DISTRICT COURT OF QUEENSLAND

CITATION:	DJA v Commissioner of Police [2025] QDC 18	
PARTIES:	DJA
(appellant)

v

COMMISSIONER OF POLICE
(respondent)	
FILE NO/S:	2470/24	
DIVISION:	Appellate 	
PROCEEDING:	Appeal	
ORIGINATING COURT:	Brisbane Magistrates Court	
DELIVERED ON:	20 February 2025 (ex tempore)	
DELIVERED AT:	Brisbane	
HEARING DATE:	20 February 2025	
JUDGES:	Farr SC DCJ	
ORDER:	1.	Appeal in respect of charge of contravention of a domestic violence order allowed.
2.	Order imposed by the Magistrates Court at Brisbane on 29 August 2024 which set period of imprisonment for convention of a domestic violence order at 6 months varied to 3 months.
3.	Orders imposed for remaining offences and parole eligibility date not to be varied.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the acting Magistrate referred to comparable decisions not referred to in submissions – where the acting Magistrate referred to an incorrect outcome – where the appellant has a lengthy criminal history – where the offending conduct falls at the lower end of the scale of seriousness – whether the sentence imposed was excessive	
LEGISLATION:	Justices Act 1886 (Qld)	
COUNSEL:	J Wallace for the appellant 
C McMullan for the respondent	
SOLICITORS:	King Criminal Lawyers for the appellant
Office of the Director of Public Prosecutions for the respondent	

Introduction 
[1]	This is an appeal pursuant to section 222 of the Justices Act 1886 (Qld).  The appellant appeared before the Brisbane Magistrates Court on the 28th of August 2024 in relation to offences of breach of a bail condition, trespass, unlawfully enter or remain in a yard or place for business, possess tainted property, possess dangerous drugs and contravention of a domestic violence order.  The offences all occurred in August 2024, and in fact, the trespass charge occurred the day before his court appearance.  For all offences other than the contravention, he was sentenced to three months’ imprisonment, which was suspended immediately, with an operational period of 18 months.  For the contravention charge, he was sentenced to six months’ imprisonment, with an immediate parole release date.
Basis of appeal
[2]	His appeal is on the basis that the sentences imposed were excessive.  The appeal is not opposed, and counsel have drawn to the court’s attention a couple of errors on the part of the acting Magistrate.  One is that in the course of her sentencing remarks, the Magistrate referred to some comparable decisions which were not referred to during the course of submissions by either the prosecution or the defence, and they were, therefore, not given any opportunity to make reference to those particular cases and how they may or may not be distinguished.  The second is that in respect of one of those matters, the Magistrate made reference to an incorrect outcome. 
Appellant’s antecedents
[3]	It is quite obvious, reading the material, that the acting Magistrate placed particular emphasis on the appellant’s criminal history.  His history can be described as poor, now running into the ninth page.  I note that he has numerous prior convictions for contravening domestic violence orders, as well as many other entries for breaching court orders such as probation or community service, as well as failures to appear, or contravening directions or requirements.  In addition to that, of course, he has prior convictions for substantive offences.  It is the contravention charge that is of particular relevance for the purposes of this appeal, and to properly understand the approach of  both parties and what will be the order of this court, a brief recitation of the facts relating to that offence are required.
Factual circumstances of offending
[4]	The appellant, at the relevant time, was the subject of a temporary protection order which provided inter alia that he must not approach within 100 metres of the aggrieved’s usual place of residence - the aggrieved being an ex-partner and someone against whom he had previously committed similar offences.  He breached that condition on the 18th of August 2024 by approaching within that 100-metre restriction.  The information placed before the court, and upon which the sentence was based, was that on the occasion in question, the appellant had the care of the children of that particular relationship for the weekend and was due to drop them back to the aggrieved person, the usual arrangement being that they would meet 100 metres from her house.  On this particular occasion, she was not present at the agreed location and was not answering her phone.  The appellant, therefore, made the decision to approach the house to drop the children, who were aged twelve, nine and seven, directly home.
[5]	That is said to be the sole criminality of the breach, and there is no opposition in that regard.  It is not suggested that there was any violence or threats used, or any other breach of behavioural standards as required by the order.  When questioned, the appellant made admissions to police.  So, notwithstanding his criminal history, it is a contravention which falls very much at the lower end of the scale of seriousness.  
Consideration
[6]	The imposition of a sentence of imprisonment, albeit with an immediate release, of six months is demonstrably disproportionate to such offending conduct, and it is apparent that the acting Magistrate placed undue emphasis on the defendant’s criminal history in arriving at that outcome.
[7]	The unfortunate result was that the sentence imposed did not properly reflect the seriousness of the offending conduct, and as courts have noted on many occasions over many years now, a person is not to be punished twice for prior convictions.  That is not to say that a person’s criminal history is not a relevant consideration on sentence.  Of course it is, and it is due to his criminal history no doubt that for the remaining charges, an operational period for the suspended term of imprisonment of three months was set at 18 months.  As I indicated to counsel during the course of submissions, that appears to me to be an appropriate approach, properly reflecting all relevant considerations.  It cannot be said, and it is not submitted on behalf of the appellant, that a sentence of some imprisonment would be inappropriate in the circumstances of this matter for the contravention offence, given his prior offending conduct, but six months is, as I have said, demonstrably excessive.
[8]	Given that this is a matter which is not contested, I need not discuss the relevant law as applies to section 222 appeals in this ex-tempore decision.  
Orders
1.	Appeal in respect of charge of contravention of a domestic violence order allowed.
2.	Order imposed by the Magistrates Court at Brisbane on 29 August 2024 which set period of imprisonment for convention of a domestic violence order at 6 months varied to 3 months.
3.	Orders imposed for remaining offences and parole eligibility date not to be varied.