence order breach, committed relatively soon after the first breach, the other alternatives, which obviously in this circumstance would be a community based order. [24] I should note that magistrates dealing with breaches of domestic violence are, of course, under significant time pressures and the learned magistrates sentencing remarks are brief. However, the transcript does not indicate that the learned magistrate in any way considered alternatives other than imprisonment in respect of this matter, and appears only to have taken into account the chronology (which is obviously significant) and to some very minor extent (referenced at the conclusion of her sentencing remarks) the steps that the appellant had taken in respect of receiving assistance from Dr Calder-Potts and Anglicare. 13 [2015] QDC 124. 14 [2012] QDC 204. 15 (1936) 55 CLR 499. 16 [2007] QCA 243. -- 6 of 7 -- 7 Orders [25] In all the circumstances, I order as follows: 1. Appeal granted; 2. Set aside the sentence of three months’ imprisonment wholly suspended with an operational period of 12 months; 3. Re-sentence defendant to a combined order of: a. 18 months’ probation; with a special condition that: i. The defendant submit to such medical, psychological, or psychiatric treatment and/or counselling, and/or programs, in respect of mental health issues, domestic violence, or any other matter considered relevant by an authorised corrective services officer, as directed by an authorised corrective services officer; and b. 100 hours community service to be completed within 12 months; 4. No conviction recorded. … [The defendant consented to the conditions of probation and community service in accordance with ss 96 and 106 respectively of the Penalties and Sentences Act 1992 (Qld)] … Costs [26] I’ll order that the Commissioner of Police pay Fisher Dore Trust Account the sum of $1800.00 in costs. -- 7 of 7 --