CCR v Queensland Police Service [2010] QDC 486

1-1 DISTRICT COURT OF QUEENSLAND CITATION: CCR v Queensland Police Service [2010] QDC 486 PARTIES: CCR (Appellant) AND Queensland Police Service (Respondent) FILE NOS: 29/10 DIVISION: Appellate PROCEEDING: Application ORIGINATING COURT: Magistrates Court, Bundaberg DELIVERED ON: 3 December 2010; ex tempore DELIVERED AT: Bundaberg District Court HEARING DATE: 3 December 2010 JUDGE: Judge J.M. Robertson ORDER: Appeal dismissed CATCHWORDS: APPEAL AGAINST SENTENCE, where appellant pleaded guilty to multiple counts of breach of a domestic violence order which involved property damage and actual violence and to assault occasioning bodily harm and other offences, whether sentence manifestly excessive, whether plea of guilty taken into account and her Honour complied with s 13(4) of the Penalties and Sentences Act 1992 (Qld). BAIL- where appellant released on bail pending appeal after serving (5) weeks of a 3 month sentence, whether applicant should be ordered to serve balance of sentence where appeal dismissed. Legislation Cited Bail Act 1980 (Qld) Justices Act 1986 (Qld) Penalties and Sentences Act 1992 (Qld) -- 1 of 24 -- 1-2 JUDGMENT Police Powers and Responsibilities Act 2000 (Qld) Cases Considered: Cameron v R [2002] 209 CLR 339 Police v Sysel [1999] QDC 327 Queensland Police Service v Paul David Wilson [2008] reported on the Chief Magistrate's notes, 7 of 2008 R v Barling [1999] QCA 16 R v Denyer [2009] QCA 53 R v Neivandt [2000] QCA 224 R v Sysel [2000] QCA 233 R v Taylor [2000] QCA 311 R v Warwick [2006] QCA 83 R v Woods [2004] QCA 204 Sysel v Dinon and Ors [2002] QCA 149 COUNSEL: Mr J. Benjamin for the applicant Mr J. Robson for the respondent -- 2 of 24 -- 1-3 JUDGMENT HIS HONOUR: On the 30th of March 2010 in the Bundaberg Magistrates Court before her Honour Magistrate Batts, the appellant(‘CCR’) pleaded guilty to four counts of breaching a domestic violence order, one count of breaching section 29 (1)(b) of the Bail Act and one count of assault occasioning bodily harm and one count of contravening a direction of a police officer. Her Honour imposed individual sentences for each count as she was required to do, which resulted in an effective sentence of three months' imprisonment followed by 12 months' probation. A notice of appeal to this Court under section 222 of the Justices Act 1886 was filed on the 1st of April 2010. The grounds of appeal are as follows: 1. The sentence was manifestly excessive; 2. The learned Magistrate did not give any proper weight to factors under section 9 of the Penalties and Sentences Act; 3. The learned Magistrate failed to give proper weight to the plea of guilty pursuant to section 13 of the Penalties and Sentences Act. The appellant's submissions were filed on the 10th of November 2010 and the respondent's outline of submission was filed on a date unknown but prior to the last sittings and I've considered those submissions and the oral submissions made on behalf of the appellant and the respondent earlier this week and today. -- 3 of 24 -- 1-4 JUDGMENT The circumstances of the offending, as outlined by the Prosecutor below and accepted by the appellant, are as follows: (a) Breach of domestic violence order on the 23rd of January 2009. It was acknowledged that a domestic violence order containing mandatory conditions only, under the Act, was made on the 16th of January 2008 in the presence of the appellant. On the 23rd of January 2009, that is approximately 12 months into the order, at 8.40 a.m. the appellant's wife - who was the aggrieved respondent under the domestic violence order - and the appellant got involved in a verbal argument at her place of residence. He started to yell and swear at her; she became frightened and their daughter, aged 6, was present and she was crying and the appellant’s wife (‘aggrieved person’) took the child into the bedroom, and then returned to the living room and asked the appellant to stop yelling. The appellant then smashed an iron by throwing it on the floor, and then stood over his wife yelling, "Go on, call the fucking cops and tell them I've smashed the fucking iron." She was intimidated and feared for her safety. He left prior to the police arriving. Several months later they spoke to him and he declined an interview although he did tell police that he remembered smashing the iron but would say nothing else. -- 4 of 24 -- 1-5 JUDGMENT The Prosecutor told her Honour that the original order made on the 16th of January 2008 was varied in September 2008 to add two conditions, that he (a) not attend premises where his wife lived and (b) not remove or attempt to remove any items of property. He was notified of the amendments to the order on the 29th of September 2009. (b) The second breach of the DVO Prior to his first appearance in Court on the 6th of April 2009, the second breach of the domestic violence order occurred on the 4th of March 2009. Again, police were called to the aggrieved person’s residence; this was at around 11 a.m. On arrival police observed the appellant walking around in front of the house, he was agitated and said that he knew he was going to gaol. Police asked him why he thought he was going to gaol, to which he responded that he'd had an argument with his wife and he'd smashed up a TV cabinet. Police then entered the property and in the lounge room they saw the TV cabinet damaged as described; shards of glass were all over the lounge room floor as well as water which had been in a bottle that the appellant had thrown against the glass screen. The aggrieved person confirmed that she and the appellant had had an argument and he'd become irate and thrown a bottle of water into the television, smashing the glass. She told police that at this time she was hiding in the garage, on the phone to the police and was fearful of her own safety. -- 5 of 24 -- 1-6 JUDGMENT (c) The third breach of the domestic violence order This occurred on the 21st of March 2009 at the same location. Again, police were called at approximately 10.30 a.m. They ascertained that the appellant and his wife had become involved in a verbal argument about a trip to Brisbane and she had become fearful of him and locked herself in the bathroom. The appellant was able to get into the bathroom and he put his fist underneath her chin and said, "I'll break her fucking jaw and your fucking ribs and I'll fucking put a knife into you" (sic). Another person apparently entered the room and the appellant left. Police spoke to him and he said he wished to consult a legal advisor before making a decision and he later declined to be interviewed. The aggrieved person did not report the incident on the 21st of March 2009 to police until the 23rd of May 2009. (d) The fourth breach of the DVO She also then complained about the fourth breach of the domestic violence order, which had occurred around about 2 p.m. on that day. By the 25th of May 2009, the appellant had already appeared before the Court in relation to the first two counts of breaching a domestic violence order and had been released on his own undertaking. In relation to this fourth incident, she said that he entered the residence about 2 p.m. unannounced and uninvited and asked -- 6 of 24 -- 1-7 JUDGMENT her to withdraw the complaint that she'd made against him. She refused, telling him that he'd put himself in that position and she didn't care. He responded by grabbing her around the throat and commencing to choke her. She told police that she struggled for a few seconds and he released his grip. He then picked up her handbag and threw it at her. The handbag hit her heavily in the face. She told police that she picked up the handbag and left to drive to the police station to report the incident. She told police that his attempt to have her withdraw the complaint was intimidating and whilst running out of the house, she slipped and fell and grazed her knee. She said that once she got to her car, the appellant approached her quickly and opened the passenger's door and she sped off and went directly to the police. Again, he was approached by police but declined to be interviewed. (e) The offences on the 13 th July On the 13th of July 2009, the appellant committed what was justifiably regarded by her Honour as the most serious of the offences to which he ultimately pleaded guilty. He also pleaded guilty to a breach of the domestic violence order committed on that same day with the same factual circumstances attending the assault occasioning bodily harm. The Prosecutor told her Honour that at about 1.40 p.m. on the 13th of July, both the appellant and his wife were present at her residence. He'd been staying there temporarily as he had no other accommodation. He was lying on the bed, watching television and engaged his wife in conversation. -- 7 of 24 -- 1-8 JUDGMENT The conversation moved on to the issue of divorce which led to an argument and the appellant became angry. As a result, she asked him to take his belongings and leave. He got up off the bed, approached her in the hallway and struck her on the top of her head with his right fist. She sustained an injury to the top of her head where the skin was broken and blood commenced to trickle down her forehead, into her mouth. She also experienced pain and discomfort. She took the cordless phone and retreated outside where she telephoned the police. Photographs of the injuries were tendered and her Honour considered those. The appellant remained in the residence until police arrived at the scene and in the course of speaking to the police he said, "I whacked her because she was abusing me." On that day police issued him with a notice to attend at the Bundaberg Police Station within seven days to provide his identifying particulars which he failed to do. These facts constituted a breach of section 791(2) of the Police Powers and Responsibilities Act 2000. He appeared in the Bundaberg Magistrates Court on the 14th of July 2009 and was granted bail in relation to the assault and breach of domestic violence order on the 13th of July 2009, and for the breach on the 23rd of May 2009. On the 7th of September 2009 the conditions of bail were varied to provide that he reside elsewhere and he have no contact with his wife except by telephone to arrange contact with his children. Her Honour was informed that, as well as the six year old daughter -- 8 of 24 -- 1-9 JUDGMENT there was another child who was an adult. On the 5th of March 2010 at around about 10.30 p.m. police were again called to a disturbance at the residence. The appellant was there in contravention of the residence condition imposed on the 7th of September 2009. By agreement, the charge before her Honour has been amended accordingly today. The appellant told police he wasn't aware of the condition which was made, on the record, in Mr Messenger's presence on the 7th of September 2009 and was executed by CCR. He told police then he'd lived at his wife's residence since December 2009. Personal antecedents of the appellant He was born at Cherbourg on the 11th of November 1949 so, at all times, with the exception of the breach of the Bail Act, he was 60 years of age. He had a criminal history which was tendered which the Prosecutor accurately characterised as falling into two groupings. He had a number of convictions for offences of violence which he had committed in the period the 23rd of June '89 to the 25th of October '92. It was accepted that he had then had an alcohol problem but had been alcohol-free for approximately 16 years. On the 10th of February 2009 in the Bundaberg Magistrates Court, he pleaded guilty to breaching a domestic violence order which had been imposed on the 5th of July 2008. No details of this offence were given to her Honour, but I infer that his wife was the aggrieved person in that order. -- 9 of 24 -- 1-10 JUDGMENT Her Honour had the benefit of a pre-sentence report which had been ordered by the Court on the 12th of January 2010. The writer of the report interviewed both the appellant and his wife for the purposes of the report and also Mr Messenger, who was described as a friend and legal advisor. The report refers to the appellant's health issues but states, "none of these health issues related to his offending behaviour, nor will they be barriers to his supervision". In his submission before his Honour Mr Messenger criticised this aspect of the report but had not, despite the many adjournments, obtained a medical report from his client's general practitioner. He belatedly requested an adjournment which her Honour justifiably refused and there is no complaint made about that decision on appeal. Her Honour noted that he had ill health; she was told that he had insulin dependent diabetes and was on a disability pension. On Court file MAG-00138560/09(1) is a copy of a medical certificate, presumably tendered for some reason during the protracted course of the proceedings, but not apparently at the time of sentence. This indicates that he is an obese man with insulin dependent diabetes, hypertension and hypo-cholesteremia. Of significance and correctly noted as such by her Honour, is this observation, in the pre-sentence report, "The offender appears to minimise and not accept responsibilities for his input into arguments with his -- 10 of 24 -- 0 1-11 JUDGMENT 1 10 20 30 40 50 60 wife and says that her injuries are mostly the result of him trying to defend himself against her. Currently, he says now that he is older he has found the best way to handle adversity at home is to walk away or go for a drive. He says that since he has implemented his new behaviour the arguments in the family home are now minimal." Mr Messenger did not seek to challenge this statement, and in fact in submission purported to allege that his client had had his clothes deliberately bleached, and, "had been assaulted many times when he was assaulted himself." This is in the context of a plea of guilty and no challenge to the agreed facts, and with no attempt to adduce evidence or to challenge the clear statement in the pre-sentence report. He followed that submission with the observation that his client, "is not attempting to justify his actions in any way whatsoever." That could be described fairly as a disingenuous submission. References were tendered, which attested to the appellant's previous good work history prior to going on a disability pension, and his extensive involvement in community work, particularly on behalf of indigenous people. One of the "reference" referred to the aggrieved person having a bad temper, and sought to reduce the appellant's responsibility for his actions. The prosecutors’ submissions below Sergeant Stephens, the Prosecutor, made a submission which could be described in poetic terms as, "damning the -- 11 of 24 -- 0 1-12 JUDGMENT 1 10 20 30 40 50 60 appellant with faint praise". He told her Honour that on first meeting the appellant he presents as a well-credentialed sincere, elderly gentleman. He then referred to the passage quoted above from the pre-sentence report, and the comment referred to in the report from CCR which I have quoted above, about how he now behaves when there's conflict in the home. The Prosecutor then submitted that, "the Court … cannot allow a thug like this, who violently assaults his wife, causes her actual injuries, to show his contempt … by continuing to breach domestic violence orders over a 12-month period. … Bullies need to be shown that the Court will stand up for women in domestic violence." He submitted that a term of three to six months should be imposed, followed by supervision in the form of community based orders. His submission about the offending period was clearly wrong. He repeated it again during Mr Messenger's submissions, however it is clear from what her Honour then said that she appreciated that the domestic violence, for which she was sentencing the appellant, extended over a period of just under six months. It is also clear from her decision that she was not led into factual error by the Prosecutor's error. The appellants’ submissions below I have already referred to some of Mr Messenger's submissions; and I have noted he did not attempt to prove that his client's lack of control was directly connected with his -- 12 of 24 -- 0 1-13 JUDGMENT 1 10 20 30 40 50 60 diabetes, or variations in his medication. Mr Messenger made submissions about his client's community work, and referred to the references. He conceded that prison and probation were within range but submitted that any term of imprisonment should be suspended immediately. Her Honours’ reasons Her Honour referred to the plea of guilty and clearly took it into account. She observed, correctly when one looks at the many adjournments, that the plea, "could hardly be described as early". She acknowledged the complexities of family relationships such this one, but also observed that the appellant had been subject to a domestic violence order for some time, and during the relevant period had committed numerous breaches. She noted that he had, as well as committing the offences of violence, breached the simple bail condition that he not reside at his wife's residence. She rightly took into account that some of the breaches involved wilful damage and actual violence towards his wife; she rightly regarded the assault occasioning bodily harm incident as being the most serious, particularly in the context of the previous serious breaches of the Domestic Violence order. She took into account his ill health, and although not mentioned in her decision, from remarks made during argument, she regarded his attitude as expressed to the author of the -- 13 of 24 -- 0 1-14 JUDGMENT 1 10 20 30 40 50 60 pre-sentence report, as demonstrating a lack of insight and a lack of remorse. She took into account the references and his community work, but noted that the commission of the offences did him no credit. The sentences she imposed were as follows: 1) Breach of the domestic violence order on the 23rd of January 2009, seven days imprisonment. 2) Breach of domestic violence order on the 4th of March 2009, one month imprisonment. 3) Breach of the domestic violence order on the 21st of March 2009, two months imprisonment. 4) Breach of the domestic violence order on the 23rd of May 2009, three months imprisonment. 5) Assault occasioning bodily harm on the 13th of July 2009, three months imprisonment followed by 12 months probation. 6) Breach of domestic violence order on the 13th of July 2009, convicted and not punished. 7) Contravene a direction on the 20th of August 2009, convicted and not punished. 8) Breach of the Bail Act on the 5th of March 2010, two months imprisonment. -- 14 of 24 -- 0 1-15 JUDGMENT 1 10 20 30 40 50 60 All sentences were ordered to be served concurrently. The arguments on appeal (A) The alleged failure to give proper weight to Section 9 of the Act is said to be a failure to give proper weight to matters set out in s. 9(2)(f) of the Act; namely that she did not have proper regard to his age, character and intellectual capacity. There is no merit in this ground. The only error I can detect in her Honour's decision is to observe apparently generally that a sentence of imprisonment is one of last resort. It is not necessary for me to decide if section 9(3) applies to the breaches of the domestic violence order, although it arguably does when one has regard to the proper construction of the meaning of the words, "involving the use of .. violence " in s. 9(3)(a) as discussed in R v. Barling [1999] QCA 16. There can be no doubt that it applies to the offence of assault occasioning bodily harm. It follows that the only error that her Honour made in relation to the application of Section 9 was one in favour of the appellant. (B) Failure to give weight to the plea of guilty. In his outline the appellant seeks to make a virtue out of the fact that a plea of guilty had been notified on the -- 15 of 24 -- 0 1-16 JUDGMENT 1 10 20 30 40 50 60 16th of November 2009, when regard was had to her Honour's remarks about it not being a particularly early plea. Her Honour raised this with Mr Messenger during argument and inquired why it had taken so long between then and the 30th of March 2010, for the plea to be actually entered. Mr Messenger informed her Honour that it was because of the delay in obtaining the pre-sentence report, and a further adjournment sought so that his client could see the report. Her Honour referred to the plea of guilty in her decision. Section 13(3) of the Act is in these terms : "(3) When imposing the sentence, the Court must state in open court that it took account of the guilty plea in determining the sentence imposed." In the R v Woods, [2004] QCA 204 after referring with approval to remarks of the majority in Cameron v. R [2002] 209 CLR 339, the Court said at para [10]: "Necessity to take a guilty plea into account and state that it has been done and how it has been done, is an essential part of the transparency of the sentencing process. In R v. Taylor (1999) Aust Crim R 578 McPherson JA observed: Section 13(1)(a) … requires a sentencing Court to take a guilty plea into account. It uses the expression, "must take the guilty plea into account". Having done so, the Court, "may then reduce the sentence imposed" .. and, in doing so, .. have regard to the time at which the offender pleaded guilty or advised the intention of doing so: …. This confers a discretion on the sentencing Court, but it is plainly intended that the sentence will ordinarily undergo some reduction on that account. If it is not so reduced, the reasons for not doing so must be stated in open Court: Section -- 16 of 24 -- 0 1-17 JUDGMENT 1 10 20 30 40 50 60 13(4)." In the R v. Warwick, 2006 QCA 83 the sentencing Judge had not stated in open Court how the plea was taken into account. The Court regarded the sentence imposed however as appropriate, but observed that stating of reasons was, "Something that should have been done as an essential part of the transparency of the sentencing process." Her Honour did not use the actual words, but in my view, from her very words referring in her opening remarks to the plea of guilty, it can be inferred that she took the plea into account. As the case and the Act indicates, there's no requirement that a plea of guilty must lead to a reduction however if a sentence is not reduced, the Act requires that the reasons for not reducing it should be specified. Her Honour did not refer to how the plea affected the ultimate sentence, which is contrary to s.13(4), so in my view the inquiry in those circumstances still must be whether the sentences imposed are appropriate in all the circumstances, having regard to the well known principles set out in House v. The Queen 1936 [55 CLR 499]. C) Was the sentence manifestly excessive? Her Honour was not referred to any comparable sentences. Mr Benjamin properly concedes that the decision referred to in the outline of the R v. Taylor [2000] QCA 311 does not assist. At my request counsel have endeavoured to locate -- 17 of 24 -- 0 1-18 JUDGMENT 1 10 20 30 40 50 60 comparable sentences. Despite the prevalence of domestic violence in our community there is a dearth of comparable sentencing decisions dealing with multiple breaches of a domestic violence order involving actual violence. My own research discovered two sentencing decisions that are of some assistance. The first is a decision of the Court of Appeal in the R v. Sysel, [2000] QCA 233. The facts and circumstances of the female offender's offending is not set out in that judgment, which allowed an appeal pursuant to section 118 of the District Court Act against a decision of the District Court varying decisions made in the Magistrates Court. The primary decision of his Honour Judge Hall, in Police v. Sysel [1999] QDC 327 is no longer available on the Court network. Ultimately an application was made on behalf of the applicant to reopen the sentence which is reported as Sysel v. Dinon and others, [2002] QCA 149. In the judgment of Justice Muir, as his Honour then was, the applicant’s antecedents and circumstances surrounding the subject offences are set out in paragraphs 13 to 16 and it can be said that there are some comparisons in the sense that this much younger complainant who was 25 years of age, with no prior criminal history, had breached a domestic violence order on a number of occasions, but had also committed serious assault when she bit a policewoman who was accompanying her back to the police station after she was arrested. -- 18 of 24 -- 0 1-19 JUDGMENT 1 10 20 30 40 50 60 Both decisions really concern the compatibility of some of the orders made, both in the District Court and the Magistrates Court, in the sense that suspended sentences and actual terms were imposed contemporaneously with the imposition of probation orders. However from the reasons it can be seen that the Court of Appeal did not regard the sentences as being manifestly excessive, but in order to comply with the requirements of Section 92 of the Act, a six-month sentence imposed for a series of offences dealt with in the Magistrates Court on the 19th of February 1999 and in particular a sentence related to a breach of the domestic violence order was reduced to three months imprisonment. In my view, because the maximum penalty for breaching a domestic violence order has not increased since that time, the sentence is of some assistance. Of less assistance, I say with respect, is the only other comparable that I could locate and it's an unreported decision of my own, the matter of Queensland Police Service v Paul David Wilson which was reported on the Chief Magistrate's notes, 7 of 2008 which was accessible only through the Queensland Sentencing Information Service on the Queensland Courts website. In that case, the sentence imposed had contained errors and her Honour had imposed sentences close to the maximum for a course of conduct involving three breaches of a domestic violence order by the appellant which, in my opinion was conduct not as serious as the conduct with which her Honour was dealing on this occasion. -- 19 of 24 -- 1-20 JUDGMENT 1 10 20 30 40 50 60 In my view, the appellant should succeed on the one ground, and that is that her Honour erred in not complying with section 13(4) in that she did not indicate how the plea of guilty played out in relation to the imposition of the sentence. I think this provision should always be complied with, particularly when sentences of imprisonment are being imposed for the reasons stated in the authorities to which I earlier referred. It follows that it's open for me to sentence afresh. I am satisfied that the sentence imposed was not beyond the appropriate range, having regard to those authorities to which her Honour was not referred, and was an appropriate response in all the circumstances in balancing the correct principles. The final matter that has troubled me, and troubled me considerably, is that on the 7th of May 2010 in this Court, his Honour Judge Andrews SC DCJ, granted bail to the appellant on his own undertaking, subject to a number of significant conditions which required him to reside other than in Bundaberg. As far as I am aware, he has complied with those conditions since. He has certainly not reoffended since the 5th of March 2010 which was the breach of bail. He has committed no further acts of domestic violence since the 13th of July 2009. CCR was released thereafter and I am informed that he served five weeks of the three-month sentence. Very fairly, Mr Robson who appears for the Director, bought to my attention -- 20 of 24 -- 1-21 JUDGMENT 1 10 20 30 40 50 60 the decision of R v. Denyer [2009] QCA 53 which in turn referred to an earlier decision of the Court of Appeal, R v. Neivandt [2000] QCA 224.In Denyer Keane JA (with whom Muir and Fraser JJA agreed), observed at paragraphs [27] to [29] , "[27] Finally, on the applicant's behalf it is said that because the applicant has spent 19 days in pre-sentence custody and was released on bail after serving nine days of his sentence pending the determination of this application, this Court would not now be justified in "returning him to prison" to serve the remainder of his term. The applicant relies upon the view of the majority of this Court in R. Neivandt. [28] There is, in my respectful opinion, some difficulty in point of principle in this Court arrogating to itself a discretion to decline to return a prisoner to gaol where the sentence imposed on him is one which the Court regards as proper. The principle upon which the majority proceeded in R v. Neivandt was not explained, and on this application, the argument was pressed only as an adjunct to a conclusion that the sentencing was affected by error which required the Court to resentence the applicant. Nevertheless, I am prepared to accept on the authority of the decision in R v. Neivandt that: "There may be marginal cases where the period already served is so close to the appropriate sentence that the inconvenience of returning an applicant to prison might induce a Court to fix that period as the time to be served, in order to avoid the inconvenience of returning an applicant to prison for a -- 21 of 24 -- 1-22 JUDGMENT 1 10 20 30 40 50 60 trivial period. [29] In this case, however, the balance of the term which the applicant should serve in custody pursuant to what I regard as the proper sentence, is not trivial. In R v. Neivandt the offender had served 36 days of four months in actual custody and he suffered serious health problems. In this case, the applicant had served only nine days of the four month period of actual custody required by his sentence. And that sentence was not rendered unduly severe by any error on the part of the learned sentencing Judge." In Neivandt the so-called principle can be extracted from some comments that were made by Pincus JA at [4] of his Honour‘s judgment, with which McPherson JA agreed, but from which the primary Judge, Thomas JA specifically disassociated himself at paragraph [31] of his Honour's judgment in that case. It was from that paragraph that Keane JA was quoting in Denyer. As I have indicated, exercising the sentence discretion afresh in this case, leads me to the conclusion that the sentence imposed by her Honour was an appropriate one in all the circumstances. Domestic violence is common in our community and it's deplored by right-minded people. In this case, the appellant presented as an upstanding member of the community whilst acting as a controlling bully in the privacy of his own home. Both personal and general deterrence applied in this man's case. He persistently offended over a significant period -- 22 of 24 -- 1-23 JUDGMENT 1 10 20 30 40 50 60 and seemed to have no regard to his wife's rights and no regard in some cases to the fact that he was on bail. In saying that, I accept that there was some evidence albeit of little weight, that the relationship was fractious and that the aggrieved person, to some extent, ambivalent towards her husband, a feature that is common in relationships of this kind. What is also clear is that for many years there were no recorded acts of domestic violence and I can infer that the applicant's infidelity (referred to in Mr Messenger's submissions), during one of their separations perversely became the touchstone for the onset of this appalling behaviour by him towards his wife. It follows that in resentencing the offender afresh because of the sentencing error that was made, I would impose the same sentences. Having regard to the so-called principle in Neivandt I must admit to having some real difficulty in the proposition that an otherwise correct sentence can nevertheless be thwarted by reference to what the majority said and did not explain in that case. Keane JA with his usual elegance, summarised the position correctly in Denyer. I would, given this man's health reluctantly hold that the remaining seven weeks of a three-month sentence could not be regarded as "trivial" in the sense in which that term is used by Keane JA. In the circumstances, the appeal is dismissed and a warrant is issued for the arrest of CCR. MR BENJAMIN: Your Honour, I'd ask that the warrant lie in the registry for seven days to allow CCR the opportunity to -- 23 of 24 -- 1-24 JUDGMENT 1 10 20 30 40 50 60 surrender himself. HIS HONOUR: And I will order that the warrant lie in the registry for a period of seven days to enable CCR to surrender himself. ----- -- 24 of 24 --