DISTRICT COURT OF QUEENSLAND

CITATION:	Mau v Queensland Police Service [2024] QDC 135	
PARTIES:	MAU, Edward John
(appellant)
v
Queensland Police Service
(respondent)	
FILE NO:	APPEAL NO: 56 of 2024	
DIVISION:	Appellate	
PROCEEDING:	Appeal	
ORIGINATING COURT:
	Magistrates Court, Cairns	
DELIVERED ON:	30 August 2024	
DELIVERED AT:	Cairns	
HEARING DATE:	21 August 2024	
JUDGE:	Morzone KC DCJ	
ORDER:	1.	Appeal allowed.
2.	The sentence and orders of the Magistrates Court made in Cairns on 9 May 2024 are varied as follows:
a.	For charge 3 substitute imprisonment of 234 days in lieu of imprisonment of 15 months.
b.	For charge 4 substitute imprisonment of 234 days in lieu of imprisonment of 15 months.
c.	For charge 5 substitute imprisonment of 234 days in lieu of imprisonment of 15 months.
d.	For charge 6 substitute imprisonment of 234 days in lieu of imprisonment of 15 months.
3.	The sentence and orders are otherwise affirmed.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – ERROR OF LAW - review pursuant to s 222 Justices Act 1886 - conviction – contravening a domestic violence order (aggravated offence) – being a prisoner giving false or misleading information to Corrections – mode of hearing of appeal – whether sentence manifestly excessive – totality in sentencing – parity – criminal history – whether sufficient weight was given to the plea of guilty – timing of plea of guilty.	
LEGISLATION:	Corrective Services Act 2006 (Qld) s 134(1)(a) 
Domestic and Family Violence Prevention Act 2012 (Qld) s  177(2)(a)
Justices Act 1886 (Qld) ss 222, 223(1) & 227
Penalties and Sentences Act 1992 (Qld) ss 9, 13
	
CASES:	AB v R (1999) 198 CLR 111
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 
Allesch v Maunz (2000) 203 CLR 172 
Dinsdale v The Queen (2000) 202 CLR 321
Dwyer v Calco Timbers (2008) 234 CLR 124
Forrest v Commissioner of Police [2017] QCA 132
Fox v Percy (2003) 214 CLR 118 
Gronow v Gronow (1979) 144 CLR
House v The King (1936) 55 CLR 499
Kentwell v R (2014) 252 CLR 60, [35]
Lovell v Lovell (1950) 81 CLR 513 
Lowe v The Queen (1984) 154 CLR 606.
McDonald v Queensland Police Service [2017] QCA 255
Nguyen v The Queen (2016) 256 CLR 656 
Norbis v Norbis (1986) 161 CLR 513
R v Cooney [2019] QCA 166 
R v Lomass (1981) 5 A Crim R 230; 
R v McIntosh [1923] St R Qd 278; 
R v Morse (1979) 23 SASR 98; 
R v Perini; ex parte A-G (Qld) (No 2) [2011] QCA 384
Teelow v Commissioner of Police [2009] QCA 84 
Veen v The Queen (No. 2) (1988) 164 CLR 465 
Warren v Coombes (1979) 142 CLR 531
White v Commissioner of Police [2014] QCA 121
	
COUNSEL:	B Campigli for the Appellant
K McDonald for the Respondent	
SOLICITORS:	Aboriginal and Torres Strait Islander Legal Service for the Appellant.
The Office of Director of Public Prosecutions for the Respondent.	

Summary
[1]	On 9 May 2024, the appellant was convicted in the Magistrates Court held in Cairns after pleading guilty to four charges of contravening a domestic violence order (aggravated offence) under s 177(2)(a) of the Domestic and Family Violence Prevention Act 2012 (Qld), and two charges of being a prisoner giving false or misleading information to Corrections, under s 134(1)(a) of the Corrective Services Act 2006 (Qld).
[2]	The sentencing Magistrate imposed 15 months imprisonment on each separate Charge 3, 4, 5 and 6 of contravening a domestic violence order, and six months imprisonment for each separate offence of false and misleading information in Charges 1 and 2.  All terms were ordered to be served concurrently, and the Magistrate fixed a parole release date of 9 May 2024, being the day of sentencing, having declared 234 days as pre-sentence custody.
[3]	The appellant now appeals his sentence on two grounds, that the sentence is manifestly excessive, and that the learned sentencing Magistrate failed to give sufficient weight to the offender’s plea of guilty.
[4]	The appeal is opposed. The respondent argues that the sentencing Magistrate did explicitly acknowledge the guilty plea in his remarks and also commented during the hearing that a discount would be allowed and that, in any event, the imposed sentence did not fall outside the permissible range for the offending. 
[5]	On my review, it seems to me that defendant’s criminal history overwhelmed the proper exercise of the sentencing discretion, and insufficient weight was afforded to the defendant’s early guilty plea and inordinate time in pre-sentence custody.  In the end, the effective sentence should be time served in the custody of 234 days.
[6]	Accordingly, I allow the appeal and resentence the defendant accordingly.
Appeal
[7]	The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).  
[8]	Pursuant to s 223 the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave if there are special grounds for giving leave.  
[9]	The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.  Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings.  In doing so it ought to attach a good deal of weight to the Magistrate’s view. 
[10]	By operation of s 222(2)(c), the appellant can “only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate”, that is, “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”.  To succeed, the appellant  must establish  some  legal,  factual  or  discretionary  error.  Such an error may be specifically identifiable, but an otherwise undiscernible error may be inferred from the imposition of an excessive or inadequate sentence.
[11]	The decisions of House v The King (1936) 55 CLR 499 and Kentwell v R (2014) 252 CLR 60 distinguish cases of specific error and indiscernible excess or inadequacy.  In the case of specific error, the appellate court’s power to intervene is enlivened and it is dutybound to re-sentence unless, in the separate and independent exercise of its discretion, it concludes that no different sentence should be passed.  By contrast, absent identifiable specific error, the appellate court ought only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.
[12]	Even if the appellate court finds that the sentence was at the extreme end of a permissible range, or has a different opinion about the way in which the discretion should be exercised, these are not sufficient justifications for review; it must be shown that the discretion miscarried resulting in an excessive sentence.  In that context, it may be vitiated by an error of principle, or by a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.
Is the sentence otherwise manifestly excessive?
[13]	The sentence proceeded with the prosecution’s submissions backgrounded by the appellant’s five-page criminal history, a domestic violence history report, a pre-sentence custody certificate, and a sentence calculation report. The appellant plead guilty to:
(a)	Charge 1 - On 27 September 2023 the defendant being a prisoner gave information to a Queensland Corrective Services officer, that he knew was false or misleading by providing a false name to the prisoner telephone system.
(b)	Charge 2 – On 4 October 2023, the defendant being a prisoner gave information to a Queensland Corrective Services officer, that he knew was false or misleading by providing a false name to the prisoner telephone system.
(c)	Charge 3 – On divers dates between 30 September 2023 and 1 November 2023, the defendant being a respondent against whom a domestic violence order had been made, contravened the order made on 28 May 2021.
(d)	Charge 4 - On divers dates between 31 October 2023 and 1 November the defendant being a respondent against whom a domestic violence order had been made, contravened the order made on 28 May 2021.
(e)	Charge 5 - On divers dates between 30 November 2023 and 1 January 2024, the defendant being a respondent against whom a domestic violence order had been made, contravened the order made on 28 May 2021.
(f)	Charge 6 - On divers dates between 31 December 2023 and 10 January 2024, the defendant being a respondent against whom a domestic violence order had been made, contravened the order made on 28 May 2021.
[14]	For charges 1 and 2 of providing false information to Corrective Services, the appellant, while on remand at Lotus Glen Correctional Centre, falsely listed two phone numbers under the name "Terra Mau", claiming she was his sister. These numbers were actually for his former partner, APM, the aggrieved party in his domestic violence case. 
[15]	For the four charges of contravening a domestic violence order, on various dates between 27 September 2023 and 9 January 2024, the appellant made 66 calls to the aggrieved in violation of a domestic violence order prohibiting contact, rolled up into four charges of contravening the order.  No material regarding the content of the calls was submitted by the prosecution at the plea hearing, though transcripts of the calls had been previously provided for a bail application.  The defence argued that the calls were primarily domestic in nature, though sometimes heated. But the sentencing Magistrate impermissibly reviewed the transcripts (apparently remaining on the file since the bail application but not tendered in the sentencing hearing) and noted examples of bad language towards the aggrieved. 
[16]	Manifest excess may be exposed, absent any specific identifiable error, by a consideration of all of the matters that are relevant to fixing the sentence, particularly the nature of the offending and the sentences imposed in the most closely comparable cases.  
[17]	In Green v Queensland Police Service, [2015] QDC 341 the appellant contacted the aggrieved 60 times over 10 hours, requesting her to withdraw her complaint, while on parole. He was initially sentenced to six months imprisonment, to be served consecutively with a 15-month term he was already serving. However, on appeal, his sentence was reduced to three months imprisonment, to be served concurrently with his existing sentence, with a parole eligibility date set at the original sentencing date. In comparison, the current appellant's offending is considered less serious overall, despite some more severe aspects, such as the longer duration of the offending and the use of a false name to add the aggrieved to his prison contact list. 
[18]	The sole purpose of the appellant’s contact in Green was unlawful, and his history of domestic violence was more extensive, being described as including a long list of examples of physical violence against the aggrieved. The history additionally contained relevant entries in the year prior to the offending subject to the appeal. While the current appellant is burdened by a domestic violence history, there is an absence of entries similar to the current offending since 2021. Additionally, the appellant in Green was younger, at 24 years old, and dealt with developmental delays and disorders shown through medical evidence. In my view, this comparative case cannot be distinguished to a degree capable of justifying a 12-month sentence disparity.
[19]	In JHL v Commissioner of Police [2016] QDC 346, the appellant pleaded guilty to three charges of contravening a domestic violence order and one charge of common assault, involving contact with the aggrieved on three different dates, some of which included threats of violence. The appellant was sentenced to 12 months imprisonment, with parole eligibility after serving one-third of the sentence. The court dismissed the appeal, finding the sentence was not manifestly excessive.  The offending in JHL was considered more serious than the current case, as it involved texts containing appalling racist language and explicit threats of violence, such as “There is going to be a blood bath today.” Although the appellant in JHL had a diagnosis of bipolar disorder and had completed a rehabilitation program, his criminal history was more extensive, with 22 prior breaches of domestic violence orders, including a recent nine-month prison term for offences involving the same aggrieved.  It seems to me that the offending in JHL can be correctly categorised as more severe, and underpinned by a more extensive history. In light of these factors, the sentence imposed in JHL seemingly ought be higher than that passed on the appellant in the current case. 
[20]	Whilst analysis of closely comparable cases often provides valuable guidance, those proffered, here and below, have relative comparative value depending on their age, offender’s idiosyncratic antecedents, criminal history, nature and seriousness of the offending involving differing aggravating features, prevalence, and applicable maximum penalties at the times they were decided.  They must be considered in the context of the different combinations, natures, and seriousness of the offending compared to the appellant’s offending, which involved contravening a domestic violence order and giving false or misleading information to a Corrective Services Officer. Ultimately, the appropriate sentence will depend on the particular circumstances of the offending and the degree of culpability of the offender.  In this case, it is instructive to look at the appellant’s particular circumstances and the combination of offences.  His offending occurs against a background of domestic violence and disobedience.  The gravamen of his offending is found in the deceptive disobedience of the DVO while in custody.  Matters of personal and general deterrence are particularly relevant.  The court must also look at the totality of the appellant’s criminal behaviour and ask itself what the appropriate sentence for all the offences is and was it just and appropriate pursuant to s 9 of the Penalties and Sentences Act 1992 (Qld). 
[21]	The appellant relies upon these cases to contend for a range of 3 to 6 months imprisonment for the contravention offending, whereas the crown argues that the sentence imposed was within a permissible range.  It seems to me that a head sentence of 15 months carried by any or all of the contravening offences is outside the permissible range, even allowing for some uplift adequate to accommodate the overall criminality, including the offences for providing false information to corrections.  
[22]	Having regard to his Honour’s remarks and characterisation of the appellant’s past offending and the nature and extent of the offending before him, it seems to me that his Honour did fall into specific error by allowing the criminal history to overwhelm his sentencing discretion.  
[23]	The appellant has an extensive criminal history with prior like convictions, relevantly here, his domestic violence-related offending began in 2021, specifically with the aggrieved. Relevant prior convictions include:
1.	28 May 2021: 1-month imprisonment (suspended for 6 months) for four offences, including contravening a police protection notice and a domestic violence order.
2.	2 December 2021: 15-month imprisonment (parole after 5 months) for contravening a domestic violence order, with concurrent sentences for other contraventions.
3.	1 March 2022: 3-month imprisonment cumulative on the December 2021 sentence for threatening violence at night and contravening a domestic violence order.
4.	10 May 2022: 3-month imprisonment (suspended for 18 months) for one charge of contravening a domestic violence order.
5.	22 April 2023: 2-month imprisonment cumulative on two activated suspended sentences, with immediate parole release, for one charge of contravening a domestic violence order.
[24]	Of the appellant's past offending and criminal history, the learned Magistrate remarked:
1.	The appellant had a history of domestic violence-related offences, particularly involving the same aggrieved, which was considered an aggravating factor. His conduct since 2021 was described as ‘appalling’ in this regard.
2.	Over the four years he had been with the aggrieved, the appellant had received four sentences of imprisonment related to offending against her.
3.	The Magistrate emphasised that while the appellant was not being sentenced for his criminal history, it needed to be considered when evaluating his prospects for rehabilitation, which were deemed "difficult to gauge." Although he had a reasonable work history, his opportunities were lost due to his offending.
4.	Apparently harking back to the criminal history, his honour remarked during the hearing that the aggrieved had ‘lived a life of hell’ and a ‘horrible existence’ since he came into her life, and that he still “hammers” the aggrieved from jail; 
5.	During the hearing, the learned Magistrate also rejected the joint position of the parties, saying that the defendant wasn’t going to get 234 days or 12 months and be ‘on his way’, as that wasn’t enough when looking at his criminal history.
6.	The Magistrate considered that a longer term of imprisonment, than time served, was necessary, both for personal and general deterrence, particularly because the appellant's offending occurred while he was in custody.
[25]	It is trite law that the appellant’s criminal history is a relevant matter for the proper exercise of the sentencing discretion.  In particular, s 9(3)(g) required the Court to have regard to “the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed”.  Further, s 9(10) provides:
“In determining the appropriate sentence for an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to – 
(a)	the nature of the previous conviction and its relevance to the current offence;
(b)	the time that has elapsed since the conviction.”
[26]	Subsection (11) provides:
“Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence.”
[27]	Clearly enough, the provisions reflect the common law as it stood and proclaimed in Veen v The Queen (No. 2)  as follows:
“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences; Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.  Applied by Cooper J (with whom Kneipp and Shepherdson JJ agreed) in R v Aston [No 2] [1991] 1 Qd R 375.”
[28]	In sentencing concurrently, it is permissible to allow for the overall criminality by imposing a sentence for the most serious offence which is more severe than it would be if the offence were falling for sentence in isolation.  However, such a sentence must remain within a just range of punishment for the offence, lest it offend the over- arching principle that a sentence must not be so severe as to be disproportionate to the gravity of the offence to which it attaches.
[29]	In that way, in my respectful view, I think the learned Magistrate erroneously allowed the appellant’s past offending and the criminal history, which he characterised in the terms above, to overwhelm his sentencing discretion for the contravening calls without any description to gauge the level of abuse, and different to past domestic violent offending.  This resulted in an excessive sentence outside the permissible range in the case circumstances.
[30]	On my review, a global sentence falling in the higher end of the range of six to nine months imprisonment is within range for the four charges of contravening a domestic violence order, which would include a permissible uplift to reflect the overall criminality, including the charges of false and misleading information.  However, further moderation is required in this case to account for the inordinate pre-sentence custody of 234 days and the defendant’s pleas of guilty, as I discuss below.
[31]	In any event, I am bound to conclude that it was an excessive head sentence. 
Did the learned Magistrate fail to take account the plea of guilty?
[32]	Section 13 of the Penalties and Sentences Act 1992 (Qld) provides that in imposing a sentence on an offender who has pleaded guilty, a Court must take that plea into account and may reduce the sentence that it would have imposed had the offender not pleaded guilty.  Subsection 13(3) of the Act states: ‘When imposing the sentence, the Court must state in open Court that it took account of the guilty plea in determining the sentence imposed’. 
[33]	The appellant contends that the Magistrate failed to properly consider the timing of the guilty plea when determining the sentence, by which time, the defendant had served 234 days, which is more than half of his sentence before being released on parole. The appellant argues that the Magistrate should have moderated the sentence to time served to recognise the defendant’s early plea properly.  
[34]	Further, as was said by Daubney J in R v Harris [2008] QCA 141 at page 4: 
‘Section 13 is a significant element in the mechanism of achieving efficient administration of criminal justice in this State. It self-evidently provides for an accused to receive appropriate and tangible recognition in the sentencing process for the savings in time and cost to the Courts, the prosecuting authorities, and to publicly funded or community-based defence organisations which result from the entering of a plea of guilty or at least to be expressly told why such recognition is not being given in a particular case…’. 
[35]	The appellant faced multiple charges, including sixty-six counts of contravening a domestic violence order and two Corrective Services Act 2006 (Qld) charges. At the time of these charges, the appellant was already on remand for another matter involving ten offences.  Negotiations led to a resolution where the appellant agreed to plead guilty to a reduced set of charges. However, on 9 May 2024, the prosecution dropped all charges from the trial matter and reduced the 66 domestic violence order charges to four, which the appellant pleaded guilty to, alongside the two Corrective Services Act 2006 (Qld) charges.  
[36]	During the argument, the learned Magistrate explicitly mentioned affording the appellant a discount for his early pleas of guilty.  But I cannot discern how his Honour gave tangible recognition to the early plea in the sentence, except to say that it may be explicable by his Honour's mischaracterisation of the timing of the pleas as late, and therefore warranting little or no weight.  The appellant had, in fact, indicated a very early plea of guilty early in the process, before the matter was listed for trial and without entering any pleas of not guilty.  Instead, the learned Magistrate may have conflated the timing of the appellant's plea of guilty with the trial matter and incorrectly characterised it as a late plea. 
[37]	In my respectful view, the Magistrate erred in exercising the sentencing discretion by mistaking the facts, and then applying a wrong principle as to the plea of guilty.  In the result, the learned Magistrate imposed a manifestly excessive sentence outside the permissible range in the circumstances of the case.
Resentence
[38]	Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion. The only purpose for which a sentence may be imposed under s 9(1) of the Penalties and Sentences Act 1992 (Qld) is to punish an offender to an extent or in a way that is just in all of the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, make it clear that the community denounces the conduct in the offending and to protect the community.  The relevant factors that the court must regard are in the subsequent subsections of s 9 of the Penalties and Sentences Act 1992 (Qld). 
[39]	It is trite to say that the appropriate sentence will depend on the individual circumstances of the offending and the degree of culpability of the offender. With respect to the appellant’s offending, it indeed attracts the presumption that imprisonment should be imposed as a last resort and a sentence that allows the appellant to stay in the community is preferable. But this presumption ought to be viewed in conjunction with the gravity of offending gleaned from the minimum and maximum penalties for the offences, the appellant’s criminal history and antecedents.
[40]	The appellant is a Thursday Islander and grew up on Horn Island in a stable home. He completed year 12 and worked in various jobs, including as a general labourer, lawnmowing contractor, and crayfish packer.  He also earned a Certificate IV in Rail Infrastructure and was set to begin a job in that field before being remanded. At the time of sentence, he had four children, two with a previous partner and two with the aggrieved, with whom he had been in a relationship for four years.  His mother had passed away recently, but the appellant still had family support in Cairns and on Horn Island.  I also accept the submission that the appellant's incarceration was made more difficult due to his mother falling ill prior to her death while he was in custody.  
[41]	I have had regard to the conduct of the defendant in the continuous offending in contravention of the no contact condition, and how that was facilitated by the proceeding deception offences.  The appellant showed remorse and responsibility by his very early pleas of guilty, and relative cooperation. 
[42]	Having reviewed all of the above and the comparative cases of Green and JHL, it seems to me that the sentences for the domestic violence offending might fall in the range of six to nine months in these deliberately deceptive contraventions, including an uplift to reflect the overall criminality.  But further moderation is required in this case to account for the inordinate pre-sentence custody of 234 days and the defendant’s guilty pleas, as I discuss below. In considering the aggregate of the appropriate sentences, it is just and appropriate and not too crushing or disproportionate that the sentences of imprisonment be served concurrently. The 234 days spent in custody from 18 September 2023 to 8 May 2024 inclusive in relation to the offending is to be treated as imprisonment already served under the sentence.
[43]	I set a parole release date based on the defendant’s plea of guilty, cooperation with the police and prosecution, criminal history and past offending, and the time he spent in custody before the sentence. Further, I take into account his age.  
[44]	It seems appropriate that the parole release date remain the date of sentence in all circumstances since the defendant has served an inordinate time in pre-sentence custody.  
Order
[45]	For these reasons, I make the following orders:
1.	Appeal allowed.
2.	The sentence and orders of the Magistrates Court made in Cairns on 9 May 2024 are varied as follows:
a.	For charge 3 substitute imprisonment of 234 days in lieu of imprisonment of 15 months.
b.	For charge 4 substitute imprisonment of 234 days in lieu of imprisonment of 15 months.
c.	For charge 5 substitute imprisonment of 234 days in lieu of imprisonment of 15 months.
d.	For charge 6 substitute imprisonment of 234 days in lieu of imprisonment of 15 months.
3.	The sentence and orders are otherwise affirmed.

Judge DP Morzone KC